Here’s the scenario: you are prepping for a civil trial and late in the game, you just found a witness that you need or want to testify for your trial. But “discovery cut-off” has passed, so maybe the Court will not allow you to disclose and put on this witness to testify.
Hm, so can you still have this witness testify? Are there rules? What are the considerations for fairness here?
Or, if you’re on the other side. You have prepped your trial and all of a sudden…soon before trial, the opposing lawyer springs this new witness on you. Can they do that?
Hm (again)…it depends.
To start: FROGs
Disclosure of witnesses usually starts in formal discovery. Per our California Form Interrogatory 12.1, this FROG (as they’re called) is where parties list witnesses who have knowledge of the Incident and injuries.
“Where the party served with an interrogatory asking the names of witnesses to an occurrence then known to him deprives his adversary of that information by a willfully false response, he subjects the adversary to unfair surprise at trial. He deprives his adversary of the opportunity of preparation which could disclose whether the witness will tell the truth and whether a claim based upon the witness’ testimony is a sham, false, or fraudulent.” Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.
But on that word “willful”…it need not be willful. “[T]he trial court need not expressly find that a party’s conduct is willful before excluding that party’s evidence at trial in order to ensure a fair trial.” Reales Investment, LLC v. Johnson (2020) 5 Cal.App.5th 463, 472.
Per Reales, it’s more about fairness and prejudice to the other side rather than the nondisclosure being willful: “Regardless of whether Reales’s conduct was intentional or inadvertent, the trial court could reasonably conclude that Grove and Johnson would have suffered prejudice from the introduction of Reales’s evidence and witnesses at trial. Because of Reales’s failure to properly engage in the discovery process, Grove and Johnson had no opportunity to examine Reales’s evidence before trial, depose its witnesses, conduct relevant discovery, or otherwise fairly prepare for a trial that included Reales’s excluded evidence and witnesses.” Id. at 474.
Disclosure by depositions
Disclosures can also come by way of depositions, where the person testifying can talk about other people who may have knowledge of the Incident, injuries, or lawsuit.
Next, we turn to county Local Rules and these rules may vary between counties in California. Most if not all, have their Local Rules Court, as we do in San Diego.
In San Diego for civil trials, our rule about witness disclosure is within Superior Court of California County of San Diego Local Rule 2.1.15 regarding Trial Readiness Conferences (the hearings are usually a few weeks before the trial starts): “Failure to disclose and identify all trial exhibits and witnesses intended to be called at trial and all other items required by the report may, in the court’s discretion, result in exclusion or restriction of use at trial.”
The law and policy thoughts
Ok, so we have our San Diego Local Rule. Next let’s talk fairness and prejudice. Is a late disclosure fair? And if the other party prejudiced by the late disclosure to then call that witness?
About fairness: “A trial court’s ‘inherent power to curb abuses and promote fair process extends to the preclusion of evidence” at trial. Accordingly, ‘trial courts regularly exercise their ‘basic power to insure that all parties receive a fair trial’ by precluding evidence.’” Reales Investment, LLC v. Johnson (2020) 5 Cal.App.5th 463, 472, citing another case.
“The purpose of discovery is to make trial ‘less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ ‘An important aspect of legitimate discovery from a defendant’s point of view is the ascertainment, in advance of trial, of the specific components of plaintiff’s case so that appropriate preparations can be made to meet them. It is impossible to discover this other than from the plaintiff [or other party].’” Id. at 474, citing other cases.
Once you discover any late witnesses, a possible approach is to disclose the names and contact to the other party or parties and stipulate to allow the parties to depose the witness even if the discovery cut-off date has passed.