# NORTH CAROLINA STATE CONFERENCE OF THE NAACP v. COOPER

> District Court, M.D. North Carolina · April 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10653719

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA STATE )
CONFERENCE OF THE NAACP, )
et al., )
)
Plaintiffs, )
)
v. ) 1:18CV1034
)
ROY ASBERRY COOPER, III, )
et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on the Rule 37 Motion to
Strike or Order Disregarded Plaintiffs’ March 20, 2024 Amended
Supplemental Disclosures (Docket Entry 236), filed by Intervenor-
Defendants President Pro Tempore of the North Carolina Senate
Philip E. Berger and Speaker of the North Carolina House of
Representatives Timothy K. Moore (the “Legislative Leaders”) (see
id. at 1).1 For the reasons that follow, the instant Motion will
be granted in part and denied in part.
INTRODUCTION
Plaintiffs commenced this action against the Governor of North
Carolina and members of the North Carolina State Board of Elections
(see Docket Entry 1),2 alleging that “[North Carolina] Senate Bill
1 Pin cites refer to the page number in the footer appended to documents
upon their filing in the CM/ECF system (not to any original pagination).
2 The Court (per United States District Judge Loretta C. Biggs) later
dismissed the Governor. (See Docket Entry 57.) This Order refers to the other
named Defendants (and their successors) collectively as the “Elections Board.”
824 (*S.B. 824’) . . . []imposes an unconstitutionally burdensome
and discriminatory voter photo ID requirement” (id. at 2). More
specifically, as summarized by the United States Court of Appeals
for the Fourth Circuit, Plaintiffs have asserted that S.B. 824
“violated § 2 of the Voting Rights Act and the Fourteenth and
Fifteenth Amendments because [it] had been enacted with racially
discriminatory intent.” North Carolina State Conf. of NAACP v.
Raymond, 981 F.3d 295, 301 (4th Cir. 2020). The Legislative
Leaders promptly moved to intervene to defend S.B. 824. (See
Docket Entry 7.) Plaintiffs opposed such intervention (see Docket
Entry 38) and Judge Biggs denied the request without prejudice (see
Docket Entry 56).? When the Legislative Leaders renewed their
request (see Docket Entry 60), Plaintiffs once more responded in
opposition (see Docket Entry 66) and Judge Biggs denied
intervention (this time with prejudice) (see Docket Entry 100).
In the interim, the Clerk noticed an initial pretrial
conference (see Docket Entry 68), after which Plaintiffs and the
Elections Board filed a Joint Report under Federal Rule of Civil
Procedure 26(f) (Docket Entry 77), supplemented by an Addendum
(Docket Entry 87). The undersigned Magistrate Judge adopted those
filings as the scheduling order for this case, except as to the
proposed trial date (leaving that matter to the Clerk). (See Text
Order dated Oct. 1, 2019.) As a result:

> That Order allowed the Legislative Leaders “to participate in this action
by filing amicus curiae briefs.” (Docket Entry 56 at 23 (italics omitted).)
-2-

1) “[f]act discovery . . . close[d] on May 15, 2020” (Docket
Entry 77 at 4); and
2) “expert discovery . . . close[d] on June 1, 2020” (Docket
Entry 87 at 1).4
A few months into the discovery period, Plaintiffs secured a
preliminary injunction from Judge Biggs barring “implement[ation
of] any of S.B. 824’s voter ID requirements and ballot-challenge
provisions with respect to any election, until otherwise ordered by
this Court.” (Docket Entry 120 at 59.) Not long after, pursuant
to parallel litigation in North Carolina state court originally
instituted “[o]n the same day S.B. 824 became law,” Holmes v.
Moore, 270 N.C. App. 7, 11 (2020), “the North Carolina Court of
Appeals reversed a state trial court and ordered that [S.B. 824] be
preliminarily enjoined,” Raymond, 981 F.3d at 301 (citing Holmes,
270 N.C. App. at 35-36). Subsequently, back in this case,
Plaintiffs and the Elections Board “proposed [a new] discovery
schedule” (Docket Entry 135 at 1), which the undersigned Magistrate
Judge “declin[ed] to adopt” (Text Order dated Apr. 15, 2020). When
Plaintiffs and the Elections Board moved for reconsideration (see

Docket Entry 138), the undersigned Magistrate Judge reaffirmed that
decision (see Docket Entry 140). Plaintiffs (with the consent of
the Elections Board) objected (see Docket Entry 143), but Judge
Biggs overruled those objections (see Docket Entry 148).
4 In accord with those deadlines, by separate Notice, the Clerk set this
case for trial in January 2021. (See Docket Entry 130.)
-3-
Following the close of discovery (as scheduled), a panel of
the Fourth Circuit “vacate[d] th[is C]lourt’s order denying the
[Legislative Leaders’ intervention request] and remand[ed] for
further consideration,” North Carolina State Conf. of NAACP v.
Berger, 970 F.3d 489, 495 (4th Cir. 2020); however, “[u]pon
petitions for rehearing by [Plaintiffs] and the [Elections] Board,
[the full Fourth Circuit] vacated th[at] panel opinion [in order
to] consider the case en banc,” North Carolina State Conf. of NAACP
v. Berger, 999 F.3d 915, 923 (4th Cir. 2021) (en banc), rev'd, 597
U.S. 179 (2022); see also North Carolina State Conf. of NAACP v.
Berger, 825 F. App’ 122, 123 (4th Cir. 2020) (“[R]ehearing en banc
is granted.”). Due to that (then-ongoing) appellate litigation
over the Legislative Leaders’ participation, Judge Biggs ordered
“the jury trial scheduled for January 6, 2021 . . . continued to a
date to be determined.” (Text Order dated Nov. 3, 2020.)
A short time later, the Fourth Circuit reversed the
preliminary injunction in this case. See Raymond, 981 F.3d at 298.
In doing so, the Fourth Circuit explained that Plaintiffs’ claims
require them “to prove that [S.B. 824] was passed with
discriminatory intent and has an actual discriminatory impact.”
Id. at 302. The Fourth Circuit further expressly determined that
Plaintiffs had “fail[ed] to meet their burden of showing that the
General Assembly acted with discriminatory intent in passing [S.B.
824].”% Id. at 305; see also id. at 311 (holding that “evidence in

-4-

the record fails to meet [Plaintiffs’] burden”). As part of that
determination, the Fourth Circuit clarified that considerations
regarding whether the manner of “enforcement of [S.B. 824] would
prevent eligible voters from [voting],” id. at 310, could not aid
Plaintiffs’ cause because “an inquiry into the legislature’s intent
in enacting a law should not credit disparate impact that may
result from poor enforcement of that law,” id. (emphasis in
original); see also id. (“[I]t is hard to say that [S.B. 824] does
not sufficiently go out of its way to make its impact as burden-
free as possible.” (internal quotation marks omitted)).
By Notice dated March 23, 2021, the Clerk re-set the case for
trial in January 2022. (See Docket Entry 158 at 1; see also Docket
Entry 173 at 1 (establishing trial date of January 24, 2022).) The
full Fourth Circuit thereafter affirmed the denial of the
Legislative Leaders’ request to intervene, see Berger, 999 F.3d at
918, but the appellate process continued as the Legislative Leaders
filed a “petition for a writ of certiorari” (Docket Entry 168 at
1). On November 24, 2021, the United States Supreme Court agreed
to take up the intervention issue. See Berger v. North Carolina
State Conf. of NAACP, U.S. _—,_ ~«142 S. Ct. S77 (2021). Asa
result, the Elections Board “request[ed] . . . that th[is] Court
either allow [the Legislative Leaders] to intervene permissively,
stay the matter, or continue the trial pending the outcome of the
appeal to the [United States] Supreme Court.” (Docket Entry 192 at

~5-

2; see also id. at 1 (“submitt[ing] that proceeding with the trial
as scheduled, without the [Legislative Leaders], before the [United
States] Supreme Court decides the issue creates a significant risk
that a second trial would be necessary after the [United States]
Supreme Court’s ruling, ultimately delaying final resolution”).)
Plaintiffs opposed that request. (See Docket Entry 193.)
Judge Biggs ultimately decided that “the balance of
[pertinent] factors weigh[ed] in favor of a stay” (Docket Entry 194
at 2), which proved wise, as the United States Supreme Court later
ruled that “[the L]egislative [L]eaders [we]re entitled to
intervene,” Berger v. North Carolina State Conf. of the NAACP, 597
U.S. 179, 200 (2022). Meanwhile, in the parallel state court case,
“[t]he trial court . . . found that [S.B.] 824 . . . was enacted
with a racially discriminatory purpose,” Holmes v. Moore, 383 N.C.
171, 174 (2022), withdrawn and superseded, 384 N.C. 426 (2023), and
(at the request of the plaintiffs in that case) the North Carolina
Supreme Court agreed to take up “discretionary review . . . prior
to a determination by the North Carolina Court of Appeals,” Holmes
v. Moore, 868 S.E.2d 315, 315 (N.C. 2022). Subsequently, on

December 16, 2022, the North Carolina Supreme Court “affirm[ed] the
[state] trial court’s final judgment and order and h[e]ld that S.B.
824 violate[d] article I, section 19 of the North Carolina
Constitution because the law was enacted with discriminatory intent
to disproportionately disenfranchise and burden African-American
-6-
voters in North Carolina.” Holmes, 383 N.c. at 205. “Following
[that] decision, [the] defendants [there] timely filed a petition
for rehearing,” Holmes v. Moore, 384 N.C. 426, 433 (2023), which
the North Carolina Supreme Court granted via “order entered 3
February 2023,” id. “After supplemental briefing and oral
argument, . . . [the North Carolina Supreme Court] withdr[e]w the
prior decision,” id., and “reverse[d] and remand[ed that case] to
the [state] trial court for entry of an order dismissing [the]
plaintiffs’ claim with prejudice,” id. at 460.°
A month and a half after that ruling, Plaintiffs (without
objection from the Elections Board or the Legislative Leaders)
“request[ed] that this Court lift the stay in th[is case] and
schedule a status conference.” (Docket Entry 202 at 5; see also
id. at 1n.1 (“The [Elections] Board [] consent[s] to this motion,
and the Legislative [Leaders] do not oppose this motion.”).)
Plaintiffs also indicated that they wanted “to update discovery
previously provided by the [Elections Board] and [to] take
discovery from [the ] Legislative [Leaders] .” (Id. at 5.) The
undersigned Magistrate Judge “grant[ed] in part... [Plaintiffs’
request by (A) setting] a status conference” (Text Order dated July
5, 2023), (B) directing “Plaintiffs [to] provide copies of any
proposed discovery (including the names of any proposed deponents)
to all opposing counsel” (id.; see also id. (requiring same of “any

