NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

The Honorable John C. Coughenour

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married

individual, d/b/a ‘GORDONWORKS.COM';

OMNI INNOVATIONS, LLC., a

Washington limited liability company,

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware

corporation d/b/a

ADNOWLEDGEMAIL.COM;

ADKNOWLEDGE, INC., a Delaware

corporation, d/b/a

ADKNOWLEDGEMAIL.COM; SCOTT

LYNN, an individual; and JOHN DOES,

1-X,

Defendants.

NO. CV06-0204JCC

DEFENDANTS’ MOTION TO

EXCLUDE TESTIMONY FROM

LATELY DISCLOSED

WITNESSES OR TO COMPEL

THEIR DEPOSITIONS

NOTE ON MOTION

CALENDAR: 

March 30, 2007

I. INTRODUCTION

Plaintiffs James S. Gordon, Jr. (“Gordon”) and Omni Innovations, LLC (“Omni”)

(together, “Plaintiffs”) disclosed seven (7) new witnesses after the December 15, 2006

discovery cutoff. Consequently, Defendants have suffered prejudice by not crossexamining these witnesses in preparation for trial. Defendants respectfully request that

the Court exclude any testimony from these witnesses pursuant to FED. R. CIV. P.

37(c)(1). In the alternative, Defendants request the Court compel Plaintiffs to provide

Defendants with an opportunity to depose the witnesses to evaluate their credibility and

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 1 of 7

Gordon v. Virtumundo Inc et al Doc. 116

Dockets.Justia.com
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

reconcile their testimony with the representations of Mr. Gordon.

II. FACTS

A. Plaintiffs Disclosed Seven New Fact Witnesses After the Discovery Cutoff

The discovery cutoff in this case was December 15, 2006. (Stipulation and Order

Modifying Cutoff for Discovery Motions (Dkt. #67) at 1:24-25.) After the cutoff,

Plaintiffs filed their Motion for Partial Summary Judgment. (Dkt. #53.) In support of

that motion, Plaintiffs served the declarations of seven new witnesses: Anthony Potts,

Bonnie Gordon, Emily Abbey, Jamila Gordon, Jay Gordon, Jonathan Gordon, and Russell

Flye. (Dkt. #56-62.) None of these witnesses were mentioned in Plaintiff’s June 5, 2006

Initial Disclosures (Dkt. #25), and Plaintiffs never supplemented their original

disclosures. (Declaration of Roger Townsend in Support of Defendants’ Motion to

Compel or Exclude (“Townsend Decl.”) ¶ 2.)

On December 20, 2006, counsel for Defendants sent a letter to Plaintiffs’ counsel

requesting the opportunity to depose Plaintiffs’ seven (7) new witnesses. (Townsend

Decl. ¶ 3 Ex. A.) The letter noted “Defendants have incurred substantial prejudice as a

result of your failure to timely disclose these witnesses.” (Id.) It also provided as

follows:

We are hopeful that you will realize the improper nature of

relying on witnesses in support of your case-in-chief and will

voluntarily agree to make the seven new witnesses available for

depositions prior to January 15, 2006 [sic].

(Townsend Decl. ¶ 3 Ex. A.)

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 2 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

B. Defendants Have Not Had Sufficient Opportunity to Depose Plaintiffs’ LateDisclosed Witnesses

On December 27, 2006, a week after Defendants’ counsel asked to depose

Plaintiffs’ new witnesses, Plaintiffs’ counsel responded with an email. (Townsend Decl.

¶ 4 Ex. B.) The email only referred to three of the seven new witnesses, and did not

provide any contact information for them. (Id.) The email suggested some possible

deposition dates. Notably, while Defendants’ counsel had requested the depositions take

place before January 15, Plaintiffs indicated January 15 was the earliest date on which the

first of the depositions could take place. (Id.) Plaintiffs’ counsel later sent an email

regarding one more witness, but again provided no contact information which would

enable Defendants to contact her directly. (Id. ¶ 5 Ex. C.)

As the docket indicates, January 2007 was a busy month for the parties in this case

which the parties reasonably calculated may lead to a final resolution through summary

judgment or settlement through mediation. Defendants filed their response to Plaintiffs’

Motion for Partial Summary Judgment, as well as supporting declarations, on January 8,

2007. (Dkt. #82-84.) The court-ordered deadline for Defendants to file their own Motion

for Summary Judgment was January 22, 2007. (Dkt. #50 at 3:7-8.) Defendants complied

with this deadline, and filed the motion and supporting declarations on that date. (Dkt.

