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Lower Merion School District (“District” or “Defendant”), by and through its attorneys,
preclude Anthony Stevenson, Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles from
testifying at trial.
As a preliminary matter, Counsel for the District did not learn of Anthony Stevenson,
Wanda Anderson, Dr. Robert Jarvis, and Dr. Claudia Lyles until March 11, 2010, just one day
before it was required to file its Pretrial Memorandum, which listed these and other proposed
witnesses.
Nevertheless, even had the District been aware of these witnesses beforehand, it was not
required to disclose them in its Rule 26(a)(1) initial disclosures. Rule 26(a)(1) requires parties to
disclose the identities of individuals likely to have discoverable information concerning the
claims and defenses at issue in the lawsuit. Fed. R. Civ. P. 26(a)(1). These four witnesses have
Case 2:09-cv-02095-MMB Document 83 Filed 04/02/10 Page 2 of 6
no such personal knowledge regarding the subject matter of this litigation, i.e., the District’s
redistricting process and redistricting plan. Rather, each of these proposed witnesses is an
educator who has worked with Dr. Christopher McGinley, the District’s Superintendent, and
who has personal knowledge concerning his reputation as an educator, his work concerning
issues such as the “achievement gap,” his advocacy for children of color and children with
disabilities, and his commitment to ensuring greater access to challenging coursework for
minority students and students with disabilities. Notably, Counsel for Plaintiffs questioned Dr.
McGinley during his deposition regarding these areas of inquiry, and the jobs he has held and the
districts within which has worked since college. See Plaintiffs’ Trial Exhibit, P-185, Dr.
Christopher McGinley Deposition at 14-20. Plaintiffs’ hyperbolic contention that allowing these
witnesses to testify would amount to “trial by ambush” should therefore be rejected. Plaintiffs
could have sought the identities of individuals with whom Dr. McGinley has worked, but they
chose not to do so. Indeed, Plaintiffs never propounded interrogatories to the District which
Plaintiffs claim that the District— including its Superintendent and Board of School
Directors—intentionally discriminated against them on the basis of race “by mandating that they
attend Harriton High School because they are minorities.” See Compl., ¶¶ 70, 75, 82.
Consequently, the testimony to be elicited from these four witnesses goes to motive or intent
and, therefore, is properly characterized as rebuttal testimony. See, e.g., Ansell v. Green Acres
Contracting Co., Inc., 347 F.3d 515 (3d Cir. 2003) (affirming, in ADEA case, district court’s
employees over age of forty, where testimony was offered to rebut plaintiffs’ argument that
termination was motivated by overarching plan to eliminate older workers and to establish that
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employer did not have a discriminatory intent when it discharged plaintiff); Terrell v. Richter-
Rosin, Inc., 81 F.3d 161, 1996 WL 122639, at * 4 (6th Cir. Mar. 19, 1996) (ruling, in housing
discrimination case, that district court properly allowed African-American home buyers to testify
regarding their experiences with defendants for purpose of rebutting inference that defendants
discriminated against plaintiffs); Boykin v. Hamilton County Board of Educ., 869 F.2d 1488,
1989 WL 20570, at * 4 (6th Cir. Feb. 21, 1989) (unpublished) (affirming trial court’s admission,
in Title VII and Section 1983 action, of witness testimony regarding defendant’s favorable
treatment of black people because when issue is whether defendant possessed discriminatory
intent, such testimony goes to intent and is therefore admissible under Rule 404(b)).1
Counsel for Plaintiffs attempts to preclude the testimony of these witnesses by creating
the appearance of an inconsistency in the District’s position where there simply is none. The
District does not seek to elicit testimony from these witnesses to defend a “race-based
redistricting” plan. See Plaintiffs’ Brief In Support of Their Motion in Limine, Dkt. No. 71-2, at
3-4. Rather, the District proffers the testimony of Ms. Anderson, Mr. Stevenson, Dr. Jarvis, and
Dr. Lyles to rebut any inference that the District intentionally discriminated against Plaintiffs. In
general, rebuttal lay witnesses are not required to be disclosed. Moreover, courts in this Circuit
have allowed parties to call witnesses in rebuttal even when they were not disclosed in a pretrial
memorandum or order, as long as the witness and his testimony are within the scope of proper
rebuttal. See, e.g., Upshur v. Sheperd, 538 F. Supp. 1176, 1180 (3d Cir. 1982). The District
identified the challenged witnesses in its Pretrial Memorandum filed on March 12, 2010, in
accordance with this Court’s scheduling order and the Local Rules of Civil Procedure, and it
submits that it has appropriately complied with the notice requirements of this Court.
