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Whitford v. Gill
United States District Court, W.D. Wisconsin
June 21, 2019
WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE, Plaintiffs,
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN, Defendants, and THE WISCONSIN STATE ASSEMBLY, Intervenor-Defendant.
OPINION AND ORDER
(including the intervenor-defendants) move to strike four
witnesses that plaintiffs identified in supplemental
disclosures served on May 15, 2019. Dkt. 282. Three of the
witnesses-Sandy Pasch, Amy Sue Vruwink, and Peter Barca-were
Representatives in the Wisconsin State Assembly after the
enactment of Act 43, the Assembly districting plan that
plaintiffs are challenging in this case. The fourth
witness-Brittany Keyes-was a candidate for the Assembly in
2018. All are Democrats and all ran for office in a district
where one of the plaintiffs lives. Plaintiffs say that each
of these witnesses may testify about the partisan intent and
effect of Act 43. Dkt. 284-1. Defendants contend that
plaintiffs' disclosure of these witnesses was untimely
and prejudicial, so the court should preclude the witnesses
from testifying at trial under Federal Rule of Civil
Procedure 37. Dkt. 282.
not persuaded that the disclosure was untimely. When the case
came back after remand from the Supreme Court, this court set
September 28, 2108 as the deadline for the parties to update
initial disclosures under Ruel 26(a)(1). Dkt. 199, at 2. Of
course, the parties had a duty under Rule 26(e) to supplement
these disclosures if they learned that their disclosure were
materially incomplete. In a later scheduling order, Dkt. 248,
the court set June 14, 2019, as the deadline for the pretrial
disclosures under Rule 26(a), which means that is the date to
disclose trial witnesses. Plaintiffs' four new witnesses
were disclosed about a month before the deadline for
disclosing trial witnesses, and two months before the start
of the trial. We see no violation of the court's
don't buy plaintiffs' statement that they disclosed
these trial witness only as a courtesy, with no obligation to
do so. Once plaintiffs decided that they wanted these four to
testify at trial, they were obligated to supplement their
initial disclosures. But we see no evidence-despite
defendants' accusation-that plaintiffs were deceptive for
not disclosing these four witnesses before May 15.
also not persuaded that the disclosures were unfairly
prejudicial. The topics identified in the disclosures (and
further elaborated on in the briefs) are topics that are
central to the case, so they should not be a surprise to
defendants. The primary topic discussed in the parties'
briefs is the effect that Act 43 had on a particular
district, and thus the injury suffered by particular
plaintiffs, a topic that has been addressed by witnesses on
both sides, including experts, as acknowledged by defendants
in their motion. Dkt. 282, at 7 n.3 (citing report of
Assembly's expert regarding Assembly election results).
Defendants have not explained why they believe that they will
not be able to fairly respond to any testimony offered by the
plaintiffs disclosed the four new witnesses, there were two
months remaining before trial. Defendants acknowledge that
have submitted requests for written discovery related to the
new witnesses. Id. at 10, n.5. Defendants do not say
that they have asked to depose the new witnesses, but that
was their choice. There are numerous lawyers representing the
parties on both sides of this case, so defendants can assign
one the task of deposing these witnesses if they want their
depositions before trial. Defendants have been willing to
push a lot of work into July, in hopes that a Supreme Court
decision will moot this case and make it all unnecessary.
That's a reasonable calculated risk, but it undermines
the defendants' claim of unfair prejudice.
motion to strike is denied. Whether the testimony of these
new witnesses is relevant is a question the court will be
able to answer only after we get guidance from the Supreme
ORDERED that defendants' motion to strike plaintiffs'
May 15, 2019 supplemental disclosures, Dkt. 282, is DENIED.
KENNETH F. RIPPLE Circuit Judge
WILLIAM C. GRIESBACH District Judge JAMES D. ...