MOKE AMERICA LLC, Plaintiff, v. AMERICAN CUSTOM GOLF CARS, INC., et al., Defendants Civil No. 3:20cv400 (DJN) United States District Court, E.D. Virginia Filed January 12, 2023 Novak, David J., United States District Judge MEMORANDUM ORDER *1 This matter comes before the Court on Plaintiff and Counterclaim Defendant Moke America LLC's (“Plaintiff”) Motion to Exclude Defendants' Witness Isobel Dando. (ECF No. 236.) On January 10, 2023, Defendants and Counterclaim Plaintiffs American Custom Golf Cars, Inc. (“ACG”), Moke USA, LLC (“Moke USA”), and Moke International Ltd. (“Moke International”) (collectively, “Defendants”) responded in opposition to Plaintiff's Motion. (ECF No. 245.) On January 11, 2023, the Court invited Plaintiff's counsel to forego filing a reply brief, as the Court felt that the parties' initial briefs provided sufficient argument for the Court to reach a decision. Plaintiff's counsel accepted the Court's offer and chose not to file a reply brief. Accordingly, Plaintiff's Motion is now fully briefed and ripe for review. I. FACTUAL AND PROCEDURAL BACKGROUND The Court assumes the parties' familiarity with the facts of the case. For relevant factual and procedural background, see the Court's preceding Memorandum Order (ECF No. 246). II. DISCUSSION A. Standard of Review Federal Rule of Civil Procedure 26(a)(1)(A)(i) provides that “a party must, without awaiting a discovery request, provide to the other parties ... the name and, if known, the address and telephone number 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)(1)(A)(ii). Under Rule 26(e), a party must supplement its 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. P. 26(e). Critically, “to satisfy Rule 26, parties must make an unequivocal statement that they may rely upon an individual on a motion or at trial.” Lujan v. Cabana Mgmt., Inc., 284 F.R.D. 50, 73 (E.D.N.Y. 2012). Mere reference to an individual in response to interrogatories proves “insufficient to provide notice that the person might be called as a witness by the opposing party.” Syngenta Crop Prot., LLC v. Willowood, LLC, 2017 WL 3309699, at *3 (M.D.N.C. Aug. 2, 2017). Where a party fails to identify a witness in its Rule 26 disclosures or amendments, “the party is not allowed to use that ... 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. P. 37(c)(1). District courts enjoy “ ‘broad discretion’ in determining whether a party's nondisclosure or untimely disclosure of evidence is substantially justified or harmless.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017) (quoting Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014)). In making that determination, Courts consider the five, non-exclusive factors set forth in Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co.: *2 (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence. 318 F.3d 592, 597 (4th Cir. 2003). The first four factors speak to the harmlessness exception, while the fifth factors speaks to the substantial justification exception. Bresler, 855 F.3d at 190. “The party failing to disclose information bears the burden of establishing that the nondisclosure was substantially justified or was harmless.” Id. B. Analysis Plaintiff moves to exclude the testimony of Defendants' proposed witness, Moke International CEO Isobel Dando (“Ms. Dando”), on account of Defendants' (1) initial failure to include Ms. Dando in their Rule 26(a)(1)(A) witness disclosures and (2) subsequent failure to supplement those disclosures and include Ms. Dando before the close of discovery. (Mem. Supp. Mot. Exclude (“Mot.”) at 3–5 (ECF No. 237).) Plaintiff represents that it first learned of Defendants' intention to rely upon Ms. Dando's testimony at trial via Defendants' Proposed Witness List (ECF No. 186), filed nearly eleven months after the close of discovery (Mot. at 3-5). Plaintiff argues that this untimely disclosure proves neither harmless, as Plaintiff cannot cure the nondisclosure by deposing Ms. Dando, nor justified, as Defendants' explanation for their failure to disclose — that they identified Ms. Dando as an individual with knowledge of relevant facts in their response to an interrogatory — proves insufficient where Defendants “gave every indication” that Ms. Dando's colleague, and not Ms. Dando, would be testifying on Moke International's behalf. (Id. at 5.) Plaintiff further argues that Ms. Dando's testimony ultimately proves unimportant, as her recent hiring date suggests that she “lacks personal knowledge of