Motion In Limine to Limit Witness Testimony 
United States District Court, [district].
[name of Plaintiff], Plaintiff,
v.
[name of Defendant], Defendant.
No. [case number].
[date].
Motion In Limine to Bar Calling Witnesses Not Disclosed During Discovery
[Name of Plaintiff] (“Plaintiff”) brings this motion in limine, seeking an order under Federal Rules of Evidence 26, 37, 402, 403, and 408 barring [name of Defendant] (“Defendant”) from calling any untimely disclosed witnesses, including: [list of names of barred witnesses]. This motion is further supported by the accompanying brief. There was a conference between attorneys or unrepresented parties and other persons entitled to be heard on the motion in which the movant explained the nature of the motion or request and its legal basis and requested but did not obtain concurrence in the relief sought.
BRIEF IN SUPPORT OF MOTION IN LIMINE TO BAR 
DEFENDANT FROM CALLING WITNESSES NOT 
DISCLOSED DURING DISCOVERY
ISSUE PRESENTED
1. Whether Defendant should be barred from calling witnesses whom Defendant failed to disclose prior to the close of discovery, whom likely have no admissible knowledge relevant to the issue of Defendant’s liability, and whose testimony would be prejudicial to Plaintiff.
INTRODUCTION
Defendant listed [number] witnesses for the first time in the parties’ joint final pretrial order, in violation of Federal Rule of Civil Procedure 26(a)(2)(A) and this Court’s scheduling order. The proper sanction for failure to timely disclose witnesses is barring their use at trial. Fed. R. Civ. P. 37(c)(1). Furthermore, upon information and belief, many of the untimely disclosed witnesses have no relation to the issues to be determined. Accordingly, Plaintiff requests that the Court bar these witnesses from testifying at trial.
BACKGROUND
Defendant’s “may call” witness list in the parties’ joint final pretrial order names [number] individuals who were first disclosed on [date], during the meet-and-confer process attendant to drafting the final pre-trial order. The newly-disclosed witnesses are: [list of names of witnesses]. Defendant declined, with one exception, to identify the expected subject matter of each witness’ testimony. Instead, Defendant averred that the witnesses fit in one of three general categories—defendants in other lawsuits involving Plaintiff, customers of the Defendant, and fact witnesses from lawsuits not involving Plaintiff—without explaining which witness falls into which category.
Discovery closed on [date]. Accordingly, Plaintiff had no opportunity to conduct discovery about any of these newly-disclosed witnesses. Plaintiff served written discovery on Defendant and deposed Defendant, and at no point did Defendant identify any of the new [number] witnesses as having knowledge of any relevant matter.
The only witness list produced by Defendant prior to the joint final pretrial order came on [date]. This list was required by the Court’s initial scheduling order. None of the new witnesses in the joint final pretrial order were included in that list.
At the final pretrial conference held on [date], the Court ordered the parties to update and scale down their witness lists in light of the limited nature in the upcoming trial. As of the writing of the brief, Defendant has failed to do so.
ARGUMENT
I. Defendant Should be Barred from Calling the New “May Call” Witnesses at Trial Because These Witnesses Were Not Disclosed Prior to the End of Discovery
Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to “disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Additionally, a party “must make these disclosures at the times and in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(C). Disclosures must also be supplemented in a timely manner when a party learns of additional or corrective information. Fed. R. Civ. P. 26(e).
To ensure that parties abide by the discovery rules, Rule 37(c)(1) states:
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 to supply evidence on a motion, at a hearing, or at a trial, unless that failure was substantially justified or is harmless.
Under this rule, a party may not use evidence that the party failed to disclose as contemplated by the Rules and scheduling orders. “The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.” Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 983 (6th Cir. 2004).
The potentially sanctioned party has the burden to prove that its failure to disclose evidence was “justified” or “harmless.” Roberts ex rel Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003). The Sixth Circuit has treated the “harmless” requirement as referring to the nature of the party’s failure to disclose and not the effect on the opposing party. Vaughn v. HomeGoods, Inc., No. 07-CV-15085, 2008 WL 4239505 (E.D. Mich. Sept. 11, 2008) (citing Roberts, 325 F.3d at 783). Generally, this requires “an honest mistake on the part of a party coupled with sufficient knowledge on the part of the other party.” Sommer v. Davis, 317 F.3d 686, 692 (6th Cir. 2003) (internal quotation marks omitted).
