United States District Court, District of Columbia
DERECK G. WILLIAMS, Plaintiff
RYAN DEVLIN, et al., Defendants
MEMORANDUM OPINION and ORDER
COLLEEN KOLLAR-KOTELLY, District Judge.
On May 1, 2015, the Court held a Pretrial Conference in this case, at which the Court made several rulings as to the evidentiary issues raised. See Order dated May 5, 2015, ECF No. 55. The Court also ordered additional briefing as to several issues that could not be resolved on the basis of the information that had been provided to the Court at that time. The parties subsequently filed additional briefing, and the Court now resolves evidentiary issues that remain with respect to Defendants'  Motion in Limine and with respect to each party's objections to the Pretrial Statement.
With respect to several of the issues discussed below, the Court will have a further discussion at the October 23, 2015, Pretrial Conference. In addition to the presence of counsel, the Court expects Plaintiff himself to be present at the Pretrial Conference in order to facilitate those discussions.
It is undisputed that Plaintiff did not disclose his jacket during discovery. Because it was not disclosed during discovery, the parties appear to agree that the only possible basis for admitting this evidence is the exception to the disclosure provisions of Rule 26(a) for evidence used "solely for impeachment." Fed.R.Civ.P. 26(a)(1)(A)(ii); see also Standley v. Edmonds-Leach, 783 F.3d 1276, 1281 (D.C. Cir. 2015) ("In other words, a party need not disclose a witness pursuant to Rule 26(a) if the evidence will be used solely for impeachment, ' and the witness may testify at trial even if not disclosed beforehand."). Plaintiff now seeks to introduce the jacket for what he claims is "solely for impeachment." Specifically, Plaintiff represents that the jacket contains boot-prints that directly contradict the testimony that Defendants will give (that they did not kick Plaintiff). Defendants argue that that jacket does not qualify for the "solely impeachment" exception.
The Court will consider the admissibility of the jacket after it has an opportunity to examine the jacket at the October 23, 2015, Pretrial Conference. However, the Court notes the prejudice raised by Defendants from Plaintiff's failure to disclose the jacket in discovery-and from Plaintiff's failure to produce the jacket even at this point of the proceedings. In addition, the Court notes that, as Defendants have stated, Plaintiffs have not provided any details about the chain of custody or how the jacket's condition has been preserved since Plaintiff's arrest. Plaintiff seeks to present testimony from Kalafat "as to his chain of custody related to possession of Plaintiff's jacket." Pretrial Statement, ECF No. 45, at 9. But Plaintiff has never provided any additional specifics regarding the custody and preservation of the jacket in the four years since the underlying incident occurred.
Plaintiff's counsel shall bring the jacket to the October 23, 2015, Pretrial Conference as previously ordered by the Court. Plaintiff shall be prepared to make a proffer as to the chain of custody and preservation of the jacket. The Court will resolve the questions regarding its admissibility after that point.
Testimony of Attorney Jason Kalafat
Plaintiff seeks to introduce testimony of attorney Jason Kalafat regarding the amount of attorneys' fees at the associated criminal trial and about the custody of the jacket that Plaintiff seeks to introduce as an exhibit. Defendant seeks to preclude this testimony because this witness was disclosed only after the close of discovery. As an initial matter, the Court previously concluded that Kalafat's proposed testimony regarding the cost of Plaintiff's legal fees for the underlying criminal action is relevant to Plaintiff's malicious prosecution claim insofar as Plaintiff is seeking compensatory damages for that claim that would include his legal fees. See Memorandum Opinion, dated April 23, 2015, ECF No. 49, at 3-4. The Court also concluded that, because of the limits to Kalafat's proposed testimony as to legal fees, any concern about prejudice caused to Defendants by virtue of the substance of the testimony is misplaced. See id. at 4. Subsequently, pursuant to the Court's order, Defendants clarified that they are contesting the amount of legal fees to be included in damages with respect to the malicious prosecution claim.
There is no dispute that Plaintiff disclosed Kalafat as a witness on June 4, 2014, when Plaintiff supplemented his discovery responses. That date was two months after the close of discovery. Plaintiff claims that, even though this disclosure was two months after the close of discovery, the testimony should be allowed because Defendants' failed to reopen discovery in connection with this witness, even though they requested the reopening of discovery regarding the wage evidence. In response to these contentions, the Court required Plaintiff to explain why he did not identify Kalafat's testimony during discovery and required Defendants to explain why they did not seek to reopen discovery as to Kalafat's testimony. The Court also required Defendants to provide the Court with certain specified interrogatories in order to determine whether Plaintiff disregarded Defendants' discovery requests in failing to identify Kalafat.
