1

 The joint status report submitted by defendant does not contain a statement by plaintiff and is not signed by

opposing counsel. However, plaintiff provided the court with a separate status report as part of his response filed on

September 2, 2005.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JERRY L. BARKER §

§

Plaintiff, §

§

VS. § NO. 3-04-CV-0812-B

§

BANK ONE, N.A. §

§

Defendant. §

MEMORANDUM ORDER

Defendant Bank One, N.A. has filed a motion for leave to designate Penny Williams as its

corporate representative and two employees of Philip Vogel & Co., Bernard "Buddy" Raden and

Danna Dixon, as additional witnesses who may testify at trial. Plaintiff opposes the motion because

neither Williams, Raden, nor Dixon were identified as persons with knowledge of relevant facts in

response to a proper interrogatory. The parties have briefed their respective positions in a joint

status report filed with the motion on September 2, 2005,1 and this matter is ripe for determination.

Fed. R. Civ. P. 37(c)(1) provides, in pertinent part:

A party that without substantial justification fails 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 trial, a

hearing, or on a motion any witness or information no so disclosed.

FED. R. CIV. P. 37(c)(1). Supplementation of a discovery response is required under Fed. R. Civ.

P. 26(e)(2) "if the party learns that the response is in some material respect incomplete or incorrect

and if the additional information or corrective information has not otherwise been made known to

 

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the other parties during the discovery process or in writing." FED.R.CIV. P. 26(e)(2). In its motion,

defendant argues that it was not required to identify Raden and Dixon as persons with knowledge

of relevant facts in a supplemental interrogatory answer because plaintiff deposed these witnesses

on April 28, 2005-- one day before the expiration of the discovery deadline and more than two

months before the parties were required to make pretrial disclosures. The advisory committee notes

to Rule 26(e) make clear that there is no obligation to supplement an interrogatory answer with

information otherwise made known to the parties during the discovery process, "as when a witness

not previously disclosed is identified during the taking of a deposition." FED.R.CIV. P. 26(e), Adv.

Comm. Note (1993). See also Bonds v. District of Columbia, 93 F.3d 801, 810-13 (D.C. Cir. 1996),

cert. denied, 117 S.Ct. 2453 (holding that district court improperly excluded testimony of witness

not timely identified in response to interrogatory, but who had been deposed by other party).

Because plaintiff was aware of Raden and Dixon and had an opportunity to explore the subject

matter of their potential testimony by way of deposition, defendant was not required to identify these

witnesses in a supplemental interrogatory answer.

The court further determines that defendant was substantially justified in withholding the

designation of Penny Williams as its corporate representative. When plaintiff first inquired about

taking a Rule 30(b)(6) deposition in April 2005, defendant asked plaintiff to provide a list of

deposition topics. Defendant also agreed to extend the discovery deadline until June 30, 2005 for

the purpose of taking this deposition. Despite this accommodation, plaintiff never provided

defendant with a list of deposition topics or renewed his request for a Rule 30(b)(6) deposition. This

constitutes substantial justification for not designating Williams as a corporate representative prior

to the August 1, 2005 deadline for making pretrial disclosures. 

 

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2

 Plaintiff cites two cases in his joint status report for the proposition that Fed. R. Civ. P. 37(c)(1) bars the

introduction of evidence when a party fails to make a required supplemental disclosure. Brennan's Inc. v. Dickie

Brennan & Co., Inc., 376 F.3d 356, 374-75 (5th Cir. 2004); Alldread v. City of Grenada, 988 F.2d 1425, 1435-36 (5th

Cir. 1993). However, both Brennan's and Alldread involved situations where a party did not timely disclose information

essential to understanding the proposed testimony of an expert witness. Because the instant case involves fact witnesses,

not experts, Brennan's and Alldread are inapposite.

Moreover, the failure to identify this witness in a supplemental interrogatory answer is

harmless. Williams is an important witness who will testify about bank policies and procedures, as

well as the specific instruments at issue in this case. The court already has determined that

defendant was substantially justified in withholding the designation of this witness as its corporate

representative. Nor is there any evidence that plaintiff will be prejudiced if Williams is allowed to

testify. Plaintiff had ample opportunity to take a Rule 30(b)(6) deposition before the expiration of

the discovery deadline as extended by the parties, and defendant has agreed to let plaintiff depose

Williams prior to trial. This obviates any prejudice or harm to plaintiff as a result of the failure to

timely supplement interrogatory answers.2

 

For these reasons, defendant's motion for leave to designate a corporate representative and

other witnesses is granted.

SO ORDERED.

DATED: September 7, 2005.

 

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