In the present case, Defendant failed to disclose any of the new “may call” witnesses prior to preparation of the joint final pretrial order. These proposed witnesses are eleventh-hour additions disclosed well after the close of discovery. This behavior clearly does not comport with the disclosure requirements of Rule 26(a)(2)(A). It also fails to comply with the Court’s scheduling order which states that a party may not include witnesses for the first time in the joint final pretrial order: “No witness shall be listed who has not been included on any witness list submitted pursuant to a prior order of the Court. Only listed witnesses will be permitted to testify at trial, except for rebuttal witnesses whose testimony could not be reasonably anticipated before trial, or except for good cause shown.”
Finally, Defendant’s failure to update and scale down the witness list violates the Court’s instructions at the final pretrial conference.
Defendant cannot show that its violation of Rule 26(a) and this Court’s scheduling order is “harmless” or “inadvertent.” First, Defendant had every opportunity through two discovery periods to disclose these witnesses. Second, because these witnesses were disclosed after the close of discovery, the failure to disclose is anything but harmless. See United States v. Dunn, No. 04 C 50472, 2007 WL 1100754, at *4-5 (N.D. Ill. Apr. 12, 2007) (barring five fact witnesses from testifying at trial where they were disclosed on the last day of discovery, noting prejudice to opposing party).
Although Defendant is proceeding in this matter pro se, that does not excuse surprise tactics or Defendant’s refusal to comply with court rules and orders to the extreme prejudice of Plaintiff. Brown v. Woodward, 145 F.3d 1330 (6th Cir. 1998) (“[A] pro se party . . . will not be relieved of the responsibility to comply with the basic rules of court.”); Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988) (“When a person such as either defendant in this case chooses to represent himself, he should expect no special treatment which prefers him over others who are represented by attorneys.”). Defendant should not be permitted to conduct a trial-by-ambush. Rule 37 provides the appropriate sanction. Accordingly, the Court should bar Defendant from calling any of the [number] new “may call” witnesses listed in the joint final pretrial order.
II. Certain Witnesses Should Also Be Barred from Testifying Because They Do Not Possess Relevant or Admissible Knowledge
Although all of Defendant’s new “may call” witnesses should be barred from testifying for the reasons stated above, many of these witnesses should also be barred from testifying for other reasons; namely, the irrelevant or prejudicial nature of their expected testimony.
A. Proposed Witness [name of Witness]
Defendant’s “may call” witness list includes [name of witness], who upon information and belief, is an accountant. Plaintiff anticipates that Defendant will call [name of witness] to establish that Defendant sold relatively few of Plaintiff’s goods over time or that Defendant made relatively little money from counterfeits of Plaintiff’s goods. He may also be called to bolster Defendant’s potential poverty defense.1
First, [name of witness]’s probable testimony is beyond the scope of the liability trial against Defendant. The number of goods sold or marks infringed is relevant to damages, not liability. Infringement is a strict liability offense. Taubman Co. v. Webfeats, 319 F.3d 770, 775 (6th Cir. 2003) (“[T]he Lanham Act is a strict liability statute.”); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 852 (M.D. Tenn. 2006) (“[A] general claim for copyright infringement is fundamentally one founded on strict liability.”) Plaintiff disputes that the profits from sales of counterfeits are relevant to any issue, but to the extent they are, it would be to damages and not liability.
Second, there has been no showing that [name of witness] has personal knowledge of the sale of counterfeits, such that he is competent to testify about it. The general financial condition of Defendant’s business is not relevant.
Moreover, no discovery was had concerning the quantity of goods sold at the [name of store] store, because Defendant wrongfully invoked the Fifth Amendment privilege and refused to produce sales records. United States v. Grable, 98 F.3d 251, 253 (6th Cir. 1996) (noting that the Fifth Amendment privilege against self-incrimination does not extend to corporate documents). Defendant also refused to produce records or testify on the basis of the Fifth Amendment, even though a corporation lacks the right to assert the Fifth Amendment. Braswell v. United States, 487 U.S. 99, 103, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988). Because Defendant foiled Plaintiff’s legitimate discovery efforts, which might have yielded documents or witnesses that would contradict [name of witness]’s testimony, he should not be permitted to testify.
