Don’t Count the Witnesses Before They’re Called–A Return to Trial By Ambush?
In litigation, case schedules contain not just dates but deadlines that must be met—or they used to. Among other things, the case schedule typically sets pre-trial discovery deadlines and requires parties to identify trial witnesses by a set date. Witnesses not timely disclosed can be excluded from trial absent good cause shown by the disclosing party. The effect of such rules is to promote early identification of potential witnesses, ensure that discovery is completed on time, and avoid ambush at trial.
Such witness-disclosure deadlines now may lack the import they had, at least in Washington state court. In Jones v. City of Seattle, the Washington Supreme Court addressed whether the trial court properly excluded multiple witnesses identified by the defense mid-trial. The plaintiff in Jones was a fireman who sustained severe injuries after falling though the station’s “pole hole” in the middle of the night. At trial, one of the City’s defenses was that the plaintiff’s injuries were due to alcoholism, and the City sought to offer testimony from the plaintiff’s sister and father regarding his alleged alcohol abuse. The City had not listed either witness in any pre-trial witness disclosures, although the plaintiff had previously identified his father as a possible witness.
The court ordered the parties to depose plaintiff’s sister and deferred ruling on the admissibility of her testimony until she could read the deposition. The City also submitted a declaration from the plaintiff’s father with his proposed testimony. The court thereafter scheduled a hearing to address “compliance with the local rules and how in the world I could entertain any witnesses that are coming up during trial.”
At the hearing, the trial court provisionally excluded testimony from both witnesses. Under Local Rule 26(k)(4) (formerly 26(b)(4)), any witness not identified in pretrial disclosures as required in the case schedule “may not be called to testify at trial, unless the court orders otherwise for good cause and subject to such conditions as justice requires.” The trial court held that the City untimely identified both witnesses and failed to establish good cause for the late disclosures. The court also noted that the prejudicial effect of the proposed testimony was “dramatic” given the timing of the disclosure. The court excluded testimony from the City’s investigator for similar reasons. Ultimately, the jury returned a verdict for the plaintiff.
On appeal, the City argued that the trial court erred in excluding the witnesses without first considering the Burnet factors. In Burnet, the Washington Supreme Court held that before excluding evidence and testimony as a sanction for a party’s failure to provide discovery, a trial court must consider on the record (1) whether there was a willful violation of a court’s order or discovery rule, (2) whether the violation substantially prejudiced the opposing party’s ability to prepare for trial, and (3) whether a lesser sanction would suffice. Applying this standard, the Court in Burnet reversed the decision of the trial court, which had limited discovery and excluded evidence and expert testimony regarding the plaintiff’s negligent credentialing claim on grounds that the plaintiff had failed to plead the claim, either in its complaint or in discovery responses, and had failed to disclose the opinions of its experts as required by the court’s scheduling order, and therefore willfully violated a discovery order. The Washington Supreme Court held that this sanction was too severe given that the trial court made no finding of willfulness and the plaintiff’s disclosure, though late, occurred well in advance of trial.
The Court of Appeals in Jones rejected the City’s argument that the Burnett factors should apply to the determination of whether to allow undisclosed witnesses to testify at trial and affirmed the trial court’s ruling. But the Supreme Court disagreed and held that the trial court incorrectly excluded the witnesses without considering the Burnet factors. Specifically with respect to the plaintiff’s sister and father, the Court found that the trial court had failed to consider whether there had been a “willful” violation of the court’s scheduling order. In doing so, the Court held that King County Local Rules 4 and 26, which address case scheduling and witness-disclosure deadlines, as well as similar rules creating a presumption that late-disclosed witnesses are excluded absent showing good cause, are inconsistent with and subordinate to the Court’s holding in Burnet.
In effect, the Court’s holding in Jones places the burden on the non-offending party to demonstrate that a late-disclosed witness should be excluded. And to meet this burden, the non-offending party must show, among other things, that the failure to disclose a witness according to schedule was “willful.” Thus, a party’s neglect in timely identifying witnesses, under Jones, may have no consequences—witnesses not disclosed can be called anyway unless the non-offending party can establish the Burnet factors. As a result, litigants can no longer rely on pre-trial witness disclosures and should expect to have to confront unanticipated witnesses at trial.
 Following the plaintiff’s identification of 18 expert witnesses, the defendant moved for a scheduling order pursuant to CR 26, which the trial court granted and thereafter ordered the plaintiff to identify its trial experts and make them available for deposition.
 Noting that “a significant amount of time yet remained before trial” at the time of plaintiff’s disclosure, the Burnet court distinguished two prior cases cited by the City which had excluded witnesses disclosed on the eve of trial. See Allied Fin. Servs. v. Mangum, 72 Wn. App. 164 (1993) (excluding witnesses where party had failed to disclose any witnesses up to time of trial); Dempere v. Nelson, 76 Wn. App. 403 (1994), review denied, 126 Wn.2d 1015 (1995) (excluding witness identified 13 days before trial).
 The Court also failed to explain exactly what is needed to show willfulness. While willfulness was previously satisfied upon showing the party’s failure to comply with the court’s order was “without reasonable justification,” the Court noted that the willfulness prong would serve no purpose if willfulness flowed necessarily from a violation of the discovery order. Thus, the held “[s]omething more is needed,” though what exactly is unclear.