ARMANDO RIOS v. TEXAS CHRISTIAN UNIVERSITY (2025)

ORDER PARTIALLY GRANTING MOTION TO STRIKE WITNESSES AND EXHIBITS

Pending before the Court is the Motion to Strike Late Supplemented Witnesses and Exhibits (doc. 60) filed by plaintiff Armando Rios on March 26, 2025. In light of the upcoming April 14, 2025 trial date, the Court previously ordered the filing of expedited response and reply briefs. After review of the motion, the related briefs, the evidence highlighted therein, and the applicable law, the Court concludes that the motion should be, and it is hereby, PARTIALLY GRANTED.

I. Background

Plaintiff Rios's motion complains that on March 13, 2025, only one month prior to the trial date and over one year after discovery closed, defendant Texas Christian University (“TCU”) served on Rios its First Supplemental Rule 26(a) Initial Disclosures. In that supplement, TCU allegedly produced 402 newly identified documents that may be used to support its claims or defenses ¹ and identified six new persons likely to have discoverable information. That same day, TCU served on Rios its exhibit list containing 192 exhibits.² Of that total, 121 of the exhibits were first identified in TCU's supplemental disclosure served that same day.

This case was filed on May 1, 2023. In accordance with the parties' agreement in their June 20, 2023 Joint Status Report, initial disclosures were to be exchanged in July 2023.³ (Joint Status Report (doc. 11) at 4-5.) Rios thereafter served his First Set of Interrogatories and Requests for Production, to which TCU responded on October 11.⁴ (Rios's App. in Support of Mot. Strike (doc. 61) at 10-23.) TCU produced additional documents on February 29 and April 12, 2024. (Id. at 24-25.) The Court ordered that discovery be completed no later than March 11, 2024. (Order Modifying Scheduling Order (doc. 16) at 2.) Thereafter, TCU was granted leave to file a late summary-judgment motion, which the Court partially granted, thus leaving Rios's claim that he was terminated on account of his race as the only remaining claim. As a result, on December 13, 2024, with the agreement of the parties, the Court set this claim for trial on April 14, 2025. The Court also ordered that the parties exchange exhibit lists on March 13, 2025. (Order Gr. Mot. Amend Scheduling Order (doc. 55) at 1.)

II. Applicable Law

Federal Rule of Civil Procedure 26 requires that parties disclose “the name, address, and telephone number of each individual likely to have discoverable information--along with the subject of that information--that the disclosing party may use to support its claims or defenses.” FED. R. CIV. P. 26(a)(1)(i). Additionally, a party must provide to other parties “a copy--or a description by category and location--of all documents ․ that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Id. at 26(a)(1)(ii). These disclosures are required to be made “within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order.” Id. at 26(a)(1)(C).

Rule 26(e) governs supplementation of disclosures and responses. In accordance with that rule, a “party who has made a disclosure under Rule 26(a)--or who has responded to an interrogatory [or] request for production ․--must supplement or correct its disclosure or response ․ in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Id. at 26(e)(1)(A) (emphasis added). This provision's basic purpose is to “prevent[ ] prejudice and surprise.” Reed v. Iowa Marine and Repair Co., 16 F. 3d 82, 85 (1994). “[S]upplementation after a scheduling order's discovery cut-off may generally be considered untimely under Rule 26(e)(1) unless ‘the producing party has shown that it produced the information promptly after learning of it.’ ” Pem-Air Turbine Engine Servs. LLC v. Gupta, No. 3:21-CV-180-L-BIN, 2024 WL 758561, at *2 (N.D. Tex. Feb. 22, 2024) (Horan, Mag. J.); see also Bowman v. R.L. Young, Inc., No. 21-1071, 2022 WL 39998641, at *3 (E.D. La. Sept. 1, 2022) (concluding that “in a timely manner” under Rule 26(e)(1) “necessarily contemplates reference to the deadlines prescribed by the Scheduling Order․ [A]n interpretation otherwise would render discovery deadlines a mere paper tiger.”). “A party learns of a deficiency when he ‘should have been aware of’ the need to disclose.” Dykes v. Cleveland Nursing & Rehab. Ctr., No. 4:15-CV-76-DMB-JMV, 2018 WL 3058870, at *4 (N.D. Miss. June 20, 2018) (quoting 6 MOORE'S FEDERAL PRACTICE—CIVIL § 26.131[3] (2018).)

Rule 37(c)(1) provides the hammer for Rule 26's disclosure obligations. Under that rule, “[i]f 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 to supply evidence ․ at a trial, unless the failure was substantially justified or is harmless.” Id. at 37(c)(1). This “self-executing” and “automatic sanction” is intended to “provide a strong inducement for disclosure of material that the disclosing party would expect to use as evidence ․ at trial.” Id. at advisory comm.'s note to 1993 amend. “The motivation behind Rule 37(c)(1)'s exclusion of testimony from non-disclosed witnesses ‘is to prevent an ambush, resulting in surprise or prejudice, of undisclosed or late disclosed evidence.’ ” Graham v. El Paso Cnty., No. EP-21-CV-00066-FM, 2022 WL 1112822, at *2 (W.D. Tex. Jan. 12, 2022).

