                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
DENISE A. BANKS,              )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 07-1807 (RWR)
                              )
TOM VILSACK,                  )
                              )
          Defendant.          )
_____________________________ )

                          MEMORANDUM ORDER

     Plaintiff Denise A. Banks filed a five-count amended

complaint against the Secretary of the United States Department

of Agriculture (“USDA”) alleging that she was discriminated and

retaliated against on the basis of race, sex, and age on a number

of occasions.   In anticipation of trial, the parties filed on

May 28, 2013 their pretrial materials, including their schedules

of witnesses to be called and their lists of exhibits to be

offered at trial.   Later, on the eve of trial, Banks filed a

motion to amend her complaint to include only her claims that she

was discriminated against on the basis of race and sex when she

was removed from the Senior Executive Service (“SES”) in 2000.

She also moved in limine to preclude the USDA from calling a

number of witnesses and introducing certain exhibits at trial

arguing that the evidence was not relevant to her remaining

claims.   On June 17, 2013, Banks’s motion to amend her complaint

was granted and the trial was reset for August 13, 2013.    A
                                  -2-

July 31, 2013 Memorandum Opinion and Order granted in part and

denied in part Banks’s motion in limine and precluded the USDA

from introducing several witnesses and introducing certain

exhibits at trial.

     On August 5, 2013, the USDA filed a revised pretrial

statement “to apprise the Court of its intended presentation at

trial to reflect the narrower issues now set to be tried in

accordance with the rulings of the Court at the pretrial

conference held on June 10, 2013,” Def.’s Revised Pretrial Stmt.

at 1-2,

     the Court’s Memorandum Opinion and Order of July 31,
     2013, and the Court’s order granting Plaintiff’s
     request to limit a trial in this action to her claim
     that USDA discriminated against her based on her race
     and gender when it removed her from the Senior
     Executive Service in early-2000 and assigned her to a
     GS-15 position[.]

Def.’s Notice of Future Filing.    The USDA’s revised pretrial

statement includes two witnesses -- Charles Rawls and Gail Booker

Jones -- and eight exhibits not included in its May 28 pretrial

materials.

     Banks moves to strike the revised pretrial statement arguing

that the statement is untimely and that the USDA should be

precluded from calling the new witnesses and introducing the new

exhibits.    The USDA opposes.

     Federal Rule of Civil Procedure 26(a)(3) requires that a

party make certain pretrial disclosures to other parties

including “the name and, if not previously provided, the address
                                 -3-

and telephone number of each witness -- separately identifying

those the party expects to present and those it may call if the

need arises” and “an identification of each document or other

exhibit, including summaries of other evidence -- separately

identifying those items the party expects to offer and those it

may offer if the need arises.”   Fed. R. Civ. P. 26(a)(3)(A).1       A

party must make these mandatory disclosures “at least 30 days

before trial” “[u]nless the court orders otherwise.”     Fed. R.

Civ. P. 26(a)(3)(B).

     “If 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 . . . at a trial,

unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c).   Thus, “[t]his restriction . . . would not

bar an unlisted witness if the need for such testimony is based

upon developments during trial that could not reasonably have

been anticipated -- e.g., a change of testimony.”     Fed. R. Civ.

P. 26 Advisory Committee’s notes.      Similarly, “the court can

permit use of unlisted documents the need for which could not

reasonably have been anticipated in advance of trial.”     Id.

“Rule 37(c)(1) is a self-executing sanction[.]”     Norden v.

Samper, 544 F. Supp. 2d 43, 49 (D.D.C. 2008) (internal quotation

     1
       Similarly, Local Civil Rule 16.5 requires parties to
submit a pretrial statement, which includes “a schedule of
witnesses to be called by the party” and “a list of exhibits to
be offered in evidence by the party.” LCvR 16.5(b)(1).
                                -4-

marks omitted).   “[T]he burden of showing substantial

justification and special circumstances is on the party being

sanctioned.”   Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir.

1994); see also Elion v. Jackson, 544 F. Supp. 2d 1, 6 (D.D.C.

2008).

     Here, it is undisputed that the USDA did not disclose Rawls

and Jones and the eight new exhibits in their May 28 pretrial

disclosures.   Thus, the USDA must show that its omissions were

substantially justified or are harmless.

     The USDA has not shown that its failure to identify Rawls

and Jones as potential witnesses or to list its new exhibits in

its May 28 pretrial statement was substantially justified.    The

USDA asserts that it revised its pretrial statement because Banks

decided to limit her case to her claim that the USDA

discriminated against her by terminating her from the SES and

because the July 31 order limited the evidence the USDA can

present at trial.   However, the USDA has not shown that Banks’s

narrowed complaint injected any new and unanticipated subject

matter in this case or that some other unforeseeable development,

such as factually changed testimony, substantially justifies the

USDA’s failure to previously disclose its new evidence.   Thus,

the USDA has not shown that its omission in its May 28 pretrial

materials was substantially justified.

     Likewise, the USDA has not demonstrated that its failure to

identify previously the witnesses and exhibits is harmless.   The
                                 -5-

USDA contends that Rawls and Jones were named in the

administrative record to which the USDA referred in response to

Banks’s interrogatory seeking the names of every person with

knowledge of the issues raised in the complaint, and that its new

proposed exhibits were taken from that administrative record.

Def.’s Opp’n to Pl.’s Mot. to Strike Def.’s Revised Pretrial

Stmt. (“Def.’s Opp’n”) at 6-7.   That did not relieve the USDA of

its obligation to specifically identify these potential witnesses

and exhibits in its May 28 filing, and the USDA has not shown

that identifying this evidence days before trial will not harm

Banks by not allowing her sufficient time to prepare to meet

these new exhibits and this new testimony at trial.    See United

States ex rel. Purcell v. MWI Corp., 520 F. Supp. 2d 158, 168

(D.D.C. 2007).2

     Because Rule 37(c)(1) bars the newly listed witnesses and

exhibits, it is hereby

     ORDERED that Banks’s motion [92] in strike be, and hereby

is, GRANTED IN PART and DENIED IN PART.   Testimony from Rawls and

Jones and Defendant’s Exhibits 70-77 are precluded.    Banks’s

motion is otherwise denied.




     2
       Banks also moves to strike the USDA’s new proposed jury
instruction. However, as Federal Rule of Civil Procedure
26(a)(3) does not require the parties to disclose their proposed
jury instructions, Rule 37(c)(1) does not bar undisclosed
proposed jury instructions. Banks has not otherwise shown that
the instruction should be barred, and her request will be denied.
                          -6-

SIGNED this 8th day of August, 2013.


                                       /s/
                                RICHARD W. ROBERTS
                                Chief Judge