the facts pertinent” to the issues to be resolved at trial. (Id. at 6.) In opposition, Defendants contend that any alleged nondisclosure of Ms. Dando's role at trial indeed proves “both justifiable and harmless.” (Mem. Opp'n Pl.'s Mot. Exclude (“Mem. Opp'n”) at 2 (ECF No. 245).) Defendants argue that their nondisclosure proves justified by virtue of their response to Plaintiff's May 7, 2021 interrogatories, which in pertinent part sought the identities of “the two current or former [Moke International] employees believed to be most knowledgeable regarding the MOKE-related trademark rights allegedly owned by [Defendants].” (Id. at 1–2.) In response to that interrogatory, Defendants stated that “[t]he following employees are believed to be most knowledgeable regarding the MOKE-related trademark rights allegedly owned by Moke International: Robin Kennedy, Commercial Director and Isobel Dando, Chief Executive Officer.” (Id. at 2.) That response, Defendants argue, informed Plaintiff of Ms. Dando's knowledge regarding a “critical issue” in the case, thus alerting Plaintiff to “the possibility that [Defendants] might call Ms. Dando” at trial. (Id.) In Defendants telling, Plaintiff was therefore on notice that “it might want to notice Ms. Dando's deposition.” (Id.) This constructive notice also establishes that any nondisclosure was harmless, Defendants argue, because “any harm arising from” Plaintiff's decision not to depose Ms. Dando “[was] not Moke International's doing.” (Id.) *3 The Court will GRANT Plaintiff's Motion to Exclude (ECF No. 236), finding that Defendants defied their Rule 26 disclosure obligations in a manner that proves neither harmless nor justified. Fed. R. Civ. P. 37(c). First, the Court rejects Defendants' contention that their response to Plaintiff's interrogatory provided Plaintiff with sufficient notice that Defendants intended to rely upon Ms. Dando at trial. Rule 26 obligates a party to identify not only those individuals who are “likely to have discoverable information,” but also those individuals whom “the disclosing party may use to support its claims or defenses ...” Fed. R. Civ. P. 26(a)(1)(A)(i) (emphasis added). Defendants' interrogatory response may very well have put Plaintiff on notice that Ms. Dando possessed discoverable information, but as noted above, parties can fulfill their obligation under Rule 26 only through “an unequivocal statement that they may rely upon an individual on a motion or at trial.” Lujan, 284 F.R.D. at 94. Nothing in Defendants' response to Plaintiff's interrogatory states, or suggests, that Defendants intend to proffer Ms. Dando as a witness at trial. Id. And despite ample opportunity to amend their initial Rule 26 disclosures to reflect that Ms. Dando would be called upon at trial, Defendants offered no such amendment. Second, the Court does not find Defendants' untimely disclosure harmless. Fed. R. Civ. P. 37(c). Defendants no doubt surprised Plaintiff when they elected to wait until eleven months after the close of discovery to inform Plaintiff of their intent to rely on Ms. Dando at trial. Southern States, 318 F.3d at 597. With no opportunity to depose Ms. Dando and trial fast approaching, Plaintiff lacks the ability to cure this surprise through a deposition. Id. Moreover, the Court evaluates Defendants' untimely disclosure in light of the surrounding circumstances — to wit, the Court has already sanctioned Defendants pursuant to Rule 37(c) for failure to comply with the discovery rules. (See ECF No. 246 at 4–8.) Defendants no longer enjoy the benefit of the doubt. Finally, based on Ms. Dando's hiring date and Defendants' concession that her testimony is “not strictly dispositive of legal issues in [the] case,” the Court anticipates that Ms. Dando's testimony likely amounts to background information. (Mem. Opp'n at 3–4.) Accordingly, the Court finds that the importance of the challenged evidence does not overcome the countervailing Southern States factors, which weigh heavily against its admission. 318 F.3d at 597. Because Defendants fell short of their Rule 26 disclosure obligations in a manner that is neither harmless nor justified, the Court GRANTS Plaintiff's Motion (ECF No. 236) and excludes Ms. Dando's testimony from trial. III. CONCLUSION For the foregoing reasons, the Court hereby GRANTS Plaintiff's Motion to Exclude (ECF No. 236). Let the Clerk file a copy of this Order electronically and notify all counsel of record. It is so ORDERED. Richmond, Virginia