1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, Case No. 1:19-cv-0652-JLT-SKO 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 13 v. REQUEST TO AMEND HIS WITNESS LIST 14 LOUIS DEJOY, Postmaster General United States Postal Service, (Doc. 170) 15
16 Defendant. 17 18 On September 26, 2022, Mort’s counsel filed a declaration requesting to amend his 19 witness list to add Mr. Keith Silva and Mr. Jensen Rodriguez as impeachment witnesses.1 (Doc. 20 170.) USPIS objected to the amended witness list because Mort’s request violates the Court’s 21 amended pretrial order and its prior order regarding the parties’ motions in limine. (Doc. 171 at 22 1.) On July 8, 2022, the Court issued an amended pretrial order, which contains the final and 23 complete list of any witnesses to be called at trial. (Doc. 112 at 12.) Pursuant to the amended 24 pretrial order: “no witness, other than those listed in this section, may be called at trial unless the 25 parties stipulate or upon showing that this order should be modified to prevent ‘manifest 26
27 1 Mr. Patten’s declaration also purports to add Arceli “Sally” Diaz” as a witness; however, Ms. Diaz properly 28 appeared on Mort’s original witness list and has not been subject to any subsequent exclusion order. (Doc. 112 at 12.) 1 injustice.’” (Id. at 11-12 (emphasis omitted).) The pretrial order’s prohibition on undisclosed 2 witnesses applies equally to impeachment and rebuttal witnesses. (Id.) 3 1. Keith Silva 4 Regarding Mr. Silva, Mort included Mr. Silva on his original witness list; accordingly, he 5 appears in the Court’s amended pretrial order witness list. (Doc. 112 at 12.) However, the Court 6 subsequently prohibited Mort from offering any testimony from Mr. Silva by granting USPIS’s 7 Motion in Limine No. 6. (Doc. 160 at 14-16.) The Court excluded Mr. Silva’s testimony as a 8 sanction under Federal Rule of Civil Procedure 37 because Mort failed to disclose Mr. Silva as a 9 witness during discovery as required by Rule 26(a). (Id.) Rule 26(a), however, does not require 10 parties to disclose witnesses that intends to use “solely for impeachment.” Fed. R. Civ. P. 11 26(a)(1)(A)(i). Mort’s current proposal to add Mr. Silva to his witness list states that he wishes to 12 use Mr. Silva “as an impeachment witness in this matter as to matters other than the Baumgart 13 case which the Court ruled would not be introduced at trial.” (Doc. 170 at 2.) Because Rule 26(a) 14 does not require disclosure of impeachment witnesses, Rule 37’s enforcement through preclusion 15 sanctions do not apply. Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1171-72 (9th Cir. 16 2008) (holding testimony offered “strictly for impeachment purposes” admissible at trial despite 17 failure to disclose during pretrial disclosures). Accordingly, Mort may offer testimony from Mr. 18 Silva solely for the purpose of impeachment. See Mustang Mktg., Inc. v. Chevron Prods. Co., 19 2006 WL 5105559, at *5 (C.D. Cal. 2006) (denying motion in limine to preclude four undisclosed 20 witnesses from testifying because opposing party proffered them as impeachment witnesses). 21 However, Rule 26(a)’s exception for impeachment evidence does not apply to testimony 22 which also has substantive value. Kempf v. Barrett Bus. Servs., Inc., 336 F. App’x 658, 661 (9th 23 Cir. 2009) (affirming district court’s exclusion of untimely disclosed testimony because the 24 testimony was offered only “in part” to impeach); see also Fresno Rock Taco, LLC v. Na’l Sur. 25 Corp., 2013 WL 3803911, at *5 (E.D. Cal. July 19, 2013) (“[I]f evidence not previously 26 identified or disclosed has relevance to the substance of a claim or defense of the offering party, 27 the evidence will not be deemed as offered solely for impeachment purposes, and it may also be 28 excluded from trial.”). Testimony has substantive value if it relates to a plaintiff’s prima facie 1 case or a defendant’s affirmative defenses. Norwood v. Children & Youth Servs. Inc., 2013 WL 2 12133879, at *4 (C.D. Cal. Dec. 