Int'l Custom Products Inc. v. United States, Slip Op. 11–60.Court No. 07–00318.

• Decision Date: 26 May 2011
• Docket Number: Slip Op. 11–60.Court No. 07–00318.
• Parties: INTERNATIONAL CUSTOM PRODUCTS, INC., Plaintiff,v.UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

774 F.Supp.2d 1338

INTERNATIONAL CUSTOM PRODUCTS, INC., Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 11–60.Court No. 07–00318.

United States Court of International Trade.

May 26, 2011.

Eckert Seamans Cherin & Mellott, LLC (Gregory H. Teufel and Jeremy L.S. Samek), Pittsburgh, PA, for Plaintiff.Tony West, Assistant Attorney General; Barbara S. Williams, Attorney–in–Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, Leesburg, VA, (Jason M. Kenner, Edward F. Kenny, New York, NY), for Defendant.

Opinion & Order

CARMAN, Judge:

Before the Court is Defendant's Second Motion in Limine and for Disqualification, along with a supporting Memorandum, filed on August 25, 2010. (ECF No. 163, “ Def.'s Mem.”) Plaintiff opposed the motion. (ECF No. 169, “ Pl.'s Opp.”) The motion is granted in part and denied in part, and ruling is deferred as to disqualification, as specified below.

Parties' Contentions

I. Defendant

Briefly, Defendant seeks an order precluding Plaintiff from entering at trial a number of proposed exhibits (Pl.'s Exs. 61–64, 66, 68–74, 77–78, 80–81, 85, 88–89, 91, 93–94, 96, 98–107, and 237) consisting primarily of correspondence and sales documents. Defendant claims that Plaintiff failed to disclose these documents before the close of discovery, instead responding to the relevant interrogatories solely with objections.

Defendant also seeks to preclude Plaintiff from introducing the testimony of eight specific fact witnesses, expert testimony by Plaintiff's principal witness, and Schedule X–1 of the Proposed Pretrial Order (consisting of the proposed expert testimony and curriculum vitae of Plaintiff's principal witness). Defendant seeks this relief due to Plaintiff's alleged violation of its obligation to produce the names of these witnesses during discovery under USCIT R. 26(a)(1) (requiring initial disclosures) and R. 26(a)(2) (requiring expert disclosure).

Defendant furthermore seeks to preclude all testimony and documents related to (1) reliance by Plaintiff upon Customs Ruling Letter NYRL D86228, (2) imports of Plaintiff's product, white sauce, from 1988 to 1994; (3) lost profits suffered by Plaintiff due to adverse actions taken by Customs in addition to overpayment on the single Entry underlying this case; and (4) collateral damages suffered by Plaintiff. Defendant claims that this evidence is all irrelevant and therefore inadmissible under Fed.R.Evid. 402, and that the lost profits and damages claims furthermore violate USCIT R. 9(g).

Finally, Defendant moves to disqualify Plaintiff's trial counsel, Gregory Teufel, Esq., on the ground that Plaintiff has listed Mr. Teufel as a potential rebuttal and credibility witness in the Proposed Pretrial Order. According to Plaintiff, Model Rule of Professional Conduct 3.7, “Lawyer as Witness,” forbids a lawyer to “act as an advocate at a trial in which the lawyer is likely to be a necessary witness,” except in certain circumstances that Defendant claims are not pertinent here.

II. Plaintiff

Plaintiff points out that the Rules contemplate that the parties hold a conference to plan discovery “as soon as practicable—and in any event at least 21 days before a ... scheduling order is due under Rule 16(b).” USCIT R. 26(f)(1). The time within which initial disclosures must be produced is defined in the Rules as “at or within 14 days of the parties' Rule 26(f) conference” unless exceptions irrelevant here apply. USCIT R. 26(a)(1)(C). The parties, however, never held a R. 26(f) conference.

Plaintiff argues that the deadline for initial disclosures was therefore never triggered. Plaintiff points out that, regardless, it provided initial disclosures on June 18, 2010 in correspondence in which Plaintiff also offered to provide any additional discovery sought by Defendant, and to join in a motion to reopen discovery should Defendant wish it. ( Pl.'s Opp., Ex. 4 at 2.) In another correspondence, dated July 1, 2010, Plaintiff's counsel notes that Defendant rejected Plaintiff's request for a R. 26(f) conference and offer of additional discovery or a joint motion to reopen discovery. ( Pl.'s Opp., Ex. 5 at 1.)

