                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

    DERECK G. WILLIAMS,
         Plaintiff
         v.                                         Civil Action No. 12-1659 (CKK)
    RYAN DEVLIN, et al.,
         Defendants

                      MEMORANDUM OPINION and ORDER
                            (November 9, 2015)
    On October 23, 2015, the Court held the second Pretrial Conference in this case. In
this Memorandum Opinion and Order, the Court resolves the remaining evidentiary
objections that are pending.

Plaintiff’s Jacket
    It is undisputed that Plaintiff did not disclose his jacket during discovery and that
Plaintiff did not produce the jacket to Defendants until the October 23, 2015, Pretrial
Conference. The Court notes that Plaintiff himself was aware of the existence of the
jacket during the entire time this case was pending. The Court also notes that Plaintiff has
represented that the jacket was introduced as evidence during Plaintiff’s criminal trial for
assault on a police officer, and it appears that Plaintiff’s counsel could have discovered
the jacket’s existence from Plaintiff’s criminal defense attorney through a timely
investigation. Nonetheless, the jacket’s existence was not disclosed until after discovery
had closed. 1
    Because it was not disclosed during discovery, the parties appear to agree that the
only possible basis for admitting this evidence is the exception to the disclosure
provisions of Rule 26(a) for evidence used “solely for impeachment.” Fed. R. Civ. P.
26(a)(1)(A)(ii); see also Standley v. Edmonds-Leach, 783 F.3d 1276, 1281 (D.C. Cir.
2015) (“In other words, a party need not disclose a witness pursuant to Rule 26(a) if the
evidence will be used ‘solely for impeachment,’ and the witness may testify at trial even

1
  Discovery in this case initially closed on March 28, 2014. Subsequently, the Court
extended the deadline for discovery until April 21, 2014, for the limited purpose of
allowing Defendants to complete the deposition of an additional witness. After discovery
had otherwise closed, the Court entered an order on August 6, 2014, reopening discovery
for 45 days for the limited purpose of allowing Defendants to conduct discovery
regarding Plaintiff’s lost wage claim in light of the fact that Plaintiff had only produced
the documents supporting his lost wage claim on May 28, 2014—after discovery had
closed. Plaintiff’s counsel represented at the October 23, 2015, Pretrial Conference that
the jacket has been in her possession since June 2014.

                                             1
if not disclosed beforehand.”). Plaintiff now seeks to introduce the jacket for what he
claims is “solely for impeachment.” Specifically, Plaintiff represents that the jacket
contains boot-prints that directly contradict the testimony that Defendants will give (that
they did not kick Plaintiff). Defendants argue that that jacket does not qualify for the
“solely impeachment” exception.
     Recently, in Standley v. Edmonds-Leach, the United States Court of Appeals for the
D.C. Circuit reiterated the standard for “solely for impeachment” evidence under Federal
Rule of Civil Procedure 26(a). 2 783 F.3d. 1276, 1281 (D.C. Cir. 2015). Pursuant to this
standard tangible evidence may not be introduced, if it is not disclosed, only if it is used
“solely for impeachment.” See id.; Fed. R. Civ. P. 26(a)(1)(A)(ii). The Court of Appeals
described a split among courts regarding the scope of the “solely for impeachment”
exception. “[S]ome courts have concluded that the impeachment exception is limited to
evidence that has no potential utility other than impeachment.” Standley, 783 F.3d at
1283 (describing approach of First and Fifth Circuits). Other courts have taken an
alternative approach, holding that “that undisclosed evidence with both impeachment and
substantive qualities may be presented at trial so long as it is strictly used to impeach.” Id.
(citing DeBiasio v. Ill. Cent. R.R., 52 F.3d 676, 686 (7th Cir. 1995)). While the Court of
Appeals has not addressed which of these approaches is applicable in this Circuit—either
in Standley or previously—the Court of Appeals noted that, “[u]nder either approach, the
courts have focused on the word ‘solely’ and our sister circuits have read that term
strictly.” Id. (citing 8A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 2053 n.57 (3d ed. 2014)). The Court of Appeals also cited favorably the analysis of the
district court in Hayes v. Cha, 338 F. Supp. 2d. 470, 503-04 (D.N.J. 2004), regarding the
“competing considerations” in applying the “solely for impeachment” standard. Standley,
783 F.3d at 1283. In Hayes, the New Jersey district court described the tension between a
rule that “could ‘result in an erosion of evidence capable of warranting the impeachment
designation’ ” and a rule that would undermine the broad disclosure provisions of the
Federal Rules of Civil Procedure. Id. (quoting Hayes, 338 F. Supp. 2d at 503).
    The Court concludes that, under either of the standards used by other courts, the
jacket is not admissible. Under the standard adopted by the First and Fifth Circuits—
limiting the exception to “evidence that has no potential utility other than impeachment,”
Standley, 783 F.3d at 1283—the jacket is clearly not admissible. The alleged boot-marks
on the jacket could potentially suggest that Defendants kicked or stepped on Plaintiff; as

