United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
22, 2018, Plaintiff filed an expedited motion pursuant to
Civil Local Rule 7(h) requesting a Court order that the
“Milwaukee County Defendants”-including Milwaukee
County, David Clarke, Brian Wenzel, Margaret Hoover, Carolyn
Exum, and Morgan Bevenue-be barred from calling at trial
several witnesses identified in their Federal Rule of Civil
Procedure 26(a)(1) initial disclosures. (Docket #122). The
Milwaukee County Defendants oppose the motion. (Docket #124).
26(a)(1) requires a party to include in its initial
disclosures “the name and, if known, the address and
telephone number of each individual likely to have
discoverable information-along with the subjects of that
information-that the disclosing party may use to support its
claims or defenses, unless the use would be solely for
impeachment.” Fed.R.Civ.P. 26(a)(1). Failure to
disclose a witness under this Rule normally results in the
witness being barred from testifying at trial. See
Milwaukee County Defendants identified over sixty witnesses
in their initial disclosures. Most of them are third-party
correctional officers, deputies, infirmary staff, and other
individuals who worked at the Milwaukee County Jail (the
“Jail”). Some of the identified witnesses are or
were employed by Milwaukee County, while others are or were
private healthcare providers. For the majority of these
persons, the Jail was given as their address and no phone
number was provided.
parties engaged in negotiations to narrow the scope of the
Milwaukee County Defendants' list of potential witnesses
based on whether they had useful information that would be
necessary at trial. The Milwaukee County Defendants have said
that they do not have a present intention to call many of the
third-party witnesses, but they will not commit to not
calling them, thus leaving open the possibility that they may
be called at trial. In light of this, Plaintiff seeks to
depose all of the identified witnesses.
upon her request that they be produced for deposition or that
she be provided their contact information, the Milwaukee
County Defendants refused, claiming they have no obligation
to produce or contact third-party fact witnesses. Plaintiff
believes that the Milwaukee County Defendants
“control” these witnesses and should be required
to either make them available for deposition or provide their
Plaintiff does not ask for a Court order that this
information be provided; she has instead proceeded straight
to Rule 37(c)(1) and requests an order barring any of the
identified witnesses from testifying at trial.
26(a)(1) is simple. The fact that this case involves many
potential witnesses does not change the operation of the
Rule. If they know it, the Milwaukee County Defendants must
disclose the contact information for each of the witnesses
they have identified, including each person's current or
last known address and phone number. Given that the
identified witnesses are current or former Jail employees, it
is likely that the Milwaukee County Defendants do have this
contact information for some or all of them. See Moore v.
Weinstein Co., LLC, No. 3:09-cv-166, 2011 WL 3348074, at
*8 (M.D. Tenn. Aug. 3, 2011) (a party cannot disclose
witnesses under Rule 26(a)(1) and simultaneously refuse to
provide known contact information).
the Milwaukee County Defendants are correct that they need
not produce each of these persons for deposition. Rule 30
only requires this of parties. See Fed. R. Civ. P.
30(a)(1), 37(d). Contrary to Plaintiff's assertion, a
witness' current or former employment with Milwaukee
County or private entities with whom it contracts does not
render him or her under Defendants'
“control.” Nor do the Milwaukee County Defendants
have to confirm whether they will call any of these
witnesses, since discovery is ongoing and final disclosure of
trial witnesses is a long time away. See Id.
26(a)(3). Rule 26(a)(1) itself only requires identification
of witnesses that the identifying party “may use”
at trial. Id. 26(a)(1)(A)(i).
the Milwaukee County Defendants must reveal the current or
last known contact information they know or have in their
control about their identified witnesses, whether or not they
are third parties, but it is incumbent upon Plaintiff to
subpoena any third-party witnesses for a deposition if she
desires it. Biltrite Corp. v. World Road Markings,
Inc., 202 F.R.D. 359, 362 (D. Mass. 2001) (“The
obvious purpose of the disclosure requirement of Rule
26(a)(1)(A) is to give the opposing party information as to
the identification and location of persons knowledgeable so
that they can be contacted in connection with the
litigation[.]”). Of course, the parties would do well
to continue their practice of cooperating to the greatest
extent possible to locate and arrange depositions for third
parties, no matter who wishes to depose them.
subject of Plaintiff's request for relief, is too early
to consider a sanction under Rule 37(c)(1). If the Milwaukee
County Defendants fail to properly disclose witnesses and
then name them in their pretrial disclosures under Rule
26(a)(3), the Court will consider a request in
limine to bar their testimony under Rule 37(c)(1). Until
that juncture, however, no violation of Rule 37 has yet
occurred, as there remains time for the Milwaukee County
Defendants to timely supplement their disclosures. Because
Plaintiff has not requested an order for anything other than
Rule 37(c)(1) sanctions, the motion must be denied.
IT IS ORDERED that Plaintiff's expedited
motion for an order barring the testimony of witnesses
identified by the Milwaukee County Defendants ...