This opinion raises an issue that can arise in litigation – a party fails to disclose the identity of a witness and the opposing party moves to bar the witness from testifying. Here the court rejected that argument because the defendant was aware of the identity of the witness (even though he was not on the witness list) and failed to take the appropriate deposition.
The court explains: “Bearing those standards in mind, the Court will deny Defendant’s motion in limine to exclude Chastek from testifying at trial. Where, as here, a party fails to list a potential witness in its initial disclosures, courts have not imposed the harsh sanction of excluding his or her testimony at trial so long as the opposing party knows of that witness well in advance of trial. …
At the first step, Defendants are hard-pressed to claim surprise. As Plaintiffs discuss at length in their brief, Defendants knew of Chastek’s identify and position at Wheeling & Lake Erie during the discovery period and could have easily noticed his deposition. But they apparently chose not to do so. Defendants also questioned Wheeling & Lake Erie’s then-Rule 30(b)(6) designee, Michael Mokodean, its Chairman and CEO, Larry Parsons, and its Director of Real Estate, Taxes and Industrial Development, Clarence Jaeger, about Chastek during their respective depositions and introduced an article quoting Chastek (and identifying his position) as an exhibit in no less than two of those deposition. In addition, Chastek was identified on numerous documents (i.e., various e-mail chains) produced to Defendants by Plaintiffs and third-party Chesapeake throughout the discovery phase of this litigation.”
Thus, the court refused to bar the witness because the defendants could have solved the problem themselves by taking the deposition of the witness.
This case is important because it shows how good lawyering by the plaintiff defeated a motion based on a technicality. While its true that the witness was not listed on the witness list, defendants should have been aware that the witness existed given the volume of discovery materials that were produced concerning the witness. This is a demonstration of good lawyering by plaintiff’s counsel.
Edward X. Clinton, Jr.