The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Glen J Dunn, Jr.,
Plaintiff,
No. 20 CV 5645
v.
Magistrate Judge Jeffrey T. Gilbert
Jeffrey G Brown,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Jeffrey G. Brown’s Motion to Strike and Bar Certain Witnesses
(“Motion”) [ECF 59] is granted in part and denied without prejudice in part. The
Motion is granted pursuant to Federal Rule of Civil Procedure 37(c)(1)(C) to the
extent the Court will strike Plaintiff Glen J. Dunn, Jr.’s untimely Federal Rule of
Civil Procedure 26(a)(1) disclosure of three additional witnesses – Dariusz Las, Remzi
Jaos, and Jayne Dudek – who were disclosed a week after the close of non-medical
fact discovery in this case. The Motion is denied without prejudice to the extent of
Brown’s request that the witnesses be barred from testifying at trial. I defer to the
trial judge whether there is any circumstance under which any of these witnesses can
testify at trial given that they were not timely disclosed pursuant to Rule 26(a)(1) or
Rule 26(e), and Brown did not have an opportunity to depose them or conduct any
discovery relating to them before the close of fact discovery. I recommend, however,
that none of these witnesses be allowed to testify at trial in Defendant’s case in chief
for the reasons discussed in this Memorandum Opinion and Order consistent with
Rule 37(c)(1).
On June 25, 2021, the Court entered an order closing non-medical fact
discovery in this case on August 11, 2021 “without prejudice to a request for a short
further extension for any non-medical fact witnesses who cannot be deposed before
that date.” [ECF 51]. The August 11, 2021, deadline passed without Defendant
requesting more time to depose any previously disclosed non-medical fact witnesses.
The parties are now engaged in discovery of their respective medical treaters. At the
parties’ request, the Court has extended the close date for this medical fact discovery
three times since June 2021, and it is now scheduled to close on January 14, 2022.
[ECF 56, 68, 74].
One week after the deadline to complete non-medical fact discovery, Brown
served a supplemental Rule 26(a)(1) disclosure identifying three additional non-
medical fact witnesses: Dariusz Las, Remzi Jaos, and Jayne Dudek. See Plaintiff’s
Rule 26(a)(1) Supplemental Disclosures, attached as Exhibit E to Brown’s Motion
[ECF 59]. Las is described as “[o]ne of Glenn’s closest personal friends.” Id. Jaos is
described as a client, personal friend, and occasional golfing partner of Dunn’s. Id.
Dudek is described as Dunn’s current girlfriend. Id. In his Response to Brown’s
Motion [ECF 61], Dunn says he began dating Ms. Dudek in March 2021. [ECF 61], at
3. All these witnesses were identified generically as people with “knowledge and
information surrounding the injuries and damages sustained by Plaintiff.” Motion
[ECF 59], at Exhibit E.
The motorcycle accident that gave rise to this lawsuit occurred on August 22,
2018. [ECF 1]. Dunn made his initial Rule 26(a)(1) disclosures on November 20, 2020.
Motion [ECF 59], at 2, citing Exhibit A. He answered Brown’s interrogatories on
March 12, 2021, without disclosing any additional witnesses. Id., citing Exhibit B.
When Dunn identified an additional fact witness and an additional treater during his
deposition on April 29, 2021, Brown repeatedly requested that he supplement his
Rule 26(a)(1) disclosures before the close of non-medical fact discovery to account for
these new witnesses. Id., at 3, citing Exhibit C. Dunn did not do so. Instead, on
August 18, 2021, a week after the deadline for completing non-medical fact discovery,
Dunn purported to supplement his prior Rule 26(a)(1) disclosures with the names of
the two additional witnesses he mentioned during his deposition four months earlier
plus the three additional fact witnesses who are the subject of this Motion.1
The applicable law here is familiar and clear. Federal Rule of Civil Procedure
26(e) requires a party, in relevant part, to supplement his Rule 26(a)(1) disclosure “in
a timely manner if the party learns that in some material respect the disclosure . . .
is incomplete or incorrect.” FED.R.CIV.P. 26(e). Rule 37(c)(1) says, again in relevant
part, “[i]f 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 . . . at trial, unless the failure was substantially justified or harmless.”
FED.R.CIV.P. 37(c)(1). Application of the law to the facts of this case yields the firm
1 Brown is not moving to strike or bar the two witnesses identified during Dunn’s deposition.
One of those witnesses has been deposed and the other is scheduled for deposition in early
January 2022. Motion [ECF 59], at 3; Joint Status Report [ECF 75], at 1.
conclusion that Dunn’s late witness disclosures are untimely, they are not
substantially justified nor harmless, and must be stricken pursuant to Rule
37(c)(1)(C).
Dunn’s attempt to supplement his Rule 26(a)(1) disclosures a week after the
non-medical fact discovery close date clearly was not timely as required by Rule 26(e).