3, 2013) (“Case law holds that evidence material to the 3 substance of the case—evidence that would tend to prove the truth of a matter to be determined 4 by the jury—must be disclosed even if it could also be considered impeaching with respect to 5 some aspect of a witness’s testimony.”). Rather, “‘[i]mpeachment’ in this context refers to attacks 6 on the credibility of a witness.” Hagan v. Cal. Forensic Med. Grp., 2009 WL 689740, at **1-2 7 (E.D. Cal. Mar. 5, 2009). Rule 26(b), which defines the scope and limits for discovery requests, 8 does not contain an exception for impeachment evidence. Thus, if impeachment testimony from 9 Mr. Silva would have been responsive to any discovery request made by USPIS, Mort must have 10 provided it during discovery to avoid the exclusion under Rule 37. See Stevens v. City of Red 11 Bluff, 2007 WL 184816, at *2 (E.D. Cal. Jan. 19, 2007) (“Thus, if evidence that has impeachment 12 value is subject to mandatory disclosure or was requested in discovery, a litigant who fails to 13 reveal such evidence faces having it excluded at trial, or other ramifications.”). 14 Consistent with the limitations outlined above, the Court GRANTS in part and DENIES 15 in part Mort’s request to call Mr. Silva as an impeachment witness. Mort’s request does not 16 specify the matters about which he believes Mr. Silva will provide impeachment testimony. The 17 Court, therefore, cannot currently determine the exact scope of admissible testimony. Mort may 18 call Mr. Silva as an impeachment witness, but he may not testify regarding the merits of Mort’s 19 claims or include testimony responsive to USPIS’s requested discovery. USPIS may raise 20 objections during trial if Mr. Silva’s testimony exceeds the imposed limitations.2 21 2. Jensen Rodriguez 22 With respect to Mr. Rodriguez, Mort did not previously disclosed Mr. Rodriguez’s 23 relevance to this case, nor does he appear on the original witness list in the Court’s pretrial order. 24 (See Doc. 112 at 12; Doc. 171 at 2.) To amend the pretrial order without USPIS’s stipulation, 25
26 2 The Court is aware that counsel for Mort served upon USPIS a trial subpoena for Mr. Silva, to which USPIS filed an objection. (Doc. 164.) A trial subpoena should “command each person to whom it is directed.” Fed. R. Civ. P. 27 45(a)(1)(A)(iii) (emphasis added). During the motion in limine hearing, counsel for Mort represented that Mr. Silva is no longer employed by USPIS. (Doc. 166 at 49.) Accordingly, because Mr. Silva is no longer affiliated with the 28 USPIS, Mort may not direct a trial subpoena to USPIS. Rather, it is Mort’s responsibility to produce Mr. Silva at trial ne enn een eee nn nn nn ee nen nn nnn eo one
1 | Mort must demonstrate a “manifest injustice” would occur absent amendment. (Doc. 112 at 11- 2 | 12.) Moreover, because Mort discovered Mr. Rodriguez after pretrial discovery, he must 3 | demonstrate why the witness could not have been discovered prior to the discovery cutoff; 4 | promptly notify the opposing party and the Court; and either proffer the witness for deposition or 5 || provide a reasonable summary of the witness’s testimony. (/d. at 12-13.) Mort has not satisfied 6 | any of the pretrial order’s requirements. Mort’s request contains no argument, evidence, or 7 | authoritative support to suggest the exclusion of Mr. Rodriguez would result in “manifest 8 | injustice.” He states only that Mr.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE W. MORT, Case No. 1:19-cv-0652-JLT-SKO 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 13 v. REQUEST TO AMEND HIS WITNESS LIST 14 LOUIS DEJOY, Postmaster General United States Postal Service, (Doc. 170) 15