2
 While the Standley Court considered a witness who was not disclosed during discovery
and the issue before this Court is tangible evidence that was not disclosed during
discovery, the analysis of the Court of Appeals is equally applicable here because the
applicable language of the exception—“unless the use would be solely for
impeachment”—is applicable both to witness testimony and to tangible evidence. See
Fed. R. Civ. P. 26(a)(1)(A)(i)-(ii).

                                              2
this case revolves around an altercation between the parties and includes claims for
assault and battery and other Constitutional violations against Defendants, any evidence
that could be used to suggest that Defendants kicked Plaintiff has “potential utility other
than impeachment.” 3 Id. Therefore, under this standard, the jacket would be precluded.
    The Court also concludes that, under the more flexible standard applied by the
Seventh Circuit in DeBiasio, 4 it is proper to preclude the jacket, as well. Because of the
nature of the evidence at issue, it is not possible that the jacket could be “strictly used to
impeach.” Id. The impeachment purpose of the evidence—discrediting Defendants’
testimony that they did not kick Plaintiff—cannot be separated from the “substantive
qualities” of the evidence because the allegation that Defendants assaulted Plaintiff is
integral to Plaintiff’s claims in this case. Id. Because the disputed evidence cannot be
disentangled from the claims and defenses in this case, it cannot be admitted “solely for
impeachment.” See id. (“[B]ecause the testimony of witnesses offered to impeach was a
part of the defendant’s ‘primary line of defense,’ the witnesses should have been
disclosed prior to trial and their testimony was properly excluded.”) (citation omitted).
    Furthermore, the Court concludes that Defendants were prejudiced by Plaintiff’s
failure to disclose the jacket during discovery—and by Plaintiff’s failure to produce the
jacket itself to Defendants until the October 23, 2015, Pretrial Conference, four years
after the incident at issue. Defendants have represented that the trial strategy they pursued
was premised, in part, on the lack of physical evidence. Defendants have further
represented that, had they been aware of the jacket during discovery, they would have
explored the presence of the boot mark and the chain of custody of the jacket in
Plaintiff’s deposition. They also represented that, had they been made aware of the jacket
in a timely fashion, they may have taken depositions of other individuals, may have had
the jacket tested, and may have investigated further whether the prints match the shoe
size of the Defendants. In sum, discovery cannot be reopened without in essence
reopening all aspects of discovery—depositions, experts, and written discovery.


3
  The Court notes that the Plaintiff has represented that the jacket was admitted as
evidence in his criminal trial for assault on a police officer. Although more information is
not in the record regarding the admission of the jacket, this fact supports the conclusion
that the jacket could be understood by a jury in this case as substantive evidence
regarding the incidents in question in this case—even if the jury was instructed that the
jacket was only to be used as impeachment evidence.
4
 It is worth noting that, as the First Circuit Court of Appeals has explained, “the ruling in
Debiasio was highly factspecific.” Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998).
Furthermore, the analysis of the impeachment in DeBiasio may be properly considered
dicta since the Seventh Circuit ultimately concluded that the evidentiary error was
harmless. See id. (“In addition, despite its dicta regarding abuse of discretion, Debiasio
held that the error was harmless, and affirmed the jury verdict.”).

