This is an unpublished opinion barring two trial witnesses who were not disclosed by Epic Games in pretrial disclosures.
Rule 26(a) requires each party to disclose the identity of potential witnesses long before trial. The failure to disclose a witness can lead to disastrous sanctions. The appeal is under an abuse of discretion standard.
The court summarized Rule 26 as follows:
“Federal Rule of Civil Procedure 26(a) requires a party to make certain initial disclosures, including the identity of”each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A). Rule 26(e) provides that
[a] party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process. . . .
Fed. R. Civ. P. 26(e)(1) (emphasis added).”
The court noted that the failure to disclose the witnesses was compounded by the fact that the initial disclosures were amended several times, but the witnesses were not included in the updated disclosures.
“Epic’s oblique references to Clifford Bleszinski and Steven Polge during discovery were insufficient to alert SK that Bleszinski and Polge were potential witnesses. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 329-30 (4th Cir. 2011). Although Epic supplemented its initial Rule 26 disclosures four times, Epic failed to disclose Bleszinski or Polge. Moreover, because SK has not deposed Bleszinski or Polge, Epic’s failure is not substantially justified or harmless.”
Edward X. Clinton, Jr.