16 Defendant. 17 18 On September 26, 2022, Mort’s counsel filed a declaration requesting to amend his 19 witness list to add Mr. Keith Silva and Mr. Jensen Rodriguez as impeachment witnesses.1 (Doc. 20 170.) USPIS objected to the amended witness list because Mort’s request violates the Court’s 21 amended pretrial order and its prior order regarding the parties’ motions in limine. (Doc. 171 at 22 1.) On July 8, 2022, the Court issued an amended pretrial order, which contains the final and 23 complete list of any witnesses to be called at trial. (Doc. 112 at 12.) Pursuant to the amended 24 pretrial order: “no witness, other than those listed in this section, may be called at trial unless the 25 parties stipulate or upon showing that this order should be modified to prevent ‘manifest 26
27 1 Mr. Patten’s declaration also purports to add Arceli “Sally” Diaz” as a witness; however, Ms. Diaz properly 28 appeared on Mort’s original witness list and has not been subject to any subsequent exclusion order. (Doc. 112 at 12.) 1 injustice.’” (Id. at 11-12 (emphasis omitted).) The pretrial order’s prohibition on undisclosed 2 witnesses applies equally to impeachment and rebuttal witnesses. (Id.) 3 1. Keith Silva 4 Regarding Mr. Silva, Mort included Mr. Silva on his original witness list; accordingly, he 5 appears in the Court’s amended pretrial order witness list. (Doc. 112 at 12.) However, the Court 6 subsequently prohibited Mort from offering any testimony from Mr. Silva by granting USPIS’s 7 Motion in Limine No. 6. (Doc. 160 at 14-16.) The Court excluded Mr. Silva’s testimony as a 8 sanction under Federal Rule of Civil Procedure 37 because Mort failed to disclose Mr. Silva as a 9 witness during discovery as required by Rule 26(a). (Id.) Rule 26(a), however, does not require 10 parties to disclose witnesses that intends to use “solely for impeachment.” Fed. R. Civ. P. 11 26(a)(1)(A)(i). Mort’s current proposal to add Mr. Silva to his witness list states that he wishes to 12 use Mr. Silva “as an impeachment witness in this matter as to matters other than the Baumgart 13 case which the Court ruled would not be introduced at trial.” (Doc. 170 at 2.) Because Rule 26(a) 14 does not require disclosure of impeachment witnesses, Rule 37’s enforcement through preclusion 15 sanctions do not apply. Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1171-72 (9th Cir. 16 2008) (holding testimony offered “strictly for impeachment purposes” admissible at trial despite 17 failure to disclose during pretrial disclosures). Accordingly, Mort may offer testimony from Mr. 18 Silva solely for the purpose of impeachment. See Mustang Mktg., Inc. v. Chevron Prods. Co., 19 2006 WL 5105559, at *5 (C.D. Cal. 2006) (denying motion in limine to preclude four undisclosed 20 witnesses from testifying because opposing party proffered them as impeachment witnesses). 21 However, Rule 26(a)’s exception for impeachment evidence does not apply to testimony 22 which also has substantive value. Kempf v. Barrett Bus. Servs., Inc., 336 F. App’x 658, 661 (9th 23 Cir. 2009) (affirming district court’s exclusion of untimely disclosed testimony because the 24 testimony was offered only “in part” to impeach); see also Fresno Rock Taco, LLC v. Na’l Sur. 25 Corp., 2013 WL 3803911, at *5 (E.D. Cal. July 19, 2013) (“[I]f evidence not previously 26 identified or disclosed has relevance to the substance of a claim or defense of the offering party, 27 the evidence will not be deemed as offered solely for impeachment purposes, and it may also be 28 excluded from trial.”). Testimony has substantive value if it relates to a plaintiff’s prima facie 1 case or a defendant’s affirmative defenses. Norwood v. Children & Youth Servs. Inc., 2013 WL 2 12133879, at *4 (C.D. Cal. Dec. 3, 2013) (“Case law holds that evidence material to the 3 substance of the case—evidence that would tend to prove the truth of a matter to be determined 4 by the jury—must be disclosed even if it could also be considered impeaching with respect to 5 some aspect of a witness’s testimony.”). Rather, “‘[i]mpeachment’ in this context refers to attacks 6 on the credibility of a witness.” Hagan v. Cal. Forensic Med. Grp., 2009 WL 689740, at **1-2 7 (E.D. Cal. Mar. 5, 2009). Rule 26(b), which defines the scope and limits for discovery requests, 8 does not contain an exception for impeachment evidence. Thus, if impeachment testimony from 9 Mr. Silva would have been responsive to any discovery request made by USPIS, Mort must have 10 provided it during discovery to avoid the exclusion under Rule 37. See Stevens v. City of Red 11 Bluff, 2007 WL 184816, at *2 (E.D. Cal. Jan. 19, 2007) (“Thus, if evidence that has impeachment 12 value is subject to mandatory disclosure or was requested in discovery, a litigant who fails to 13 reveal such evidence faces having it excluded at trial, or other ramifications.”). 