Palmer v. Cognizant Tech. Sols. Corp.
Palmer v. Cognizant Tech. Sols. Corp.
2023 WL 4155400 (C.D. Cal. 2023)
May 16, 2023

Gee, Dolly M.,  United States District Judge

Exclusion of Witness
Initial Disclosures
Sanctions
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Summary
The Court denied Plaintiffs' motion to call eight Class Members and one former Cognizant executive as witnesses, finding that their initial disclosures were inadequate and that Cognizant was not on notice of the witnesses. The Court also found that Plaintiffs had not satisfactorily explained why they failed to identify these witnesses before the close of discovery, and that reopening discovery would further prejudice Cognizant's trial preparations.
Additional Decisions
Christy Palmer, et al.,
v.
Cognizant Technology Solutions Corporation, et al
Case No. CV 17-6848-DMG (PLAx)
United States District Court, C.D. California
Filed May 16, 2023

Counsel

Amanda E. Burns, Pro Hac Vice, Daniel A. Kotchen, Pro Hac Vice, Lindsey M. Grunert, Pro Hac Vice, Mark A. Hammervold, Pro Hac Vice, Daniel Low, Kotchen and Low LLP, Washington, DC, Navid Soleymani, Navid Yadegar, Yadegar Minoofar and Soleymani LLP, Los Angeles, CA, for Christy Palmer, et al.
Amanda E. Burns, Pro Hac Vice, Daniel A. Kotchen, Lindsey M. Grunert, Mark A. Hammervold, Pro Hac Vice, Daniel Low, Kotchen and Low LLP, Washington, DC, for Christy Palmer, et al.
Amanda E. Burns, Pro Hac Vice, Daniel A. Kotchen, Pro Hac Vice, Lindsey M Grunert, Pro Hac Vice, Mark A. Hammervold, Pro Hac Vice, Daniel Low, Kotchen and Low LLP, Washington, DC, Navid Soleymani, Navid Yadegar, Yadegar Minoofar and Soleymani LLP, Los Angeles, CA, for Christy Palmer, et al.
Amber Dawn McKonly, Elizabeth Aislinn Dooley, Matthew Thomas Sessions, Michele L. Maryott, Gibson, Dunn and Crutcher LLP, Irvine, CA, Karl G. Nelson, Pro Hac Vice, Gibson Dunn and Crutcher LLP, Dallas, TX, Katherine V. A. Smith, Lauren M. Blas, Richard Joseph Doren, Theodore J. Boutrous, Jr., Gibson Dunn and Crutcher LLP, Los Angeles, CA, for Technology Solutions Corporation, et al.
Gee, Dolly M., United States District Judge

Proceedings: IN CHAMBERS—ORDER RE MOTION TO PERMIT TESTIMONY OF UNDISCLOSED WITNESSES [417]