                                               3
    Finally, the Court notes that, having had an opportunity to examine the jacket during
the October 23, 2015, it appears that the jacket itself is only minimally probative. An
inspection of the jacket reveals that there are no boot-print or other dirt markings on the
back of the jacket—as Plaintiff had represented—there are only dirt markings that may or
may not be possible marks from the partial tread of a boot or shoe on one of the arms. In
addition, having had an opportunity to see Plaintiff himself wear the jacket, for
demonstration purposes, at the October 23, 2015, Pretrial Conference, the Court notes
that the sleeves of the jacket are “baggy,” which might constrain any inferences that
could possibly be drawn from the presence of the alleged tread-marks on the sleeve.
    The Court concludes that, because the use of the jacket does not qualify for the
“solely for impeachment” exception to the disclosure requirement and because Plaintiff
has not demonstrated that the failure to disclose is “substantially justified” or “harmless,”
the jacket may not be introduced into evidence. See Standley, 783 F.3d at 1281 (citing
Fed. R. Civ. P. 37(c)(1)).

Testimony of Attorney Jason Kalafat
    The Court previously concluded that the testimony of attorney Jason Kalafat would
be precluded regarding attorney’s fees. See Memorandum Opinion and Order dated
October 22, 2015, ECF No. 67. In that Memorandum Opinion and Order, the Court
discussed how Kalafat’s testimony had not been disclosed in discovery in response to
Defendants’ discovery requests. Because the Court has concluded that the jacket itself is
inadmissible, as explained above, and for the reasons stated in the Court’s previous
Memorandum Opinion and Order regarding the failure to identify testimony from Kalafat
in discovery, the Court now concludes that Kalafat’s testimony regarding the jacket is
precluded as well.

Testimony of Plaintiff Regarding Attorney’s Fees for Criminal Proceedings
    In addition to the testimony of attorney Jason Kalafat, Plaintiff seeks to introduce
testimony of Plaintiff himself about his payment of attorney’s fees to Kalafat, as well as
an engagement letter with respect Kalafat’s representation of Plaintiff. The Court will
allow the admission of the testimony and of the letter on the conditions stated below.
     Over the course of these proceedings, Plaintiff has represented different information
regarding payments to Kalafat and any payment arrangements with Kalafat. At the May
1, 2015, Pretrial Conference, Plaintiff stated to his attorney, and through his attorney to
the Court, that he paid Kalafat $10,000 in cash. At the October 23, 2015, Pretrial
Conference, Plaintiff represented that he paid Kalafat $2,000 in cash, with an additional
$7,500 paid by credit card in installments. Plaintiff also presented an alleged engagement
letter from Kalafat, which stated that $7,500 would be paid by credit card and laid out a
schedule of payments; the engagement letter does not mention a cash payment. However,
Plaintiff never identified Kalafat or produced the letter of engagement in response to