#98-102.)

The following month, Defendants again contacted Plaintiffs’ counsel regarding the

depositions. (Townsend Decl. ¶ 7.) On February 21, 2007, counsel for Defendants sent

an email to Plaintiffs’ counsel stressing the need to conduct depositions of Plaintiffs’ latedisclosed witnesses as soon as possible. (Id. ¶ 7 Ex. D.) Plaintiffs never provided an

adequate response. (Id.) On March 13, 2007, the case mediator filed his notice advising

that the Fed. R. Civ. P. 39.1 mediation had officially concluded without settlement. (Dkt.

# 113). On the same date, Defendants’ counsel followed up with a letter providing as

follows:

This follows up our conversation from last week regarding

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 3 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

depositions in the above referenced matter. Effective today,

settlement discussions have officially ended. (See Dkt. # 113).

Accordingly, we need to arrange for depositionsto be conducted

as soon as possible.

(Townsend Decl. ¶ 8 Ex. E.) 

However, Plaintiffs’ counsel now refuses to cooperate in arranging the depositions

of Plaintiffs’ late-disclosed witnesses. (Townsend Decl. ¶ 9.) Despite Plaintiffs’ failure

to provide contact information for any of their late-disclosed witnesses, failure to mention

possible deposition dates for several of them, and repeated delays in responding to

Defendants’ requests, Plaintiffs’ counsel now ironically claims Defendants are “late” in

requesting depositions. (Id. ¶ 9 Ex. F.) “Accordingly,” Defendants’ counsel writes, “we

will oppose your attempt to depose those witnesses now.” (Id.)

Defendants do not have contact information for Plaintiffs’ late-disclosed witnesses

and therefore cannot serve subpoenas on them. (Townsend Decl. ¶10.) Upon

information and belief, many of the witnesses are family members of Plaintiff Gordon

(Bonnie Gordon, Jamila Gordon and Jonathan Gordon) domiciled in the same household

and, therefore, Plaintiff is in a position to facilitate arranging depositions. Moreover, at

least one of the witnesses, Emily Abbey, is represented by Plaintiffs’ counsel in separate

litigation brought under the same email statutes at issue in the present matter. (see e.g.,

Emily Abbey at el v. Ascentive LLC et al (2:06-cv-01284-TSZ); see also Emily Abbey at el

v. Inviva Inc et al, (2:06-cv-01537-JCC)). In fact, Plaintiffs obtained declarations from

all seven (7) witnesses, and it is therefore reasonable to expect Plaintiffs can enable the

requested depositions at mutually convenient times and locations even though their latedisclosed witnesses are non-parties to the instant litigation. (Id.)

C. The Parties’ Compliance with Fed. R. Civ. P. 37 Meet and Confer

Requirements

Counsel for the parties discussed the need for further depositions on March 14,

2007. (Townsend Decl. ¶ 11 Ex. F.) Defendants’ counsel insisted on taking the

depositions and Plaintiffs’ counsel insisted on opposing Defendants’ efforts. (Id. ¶ 11.) 

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 4 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

Accordingly, Defendants’ counsel sent an email to Plaintiffs’ counsel providing as

follows:

Per our discussion today, we will move to compel depositions of

the individual customers. If you believe further discussion

would be fruitful, then we are available to discuss arrangements

to facilitate their depositions.

(Townsend Decl. ¶ 11 Ex. F.) Plaintiffs’ counsel has not changed his position.

III. ARGUMENT & AUTHORITY 

A. Standards for Granting Discovery Motions

 FED. R. CIV. P. 37(c)(1) provides as follows: 

A party that without substantial justification fails to disclose

information required by Rule 26(a) or 26(e)(1) or to amend a

prior response to discovery as required by Rule 26(e)(2), is not,

unless such failure is harmless, permitted to use as evidence at

a trial, at a hearing, or on a motion any witness or information

not so disclosed.