He likely has known two of those witnesses (Las and Jaos), whom he describes as
personal friends, for years. He could and should have disclosed them as witnesses
“likely to have discoverable information . . . that the disclosing party may use to
support his claims or defenses” within the meaning of Rule 26(a)(1) well before he did
so, and particularly if he expected them to testify at trial about their “knowledge and
information surrounding the injuries and damages sustained by Plaintiff.” Motion
[ECF 59], at Exhibit E. The third witness, Dunn’s current girlfriend Ms. Dudek,
whom he has been dating since March 2021, or five months before the expiration of
the non-medical fact discovery deadline, also could and should have been disclosed
much sooner than she was disclosed and well before that deadline.
Even if Dunn only expected these witnesses to testify about the impact on him
of his July 14, 2021 surgery, as he now professes but clearly contrary to what he said
in his supplemental disclosures, those supplemental disclosures served on August 18,
2021, more than a month after the surgery, are untimely. These witnesses should
have been disclosed for that purpose before the August 11, 2021, non-medical fact
discovery close date. Brown expressly requested that Dunn supplement as necessary
his Rule 26(a) disclosures in an email on July 21, 2021, a week after Dunn’s surgery.
Motion [ECF 59], at Exhibit C. There can be no excuse that Dunn was unaware of
the approaching discovery deadline or his obligation to update his Rule 26(a)
disclosures in accordance with Rule 26(e). In fact, in a joint status report filed on
June 15, 2021, a month before his surgery, Dunn stated that he “intends to
supplement his Rule 26(a)(1) disclosures in the coming weeks to disclose additional
witnesses in this matter. [ECF 50].2
Dunn’s untimely disclosures are neither substantially justified nor harmless
within the meaning of Rule 37(c)(1). Dunn does not really attempt to justify the fact
that he failed to disclose these additional witnesses until after the non-medical fact
discovery cut-off date. It is undisputed the disclosures were late. The additional
witnesses were well known to Dunn before the cut-off date. Dunn, simply put, blew
the deadline. Dunn rather feebly notes that when the Court extended the non-
medical fact discovery close date to August 11, 2021, in an order entered on June 25,
2021 [ECF 51], it said the August 11 date was “without prejudice to a request for a
short further extension for any non-medical fact witnesses who cannot be deposed
2 In his Response to Brown’s Motion, Dunn says that the primary reason he identified the
three witnesses who are the subject of Brown’s Motion is so they can testify about the impact
upon him of the surgery he underwent on July 14, 2021. Response [ECF 61], at 3. That
seems to be a shift in position, to put it mildly. Dunn’s supplemental Rule 26(a)(1) disclosures
are not so limited by their terms. Rather, the stated scope of the witnesses’ testimony in
those disclosures is said to be their “knowledge and information surrounding the injuries and
damages sustained by Plaintiff.” Motion [ECF 59], at Exhibit E. Moreover, even if Dunn had
limited his supplemental disclosures in the way he characterizes them in his Response brief,
the surgery occurred almost a month before the deadline for the close of non-medical fact
discovery in this case and more than a month before Dunn purported to supplement his
disclosures. Dunn had plenty of time to disclose these witnesses before the non-medical fact
discovery close date and after his surgical procedure if his motivation in making the
disclosure was so those witnesses could testify only about his condition post-surgery.
before that date.” Response [ECF 61], at 3. But that caveat is of no benefit to Dunn
now since none of the additional witnesses he disclosed after the August 11 close date
were disclosed, subpoenaed, or noticed for deposition before the discovery close date.
Dunn argues, however, that his untimely disclosures are harmless because fact
discovery can be reopened to allow Brown to depose the newly disclosed witnesses if
he wishes to do so. The Court disagrees. “Late disclosure is not harmless within the
meaning of Rule 37 simply because there is time to reopen or to extend discovery. If
that were the determining factor, no court could preclude expert or other testimony
that was unseasonably disclosed contrary to the discovery deadline dates set by the
Court.” Hard Surface Sols., Inc. v. Sherwin-Williams Co., 271 F.R.D. 612, 617 (N.D.
Ill. 2010) (Cole, M.J.) (citations omitted). As Judge Cole also noted in Hard Surface,
“[u]nder the Federal Rules of Civil Procedure, it is the court's prerogative-indeed, its
duty-to manage its caseload and to set and enforce discovery and other significant
deadlines . . . A party does not have the option of complying with those deadlines or
ignoring them and then demanding that the court and the opposing party restructure
the discovery schedule to accommodate the violation. Id., citing Reales v. Consolid.
Rail Corp, 84 F.3d 993, 996 (7th Cir. 1996).
