United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 25, 2014 Decided April 21, 2015

No. 13-7104

MELISSA STANDLEY,

APPELLANT

v.

KAREN EDMONDS-LEACH, OFFICER, DISTRICT OF COLUMBIA

LIBRARY POLICE DEPARTMENT AND DISTRICT OF COLUMBIA,

A MUNICIPAL CORPORATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01770)

Anitha W. Johnson argued the cause and filed the briefs for

appellant.

Mary L. Wilson, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellees. With her on the brief were Irvin B. Nathan,

Attorney General, Todd S. Kim, Solicitor General, and Loren L.

AliKhan, Deputy Solicitor General.
2

Before: ROGERS, KAVANAUGH and PILLARD, Circuit

Judges.

Rogers, Circuit Judge: Melissa Standley appeals the

judgment on her tort claims for D.C. Public Library Special

Police Officer Karen Edmonds-Leach and the District of

Columbia on the ground that the district court abused its

discretion in allowing the defendants to call a witness they failed

to identify prior to trial in accordance with Federal Rule of Civil

Procedure 26(a). Standley maintains, as she argued in the

district court, that the witness’s testimony was not offered

“solely for impeachment,” as the rule’s exception requires, and

that the error was prejudicial. We agree that the district court

erred as a matter of law in misstating the exception under Rule

26(a). Because the witness’s testimony was not confined to

impeachment and because the outcome of the trial turned on the

jury’s assessment of the credibility of Standley and Officer

Edmonds-Leach, we further agree that the testimony of the

relatively disinterested witness likely influenced the outcome of

the trial. Accordingly, this court cannot say with fair assurance

that the district court’s error did not affect Standley’s substantial

rights, and we must reverse and remand the case for a new trial.

I.

On February 3, 2011, Standley went to a D.C. public library

to complete her homework and study for upcoming college

exams. She sat in an area of the library reserved for children,

even though she was too old to sit in that section. Officer

Edmonds-Leach (hereinafter “Officer Leach”) asked Standley

to move. Standley then relocated to the young-adult area, even

though she was too old to sit there, too. After the officer again

asked Standley to move, an altercation ensued, and the officer

arrested Standley. Standley sued Officer Leach and the District

of Columbia for the unconstitutional use of excessive force and
3

common law torts. At trial, Standley and Officer Leach disputed

the specifics of their encounter at the library. Other than an

inconclusive video, which both Standley and the officer argued

supported their version of the incident, the only other evidence

about the events at the library was provided by Wendell Kellar,

a librarian, whose testimony is at issue in this appeal.

A.

At trial, Standley testified that around 5 p.m. she went to a

library near her home to study, as she did three to four times a

week; she was a nursing student at the University of the District

of Columbia. The children’s area of the library is restricted to

children under thirteen years of age and adults accompanying

them, and the section for young adults is reserved for those aged

thirteen to nineteen. Although Standley was twenty-one years

old, the adult section was full, so Standley put her things on a

table in the children’s section, where she had sat previously

when the library was crowded. Officer Leach asked Standley to

leave the area for children. Standley moved, first walking

through the adult section to see if there were any available seats

and then, because there were not, as she claimed could be seen

in the video, to the young-adult area. She explained that

although some adult seats were not presently occupied, other

library patrons had left the seats temporarily to get books or to

socialize, so those seats were not available for use. 

Ten or fifteen minutes later, after Standley had opened her

computer and “start[ed] [her] activities,” Officer Leach asked

Standley to leave the area for young adults. Standley asked the

officer to make an exception because the adult section was full. 

 Officer Leach said that she did not care, Standley could not sit

in the young-adult area. Standley told the officer that this was

“real petty” because there were no seats available in the adult

section. The officer laughed and said she knew it was. Standley
4

also questioned how she could be asked to leave without first

verifying her age; when Officer Leach requested identification,

Standley said she had none with her. Standley stood up and

walked towards the adult section. As she did so, she mumbled

under her breath the word “bitch” once but did not use any other

profane language. Officer Leach “charge[d] after” her, got “in

[her] face” and asked “what did you say, what did you say,”

trying to provoke a confrontation.