After considering Defendants' Interrogatories Numbers 10, 21, 23, and 24, the Court concludes that Plaintiff should have identified Kalafat explicitly. In that light, the Court concludes that Plaintiff's explanation of why Kalafat was not identified is inadequate. Plaintiff states: "Plaintiff's counsel did not decide to use Mr. Kalafat as a witness until after analyzing the evidence as a whole that was presented in discovery and after learning of Plaintiff's jacket in which Plaintiff counsel learned of after discovery closed." Pl.'s Notice at 2-3, ECF No. 51. However, Plaintiff does not explain why he failed to identify Kalafat explicitly in response to the interrogatories with respect to the damages sought. Nor does Plaintiff have any justification for failing to "learn of" Plaintiff's jacket until after discovery given that the jacket belonged to Plaintiff. If the Court subsequently determines that the jacket is inadmissible, the testimony regarding the custody of the jacket would be immaterial, further supporting the conclusion that Kalafat's testimony is inadmissible.
By contrast, the Court concludes that Defendants' explanation of why they did not seek to reopen discovery is adequate. Defendants explain that, in addition to their position that the late-disclosed witness would be barred because there was no adequate explanation for the late disclosure, they did not seek to reopen discovery because "Mr. Kalafat's only arguably relevant testimony would pertain to his legal fees, which Plaintiff totally failed to produce during discovery or even after." Defs.' Notice, ECF No. 50, at 2. Although contested by Defendants, Plaintiff states that he disclosed the fact that he incurred legal fees from Kalafat during discovery and that he revealed the total amount of those fees during his first deposition, which occurred during the discovery period. Plaintiff acknowledges that he did not produce any bills-or any other supporting details or documentation-during discovery. See Pls.' Notice, ECF No. 51, at 2. The Court concludes that this was insufficient to put Defendants on notice that it would be proper to reopen discovery with respect to the prior legal bills.
In addition, Plaintiff has failed to comply with the Court's May 5, 2015, Order requiring Plaintiff to file a supplemental briefing regarding the testimony of Kalafat. Specifically, the Court required Plaintiff to submit briefing regarding the following matters:
Plaintiff shall file a supplemental brief indicating how much Plaintiff paid in attorney's fees for the underlying criminal action and how Plaintiff paid those fees (e.g., in cash, by check), including whether he received a bill for the fees charged. Plaintiff shall also indicate where in the interrogatories and where in Plaintiff's deposition testimony Plaintiff discussed the amount of attorney's fees he paid for his underlying criminal trial. Plaintiff shall cite to and attach the specific page(s) where the attorney's fees are discussed in the interrogatories and/or deposition.
Order, dated May 5, 2015, ECF No. 55, at 2. In Plaintiff's  Supplemental Trial Brief, Plaintiff completely failed to respond to any of these questions. Plaintiff merely responds that the responsibility for failing to reopen discovery lies at Defendants' doorstep, and claims that Defendants' strategically failed to reopen discovery in order preclude Kalafat's testimony. As of this date, Plaintiff still has not provided any basis for Kalafat's testimony regarding attorney's fees. Plaintiff has never provided bills, evidence of payment, a retainer agreement, a fee agreement, or itemized timesheets. Nor has Plaintiff provided any details regarding Plaintiff's payment arrangements with Kalafat, whether they entailed a fixed fee, an hourly rate, or other arrangements. It is wholly unclear what testimony Kalafat would give as to the payment arrangements or his receipt of any payment from Plaintiff if he were allowed to testify. Now, as the Court holds the second Pretrial Conference in this case and as the Court prepares to set a trial date, it is too late for Plaintiff to remedy the failure to respond to the Court's order and too late to provide materials that might create a basis for Kalafat's testimony.
In sum, Defendants have adequately explained why they did not seek to reopen discovery as to the testimony of Kalafat, but Plaintiff has failed to explain why he did not identify the testimony of Kalafat during discovery and, more importantly, Plaintiff has failed to show that he disclosed an adequate basis for the attorney's fees testimony during discovery. Therefore, testimony by attorney Jason Kalafat is precluded as to attorney's fees.
Testimony of Plaintiff Regarding Attorney's Fees for Criminal Proceedings
In addition to the testimony of attorney Jason Kalafat, Plaintiff seeks to introduce testimony of Plaintiff about his payment of attorney's fees to Kalafat. At the May 1, 2015, Pretrial Conference, Plaintiff stated to his attorney, and through his attorney to the Court, that he paid Kalafat $10, 000 in cash. He did not provide any more details regarding the payments or payment arrangements. At the hearing, and in the Order the Court issued following the hearing, the Court required Plaintiff to supplement the ...