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CASE 0:10-cv-03785-SRN-JJK Document 114 Filed 05/30/12 Page 1 of 3
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
`
`Airborne Athletics, Inc.,
`
`Civil No. 10-3785 (SRN/JJK)
`
`Plaintiff,
`
`MEMORANDUM OPINION
`AND ORDER
`
`v.
`
`Shoot-A-Way, Inc.,
`
`Defendant.
`________________________________________________________________________
`
`David R. Fairbairn, Catherine Shultz and Stuart A. Nelson, Kinney & Lange, PA, 312 South
`Third Street, Minneapolis, Minnesota 55415, for Plaintiff
`
`Alan W. Kowalchyk, Eric R. Chad and Heather Kliebenstein, Merchant & Gould, PC, 80 South
`Eighth Street, Suite 3200, Minneapolis, Minnesota 55402, for Defendant
`________________________________________________________________________
`
`SUSAN RICHARD NELSON, United States District Judge
`
`This matter is before the Court on Defendant’s Motion to Strike the Declaration of
`
`Harold Krings [Doc. No. 105]. For the reasons set forth herein, Defendant’s motion is denied in
`
`part, and granted in part.
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`Defendant Shoot-A-Way, Inc. (“Shoot-A-Way”) moves to strike the Declaration of
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`Harold Krings. Plaintiff Airborne Athletics, Inc. (“Airborne”) submitted Krings’ Declaration in
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`support of its Memorandum in Opposition to Defendant’s Motion for Summary Judgment on
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`Willfulness. Defendant argues that Plaintiff failed to identify Krings in its disclosures pursuant
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`to Fed. R. Civ. P. 26(a). Shoot-A-Way contends that it had no notice that Airborne intended to
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`use Krings’ testimony to support its claims until Plaintiff filed its opposition memorandum,
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`along with Krings’ Declaration. After Shoot-A-Way voiced its opposition to the use of Krings’
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`Declaration, Airborne filed a supplemental Rule 26(a) disclosure listing Krings. As a result of
`
`

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`CASE 0:10-cv-03785-SRN-JJK Document 114 Filed 05/30/12 Page 2 of 3
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`this late disclosure, Shoot-A-Way argues that it has been harmed. Specifically, because Krings
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`was not previously disclosed, Shoot-A-Way did not depose him and argues that it is unprepared
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`to counter Krings’ Declaration and accompanying exhibit. Defendant therefore requests that the
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`Court strike Krings’ Declaration and exhibit and not consider them in ruling on the pending
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`summary judgment motion. In addition, Shoot-A-Way argues that Airborne made the late
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`disclosure of Krings in bad faith and requests that the Court award sanctions pursuant to Fed. R.
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`Civ. P. 37(c)(1).
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`Airborne responds that it supplemented its disclosures in a timely fashion and that the
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`subject of Krings’ Declaration – an incident occurring on August 5, 2000 - has been made
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`known to Shoot-A-Way during the discovery process. In addition, Airborne argues that its
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`failure to initially disclose Krings was substantially justified and harmless under Rule 37.
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`Specifically, Airborne contends that it only learned in late April that Krings would be willing to
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`testify. Moreover, Plaintiff argues that it is not clear that Shoot-A-Way would have deposed
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`Krings if he had been listed on the initial Rule 26 disclosures. At the very least, Airborne argues
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`that Krings’ testimony should be permitted for impeachment purposes, as such testimony is not
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`subject to the same disclosure requirements of Rule 26(a).
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`The Court finds that the failure to disclose Krings consistent with the parties’ initial Rule
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`26(a) disclosure requirements resulted in harm and prejudice to Defendant Shoot-A-Way.
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`Shoot-A-Way had no opportunity to make a meaningful decision about deposing Krings because
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`Airborne failed to identify him as a witness until nearly five months after the close of discovery.
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`Shoot-A-Way was therefore unable to counter the information presented in Krings’ Declaration
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`in connection with the pending summary judgment motion. Because the non-disclosure does not
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`2
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`

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`CASE 0:10-cv-03785-SRN-JJK Document 114 Filed 05/30/12 Page 3 of 3
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`appear to have been made in bad faith, however, sanctions are not warranted.
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`The Court denies Defendant’s request to strike Krings’ testimony. However, in order to
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`cure the harm caused by the late disclosure, the Court will permit Shoot-A-Way to take Krings’
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`deposition and to file supplemental briefing, limited to 5 pages, and limited to information
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`obtained in Krings’ deposition, his Declaration and accompanying exhibit. Airborne will be
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`permitted to file a responsive supplemental memorandum, limited to 5 pages, and limited to the
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`arguments and issues raised in Shoot-A-Way’s supplemental memorandum. Airborne’s
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`response will be due one week after the filing of Shoot-A-Way’s supplemental memorandum.
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`The deposition and filing of supplemental briefing shall occur within 45 days.
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`THEREFORE, IT IS HEREBY ORDERED THAT:
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`1.
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`For the reasons set forth herein, Defendant’s Motion to Strike the Declaration of
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`Harold Krings [Doc. No. 105] is DENIED in part, and GRANTED in part;
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`2.
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`Defendant may take the deposition of Harold Krings and file supplemental
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`briefing, to which Plaintiff may respond, as set forth herein, within the next 45
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`days.
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`Dated: May 30, 2012
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`s/Susan Richard Nelson
`SUSAN RICHARD NELSON
`United States District Judge
`
`3

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