                                              4
Defendant’s discovery requests. Nor did Plaintiff ever mention payments or payment
arrangements in his depositions—notwithstanding Plaintiff’s counsel’s previous
representation to the contrary. (At the October 23, 2015, Pretrial Conference after
reviewing the deposition transcripts, Plaintiff’s counsel admitted that Plaintiff had not
mentioned payments or payment arrangements during either of the times he was
deposed.) The Court agrees with Defendants that Plaintiff should have disclosed Kalafat
and the engagement letter in response to Defendants’ discovery requests.
     Defendants further argue that they are prejudiced by the failure to disclose the
engagement latter and the testimony regarding the payments because they would have
investigated whether the payments were actually made and would have conducted
discrete additional discovery regarding the payments and payment arrangements.
However, the Court concludes that the prejudice may be cured at this point, particularly
given that a trial date was not set until the October 23, 2015, Pretrial Conference, given
that the Court scheduled an additional Pretrial Conference for January 20, 2016, and
given that the trial is not set to begin until May 2, 2016. Accordingly, the Court concludes
it is in the interest of justice to allow Plaintiff to present this testimony and supporting
evidence regarding attorney’s fees—on the conditions stated here. 5
    If Plaintiff continues to seek to present testimony regarding attorneys’ fees at trial, the
Court will allow Defendants to take Plaintiff’s deposition, limited to the subject matter of
attorney’s fees. Plaintiff must pay the cost for the deposition; however, Plaintiff is not
required to pay Defendants’ attorney’s fees as Defendant’s counsel would have had to
prepare for the deposition even if Plaintiff’s disclosure had occurred in a timely fashion.
The deposition must be completed before the January 20, 2016, Pretrial Conference. No
later than five business days prior to the deposition Plaintiff must provide Defendants the
engagement letter and any other materials they intend to rely on pertaining to attorney’s
fees. Plaintiff is precluded at trial and at the deposition from relying on any other
materials regarding attorney’s fees if not produced at that time.

MPD Use of Force Report and PD 119 Witness Statement from Officer Devlin
   The Court previously determined that the MPD Use of Force Report and the PD 119
Witness Statement would be admissible as business records—assuming the proper


5
  The Court notes that the prejudice caused by the failure to timely disclose testimony and
evidence regarding attorney’s fees is different from the prejudice stemming from
Plaintiff’s failure to disclose the jacket, discussed above. Whereas the jacket, as evidence,
is pertinent to the core claims in this action and whereas the timely disclosure of that
evidence might have changed Defendant’s overall litigation strategy and would involve
reopening most, if not all, discovery, the evidence regarding attorney’s fees is limited to a
discrete set of evidence that pertains only to damages for the malicious prosecution claim
and not to the substantive core of any of the claims in this action.

                                              5
foundation is laid at trial. At the October 23, 2015, Plaintiff raised a continuing objection
to the admissibility of the narrative portions of both of those documents. The Court has
considered this issue once again, including the authority cited by Plaintiff at the Pretrial
Conference, and concludes that narratives are admissible—on the condition that the
testimony at trial supports the conclusion that the material within the narratives was
within the personal knowledge of Office Devlin, who wrote those narratives.
    Turning to other specific objections to material within the reports, Plaintiff seeks the
redaction of several items within the “Subject Activity” portion of the Use of Force: the
reference to “DUI,” the reference to “alcohol,” and the reference to “attempt arrest.” The
Court agrees that the reference to “DUI” and “alcohol” must be redacted, but concludes
that the reference to “attempt arrest” need not be redacted.
    Plaintiff also objects to the statements within the narrative in each report that refer to
the use of alcohol and seek for those statements to be redacted. The Court concludes that
those statements do not need to be redacted. The Court concludes that this information is
probative to the issues that will be before the jury, including the reasonableness of the
Defendants’ actions in the events underlying this case. The Court will consider an
appropriate instruction to the jury in connection with the admission of these statements,
as discussed at the October 23, 2015, Pretrial Conference in light of the submission of
proposed instructions by the parties.
   In sum, the check boxes associated with the words “DUI” and “alcohol” in the
“Subject Activity” section of the Use of Force Report must be redacted (including the
words “DUI” and “alcohol”). Otherwise, the two reports are admissible on the
conditions stated here and in the Court’s October 22, 2015, Memorandum Opinion and
Order.

Orders
   It is hereby ORDERED that
       •   Plaintiff’s jacket is inadmissible;
       •   testimony by attorney Jason Kalafat is precluded as to the jacket;
       •   the MPD Use of Force Report and the PD 119 Witness Statement of Officer
           Devlin are admissible on the conditions stated above; and
       •   Plaintiff’s testimony regarding attorney’s fees and the engagement letter are
           not precluded and may be presented at trial as evidence on the conditions
           stated above.
   SO ORDERED.
                                                           /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge
                                                 6