° The North Carolina Supreme Court issued its above-cited (final) decision
on April 28, 2023. See Holmes, 384 N.C. at 426.
-7-

other party/intervenor who also wishe[d] to conduct any
discovery”)), and (C) mandating that, prior to the status
conference, counsel “meet and confer in person or by video
teleconference about any proposed discovery” (id.).
At the status conference (held before the undersigned
Magistrate Judge on July 26, 2023), Plaintiffs requested that the
Court reopen the discovery period to allow them to serve the
Elections Board and the Legislative Leaders with a raft of new
discovery demands, as well as to conduct depositions Plaintiffs
previously had not pursued, whereas the Elections Board and the
Legislative Leaders opposed the reopening of discovery and voiced
objections to the discovery Plaintiffs proposed.6 “Based on the
arguments presented by counsel, the Court d[id] not see a basis for
allowing discovery to be reopened [for Plaintiffs] to serve the
[proposed] discovery on the Legislative [Leaders] and Plaintiffs’
request [for that relief wa]s [t]here[fore] denied[.]” (Minute
Entry dated July 26, 2023 (all-caps font omitted).) To facilitate
resolution of Plaintiffs’ request for another opportunity to demand
discovery from the Elections Board, “Plaintiffs [were] instructed

to file a Notice . . . includ[ing] the exact discovery requests and
deposition notice to be served on the [Elections] Board . . .
[with] up to ten pages of argument . . . stating why [P]laintiff[s]
should be allowed to serve [such] discovery . . . .” (Id.; see
6 The Clerk’s Office audio-recorded that status conference. (See Minute
Entry dated July 26, 2023.)
-8-
also id. (documenting deadlines set for response(s) by Elections
Board and Legislative Leaders, as well as reply by Plaintiffs)
Plaintiffs timely made the required filing (see Docket Entry
203), attaching extensive, proposed discovery demands (see Docket
Entries 203-1, 203-2, 203-3). Both the Elections Board and the
Legislative Leaders timely responded in opposition (see Docket
Entries 204, 205) and Plaintiffs timely replied (see Docket Entry
208). Upon careful consideration of the parties’ arguments and the
record, the undersigned Magistrate Judge (via Order entered
September 12, 2023) declined to reopen the discovery period. (See
Docket Entry 210.) Plaintiffs objected (see Docket Entry 211), but
Judge Biggs overruled that objection (see Docket Entry 228).’
In doing so, Judge Biggs “referred [the case] back to the
[undersigned] Magistrate Judge for the purpose of addressing [a]
new issue [raised by Plaintiffs] regarding a potential duty by [the
Elections Board] to supplement disclosures under [Federal] Rule [of
Civil Procedure] 26(e), specifically as it relates to
implementation evidence.” (Id. at 17.) The undersigned Magistrate
Judge promptly held a hearing on that issue (see Minute Entry dated
Feb. 27, 2024), after which “all parties engaged in a meet and
confer . . . and discussed additional public documents the
[Elections] Board recently placed on its website, which include □□□
the categories of documents Plaintiffs were seeking” (Docket Entry

7 That same day (February 12, 2024), the Clerk noticed this case for trial
beginning May 6, 2024. (See Docket Entry 229.)
□□□

233 at 2). “On March 4, 2024, [the Elections Board] served
Corrected Supplemental Disclosures, which state that the
implementation documents that [the Elections Board] ‘may use to
support [its] defenses in this case’ are only the ‘[p]ublic records
concerning the implementation efforts of the S.B. 824’s voter
photographic ID requirement by the [Elections Board] as found on
[its] website.’” (Id. at 2-3.) After further discussions among
the parties, “Plaintiffs [] withdr[e]w their . . . request that the
[Elections Board] supplement [its] disclosures.” (Id. at 3.)
Legislative Leaders now have filed the instant Motion asking
the Court “to strike Plaintiffs’ Amended Supplemental Disclosures
served on March 20, 2024.” (Docket Entry 236 at 1 (referring to
Docket Entry 236-1 at 2-14).) According to the instant Motion, the
Amended Supplemental Disclosures “newly identif[y] numerous
individuals and organizational representatives [as potential
witnesses] . . . and seven new categories of documents that
Plaintiffs may use to support their claims at trial.” (Id.) As
stated in their supporting brief, Legislative Leaders seek “ent[ry
of] an order excluding all newly identified individuals, or

categories of individuals, from testifying on behalf of Plaintiffs
at trial, and excluding all documents from the newly identified
categories that are not in Defendants’ possession, custody, or
control from admission by Plaintiffs at trial.” (Docket Entry 237
at 6.) Plaintiffs have responded in opposition (see Docket Entry
-10-
268),8 Legislative Leaders have replied (see Docket Entry 273), and
the instant Motion has come to the undersigned Magistrate Judge for
resolution (see Docket Entry dated Apr. 18, 2024).
DISCUSSION
The Federal Rules of Civil Procedure (the “Rules”) contemplate
that, beginning early in the life of a case (with limited
exceptions not applicable here), parties shall disclose (1) “the
name and, if known, the address and telephone number of each
individual likely to have discoverable information . . . that the
disclosing party may use to support its claims or defenses, unless
the use would be solely for impeachment,” Fed. R. Civ. P.
26(a)(1)(A)(i), as well as (2) “a copy—or a description by category
and location—of all documents, electronically stored information,
and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its claims
or defenses, unless the use would be solely for impeachment,” Fed.
R. Civ. P. 26(a)(1)(A)(ii). Coordinately, the Rules mandate that
(unless otherwise ordered by the Court):
[a] party who has made a disclosure under Rule 26(a)
. . . must supplement or correct its disclosure . . . in
a timely manner if the party learns that in some material
respect the disclosure . . . 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[.]
8 The Elections Board “take[s] no position on the [instant M]otion.”
(Docket Entry 236 at 3.)
-11-
Fed. R. Civ. P. 26(e)(1) (emphasis added); see also Fed. R. Civ. P.
37(c)(1) (providing for exclusion of information and witnesses
“[i]f a party fails to provide [such] information or identify
[such] witness[es] as required by Rule 26(a) or (e) . . . unless
the failure was substantially justified or is harmless”).
Importantly, “[t]he duty to supplement continues beyond the
close of discovery.” Covil Corp. by & through Protopapas v. United
States Fid. & Guar. Co., 544 F. Supp. 3d 588, 595 (M.D.N.C. 2021);
see also id. at 596 (collecting cases). Equally (if not more)
importantly, (A) “[t]he timeliness of supplementation centers on
when the disclosing-party reasonably should know that its
disclosures are incomplete or incorrect,” Cereceres v. Walgreen
Co., No. 20CV3406, 2022 WL 2105895, at *4 (D. Colo. June 9, 2022)
(unpublished) (internal quotation marks omitted), and (B) a
disclosure “is incomplete or incorrect in some material respect if
there is an objectively reasonable likelihood that the additional
or corrective information could substantially affect or alter the
opposing party’s . . . trial preparation,” Sender v. Mann, 225
F.R.D. 645, 654 (D. Colo. 2004) (internal quotation marks omitted).