14 Consistent with the limitations outlined above, the Court GRANTS in part and DENIES 15 in part Mort’s request to call Mr. Silva as an impeachment witness. Mort’s request does not 16 specify the matters about which he believes Mr. Silva will provide impeachment testimony. The 17 Court, therefore, cannot currently determine the exact scope of admissible testimony. Mort may 18 call Mr. Silva as an impeachment witness, but he may not testify regarding the merits of Mort’s 19 claims or include testimony responsive to USPIS’s requested discovery. USPIS may raise 20 objections during trial if Mr. Silva’s testimony exceeds the imposed limitations.2 21 2. Jensen Rodriguez 22 With respect to Mr. Rodriguez, Mort did not previously disclosed Mr. Rodriguez’s 23 relevance to this case, nor does he appear on the original witness list in the Court’s pretrial order. 24 (See Doc. 112 at 12; Doc. 171 at 2.) To amend the pretrial order without USPIS’s stipulation, 25
26 2 The Court is aware that counsel for Mort served upon USPIS a trial subpoena for Mr. Silva, to which USPIS filed an objection. (Doc. 164.) A trial subpoena should “command each person to whom it is directed.” Fed. R. Civ. P. 27 45(a)(1)(A)(iii) (emphasis added). During the motion in limine hearing, counsel for Mort represented that Mr. Silva is no longer employed by USPIS. (Doc. 166 at 49.) Accordingly, because Mr. Silva is no longer affiliated with the 28 USPIS, Mort may not direct a trial subpoena to USPIS. Rather, it is Mort’s responsibility to produce Mr. Silva at trial ne enn een eee nn nn nn ee nen nn nnn eo one
1 | Mort must demonstrate a “manifest injustice” would occur absent amendment. (Doc. 112 at 11- 2 | 12.) Moreover, because Mort discovered Mr. Rodriguez after pretrial discovery, he must 3 | demonstrate why the witness could not have been discovered prior to the discovery cutoff; 4 | promptly notify the opposing party and the Court; and either proffer the witness for deposition or 5 || provide a reasonable summary of the witness’s testimony. (/d. at 12-13.) Mort has not satisfied 6 | any of the pretrial order’s requirements. Mort’s request contains no argument, evidence, or 7 | authoritative support to suggest the exclusion of Mr. Rodriguez would result in “manifest 8 | injustice.” He states only that Mr. Rodriguez “has information which directly contradicts swom 9 | deposition testimony of a key Defense Witness in this matter concerning whether any other Postal 10 | Inspectors had been permitted light duty as an accommodation.” (Doc. 170 at 2, § 7.) Mort did 11 not explain when or how he discovered the alleged relevance of Mr. Rodriguez’s testimony or 12 | why he could not have discovered this testimony earlier. Also, he did not offer Mr. Rodriguez for 13 | deposition or provide a reasonable summary of his testimony. Finally, Mort’s own Motion in 14 | Limine No. 3, which the Court granted, prevents either party from introducing evidence or 15 || testimony not disclosed in discovery. (Doc. 160 at 25.) Mort’s threadbare request to add Mr. 16 | Rodriguez to his witness list does not warrant amendment of the pretrial order or an exception to 17 | the order granting his Motion in Limine No. 3. Accordingly, the Court DENIES Mort’s request to 18 || add Mr. Rodriguez to his witness list. Mr. Rodriguez’s testimony will not be permitted at trial for 19 | any reason, including impeachment or rebuttal. 20 IT IS SO ORDERED. 22 | Dated: _October 24, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28