The officer then told Standley to leave the library and

pointed towards the exit. Standley put down her belongings in

the adult section, intending to pack and leave as instructed. She

asked the officer, who was standing so close that she was

touching Standley, to give her “a little space to pack up [her]

belongings.” The officer replied, “I’m not going no mother[-

]fuckin’ where, make me move, make me move.” “Before I

knew it,” Standley said, “[Officer Leach] hit me in the

face, . . . wrapping her arm around my neck and hitting me

repeatedly and then throwing me into the bookshelves.” 

According to Standley, the video showed the officer putting her

in a headlock and throwing her into a bookshelf. Standley

claimed the officer threw her down on the ground and put her

knee in her back. Also, whenever Standley tried to lift her head

to prevent her mouth from touching the ground, because she had

asthma and “couldn’t breathe,” the officer slammed Standley’s

head onto the floor. The officer told her to “shut the F up,” and

said she was resisting arrest. The officer handcuffed Standley,

and she was transported to the police station and charged with

unlawful entry and disorderly conduct. At some point, Standley

was also charged with assault on a police officer.

Officer Leach’s trial testimony depicted the events leading

to Standley’s arrest quite differently. According to the officer,

she saw Standley sitting in the children’s area and asked her to

move to the adult section, in which there were seats fewer than
5

five minutes earlier. When Standley objected to moving

because there were no other seats, the officer explained the

library’s policy regarding the age-restricted sections and again

asked Standley to move. Standley left the children’s area. 

Later, Officer Leach noticed Standley sitting in the section for

teenagers and returned to tell Standley to move to the adult

section. Standley asserted that she had sat in the area for young

adults before and kept saying there were no other seats. The

officer responded that she could see seats in the adult section. 

Standley continued to object and also asked, “how do you even

know what my age is?” After Standley told the officer she was

only nineteen, Officer Leach requested her identification. At

that point, Officer Leach testified, Standley “went into a frenzy,”

“started cursing,” and said “I didn’t know you need to bring no

fuckin’ ID to the fuckin’ library.” Standley continued to spout

profanities, and told Officer Leach she was “just being a fuckin’

bitch.” 

Officer Leach told Standley to leave the library. Standley

sat there and repeated that the officer was “just a bitch.” 

Standley began to pack her things, and then with her laptop in

hand walked towards the adult section. Officer Leach followed

Standley, calling out “ma’am, ma’am” to get Standley’s

attention. Standley ignored the officer, except to say again

“[y]ou’re just being a bitch.” Standley put her belongings down

on a table, as if she were going to sit down. Officer Leach said,

“ma’am, this is the last and final time that I’m going to tell you

to leave,” and pointed towards the exit. The officer “stood

almost to the side of her,” and Standley stated loudly, “bitch, get

the fuck away from me. Bitch, get out of my face.” Other

library patrons turned around to see what was happening. 

Because Standley refused to leave, Officer Leach proceeded

to arrest her for unlawful entry. The officer grabbed Standley’s

arm, but Standley “snatche[d] away.” She tried to grab
6

Standley’s arm again, but Standley once more pulled back. 

They continued to struggle for “maybe 5 to 10 minutes,”

eventually “end[ing] up in[] the stacks where the books are,”

and at some point they fell to the floor. Library patrons gathered

around Standley and the officer, as the video showed. While

Standley was on the floor, Officer Leach restrained her, pressing

her hand, not her knee, on Standley’s back. The officer denied

that she punched Standley in the face, placed her in a headlock,

slammed her head against the floor, or used any profanity during

the incident. 

B.

All of the criminal charges against Standley were dropped

before trial. Standley filed this suit, alleging excessive force in

violation of the Fourth Amendment and common law claims for

false arrest, false imprisonment, assault, and battery against

Officer Leach and the District of Columbia (collectively “the

defendants”). (Standley also filed a malicious prosecution claim

that was dismissed at the close of all the evidence and has not

been pursued on appeal.) 