And, perhaps most importantly here, “[s]upplementation must be made
‘with special promptness as the trial date approaches.’” Coalition
to Save Our Children v. State Bd. of Educ. of the State of Del., 90
F.3d 752, 775 (3d Cir. 1996) (quoting Fed. R. Civ. P. 26 advisory
committee notes, 1993 amend., subdiv. (e)).
-12-
Witnesses
Starting with Plaintiffs’ disclosure of witnesses, Legislative
Leaders assert (in their supporting brief) that Plaintiff’s Amended
Supplemental Disclosures “newly disclosed the following individuals
or categories of individuals who had not previously appeared in any
party’s disclosures” (Docket Entry 237 at 11):
• Tomas Lopez (no description provided);
• Organizational Representative from Democracy North
Carolina (unnamed);
• Organizational Representative from Vote Riders
(unnamed);
• Tyler Daye (Precinct Chief Judge of unidentified
precinct);
• Election officials who implemented S.B. 824 during the
2023 Municipal elections or the 2024 Primary elections
(names and contact information unprovided);
• Poll workers who assisted voters with voting
provisionally due to S.B. 824’s photo identification
requirement during the 2023 Municipal elections or the
2024 Primary elections (names and contact information
unprovided);
• Former Congressman G.K. Butterfield;
• Former [State Senator] Joel Ford;
• Julius Perry (voter in unspecified election);
• Shelia Relette Brower (voter in unspecified election);
• Jeanette Dumas (voter in unspecified election);
• Individual voters who voted provisionally using an ID
Exception Form in the 2023 Municipal elections or the
2024 Primary elections (names and contact information
unprovided);
-13-
• Individual voters who voted provisionally using the
“Return with ID” option during the 2023 Municipal
elections or the 2024 Primary elections (names and
contact information unprovided);
• Individual voters who had to obtain one of the forms of
ID accepted for voting under S.B. 824 (names and contact
information unprovided); and
• Individual voters who were unable to cast any ballot in
the 2023 Municipal elections or the 2024 Primary
elections due to the photo voter ID requirement of S.B.
824 (names and contact information unprovided).
(Id. at 11-12 (formatting in original) (citing Docket Entry 236-1
at 3-9).)
Plaintiffs, in response, have disputed the characterization of
Mr. Lopez, former Congressman Butterfield, and Ms. Dumas as newly
disclosed, on the ground that “[Mr.] Lopez and [Ms.] Dumas both
submitted declarations in support of Plaintiffs’ motion for a
preliminary injunction, and all three [of those] witnesses were
identified in Plaintiffs’ December 24, 2021 Rule 2[6](a)(3)(A)([i])
disclosures.” (Docket Entry 268 at 12 (internal citation omitted)
(citing Docket Entries 108-7, 108-12, and 268-4).)9 Legislative
Leaders’ reply does not deny prior knowledge of Plaintiffs’
9 The Rule mandating the disclosure referenced by Plaintiffs states:
In addition to the disclosures required by Rule 26(a)(1) and (2), a
party must provide to the other parties and promptly file the
following information about the evidence that it may present at
trial other than solely for impeachment: (i) the name and, if not
previously provided, the address and telephone number of each
witness–-separately identifying those the party expects to present
and those it may call if the need arises[.]
Fed. R. Civ. P. 26(a)(3)(A). “Unless the [C]ourt orders otherwise, these
disclosures must be made at least 30 days before trial.” Fed. R. Civ. P.
26(a)(3)(B). Here, the trial notice directed that such “pretrial disclosures
must be made no later than April 5, 2024.” (Docket Entry 229 at 1.)
-14-
disclosure of these three individuals as trial witnesses over two
years ago, but instead counters that “Plaintiffs had an independent
Rule 26(a)(1) obligation to disclose the identities of witnesses
that was not satisfied by Plaintiffs including [those] three
witnesses . . . on their post-discovery December 2021 Rule 26(a)(3)
witness list” (Docket Entry 273 at 4-5), because that “disclosure
obligation[ arises] ‘in addition to the disclosures required by
Rule 26(a)(1)’” (id. at 5 (brackets and emphasis omitted) (quoting
Fed. R. Civ. P. 26(a)(3)(A))). That counter-argument ignores the
fact that the supplementation rule only applies to “information
[which] has not otherwise been made known to the other parties
. . . in writing,” Fed. R. Civ. P. 26(e)(1)(A).
As Legislative Leaders intimated in their reply, if the trial
of this case had proceeded as scheduled in January 2022,
Plaintiffs’ disclosure of Mr. Lopez, former Congressman
Butterfield, and Ms. Dumas for the first time in December 2021 on
a trial witness list mandated by Rule 26(a)(3)(A) – after failing
to include them in an initial disclosure under Rule 26(a)(1)(A)
and/or any supplements under Rule 26(e)(1), dating back to the

entry of the scheduling order on October 1, 2019 – may well have
warranted exclusion of those three witnesses under Rule 37(c)(1)
because Plaintiffs would have violated Rule 26(e)(1)(A) by “waiting
to disclose [them] until the eve of an expected trial” (Docket
Entry 273 at 5); however, given that the trial did not proceed then
-15-
as scheduled and two-plus years have since passed, the Court cannot
now fault Plaintiffs for failing (in that interim period) to serve
a supplemental witness disclosure under Rule 26(a)(1)(A)(i) listing
Mr. Lopez, former Congressman Butterfield, and Ms. Dumas, as (via
the trial witness list from December 2021) their status in that
regard “otherwise [had] been made known to the other parties
. . . in writing,” Fed. R. Civ. P. 26(e)(1)(A).
Turning to the other witnesses/witness-types contested by
Legislative Leaders, reason dictates that the prospect Plaintiffs
would rely on such a large number and variety of new witnesses
would pose an “objectively reasonable likelihood [of] . . .
substantially affect[ing] or alter[ing Legislative Leaders’] . . .
trial preparation,” Sender, 225 F.R.D. at 654, thus triggering
Plaintiffs’ duty to supplement their disclosure “with special
promptness as the trial date approache[d],” Coalition to Save Our
Children, 90 F.3d at 775 (internal quotation marks omitted). Yet,
in response to the instant Motion, Plaintiffs did not meaningfully
develop any argument to support the bald assertion that their
deferral of disclosure of these witnesses/witness-types until March

20, 2024 (years after discovery closed, almost eight months after
the status conference which set this case back on track for trial
without the reopening of discovery, and only weeks before the trial
date) still qualified as “timely and compliant with Rule 26”
(Docket Entry 268 at 14). (See id. at 9-12 (discussing new
-16-
witnesses under heading “Plaintiffs’ Disclosures Are Timely and
Comply with Rule 26” without explaining failure to disclose unnamed
representatives from Democracy North Carolina and Vote Riders, Mr.
Daye, unnamed election officials and poll workers, former State
Senator Ford, Mr. Perry, Ms. Brower, and four different groups of
unnamed voters as witnesses until March 20, 2024 (all-caps and bold
font omitted)).)*°
Plaintiffs’ conclusory contention that their disclosure of
those witnesses/witness-types in the Amended Supplemental

10 At the beginning of the above-cited section of Plaintiffs’ response,
they remarked that “(t]he [Amended Supplemental D]isclosures were made two weeks
after the [Elections Board’s] March 4, 2024 supplemental disclosures, in which
half of the [Elections] Board’s identified witnesses (five of ten) were new
witnesses . . . and which accompanied voluminous production of materials
regarding the [Elections] Board’s implementation of S.B. 824.” (Docket Entry 268
at 9; see also id. at 1 (suggesting that “Amended Supplemental Disclosures were
timely disclosed” because Plaintiffs “made th[ose] supplemental disclosure[s] in
response to [the Elections] Board[’s ] latest supplemental disclosure, made two
weeks earlier”).) That vague comment does not establish compliance with Rule
26(e) (1) (A) (1), in Light of Plaintiffs’ failure to even attempt to connect the
substance of the Elections Board’s supplemental disclosure to Plaintiffs’ last-
minute disclosure of these particular witnesses/witness-types. (See id. at 9-
12.) Plaintiffs also stated that the unnamed Democracy North Carolina
representative “replace[d] . . . organizations that work on elections” (id. at
10), but neglected to elaborate on the cause or the timing of that replacement
(see id.). Similarly, Plaintiffs asserted that the “Vote Riders representative,
[Mr.] Daye, [Mr.] Perry, and [Ms.] Brower . . . may have relevant information as
to the implementation of S.B. 824 from the 2023 municipal elections and 2024
primaries” (id. at 10-11); however, Plaintiffs showed neither when nor how they
learned of those witnesses, instead ambiguously describing Mr. Daye as a “local
official” (id. at 11), Vote Riders as an entity that “assisted voters in
obtaining approved IDs for voting purposes in the most recent elections” (id.),
and Mr. Perry and Ms. Brower as “voters recently impacted by the ID requirement”
(id.). In addition, Plaintiffs pointed out that “former [State] Senator [] Ford
- . . waS a witness for Legislative [Leaders] in the Holmes [] litigation, and
[that he] offered a declaration in opposition to Plaintiffs’ Motion for
Preliminary Injunction” (id.; see also id. at 12 (“[Legislative Leaders] also
question the inclusion of their former colleague, [former State Senator] Ford,
who previously submitted a declaration in opposition to the motion for
preliminary injunction.” (internal citation omitted))), without offering any
argument or authority to support the notion that those facts entitled Plaintiffs
to delay until March 20, 2024, to reveal their reliance on him as a witness
(despite clearly knowing about his link to this case since at least 2019, when
they litigated the preliminary injunction) (see id. at 11-12).
-17-

Disclosures on March 20, 2024, satisfied Plaintiffs’ obligation to
“supplement or correct [their witness] disclosure . . . in a timely
manner,” Fed. R. Civ. P. 26(e)(1), therefore “is waived because
[Plaintiffs] fail[ed] to develop this argument to any extent in
[their] brief,” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152
n.4 (4th Cir. 2012); see also United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) (“It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel’s work, create the ossature for the argument, and put flesh
on its bones.”).11 In light of that waiver and the facts in the
record, the Court concludes that Plaintiffs did not comply with
Rule 26(e)(1)(A)’s timeliness requirement when they waited until
March 20, 2024, to disclose unnamed representatives from Democracy
North Carolina and Vote Riders, Mr. Daye, unnamed election
officials and poll workers, former State Senator Ford, Mr. Perry,
Ms. Brower, and four categories of unnamed voters as witnesses.

