*1 The matter before the Court is Plaintiff Call Delivery System. LLC's (“CDS”) Motion in Limine to preclude witnesses who Defendants failed to properly identify dining discovery (the “Motion”). (Dkt. 309.) Defendants filed an Opposition to the Motion.

Plaintiff moves to preclude Defendants from calling six witnesses at trial on the basis that Defendants failed to properly disclose them dining discovery. The six witnesses are Jason Ritter. Mark Bilton-Smith. Alex Eastwood. Kevin Stouwie. Mike Ray. and John Pavone. Plaintiff states that Defendants did not disclose the witnesses in their Rule 26(a) disclosures. Additionally, Defendants did not include these witnesses in response to interrogatories which asked Defendants to “[i]dentify each and every person whom You believe to have knowledge of any of the allegations set forth in the Complaint and/or the Counterclaims...” Plaintiff states that because Defendants did not identify the witnesses dining discovery, none of them were deposed nor testified during the first trial. Plaintiff contends that allowing these witnesses to testify would “reward Defendants for their failure to comply with this Court's clear and unambiguous discovery rules” and would “create a trial by ambush” to the extent that Plaintiff and its counsel would have “no way of knowing what any of the Proposed Witnesses would say on the witness stand.” Finally, Plaintiff argues that allowing these witnesses to testify dining trial would result in unfair prejudice to Plaintiff.

In opposition, Defendants argue that each of the witnesses was fully known to Plaintiff as early as May 22, 2020, as they were listed among three others in a declaration by Scott Richards, the then CEO of Plaintiff. The document, which has been admitted into evidence pursuant to the Pretrial Conference Order (Dkt. 301) and is identified as Exhibit 7, is a spreadsheet identifying suppliers that worked with Plaintiff and are numbered 1-9. (See Dkt. 283.) Defendants note that three of the nine suppliers have had their depositions taken in this matter and testified at the first trial in 2022.

Fed. R. Civ. P. 26(a)(1)(i) states that a party must provide to the other parties in an action, “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.” Fed. R. Civ. P. 26(e) imposes a duty to timely supplement disclosures made under Rule 26(a) that become incomplete or incorrect. Supplementation becomes necessary when “(A) ... the [disclosing] party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the Court.” Fed. R. Civ. P 26(e).

“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a)[(e)] that is not properly disclosed.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see Fed. R. Civ. P. 37(c)(1). Additionally, the district court may exercise its discretion and enjoys wide latitude in determining if exclusionary sanctions should issue under Rule 37(c)(1). Id. (citations omitted.)“[I]t is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with [Rule 26] was either justified or harmless ....” Id. at 1107 (quoting Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001)). In analyzing whether Rule 26 non-compliance was substantially justified or harmless, courts consider the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the non-disclosing party's explanation for it[s] failure to disclose the evidence.” S.F. Baykeeper v. W. Bay Sanitary Dist., 791 F. Supp. 2d 719, 733 (N.D. Cal. 2011) (quoting Dey, LP v. Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D. Cal. 2005)).

*2 Plaintiff seeks to exclude six witnesses who were not disclosed during discovery, and who have neither been deposed nor testified during the first trial. Defendants argue that none of the factors weigh in favor of excluding the witnesses because their identities and “the fact that they will testify on the topic of whether Defendant did or did not steal them from Plaintiff” have been known by all parties for over two years. While Defendants' non-compliance with Rule 26 for three years since its initial disclosures weighs in favor of excluding the witnesses, their identities are not a complete surprise to Plaintiff as they were identified by Plaintiff early on in this litigation, and it appears that several admitted exhibits are from some of these witnesses. (See Exhibits 782, 783,784, 785.) However, it appears that Defendants can call the three witnesses who have been deposed and testified during the first trial for the very purpose for which Defendants seek to call these six witnesses. This is supported by the fact that Defendants have listed these six witnesses as those who they “may call if the need arises.” Accordingly, the Court GRANTS Plaintiff's Motion to preclude Jason Ritter, Mark Bilton-Smith, Alex Eastwood, Kevin Stouwie, Mike Ray, and John Pavone from testifying at trial. If there is nonduplicative testimony from any of these six witnesses, Defendants may make a proffer to the Court outside the presence of the jury regarding what the expected testimony will be.