Prior to trial, Standley filed a motion in limine to preclude

the defendants, pursuant to Federal Rules of Civil Procedure

26(a) and 37(c), from calling non-party witnesses, including

librarian Wendell Kellar, because the defendants did not

disclose any witnesses during discovery. The defendants agreed

not to call Kellar, among others, as witnesses, and the district

court denied Standley’s motion as moot. The defendants,

however, subsequently moved to reinstate Kellar as a witness,

arguing that Kellar’s testimony would “corroborate Officer

Edmonds-Leach’s testimony that [Standley] was disorderly

while at the library,” and was therefore “crucial to the defense.” 

 Standley opposed the motion, emphasizing the defendants knew

about Kellar and his knowledge of the incident but failed to

identify him as a potential witness pretrial. The district court
7

denied the defendants’ motion to reinstate Kellar as a witness

during their case-in-chief. But the district court reserved ruling

on whether Kellar could testify for impeachment purposes,

stating that “the rules are very lax on impeachment witnesses

and whether notice must be given for impeachment witnesses.” 

Trial Tr. 9 (May 28, 2013) (morning session). 

After Standley testified at trial, the defendants asked to call

Kellar as an impeachment witness. They argued that Kellar

would impeach Standley’s testimony that during the incident at

the library (1) she did not use profanity, except for muttering an

expletive once, and (2) there were no seats available in the adult

section. Standley objected, countering that “it would be

prejudicial and against [] the basic rules to allow defendants to

suddenly use someone for impeachment that was clearly

discoverable” before trial. The district court reserved ruling

until after the officer testified.

Following Officer Leach’s testimony, the defendants

renewed their request to call Kellar for the purpose of

impeachment. Standley objected, explaining that Kellar’s

testimony would not be proper impeachment evidence because

it would be used to corroborate Officer Leach’s version of

events, with Kellar “only testifying to a different version than

[Standley].” Standley argued that admission of Kellar’s

testimony would violate the discovery rules and would be

unduly prejudicial to her, noting, for example, that she “would

have prepared her case differently” had she known he would be

called as a witness. 

The district court allowed Kellar to testify as an

impeachment witness. The court found that he was “an

impeaching witness and not called solely for corroboration.” 

Trial Tr. 68 (May 29, 2013) (afternoon session). The court

explained that, “at least as his testimony is represented” by the
8

defendants, Kellar “will be testifying on at least two areas that

[Officer Leach] has not testified to.” Id. In particular, Kellar

would testify about the number of seats that were available in

the adult area, a subject on which the officer had not “claimed

to . . . give any definitive testimony,” and “as a person who was

seated or standing . . . some distance away, he would be . . . in

the best position to testify as to the volume of the remarks that

[Standley] was making.” Id. The district court, therefore, found

that Kellar’s testimony was “more than corroboration; that in

fact, he has independent impeaching evidence to offer.” Id. at

69. Standley reiterated her objection that the Federal Rules of

Civil Procedure require an undisclosed witness to be offered

solely for impeachment, and here the testimony was offered by

the defendants not only to impeach Standley but also to

corroborate Officer Leach. The district court again rejected that

argument, stating that this is “a classic case of impeachment”: 

“[Standley] said one thing, and [Kellar] is going to say

something else. Whether impeachment and rebuttal crisscross

is a matter of semantics.” Trial Tr. 6 (May 30, 2013) (morning

session). 

At trial, Kellar testified about the two areas of impeachment

approved by the district court. First, Kellar testified that during

the incident at the library he heard yelling and cursing from

someone other than Officer Leach, with whose voice he was

familiar. That part of his testimony contradicted, and thus

tended to impeach, Standley’s testimony that she did not raise

her voice and that it was Officer Leach who swore at her. 

Second, Kellar testified that at the time of the incident the

library was not particularly crowded, and there was adequate

seating available in the adult section, thereby tending to impeach

Standley’s testimony that she needed to sit in the young-adult

section. But Kellar also testified on another matter. 