“ ‘The party seeking Rule 37 sanctions bears the burden of showing that the opposing party failed to timely disclose information.’ ” Mission Tech., LLC v. United Heathcare Ins. Co., 499 F. Supp. 3d 338, 344 (W.D. Tex. 2020) (quoting Coene v. 3M Co., 303 F.R.D. 32, 42 (W.D.N.Y. 2014)). “Once that burden is satisfied, Rule 37(c)(1) implicitly places the burden ‘on the party facing sanctions to prove harmlessness’ or substantial justification.” Id. (quoting Current v. Atochem N. Am., Inc. No. WW-00-CA-332, 2001 WL 36101282, at *2 (W.D. Tex. Sept. 18, 2001)); see also Lopez v. Fun Eats & Drinks, LLC, No. 3:18-cv-1091-X, 2021 WL 3502361, at *4 (N.D. Tex. July 16, 2021) (Horan, Mag. J.) (“The disclosing (or late disclosing) party bears the burden of proving the failure to timely disclose was substantially justified or harmless.”). In evaluating whether a Rule 26(a) violation is harmless, the Court looks to four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to timely disclose.” Carter Tool Co., Inc. v. United Fire & Cas. Co., No. MO:18-CV-0163-DC-RCG, 2019 WL 7759500, at *2 (W.D. Tex. 2019) (citing Tex. A&M Rsch. Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003)); accord Mission, 499 F. Supp. 3d at 344.

III. Analysis

After review of the parties' briefs and the evidence highlighted in them,⁵ the Court determines that Rios has sufficiently demonstrated that TCU failed to timely supplement its Rule 26(a)(1) disclosures and its responses to Rios's discovery requests. TCU's March 13 supplementation occurred over a year after the close of discovery, almost two years after its initial Rule 26(a)(1) disclosures were first served, and only one month prior to trial. See Thomas v. McDowell, 2014 WL 5305501, at *3 (S.D. Ohio Oct. 15, 2014) (concluding that supplemental disclosures “were not made in a ‘timely manner’ as required under Rule 26(e)(1)(A)” where the supplementation was not made until “three months after the close of discovery and one month before the start of trial” and citing supporting cases).

In its response to Rios's motion, TCU contends that its disclosures were timely supplemented under Rule 26(a)(3). That rule requires that a party disclose “the name ․ of each witness” and “an identification of each document or other exhibit” the party “may present at trial other than solely for impeachment.” FED. R. CIV. P. 26(a)(3)(A)(i), (iii). These disclosures of trial witness and exhibit lists are due “at least 30 days before trial” unless otherwise ordered.⁶ Id. at 26(a)(3)(B). Importantly, these disclosures are “[i]n addition to the disclosures required by Rule 26(a)(1).” Id. at 26(a)(3)(A). In other words, Rule 26(a)(3) requires that a party specify--out of all of the exhibits and witnesses previously produced under Rule 26(a)(1) and/or in response to discovery requests--which of those witnesses and exhibits it plans to rely upon at trial. Rule 26(a)(3) does not provide a carte-blanche opportunity for a party to produce for the first time the names of witnesses and exhibits never before produced during discovery. See Noel v. BP Expl. & Prod., Inc., 346 F.R.D. 139, 145 (S.D. Ala. March 28, 2024) (“Plaintiff does not explain how Rule 26(a)(3) obviates other discovery and disclosure requirements. Plaintiff cites no authority that Rule 26(a)(3) provides for the introduction of trial witnesses and exhibits that were not previously disclosed under those requirements.”).

TCU's response also contends that the March 13 supplementation resulted from “an additional 10.3 hours reviewing [TCU's] OneNote files, files in the E[mployee] R[elations] shared drive, and emails,” which review occurred “on March 3 and 4, 2025.” (TCU's Resp. (doc. 65) at 8.) But TCU wholly fails to explain why this search was not undertaken much earlier in this litigation during the discovery period. TCU's response recounts the difficulty of finding relevant documents in light of the fact that several employees had left or been terminated by the time this lawsuit was filed and because of an apparently haphazard record-keeping system in its Employee Relations department. But neither reason--both of which appear to be largely within TCU's control--justifies the extent of TCU's delay in attempting to find responsive documents to Rios's discovery requests or for the tardy supplementation of its Rule 26(a)(1) disclosures.

