The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER ON MOTIONS IN LIMINE
The parties move in limine for an order seeking to preclude the admission of certain evidence at trial. Each motion is addressed below.
A. Plaintiffs' Motions in Limine Motion in Limine No. 1 Plaintiffs seek to exclude "any evidence or testimony that [Defendants] conducted an independent investigation by interviewing other witnesses." (Pls.' Mot. in Limine ("MIL") #1, 2:4-7.) Plaintiffs argue, "Defendants have admitted in their responses to Requests for Admissions that they did not interview any customers or employees at the restaurant other than Mr. Young, who filed the citizen's arrest[;]" therefore "the Court should . . . exclude any evidence or testimony" to the contrary. Id. at 3:4-11.
Defendants filed a joint Opposition to Plaintiffs' first, second and ninth motions in limine, arguing:
[these in limine motions] argue essentially the same thing, exclusion of any testimony or evidence as to the information, knowledge, rationale and reasoning leading to the arrest of Plaintiffs. Not only are Plaintiffs' arguments impermissibly vague, but such arguments are improper and unsupported by any law or statute. Further, the law that Plaintiffs have cited is inapplicable to the current case at issue. Finally, Plaintiffs['] arguments are identical to those previously submitted in their Motion for Summary Judgment, which this Court denied in its entirety.
(Defs.' Opp'n to Pls.' MIL's 1, 2 and 9, 2:5-11.)
"Federal Rule of Civil Procedure [("Rule")] 36(b) provides that any matter admitted in response to a request for admission is 'conclusively established' unless the court permits withdrawal or amendment of the admission." 999 v. C.I.T. Corp., 776 F.2d 866, (9th Cir. 1985)(quoting Fed. R. Civ. P. 36). Further, "[e]vidence inconsistent with a Rule 36 admission is properly excluded." Id. at 869-70. "[A] party cannot overcome a binding admission by offering evidence that contradicts the admission[.]" Shepherd v. Baca, No. CV 03-02923 JVS (AJW), 2009 WL 975845, at *3 (C.D. Cal. Apr. 8, 2009).
Although Defendants cannot introduce evidence contrary to matters they admitted under Rule 36, the scope of Plaintiffs' motion is unclear; Plaintiffs do not specify what specific anticipated testimony they seek to exclude. Since the Court cannot determine whether the evidence sought to be excluded contradicts Defendants' admissions, Plaintiffs' motion is DENIED.
Plaintiffs seek to exclude "any evidence or testimony that [Defendants] conducted an independent investigation by independently investigating the . . . knowledge" of the citizen who filed the citizen's arrest, In-N-Out Burger restaurant manager Marc Young. (Pls.' MIL #2, 2:4-7.) In essence, Plaintiffs argue "[t]he parties have stipulated that . . . only [Defendant] McDowell spoke to Marc Young[,]" and Mr. Young testified in deposition that he and McDowell did not exchange any information concerning "what if anything Defendants had done" to warrant their arrest. Id. at 3:4-4:2. Therefore, Plaintiffs argue the Court should exclude any evidence to the contrary. Id. at 4:3-6.
It is unclear what the phrase "independently investigating the citizen witness' knowledge" means in this motion. Further, Plaintiffs have not shown that a witness's deposition testimony precludes the admission of evidence to the contrary. See Wright v. Fed. Bureau of Investigation, 241 Fed. Appx. 367, 2007 WL 1879794, at *1 (9th Cir. 2007)(stating "[s]tatements made at a deposition, unlike statements made in response to requests for admission, are not binding on the deponent"). For the stated reasons, Plaintiffs' motion is DENIED.
Plaintiffs move to exclude witnesses Officer Joel Orr, Officer
A. Carreon, and Officer Solio from testifying at trial, arguing they were [not] disclosed in discovery . . . , and Plaintiffs have had no opportunity to discover further information about [them] since they were only disclosed on February 28, 2012[, when] the parties filed their Amended Joint Pretrial Statement[,] and the Court's [Status Order] required that all discovery be completed by September 21, 2011.
Each of the three officers was identified within the documents produced to Plaintiffs in response to both the Rule 26 Disclosures (see, for example, Plaintiffs' proposed Exhibit 6, police report for subject incident) as well as in response to Plaintiffs' request for production. Each of those names is prominently contained on numerous pages within those documents and has been addressed during deposition by the Defendant officers. (Defs.' Opp'n to Pls.' MIL #3, 2:5-12.) Defendants further argue, "there is no duty to supplement any prior disclosures since Plaintiffs have previously received the identity of those officers as contained both within the police report and as testified to in deposition." Id. at 2:10-12.