In Wong v. Regents of the University of California, 410 F.3d 1052, 1062 (9th Cir. 2005),

the Ninth Circuit emphasized Rule 37(c)(1) “excludes evidence from an untimely

disclosed witness unless ‘the parties’ failure to disclose the required information is

substantially justified or harmless.’” Id. (citing Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). The Wong court upheld the district court’s

decision to strike a late-disclosed witness, and noted the importance of following

deadlines:

If Wong had been permitted to disregard the deadline for

identifying expert witnesses, the rest of the schedule laid out by

the court months in advance, and understood by the parties,

would have to have been altered as well. Disruption to the

schedule of the court and other parties in that manner is not

harmless. Courts set such schedules to permit the court and the

parties to deal with casesin a thorough and orderly manner, and

they must be allowed to enforce them, unless there are good

reasons not to.

Wong, 410 F.3d at 1062. (emphasis added).

This Court is equally intolerant of parties’ efforts to ignore case deadlines. In a

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 5 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

case similar to this one, the plaintiffs disclosed eight witnesses after the discovery cutoff,

and the Court prohibited them from using testimony from any of those witnesses:

[After the discovery cutoff,] Plaintiffs provided a supplemental

witness disclosure to Defendants. This disclosure is untimely.

Plaintiffs have not provided a reasonable excuse for the

untimeliness of the disclosure. And the untimely disclosure, if

allowed, would be prejudicial to Defendants because the

disclosure took place afterthe discovery deadline... Plaintiffs are

therefore prohibited from using as evidence any of the eight

witnesses listed in the untimely disclosure.

Eden v. Washington State Patrol, 2006 U.S. Dist. LEXIS 77119, *2 (W.D.Wash. Oct. 11,

2006) (Pechman, J.).

B. This Court Should Either Compel Depositions of Plaintiffs’ Late-Disclosed

Witnesses or Strike Their Testimony 

A party suffers prejudice if the opposing party’s failure to cooperate in discovery

“impair(s) the [discovering party’s] ability to go to trial.” Adriana Int’l Corp. v. Lewis &

Co., 913 F.2d 1406, 1412 (9th Cir. 1990); Henry v. Gill Industries, Inc., 983 F.2d 943,

948 (9th Cir. 1993) (A “defendant suffers prejudice if the plaintiff's actions impair the

defendant's ability to go to trial or threaten to interfere with the rightful decision of the

case”) (citation omitted). 

Here, Plaintiffs’ refusal to make the late-disclosed witnesses available for

deposition causes Defendants substantial prejudice. Defendants cannot prepare an

adequate defense unless they have an adequate opportunity to conduct depositions, crossexamine the witnesses, and evaluate the credibility of their testimony. Crossexamination is widely recognized as an important means of evaluating witness credibility. 

“Indeed, it has been said that cross-examination is nothing less than the ‘greatest legal

engine ever invented for the discovery of truth.’” Fowler v. Sacramento County Sheriff’s

Dept., 421 F.3d 1027, 1044 (9th Cir. 2005) (citing California v. Green, 399 U.S. 149, 174

(1970) (quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940))). Defendants will be

severely prejudiced at trial unless the Court either prohibits Plaintiffs from presenting the

lately disclosed witnesses pursuant to Fed. R. Civ. P. 37(c)(1), or requires the witnesses to

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 6 of 7
NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

505 Fifth Ave. S., Ste. 610

Seattle, Washington 98104

(206) 274-2800

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DEFS.’ MOT. TO COMPEL OR EXCLUDE

[NO. CV06-0204JCC]

appear for cross-examination. In the event the Court does not exclude the witnesses, the

Court should order Plaintiffs to provide contact information for all late-disclosed

witnesses, and to cooperate in making those witnesses available for depositions without

further delay.

IV. CONCLUSION

If the Court permits Plaintiffs to rely upon the testimony of undeposed witnesses,

then trial will be inefficient and unnecessarily protracted. Defendants request the Court

strike the late-disclosed witnesses’ declarations offered in support of Plaintiff’s Motion

for Partial Summary Judgment, and prohibit Plaintiffs from offering any further testimony

of those witnesses in connection with this lawsuit. In the alternative, Defendants

respectfully request the Court order Plaintiffs to provide contact information for all latedisclosed witnesses in order to effect service of a deposition subpoena, and to cooperate

in making those witnesses available for depositions without further delay.

DATED this 15th day of March, 2007.

NEWMAN & NEWMAN,

ATTORNEYS AT LAW, LLP

By:

Derek A. Newman, WSBA No. 26967

Roger M. Townsend, WSBA No. 25525

Attorneys for Defendants

Case 2:06-cv-00204-JCC Document 116 Filed 03/15/2007 Page 7 of 7