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Mozingo v. Oil States Energy Services, L.L.C.

United States District Court, W.D. Pennsylvania

November 8, 2017

SAMMY MOZINGO, et al.
v.
OIL STATES ENERGY SERVICES, L.L.C.

          ORDER-MEMORANDUM

          KEARNEY, J.

         AND NOW, this 8th day of November 2017, upon considering Defendant's Motion to amend its Group 2 trial witness list (ECF Doc. No. 384), and Plaintiffs' Response (ECF Doc. No. 386), it is ORDERED Defendant's Motion (ECF Doc. No. 384) is GRANTED in part and DENIED in part and Defendant may file an amended Group 2 trial witness list with offers of proof consistent with this Order no later than November 14, 2017.

         Analysis

         A group of employees sued their former employer, Oil States, for failing to pay overtime under the Fair Labor Standards Act for their work on fracking drill sites. Under Fed.R.Civ.P. 1, we separated the employees into three trial groups to avoid jury confusion.[1] Discovery closed in June 2016 and we denied summary judgment finding genuine disputes of material fact.[2] We tried the first trial group of four employees last month and the jury returned a unanimous verdict finding the employees entitled to overtime under the Fair Labor Standards Act and awarding money damages.[3]

         After losing the first trial, Oil States moves to amend its witness list for the second trial. Oil States argues it needs to amend the witness list to counteract the employees' "inappropriate behavior" during the first trial which they will "likely" engage in the second and third trials.[4] Oil States seeks include three new witnesses, Rhonda Totten, Lias "Jeff Steen, and a Custodian of Fleetmatics' records, and re-designate two already identified witnesses, Jill Curry and Terry Woodall, from testifying by deposition to "may call" live testimony. The employees object and seek further discovery if we allow Oil States to add new witnesses.

         A. Jill Curry and Terry Woodall may be called to testify.

         Oil States seeks to re-designate Jill Curry and Terry Woodall from testifying by deposition to its "may call" list. Oil States does not give an offer of proof for re-designating Ms. Curry and Mr. Woodall to testify live. The employees do not object to Ms. Curry and Mr. Woodall testifying live about Oil States' overtime compliance efforts. They object to testimony outside this topic. Assuming Ms. Curry and Mr. Woodall's direct testimony will be the same topics as their designated deposition testimony (overtime compliance), Oil States may amend its witness list to include Ms. Curry and Mr. Woodall on its "may call" list to testify live.

         B. Rhonda Totten may testify limited to her relevant Rule 26 disclosure.

         Oil States seeks to add Rhonda Totten, an Oil States' Human Resources Manager to its "may call" list. Oil States identified her as a potential witness in a Rule 26 disclosure.[5] Oil States does not make an offer of proof for her trial testimony except it is designating her because, in their closing argument in the Group 1 trial, the employees suggested Oil States failed to call a Human Resources employee to testify. The employees object to Ms. Totten's testimony for failing to identify her in the pretrial memorandum. But Oil States disclosed her before discovery as a witness with "knowledge of human resources support for the locations at issue and the circumstances leading up to employee separations."[6] The employees argue they did not depose her because their separations were not at issue and they are unaware of the substance of her testimony.

         The employees knew Ms. Totten could have material information long before the close of discovery. Oil States may amend to identify Ms. Totten as a trial witness limited to knowledge of human resources support for the locations at issue.

         C. Lias "Jeff Steen may not testify.

         Oil States seeks to add Lias "Jeff Steen to its "may call" witness list. Mr. Steen is Oil States' Executive Vice President of Legal and Human Resources but Oil States does not make an offer of proof for his testimony except it is designating him because in their closing argument, the employees suggested Oil States failed to call a Human Resources employee to testify. The employees object because Oil States never disclosed Mr. Steen as a witness with relevant knowledge and never produced documents from Mr. Steen, nor have the employees deposed him. The employees request written discovery and the ability to depose Mr. Steen if we allow him to testify but also note his role as Oil States' counsel will engender privilege issues.

         We deny Oil States' request to add Mr. Steen as a witness because Oil States never disclosed him as a witness under Fed.R.Civ.P. 26(a) with relevant knowledge until after we tried the first case and the employees would be unduly prejudiced by allowing discovery and depositions for an entirely new witness.

         D. Fleetmatics' records custodian may overcome a ...


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