     Case: 14-60138      Document: 00512854254         Page: 1    Date Filed: 12/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 14-60138                              FILED
                                  Summary Calendar                     December 2, 2014
                                                                         Lyle W. Cayce
                                                                              Clerk
GEORGE H. DUKE,

                                                 Plaintiff-Appellant

v.

PERFORMANCE FOOD GROUP, INC.

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:11-CV-220


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Plaintiff-appellant George H. Duke brought claims under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Americans with
Disabilities Act, 42 U.S.C. § 12111, et seq., and the Family and Medical Leave
Act, 29 U.S.C. § 2601, et seq., against his former employer, Performance Food
Group. After a jury trial, a verdict was rendered in favor of Performance Food
Group on all counts. Duke now appeals two of the district court’s evidentiary


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-60138

orders. First, Duke appeals the district court’s decision to allow defendant
Performance Food Group, Inc. to call two witnesses not named in discovery
disclosures or the pre-trial order.    Additionally, Duke appeals the district
court’s decision to allow Performance Food Group to introduce documents
obtained through a subpoena ducas tecum served on a witness without prior
notice to Duke. Because Duke’s claims call for review of the admission or
exclusion of evidence, review is for abuse of discretion. See, e.g., Tompkins v.
Cyer, 202 F.3d 770, 779 (5th Cir. 2008).
      For the reasons that follow, we conclude that the district court’s decision
to allow Performance Food Group’s witnesses to testify was not an abuse of
discretion. Witnesses that are used solely for impeachment do not have to be
disclosed to the opposing party prior to trial. See Fed. R. Civ. P. 26(b)(3);
Longino v. Chiles Offshore, Inc., 71 F.3d 878 (5th Cir. 1995) (unpublished)
(finding that the district court did not abuse its discretion by allowing a witness
not listed in the pre-trial order to testify when his testimony only served to
impeach the plaintiff’s testimony). The witnesses at issue here were called
after Duke testified that (1) he did not receive disciplinary write-ups at his
previous job with a company called U.S. Foods until after he interviewed for a
job at Performance Food Group, and (2) that he was not fired from U.S. Foods.
A review of the record indicates that these unlisted witnesses only testified to
impeach Duke’s testimony and refute these two claims.                  Therefore,
Performance Food Group was not required to alert Duke to these witnesses’
testimony prior to trial.
      Duke argues that because his testimony could have been “reasonably
anticipated” the witnesses cannot be properly classified as impeachment or
rebuttal witnesses. Quanta Servs. Inc. v. Am. Admin. Grp. Inc., 384 F. App’x
291, 295 (5th Cir. 2008) (unpublished) (finding that a witness used solely for



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impeachment does not have to be revealed before trial, but a witness who is
expected to contradict an anticipated portion of the plaintiff’s case in chief must
be). The relevant portion of Duke’s testimony at issue here, was apparently
meant to defeat Performance Food Group’s argument under the “after acquired
evidence doctrine,” that if Duke prevailed on his discrimination claim, his
damages should be limited to the period before Performance Food Group would
have discovered a non-discriminatory reason for his termination—here, that
Duke lied on his employment application. 1 Although both parties concede that
the application of the “after acquired evidence doctrine” was referenced in the
pre-trial order, nothing in the record on appeal indicates that Duke pleaded or
argued in any pretrial motions that he did not receive disciplinary write-ups
or was not fired from U.S. Foods. Further, Performance Food Group alleges
(and Duke does not deny) that the U.S. Food records, which were produced and
available to Duke during discovery, contained evidence of Duke’s termination
from U.S. Foods and his write-ups. Accordingly, Duke has not shown that the
defendants should have anticipated his testimony regarding a position not
previously expressed and which directly contradicted the evidence that both
parties possessed. Compare Morgan v. Commercial Union Assurance Cos., 606
F. 2d 554 (5th Cir. 1979) (finding that a treating physician in a back injury
damages award case was not an impeachment witness because plaintiff in an

