*1 Before the Court is Defendants, Counter-Claimants, and Cross-Defendants Labrador Entertainment, Inc. d/b/a Spider Cues Music Library, Labrador Entertainment, LLC, Noel Palmer Webb, and Webb Family Trust (collectively, the “Labrador Defendants”)'s Application for Issuance of Letters Rogatory for Foreign Subpoena for Attendance of Witness at Trial (the “Application”), filed on August 5, 2022. (Docket No. 269). Plaintiff and Counter-Defendant Beatbox Music Pty, Ltd. filed an Opposition on August 8, 2022. (Docket No. 270). The Labrador Defendants filed a Reply on August 15, 2022. (Docket No. 271).

The Court has read and considered the Application and held a hearing on August 29, 2022.

For the reasons discussed below, the Application is GRANTED. Although there is no justification for the Labrador Defendants' failure to disclose the witnesses, Plaintiff has not shown that the failure is not harmless, and the scope of the discovery sought appears appropriate.

I. BACKGROUND

The Court has previously summarized the background of this case in connection with the Court's March 30, 2022 Order Re: Motions for Summary Judgment; Motion to Amend (the “Summary Judgment Order”). (See Docket No. 256). The Court incorporates by reference the factual background set forth in the Summary Judgment Order.

II. DISCUSSION

The Application seeks the issuance of letters rogatory pursuant to 28 U.S.C. § 1781(b)(2) in order to compel testimony from two witnesses residing in New Zealand. (See Application at 3). The Labrador Defendants argue that the two witnesses are necessary to provide testimony as to whether Plaintiff had actual knowledge of potential copyright concerns in New Zealand, as the witnesses were involved in the production of the New Zealand National Party commercial at issue in the New Zealand judicial proceedings. (See id. at 4). The Application states that the witnesses are not located in California or the United States, and thus cannot be compelled to testify directly, and instead letters rogatory must issue. (See id. at 5).

Plaintiff argues that the Labrador Defendants are precluded from utilizing either witness because neither was properly disclosed under Rules 26 and 37, and the Application is not the proper method to seek to correct the failure to properly disclose. (See Opposition at 2). In particular, Plaintiff argues that the witnesses were not disclosed until April 9, 2022, nine months after the close of discovery and in an untimely manner given the Labrador Defendants' being on notice of the witnesses since 2014. (See id. at 2–4). Plaintiff contends that accordingly, the witnesses must be excluded pursuant to Rule 37(c)(1) given prejudice to Plaintiff and a lack of substantial justification for the lack of timeliness. (See id. at 4–6). Finally, Plaintiff argues the Application is an end-run around the discovery rules. (See id. at 6).

In the Reply, the Labrador Defendants argue there is no basis to exclude the witnesses given they will likely be called only for impeachment, and they are willing to reopen discovery for a fact deposition, as necessary. (See Reply at 3). The Reply further argues that Plaintiff was equally aware of the identities of these witnesses, making any failure to disclose harmless. (See id. at 4–7). Finally, the Labrador Defendants contend that there is no basis for Plaintiff to oppose the Application, and that the proper avenue to dispute the witnesses is a motion to quash. (See id. at 7).

*2 At the hearing, the Labrador Defendants clarified that their proposed procedure for the testimony is to provide a live video feed of the witnesses during trial, but that they will not be able to provide confirmation until discussion with a judge from New Zealand.

A. Timeliness

“The Federal Rules of Civil Procedure require parties to provide to other parties ‘the name ... 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.’ ” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 861 (9th Cir. 2014) (quoting Fed. R. Civ. P. 26(a)(1)(A)(i)) (modifications in original). After a party has made a disclosure pursuant to Rule 26(a), that disclosure must be supplemented or corrected in a timely manner if the party learns that the disclosure is materially incomplete or incorrect, if the information that corrects the disclosure was not otherwise provided during discovery or by writing. See Fed. R. Civ. P. Rule 26(e).

Rule 37(c)(1) permits the exclusion of evidence not properly identified in compliance with Rule 26(a) or Rule 26(e). See Fed. R. Civ. P. Rule 37(c)(1). “[E]xclusion of evidence under Rule 37(c)(1) is not appropriate if the ‘failure to disclose the required information is substantially justified or harmless.’ ” Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1191–92 (9th Cir. 2022) (quoting Fed. R. Civ. P. Rule 37(c)(1)). In consideration of whether a failure to disclose is either substantially justified or harmless, factors to consider include prejudice or surprise to the opposing party and whether that party can cure that prejudice, whether trial will likely be disrupted, and any bad faith or willfulness in failing to disclose the evidence in a timely manner. See id. at 1192 (citing Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 242 (D. Nev. 2017)).

