The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
This case is set to be trial-ready on Monday, April 9, 2012. This opinion addresses the three motions in limine filed by the defendants. Those motions seek to preclude the plaintiffs from introducing at trial (1) testimony from non-party witnesses whom defendants claim were not sufficiently identified by plaintiffs during discovery; (2) evidence of plaintiffs' damages and computations of damages, to the extent that such evidence was not produced during discovery; and (3) evidence of other discrimination lawsuits filed against the defendants in this case. For the following reasons, the motion to exclude categorically the testimony of non-party witnesses is denied; the motion to exclude non-produced evidence and computations of damages is granted, subject to an opportunity the Court will afford plaintiffs to demonstrate, on an item-by-item basis, that their failure to produce such evidence and computations was substantially justified and that the identification of such evidence shortly before trial is harmless, see Fed. R. Civ. P. 37(c)(1); and the motion to preclude mention of other lawsuits is granted in part and reserved in part.
The four plaintiffs in this case allege that their former employer, General Nutrition Centers ("GNC"), and a former supervisor, Neal Blitzer, subjected them to a hostile work environment and disparate treatment on the basis of race and/or national origin, and retaliated against them for complaining of such treatment. The allegations in plaintiffs' complaint and the procedural history of this case are set forth at length in the opinion of the Honorable Laura Taylor Swain, United States District Judge, to whom this case was previously assigned, granting in part and denying in part the defendants' motion for summary judgment. See Richmond et al. v. GNC et al., No. 08-cv-3577, 2011 U.S. Dist. LEXIS 67797, at *1--19 (S.D.N.Y. June 22, 2011).
On December 23, 2011, defendants filed the instant three motions in limine. On January 17, 2012, plaintiffs filed their opposition. On January 25, 2012, defendants submitted a reply. The Court addresses defendants' three motions in turn.
A.The defendants' motion to exclude evidence and testimony of non-party witnesses
The defendants seek, first, to exclude the testimony of non-party witnesses whom, they argue, plaintiffs did not identify, or did not identify with sufficient clarity, during the discovery period. Plaintiffs assert that this discovery dispute has already been resolved by Judge Swain's opinion granting in part and denying in part defendants' prior motions for summary judgment and to strike certain of plaintiffs' submissions in opposition to the motions for summary judgment.
Plaintiffs are correct. In the summary judgment opinion, Judge Swain made the following ruling: Defendants also move to strike the declarations of non-parties Gladys Kumi, Kissi Peprah, and Pete Ortiz. Defendants base their argument on a discovery dispute between Plaintiffs and Defendants. In interrogatories, Defendants asked Plaintiffs to identify anyone they complained to of discrimination, harassment, or retaliation. (Defs.' Br. at 5.) Plaintiffs identified 46 individuals, including the declarants. (Id.) According to Defendants, Plaintiffs' interrogatory answers were insufficient in that they did not provide enough information about these individuals. Plaintiffs identified the declarants by name and stated that they "have made statements at various times before and/or after this action commenced about the discriminatory practices of GNC and/or its failure to implement and enforce anti-discrimination policies and practices." (Pls.' Br. at 5.) Defendants complain that Plaintiffs did not give a detailed description of the extent of each declarant's knowledge and the circumstances of that knowledge, and thus they are prejudiced by the submission of these declarations. However, Plaintiffs' responses to Defendants' interrogatories provided Defendants a sufficient basis to seek to depose the non-party declarants as to any complaints of discrimination, harassment or retaliation. Defendants' choice not to do so does not entitle them to insulation from the testimony of these witnesses. Accordingly, Defendants have not shown that they have been prejudiced by Plaintiffs' submission of these three non-party declarations and the Court denies the motion to strike them.
Richmond, 2011 U.S. Dist. LEXIS 67797, at *16--17. This same logic applies equally to the other individuals-besides Kumi, Peprah, and Ortiz-identified in plaintiffs' initial disclosures and responses to defendants' interrogatories.