       1 Under the “after acquired evidence doctrine,” if an employer can establish that an
employee’s wrongful act was severe enough to terminate the employee on those grounds
alone, the employer can limit his damages for discrimination to back pay until the employer
discovered the employee’s wrongdoing. McKennon v. Nashville Banner Pub. Co., 513 U.S.
352, 361-62 (1995). The record indicates that Duke informed Performance Food Group that
his current employer was U.S. Foods when he applied. However, Duke later admitted that
his employment with U.S. Foods had ended days before applying to Performance Foods.
Performance Food Group alleged that it never would have hired Duke if they were aware
that he lied on his application, and that lying on the application was grounds for termination.
Duke’s testimony that he was not disciplined or terminated by U.S. Foods therefore
seemingly was meant to defend against Performance Group’s argument under the after
acquired evidence doctrine.


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injury case who has pled that a specific incident caused his injury is expected
to maintain that position). Therefore, Performance Food Group’s failure to
identify these impeachment witnesses in discovery or list them in the pre-trial
order does not violate the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
26(b)(3)(A)(i) (stating that a party must provide information about each
witness it may present at trial other than those “solely for impeachment”).
       Further, Duke’s alternative contention on appeal that if the witnesses
were impeachment witnesses, they only impeached “totally collateral matters”
and, therefore, should not have been allowed to testify, is likewise unfounded.
Duke voluntarily brought the facts regarding his previous employment into
issue through his own testimony on direct examination and his counsel’s
opening statement. As we have explained, “if the opposing party places a
matter at issue on direct examination, fairness mandates that the other party
can offer contradictory evidence even if the matter is collateral.” Jones v.
Southern Pacific R.R., 962 F.2d 447, 450 (5th Cir. 1992).                      Accordingly,
Performance Food Group properly called their impeachment witnesses without
notice to Duke, regardless of whether the impeachment was concerning a
collateral matter. The district court did not abuse it’s discretion by allowing
these witnesses to testify.
       Finally, the district court did not abuse its discretion by allowing
Performance Food Group to admit documents received by a subpoena ducas
tecum when Duke did not receive prior notice of the subpoena. While prior
notice to the opposing party is required for a subpoena ducas tecum, 2 a “court
at every stage of the proceeding must disregard any error or defect in the

       2See Fed. R. Civ. P. 45(a)(4) (stating that if a subpoena demands the production of
documents, notice and a copy of the subpoena must be served on each party before it is served
on the person to whom it is directed); Bradley v. Keymarket of New Orleans, Inc., 26 F.3d
1119 (5th Cir. 1994) (unpublished) (finding that the district court has the authority to quash
subpoenas that do not conform to the requirements of Rule 45).


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proceeding which does not affect the substantial rights of the parties.” Fed. R.
Civ. P. 61; Busbee v. Sule, 603 F.2d 1197, 1199 (5th Cir. 1979). Duke does not
contest Performance Food Group’s allegation that all of the documents entered
into the record that were obtained as a result of the subpoena had already been
produced to him during discovery before the subpoena was served. Therefore,
Duke’s argument that his substantial rights were affected because his counsel
did not have ample time to review the exhibit containing the subpoenaed
documents is without merit. Busbee, 603 F.2d at 1199 (finding that the district
court did not err by refusing to suppress evidence garnered by a defective
subpoena when plaintiff’s substantial rights were not affected because the
subpoenaed materials were never actually entered into evidence). The district
court did not abuse its discretion by admitting documents obtained by serving
a subpoena without notice to the opposing party.
      In sum, the district court acted within its discretion by allowing unlisted
witnesses to testify for the purpose of impeachment. See United States v.
Skelton, 514 F.3d 433, 439 (5th Cir. 2008). Further, Duke has failed to show
that his substantial rights were affected when he did not receive prior notice
of the subpoena that produced documents identical to those previously
provided to him during discovery.
      For these reasons, we AFFIRM.




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