Order | Filed: June 25, 2026
| Entered: June 25, 2026
McFadden v. USA
Personal Inj. Med. Malpractice | Connecticut
Order on Motion to Preclude
ORDER granting in part 111 & 112 Motions to Preclude Plaintiff's Supplemental Rule 26(a) Disclosure. Defendants Almost Family, Inc. ("AF") and Mercuri (together, "Defendants") have moved to preclude Plaintiff's March 18, 2026, supplemental Rule 26(a) disclosure of Jim Oulundsen, a proposed witness Plaintiff seeks to use to authenticate certain information extracted from Decedent Margaret Erickson's cell phone. For the reasons below, Defendants' motions are GRANTED IN PART.
Relevant Chronology. On June 14, 2024, Plaintiff produced in discovery text messages contained on Ms. Erickson's cell phone, between her and Mercuri. ECF No. 120 at 2. The parties' Rule 26(a)(1) disclosures were due September 15, 2024. ECF Nos. 18 , 19. In March and May of 2025, Plaintiff produced a Cellebrite report containing these text messages and other data extracted from the cellphone. ECF No. 120 at 2; see also ECF Nos. 111 at 3, 112 at 3. Per the Court's modified scheduling order, fact witness depositions were to end on December 1, 2025. ECF Nos. 78 , 80. On March 18, 2026, Plaintiff "supplemented her previous Rule 26(a) disclosures" to disclose Oulundsen as a potential trial witness who "might offer limited testimony to authenticate certain information contained on Ms. Erickson's cell phone, including the text communications that had previously been produced." ECF No. 120 at 2.
Legal Standard. The Court incorporates the legal standard set forth in ECF No. 102, with the following supplementation. Fed. R. Civ. P. 26(a)(1)(A) requires parties to, "without awaiting a discovery request, provide... the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with subjects of that information -- that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). Parties have a duty to supplement their Rule 26(a) disclosures when they learn that the information provided in their initial disclosures was incomplete or incorrect in a material way. Fed. R. Civ. P. 26(e)(1)(A).
Analysis. The Court finds that Plaintiff failed to timely disclose Oulundsen as required under Rule 26(a), and such untimely disclosure was unjustified and not harmless, but preclusion is nevertheless unwarranted here given the efficacy of the lesser sanction of allowing Defendants to depose Oulundsen.
As an initial matter, Oulundsen is a fact witness who will testify as to authentication of material extracted from Decedent's phone, not an expert witness. While Plaintiff's Rule 26(a) notice suggested that Oulundsen would be called to testify on his method of data extraction in addition to authentication testimony, at oral argument on these motions to preclude, Plaintiff disavowed any intention for Oulundsen to opine on the methodology he relied on to extract the messages or any other expert-type opinions. Accordingly, the Court proceeds on the understanding that Oulundsen is a fact witness only.
Plaintiff's disclosure of Oulundsen is untimely under Rule 26(a). Rule 26(a)'s deadline to disclose the identity of individuals likely to have discoverable information applies equally to authentication witnesses. See Smith v. Loudoun Cnty. Pub. Schs., No. 1:15-CV-956 (JCC) (TCB), 2016 WL 9943214, at *2 (E.D. Va. Jan. 21, 2016) (finding that defendant's failure to disclose an authentication witness was untimely under 26(a)(1), but was ultimately harmless); American S. Ins. Co. v. Williamson, 3:13-CV-689 (DPJ) (FKB), 2014 WL 7149749, at *2 (S.D. Miss. Dec. 15, 2014) (timely disclosure of authentica... (truncated)