In reply, defendants contend that trial is different from summary judgment, and that wholesale exclusion of these non-party witnesses is necessary to prevent the jury from hearing their potentially-inflammatory testimony. The Court disagrees. Judge Swain has already held that defendants were given sufficient notice of the possibility that persons on the plaintiffs' list of 46 individuals with potentially relevant evidence would testify. There is no reason to exclude the testimony of these persons in its entirety. That defendants do not, today, have a complete preview of such testimony, and are not in possession of deposition testimony with which to cross-examine these witnesses at trial, is the result of defendants' choice not to depose these persons.*fn1
That said, the Court intends to closely scrutinize, prior to trial, the proposed testimony of all witnesses, to ensure that their testimony is admissible. To this end, the Court directs all parties to provide detailed summaries of each witness's anticipated trial testimony in the Joint Pretrial Order, due Friday, March 23, 2012. As set forth in the conclusion to this opinion and order, the Court further directs the parties to exchange such detailed summaries with each other a week before the Joint Pretrial Order is due, i.e., Friday, March 16, 2012. On Friday, March 23, 2012, the parties may submit motions in limine along with the Joint Pretrial Order, including to exclude portions of the anticipated testimony of an adverse witness on the grounds that it is inadmissible (including because, as defendants appear to anticipate with respect to the non-party witnesses, the probative value of particular testimony is substantially outweighed by the risk of unfair prejudice, confusion, or delay, pursuant to Fed. R. Evid. 403). Any response to such a motion is due three business days after the filing of the motion in limine (i.e., Wednesday, March
28), and the Court will resolve any such motion promptly. At trial, the Court will exclude any testimony (1) not sufficiently identified by the witness's proponent in the Joint Pretrial Order, or
(2) that has been excluded pursuant to a ruling on a motion in limine. This procedure should suffice to ensure that inadmissible or unfairly prejudicial evidence is excluded, and not referenced, at trial.
B.Defendants' motion to exclude certain evidence of plaintiffs' damages Defendants' second motion seeks to exclude evidence of plaintiffs' damages pursuant to Fed. R. Civ. P. 37, on the ground that the plaintiffs did not respond, or barely responded, to repeated discovery requests seeking both a computation of plaintiffs' damages and documents supporting their claimed damages. As defendants chronicle in their memorandum of law, plaintiffs have egregiously disregarded their discovery obligations with respect to damages-and plaintiffs, revealingly, in opposing this motion, do not attempt to explain or justify their repeated lapses as to this subject.
Plaintiffs' initial disclosures, pursuant to Fed. R. Civ. P. 26(a)(1), were due on November 14, 2008. On January 21, 2009, the defendants, having not received plaintiffs' initial disclosures, served plaintiffs with discovery requests, seeking, in large part, information that should have been automatically produced pursuant to Fed. R. Civ. P. 26(a)(1). See Aff. of Philip A. Goldstein ("Goldstein Aff.") Ex. 1 (Dkt. 104). A part of that request, interrogatory 21, asked the plaintiffs for a computation of each category of claimed damages-information which had been a required part of plaintiffs' initial disclosures. See id.; Fed. R. Civ. P. 26(a)(1)(A)(iii). On February 25, 2009, with no response having been received, defendants' counsel contacted plaintiffs' counsel seeking an update on plaintiffs' discovery responses. Goldstein Aff. Ex. 2. On February 26, 2009, Plaintiffs' counsel notified defendants' counsel that discovery responses would be served on or before March 2, 2009. Id. No such response, however was served. On March 30, 2009, defendants yet again contacted plaintiffs' counsel to seek a response to their discovery request. Id.
On May 14, 2009, plaintiffs served, nearly six months late, their initial disclosures (although no response was made to defendants' other, long-pending discovery requests). Goldstein Aff. Ex. 3. Plaintiffs' initial disclosures, though half a year overdue, provided no information or computation as to plaintiffs' damages, despite the requirement of Rule 26(a)(1)(A)(iii). Instead, plaintiffs stated the following:
Plaintiffs will be seeking money damages, interests, and punitive damages in an amount to be determined at trial as Plaintiffs have not yet completed discovery and need discovery from Defendants for their calculations. Plaintiffs reserve the right as discovery continues, to supplement this disclosure.
Id. On May 28, 2009, after defendants had written to the plaintiffs yet again seeking a response to their discovery requests, Magistrate Judge Pitman held a telephone conference with the parties. During this conference, plaintiffs' counsel assured Judge Pitman that plaintiffs would serve their responses to defendants' interrogatories that same day, and that plaintiffs' responses to the document requests would be served the following day, May 29, 2009. However, on May 29, 2009, plaintiffs' counsel arrived at defense counsel's office and served defendants with two sets of written discovery requests from plaintiffs, but did not furnish the discovery responses that plaintiffs had pledged to provide. Id.
On June 23, 2009, more than four months after plaintiffs' responses were due, plaintiffs' counsel delivered plaintiffs' document production to defense counsel. Goldstein Aff. ¶ 6. That production consisted of 165 documents; approximately 140 of these documents were items that defendants had previously produced to plaintiffs. Id. The ...