11 Legislative Leaders’ supporting brief also properly highlights another
problem with Plaintiffs’ listing of witness-types (rather than actual witnesses)
in the Amended Supplemental Disclosures: “‘Rule 26(a) does not countenance
generic disclosures: a “party must” provide “the name of each individual likely
to have discoverable information.”’” (Docket Entry 237 at 19 (emphasis and
ellipsis omitted) (quoting Intercollegiate Women’s Lacrosse Coaches Ass’n v.
Corrigan Sports Enters., No. 1:20CV425, 2023 WL 6282921, at *9 (M.D.N.C. Sept.
26, 2023) (unpublished) (Schroeder, C.J.), in turn quoting Fed. R. Civ. P.
26(a)(1)(A)(i)).) Plaintiffs only indirectly addressed that issue in their
response, by stating that “[a]ny such individuals have now been individually
named either in Plaintiffs’ Pre-Trial Disclosures filed on April 5, 2024 of [sic]
Plaintiffs’ Exhibit List filed on April 15, 2024.” (Docket Entry 268 at 8
(referring to Docket Entries 242-1, 266).) In this situation, the fact that
Plaintiffs may have made a proper “[final] pretrial disclosure under Rule
26(a)(3) does not mean [they] timely complied with [their] supplemental
disclosure obligations under Rule 26(e).” Markson v. CRST Int’l, Inc., No.
5:17CV1261, 2021 WL 5969519, at *2 (C.D. Cal. Nov. 23, 2021) (unpublished).
-18-
Accordingly, Plaintiffs “[are] not allowed to use thl[ose]
. . . witness[es] to supply evidence ... at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ.
P. 37(c) (1). In other words, “Rule 37(c) (1) . . . requires witness
and information exclusion for an untimely disclosure, unless the
violation is substantially justified or harmless.” Nelson-Salabes,
Inc. v. Morningside Dev., LLC, 284 F.3d 505, 512 n.10 (4th Cir.
2002) (emphasis added); see also Southern States Rack & Fixture,
Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003)
(“The Rule 37(c) advisory committee notes emphasize that the
‘automatic sanction’ of exclusion ‘provides a strong inducement for
disclosure of material that the disclosing party would expect to
use as evidence.’” (quoting Fed. R. Civ. P. 37(c) advisory
committee note, 1993 amend.)).'* Plaintiffs, as “[t]he party

12 Notwithstanding the above-quoted, absolutist language of Rule 37(c) (1)
(and Fourth Circuit decisions construing that language), Rule 37(c) (1) elsewhere
appears to grant courts some measure of discretion to impose a sanction other
than exclusion for supplementation violations which the substantial justification
and harmlessness exceptions do not excuse. See Fed. R. Civ. P. 37(c) (1) (“In
addition to or instead of this sanction, the [C]ourt, on motion and after giving
an opportunity to be heard: (A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure; (B) may inform the jury of the
party’s failure; and (C) may impose other appropriate sanctions, including any
of the orders listed in Rule 37(b) (2) (A) (i)-(vi).”); but see also Southern
States, 318 F.3d at 595 n.2 (“The alternative sanctions referenced in [ R]lule
(c)(1)] are primarily intended to apply when a party fails to disclose
evidence helpful to an opposing party.” (emphasis in original) (citing 7 James
Wm. Moore et al., Moore’s Fed. Practice §$§ 37.60[2] [b], 37.61 (3d ed. 2002))).
Plaintiffs have not argued that, if the Court finds a violation of Rule
26(e) (1) (A) that falls outside the substantial justification or harmlessness
exceptions to exclusion, the Court nonetheless should impose alternative
sanctions “instead of th[e exclusion] sanction,” Fed. R. Civ. P. 37(c) (1). (See
Docket Entry 268 at 1-19.) Absent such argument, the Court will stay out of that
thorny legal thicket and will stick to the issues on the trail blazed by the
parties, il.e., whether Plaintiffs violated Rule 26(e) (1) (A)’s timely
supplementation requirement and, if so, whether an exception to exclusion applies
(continued...)
-19-

failing to disclose [witnesses,] bears the burden of establishing
that the nondisclosure was substantially justified or was
harmless.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th
Cir. 2017). The parties have agreed that, in assessing whether
Plaintiffs carried their burden as to the substantial justification
and harmlessness exceptions to exclusion, the Court should consider
the five factors endorsed by the Fourth Circuit in Southern States.
(See Docket Entry 237 at 20; Docket Entry 268 at 14.)
In that case, the Fourth Circuit:
h[eJld that in exercising its broad discretion to
determine whether a nondisclosure of evidence is
substantially justified or harmless for purposes of a
Rule 37(c) (1) exclusion analysis, a district court should
be guided by 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 nondisclosing party’s explanation for its
failure to disclose the evidence.
Southern States, 318 F.3d at 597; see also Wilkins v. Montgomery,
751 F.3d 214, 222 (Ath Cir. 2014) (“The burden of establishing
these factors lies with the nondisclosing party ... .”).*? Per
Plaintiffs’ response, “each of the Southern States factors weighs

12(,,.continued)
because any such violations qualified as “substantially justified or □□□□□□
harmless,” Fed. R. Civ. P. 37(c) (1). See generally United States v. Sineneng-
Smith, 590 U.S. 371, 376 (2020) (“[C]lourts normally decide only questions
presented by the parties.” (internal brackets and quotation marks omitted)).
13 “The first four factors listed above relate primarily to the
harmlessness exception, while the last factor, addressing the party’s explanation
for its nondisclosure, relates mainly to the substantial justification
exception.” Bresler, 855 F.3d at 190.
-?0-

in Plaintiffs’ favor.” (Docket Entry 268 at 14.) Legislative
Leaders have taken a contrary stance. (See Docket Entry 237 at 25
(“The Southern States factors all weigh against Plaintiffs.”).)
Focusing first on the final of the Southern States factors
(i.e., Plaintiffs’ “explanation for [their prior] failure to
disclose the[se witnesses/witness-types],” Southern States, 318
F.3d at 597), Plaintiffs have asserted that this “factor weighs in
[their] favor as they timely disclosed the additional witnesses”
(Docket Entry 268 at 19).** For reasons detailed in the prior
discussion, the Court has determined that Plaintiffs’ delay until
March 20, 2024, to disclose unnamed representatives from Democracy
North Carolina and Vote Riders, Mr. Daye, unnamed election
officials and poll workers, former State Senator Ford, Mr. Perry,
Ms. Brower, and four categories of unnamed voters did not
constitute a timely witness disclosure. Plaintiffs thus have not
carried their burden as to the fifth Southern States factor (as
concerns those witnesses/witness-types). Moreover, given that
“[t]he [other] four factors listed [in Southern States] relate

'* To support the above-quoted conclusory claim of timeliness, Plaintiffs
here merely repeated their mantra that “these witness disclosures came two weeks
after [the Elections Board’s] submission of [its] March 4, 2024 supplemental
disclosures in which half of the identified witnesses were new” (Docket Entry 268
at 19), again without making any effort to explain how that witness disclosure
by the Elections Board caused Plaintiffs to suddenly decide that they would rely
on unnamed representatives from Democracy North Carolina and Vote Riders, Mr.
Daye, unnamed election officials and poll workers, former State Senator Ford, Mr.
Perry, Ms. Brower, and four categories of unnamed voters (see id.; see also
Docket Entry 273 at 3-4 (illustrating that Elections Board’s supplemental witness
disclosure simply involved substituting successors to previously disclosed
executive staff members) (citing Docket Entries 268-5, 268-10)).
-?1-

primarily to the harmlessness exception, while [only this] last
factor, addressing the party’s explanation for its nondisclosure,
relates mainly to the substantial justification exception,”
Bresler, 855 F.3d at 190, the Court also concludes that Plaintiffs
have not carried their burden to show that their “failure [to
timely disclose those witnesses/witness-types] was substantially
justified,” Fed. R. Civ. P. 37(c)(1).
Moving on to the harmlessness-related factors, Plaintiffs have
argued that “Legislative [Leaders] cannot be surprised by the
listing of former [State] Senator Ford, [because] Legislative
[Leaders] have publicly identified [him] as being associated with
S.B. 824.” (Docket Entry 268 at 15.) In reply, Legislative
Leaders have conceded their prior knowledge that former State
Senator Ford “was a cosponsor of S.B. 824” (Docket Entry 273 at 8),
“[b]ut [have maintained that] Plaintiffs ‘misunderstand the nature
of “surprise” in this context’” (id. (internal brackets omitted)
(quoting Intercollegiate Women’s Lacrosse Coaches Ass’n v. Corrigan
Sports Enters., No. 1:20CV425, 2023 WL 6282921, at *9 (M.D.N.C.
Sept. 26, 2023) (unpublished) (Schroeder, C.J.))). More

particularly, Legislative Leaders properly have posited that, for
purposes of Rule 37(c)(1), surprise can arise “‘from learning that
[Plaintiffs] intend[] to use [former State Senator Ford] in support
of [their] version of the facts’ at trial.” (Id. (quoting
Intercollegiate Women’s Lacrosse, 2023 WL 6282921, at *9).)
-22-
Neither Plaintiffs nor Legislative Leaders directly addressed
former State Senator Ford in their discussion of the remaining
Southern States factors. (See Docket Entry 237 at 21-24; Docket
Entry 268 at 16-18; Docket Entry 273 at 8-11.) Legislative Leaders
did generally object that Plaintiffs’ untimely disclosure of
witnesses “left Legislative [Leaders] with no opportunity to cure
the [resulting] surprise, so th[e second Southern States] factor
heavily weighs against Plaintiffs.” (Docket Entry 237 at 21; see
also id. at 22 (emphasizing that “[d]iscovery closed years ago” and
that reopening discovery would delay trial, thereby tilting third
Southern States factor against Plaintiffs as well).) Nevertheless,
because the record confirms that, earlier in the life of this case,
former State Senator Ford voluntarily provided Legislative Leaders
with information (including a declaration under penalty of perjury)
(see Docket Entry 96 at 33-34 (citing Docket Entry 96-12)), the
Court concludes that Legislative Leaders likely could cure the
surprise arising from his belated disclosure as a witness for
Plaintiffs, through informal means without need for the compulsory
processes of formal discovery (and therefore without any need to

delay the trial). Based on that conclusion, the Court deems
Plaintiffs’ violation of Rule 26(e)(1)(A) in disclosing former
State Senator Ford “harmless,” Fed. R. Civ. P. 37(c)(1).
The foregoing analysis leaves only the question of
harmlessness in connection with the disclosure of unnamed
-23-
representatives from Democracy North Carolina and Vote Riders, Mr.
Daye, unnamed election officials and poll workers, Mr. Perry, Ms.
Brower, and four unnamed voter categories.'’ Plaintiffs’ response
does not explicitly mention those witnesses/witness-types while
discussing the Southern States factors. (See Docket Entry 268 at
15-19.) Instead, Plaintiffs impliedly lumped those witnesses/
witness-types together as “witnesses . . . regarding
implementation” (id. at 15), which they characterized as (A) not
“surprise” evidence (id.), (B) evidence “Legislative [Leaders ]
affirmatively rejected opportunities to conduct discovery into”
(id. at 16), (C) evidence “not disrupt[ive of] trial” (id. at 18),
and (D) evidence “critical to the assessment of S.B. 824” (id.).
As to surprise, Plaintiffs more particularly contended
“[flirst [that] . . . the [Elections Board] and Plaintiffs
identified the relevance of implementation evidence in their Joint
Report . . . in September 2019.” (Id. at 15 (citing Docket Entry
77 at 2-3).) “Second, [Plaintiffs noted that] Rule 26 disclosures
by both Plaintiffs and [the Elections Board] reference
implementation evidence or identify witnesses expected to testify
about implementation of S.B. 824.” (Id. (citing, inter alia,

