The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
Defendants move, pursuant to Rules 26 and 37(a) of the Federal Rules of Civil Procedure, for an order compelling disclosure of witness identifications and permitting Rule 45 subpoenas to be served for the deposition of "Jimmy Devries" and "such other witnesses as plaintiffs may untimely disclose in response to the requested order, outside the existing cutoff period." [DE 100] Although Plaintiffs' counsel states, in a cover letter accompanying her response, that her papers "oppose" the motion to compel, the contents of the response contain only a proffered explanation from counsel as to why the disclosure of the last name of Devries was rendered late. The opposition letter also states that counsel cannot produce names of additional witnesses because she does not have any to produce.
The events surrounding this motion concern an incident which allegedly took place on March 18, 2003 -- election night in the Village of Sea Cliff -- during which Plaintiff Ehrlich claims that one of the defendants, Paul Marchese, then a Village Trustee, allegedly yelled religious epithets at Plaintiff Ehrlich from across the street. [DE 100] Ehrlich first testified about this event on December 6, 2005. Id. According to Defendants' counsel, this March 18 incident is significant because "Ehrlich has zero direct evidence of anti-semetic [sic] behavior by any individual defendant, other than this supposed March 18, 2003 event." Id. Defendants' counsel points to several purported contradictions in Ehrlich's deposition testimony concerning this issue and argues that Plaintiffs' counsel improperly delayed disclosing the identities of those present at the March 18, 2003 event until February 9, 2007. Id.
Additionally, defense counsel states that at his deposition, Ehrlich testified that "there were at least half a dozen other people" who witnessed the alleged slur and Defendant's counsel wishes to know the identities of these individuals. Id. In opposing the motion, Plaintiffs' counsel details her efforts to locate her notes of the witness interviews. [DE 102] Eventually, Plaintiffs' counsel states, she found her missing notepad and immediately provided all of the contact information which she had concerning the witnesses to the March 18, 2003 event. Id. Plaintiffs' counsel does not dispute, however, that she did not produce the last name of this purportedly crucial witness, "Jimmy," until February 9, 2007 -- six days before the close of discovery, a deadline which I advised the parties in singularly direct language that I would not extend.
A motion to compel is entrusted to the sound discretion of the district court. American Sav. Bank, FSB v. UBS Paine Webber, Inc., (In re Fitch, Inc.),330 F.3d 104, 108 (2d Cir. 2003); United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). The Second Circuit has noted that this is because a "trial court enjoys wide discretion in it handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." DG Creditor Corp. v. Dabah, (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir. 1998) (citing Cruden v. Bank of N.Y., 957 F.2d 961, 972 (2d Cir. 1992)). A district court is considered to have abused its discretion "if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
Fed. R. Civ. P. 26(a)(1)(A) mandates that a party must provide 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 and defenses." Fed. R. Civ. P. 26(a)(1)(A). Parties are also required to supplement such requisite disclosures in accordance with Rule 26(e). Shred-IT USA, Inc. v. Confidential Shredding, LLC, No. 03-CV-1816, 2005 WL 2290448, at *2 (E.D.N.Y. Sept. 20, 2005) (citing Emmpresa Cubana Del Tabaco v. Culbro Corp., 213 F.R.D. 151, 159 (S.D.N.Y.2003)). It is clear that Plaintiffs had a duty to seasonably amend their Rule 26(a) disclosures. See, e.g., JTH Tax, Inc. v. Liberty Tax & Business Services, Corp., No. 05-CV-1290, 2006 WL 2516473, at *2 (E.D.N.Y. Aug. 29, 2006); Fed. R. Civ. P. 26(e).
It is not disputed here that Plaintiffs did not include the name of Jimmy Devries in the Rule 26(a) disclosures, and I have no proof before me whether the names of any of the other purported "half dozen other people" who allegedly witnessed the March 18, 2003 event are contained in the Rule 26(a) disclosures. Notwithstanding Plaintiffs' duty to do so, it is also undisputed that they never supplemented their Rule 26(a) disclosures to include the names of those witnesses. Likewise, there is no indication that Plaintiffs provided this information in response to any interrogatory. Nor did Plaintiffs' counsel respond in a timely fashion to the repeated requests of Defendants' counsel to obtain the names of these purported witnesses prior to the approaching final deadline for discovery.
From the list of witnesses contained in the joint pre-trial order, it is unclear whether Plaintiffs' counsel intends to call at least some of these individuals as witnesses at trial. As stated in my prior Orders, discovery in this matter is closed. Jury selection has been set by Judge Wexler for June 4, 2007.
I find Plaintiffs' conduct with regard to this specific matter not only inexplicable, but difficult to excuse. Plaintiff testified to this individual's importance as a witness during his various days of deposition beginning in December of 2005. To provide the information on the eve of the final deadline for discovery without substantial justification for doing so is both unpersuasive and unacceptable.
The issue, then, concerns what remedy Defendants have based on this failure to timely disclose. Fed. R. Civ. P. 37(c)(1) provides that "A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed. R. Civ. P. 37(c)(1). The purpose of this Rule is to prevent the practice of "sandbagging" an opposing party with new evidence. Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000). Some district courts in this Circuit have read a "bad faith" requirement into Rule 37(c)(1), holding that this type of remedy should not be imposed unless "the party's conduct represents flagrant bad faith and callous disregard of the federal rules." McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995). However, as Judge Pauley noted in a recent decision, the Second Circuit has not yet addressed the issue and "it is an open question whether bad faith or willfulness is required ...