BEEMAC, INC., Plaintiff, v. REPUBLIC STEEL, Defendant. Deemac Services, LLC, Plaintiff, v. Republic Steel, Defendant Civil Action No. 2:20-cv-1458, Civil Action No. 2:20-cv-1466 United States District Court, W.D. Pennsylvania Filed June 21, 2023 Counsel Daniel B. McLane, Thomas E. Sanchez, Duane Morris LLP, Pittsburgh, PA, for Plaintiff. Dustin B. Rawlin, Savannah Marie Fox, Pro Hac Vice, Seth J. Linnick, Pro Hac Vice, Nelson Mullins Riley & Scarborough LLP, Cleveland, OH, for Defendant. Stickman IV, William S., United States District Judge OMNIBUS ORDER ON MOTIONS IN LIMINE *1 AND NOW, this 21st day of June 2023, having carefully reviewed all motions in limine and responses thereto, the Court hereby ORDERS as follows: 1) Republic Steel's Motion in Limine to Exclude Previously Undisclosed Evidence Regarding Alleged Specific Instances of Agreement to Terms (2:20-cv-01458, ECF No. 83; 2:20-cv-01466, ECF No. 87) is DENIED as stated. As a general matter, absent an extraordinary showing of compelling cause, no party may use evidence at trial that was not disclosed and identified before trial. But that is not what Republic Steel seeks. Republic Steel seeks to preclude Beemac, Inc. (“Beemac”) and Deemac Services, LLC (“Deemac”) “from using any documents not identified in their supplemental answer to Interrogatory No. 6 as evidence that Republic assented to the rates and charges on the disputed invoices.” (2:20-cv-01458, ECF No. 83, pp. 1-2). Republic Steel's motion is based on an interpretation of Interrogatory No. 6 that the language of the interrogatory itself does not support. It asks only to “state the reasons [Plaintiffs] contend[ ] the bill of lading and invoices documents establish the terms of the Agreement based upon Defendant Republic's repeated acceptance of [Plaintiffs’] offered rates for each ordered transported load in 2019 and 2020.” (2:20-cv-01458, ECF No. 84, p. 4, quoting respective Interrogatories No. 6 in each case). This language does not ask Beemac and/or Deemac to identify all evidence (written or otherwise) that they contend manifested assent to the rates and charges at issue. 2) Plaintiffs’ Motion in Limine to Exclude Defendant's Purported Evidence of an Accord and Satisfaction (2:20-cv-01458, ECF No. 85; 2:20-cv-01466, ECF No. 83) is GRANTED in PART and DENIED in PART. This motion focuses on whether Republic Steel's Exhibit BE is admissible or whether it should be excluded as evidence of an accord and satisfaction contrary to the Court's decision on summary judgment or inadmissible evidence of an offer of settlement pursuant to Fed. R. Evid. 408. Republic Steel argues that the exhibit is relevant as an alleged admission by Plaintiffs of the amount at issue. It states that it does not intend to use the exhibit to establish an accord and satisfaction and offers to redact the proposed exhibit to remove reference to settlement. The Court holds that Exhibit BE is, indeed, inadmissible as initially presented. The Court takes Republic Steel at its word that it is not attempting to establish accord and satisfaction. The exhibit does, however, contain an inadmissible offer of settlement. The Court will permit a redacted version of the exhibit to be admitted at trial solely for the issue of valuation. The permissible redacted exhibit is attached hereto. 3) Plaintiffs’ Motion in Limine to Exclude or, in the Alternative Restrict Defendant's Witness April Lewis (2:20-cv-01458, ECF No. 86; 2:20-cv-01466, ECF No. 84) is DENIED, as qualified herein. Plaintiffs seek to exclude April Lewis because she was not identified in Republic Steel's initial disclosures or in any of their pertinent discovery responses. Republic Steel admits as much but argues that Plaintiffs are not prejudiced because Ms. Lewis's identity was revealed by the deposition of Republic Steel's corporate designee in July 2022. Republic Steel also avers that it produced to Plaintiffs in discovery “versions of [their] spreadsheets containing Ms. Lewis’ notes.” (2:20-cv-01458, ECF No. 90, p. 3). *2 Federal Rule of Civil Procedure 26 (“Rule 26”) imposes upon all litigants an obligation to disclose, without request, information relating to potential witnesses: (a) Required Disclosures. (1) Initial Disclosures. (A) In General Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: * * * (i) 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)(i). “Rule 26 disclosures are meant to provide the opposing party with ‘information as to the identification and location of persons with knowledge so that they can be contacted in connection with the litigation ... for being interviewed, for being deposed, or for providing background information.’ ” Eli Lilly & Co. v. Actavis Elizabeth LLC, No. 07-3770, 2010 WL 1849913, at *3 (D.N.J. May 7, 2010) (quoting Bilrite Corp. v. World Road Markings, Inc., 202 F.R.D. 359, 362 (D. Mass. 2001)). Under Rule 26, a party has a continuing obligation to update and keep its disclosures current: (e) Supplementing Disclosures and Responses (1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response: (A) 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; or (B) as ordered by the court. Fed. R. Civ. P. 26(e)(1). “The obligation to update initial disclosures is meant to ensure that the playing field remains level, narrow the relevant issues, and avoid ‘undue prejudice and surprise’ to the opposing party.” Eli Lilly, 2010 WL 1849913, at *3 (citation omitted). “A majority of courts, the leading treatises, and the Advisory Committee Note to Rule 26 agree that an individual's existence or knowledge can ‘otherwise be made known,’ and thus be sufficiently disclosed for Rule 26 purposes, through deposition testimony” or other discovery. Id. (collecting references). But to obviate the need for formal disclosure, this information must be “clear and unambiguous,” and not merely the “mention of an individual's identity.” Id. at *4. Specifically, “[r]eference to a witness in discovery documents, interrogatories, or depositions or even knowledge that someone has relevant information is insufficient to provide notice that the person might be called as a witness by the opposing party.” Syngenta Crop Prot., LLC v. Willowood, LLC, No. 15-cv-274, 2017 WL 3309699, at *3 (M.D.N.C. Aug. 2, 2017). Rather, for a witness to “otherwise be made known,” it must be quite clear to the other side that the witness exists, has relevant knowledge, and may be called at trial. *3 If a party fails to disclose evidence or a witness as required by Rule 26, then under Federal Rule of Civil Procedure 37, “the party is not allowed to use that information or witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The decision to exclude evidence is at the Court's discretion, but the United States Court of Appeals for the Third Circuit has identified four relevant factors: (1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with a court order or discovery obligation. Nicholas v. Pa. State. Univ., 227 F.3d 133, 148 (3d Cir. 2000). In this case, it is not in dispute that Ms. Lewis was not identified in Republic Steel's initial disclosures or in any of its written discovery. Republic Steel's 30(b)(6) transcript also makes clear that Ms. Lewis was identified as having done “the work on behalf of Republic to raise what are alleged errors.” (2:20-cv-01458, ECF No. 86-6, p. 7). Republic Steel's representative, Elizabeth Evans, also testified that it was Ms. Lewis's notes on the spreadsheets that had been produced to Plaintiffs. (2:20-cv-01458, ECF No. 86-6, p. 7). The Court holds that this testimony revealed the identity of Ms. Price and the subject of her knowledge regarding the issues in this case imperfectly, but enough to have made her “otherwise known” to Plaintiffs. As such, the Court does not believe that exclusion is warranted. However, the Court agrees that the complete omission of Ms. Lewis from Republic Steel's initial disclosures and discovery responses did not make clear to Plaintiffs that Ms. Lewis may be called at trial. The Court finds that Republic Steel's failure causes prejudice to Plaintiffs and, specifically, to their ability to prepare for trial. This prejudice is, however, curable short of exclusion. The Court holds that Plaintiffs’ motion in limine is DENIED to the extent that it seeks the exclusion of Ms. Lewis. Plaintiffs are given leave, however, to take a single deposition of Ms. Lewis prior to trial. The costs of the deposition and transcript (but not counsel fees) will be paid by Republic Steel. The parties shall meet and confer in good faith as to a mutually convenient date, but due to the impending trial date, the deposition shall be conducted as soon as practicable. 4) Plaintiffs’ Motion in Limine to Exclude References to the Court's Summary Judgment Rulings (2:20-cv-01458, ECF No. 87; 2:20-cv-01466, ECF No. 85) is GRANTED. No mention shall be made by either party to the Court's decision on summary judgment and/or the amount of the judgments entered. As to the issue raised by Republic Steel relating to exhibits which may contain reference to amounts that are included in the Court's prior judgment, the Court will not exclude the exhibits but cautions the parties—in the interest of efficiency—to focus only on those elements which are at issue in the trial. 5) Plaintiffs’ Motion in Limine to Exclude Evidence Relating to Claims Pending in a Separate Action (2:20-cv-01458, ECF No. 88; 2:20-cv-01466, ECF No. 86) is GRANTED to the extent that no mention shall be made or evidence offered relating to the litigation pending in the United States District Court for the Northern District of Ohio (No. 5:21-cv-103). The parties may make reference to “the Lackawanna facility agreement” for the purposes of background, as necessary in the context of the case. Appropriate objections to such evidence may be raised at trial.