'S On April 5, 2024, Plaintiffs filed a trial witness list identifying
Carol Moreno Cifuentes and Keith Chapelle as representatives of Democracy North
Carolina, along with Jenny McKenney as a representative of Vote Riders. (See
Docket Entry 242-1 at 2.) That list also includes two previously unidentified
voters. (See id. at 4 (Keith Rivers), 6 (Robert Fletcher); see also id. at 6
(newly listing “Lekha Shupek,” the “State Outreach Director, Documented”).) Ten
days later, Plaintiffs added six more voters to their trial witness list. (See
Docket Entry 266 at 6 (Carlotta Dorset Smith, Priscilla J. Webb, Sandra Anderson
Norman, Adajhia Parker, Shakeena Benton, and Cedric T. Baker, Sr.).)
-2?4-

Docket Entry 268-1 at 4, Docket Entry 268-5 at 2-3, and Docket
Entry 268-6 at 3-5).) “Third, [Plaintiffs emphasized that] counsel
for [] Legislative [Leaders] was present at [] the November 21,
2023 status conference . . . where [Judge Biggs] made clear that
implementation evidence will be before the Court at trial.” (Id.
at 16 (citing Docket Entry 268-9 at 26).) From Plaintiffs’
perspective, this record material “demonstrate[s] that Legislative
[Leaders] cannot be ‘surprised’ that evidence concerning
implementation will be presented at trial.” (Id.)
The Court here, though, confronts a different question, i.e.,
does Plaintiffs untimely disclosure on March 20, 2024, of unnamed
representatives from Democracy North Carolina and Vote Riders
(later specified as three particular employees of those groups),
Mr. Daye, unnamed election officials and poll workers (still not
clearly identified), Mr. Perry, Ms. Brower, and four categories of
unnamed voters (just recently narrowed down to eight specific
voters) constitute “surprise to [Legislative Leaders],” Southern
States, 318 F.3d at 597. And, to that question, the undersigned
Magistrate Judge answers yes: even if Legislative Leaders received

notice that Plaintiffs intended to present implementation evidence
of some sort, Plaintiffs’ failure to timely identify these
witnesses/witness-types as deliverers of that (or any other)
evidence remains a form of surprise.

-25-
Given that Plaintiffs evidently intended from the start of
this case to use evidence about S.B. 824’s implementation to
support their claims, their deferral of notice of the witnesses on
whom they would rely on that front, including (as Legislative
Leaders’s reply observes) “12 unnamed until April 2024” (Docket
Entry 273 at 7), strikes the Court as particularly problematic,
because “[s]upplementation must be made with special promptness as
the trial date approaches,” Coalition to Save Our Children, 90 F.3d
at 775 (internal quotation marks omitted); see also Pem-Air Turbine
Engine Servs. LLC v. Gupta, No. 3:21CV180, 2024 WL 758561, at *1
(N.D. Tex. Feb. 22, 2024) (unpublished) (“Courts have cautioned
that problems can arise when they allow supplementation too close
to the date of trial.” (internal quotation marks omitted)). For
example, “[o]rganizations such as Democracy North Carolina and Vote
Riders have existed for the duration of this lawsuit” (Docket Entry
237 at 17); thus, at least as far back as the status conference in
July 2023, Plaintiffs (by then well aware of the ongoing
implementation of S.B. 824) surely could have identified unnamed
(or even named) representatives of Democracy North Carolina and

Vote Riders as witnesses Plaintiffs “may use to support [their]
claims,” Fed. R. Civ. P. 26(a)(1)(A)(i); see also Gomez v. Haystax
Tech., Inc., 761 F. App’x 220, 234 (4th Cir. 2019) (“Litigants need
not fully investigate potential witnesses . . . in order to include
those witnesses on their Rule 26 [witness] disclosures.”).
-26-
Likewise, “for individuals . . . related to the 2023 municipal
elections, at a minimum Plaintiffs could have made these
disclosures months ago . . . .” (Docket Entry 237 at 14; see also
Docket Entry 237-5 at 19-22 (memorializing Plaintiffs’ counsel’s
remarks on November 21, 2023, professing detailed knowledge of
problems during 2023 municipal elections).) Indeed, the Court
agrees with Legislative Leaders that, “[t]o the extent witnesses
such as . . . [Mr.] Daye, [Mr.] Perry, [Ms.] Brower, . . . and the
unnamed election officials, poll workers, and individual voters
have information regarding the 2023 municipal elections, then
Plaintiffs should have immediately disclosed their identity after
th[ose] elections . . . .” (Docket Entry 237 at 18.)
The undersigned Magistrate Judge also cannot accept
Plaintiffs’ accusation that “Legislative [Leaders] falsely claim
. . . that they were prohibited from participating in discovery.”
(Docket Entry 268 at 16 (emphasis added).) Rather, the record
(summarized in the Introduction) supports Legislative Leaders’
position “that Plaintiffs succeeded in preventing Legislative
[Leaders] from intervening—and thus from participating in

discovery—until two years after discovery had already ended.”
(Docket Entry 273 at 8 (citing, inter alia, Docket Entry 66 at 1-3,
11 and Docket Entry 82 at 7).) Similarly, although Plaintiffs
charge Legislative Leaders with “badly mischaracteriz[ing] the
actual procedural history of this case” (Docket Entry 268 at 17),
-27-
by “omit[ting] from their discussion [] that in July 2023, [the
undersigned Magistrate Judge] offered all [p]arties — including []
Legislative [Leaders] — the opportunity to propose any discovery
they wished to seek and they declined to do so” (id. (citing Text
Order dated July 5, 2023)), Plaintiffs’ framing of those events
actually creates the misleading impression.
With that Text Order, the undersigned Magistrate Judge did not
signal any intent to reopen discovery for anyone; instead, the
undersigned Magistrate Judge (A) knew Plaintiffs had requested the
reopening of discovery and (B) wanted all discovery-related issues
flushed out before the status conference on Plaintiffs’ request.
Nothing the undersigned Magistrate Judge wrote in that Text Order
or said during that status conference constituted “entreaties from
. . . the Court [for Legislative Leaders] to conduct discovery”
(id. at 2). In any event, the fact that Legislative Leaders (and
the Elections Board) declined to join Plaintiffs’ unsuccessful
quest to reopen discovery in July 2023 does not mean that
Legislative Leaders forfeited the right to point out their current
inability to “obtain discovery from and depose the fifteen

individuals or categories of individuals that Plaintiffs newly
disclosed [as witnesses]” (Docket Entry 237 at 18), without the
Court now reopening discovery, which “would be inconsistent with
the [established] May 2024 trial date” (id.), i.e., “disrupt[ive
of] the trial,” Southern States, 318 F.3d at 597; see also Advanced
-28-
Fluid Sys., Inc. v. Huber, 958 F.3d 168, 181 (3d Cir. 2020)
(approving of fact that district court “did not wish to further
delay a case that was ready for trial and had taken four years to
get to that point”); Bartell v. Grifols Shared Servs. NA, Inc., No.
1:21C0V953, 2023 WL 4868135, at *10 (M.D.N.C. July 31, 2023)
(unpublished) (Osteen, J.) (holding that “[r]equiring the parties
to reopen discovery at [late] stage would prejudice [the
djefendants”); Lighting Retrofit Int’l, LLC v. Constellation
NewEnergy, Inc., Civ. No. 19-2751, 2021 WL 2338377, at *4 (D. Md.
June 8, 2021) (unpublished) (reiterating that “prolong[ing] an
already lengthy litigation . . . itself is a burden to the
litigants” (internal quotation marks omitted)).
Taking account of all these facts and circumstances — and
treating the fourth Southern States factor of the “importance of
the evidence,” id., as neutral’*® — the Court adjudges that, with but
one exception, Plaintiffs have failed to carry their burden of
establishing that their belated disclosure of unnamed
representatives from Democracy North Carolina and Vote Riders
(later specified as three employees of those two organizations),
Mr. Daye, unnamed election officials and poll workers (still not

16 The undersigned Magistrate Judge has treated this fourth factor as
neutral because, although (to varying degrees) “Plaintiffs, [the Elections
Board], and [Judge Biggs] all [may have] recognize[d] that evidence about
implementation is important” (Docket Entry 268 at 18), Plaintiffs have not shown
the particular importance of any particular implementation evidence (including
from these particular witnesses) (see id.) and (as outlined in the Introduction)
the Fourth Circuit has highlighted some significant limitations on the pertinence
of implementation evidence to Plaintiffs’ claims, see Raymond, 981 F.3d at 298.
-2?9-

clearly identified), Mr. Perry, Ms. Brower, and four categories of
voters (just recently narrowed down to eight named voters) “is
harmless,” Fed. R. Civ. P. 37(c)(1). That one exception concerns
voter-witnesses from the 2024 primary. Plaintiffs reasonably could
not have disclosed those witnesses much sooner than they did,
because (as even Legislative Leaders have acknowledged) “the 2024
primary election just concluded” (Docket Entry 237 at 18).
Courts have “recognize[d] that through no one’s fault,
evidence is sometimes obtained belatedly when . . . a new source is
uncovered. Discovery aims only to mitigate surprise, for nothing
can eliminate it entirely from trial practice.” Southern Union Co.
v. Liberty Mut. Ins. Co., No. 06CV12067, 2008 WL 8564583, at *4 (D.
Mass. Mar. 25, 2008) (unpublished) (internal quotation marks
omitted). Consistent with that principle, the undersigned
Magistrate Judge concludes that – to the extent the voter-witnesses
identified by Plaintiffs on April 5 and 15, 2024 (see Docket Entry
242-1 at 4, 6; Docket Entry 266 at 6) can provide otherwise
admissible evidence about the implementation of S.B. 824 during the
2024 primary election – the untimeliness of the Amended