Specifically, he testified that he heard Officer Leach instruct

Standley to leave the library. That was not impeachment, as
9

Standley had testified to the same effect.

The jury returned a verdict in the defendants’ favor, and the

district court entered judgment for the defendants. Standley

appeals. Our review of the district court’s decision to admit

Kellar’s testimony is for abuse of discretion. See United States

v. Garner, 396 F.3d 438, 440 (D.C. Cir. 2005). 

II.

Federal Rule ofCivil Procedure 26(a)(1)(A)(i)requiresthat

a party “without awaiting a discovery request” make an initial

disclosure to the opposing party that includes “the name and, if

known, the address and telephone number of each individual

likely to have discoverable information – along with the subjects

ofthat information – that the disclosing party may use to support

its claims or defenses, unless the use would be solely for

impeachment.” “In addition to the disclosuresrequired by Rule

26(a)(1),” a party must provide “the name and, if not previously

provided, the address and telephone number of each witness”

that “it may present at trial other than solely for impeachment.” 

Fed. R. Civ. P. 26(a)(3)(A)(i). Pursuant to Rule 37(c)(1), if a

party fails to identify a witness as required by Rule 26(a), the

party cannot use that witness to supply evidence at trial, unless

the failure was substantially justified or is harmless. Fed. R.

Civ. P. 37(c)(1); see Musser v. Gentiva Health Servs., 356 F.3d

751, 758 (7th Cir. 2004). In other words, a party need not

disclose a witness pursuant to Rule 26(a) if the evidence will be

used “solely for impeachment,” and the witness may testify at

trial even if not disclosed beforehand. Fed. R. Civ. P.

26(a)(1)(A)(i), 26(a)(3)(A)(i), 37(c)(1); Advisory Committee

Notes on 1993 Amendments to subdivision (a) of Rule 26,

subdivision (c) of Rule 37.

A.
10

The defendants concede that they did not identify Kellar as

a witness in their pretrial disclosures or discovery responses, and

they do not maintain on appeal that their failure to identify

Kellar before trial was substantially justified or harmless. See

Fed. R. Civ. P. 37(c)(1). Kellar’s testimony, therefore, was

admissible at trial only if it is subject to Rule 26(a)’s “solely for

impeachment” exception. See Advisory Committee Note on

1993 Amendmentsto subdivision (c) ofRule 37; Hammel v. Eau

Galle Cheese Factory, 407 F.3d 852, 869 (7th Cir. 2005).1

By contrast to substantive evidence, “which is offered to

establish the truth of a matter to be determined by the trier of

fact,” impeachment evidence is “offered to discredit a witness

to reduce the effectiveness of her testimony by bringing forth

evidence which explains why the jury should not put faith in her

. . . testimony.” Chiasson v. Zapata Gulf Marine Corp., 988

F.2d 513, 517 (5th Cir. 1993) (internal quotation omitted), cert.

1

 Standley has not argued on appeal that Kellar’s testimony

was inadmissible because the defendants failed to identify him in

response to her properly served discovery requests. Under Federal

Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s

claim or defense.” By contrast to Rule 26(a), Rule 26(b) does not

on its face protect from disclosure evidence that will be used for

impeachment at trial. See Varga v. Rockwell Int’l Corp., 242 F.3d

693, 697 (6th Cir. 2001); Elion v. Jackson, 544 F. Supp. 2d 1, 6-7

(D.D.C. 2008); see also 8 CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FED. PRAC. & PROC. CIV. § 2015 (3d ed. 2014) (Although

“[t]he initial disclosure requirements exclude items that the

disclosing party may use ‘solely for impeachment,’ . . . no such

categorical limitation applies to material sought through

discovery . . . . The fact that the party responding to discovery

intends to use the material only for impeachment does not take it

out of the realm of discoverable material if it is otherwise relevant.”

