DM1\683230.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

TOLEDO MACK SALES & 

SERVICE, INC., 

Plaintiff, 

v. 

MACK TRUCKS, INC., 

Defendant. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

Civil Action No. 2:02-CV-04373-RLB 

MACK TRUCKS, INC., 

Counterclaim 

Plaintiff, 

v. 

TOLEDO MACK SALES & SERVICE, 

INC. and 

Counterclaim 

Defendant. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

REPLY MEMORANDUM IN FURTHER SUPPORT OF PLAINTIFF’S 

MOTION IN LIMINE TO PRECLUDE MACK TRUCKS, INC. FROM

INTRODUCING TESTIMONY AT TRIAL BY SURPRISE WITNESSES

I. INTRODUCTION

Mack Trucks, Inc. (“MTI”) concedes that it failed to identify in its initial disclosures the 

following trial witnesses: Robert Nuss, Paul Ritter, Don Parrish, Charles Deforest Trexler, and 

Stephen Ginter (collectively the “Surprise Witnesses”). MTI offers no justification whatsoever 

for its omissions. Instead, MTI suggests that there is no prejudice to Toledo Mack because, in 

the mountain evidence produced during this case, the names of these Surprise Witnesses 

appeared a few times. These references, along with references to thousands of other individuals 

Case 2:02-cv-04373-RB Document 106 Filed 09/01/2006 Page 1 of 5
- 2 - 

during discovery, hardly substitute for the opportunity to take a witness’s deposition or to 

prepare for a witness before the eve of trial. MTI should not be rewarded for its failure to 

identify these witnesses. MTI should be precluded from introducing testimony by the Surprise 

Witnesses or, at the very least, MTI should make these witnesses available for deposition. 

II. REPLY

Rule 26(a)(1)(A) requires a party to identify “each individual likely to have discoverable 

information that the disclosing party may use to support its claims or defenses . . .” during the 

very early stages of discovery. Fed. R. Civ. P. 26(a)(1)(A) (emphasis added). Rule 37(c)(1) 

provides that “a party that without substantial justification fails to disclose information required 

by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . . 

information not so disclosed.” Fed. R. Civ. P. 37(c)(1) (emphasis added). 

Although Rule 37(c)(1) expressly focuses on the reason for a party’s failure to disclose its 

potential witnesses as required by Rule 26(a), MTI makes no attempt to offer any justification 

whatsoever, and certainly not “substantial justification,” for the omission of the Surprise 

Witnesses from its initial disclosures. MTI’s silence on this issue speaks volumes. 

Instead of justifying the omissions in its initial disclosures, MTI argues that its failure 

was harmless. MTI bases this contention on the fact that Toledo Mack was “aware” of the 

Surprise Witnesses. However, there is an obvious and important difference between 

“awareness” that a person exists and notice that a person may be called to testify at trial.1

 

 

1

 Given the volume of material in this case, MTI’s citation of a few references to the 

Surprise Witnesses in the record hardly provided notice that MTI would rely on the 

Surprise Witnesses at trial. In this litigation, MTI produced approximately 500,000 pages 

of documents; there were over ten thousand pages of deposition testimony (including the 

termination proceeding), and hundreds, if not thousands, of individuals identified in the 

(Continued...) 

Case 2:02-cv-04373-RB Document 106 Filed 09/01/2006 Page 2 of 5
- 3 - 

Indeed, the very reason for initial disclosures is to provide an opposing party with notice of 

potential witnesses and an opportunity to explore the knowledge of such potential witnesses, 

quite often by taking depositions. 

In this case, MTI identified thirty-five (35) individuals in its initial disclosures as 

potential trial witnesses. MTI then rejected Toledo Mack’s proposal to waive the 10 deposition 

limit of Fed. R. Civ. P. 30(a)(2)(A). (See Mack Decl., attached hereto as Exhibit A, at ¶ 4). 

Considering MTI had identified thirty-five (35) witnesses, but not any of the Surprise Witnesses, 

Toledo Mack had no reason depose the Surprise Witnesses. (See Mack Decl. at ¶ 5). Counsel 

for Toledo Mack specifically decided not to depose Paul Ritter because he was not identified as a 

potential witness by MTI. (See Mack Decl. ¶ at 6). MTI’s suggestion that Toledo Mack did not 

depose the Surprise Witnesses as a “tactical decision” instead of a result of MTI’s failure to fully 

disclose its witnesses should therefore be rejected out of hand. 

MTI further argues that “Toledo Mack has not questioned the importance of the 

anticipated” testimony of the Surprise Witnesses. The reason for this is clear: Toledo Mack does 

not know how or why MTI intends to use these last-minute witnesses. MTI’s characterization of 

the anticipated testimony as “important” only highlights the prejudice to Toledo Mack from the 

identification of these witnesses on the eve of trial. If these witnesses are, in fact, so important, 

MTI should be willing to make them available for deposition before trial.2

 

(Continued...) 

documents and testimony. A few references in this voluminous record cannot substitute 

for the mandatory disclosure of a potential trial witness. 

2

 Rule 37(c)(1) provides the Court with great discretion to order an appropriate sanction for 

a failure to disclose a potential witness in initial disclosures. If the Court does not 

preclude MTI from introducing the testimony of the Surprise Witnesses it may therefore 

order MTI to produce them for deposition before their trial testimony. 

Case 2:02-cv-04373-RB Document 106 Filed 09/01/2006 Page 3 of 5
- 4 - 

 Respectfully Submitted, 

 DUANE MORRIS LLP 

Date: September 1, 2006 By: /s/Wayne A. Mack

Wayne A. Mack 

J. Manly Parks 

James H. Steigerwald 

David A. Degnan 

30 South 17th Street 

Philadelphia, PA 19103-4196 

215.979.1000 

Attorneys for Plaintiff/Counterclaim 

Defendant Toledo Mack Sales & Service, 

Inc. 

Case 2:02-cv-04373-RB Document 106 Filed 09/01/2006 Page 4 of 5
DM1\683230.1

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Reply Memorandum in 

Further Support of Plaintiff’s Motion in Limine to Preclude Mack Trucks, Inc. from Introducing 

Testimony at Trial by Surprise Witnesses was served on this 1st day of September, 2006 via 

hand delivery on the following counsel: 

Jeremy Heep, Esquire 

Pepper Hamilton LLP 

3000 Two Logan Square 

Eighteenth and Arch Streets 

Philadelphia, PA 19103-2799 

 /s/ Wayne A. Mack

Case 2:02-cv-04373-RB Document 106 Filed 09/01/2006 Page 5 of 5