*1 Before the Court is a motion in limine filed by Plaintiffs and the Class to permit nine undisclosed witnesses to testify at trial. [Doc. # 417.] Cognizant filed an Opposition [Doc. # 425], and Plaintiffs filed a Reply [Doc. # 426].[1] For the reasons stated herein, the Court DENIES Plaintiffs' motion.
I. DISCUSSION
Plaintiffs seek to call eight Class Members and one former Cognizant hiring and talent acquisition executive as witnesses.[2] Plaintiffs concede that they did not identify any of these witnesses by name in either their initial disclosures or in any supplemental disclosure prior to the expiration of the general discovery deadline, which was October 15, 2021. See Mot. at 6[3]see also August 19, 2021 Order [Doc. # 157] (setting discovery deadline).
Rule 37(c) prohibits a party from using information or a witness that was not timely disclosed during the discovery process, unless the failure to disclose was substantially justified or harmless. Sanctions are “automatic” and “self-executing,” and “[c]ourts have upheld the use of the sanction even when a litigant's entire cause of action or defense has been precluded.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Still, Plaintiffs argue that these witnesses should be allowed testify for several reasons.
A. Sufficiency of Initial Disclosures
First, Plaintiffs argue that their initial disclosures were sufficient for purposes of Rule 26(a). Plaintiffs' initial disclosures identified, among other named individuals, the following categories of potential witnesses:
Current and former members of departments at Cognizant that have responsibilities for recruiting, hiring, employment, staffing, promotion, benching, termination, and visa practices, including but not limited to Cognizant's Human Resources department, Workforce Management Group, Talent Management Team, Talent Acquisition Group, Global Immigration Team, Global Mobility Team, and Immigration team....
All persons disclosed by Cognizant on its initial disclosures, including any supplemental disclosures.
Kotchen Decl., Ex. 2 [Doc. # 417-3]. Cognizant's initial disclosures included “other individuals with relevant knowledge currently or previously employed by or affiliated with ... Cognizant.” Id., Ex. 1 [Doc. # 417-2].
*2 Although Plaintiffs argue that they “reasonably believed” that this was sufficient, it is not sufficient. Rule 26 requires that parties provide “the name and, if known, the address and telephone number 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.” Fed. R. Civ. P. 26(a)(1)(A)(i). Although in certain circumstances providing the actual name of a witness may not be necessary, that is not the case here. Cf. Torres v. Wells Fargo Bank, N.A., No. CV 17-9305-DMG (RAOx), 2019 WL 7169790, at *11 (C.D. Cal. Sept. 27, 2019) (permitting testimony from witnesses not disclosed by name where the plaintiffs, employees of the defendant, had identified their district managers in their own disclosures without using their names, and the defendant had identified “anyone that Plaintiffs may identify in their initial disclosures,” because both sides knew the precise identities of these witnesses). Further, although both sides made use of similar catch-all phrases in their initial disclosures, both sides also included the names of actual people, and supplemented their disclosures to provide more names, including on the final day of discovery. See Smith Decl. ¶ 9 [Doc. # 425-1] (Plaintiffs supplemented their disclosures twice, on February 18, 2021, and on October 15, 2021). Both sides were clearly aware of their duty to supplement the broad statements in their initial disclosures before the close of discovery. See, e.g., Classical Silk, Inc. v. Dolan Grp., Inc., No. CV 14-09224-AB (MRWx), 2016 WL 7638112, at *8 (C.D. Cal. Mar. 21, 2016) (witnesses not included in supplemental initial disclosures must otherwise be “adequately disclosed” during discovery to avoid Rule 37(c) sanctions) (collecting cases). There is no excuse for failing to disclose the specific names of these witnesses earlier.
B. Witnesses “Made Known To” Cognizant
Plaintiffs also argue that, even if their initial disclosures were inadequate, they were not required to supplement their disclosures because the identities of these witnesses were “made known to [Cognizant] during the discovery process.” See Fed. R. Civ. P. 26(e)(1). Plaintiffs argue that Cognizant, which employed all nine of the witnesses at issue herein and from whose document productions Plaintiffs discovered the witnesses' names, was made aware of all these witnesses during discovery.
All the witnesses at issue herein are mentioned many times in documents produced by Cognizant. See Kotchen Decl. ¶¶ 2-9. But the vast majority of the documents identifying some of these individuals are large spreadsheets that merely mention their names in a long list of other Cognizant employees. Compare Smith Decl. ¶¶ 17 (Martin Lopez), 18 (Nkeng, Odetunde, Mario Lopez), 19 (Ebert), 20 (Pang), with Suppl. Kotchen Decl. [Doc. # 426-1] (arguing only that fewer than 80% of the Ebert documents were large spreadsheets mentioning her name, and that about half are “substantive emails concerning [her] recruiting and hiring responsibilities at Cognizant”).
Plaintiffs also relied on information regarding Hickman, Folkes, and Beam's complaints as part of a summary of representative complaints by potential Class Members filed in support of class certification. [See Doc. ## 255-82, 255-83.] Finally, during discovery, Cognizant produced the following specific information about three of the witnesses:
• Hickman: an EEOC charge (which Cognizant contested before the EEOC), and Cognizant's communication with the EEOC regarding the charge;
• Folkes: a complaint to Cognizant (which Cognizant investigated); and
• Beam: complaints to Cognizant (which Cognizant investigated).
See Kotchen Decl. ¶¶ 2-7 [Doc. # 417-1]. The first Beam complaint was produced on October 6, 2021, and some of Beam's complaints were made during the pendency of this case, and were not produced by Cognizant until January 18, 2022. Id. at ¶¶ 5-6. Counsel for Cognizant reviewed all of these complaints, and Hickman's EEOC charge, for relevance to this action in the course of discovery. See id., Ex. 9 [Doc. # 417-10].
The certified Class in this action has between 2,200 and 2,300 members. See Class Cert. Ord. at 50 [Doc. # 384]. To the extent that Plaintiffs argue that Cognizant was on notice that any of those Class Members, or even any of the large number of individuals who submitted complaints, might have discoverable information, the Court rejects Plaintiffs' argument. As the Ninth Circuit has observed, Rule 26(a) “places the disclosure obligation on a ‘party.’ ” Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 (9th Cir. 2014). The fact that a witness has been identified at some point during the course of discovery does not obviate the parties' affirmative obligations to identify the witnesses on whom they expect to rely. And again, Plaintiffs supplemented their disclosures twice during the discovery period, ultimately identifying 45 individuals, but never identified any of these witnesses. See Smith Decl. ¶ 9.
*3 Even the witnesses who filed complaints were three among many Class Members to do so. The Beam and Folkes complaints were two of more than 200 complaints produced by Cognizant. See id., Ex. 9; Smith Decl. ¶ 8. Hickman's EEOC charge was one of 45. Suppl. Kotchen Decl. ¶ 2. None of these witnesses was mentioned in any deposition or any interrogatory response. Id. at ¶¶ 10-11. Plaintiffs have not explained why Cognizant should have known that these individuals in particular were the ones Plaintiffs would rely on at trial. The Court will not excuse Plaintiffs' noncompliance on this basis.
C. Substantially Justified or Harmless
Finally, Plaintiffs argue that their failure to disclose these witnesses was substantially justified or harmless. But Plaintiffs have not satisfactorily explained why they failed to identify these witnesses before the close of discovery, such that they might be able to demonstrate that their failure was substantially justified.[4] Nor was it harmless: general fact discovery closed more than a year before Plaintiffs first identified these witnesses, on December 1, 2022. See Smith Decl. ¶ 14. Plaintiffs argue that their disclosure still left plenty of time for these witnesses to sit for depositions before trial. But the Court disagrees: the schedule established by the Court (and largely agreed to by the parties, who have stipulated to a large number of continuances and extensions) was set to allow the parties to prepare for trial in an orderly fashion. The Court declines Plaintiffs' invitation to reopen discovery, because, as Cognizant rightly points out, this would further prejudice Cognizant's trial preparations.
II. CONCLUSION
For the foregoing reasons, Plaintiffs' motion in limine to permit the testimony of nine witnesses who were not timely disclosed is DENIED.
IT IS SO ORDERED.

