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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

The Court previously granted Defendants’ request to allow certain witnesses to 

testify remotely at the upcoming bench trial but ordered supplemental briefing as to 

whether one of those witnesses, Tina Griffin, should be precluded from testifying as a 

sanction under Rule 37 based on late disclosure. (Doc. 362.) The Court has now reviewed 

the parties’ supplemental briefing (Docs. 363, 364, 366) and rules as follows.

Plaintiff’s request to preclude Griffin from testifying will be granted. It was 

improper for Defendants to wait to disclose Griffin as a witness until the very last day of 

the discovery period. This isn’t a case where Defendants were unaware of Griffin’s identity 

at the outset of discovery or had no reason to suspect at the outset of discovery that Griffin’s 

testimony might be relevant. To the contrary, Griffin was living with Defendant Keely 

Newman, was present during the key event in this case (the phone call between Plaintiff 

and Newman), and is being offered to testify about that phone call. (Doc. 310 at 94.) Thus, 

Defendants’ assertion that they didn’t realize the significance of Griffin’s testimony until 

hearing Plaintiff’s deposition testimony, because that testimony included new allegations 

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of mistreatment that Griffin will be able to rebut (Doc. 363 at 4), is unpersuasive. Griffin 

isn’t being offered (at least, according to Defendants’ description of her anticipated 

testimony in the Final Pretrial Order) to testify about the general contours of the 

relationship between Plaintiff and Newman—instead, Griffin is being offered to testify 

about what she overheard during the fateful phone call. (Doc. 310 at 46, 53, 63, 94.) 

For these reasons, it should have been apparent to Defendants from the outset of this 

case that Griffin, the sole non-party percipient witness to the key event on which liability 

turns, would be a key witness. Defendants were thus required to disclose Griffin in the 

initial disclosures they provided to Plaintiff pursuant to the Mandatory Initial Discovery 

Pilot Project (“MIDP”), which was in effect during the discovery process in this case. See

D. Ariz. G.O. 17-08 ¶ B(1). Defendants could not, in contrast, wait until the last day of the 

discovery period and then “supplement” their disclosures by identifying Griffin for the first 

time. Supplementation is appropriate “when new or additional information is discovered 

or revealed,” id. ¶ A(8), not to belatedly supply information that should have been provided 

at the outset. Cf. Jackson v. Am. Fam. Mut. Ins. Co., 2012 WL 845646, *3 (D. Nev. 2012) 

(“[T]he court finds Plaintiff’s disclosure of these three witnesses is not timely. . . . [T]hese 

three witnesses, who were disclosed on the last day of the extended discovery cutoff, are 

friends of the Plaintiff who knew him before the March 20, 2004, accident. They were 

disclosed too late for Defendant to conduct formal or informal discovery.”); Lopez v. 

United Parcel Serv. Gen. Serv. Corp., 2006 WL 8441568, *2 (D. Nev. 2006) (“[A] party 

may not wait until the last day of discovery to disclose the identity of witnesses or 

documents that the party reasonably knows it may use in support of its claims or defenses. 

Such witnesses and documents should either be listed in the party’s initial disclosures . . . 

or in a timely supplemental disclosure . . . .”).

Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that “[i]f a party fails 

to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 

that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure 

was substantially justified or is harmless.” The purpose of this rule is to “‘give[] teeth’ to 

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Rule 26’s disclosure requirements by forbidding the use at trial of any information that is 

not properly disclosed.” Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 827 

(9th Cir. 2011), superseded by rule on other grounds as recognized in Shrader v. Papé

Trucks, Inc., 2020 WL 5203459, *2 n.2 (E.D. Cal. 2020). “The party facing sanctions 

bears the burden of proving that its failure to disclose the required information was 

substantially justified or is harmless.” R&R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 

1246 (9th Cir. 2012). 

Here, Defendants’ failure to properly disclose Griffin was neither substantially 

justified nor harmless. The absence of justification is addressed above. As for 

harmlessness, although Defendants fault Plaintiff for not seeking to reopen discovery upon 

receiving their belated disclosure, this argument amounts to impermissible burden-shifting 

and fails in any event because the Court would not have been inclined to reopen discovery 

under the circumstances. 

Accordingly,

IT IS ORDERED that Plaintiff’s request to preclude Griffin from testifying at trial 

(Doc. 364; Doc. 310 at 95) is granted.

Dated this 3rd day of December, 2020.

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