Other than the police report, which Plaintiffs have re-reviewed and still cannot find any reference to these officers, Defendants have provided absolutely no evidentiary support for their contention that these officers' names are contained within, let alone prominently contained within, the documents produced by Defendants and were addressed in the deposition testimony of the Defendant officers.
(Pls.' Reply Re: MIL #3, 2:15-19.)
Rule 26 requires the disclosure of "the name . . . 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, unless the use would be solely for impeachment[.]" Fed. R. Civ. P. 26(a)(I). "Rule 26(e)(1)(A) requires disclosing parties to supplement their prior disclosures 'in a timely manner' when the prior response is 'incomplete or inaccurate.'" Hoffman v. Constr. Prot. Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008)(quoting Fed. R. Civ. P. 26(e)(1)(A)).
"If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1), was "implemented in the 1993 amendments to the Rules, [and] is a recognized broadening of the sanctioning power. The Advisory Committee Notes describe it as a 'self-executing,' 'automatic' sanction to 'provide a strong inducement for disclosure of material[.]'" Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)(quoting Fed. R. Civ. P. 37 advisory committee's note (1993)). "[T]he burden is on the party facing sanctions to prove harmlessness [or substantial justification]." Id. at 1107.
In essence, Defendants argue their production of documents, which reference these three witnesses, satisfied their obligation to identify them as potential witnesses. However, Plaintiffs cannot "realistically have been expected to recognize [these officers] as . . . potential witness[es] just because [their] name[s] [may have] appeared in some of the . . . documents produced in this case." Monsanto Co. v. Bayer Bioscience N.V., No. 4:00CV01915 ERW, 2005 WL 5989796, at *21 (E.D. Mo. Oct. 28, 2005); see also Mehus v. Emporia State Univ., 326 F. Supp. 2d 1213, 1218 (D. Kan. 2004)(rejecting argument "that by disclosing a document, [the party] has sufficiently disclosed its intent to 'call the authors as witnesses at trial to authenticate the complaint documents'"). Since Defendants have not shown that their failure to identify Officers Orr, Carreon, and Solio as witnesses was harmless or substantially justified, Plaintiffs' motion is GRANTED.
Plaintiffs seek to exclude Defendants' expert witness, Gregg Stuchtman, arguing "he was not disclosed by Defendants, who have only disclosed one expert, Don Cameron, in Defendants' Rebuttal Expert Witness Disclosure." (Pls.' MIL #4, 2:6-10.) Plaintiffs further argue, "by listing Mr. Stuchtman in the Amended Joint Pretrial Statement, Defendants are attempting to circumvent an earlier order by the Court[,]" which denied Defendants' "motion to supplement their expert witness disclosure to add a forensic video expert." Id. at 2:11-17.
Defendants "do not dispute that Mr. Gregg Stuchtman should not be called in Defendants' case in chief[; i]nstead, Mr. Stuchtman is intended to be called only as a rebuttal witness[.]" (Defs.' Opp'n to Pls.' MIL #4, 2:5-7.) Defendants argue "such testimony is expressly admissible and authorized when offered in rebuttal to prior trial testimony." Id. at 2:6-7.
"Rule 26 requires parties to disclose the identity of any expert witness 'accompanied by a written report' detailing the opinions the expert will express and the data on which he or she will rely[.]" Jarritos, Inc. v. Reyes, 345 Fed. Appx. 215, 217 (9th Cir. 2009)(quoting Fed. R. Civ. P. 26(a)(2)). "Rule 26(a)(2)(D) [prescribes] that the [default] deadline for disclosing rebuttal experts is . . . 30 days after the expert witness disclosure deadline." Allstate Ins. Co. v. Nassiri, No. 2:08-cv-00369-JCM-GWF, 2011 WL 2975461, at *11 (D. Nev. July 21, 2011). That same rule permits the trial court to alter the timing and sequence of expert disclosures. Fed. R. Civ. P. 26(a)(2)(D)("A party must make these disclosures at the times and in the sequence that the court orders."). Further, "[u]ntimely expert disclosure implicates Federal Rule of Civil Procedure 37(c)(1)." AZ Holding, LLC v. Frederick, No. CV-08-0276-PHW-LOA, 2009 WL 2432745, at *4 (D. Ariz. Aug. 10, 2009).
Notwithstanding Defendants' conclusory contentions to the contrary, rebuttal expert witnesses must be timely disclosed. And Defendants have provided no other justification for not disclosing Gregg Stuchtman as an expert witness. Since Defendants have not shown that their failure to disclose Gregg Stuchtman as an rebuttal expert witness was ...