This Court agrees with Judge Cole’s sentiments in the context of this case. The
parties are now finishing medical fact discovery and then will move on to disclosure
and depositions of Rule 26(a)(2) experts pursuant to the schedule previously set by
the Court. [ECF 74]. This is not the time to reopen fact discovery and burden Brown
with the need to depose three more fact witnesses who by all rights should and could
have been disclosed well before the non-medical fact discovery cut-off date. Deadlines
are not suggestions to be taken lightly or complied with only as a matter of choice.3
Dunn had plenty of time to disclose additional witnesses who might testify at trial
before the August 11 cut-off date for non-medical discovery. He represented that he
was going to do so almost two months before the discovery close date [ECF 50], and
he was reminded of his obligation to do so almost a month before the close date.
Motion [ECF 59], at Exhibit C. There is no good reason to adjust the current case
management schedule now to accommodate Dunn’s tardy disclosures given where the
parties are in medical discovery. Further, the burden on Brown, the disruption of the
Court’s case management schedule, and the effect of the attendant delay on the fair
administration of justice is not insignificant nor, in the language of Rule 37(c)(1), is
it harmless.
Dunn also faults Brown for not attempting to meet and confer about his
untimely disclosures before Brown filed the instant Motion to strike and bar. It
appears, though, that Brown did try to engage Dunn without success about his failure
to amend his Rule 26(a)(1) disclosures at least with respect to the previously
undisclosed fact witnesses identified during his deposition. Motion, [ECF 59], at
Exhibit C. Moreover, Brown is not seeking discovery so it is unclear that Local Rule
37.2 strictly applies in this situation given that the Local Rule requires the parties to
3 As the Seventh Circuit has noted pithily, “[w]e live in a world of deadlines. If we’re late for
the start of the game or the movie, or late for the plane or train, things go forward without
us. The practice of law is no exception. . .The flow of cases through a busy district court is
aided, not hindered, by adherence to deadlines.” Spears v. City of Indianapolis, 74 F.3d
153, 157 (7th Cir. 2006).
meet and confer before a court will hear “any and all motions for discovery and
production of documents . . . .” See Finwall v. City of Chicago, 239 F.R.D. 494, 500
(N.D. Ill. 2006).
Further, Dunn’s purported solution to the problem he created – and that he
says he would have suggested to Brown had Brown called him to discuss the untimely
disclosures before he filed the instant Motion – is to reopen fact discovery so these
witnesses now can be deposed which, as discussed above, is not an option. Under
these circumstances, a formal Local Rule 37.2 conference concerning the witnesses
who are the subject of this Motion prior to its filing would have been pointless and
futile. Brown, understandably, was neither inclined nor obligated to agree to change
the discovery schedule after the fact to accommodate Dunn’s tardy disclosures. Local
Rule 37.2 does not prevent the Court from hearing the Motion or from granting it
under these circumstances. Finwall, 239 F.R.D. at 500-01 (“A call would simply have
signaled the defendants’ capitulation to the reordering of the discovery schedule
necessitated by the plaintiff’s rule and discovery closure violations. . . Even if Local
Rule 37.2 were applicable under the circumstances presented here, a phone call would
have accomplished nothing, and thus the doctrine of futility, which is as applicable
in the context of Local Rule 37.2 as it is in any other, In re Sulfuric Acid Antitrust
Litigaiton, 231 F.R.D. at 356 (collecting cases), excused the failure to call.”).
Finally, the Court defers to the trial judge Brown’s request that Dunn’s three
tardily disclosed witnesses be barred from testifying at trial pursuant to Rule 37(c)(1).
Brown filed a hybrid Motion seeking both to strike the untimely witnesses as a
discovery sanction and to bar them from testifying at trial. Motion [ECF 59]. In my
view, the request to strike is clearly before me but the request to bar is more properly
directed to the trial judge, not this Magistrate Judge charged only with supervising
discovery in this case and settlement. [ECF 12]. To be clear, however, for the reasons
outlined above, I have no trouble recommending to the District Judge, and do so
recommend, that the three witnesses who are the subject of Brown’s Motion should
not be allowed to testify at trial. In my mind, though, a formal order from me barring
those witnesses from testifying at trial is beyond the scope of the referral in this case
and is best reserved to the judge who will try the case, absent an express referral for
a report and recommendation on that trial issue. Accordingly, the portion of Brown’s
hybrid Motion seeking to bar three witnesses from testifying at trial – witnesses that
the Court has is striking from Dunn’s supplemental Rule 26(a) disclosures – is denied
without prejudice to either party raising the trial bar issue before the trial judge at
the appropriate time, if necessary.
For all these reasons, Brown’s Motion to Strike and Bar Certain Witnesses
[ECF 59] is granted in part with respect to the request to strike Dunn’s supplemental
Rule 26(a)(1) disclosure of witnesses Dariusz Las, Remzi Jaos, and Jayne Dudek, and
denied in part but without prejudice with respect to the request to bar those witnesses
from testifying at trial.
It is so ordered.
9 _ a -
effrey T. Gilbert
United States Magistrate Judge
Dated: January 3, 2022
10