As for the six allegedly new witnesses, TCU points to numerous previously produced documents in which five of the six witnesses are allegedly “mentioned,” apparently in an effort to demonstrate a lack of harm or prejudice to Rios. (TCU's Resp. (doc. 65) 9.) As to the documents in which witness Andy Easley is allegedly referenced, however, none of those documents appear to be contained in TCU's appendix. (Id. (citing “TCU-RIOS 00173, 00191, 00748, 01695, 01697, 01706, 01717, 01719-1720, and 00927-1928”).) Consequently, the Court cannot determine whether, and the extent to which, Rios should have been aware--because of the alleged reference to Easley in those documents--that TCU would rely upon Easley to support its defense. Furthermore, as one court has noted, the fact that a name is “referenced in documents produced in discovery” does not provide an “exception” to Rule 26(a)(1)(A)'s requirements. Graham, 2022 WL 1112822, at *2. And TCU fails to demonstrate that these oblique references in various documents to these five witnesses were sufficient to put Rios on notice that each person would be used to support TCU's defense. As to the sixth witness, Monica Flynn, TCU contends that it “only recently learned that she had witnessed an encounter with [Rios} and Alice Martinez.” (TCU's Resp. (doc. 65) 10.) TCU wholly fails to detail, however, when it first learned of this encounter or, more importantly, why, with the exercise of due diligence, it could not have learned about it during the discovery period.

Thus, after considering the four factors required to determine whether TCU's failure to timely disclose was harmless or substantially justified, the Court determines that it was not. TCU has wholly failed to provide any details about the importance of the documents at issue or the testimony of the six new witnesses.⁷ And Rios has adequately described his prejudice. By not producing the documents at issue or specifically identifying the six witnesses in a timely manner during the discovery period, TCU has prevented Rios from “use[ing] the documents in discovery, request[ing] other documents in discovery to rebut these document[s], ask[ing] questions in depositions about the newly disclosed documents and witnesses, [or] depos[ing] any of the newly identified 6 witnesses.” (Rios's Reply (doc. 80) 5; see also Rios's Mot. to Strike (doc. 60) 6, 7.) While a continuance of the trial date would likely cure any prejudice to Rios, the Court is disinclined to grant such a continuance, especially given that TCU has failed to ask for one or even to suggest that a continuance would cure any prejudice to Rios. This case has been pending for almost two years, discovery closed over a year ago, the trial has been set since December 13, and the Court's calendar does not permit a resetting for several months or more. Finally, TCU's explanation for its delay in disclosing these documents and witnesses is woefully inadequate, given that it apparently could have uncovered them during the discovery period with only an additional ten hours of effort.

IV. Conclusion

For the foregoing reasons, the Court concludes that Rios's Motion to Strike Witnesses and Exhibits (doc. 60) should be, and it is hereby, PARTIALLY GRANTED. The motion is granted to the extent that it seeks to exclude at trial the presentation of any documents or witnesses first disclosed by TCU in the supplemental disclosures it served on March 13, 2025. The motion is denied, however, to the extent it seeks additional relief.

FOOTNOTES

1.   In its response, TCU contends that “approximately half of those [documents] do not even mention [Rios and s]everal of the documents recently produced are ones not requested by [Rios] in discovery, including the personnel records showing some employees' ages and retirement dates.” (TCU's Resp. (doc. 65) 8.) But this is a race-discrimination case, not an age-discrimination case; thus, the Court questions whether these documents are even relevant or may be relied upon by TCU to support its defense.

2.   In his reply, Rios withdraws his objection to certain documents (TCU's exhibits 4, 125, and 168), and they are therefore no longer at issue.

3.   Although the parties originally agreed to exchange Rule 26(a)(1) disclosures by July 12, 2023, they apparently later agreed that TCU could serve its disclosures by July 21. (Rios's Reply (doc. 80) 2.)

4.   Interrogatory number one asked for “each and every reason [TCU] terminated [Rios].” (Rios's App. in Support of Mot. Strike (doc. 61) at 10.) Request for production number 16 sought “written complaints regarding [Rios's] job performance and/or any documents memorializing complaints against [Rios].” (Id. at 17.) And request for production number 31 sought “[a]ny documents ․ related to [TCU's] decision to terminate [Rios].”

5.   The Court's review of both parties' appendices has been hampered by their failure to comply with this Court's requirement “that the proponent of the appendix underline (or, as to large passages, bracket in the margin) the portions of the appendix upon which he relies.” See Judge Means's specific requirements II(B) (regarding appendices), available at http://www.txnd.uscourts.gov/judge/senior-district-judge-terry-means.

6.   The Court did otherwise order, specifically requiring that exhibit lists be served on March 10 (subsequently extended to March 13) and filed on April 7, and that witness lists be filed on April 7. (Final Scheduling Order--Civil Jury Trial (doc. 44) 3-4, ¶ 7(a)-(c); 4-5, ¶ 8; see also Order Gr. Mot. Amend Scheduling Order (doc. 55) 1.)

7.   Indeed, TCU's response does not specifically refer to or address the four-factor test in any meaningful way.

TERRY R. MEANS UNITED STATES DISTRICT JUDGE