Footnotes

The Court's Case Management Order (“CMO”) prohibits replies on a motion in limine. See CMO at 7 [Doc. # 75]. In the absence of any objection from Cognizant, and because the Court denies Plaintiffs' motion (so there is no harm to Cognizant), the Court nevertheless has considered Plaintiffs' Reply. Still, the parties are reminded to comply with the Court's limitations on replies to motions in limine in future.
The witnesses at issue in this motion are Class Members Patrice Hickman, Latreecia Folkes, David Beam, Kingsley Nkeng, Taiwo Odetunde, Martin Alonso Lopez, Mario Lopez, and Vern Pang, and a former Assistant Vice President at Cognizant, Elizabeth Ebert.
Page citations herein refer to the page numbers inserted by the CM/ECF system.
Plaintiffs, in the footnotes to their motion and Reply, parse the greatest hits of the discovery disputes in this matter. The Court, in making this ruling, does not condone Cognizant's sometimes unreasonably aggressive discovery practices. See, e.g., December 29, 2021 Discovery Ord. [Doc. # 235] (“This Court has been involved in considering a number of discovery disputes in this action and, at every step of the way, it appears that defendants have gone out of their way to interpret their discovery obligations in as narrow a way as possible.”). Still, Cognizant has already been sanctioned for those practices, see id., and Plaintiffs do not argue that those practices were responsible for Plaintiffs' failure to timely disclose their witnesses.