The Labrador Defendants do not appear to dispute that the witnesses were not disclosed in a timely or appropriate manner. (See Reply at 3–4). Rule 26(a)(1)(A) does not require the disclosure of witnesses to be used “solely for impeachment,” and the Labrador Defendants indicate their intent to call the witnesses for this purpose only – as is well within their right. However, to the extent the Labrador Defendant may wish to call these witnesses for more than just impeachment purposes, the Court must consider the propriety of their disclosure.

The Court therefore considers whether the failure to disclose the witnesses was either substantially justified or harmless. The Labrador Defendants do not offer argument on substantial justification for the failure to disclose, and given that both parties were apparently well aware of the named individuals for several years, it is unlikely there is any substantial justification for the Labrador Defendants' failure to disclose the potential witnesses. (See id. at 4–5). The Court therefore only considers whether the failure was harmless.

Plaintiff contends the failure to disclose was not harmless because the Labrador Defendants seek to admit evidence for their defense, have been noncompliant in the past, and have generally failed to comply with discovery rules. (See Opposition at 4). The Labrador Defendants contend the failure to disclose was harmless because of the obvious nature of the witnesses, that there is ample time before trial for the witnesses to be deposed, that trial will not be disrupted given the short length of witness testimony, and there is no bad faith or willfulness by the Labrador Defendants. (See Reply at 5).

*3 At the hearing, Plaintiff argued that the Labrador Defendants had made no showing of diligence justifying granting the Motion, and that Plaintiff is prejudiced by the late disclosure because of the impact on trial preparation. Plaintiff also asserted that the witnesses had no relevance because their testimony is based on the false premise of Plaintiff's responsibilities in New Zealand under the relevant agreements. Plaintiff conceded that the testimony could be appropriate for impeachment only, but argued that there was no way for Plaintiff to know if the testimony was indeed suitable given the lack of notice and formal discovery concerning the witnesses. The Labrador Defendants argued that there was no surprise to Plaintiff because the witnesses and documents were involved in the New Zealand litigation.

There is no indication that the Labrador Defendants' failure to disclose these witnesses will harm Plaintiff. Though Plaintiff alleges prejudice because of the relevance of the witnesses to defenses and a history of noncompliance with the discovery rules, Plaintiff provides no specific examples of such conduct and offers no other indication of how it would be harmed. As both witnesses were involved or connected with in the underlying New Zealand litigation, it should be relatively unsurprising that the Labrador Defendants seek to call these witnesses. See, e.g., Andrews v. Plains All Am. Pipeline, L.P., CV 15-4113-PSG (JEMx), 2021 WL 5279609, at *3 (C.D. Cal. Nov. 5, 2021) (citing Davis v. Davison Hotel Co., LLC, CV 12-6327-CAS (AJWx), 2013 WL 3337669, at *2–*3 (C.D. Cal. July 1, 2013) (failure to properly disclose harmless because no grounds for surprise at addition of witnesses); cf. Liberty Ins., 41 F.4th at 1192 (unsurprising that sole witness central to subject matter of proceeding would testify on certain subjects). There are still some months left before trial, which leaves the opportunity to cure any actual prejudice by permitting depositions, as the Labrador Defendants suggest, and which other district courts have noted is a proper remedy. See, e.g., Davis, 2013 WL 3337669, at *3 (no “showing of surprise, prejudice, or other unfairness” justifying excluding testimony, and “proper remedy for late disclosure would be to allow plaintiff to take the depositions of these witnesses”).

Accordingly, while there is no justification for the Labrador Defendants' failure to timely disclose the two witnesses, the Court must conclude that in the absence of any harm to Plaintiff that cannot be cured, there is no basis to exclude the witnesses.

B. Letters Rogatory

Crocs, Inc. v. La Modish Boutique, CV 21-5641-SVW (KKx), 2021 WL 5933147, at *2 (C.D. Cal. Nov. 12, 2021) (citing Barnes & Nobles, Inc. v. LSI Corp., No. 11-2709, 2012 WL 1808849, at *1 (N.D. Cal. May 17, 2012)).

“A federal district court has the inherent authority to issue a letter rogatory,” and whether to so do is a matter at the Court's discretion. Id. (citing U.S. v. Staples, 256 F.2d 290, 293 (9th Cir. 1958)). Whether to issue the letter requires consideration of Rule 28(b). See id. (citing Asis Internet Servs. v. Optin Glob., Inc., No. C-05-5124 JCS, 2007 WL 1880369, at *3 (N.D. Cal. June 29, 2007).

As described, the Application seeks testimony on whether Plaintiff had knowledge of any potential risk of copyright violations, as well as authentication of related documents. (See Application at 4). The described scope appears proper under Rule 26(b)(1).

Accordingly, the Application is GRANTED. As set forth above, Plaintiff must be given an opportunity to depose the witnesses, presuming there is testimony from the witnesses, and the Labrador Defendants are therefore ORDERED to submit revised proposed letters reflecting this requirement no later than September 7, 2022.

*4 IT IS SO ORDERED.