Overview
On Wednesday, Judge Furman ruled on several motions in limine for an upcoming bench trial, including denying a motion to preclude the testimony of a fact witness that defendants had failed to include, without justification, in their Rule 26 disclosures.
The Court explained that preclusion was too “drastic” for this case, where there was no prejudice to the plaintiff:
[T]he Court declines to adopt the “drastic remedy” of preclusion, primarily because, in the circumstances of this case — a bench trial in which the parties were required weeks ago to submit the direct testimony of their witnesses by declaration — [plaintiff] cannot demonstrate prejudice. In any event, if any prejudice did exist, it is mitigated by permitting [plaintiff] to take [the witness’s] deposition pretrial, which the Court now orders. Accordingly, motion in limine #3 is DENIED on the condition that [the witness] is made available for a deposition before trial on a date reasonably selected by [plaintiff’s] counsel. In light of Defendants’ violation of Rule 26, Defendants shall pay the reasonable costs (but not attorney’s fees) associated with the deposition.
