Page 1 - DEFENDANT SELECT PORTFOLIO SERVICING, INC.’S RESPONSE TO 

PLAINTIFF’S SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE 

TESTIMONY FROM ANY BANA WITNESS

90757554.2 0052161-02921

Amy Edwards, OSB No. 012492

amy.edwards@stoel.com

Crystal S. Chase, OSB No. 093104

crystal.chase@stoel.com

Kennon Scott, OSB No. 144280

kennon.scott@stoel.com

STOEL RIVES LLP

760 SW Ninth Ave., Ste. 3000

Portland, OR 97205

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Defendant Select Portfolio Servicing, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

TERRI KWAKE, an individual and citizen 

of the State of Oregon,

Plaintiff,

v.

SELECT PORTFOLIO SERVICING, INC.; 

a Utah Corporation,

Defendant.

Case No.: 6:15-CV-01713-MC

DEFENDANT SELECT PORTFOLIO 

SERVICING, INC.’S RESPONSE TO 

PLAINTIFF’S AMENDED 

SUPPLEMENTAL MOTION IN LIMINE 

TO EXCLUDE TESTIMONY FROM 

ANY BANK OF AMERICA WITNESS 

Defendant Select Portfolio Servicing, Inc. (“SPS”) submits the following response to 

Plaintiff’s Amended Supplemental Motion in Limine to Exclude Testimony from Any Bank of 

America (“BANA”) Witness Due to Failure to Comply with the Trial Management Order and 

Case 6:15-cv-01713-MC Document 117 Filed 02/13/17 Page 1 of 4
Page 2 - DEFENDANT SELECT PORTFOLIO SERVICING, INC.’S RESPONSE TO 

PLAINTIFF’S SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE 

TESTIMONY FROM ANY BANA WITNESS

90757554.2 0052161-02921

FRCP 26 (Dkt. #112) (“Motion”). Plaintiff’s Motion is based on erroneous and unsupported 

factual allegations, and should be denied.

I. INTRODUCTION

In her motion, Plaintiff argues that SPS be precluded from presenting the testimony of the 

the BANA witness listed on SPS’s timely-filed witness list. As an initial matter, the deadline for 

the parties to file motions in limine was January 23, 2017. There is nothing new presented in 

Plaintiff’s Motion that she could not have raised three weeks ago. The Motion should be denied 

on this basis alone. Moreover, the only reason Plaintiff gives for the exclusion of this witness is 

that SPS has not disclosed the name of the BANA witness. This is not reason enough to impose 

the extreme sanction Plaintiff seeks. While SPS does not deny that the Court’s Trial 

Management Order required SPS to disclose the “name[] and occupation” of its intended 

witnesses, SPS is not at fault for failing to do so—BANA has, to-date, failed to provide the name 

of a witness they canmake available. (See Declaration of Amy Edwards to Support Defendant’s 

Response to Plaintiff’s Pretrial Submissions (Feb. 6, 2017) (Dkt. No. 102), ¶ 6; Declaration of 

Amy Edwards to Support SPS’s Response to Plaintiff’s Amended Supplemental Motion in 

Limine to Exclude Testimony from any Bank of America Witness (“Feb. 13 Edwards Decl.”), ¶ 

3.) Further, SPS’s failure to provide the name of the BANA witness has not prejudiced Plaintiff. 

SPS’s witness list provides an extremely detailed summary of what the BANA witness will 

testify to. Therefore, Plaintiff’s Motion should be denied.

II. ARGUMENT

Plaintiff argues for the imposition of the sanctions permitted by Rule 37(c)(1), which 

include the exclusion of witnesses not disclosed in a party’s initial disclosures. However, such 

sanctions are inapplicable where, as here, the parties agreed to waive such disclosures. (Feb 13 

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PLAINTIFF’S SUPPLEMENTAL MOTION IN LIMINE TO EXCLUDE 

TESTIMONY FROM ANY BANA WITNESS

90757554.2 0052161-02921

Edwards Decl. ¶ 2 and Ex. 1); Fed. R. Civ. P. 37(c)(1) (providing for sanctions “[i]f a party fails 

to provide information or identify a witness as requested by Rule 26(a) or (e)”). 

Of course, separate from Rule 37 sanctions, a court also has discretion to exclude 

witnesses not disclosed in compliance with a pretrial order. However, where, as here, Plaintiff 

admits that the evidence she seeks to exclude is “very much an issue” going into trial (Mot. at 1), 

the exclusion of such evidence is “an ‘extreme’ sanction, not normally imposed absent a showing 

of willful deception or ‘flagrant disregard’ of a court order by the proponent of the evidence.” 

Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977). Before 

excluding the testimony of witnesses not disclosed on a pretrial witness list, courts must consider 

“(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would 

have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of 

the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case 

or other cases in the court; (4) bad faith or willfulness in failing to comply with the court’s 

order.” Price v. Seydel, 961 F.2d 1470, 1474 (9th Cir. 1992).1

 

Here, SPS has not acted in bad faith or willfully failed to comply with the Court’s order. 

It has not disclosed the name of the BANA witness only because BANA has, to-date, refused to 

provide the name of the witness it will produce in response to SPS’s subpoena. (Feb 13 Edwards 

Decl. ¶ 3.) Plaintiff’s claim that SPS and BANA might be colluding to “hide” the identity of the 

BANA witness is unsubstantiated and inappropriate. SPS would not benefit in any way from 

 1 Even were the Court to apply the test for sanctions under Rule 37, the test is similar. 

While the Ninth Circuit does not require a showing of willfulness before sanctions may be 

imposed, “[t]wo express exceptions to ameliorate the harshness of Rule 37(c)(1): Information 

may be introduced if the parties’ failure to disclose the required information is substantially 

justified or harmless.” Rau v. State Farm Ins. Companies, No. CV-06-27-BLG-RFC-CSO, 2007 

WL 7652826, at *8 (D. Mont. Aug. 14, 2007) (quoting Yeti by Molly, Ltd. v. Decker Outdoor 

Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)).

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hiding the identity of the BANA witness. On the contrary, SPS has done everything in its power 

to try and timely comply with the Court’s order.

Moreover, Plaintiff has not and will not be prejudiced by the fact she does not yet know 

the identity of the BANA witness. SPS’s timely-filed witness list provided an exhaustive 

summary of what testimony it plans to elicit from the BANA witness. Therefore, Plaintiff knows 

everything that SPS knows about the BANA witness. And, SPS’s summary provided Plaintiff 

with enough information to prepare for cross-examination. Therefore, Plaintiff has not been 

prejudiced by the BANA witness’ testimony, nor will that witness’ testimony disrupt trial. For 

all of these reasons, Plaintiff’s Motion should be denied. See Price, 961 F.2d at 1474 (district 

court erred in excluding testimony where there was “no evidence that [proponent] wished to call 

[witness] in order to surprise the [opposing party] or that he had willfully or in bad faith 

disregarded the court’s pretrial order”); c.f. Depew v. ShopKo Stores, Inc., No. CIV. 03-0539-SBL W, 2006 WL 47357, at *2 (D. Idaho Jan. 6, 2006) (denying motion to exclude testimony 

from substitute witness where no evidence testimony would differ from summary provided for 

original witness).

DATED: February 13, 2017. STOEL RIVES LLP

/s/ Amy Edwards

AMY EDWARDS, OSB No. 012492

CRYSTAL S. CHASE, OSB No. 093104

Telephone: (503) 224-3380

Attorneys for Defendant Select Portfolio 

Servicing, Inc. 

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