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Matson v. United Parcel Service, Inc.

United States District Court, Ninth Circuit

November 8, 2013

MARY MATSON, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

ORDER

RICHARD A. JONES, District Judge.

On November 5, 2013, the court held a pretrial conference. During the conference, the court indicated that it would take two issues under submission: (1) whether defendant may call Doug Christensen as a rebuttal witness if Ms. Matson testifies about the choking incident, where he was not previously disclosed as a witness by defendant; and (2) whether defendants should be permitted to assert four defenses not previously asserted in the pretrial order or proposed jury instructions during the first trial. The court requested additional briefing, not to exceed three pages, regarding the former. Defendant submitted a brief in support of its position regarding the latter, and the court granted plaintiff the opportunity to respond in writing. The court has reviewed all materials submitted.

A. Mr. Christensen as a Rebuttal Witness

Defendant argues it should be permitted to call Mr. Christensen as a rebuttal witness because it could not have foreseen the need to identify him prior to Ms. Matson's testimony at trial. Dkt. # 208. Plaintiff argues that UPS had knowledge that plaintiff would testify about the choking incident involving Mr. Christensen during discovery, and defendant's failure to disclose him as a witness for the first trial should preclude UPS from disclosing him as a rebuttal witness for the retrial. Dkt. # 206.

Rule 37(c)(1) provides that a party failing to provide information or identify a witness as required by Rule 26(a) or (e) "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. Proc. 37(c)(1); Hoffman v. Lopez, 541 F.3d 1175, 1179 (9th Cir. 2008). Parties are required to provide the name and contact information of any individual likely to have discoverable information "that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Fed. R. Civ. Proc. 26(a)(1)(A)(i). Parties are also required to provide the other party the name and contact information of any witnesses, "separately identifying those the party expects to present and those it may call if the need arises." Fed. R. Civ. Proc. 26(a)(3)(A)(i). Parties are also required to supplement these disclosures "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 or in writing[.]" Fed. R. Civ. Proc. 26(e)(1)(A).

The court has broad discretion "to manage the cases before it efficiently and effectively." See Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005) ("The abuse of discretion standard is deferential, and properly so, since the district court needs the authority to manage the cases before it efficiently and effectively."). "Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence." Id.

Here, UPS was alerted to the potential need for Mr. Christensen to testify as a witness during discovery. In her complaint, plaintiff alleged that in December 2009, "one of defendant's male employees assaulted plaintiff on the job, injuring the plaintiff." Dkt. # 1 at 8 (Compl. ΒΆ 9). On January 28, 2011, plaintiff responded to defendant's first interrogatories and requests for production. Defendant propounded interrogatory 1: "To the extent not already identified in your initial disclosures, please identify each person who you believe has knowledge that relates to the allegations in your Complaint and summarize the knowledge that you believe each person has." Dkt. # 200-3 at 5. Plaintiff responded, among others, "Doug Christensen - Early AM Driver (EAM) co-worker (Guy who choked me) - knowledge of discrimination, retaliation, harassment." Dkt. # 207-2 at 2. On June 16, 2011, plaintiff propounded her first set of interrogatories and requests for documents, and asked, among others, the following:

INTERROGATORY NO. 13: Please describe UPS' policies and procedures, whether formal or informal, regarding workplace violence, including physical assaults, threats of physical assaults, and verbal altercations, in place at BFI during the time period of the Plaintiff's employments, including in your answer any changes or updates to such policies and procedures.

* * *

REQUEST FOR PRODUCTION NO. 20: Produce the documents referring or relating to incidents of workplace violence and security issues or other problems between UPS employees, including, but not limited to, physical assaults, threats of physical assault, or verbal altercations, at BFI for the time period that the Plaintiff was employed by UPS.

* * *

REQUEST FOR PRODUCTION NO. 21: Produce the documents referring or relating to the physical incident that occurred between Doug Christensen and the Plaintiff, including, but not limited to, any warnings, reprimands, memoranda, notes, reports, intra- and inter-office communications, and termination or resignation documents.

Dkt. # 207-1 at 17.

Given the fact that plaintiff alleged a physical assault in her complaint, disclosed the choking incident with Christensen during discovery as evidence of discrimination, retaliation, and harassment, and sought discovery regarding the choking incident and defendant's policies and procedures regarding physical assaults, the court finds that defendant was not substantially justified in failing to name Christensen as a witness for the first trial.[1] Defendant also argues that Ms. Matson's testimony that was admitted over objections included double hearsay. Dkt. # 208 at 3. However, the only objections raised by defendant at trial to this line of testimony were relevance and prejudice. Dkt. # 139 at 11:6-17, 34:11-24). Defendant did not raise a hearsay objection during trial. The court overruled the relevance and undue prejudice objections because the choking incident and ...


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