*1 Defendants have filed three motions in limine in advance of the trial set for January 18, 2022. ECF Nos. 77, 78, 79. Plaintiffs oppose the motions. ECF Nos. 88, 89, 90. The Court now rules as set forth below.

Motion in Limine No. 1

By this motion, Defendants seek “to exclude evidence and argument regarding several events that arose after Plaintiff filed her lawsuit.” ECF No. 77 at 2. The events are as follows:

As a general matter, evidence of retaliatory conduct of the kind described here is admissible to bolster Plaintiff's claim by showing that Defendants' proffered reasons for the letter of reprimand she received were pretextual and that Alameda County's management had improper motives behind their personnel decisions. Contreras v. UAL Corp., No. C 10-05127 WHA, 2014 WL 1364962, at *2 (N.D. Cal. Apr. 7, 2014); Melendez v. Morrow Cty. Sch. Dist., No. CIV. 07-875-AC, 2009 WL 4015426, at *11 (D. Or. Nov. 19, 2009), opinion clarified, No. CIV. 07-875-AC, 2010 WL 97759 (D. Or. Jan. 8, 2010) (“Accordingly, the court may consider events taking place prior to June 13, 2005, as background evidence in support of claims arising after June 13, 2005, although any such incidents do not themselves give rise to liability.”). The incidents involving Cox fall into this category and are admissible. Defendants complain that Plaintiff failed to disclose these incidents in discovery, but do not identify the specific discovery request or other basis for disclosure. Evidence concerning the incidents involving Carlos Sanchez is also admissible: although Sanchez was not originally disclosed as an individual likely to have discoverable information, Fed. R. Civ. P. 26(a)(1)(A)(i), Plaintiff supplemented her Rule 26 disclosure to add Sanchez shortly after his alleged conduct occurred, ECF No. 98 at 13-14.

The incident involving Cleveland Prince, however, was not timely disclosed by Plaintiff. “Under Rule 26(e), litigants have a continuing duty to supplement their Rule 26(a) disclosures in a timely manner if prior disclosures were incomplete or incorrect and additional or corrective information has not otherwise been made known to their opponent during discovery or in writing.” Steinberg v. Sunbelt Transformer Co., No. CV0704226MMMAJWX, 2008 WL 5429587, at *2 (C.D. Cal. June 6, 2008). Rule 26(e) does not specifically mandate when supplements must be disclosed, only that they must be done “in a timely manner.” “Timing is gauged in relation to the availability of the supplemental information, and not merely based on whether the information was provided after the discovery deadline.” Deutsche Bank Nat'l Tr. Co. v. Seven Hills Master Cmty. Ass'n, No. 215CV01373APGNJK, 2016 WL 1639885, at *2 (D. Nev. Apr. 25, 2016) (citation and quotation omitted). “The parties are expected to supplement and/or correct their disclosures promptly when required under that Rule, without the need for a request from opposing counsel or an order from the Court.” Jones v. Travelers Cas. Ins. Co. of Am., 304 F.R.D. 677, 679 (N.D. Cal. 2015). HR Manager Cleveland Prince's finding that Plaintiff violated County policy took place prior to close of discovery but was not disclosed until October 16, 2019, after the close of discovery. See ECF No. 37-2 ¶¶ 56-60. That disclosure was not made “in a timely manner.”

*2 “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). This exclusion sanction is “ ‘intended to put teeth into the mandatory ... disclosure requirements’ of Rule 26(a) and (e).” Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 861 (9th Cir. 2014) (quoting 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2289.1 (3d ed.2014)). The Ninth Circuit “give[s] particularly wide latitude to the [district court's] discretion to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).

Plaintiff has failed to demonstrate that her late disclosure concerning Cleveland Prince was substantially justified or harmless. Accordingly, Defendants' motion to exclude is granted as to evidence concerning him and Supervisor Anissa Basoco-Villareal. See n. 1, supra. In all other respects, Defendants' motion is denied.

Defendants' Motion in Limine No. 2

Defendants' Motion in Limine No. 2 seeks an order excluding evidence and argument that Plaintiff was denied a promotion in retaliation for her April 22, 2017 complaint against Defendant Cox. ECF No. 78.

The Court previously considered this evidence in deciding Defendants' motion for summary judgment. ECF Nos. 34, 43. In her First Amended Complaint, Plaintiff alleged that Cox's failure to promote her constituted an adverse employment action in retaliation for protected speech. ECF No. 7 (First Amended Complaint) ¶ 55. After considering the record, the Court concluded that Plaintiff had “fail[ed] to provide competent evidence showing that her April 22, 2017 complaint was a substantial or motivating factor in Cox denying her a promotion,” and granted summary judgment on that claim. ECF No. 43 at 16, 17.

In light of the Court's prior ruling that the events were unconnected, the Court concludes that the evidence is not relevant and that permitting Plaintiff to allege at trial that she was denied a promotion in retaliation for her April 2017 complaint would be unfairly prejudicial to Defendants. Fed. R. Evid. 402, 403. The Court therefore grants Defendants' motion in limine.

Defendants' Motion In Limine No. 3

By this motion, Defendants seek an order excluding evidence and argument regarding allegations of alleged discrimination and retaliation that third parties Kristin Spanos and Don Edwards made against Defendants prior to the events described in the complaint. ECF No. 79. Plaintiff opposes the motion on the ground that “[p]rior discriminatory conduct is ... supported under Rule 404(b) to demonstrate a defendant's motive or intent.” ECF No. 89 at 3.

Rule 404(b) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). However, such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).

Plaintiff correctly notes that given the need to prove intent by circumstantial evidence in discrimination cases, “courts have found that the probative value of prior acts evidence is especially great.” Burke v. City of Santa Monica, No. CV 09-02259 MMM (PLAx), 2011 U.S. Dist. LEXIS 165475, at *45 (C.D. Cal. Jan. 10, 2011). Thus, “an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group.” Heyne v. Caruso, 69 F.3d 1475, 1479 (9th Cir. 1995).

*3 This line of authority does not help Plaintiff, however. First, Plaintiff does not claim race discrimination, so allegedly discriminatory intent by Defendants is not at issue. Second, neither Spanos's nor Edwards's circumstances were similar to Plaintiff's. Spanos alleged that Cox discriminated against Spanos on the basis of her race. ECF No. 98 at 23. As just stated, Plaintiff here does not allege race discrimination. Edwards made claims of retaliation, but Plaintiff does not allege that circumstances of the alleged retaliation against Edwards were in any way similar to her own situation. See id. at 22. The Ninth Circuit has held that “other act” evidence is admissible under Rule 404(b) if the following test is satisfied: “(1) there must be sufficient proof for the jury to find that the defendant committed the other act; (2) the other act must not be too remote in time; (3) the other act must be introduced to prove a material issue in the case; and (4) the other act must, in some cases, be similar to the offense charged.” Duran v. City of Maywood, 221 F.3d 1127, 1132-33 (9th Cir. 2000).[2] Given the absence of similarity here, the evidence concerning Spanos and Edwards is not admissible.

The Court also excludes this evidence on the independent ground that introducing and rebutting the evidence would consume an undue amount of time relative to its probative value. Fed. R. Evid. 403.

Defendants' motion is granted.

IT IS SO ORDERED.