B. Defendant’s Customers
Defendant’s witness list also purports to include selected purchasers of Defendant’s counterfeits. Plaintiff understands that these purchasers may have jobs in the legal system, including legal secretaries, court reporters, and possibly court personnel. Plaintiff surmises that Defendant will argue that selling counterfeits to these persons mitigates their liability in some way.
These witnesses are objectionable on multiple grounds. First, the legality of Defendant’s activities is not determined by the subjective beliefs and understandings of Defendant’s customers. The Lanham and Copyright Acts are strict liability statutes and even honest mistakes suffice to create liability. Taubman, 319 F.3d at 775; King Records, Inc., 438 F. Supp. 2d at 852. Nothing that these persons may have said to Defendant could constitute a legal defense to Defendant.
Second, Defendant has been deposed and did not testify to having any interactions with these individuals, whether to discuss the sale of counterfeits or any other matter. Accordingly, they have no place at her trial.
Finally, permitting these witnesses to testify opens up a can of unduly prejudicial worms. Plaintiff does not know what kind of unfounded averments, opinions or speculations these paralegal personnel might offer, but their probative value (if any) will be de minimis at best. On the other hand, the prejudice to Plaintiff and the possibility of confusing the jury are real and substantial.
C. Defendants from Other Lawsuits Involving Plaintiff
Defendant’s “may-call” list includes a variety of defendants in other Plaintiff lawsuits, including [list of names of witnesses]. Plaintiff has no reason to believe that any of these individuals were involved in the Defendant’s counterfeiting enterprise or have knowledge thereof. Defendant did not testify to having any communications with these individuals, or even having knowledge of them.
If these individuals were called, the only information they could provide concerns the details of their own businesses and Plaintiff’s lawsuits against them, including the ultimate resolution of those cases. This testimony would not be relevant to Defendant’s liability or any other issue in the case. It would also be highly confusing to the jury, unduly prejudicial to Plaintiff’s case, and call for the disclosure of confidential information (details of settlements of other cases). Accordingly, these witnesses should also be barred under Federal Rules of Evidence 402, 403, and 408. See Hudspeth v. Commissioner of Internal Revenue Service, 914 F.2d 1207, 1213 (9th Cir. 1990) (holding that Rule 408 barred plaintiff from using evidence of a prior settlement between defendant and a third party); Young v. Verson Allsteel Press Co., 539 F. Supp. 193, 196 (E.D. Pa. 1982) (“Rule 408 of the Federal Rules of Evidence extends the exclusion to completed compromises when offered against the compromiser.”); Playboy Enterprises, Inc. v. Chuckleberry Pub., 486 F.Supp. 414, 423, n.10 (S.D.N.Y.1980) (“To consider the terms of that settlement in this action would be improper and unjustified. It is well-established that statements made for purposes of settlement negotiations are inadmissible, and Rule 408 of the Federal Rules of Evidence extends the exclusion to completed compromises.”)
D. Fact Witnesses from Other Cases
Defendant’s witness list also includes fact witnesses from other unrelated cases, including but not limited to [names of cases]—cases about which Plaintiff knows nothing.
Plaintiff has no idea what these witnesses will be asked to testify about, which is a sufficient reason by itself to bar their testimony. It is likewise difficult to imagine what these witnesses, who have no relationship to Plaintiff or Defendant, might say that is relevant here. Even if they somehow did know a relevant fact, there surely must be other witnesses who also know it. It is almost inconceivable that these strangers would know of relevant facts that are unknown to either the Plaintiff or the Defendant.
CONCLUSION
Defendant’s new “may call” witnesses are eleventh-hour additions disclosed for the first time in the parties’ joint final pretrial order, well after the close of discovery. Allowing their testimony would be harmful to Plaintiff, which had no opportunity to conduct discovery on them. Furthermore, upon information and belief, many of these witnesses are unlikely to have relevant or admissible information. Accordingly, Plaintiff respectfully requests that the Court prohibit Defendant’s new “may call” witnesses from testifying at trial.
Dated: [date].
Respectfully submitted,
[names and addresses of counsel for Plaintiff]
Attorneys for Plaintiff