Byrd et al v. Bonner et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
LAQUITA BYRD and MARCUS BYRD, 	)
)
Plaintiffs, 	)
)
v. 	) 	No. 24-cv-2043-SHM-tmp
)
FLOYD BONNER, KIRK FIELDS, 	)
and SHELBY COUNTY, 	)
)
Defendants. 	)
)
________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION TO EXCLUDE
________________________________________________________________
Before the court by order of reference is Plaintiffs Laquita
and 	Marcus 	Byrd’s 	Motion 	to 	Exclude 	the 	Declaration 	of 	Annette
Cotton. 	(ECF 	No. 	64.) 	For 	the 	following 	reasons, 	the 	motion 	is
GRANTED in part and DENIED in part.
I. 	BACKGROUND
This 	§ 	1983 	case, 	filed 	on 	January 	24, 	2024, 	stems 	from 	an
inmate-on-inmate 	assault, 	which 	occurred 	outside 	a 	criminal
courtroom. 	(ECF 	No. 	70 	at 	PageID 	926.) 	On 	August 	18, 	2024, 	the
case 	was 	dismissed 	as 	to 	Defendants 	Bonner 	and 	Fields. 	(ECF 	No.
37.) The case proceeded to discovery, which concluded on July 22,
2025. 	(ECF 	No. 	44). 	On 	August 	21, 	2025, 	both 	remaining 	parties
filed 	cross-motions 	for 	summary 	judgment. 	(ECF 	Nos. 	59, 	61).
Defendant 	Shelby 	County’s 	motion 	includes 	the 	declarations 	of
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three 	Shelby 	County 	Sheriff’s 	Office 	employees: 	Annette 	Cotton,
Dallas 	Lavergne, 	and 	Alisa 	Styles. 	(ECF 	Nos. 	61-3 	at 	PageID 	730-
33, 	61-4 	at 	PageID 	787-788, 	61-5 	at 	PageID 	789-91.) 	Lieutenant
Cotton’s declaration purports to summarize certain portions of the
Bureau 	of 	Professional 	Standards 	and 	Integrity 	investigation
report 	(“BPSI 	report”) 	regarding 	the 	assault, 	which 	report 	both
parties 	rely 	on 	in 	their 	motions 	for 	summary 	judgment. 	(ECF 	No.
61-3 	at 	PageID 	730-33.) 	Attached 	to 	her 	declaration 	is 	the 	BPSI
report, as well as witness statements. (Id. at PageID 734-786.) In
the last two paragraphs of her declaration (paragraphs 18 and 19,
which 	do 	not 	have 	citations 	to 	the 	BPSI 	report), 	Cotton 	purports
to 	provide 	facts 	based 	on 	deposition 	testimony 	from 	two 	officers
referred 	to 	in 	Plaintiffs’ 	motion 	for 	summary 	judgment. 	(ECF 	No.
70 at PageID 929 n.1.) According to Defendant, Cotton’s declaration
provides no information based on her own personal knowledge. (Id.
at PageID 928.)
Plaintiffs’ motion seeks to exclude Cotton’s declaration from
consideration at summary judgment. (ECF No. 64 at PageID 825, 833.)
They 	argue 	that 	Cotton 	was 	not 	disclosed 	as 	a 	witness 	during
discovery and that pursuant to Federal Rule of Civil Procedure 37,
her declaration should be excluded. (Id. at PageID 830.) They also
argue 	that 	Cotton’s 	declaration 	consists 	entirely 	of 	hearsay, 	is
inadmissible 	lay 	opinion 	evidence 	due 	to 	her 	lack 	of 	personal
knowledge, 	and 	is 	an 	improper 	attempt 	by 	Defendant 	to 	offer 	an
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untimely expert opinion under Rule 26(a)(2). (Id. at PageID 832.)
At 	the 	conclusion 	of 	their 	motion, 	Plaintiffs 	make 	a 	passing
request 	to 	exclude 	Cotton 	from 	testifying 	at 	trial 	as 	well. 	(Id.
at PageID 833.)
II. 	ANALYSIS
A. 	Legal Standard
Federal Rule of Civil Procedure 26(a)(1) governs the pretrial
disclosure 	of 	individuals 	who 	are 	likely 	to 	have 	discoverable
information. 	Fed. 	R. 	Civ. 	P. 	26(a)(1)(A)(i). 	It 	requires, 	among
other 	things, 	the 	disclosing 	party 	to 	provide 	those 	individuals’
names 	and 	the 	subject 	matter 	of 	their 	discoverable 	information.
Id. 	Rule 	26(e) 	states 	that 	a 	“party 	who 	has 	made 	a 	disclosure
under Rule 26(a)-or who has responded to an interrogatory, request
for 	production, 	or 	request 	for 	admission-must 	supplement 	or
correct its disclosure or response” as they learn new or corrective
information, 	or 	as 	the 	court 	orders. 	Fed. 	R. 	Civ. 	P. 	26(e)(1).
Rule 37(c)(1) provides for sanctions when a party fails to properly
make disclosures under Rule 26(a) or (e). Fed. R. Civ. P. 37(c)(1).
As 	such, 	if 	“a 	party 	fails 	to 	provide 	information 	or 	identify 	a
witness as required by Rule 26(a) or (e), the party is not allowed
to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Id. Alternatively or additionally, the
court 	may 	choose 	to 	order 	payment 	of 	reasonable 	expenses, 	inform
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the jury of the party’s failure, and impose other sanctions as it
deems appropriate. Id.
