United States District Court, D. Delaware
LIQWD, INC. and OLAPLEX LLC, Plaintiffs,
L'ORÉAL USA, INC., L'ORÉAL USA PRODUCTS, INC., L'ORÉAL USA S/D, INC., and REDKENS 5TH AVENUE, NYC, L.L.C., Defendant.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion in
limine, D.I. 831. Plaintiffs ask this Court to preclude the
testimony of three employees of defendants. These employees
were allegedly not offered up for deposition until May 2,
2019, five months after the close of discovery, two weeks
after the close of expert discovery, and weeks after the
submitted summary judgment motion deadline. Plaintiffs
contend that they attempted to obtain testimony and documents
from two of these witnesses, Delphine Allard and Carline
Goget; and the third witness, Stephan Habif, was not
disclosed until after the close of fact discovery. Trial is
scheduled in 30 days, and plaintiffs argue they will be
unable cure the prejudice if these proposed witnesses are
allowed to testify.
Court's Scheduling Order requires trial witnesses to have
“previously been disclosed during discovery.”
D.I. 192 § 3(j)(i). Further, “[i]t is expected that
all such witnesses will have been disclosed, vetted, and
deposed, if a party elects, during the fact discovery
process.” Id. § 3(j)(iii) (emphasis
added). Summary judgment and Daubert briefing was completely
filed by April 18, 2019. Motions in limine and the joint
Pretrial Order were filed on May 15, 2019. Plaintiffs content
the first time these persons were disclosed as trial
witnesses was May 2, 2019.
a party fails to provide information or identify a witness
… the party is not allowed to use that information or
witness to supply evidence … at a trial, unless the
failure was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). Courts must evaluate whether failure
to provide a witness is harmless. Meyers v. Pennypack
Woods Home Ownership Assoc., 559 F.2d 894, 904-05 (3d
Cir. 1977). In addition, the Court must look at the following
factors: “(1) the prejudice or surprise in fact of the
party against whom the excluded witnesses would have
testified, (2) the ability of that party to cure the
prejudice, (3) the extent to which waiver of the rule against
calling unlisted witnesses would disrupt the orderly and
efficient trial of the case or other cases in the court, and
(4) bad faith or willfulness in failing to comply with the
district court's order.” Konstantopoulos v.
Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997) (citing
argue that the prejudice and surprise to them is significant.
In addition to the above, defendants produced twenty-three
new documents as trial exhibits in the pretrial order. D.I.
805-2, Ex. 11. The witnesses would allegedly offer testimony
about defendants' receipt of plaintiffs' trade
secrets at the May 15 meeting. Plaintiffs contend they have
no time to conduct discovery or defend against these
allegations. Further, any evidence produced by these
witnesses that would go to damages can likewise not be
defended on such short notice. See Lamb v.
Montgomery Township, 734 Fed.Appx. 106, 110-11 (3d Cir.
2018) (affirming exclusion of late-disclosed witnesses where
“litigation conduct deprived [movant] of the
opportunity to depose” witnesses prior to summary
judgment); see also Greater N.Y. Mut. Ins. Co.
v. N. River Ins. Co., 85 F.3d 1088, 1097 (3d Cir. 1996)
(affirming exclusion of a “central witness”
when that witness was added to trial list after, as here, the
“discovery deadline had long since passed” and
“[s]o had the date for submitting pretrial
argue that plaintiffs erred in waiting nearly five months
before seeking foreign depositions, and further, plaintiffs
will not be prejudiced by allowing these witnesses to
testify. Defendants contend that they identified Ms. Allard
in their January 5, 2017 Complaint and in its Rule 26
disclosures on February 26, 2018, and again in its initial
disclosures on March 15, 2018. D.I. 2 at ¶¶ 45, 48.
L'Oreal claims it only opposed Olalex's document
requests as improper under French law. D.I. 502 at 11-12
(Magistrate Judge Fallon's Memorandum Opinion).
regard to witness Goget, defendants told plaintiffs that she
resided in France. Defendants contend that when Ms. Goget was
offered for deposition, plaintiff refused.
potential witness Stephan Habif, defendants contend that
plaintiffs have known about this witness for more than a
year, as his name appeared on many documents. He was also
identified in defendants Rule 26 disclosures and his
documents on its trial exhibit list state defendants.
short, defendants contend they have complied with their Rule
26 requirements. They argue the evidence is important; unique
in terms of the May 19, 2015 meeting; and Olaplex identified
these witnesses in its own Rule 26 disclosures. See
In re Joy Glob., Inc., 423 B.R. 445, 451
(D. Del. 2010) (“[T]he Court fails to see the harm to
[defendant] from permitting [the witness] to testify, given
that [defendant] itself identified [him]”).
exclusion of critical evidence is an ‘extreme'
sanction, not normally to be imposed absent a showing of
willful deception or ‘flagrant disregard' of a
court order by the proponent of the evidence.”
Pennypack, 559 F.2d at 905. “Courts in the
Third Circuit should exercise particular restraint in
considering motions to exclude evidence [, ]” as
“[t]he Third Circuit has, on several occasions,
manifested a distinct aversion to the exclusion of important
testimony absent evidence of extreme neglect or bad faith on
the part of the proponent of the testimony.” ABB
Air Preheater, Inc. v. Regenerative Envtl. Equip. Co.,
167 F.R.D. 668, 671 (D.N.J. 1996).
Court agrees with the plaintiffs. The defendants did not
timely disclose trial witnesses and there is no way to cure
the prejudice at this late date. Defendants have far exceeded
their deadlines and allowing the witnesses to testify would
greatly prejudice the plaintiffs. See Stambler
v. RSA Security, Inc., 212 F.R.D. 470, 471-72 (D. Del.
2003) (prejudice found where plaintiff would be forced to
depose fact weeks six weeks before trial). Permitting
discovery would likewise necessitate that trial would have to
be rescheduled, and the Court is unwilling to do so. Further,
as mentioned previously, the Court's Scheduling Order
states that trial “witnesses will have been disclosed,
vetted and deposed . . . during the fact discovery
process.” D.I. 192 § 3(j)(iii). It does in fact
appear that these witnesses were not offered for deposition
until very recently. Bridgestone Sports Co. Ltd. v.
Acushnet Co., 2007 WL 521894, at *4 (D. Del. Feb. 15,
2007) (“Courts applying [Pennypack] in the case of
sophisticated, complex litigation involving parties
represented by competent counsel have been less indulgent in
their application and more willing to exclude evidence
without a strict showing that each of the Pennypack
factors has been satisfied”). Ms. Allard lived abroad.
Olaplex states that they used the Hague Convention to
specifically designate her as a “person to be
examined.” Further, it does not appear that Ms. Goget,
who also lives in France, was ever offered up for a
deposition. Accordingly, the Court will grant this motion in
limine and deny defendants' request to call these three
witnesses at trial.
IT IS ORDERED THAT plaintiffs' motion in limine, D.I.
831, is granted and Delphine Allard, Carline Goget and
Stephan Habif will not be permitted to testify at trial and
the newly produced documents will not be admissible at trial.