1
A copy of this decision is attached hereto as Exhibit A.
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II. The Court Should Exercise Its Discretion to Admit This Testimony
The preclusion of witness testimony is an extreme sanction that should be employed only
in rare circumstances. See Meyers v. Pennypack Woods, 559 F.2d 894, 904-905 (3d Cir. 1977)
(reversing, in racial discrimination case under Civil Rights Act of 1866 and Fair Housing Act of
1968, district court’s refusal to admit testimony of witnesses not named in pre-trial memoranda);
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1202 (3d Cir. 1978) (holding that
exclusion of expert testimony was reversible error, even though subject of testimony was not
included in expert report in accordance with court order, where testimony did not disrupt trial,
and there was no assertion that defendant exercised bad faith). Consequently, even if the
identities of Ms. Anderson, Mr. Stevenson, Dr. Jarvis, and Dr. Lyles were subject to disclosure
under Rule 26(a)(1), this Court may, in its discretion, admit their testimony in the absence of
such disclosure, as courts routinely do. See, e.g., Cunningham v. Town of Ellicott, No.
discrimination case to call character witnesses not disclosed pursuant to Rule 26(a)(1) or (e));
The Globe Savings Bank, F.S.B. v. U.S., 61 Fed. Cl. 91, 100-101 (2004) (denying motion in
limine to preclude government from calling witnesses who were not disclosed under Rule
26(a)(1) or (e) in case brought by thrift alleging that government breached promises of regulatory
forbearance, where witnesses were not considered to have “discoverable information” because
anticipated testimony was not directly related to their regulation of plaintiff specifically, but
rather their regulation of other particular thrifts); Cary Oil Co., Inc. v. MG Ref. & Mktg., Inc.,
No. 99 Civ. 1725, 2003 WL 1878246, at * 4-5 (S.D.N.Y. April 11, 2003) (denying motion to
strike expert opinion testimony even though it was not contained in initial report in accordance
with Fed. R. Civ. P. 26(a)(2)(B), as defendants had ample time to prepare effective cross
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examination and consider possible witnesses to counter supplemental expert opinions that
In sum, the District disclosed the identities of the challenged witnesses in its Pretrial
Memorandum, just one day after it learned of them, and one month before trial.2 The testimony
the District intends to elicit from these witnesses is limited to a narrow and focused area of
inquiry and will not disrupt trial of the case. Under these circumstances, the District respectfully
submits that it should be allowed to present testimony from these witnesses, and that Plaintiffs’
Respectfully submitted,
2
The District identified these witnesses in its Pretrial Memorandum filed on March 12, 2010. Three days later,
Counsel for Plaintiffs sent a letter inquiring as to the subject matter of the witnesses’ testimony, to which the
District responded on March 17, 2010. See Exhibit B to Plaintiffs’ Brief in Support of Their Motion in Limine
(Dkt. No. 71-4). Therefore, Plaintiffs have had notice of the anticipated subject matter of the challenged
witnesses’ testimony since March 17, 2010.
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CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of April, 2010, a true and correct copy of the
Preclude Testimony was filed electronically and is available for viewing and downloading from
the ECF system of the U.S. District Court for the Eastern District of Pennsylvania, and that I
David G. C. Arnold
Suite 106, 920 Matsonford Road
West Conshohocken, PA 19428