The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
The Court has received two submissions from plaintiffs. One, dated April 18, 2012, sets out the anticipated testimony of non-party witnesses Blades, Jeanty, Quarshie, and Peprah. The other, dated April 20, 2012, attaches, as the Court had directed, tax records of plaintiffs Richmond and Hattimore for the years 2006 and 2007. On May 2, 2012, defendants submitted an omnibus response to these submissions. They argue that: (1) with respect to both damages evidence and the testimony of non-party witnesses, plaintiffs have not complied with prior Orders of the Court; (2) plaintiffs' failure to produce relevant documents during discovery, relating to damages, has prejudiced the defense, in particular, by inhibiting its ability to prove that Richmond and Hattimore failed to mitigate back pay damages; (3) plaintiffs' proffers of the testimony of the non-party witnesses are insufficiently specific to comply with the Court's Orders; and (4) plaintiffs improperly propose to elicit third-party witness testimony on the issue of plaintiffs' emotional distress. Upon consideration of these submissions, and in light of the extensive prior litigation on these points, the Court: (1) precludes both Richmond and Hattimore from seeking back pay damages as to the years 2006 and 2007; but (2) declines to preclude categorically the non-party witnesses from testifying, or to preclude them from testifying as to plaintiffs' alleged emotional distress.
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 to December 2011 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 v. GNC, No. 08-cv-3577, 2011 U.S. Dist. LEXIS 67797, at *1--19 (S.D.N.Y. June 22, 2011). In that Opinion, Judge Swain also noted plaintiffs' long-standing and glaring inattentiveness to various scheduling Orders. See id. at *13--15, 47. This Court has also chronicled, at length, plaintiffs' lack of compliance, over several years, with their obligations with respect to discovery. See Richmond v. GNC, No. 08-cv-3577, 2012 U.S. Dist. LEXIS 32070, at *8--13 (S.D.N.Y. Mar. 9, 2012).
On December 23, 2011, defendants filed three motions in limine. Dkt. 102, 105, 107. As relevant here, two of those motions sought, respectively, to preclude plaintiffs from presenting damages evidence, based on plaintiffs' non-compliance with discovery requests relating to damages, and to preclude plaintiffs from introducing the testimony of non-party witnesses. In an Opinion & Order dated March 9, 2012, the Court found that plaintiffs had blatantly failed to satisfy their discovery obligations as to damages, including failing to comply with an Order of the Magistrate Judge. However, the Court gave plaintiffs an opportunity to show that their failure to produce the evidence in question was harmless-i.e., that it worked no prejudice to defendants. See Dkt. 116 at 11 n.4, 16. The Court also reserved decision on whether to preclude the testimony of non-party witnesses, because the content of their anticipated testimony was, as yet, unclear. Id. at 17--18. The Opinion set forth a procedure by which the parties were to exchange detailed descriptions of anticipated trial testimony and other evidence and, if necessary, file additional motions in limine on March 23, 2012, the date the Joint Pretrial Order was due. Id. at 19--20.
On March 23, 2012, defendants filed additional motions in limine seeking, again, to exclude plaintiffs' damages evidence and the testimony of non-party witnesses. See Dkt. 121, 124. Defendants argued that plaintiffs had failed to show that their non-production of damages evidence was harmless, and that this nonproduction was in fact highly prejudicial. Defendants also moved to preclude the limited damages evidence that the plaintiffs had allegedly produced in discovery, on the basis that the isolated documents that were produced yielded an incomplete picture of plaintiffs' damages, and had prevented defendants from meaningfully developing proof that plaintiffs had failed to mitigate their back pay damages. See Dkt. 123. Defendants also moved again to preclude various non-party witnesses from testifying. See Dkt. 125. On March 28, 2012, plaintiffs opposed these motions. See Dkt. 130, 131.
On April 2, 2012, the Court held a pretrial conference and ruled, at
length, on the record, as to various pending motions. By Order dated
April 4, 2012, the Court memorialized those rulings. The Court (1)
excluded all back pay damages for plaintiffs Siaw and Warkie; (2)
excluded back pay damages for plaintiffs Richmond and Hattimore for
the period beginning January 1, 2008; and (3) as to back pay damages
for the years 2006 and 2007, reserved judgment, based on plaintiffs'
counsel's claim, made at the conference, that they had in fact
timely produced Richmond's and Hattimore's 2006 and 2007 tax returns
to the defense during the discovery period. See Dkt. 133.*fn1
The Court directed plaintiffs' counsel to submit evidence
substantiating that they had timely produced such materials to the
defense.*fn2 As relevant here, the Court's Order
reserved judgment on the admissibility of testimony of non-party
witnesses Catherine Blades, Virginia Jeanty, Gladys Kumi, Sulayman
Mbenga, Kissi Peprah, Emmanuel Quarshie, and Lena Shockley. The Court
gave plaintiffs until April 9, 2012 to submit detailed summaries of
the proposed testimony of these witnesses, to enable the Court could
make an informed decision on admissibility. Id. at ¶ 6.a--g.
On April 4, 2012, plaintiffs' counsel faxed a declaration to the Court, attaching exhibits, purporting to demonstrate that Richmond's 2006 and 2007 tax returns had been produced to the defense on or about May 28, 2009, and that Hattimore's 2006 and 2007 tax returns had been produced on or about August 4, 2009. Davis April 4, 2012 Decl. ¶¶ 7, 14. On April 9, 2012, plaintiffs submitted summaries of the anticipated testimony of various non-party witnesses, as the Court had requested.
By Order dated April 11, 2012, the Court ruled that testimony of Kumi, Mbenga, and Shockley would be permitted; it reserved decision on the testimony of Blades, Jeanty, Quarshie, and Peprah, because plaintiffs' proffer of that testimony was, once again, insufficiently specific. See Dkt. 134 ¶¶ 2--3. The Court gave plaintiffs until April 18, 2012 to submit, once again, an adequately detailed summary of those witnesses' proposed testimony. Id.
On April 12, 2012, defendants submitted a letter disputing the completeness of plaintiffs' prior production of Richmond's and Hattimore's 2006 and 2007 tax returns. Specifically, defendants stated that the returns produced for Hattimore were not actual tax returns, but instead appeared to be summary documents produced by H&R Block, stamped "Draft -- Do Not File." Defendants also argued that the tax returns produced for plaintiff Richmond were incomplete, in that they failed to include schedules that would have revealed, inter alia, Richmond's business income from Cream Malibu, Inc., during the years in question, and that the failure to produce this information had impaired the defense from developing evidence of Richmond's failure to mitigate damages.
By Order dated April 12, 2012, the Court ordered plaintiffs to produce, by April 20, 2012: (1) the actual 2006 and 2007 tax returns for Hattimore, as filed with the IRS; and (2) all schedules and attachments for Richmond's 2006 and 2007 tax returns sufficient to show all of Richmond's income or income offsets. See Dkt. 135.
On April 18, 2012, plaintiffs submitted another declaration describing the anticipated testimony of non-party witnesses Blades, Jeanty, Quarshie, and Peprah.
On April 20, 2012, plaintiffs submitted additional tax records for Richmond and Hattimore, in response to the Court's April 12 Order. On May 2, 2012, defendants submitted an ...