Supplemental Disclosures “is harmless,” Fed. R. Civ. P. 37(c)(1).17

17 That harmlessness finding does not apply to poll workers or election
officials involved in the 2024 primary election, because Plaintiffs never clearly
identified any such individuals (even in their trial lists filed in April 2024).
-30-
Documents
Legislative Leaders also have sought relief on the ground
that, when Plaintiffs served the Amended Supplemental Disclosures
on March 20, 2024, they “newly identified seven categories of
documents that they would use to support their claims and expanded
upon the one previously identified category . . . .” (Docket Entry
237 at 13 (referring to Docket Entry 236-1 at 9-12).) By way of
background, on October 18, 2019, “[p]ursuant to [] Rule []
26(a)(1)(A)(ii), [Plaintiffs disclosed] the following . . .
description . . . of documents, electronically stored information,
and tangible things that [they] have in their possession, custody,
or control and may use to support their claims” (Docket Entry 237-2
at 9): “Documents and communications relating to [] Plaintiffs’
get-out-the-vote and voter registration activities, voter
registration and education activities, including resources diverted
to address the adverse impact of S.B. 824.” (Id.) Plaintiffs
supplemented their initial disclosure on September 10, 2021, but –
as to matters subject to disclosure under Rule 26(a)(1)(A)(ii) –
they stated: “No supplemental information regarding documents.”

(Docket Entry 237-3 at 4.) Two months later, Plaintiffs served
another supplemental disclosure, but again disclosed nothing new
pertaining to documents. (See Docket Entry 237-4 at 2-3.)
Another 28-plus months then passed without supplementation by
Plaintiffs, until (mere weeks before trial) they served the Amended
-31-
Supplemental Disclosures, adding these seven, new categories of
documents in Plaintiffs’ “possession, custody, or control [which
they] may use to support their claims” (Docket Entry 236-1 at 10):
1) “[d]ocuments and communications relating to the [Elections
Board’s] implementation of S.B. 824’s photo voter ID requirements,
including transcripts or recordings of [Elections] Board meetings,
including in preparation for the 2016 primary election and for the
2023 municipal elections and 2024 primary elections” (id.);
2) “[m]aterials prepared by County Boards of Elections and
third parties (including legislators and third-party organizations)
regarding the implementation of photo ID requirements, including
transcripts or recordings of County Board meetings, including in
preparation for the 2016 primary election and for the 2023
municipal elections and the 2024 primary elections” (id.);
3) “[m]aterials concerning the legislative history and
process of H.B. 1092, S.B. 824, H.B. 1169 and S.B. 747 including
transcripts/recordings of legislative sessions, bill analysis,
amendments, and correspondence relating to the legislative process,
including any documents or communications relating to plans to

revise or amend these statutes” (id.);
4) “[a]ll public records, judicial and litigation records,
including all transcripts and videos of current or future judicial
proceedings, deposition transcripts, additional records and

-32-
documents produced or filed in the parallel state law voter photo
ID lawsuit Holmes v. Moore (Wake County 18 CVS 15292)” (id. at 11);
5) “[m]aterials relating to the impact of S.B. 824 on North
Carolina voters” (id.);
6) “[a]ll filings in this case” (id.); and
7) “[a]ny and all documents listed in the [Elections Board’s]
Initial Disclosures and any timely supplements” (id.).
Along with those additional categories of documents, the
Amended Supplemental Disclosures expanded Plaintiffs’ lone,
originally disclosed category of documents to encompass not only
“documents and communications relating to” their own “get-out-the-
vote and voter registration and education activities, including
resources diverted to address the adverse impact of S.B. 824”
(Docket Entry 237-2 at 9), but also “[d]ocuments and communications
relating to [such] activities of . . . third-party organizations”
(Docket Entry 236-1 at 10). Legislative Leaders have objected that
“Plaintiffs’ belated identification of seven new categories of
documents upon which they may rely at trial along with an expansion

of the one category they did previously disclose is untimely.”
(Docket Entry 237 at 19 (emphasis added).) In particular,
Legislative Leaders have argued:
On their face, many of these categories of documents
pertain to topics that are far from new and that
Plaintiffs would have been aware of, or should have been
aware of, years ago while discovery was open (e.g.,
“documents and communications relating to preparation for
the 2016 primary election;” “materials prepared by County
-33-
Boards of Elections and third parties (including
legislators and third-party organizations) regarding the
implementation of photo ID requirements in preparation
for the 2016 primary election;” and “materials concerning
the legislative history and process of H.B. 1092, S.B.
824, H.B. 1169 and S.B. 747”).
(Id. (brackets and ellipses omitted) (quoting Docket Entry 236-1 at
10); see also id. at 14 (arguing that, “for . . . documents related
to the 2023 municipal elections, at a minimum Plaintiffs could have
made those disclosures months ago”).) More broadly, Legislative
Leaders’ supporting brief contends that “[t]he Amended Supplemental
Disclosures are ‘not a proper supplemental’ disclosure ‘pursuant to
Rule 26(e)’ because Plaintiffs are ‘not attempting to correct the
original’ disclosures but to ‘add information’ that they left out
of their disclosures.” (Id. at 15 (quoting Thomasville Furniture
Indus. v. Pulaski Furniture Corp., No. 1:09CV591, 2011 WL 13239926,
at *2 (M.D.N.C. Dec. 1, 2011) (unpublished) (Sharp, M.J.)).)
In response, Plaintiffs have asserted that their “March 20,
2024 supplemental disclosures are timely and consistent with Rule
26.” (Docket Entry 268 at 9; see also id. at 1 (“Plaintiffs did
not violate Rule 26(a) or (e) as the information . . . identified
in Plaintiffs’ Amended Supplemental Disclosures w[as] timely
disclosed.”).) Plaintiffs, however, constructed no coherent
argument to justify that conclusory assertion; instead, they simply
adverted to the fact that “[t]hose disclosures were made two weeks
after the [Elections Board’s] March 4, 2024 supplemental
disclosures . . . which accompanied voluminous production of
-34-
materials regarding the [Elections] Board’s implementation of S.B.
824.” (Id. at 9; see also id. at 1 (“Plaintiffs made this
supplemental disclosure in response to [the Elections Board’s]
latest supplemental disclosure, made two weeks earlier . . . which
identified several new witnesses and was disclosed in conjunction
with the [Elections Board’s] disclosure of numerous materials
related to its implementation of S.B. 824 . . . .”).) “But this is
a non sequitur.” United States v. Lewis, 477 F. App’x 79, 82 (4th
Cir. 2012). “The ‘timely manner’ inquiry of Rule 26(e) considers
when new facts were supplemented relative to when the new facts
were discovered by the supplementing party.” Petersen v. Rapid
City, Pierre & Eastern R.R., Inc., No. 5:22CV5064, 2024 WL 249679,
at *3 (D.S.D. Jan. 23, 2024) (unpublished).
Plaintiffs did not first discover that they possessed and
intended to rely on “[d]ocuments and communications relating to the
[Elections Board’s] implementation of S.B. 824’s photo voter ID
requirements” (Docket Entry 236-1 at 10), only “after the
[Elections Board made its] March 4, 2024 supplemental disclosures”
(Docket Entry 268 at 9). Nor did Plaintiffs suddenly, between

March 4 and 20, 2024, first acquire (for use in this litigation)
(A) “[m]aterials prepared by County Boards of Elections and third
parties (including legislators and third-party organizations)
regarding the implementation of photo ID requirements” (Docket
Entry 236-1 at 10), (B) “[m]aterials concerning the legislative
-35-
history and process of H.B. 1092, S.B. 824, H.B. 1169 and S.B. 747”
(id.), (C) materials from “the parallel state law voter photo ID
lawsuit Holmes v. Moore (Wake County 18 CVS 15292)” (id. at 11),
(D) “[m]aterials relating to the impact of S.B. 824 on North
Carolina voters” (id.), (E) “[a]ll filings in this case” (id.),
(F) “documents listed in the [Elections Board’s] Initial
Disclosures” (id.), and/or (G) “[d]ocuments and communications
relating to the activities of . . . third-party organizations to
get-out-the-vote” (id. at 10).
To the contrary (for instance), when Plaintiffs filed the
Joint Report on September 23, 2019, they acknowledged that the
Elections Board “ha[d] been providing a large number of discovery
exchanges from . . . Holmes.” (Docket Entry 77 at 2 (full case
name and citation omittted).) In that same filing, Plaintiffs
manifested their understanding of the significance of, as well as
their intent to gather, information about “[t]he legislative
history of [S.B. 824]” (id. at 2), “[t]he [Elections] Board’s

implementation of [S.B. 824]” (id. at 3), and “[t]he impact of
[S.B. 824] on North Carolina voters” (id.). Consistent with those
record statements by Plaintiffs at the start of the case, in the
lead up to the then-anticipated trial in January 2022, Plaintiffs
indicated that they (at that point) could produce “a full record of
[S.B. 824’s] historical background” (Docket Entry 165 at 8) and a
“fulsome evidentiary record . . . at trial . . . [to prove] that
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the General Assembly acted with discriminatory intent” (id. at 9),
“including historical and statistical analysis, [as well as
evidence about] legislative process[es] and real-world conditions
and voter experiences” (id. at 10).
In view of that record, long ago – certainly years before
March 20, 2024 – Plaintiffs’ “obligation to supplement ar[ose] when
[they] reasonably should [have] know[n] that [their] prior
[document disclosure was] incomplete,” Jama v. City & Cnty. of
Denver, 304 F.R.D. 289, 299 (D. Colo. 2014). Put another way, the
record establishes that, since at least 2021, (1) Plaintiffs “ha[d]
in [their] possession, custody, or control and [knew they] may use
to support [their] claims,” Fed. R. Civ. P. 26(a)(1)(A)(ii), all
seven of the categories of information they disclosed for the first
time on March 20, 2024, and (2) “there [wa]s an objectively
reasonable likelihood that [such] information could substantially
affect or alter the[ir] opposing part[ies’] . . . trial
preparation,” Sender, 225 F.R.D. at 654. In sum, Plaintiffs’
decision to postpone (for years) any supplementation of their
document disclosure until only six-and-a-half weeks remained before

trial violated their duty to “supplement . . . [their document]
disclosure . . . in a timely manner,” Fed. R. Civ. P. 26(e)(1)
(emphasis added); see also Petersen, 2024 WL 249679, at *3 (“Rule
26(e) is ‘not an invitation to hold back material items and

