United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
three motions in limine, Syngenta seeks to preclude Willowood
from using recently disclosed witnesses and documents at the
upcoming trial. This evidence concerns whether the process
for manufacturing Willowood's azoxystrobin technical
infringes the ‘138 and ‘761 patents and whether
there are non-infringing alternatives to the patented
processes. Because Willowood's late disclosure
was not substantially justified and is not harmless, the
Court will grant the motions in limine and exclude
Willowood's late-disclosed witnesses and documents.
trial of this case will begin on September 5, 2017. Doc. 136
at ¶ 1. Pursuant to the Court's orders, Willowood
and Syngenta exchanged pretrial disclosures on May 25, 2017
and then filed them on June 1, 2017. See Docs. 188,
189. In its pretrial disclosures, Willowood identified
several witnesses it intended to call to testify at trial who
had not been listed as potential witnesses in its Rule 26
initial or supplemental disclosures. Compare Doc.
188-1 at 2 with Doc. 120-5 at 2 and Doc. 118-2 at
On the 3rd and 5th of July 2017,
Willowood identified and provided copies of several documents
as trial exhibits which it had not previously disclosed
during discovery. Doc. 256-1 at ¶¶ 9-10. Syngenta
moves to preclude these witnesses from testifying and to
exclude the documents from evidence under Federal Rule of
Civil Procedure 37(c). Doc. 213; Doc. 214 at 24-25, 28-29;
in the litigation, a litigant must disclose the information
and witnesses that it “may use to support its claims or
defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). “The
purpose of Rule 26(a) is to allow the parties to adequately
prepare their cases for trial and to avoid unfair
surprise.” Russell v. Absolute Collection Servs.,
Inc., 763 F.3d 385, 396 (4th Cir. 2014). A party must
also supplement its disclosures if it obtains new
information, “if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing.”
Rule of Civil Procedure 37(c) provides “strong
inducement” for following the disclosure requirements
of Rule 26(a) and (e). Fed.R.Civ.P. 37(c) Advisory Comm.
Notes (1993). “If a party fails to provide information
or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness . . .
at trial, unless the failure was substantially justified or
is harmless.” Fed.R.Civ.P. 37(c)(1).
Fourth Circuit considers the following factors to be
“helpful in determining whether a party's
nondisclosure of evidence was substantially justified or
(1) the surprise to the party against whom the evidence would
be offered; (2) the ability of the 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.
S. States Rack & Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 596-97 (4th Cir. 2003). The first
four factors “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 v.
Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir. 2017).
the late-disclosed evidence is harmful to the opposing party
often depends on whether any resulting surprise, or
prejudice, to the opposing party can be cured. See S.
States, 318 F.3d at 596. For instance, in
Bresler, the Fourth Circuit upheld the admission of
a new damages calculation as harmless because surprise was
minimal when the new calculation decreased damages and the
opposing party had notice of the damages theory and did not
take steps to cure potential harm despite having the exhibit
for two months before trial. 855 F.3d at 193-94. In contrast,
the Fourth Circuit upheld the exclusion of a new witness and
new evidence disclosed two months before trial to prevent
unfair surprise when the defendant did not identify its own
employee as a potential witness and when the new evidence
presented “an entirely new factual basis” for its
defense. Russell, 763 F.3d at 397-98.
to trial also weighs against admission of late disclosed
evidence. Additional rounds of depositions and supplemental
reports and briefing would completely disrupt the trial
schedule, and ongoing objections to an undisclosed
witness' testimony and evidence offered in rebuttal
disrupt the trial itself. See BorgWarner, Inc. v.
Honeywell Int'l, Inc., 750 F.Supp.2d 596, 605-06
(W.D. N.C. 2010) (excluding testimony by a late-disclosed
The Evidence at Issue
proposes to call five witnesses and to offer into evidence
two new groups of documents, none of which were previously
disclosed as witnesses and information that it might use
“to support its claims or defenses.” Fed.R.Civ.P.
26(a)(1)(A); see Doc. 188-1 (listing witnesses);
Doc. 220 (adding Exhibits 167-69).
proposes to call three of its own employees as witnesses.
Matt Heinze would be asked questions about various emails
that he wrote or received on Willowood's pricing, sales,
and marketing of azoxystrobin and that Syngenta plans to
place in evidence. Rajesh Jain and Sophia Wang would be asked
questions about various emails that they wrote or received
concerning the etherification and condensation steps of the
first group of documents consists of process descriptions
from third-party manufacturers, particularly CAC Chemical and
an Indian manufacturer, on how they manufacture azoxystrobin.
See Doc. 256-1 at ¶ 10; Doc. 220 at 15
(describing Exhibits 167-68). Willowood has also identified
two employees of CAC, stating that it intends to call one of
them to ...