(footnote omitted)).
11

denied, 511 U.S. 1029 (1994); see Friedman v. Rehal, 618 F.3d

142, 153-54 (2d Cir. 2010) (citing Chiasson, 988 F.2d at 517). 

Impeachment evidence used “[t]o attack the credibility of

witnesses by the presentation of evidence showing that facts

asserted or relied upon in their testimony are false . . .

impeach[es] by contradiction.” Wegener v. Johnson, 527 F.3d

687, 691 (8th Cir. 2008). Impeachment by contradiction is an

established way to impeach a witness’s credibility. See, e.g.,

United States v. Miller, 738 F.3d 361, 376-77 (D.C. Cir. 2013);

United States v. Fonseca, 435 F.3d 369, 375 (D.C. Cir. 2006)

(citing WEINSTEIN’S FEDERAL EVIDENCE §§ 607.06[1],

608.20[3][a] (2d ed. 2005)). Kellar impeached Standley by

contradicting her about whether she yelled and cursed and the

availability of seats for adults at the library, so that testimony

was permissible impeachment evidence.

But “separate and apart from whether [Kellar] contradicted

[Standley’s] testimony,” Kellar’s testimony also “tended ‘to

establish the truth of a matter to be determined by the trier of

fact.’” Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998)

(quoting Chiasson, 988 F.2d at 517); see also United States v.

Sanchez-Robles, 927 F.2d 1070, 1078 (9th Cir. 1991),

disapproved of on other grounds by United States v. Heredia,

483 F.3d 913 (9th Cir. 2007). In particular, if credited by the

jury, Kellar’s testimony about Standley’s behavior tended to

show Officer Leach had probable cause to arrest Standley for

disorderly conduct. The defendants themselves highlighted this

when they first moved to reinstate Kellar as a witness, arguing

that his “testimony w[ould] corroborate Officer EdmondsLeach’s testimony that [Standley] was disorderly while at the

library” and was thus “crucial to the defense.” Also, Kellar

testified that Officer Leach ordered Standley to leave the library. 

Standley disputed only when, not whether, she was told to leave,

so Kellar’s testimony on this point served little or no

impeachment-by-contradiction purpose. Cf. Sterkel v. Fruehauf
12

Corp., 975 F.2d 528, 532 (8th Cir. 1992); Martin v. United

States, 127 F.2d 865, 866 (D.C. Cir. 1942).

In applying Rule 26(a)’s impeachment exception, some

courts have concluded that the impeachment exception is limited

to evidence that has no potential utility other than impeachment. 

For example, in Chiasson, 988 F.2d at 517-18, an oft-cited

authority, the Fifth Circuit held that a video surveillance tape

served in part a substantive function so “regardless of its

impeachment value,” it should have been disclosed prior to trial. 

The First Circuit in Klonoski, 156 F.3d at 270 (citing Chiasson,

988 F.2d at 517-18), and other courts, have taken the same

approach. See Searles v. Van Bebber, 251 F.3d 869, 877 (10th

Cir. 2001); Brooks v. Kerry, 37 F. Supp. 3d 187, 204-05 (D.D.C.

2014); Newsome v. Penske Truck Leasing Corp., 437 F. Supp.

2d 431, 434-36 (D. Md. 2006). Likewise, in Wilson v. AM

General Corp., 167 F.3d 1114, 1122 (7th Cir. 1999), the

Seventh Circuit concluded that because the testimony of

witnesses offered to impeach was a part of the defendant’s

“primary line of defense,” the witnesses should have been

disclosed prior to trial and their testimony was properly

excluded. On the other hand, the Seventh Circuit has also held

that undisclosed evidence with both impeachment and

substantive qualities may be presented at trial so long as it is

strictly used to impeach. DeBiasio v. Ill. Cent. R.R., 52 F.3d

678, 686 (7th Cir. 1995); see Hammel, 407 F.3d at 870 n.13 (in

light of forfeiture, declining to address whether testimony was

used for both impeachment and substantive purposes, “a

scenario which may not be covered by the [solely for

impeachment] exception” (citing Wilson, 167 F.3d at 1122;

Klonoski, 156 F.3d at 270; DeBiasio, 52 F.3d at 686)). 