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disclose them at the last moment.’” (quoting Wright & Miller,
Federal Practice & Procedure, § 2049.1 (3d ed.))).?
Because Plaintiffs “fail[ed] to provide [document-related]
information . . . as required by Rule 26(a) [and] (e), [they are]

18 Plaintiffs’ response additionally states (1) that “[a]ll of these
categories were either previously disclosed, or concern implementation evidence
following the 2023 municipal and 2024 primary elections” (Docket Entry 268 at
12), and (2) that “Plaintiffs complied with [ Rjule [26 (e) (1) (A) ] by
supplementing their disclosures with implementation evidence that was generated
in conjunction with the November 2023 municipal and March 2024 primary elections”
(id. at 14). To support the first of those statements, Plaintiffs presented a
chart comparing the categories of documents they disclosed on March 20, 2024,
with the Elections Board’s document disclosure on May 15, 2020. (See id. at 12-
14 (citing, inter alia, Docket Entry 268-6).) As an initial matter, the plain
language of these two disclosures confirms that, although they may overlap in
some respects, several of Plaintiffs’ categories extend far beyond the Elections
Board’s purportedly parallel categories. For example, whereas the Elections
Board disclosed its intent to rely on “[faJll public records concerning the
implementation efforts of the S.B. 824’s voter photographic ID requirement by the
[Elections Board]” (id. at 13 (reproducing language in Docket Entry 268-6 at 5)),
Plaintiffs’ supposedly matching categories actually contain no restriction to
“public records concerning the [Elections Board’s] implementation efforts” (id.
(emphasis added)); vrather, Plaintiffs’ categories encompass the much broader
ranges of “[d]jlocuments and communications relating to the [Elections Board’s]
implementation [efforts]” (id. (emphasis added) (reproducing language in Docket
Entry 236-1 at 10)) and “[mjaterials prepared by . . . third parties ...
regarding the implementation of photo ID requirements” (id. (emphasis added)
(reproducing language in Docket Entry 236-1 at 10)). In similar fashion, the
Elections Board disclosed a category consisting of the “Legislative History and
Procedure of S.B. 824 and the .. . S.B. 824 Legislative Hearing Transcripts
and/or audio records” (id. (reproducing language in Docket Entry 268-6 at 4)),
but Plaintiffs did not restrict their allegedly mirroring category to that
discrete legislative history and related transcripts/recordings, instead sweeping
in “[mJaterials concerning” that legislative history and the histories of three
other pieces of legislation (id. (reproducing language in Docket Entry 236-1 at
10)), i.e., documents (A) from sources other than the General Assembly and
(B) about laws besides S.B. 824. Furthermore, the Elections Board’s disclosure
of documents it possessed and intended to use to prove its case did not grant
Plaintiffs the right to delay disclosing until just before trial the documents
they possessed and intended to use to prove their case; in the words of
Legislative Leaders, “[t]hat is not how initial disclosures work” (Docket Entry
273 at 6 (citing Fed. R. Civ. P. 26(a) (1) (A) (ii))). Finally, Plaintiffs’
inclusion (in some of their categories) of references to the 2023 municipal
elections and the 2024 primary elections does not retroactively immunize their
earlier failure to disclose those categories, as they identify material pre-
dating those elections. (See Docket Entry 236-1 at 10 (referring to “preparation
for the 2016 primary election” in categories that also mention “2023 municipal
elections and 2024 primary elections”); see also Docket Entry 237 at 14
(observing that, for “documents related to the 2023 municipal elections, at a
minimum Plaintiffs could have made those disclosures months ago”).)
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not allowed to use that information .. . to supply evidence...
at a trial, unless the failure was substantially justified or [walls
harmless.” Fed. R. Civ. P. 37(c) (1). Moreover, as “[t]he party
failing to disclose information[, Plaintiffs] bears the burden of
establishing that the nondisclosure was substantially justified or
was harmless.” Bresler, 855 F.3d at 190. Consistent with the
positions of the parties (see Docket Entry 237 at 20; Docket Entry
268 at 14), the Court assesses Rule 37(c)(1)’s exceptions to
exclusion by looking to these five factors: “(1) the surprise to
[Legislative Leaders]; (2) the ability of [Legislative Leaders] to
cure the surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the evidence; and
(5) [Plaintiffs’] explanation for [their] failure to disclose the
evidence.” Southern States, 318 F.3d at 597; see also Wilkins, 751
F.3d at 222 (“The burden of establishing these factors lies with
the nondisclosing party ... .”).
Alone among those five factors, “the last factor, addressing
[Plaintiffs’] explanation for [their] nondisclosure, relates mainly
to the substantial justification exception.” Bresler, 855 F.3d at
190; see also id. (“The first four factors listed [in Southern
States] relate primarily to the harmlessness exception ... .”).
According to Plaintiffs, that “fifth factor weighs in [their] favor
as they timely . . . produced documents concerning implementation.”
(Docket Entry 268 at 19; see also id. at 2 (“[T]he timing of

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Plaintiffs’ disclosures was substantially justified as S.B. 824 was
only recently implemented. Plaintiffs could not have previously
identified relevant information . . . speak[ing] to the
implementation and impact of S.B. 824 since the statute had not
been implemented prior to the 2023 municipal and 2024 primary
elections.”).) For reasons just detailed, Plaintiffs did not
timely serve their Amended Supplemental Disclosures containing
seven new document categories (and a major expansion of their only
previously disclosed category), most of which (as quoted above) do
not even mention implementation (see Docket Entry 236-1 at 10-11).
And, again as confirmed by the literal terms of Plaintiffs’
document disclosures (set out at the beginning of this subsection),
even their newly disclosed document categories which do mention
implementation do not pertain only to the 2023 municipal elections
and/or the 2024 primary elections. (See id. at 10.)*® “Given the
lack of a valid explanation for the[se] late disclosures, .. .
[the Court exercises] its broad discretion [to] hold[] that
[Plaintiffs’] late disclosure [of their documents by category] was
not substantially justified.” Gomez, 761 F. App’x at 234.

18 Legislative Leaders also correctly have commented that “Plaintiffs have
never clarified when they obtained the newly disclosed documents from the county
boards of elections regarding the 2023 municipal elections ... .” (Docket
Entry 273 at 11.) That silence speaks loudly because “[s]upplementation must he
made with special promptness as the trial date approaches.” Coalition to Save
Our Children, 90 F.3d at 775 (internal quotation marks omitted); see also Medline
Indus., L.P. v. C.R. Bard, Inc., No. 14CV3618, 2023 WL 2711433, at *5 (N.D. Ill.
Mar. 30, 2023) (unpublished) (cautioning against constructions of Rule
26(e) (1) (A) which create incentives for litigants to “deliberately delay[] some
of [their] informal fact investigations (including document acquisition)”).
-A40Q-

Plaintiffs last hope thus lies with their argument that their
untimely, document-category “disclosures are harmless.” (Docket
Entry 268 at 2.) Legislative Leaders’ supporting brief nominally
maintains, in blanket fashion, that “Plaintiffs cannot carry their
burden of establishing . . . that [their] untimely disclosure was
harmless to Defendants.” (Docket Entry 237 at 21; see also id. at
20 (contending that “Plaintiffs’ untimely disclosure of . . . whole
categories of documents was not . . . harmless”).) In line with
that all-encompassing assessment, at one point in their supporting
brief, Legislative Leaders requested that the Court enter an order
“prohibit[ing] Plaintiffs from offering any of the newly identified
. . . documents at trial.” (Id. at 15 (emphasis added); see also
id. at 6 (“[Legislative Leaders] preference is for th[e] Court to
. . . prohibit Plaintiffs from relying on th[eir] late disclosed
. . . documents at trial.”).)
An order following that literal specification would leave
Plaintiffs with the ability to introduce at trial only documents
falling within the lone category they originally disclosed:
“Documents and communications relating to [] Plaintiffs’ get-out-

the-vote and voter registration activities, voter registration and
education activities, including resources diverted to address the
adverse impact of S.B. 824.” (Docket Entry 237-2 at 9.) Such an
order thereby would preclude Plaintiffs from offering at trial
documents from the record of the Holmes case, because Plaintiff
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only included that category of documents in the Amended
Supplemental Disclosures they served on March 20, 2024 (see Docket
Entry 236-1 at 11). In like manner, an order “prohibit[ing]
Plaintiffs from relying on th[eir] late disclosed . . . documents
at trial” (Docket Entry 237 at 6) would bar introduction of S.B.
824’s “legislative history . . . including transcripts/recordings
of legislative sessions” (Docket Entry 236-1 at 10).
Other aspects of that same supporting brief, however, suggest
that Legislative Leaders did not actually intend to seek relief
that drastic, as well as that (impliedly at least) they recognize
that Rule 37(c)(1)’s harmlessness exception to exclusion would
apply to some documents Plaintiffs failed to describe by category
in a disclosure (as required by Rule 26(a)(1)(A)(ii)) prior to
serving the Amended Supplemental Disclosures on March 20, 2024. Of
particular note, Legislative Leaders’ supporting brief elsewhere
asks the Court to “exclud[e] all documents from the newly
identified categories that are not in Defendants’ possession,
custody, or control from admission by Plaintiffs at trial.”
(Docket Entry 237 at 6 (emphasis added).) That caveat would allow