As to the exclusion of witnesses, Plaintiff argues that Gerd Stern has been known to Defendant for years, was interviewed more than once during the government's investigation, and was disclosed at the very latest via Dennis Raybuck's September 16, 2008 deposition testimony. ( Pl.'s Opp. at 17, Ex. 2.) Plaintiff claims the same is true of a witness whose name is confidential. Witness Douglas Winters, Plaintiff claims, only became known to Plaintiff when his name was noted on third-party white sauce test results during preparation of the pretrial order; Plaintiff disclosed his identity to the government promptly, and did not hire him as an expert. Plaintiff claims that the names of Dean Osborn, Kathy Negro, and “Bernard D. Liberati and/or other representative of Morris Friedman & Co.” would not have been responsive to any of the government's discovery requests. In any case, Plaintiff states that “it appears likely that the Government and ICP will reach further stipulations” that will render their testimony unnecessary. ( Pl.'s Opp. at 18–19.) Plaintiff makes no response regarding witnesses Kenneth Mitchell and Linda Knisley, listed as potential rebuttal or credibility witnesses in the proposed pretrial order.

As to the disqualification of Plaintiff's trial counsel due to Plaintiff listing him as a rebuttal and/or credibility witness, Plaintiff notes that Mr. Teufel has agreed not to testify if Plaintiff must choose between having Mr. Teufel as a trial counsel or witness. Plaintiff “merely asks that the Court defer ruling on this issue until trial,” where the issue can be decided in the context of the evidence then on the record.

As to precluding Mr. Raybuck's expert testimony, Plaintiff states that it formally disclosed Mr. Raybuck's expert report on September 13, 2010, which was timely under the “90 days before trial” requirement of R. 26(a)(2)(C)(I). Plaintiff also notes that it first informed the government that it intended to use Mr. Raybuck as an expert witness on February 23, 2010, but that the government never sought to depose him and even rejected Plaintiff's June 18, 2010 offer to make him available for deposition.

Plaintiff also argues that, to the extent that Defendant seeks exclusion of documents and witnesses due to Plaintiff's response to interrogatories with objections, Defendant should have brought complaints about those good-faith objections to the Court's attention long ago if Defendant wished to contest them.

Finally, as to the preclusion of testimony regarding damages and reliance on Ruling Letter NYRL D86228, Plaintiff notes that it has “withdrawn its claim for lost profits, and intends to file revised Schedules C–1 and E–1 to the Proposed Pretrial Order, such that the only damages claimed shall be in the nature of excess duties paid on the Entry at issue, plus interest, expenses, costs, and attorney fees.” ( Pl.'s Opp. at 22.) Plaintiff argues that, while evidence of reliance on the ruling letter is not necessary to prove Plaintiff's due process claim, it is still has relevance to that claim.

Analysis

The Court notes that the parties never held a R. 26(f) conference, as required by the Court's rules, and that Defendant declined Plaintiff's offer, at the time when the Proposed Pretrial Order was being prepared, to hold a belated R. 26(f) conference or reopen discovery. Meanwhile, many months have passed since that time, during which the government could easily have been conducting further paper discovery stemming from the supposedly late-disclosed documents provided by Plaintiff, and depositions of the witnesses it claims it has been “sandbagged” by. Instead, the Court is now faced with a motion in limine that is, in essence, a belated discovery motion. The time for such motions is long past; this case is firmly in the pretrial stage. The Court notes that both parties bear partial blame for the improper conduct of discovery, but that only Plaintiff has proposed reopening discovery to cure any potential prejudice from which the government may claim to suffer. Upon consideration of these factors, as well as all other papers and proceedings in this case, Defendant's motion is denied to the extent that it seeks to preclude Plaintiff's Exs. 61–64, 66, 68–74, 77–78, 80–81, 85, 88–89, 91, 93–94, 96, 98–107, and 237, as well as witnesses Gerd Stern, Dean Osborn, Kathy Negro, Bernard Liberati and/or another representative of Morris Friedman & Co., Kenneth Mitchell, Linda Knisley, and the witness whose name is confidential. Defendant's motion is also denied as to Dennis Raybuck's testimony in an expert capacity and as to Schedule X–1 of the proposed pretrial order given that Plaintiff has long since provided expert disclosure as to Mr. Raybuck.

As to witness Douglas Winters, the...