Specifically, that court held that it was error to exclude evidence

the defendant offered not to prove its defense, but rather to

impeach the plaintiff’s expert witness. DeBiasio, 52 F.3d at

686. Under either approach, the courts have focused on the
13

word “solely” and our sister circuits have read that term strictly. 

See 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED.

PRAC. & PROC. CIV. § 2053 n.57 (3d ed. 2014) (collecting

cases).

The district court in Hayes v. Cha, 338 F. Supp. 2d 470,

503-04 (D.N.J. 2004), summarized the competing considerations. 

On the one hand, the district court acknowledged that some

circuits, such as the Seventh Circuit in DeBiasio, 52 F.3d at 686,

reject the proposition that “solely” means that the evidence can

have no substantive non-impeachment value. Hayes, 338 F.

Supp. 2d at 503. Those courts reason that evidence used to

attack a witness’s credibility often contains some substantive

element, and reading Rule 26(a)’s “solely for impeachment”

exception to bar use of such evidence if not earlier disclosed

could “result in an erosion of evidence capable of warranting the

impeachment designation.” Id. (quotation omitted). On the

other hand, the district court recognized that such an approach

“strikes at the heart of the amended rules’ broad intent” in favor

of disclosure. Id. “Automatic disclosure was adopted to end two

evils that had threatened civil litigation: expensive and

time-consuming pretrial discovery techniques and

trial-by-ambush.” Id. (citing Advisory Committee Note on 1993

Amendments to subdivision (a) of Rule 26). A too expansive

reading of the impeachment exception “could cause a resurgence

of these evils.” Id.

“Because a district court by definition abuses its discretion

when it makes an error of law, the abuse-of-discretion standard

includes review to determine that the discretion was not guided

by erroneous legal conclusions.” Koch v. Cox, 489 F.3d 384,

388 (D.C. Cir. 2007) (internal quotations omitted). Here, the

district court rejected Standley’s objection to Kellar’s testimony

as “a matter of semantics.” Trial Tr. 6 (May 30, 2013) (morning

session). The court ruled that Kellar could testify because he
14

was “an impeaching witness and not called solely for

corroboration.” Trial Tr. 68 (May 29, 2013) (afternoon session). 

Under Rule 26(a), however, the question is whether the

testimony will be used “solely for impeachment,” not whether it

will be used solely for corroboration. See Fed. R. Civ. P.

26(a)(1)(A)(i), 26(a)(3)(A)(i). By shifting the critical word

“solely” to modify “corroboration” rather than “impeachment,”

the district court applied the wrong test in deciding whether to

admit Kellar’s testimony and thus abused its discretion. See

Koch, 489 F.3d at 388. 

By so proceeding, the district court never addressed the

considerations that courts have found relevant under the several

interpretations of the scope and nature of Rule 26(a)’s

impeachment exception, and the opportunity to explore the

contours of that exception was lost. Would the district court

have ruled Kellar’s testimony was admissible even though he

had not been identified by the defendants who knew his

testimony was important to the substance of their defense? 

Would the district court have struck Kellar’s testimony when it

was used by defendants for more than impeachment? We do not

know because the district court’s misstatement of the rule

prematurely ended the court’s analysis. In light of the district

court’s legal error we have no occasion to decide which of the

competing approaches to the “solely for impeachment” exception

should be adopted in this circuit. Under either approach, it is not

clear that Kellar’s testimony would have been admissible

because aspects of his testimony constituted “dual functionality”

evidence, and he testified to at least one substantive point that

had no impeachment value at all. 

B.

 The question remains whether the error was harmless. This

court “will reverse an erroneous evidentiary ruling . . . only if the

error affects a party’s substantial rights.” Huthnance v. District
15

of Columbia, 722 F.3d 371, 377 (D.C. Cir. 2013) (citing Fed. R.

