Civil Procedure—have warned litigants not to “‘indulge in gamesmanship with respect to the disclosure obligations’” of Rule 26. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 n.3 (9th Cir. 1994) (quoting Fed. R. Civ. P. 26 advisory committee’s note (1993 amend.)). The record shows that the district court did not abuse its discretion when it concluded that Sweetwater’s attempt to obfuscate the meaning of Rule 26(a) was just this sort of gamesmanship. There was no error in the district court’s conclusion that “the mere mention of a name in a deposition is insufficient to give notice to” Plaintiffs that Sweetwater “intend[ed] to present that person at trial.”
The district court did not abuse its discretion when it concluded that Sweetwater’s failure to comply with Rule 26’s disclosure requirement was neither substantially justified nor harmless. See Fed. R. Civ. P. 37(c)(1). Sweetwater does not argue that its untimely disclosure of these 30 witnesses was substantially justified. Nor was it harmless. Had Sweetwater’s witnesses been allowed to testify at trial, Plaintiffs would have had to depose them—or at least to consider which witnesses were worth deposing—and to prepare to question them at trial. See Yeti by Molly, 259 F.3d at 1107. The record demonstrates that the district court’s conclusion, that reopening discovery before trial would have burdened Plaintiffs and disrupted the court’s and the parties’ schedules, was well within its discretion. The last thing a party or its counsel wants in a hotly contested lawsuit is to make last-minute preparations and decisions on the run. The late disclosures here were not harmless. See Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008).
