Rule 37(c)(1) is “intended to put teeth into the mandatory … disclosure requirements” of Rule 26(a) and (e). 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2289.1 (3d ed. 2014).
The district court excluded 38 Sweetwater witnesses as untimely disclosed, in violation of Rule 26(a) and (e), in part because it found “no reason why any of the 38 witnesses were not disclosed to [P]laintiffs either initially or by timely supplementation.” The district court concluded that “the mere mention of a name in a deposition is insufficient” to notify Plaintiffs that Sweetwater “intend[s] to present that person at trial,” and that to “suggest otherwise flies in the face of the requirements of Rule 26.” And the district court reasoned that “[w]aiting until long after the close of discovery and on the eve of trial to disclose allegedly relevant and non-cumulative witnesses is harmful and without substantial justification.”
A “district court has wide discretion in controlling discovery.” Jeff D., 643 F.3d at 289 (internal quotation marks omitted). And, as we noted earlier, that discretion is “particularly wide” when it comes to excluding witnesses under Rule 37(c)(1). Yeti by Molly, 259 F.3d at 1106.
Sweetwater argues that exclusion of 30 of its 38 witnesses was an abuse of discretion because (1) “Plaintiffs were made aware” of those witnesses during discovery—specifically, during Plaintiffs’ depositions of other Sweetwater witnesses, and (2) any violation of Rule 26 “was harmless to Plaintiffs.” Of the remaining eight witnesses, Sweetwater contends that untimely disclosure was both justified because those witnesses were not employed at Castle Park before the discovery cutoff date, and harmless because they were
