*1 This matter is before the Court on the following motions: (1) Defendant's Motion to Strike Plaintiff's Second Supplemental Rule 26(a) Disclosures and for Sanctions, and (2) Plaintiff's Unopposed Motion for Extension of Time Within Which the Parties May Conduct Fact Discovery. For the reasons that follow, Defendant's Motion to Strike [Doc. No. 121] is granted in part and denied in part, and Plaintiff's Unopposed Motion for Extension [Doc. No. 118] is granted.

On November 19, 2014, the cutoff of fact discovery in this case was extended to March 21, 2015. Plaintiff submitted its supplemental Federal Rule of Civil Procedure (“Rule”) 26(a) disclosures on March 10, 2015, eleven days before the cutoff. These disclosures identified thirteen witnesses that Plaintiff claims never needed to be disclosed because they are to be used solely for impeachment purposes, but the names were nevertheless disclosed in an abundance of caution.

According to Plaintiff, the newly disclosed witnesses’ testimony will be necessary only in the event that Defendant's principal denies intentional infringement of Plaintiff's mark. Pursuant to Rule 26(a), a party need not disclose the names of individuals likely to have discoverable information if “the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(i). “Impeachment can be effected in a number of ways, including contradiction, which involves presenting evidence that the substance of a witness's testimony is not to be believed.” United States v. Boswell, 772 F.3d 469, 476 (7th Cir. 2014). But the testimony of a percipient witness is not considered solely impeaching for purposes of Rule 26(a). The Seventh Circuit has held that witnesses whose testimony supports a party's case in chief should be disclosed even if they are nominally only to be used for impeachment. See Wilson v. AM General Corp., 167 F.3d 1114, 1122 (7th Cir. 1999) (holding that impeachment witnesses should have been disclosed because the substance of their testimony “was part of [the defendant's] primary line of defense”).

In many (if not most) cases, a party's fact witnesses offer testimony directly contrary to that of its opponent's witnesses. Under Plaintiff's theory, a party could withhold the identity of important fact witnesses under the guise of “impeachment,” thus swallowing the discovery rules completely. As one treatise explains:

8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Fed. Practice & Procedure § 2015, at 299 (3d ed. 2010).

*2 In this case, the testimony at issue may in fact contradict that of Defendant's principal,[1] but it also is substantive evidence supporting Plaintiff's primary claim – that Defendant knowingly and intentionally copied its mark. Plaintiff admits that the testimony will be introduced “for the purpose of demonstrating that Defendant's principal intentionally copied Plaintiff's medical scrubs and catalog,” (Pl.’s Supplemental Mem. at 3), not merely to impeach the credibility of Defendant's principal. Accordingly, the witnesses were required to be disclosed pursuant to Rule 26(a)(1).

Having determined that the witnesses needed to be disclosed, the Court now addresses the timing of Plaintiff's disclosures, which occurred eleven days before the cutoff of fact discovery. According to the Local Rules of this district governing pretrial procedure: “[D]iscovery must be completed before the discovery closing date. Discovery requested before the discovery closing date, but not scheduled for completion before the discovery closing date, does not comply with this order.” N.D. Ill. L.R. 16.1(4) (emphasis in original); see Sofo v. Pan-Am. Life Ins. Co., 13 F.3d 239, 241-42 (7th Cir. 1994) (upholding district court's grant of protective order where plaintiff failed to serve requests more than thirty days prior to the discovery close); Finwall v. City of Chi., 239 F.R.D. 494, 498-99 (N.D. Ill. 2006); In re Sulfuric Acid Antitrust Litig., 230 F.R.D. 527, 531 (N.D. Ill. 2005).

Plaintiff's disclosures necessarily seek an extension of discovery, because even crediting the optimistic timeline proposed by Walrus's counsel, (i.e., one- to two-hour depositions per witness), they were served too late to complete discovery by the cutoff date of March 21. A request for an extension of a discovery deadline made before the deadline's expiration is granted only with a convincing showing of “good cause.” Fed. R. Civ. P. 16(b)(4); see Flowers v. Wray, 511 Fed. Appx. 576, 578-59 (7th Cir. 2013) (unpublished decision). Upon questioning by the Court, Plaintiff offered no real explanation as to why the disclosures came so late in the litigation. As Defendant points out in the motion, Plaintiff was on notice nearly a year ago, in April 2014, that the Court would not look kindly on latter-day witness disclosures. Plaintiff notably has failed to indicate that any of the names were only recently discovered, despite its diligence. At the hearing, Plaintiff tried to explain that its understanding of the proposed witnesses’ knowledge was “evolving,” but at no time between April 2014 and March 11, 2015 did Plaintiff suggest to Defendant or the Court that additional witnesses were even being considered. Plaintiff has therefore not established good cause to extend the discovery deadline to allow depositions of the thirteen proposed witnesses to go forward.

However, the parties have separately agreed that discovery should be extended by ninety days, in order to complete discovery that is already underway. In an abundance of caution, the Court will allow Plaintiff to include in that ninety-day extension period the depositions of the four witnesses Walrus discovered in Defendant's own document production. During the hearing, defense counsel was unable to deny that the names were in fact on emails Defendant had produced, and therefore Peaches cannot claim to be entirely unaware of the witnesses’ possible knowledge of relevant facts.[2]

*3 For the foregoing reasons, Defendant's Motion to Strike Plaintiff's Second Supplemental Rule 26(a) Disclosures and for Sanctions [Doc. No. 121] is granted in part and denied in part, and Plaintiff's Unopposed Motion for Extension of Time Within Which the Parties May Conduct Fact Discovery [Doc. No. 118] is granted. The Court emphasizes that the extension of time is granted solely for the purpose of completing discovery previously issued and to take the four depositions described in this order. No new discovery requests may be issued.

SO ORDERED.