Civ. P. 61). “This analysis depends on a number of factors,

including the closeness of the case, the centrality of the issue in

question, and the effectiveness of any steps taken to mitigate the

effects of the error.” Id. at 381.

As a preliminary matter, the defendants’ position that 

Standley forfeited any claim of prejudice lacks merit. In her

opening brief, Standley contends that the district court’s

admission of Kellar’s testimony “was manifestly prejudicial.” 

Appellant’s Br. 10. Standley pointed to the district court’s

erroneous evidentiary ruling, and “the circumstances of the case

. . . make clear . . . that the [erroneous] ruling . . . was harmful,”

Shinseki v. Sanders, 556 U.S. 396, 410 (2009), so Standley’s

assertion of prejudice sufficed, and she was not required to make

any further argument on appeal to preserve that issue. See id.

Throughout the district court proceedings Standley acted to

protect her rights under the Federal Rules of Civil Procedure and

to preclude Kellar’s testimony because its admission would be

harmful to her case. Before trial, she sought to discover defense

witnesses, specifically requesting that the defendants “[i]dentify

all individuals with personal knowledge of any facts material to

the issues raised in this litigation.” Pl.’s Mot. in Limine to

Exclude Witnesses and Records Exh. 1, at 1 (Apr. 22, 2013); see

Fed. R. Civ. P. 26(b). Standley also moved in limine to preclude

the defendants from calling any non-party witnesses, based on

their failure of disclosure during discovery. See Pl.’s Mot. in

Limine to Exclude Witnesses and Records (Apr. 22, 2013). 

Additionally, she opposed the defendants’ subsequent motion to

redesignate Kellar as a witness at trial. When the defendants

later moved to present Kellar as an impeachment witness,

Standley opposed the request, emphasizing among other things

that allowing him to testify would prejudice her. 

On the merits, we conclude that the district court’s legal
16

error was not harmless. The prejudice to Standley goes beyond

hindering her ability to plan for trial in deciding who to call as a

witness and in preparing cross-examination of defense witnesses,

although that typically is what the federal rules governing

discovery are designed to avoid. See Advisory Committee Note

on 1993 Amendments to subdivision (a) of Rule 26; Hayes, 338

F. Supp. 2d at 503. Aside from a largely indeterminate video,

which both parties argued to the jury supported their version of

events, the evidence at trial pitted Standley’s testimony against

that of Officer Leach. Under the circumstances, it is highly

likely that Kellar’s testimony influenced the jury’s assessment of

the evidence. Although employed by the District of Columbia,

Kellar was not involved in the altercation or lawsuit and thus

probably would have been viewed by reasonable jurors as an

impartial witness who corroborated part of the officer’s version

of events. The defendants anticipated as much in their closing

argument, telling the jury that “[b]ecause [it] heard two very

different versions” of the incident, credibility was paramount. 

The jury might have credited Kellar’s testimony, in particular,

because, as the defendants argued in closing, he “ha[d] no ax to

grind in this case,” yet he supported Officer Leach’s version of

events, which made her appear credible and her version more

believable. Importantly, too, Kellar testified that he heard

yelling and cursing, from someone other than Officer Leach. 

That testimony tended to show that the officer had probable

cause to arrest Standley for disorderly conduct and that the

defendants could not be held liable for false arrest and false

imprisonment. Therefore, there is a significant chance that

Kellar’s testimony influenced the outcome of the case. See

Huthnance, 722 F.3d at 381. The defendants nonetheless suggest

that affirmance is required of at least Standley’s excessive force

claim because Kellar did not testify about the physical encounter

and arrest, but given the “she said/she said” nature of the critical

evidence, it is difficult to imagine how Kellar’s testimony

corroborating Officer Leach would not have affected the jury’s
17

view of the parties’ credibility in general, even as to those facts

relevant to excessive force. 

Accordingly, this court cannot say with fair assurance that

the district court’s legal error did not affect Standley’s

substantial rights, and we must reverse and remand for a new

trial.