Plaintiffs to introduce at trial documents, such as evidence from
the Holmes record and from the legislative history of S.B. 824, to
which all parties to this case long have enjoyed access, despite
the failure of Plaintiffs to timely list those categories of
documents in a disclosure (effectively acknowledging the
-42-
harmlessness of that oversight). Documents within other categories
belatedly disclosed by Plaintiffs on March 20, 2024, e.g.,
“[d]ocuments and communications relating to the [Elections Board’s]
implementation of S.B. 824’s photo voter ID requirements” (Docket
Entry 236-1 at 10) and “[m]aterials relating to the impact of S.B.
824 on North Carolina voters” (id. at 11), also would remain
available for Plaintiffs’ use at trial under an exclusion of that
sort, to the extent those documents reside on the Elections Board’s
website(s) (see id. at 10-11 (naming said website(s) as one
“Location” of such documents/materials (bold font omitted)); see
also Docket Entry 237 at 23 (“To the extent any implementation
evidence is admissible, the public records and statistics available
on the [Elections] Board’s website are sufficient for the Court to
tell how the law has been implemented.”)).
Of course, Plaintiffs want the Court to make a broader finding
of harmlessness, which preserves their ability to use any document
falling within any of the seven new categories (and the expanded
version of their originally disclosed category) in the Amended
Supplemental Disclosures served on March 20, 2024. (See Docket

Entry 268 at 14 (insisting that any Rule 26(e)(1)(A) “violation was
. . . harmless as each of the Southern States factors weighs in
Plaintiffs’ favor”).) But in addressing the first Southern States
factor, Plaintiffs assert only that “[t]he idea that the
introduction of implementation evidence . . . into this case is a
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surprise is wholly without merit.” (Id. at 15 (emphasis added).)20
To support that position, Plaintiffs point to the “discussion of
implementation evidence in the Joint [] Report, numerous prior Rule
26(a) disclosures, and express discussions about the importance of
implementation evidence at two recent hearings [as] demonstrat[ing]
that Legislative [Leaders] cannot be ‘surprised’ that evidence
concerning implementation will be presented at trial.” (Id. at
16.) Legislative Leaders lack a persuasive reply to those points.
In fact, their reply brief never denies that they have known
for years that Plaintiffs would rely on implementation evidence as
part of their litigation strategy. (See Docket Entry 273 at 1-12.)
Nor could Legislative Leaders offer such a denial, as the record
bears out Plaintiffs’ long-standing stance on that subject. (See
Docket Entry 77 at 3 (including “[t]he [Elections] Board’s
implementation of [S.B. 824]” in Joint Report’s litany of discovery
topics); Docket Entry 268-1 at 4 (listing “proposed and anticipated
implementation of S.B. 824 by state officials” as form of evidence
available from one set of witnesses identified in Plaintiffs’
initial disclosure).) Instead of voicing a claim of surprise that

Plaintiffs would rely at trial on the document category of
20 By focusing here only on “implementation evidence” (Docket Entry 268 at
15), Plaintiffs have not attempted to meet their burden of showing a lack of
surprise as to other categories of documents newly disclosed on March 20, 2024,
and thus (as to those categories) must settle for Legislative Leaders’ above-
discussed acceptance of Plaintiffs’ right to seek admission of documents – like
evidence from the Holmes case and S.B. 824’s legislative history – to which all
parties have shared access for some time. See, e.g., Belk, 679 F.3d at 152 n.4
(deeming argument “waived because [party] fail[ed] to develop this argument to
any extent in its brief”).
-44-
implementation evidence, Legislative Leaders’ reply brief voices a
claim that “Plaintiffs are surprising Legislative [Leaders] with
. . . thousands of pages of new documents” (Docket Entry 273 at 7),
including “evidence from the 2023 and 2024 elections [which] comes
years after the May 2020 close of fact discovery” (id.).
But that form of surprise and any associated harm does not
stem from the failure of Plaintiffs to list a document category of
implementation evidence within their initial disclosure (or a
timely supplement), in breach of their duty to provide “a
description by category and location [] of all documents . . . that
[Plaintiffs] ha[d] in [their] possession . . . and may use to
support [their] claims,” Fed. R. Civ. P. 26(a)(1)(A)(ii). Restated
slightly differently, Legislative Leaders object to the timing of
their receipt of copies of “thousands of pages of new documents”
(Docket Entry 273 at 7); however, Rule 26(a)(1)(A)(ii)’s disclosure
requirement (and the coordinate requirement for timely
supplementation under Rule 26(e)(1)(A)) did not entitle Legislative
Leaders to receive such copies – at any time. Rather, those rule
provisions only afforded them the right to a document “description

by category and location,” Fed. R. Civ. P. 26(a)(1)(A)(ii). And
had Plaintiffs listed in their initial disclosure a category of
implementation evidence or served a timely supplement containing

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such a listing, Legislative Leaders still would have ended up
experiencing the same surprise/harm about which they now complain.21
Because Plaintiffs have established that their failure to
timely disclose implementation evidence as a document category
under Rule 26(a)(1)(A)(ii) did not result in “surprise to
[Legislative Leaders],” Southern States, 318 F.3d at 597, the Court
need not consider means “to cure the surprise,” id., or whether the
adoption of such means “would disrupt the trial,” id. Lastly, the
undersigned Magistrate Judge considers the final, harmlessness-
related factor, i.e., “the importance of the [implementation]
evidence,” id., neutral (for the same basic reasons which led to
that conclusion as part of the harmlessness analysis in the
Witnesses subsection of the Discussion). On balance, these factors
support the finding that Plaintiffs’ untimely disclosure of
implementation evidence as a document category on March 20, 2024,
“[wa]s harmless,” Fed. R. Civ. P. 37(c)(1).
CONCLUSION
Plaintiffs “fail[ed] to . . . identify” organizational
representatives from Democracy North Carolina and Vote Riders,

Tyler Daye, election officials who implemented S.B. 824 during the
21 As laid out in the Introduction, discovery in this case closed before
Legislative Leaders succeeded in securing party-status. Therefore, if Plaintiffs
had included implementation evidence as a document category in their initial
disclosure or a timely supplement (as they should have done), Legislative Leaders
(as then-non-parties) still could not have used that notice to request production
of any implementation evidence in Plaintiffs’ possession under Rule 34(a), the
mechanism for ensuring that Plaintiffs remained under a continuing obligation to
provide supplemental productions of such evidence to Legislative Leaders in a
timely manner under Rule 26(e)(1)(A).
-46-
2023 municipal elections or the 2024 primary elections, poll
workers who assisted voters with voting provisionally due to S.B.
824’s photo identification requirement during the 2023 municipal
elections or the 2024 primary elections, Julius Perry, Shelia
Relette Brower, and individual voters (A) who voted provisionally
using an ID Exception Form in the 2023 municipal elections,
(B) who voted provisionally using the “Return with ID” option
during the 2023 municipal elections, (C) who had to obtain one of
the forms of ID accepted for voting under S.B. 824 during the 2023
municipal elections, and/or (D) who were unable to cast any ballot
in the 2023 municipal elections due to the photo voter ID
requirement of S.B. 824 as “witness[es] as required by Rule 26(a)
[and] (e),” and Plaintiffs failed to show “th[at] failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
As a result, Plaintiffs “[are] not allowed to use th[ose] . . .
witness[es] to supply evidence . . . at [their] trial.” Id.
Plaintiffs also “fail[ed] to provide [a description by
category and location of the categories of documents added/expanded
in the Amended Supplemental Disclosures] as required by Rule 26(a)

or (e),” id., and failed to show “th[at] failure was substantially
justified or is harmless,” id., except as to (1) documents and
communications relating to the Elections Board’s implementation of
S.B. 824’s photo voter ID requirements, (2) materials prepared by
County Boards of Elections and third parties (including legislators
-47-
and third-party organizations) regarding the implementation of
photo ID requirements, and (3) documents from the other newly
added/expanded categories that were in Defendants’ possession,
custody, or control before March 20, 2024, as to which Plaintiffs’
failure “is harmless,” id. As a result, Plaintiffs “[are] not
allowed to use th[ose documents other than those herein deemed
harmless] . . . to supply evidence . . . at [their] trial,” id.
IT IS THEREFORE ORDERED that the instant Motion (Docket Entry
236) is GRANTED IN PART AND DENIED IN PART, in that,
Plaintiffs shall not use as witnesses at trial any of the
following: organizational representatives from Democracy North
Carolina and Vote Riders, Tyler Daye, election officials who
implemented S.B. 824 during the 2023 municipal elections or the
2024 primary elections, poll workers who assisted voters with

voting provisionally due to S.B. 824’s photo identification
requirement during the 2023 municipal elections or the 2024 primary
elections, Julius Perry, Shelia Relette Brower, and/or individual
voters (A) who voted provisionally using an ID Exception Form in
the 2023 municipal elections, (B) who voted provisionally using the
“Return with ID” option during the 2023 municipal elections,
(C) who had to obtain one of the forms of ID accepted for voting
under S.B. 824 during the 2023 municipal elections, and/or (D) who
were unable to cast any ballot in the 2023 municipal elections due
to the photo voter ID requirement of S.B. 824; and
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Plaintiffs shall not use as evidence at trial any items within
the categories of documents added/expanded in the Amended
Supplemental Disclosures, except (1) documents and communications
relating to the Elections Board’s implementation of S.B. 824’s
photo voter ID requirements, (2) materials prepared by County
Boards of Elections and third parties (including legislators and
third-party organizations) regarding the implementation of photo ID
requirements, and (3) documents from the other newly added/expanded
categories that were in Defendants’ possession, custody, or control
before March 20, 2024.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 29, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653719. Public record. Not legal advice.