3 Things to Know About Affirmative Disclosures

Parties are required to affirmatively disclose certain information per Rule 26(a)(1) or your jurisdiction’s local equivalent.  Amador v. Bully’s Sports Bar & Grill concerned a wage and hour claim.[1]  It noted three common problems that may impact your client’s disclosures.  Factually, the defendant disclosed 19 new witnesses two days before discovery closed.  The plaintiffs moved to strike the disclosure and the witnesses.



Catch-all disclosures are worthless.

The defendant first argued the 19 new witnesses were covered by the catch-all disclosure contained in the plaintiffs’ first disclosure.

  1. Every person who at any time during the relevant class period (three years prior to the date the complaint was filed) worked for Defendants, whether as a salaried Kitchen Manager, Assistant Kitchen Manager, salaried Cook, salaried General Manager, salaried Assistant General Manager or hourly paid employee.
  2. Every salaried Kitchen Manager, Assistant Kitchen Manager and salaried Cook who worked for Defendants during the relevant class period. These current and former employees are the most knowledgeable witnesses to testify about the tasks they performed, how much time they spent performing such tasks and the hours they worked.
  3. Plaintiffs’ supervisors as well as the supervisors of current and former salaried Kitchen Managers, Assistant Kitchen Managers and salaried Cooks, including district and/or regional managers. These witnesses will have knowledge about Defendants’ policies and practices and expectations regarding Defendants’ sports bar locations. The names and contact information of these witnesses are exclusively in the custody and control of Defendants.
  4. All Witnesses identified by Defendants — Additional Witnesses with knowledge of Defendants’ operating policies and procedures.

That argument failed first because defendants had not relied on this description in the case, instead identifying each witness by name, and best known contact information. Second, the court cited Benjamin v. B&H Education, Inc. where it “characterized as ‘ridiculous’ the notion that a ‘catch-all reference’ to current and former student-employees at a beauty school allowed plaintiffs to submit declarations of undisclosed witnesses in support of a summary judgment motion.”[2]

An affirmative disclosure is required.

Most of the 19 new witnesses’ names had been referenced in written discovery responses and depositions, so the defendant argued this put plaintiffs on notice that they may be named as witnesses.  That argument also did not work.  Benjamin v. B&H Education, Inc., concluded merely mentioning a witness’s first name in response to interrogatories was not enough to alert defendants that this person would be called as a trial witness. Lujan v. Cabana Mgmt., Inc. concluded merely mentioning names in a deposition or interrogatory response is insufficient to satisfy Rule 26(a)(1)(A)(i).[3]  Kullman v. N.Y. barred plaintiffs from calling certain witnesses even though the name had been mentioned in discovery and plaintiffs’ counsel issued, and then withdrew, a notice of deposition for that witness.[4]

An untimely disclosure may be subject to Rule 37(c)(1).

An affirmative disclosure can be struck per Rule 37(c)(1) under the right circumstances. Here, the disclosure was neither substantially justified nor harmless.  “Defendants well knew that the disclosure of nineteen new fact witnesses two days before the discovery cut-off meant that plaintiffs would be prevented from taking any depositions absent an extension of discovery.”  The disclosure was struck.[5]

[1] No. 3:15-CV-0022, 2017 U.S. Dist. LEXIS 21485 (D. Nev. Feb. 15, 2017).
[2] Id. at n.2 (citing Benjamin v. B&H Education, Inc., 2015 U.S. Dist. LEXIS 144351, 2015 WL 6164891 (N.D. Cal. Oct. 16, 2015).
[3] 284 F.R.D 50, 72-73 (E.D.N.Y. 2012).
[4] No. 07-CV-716, 2009 U.S. Dist. LEXIS 51271, 2009 WL 1562840 (N.D.N.Y. May 20, 2009).
[5] There is a catch.  For those practicing in Nevada’s state courts, FRCP 26(a)(1)(A) is not co-extensive with NRCP 16.1(a)(1).  The federal rule contains a key difference.  It applies only to those witnesses “that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.”  This is much narrower than the state equivalent.