B. 	Exclusion as a Sanction Under Rule 37
Plaintiffs argue that Cotton’s declaration should be excluded
under Rule 37. (ECF No. 64 at PageID 830.) They state that Cotton
was not disclosed in either Defendant’s Rule 26(a) disclosures or
Defendant’s 	responses 	to 	Plaintiffs’ 	interrogatories, 	which
specifically 	requested 	that 	Defendant 	identify 	all 	of 	their
witnesses. (Id. at PageID 826.) Plaintiffs assert that Defendant’s
generic, 	non-specific 	interrogatory 	response 	of 	“all 	individuals
referred to in the BPSI reports” does not comply with the federal
rules 	because 	it 	would 	require 	them 	to 	“comb 	through 	every
document, 	identify 	every 	name, 	guess 	as 	to 	whether 	they 	have
meaningful 	information, 	and 	then 	depose 	them 	even 	if 	[Defendant]
omit[ted] 	them 	from 	a 	lengthy 	list 	of 	witnesses.” 	(Id. 	at 	PageID
829-30.) 	They 	argue 	that 	the 	“last-minute” 	declarations 	of
undisclosed 	witnesses 	should 	be 	excluded 	unless 	the 	discovery
violations 	are 	found 	to 	be 	harmless 	or 	substantially 	justified.
(Id. at PageID 830 (citing Sexton v. Uniroyal Chem. Co., Inc., 62
F. App’x 615 (6th Cir. 2003)).)
Defendant responds by claiming that they did identify Cotton
as 	a 	witness 	in 	their 	initial 	disclosures 	by 	referring 	to 	“[a]ll
individuals identified in the relevant BPSI investigation reports”
and 	“[a]ny 	other 	custodian 	of 	records 	necessary 	to 	authenticate
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admissible 	records 	in 	possession 	or 	control 	of 	Shelby 	County.”
(ECF No. 70 at PageID 928 (emphasis omitted).) They state that the
BPSI report and related investigative materials, in which Cotton’s
name 	is 	apparently 	mentioned 	several 	times, 	were 	produced 	during
discovery. 	(Id.) 	Defendant 	further 	argues 	that 	even 	if 	they 	did
not 	properly 	disclose 	Cotton 	as 	a 	witness, 	such 	a 	failure 	is
harmless because her declaration simply summarizes materials that
were produced in discovery and relied upon by Plaintiffs in their
own motion for summary judgment. (Id. at PageID 929.)
The 	court 	first 	considers 	whether 	Cotton 	was 	properly
disclosed 	as 	required 	by 	Rule 	26(a) 	and 	Rule 	33. 	Defendant
obviously knew about Cotton from the outset of this litigation and
should 	have 	identified 	her 	in 	their 	Rule 	26(a)(1) 	initial
disclosures 	and 	as 	a 	witness 	in 	their 	interrogatory 	responses.
Defendant’s 	non-specific 	reference 	to 	“[a]ll 	individuals
identified 	in 	the 	relevant 	BPSI 	investigation 	reports” 	does 	not
comply 	with 	the 	federal 	rules. 	See 	Wharton 	v. 	Preslin, 	No. 	2:07-
CV-1258, 	2009 	WL 	1850085, 	at 	*4 	(S.D. 	Ohio 	June 	26, 	2009). 	And
while the reference to “[a]ny other custodian of records necessary
to 	authenticate 	admissible 	records 	in 	possession 	or 	control 	of
Shelby 	County” 	could 	be, 	depending 	on 	the 	circumstances,
sufficient 	to 	disclose 	a 	records 	custodian 	witness, 	Cotton’s
declaration is not being offered for that purpose.
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Having 	found 	that 	the 	Defendant 	did 	not 	properly 	disclose
Cotton, 	the 	court 	next 	looks 	to 	the 	Sixth 	Circuit’s 	Howe 	multi-
factor 	test 	to 	determine 	if 	the 	Defendant’s 	failure 	to 	disclose
was substantially justified or harmless. The Howe factors are:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure
the 	surprise; 	(3) 	the 	extent 	to 	which 	allowing 	the
evidence would disrupt the trial; (4) the importance of
the 	evidence; 	and 	(5) 	the 	nondisclosing 	party’s
explanation for its failure to disclose the evidence.
RJ 	Control 	Consultants, 	Inc. 	v. 	Multiject, 	LLC, 	100 	F.4th 	659,
668-69 	(6th 	Cir. 	2024) 	(quoting 	Howe 	v. 	City 	of 	Akron, 	801 	F.3d
718, 748 (6th Cir. 2015)). “District courts have broad discretion
in 	applying 	the 	Howe 	factors 	and 	‘need 	not 	apply 	each 	one
rigidly.’” 	Hamood 	v. 	Arab 	Cmty. 	Ctr. 	for 	Econ. 	and 	Soc. 	Servs.,
No. 23-CV-10270, 2026 WL 147431, at *4 (E.D. Mich. Jan. 20, 2026)
(citing 	Bisig 	v. 	Time 	Warner 	Cable, 	Inc., 	940 	F.3d 	205, 	219 	(6th
Cir. 2019)).
Applying 	the 	Howe 	factors, 	the 	court 	finds 	that 	Defendant’s
failure to disclose Cotton was neither substantially justified nor
harmless. Plaintiffs did not have notice that Defendant would rely
on Cotton to support their summary judgment motion, discovery has
closed and both parties have fully briefed their cross-motions for
summary judgment, and Defendant’s justification for their failure
to 	disclose 	Cotton 	is 	unpersuasive. 	As 	for 	the 	importance 	of 	the
evidence, the court finds that this factor also weighs in favor of
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excluding 	her 	declaration. 	As 	Defendant 	concedes, 	the 	statements
contained 	in 	the 	declaration 	are 	not 	based 	on 	Cotton’s 	personal
knowledge, 	but 	instead 	are 	based 	on 	information 	contained 	in 	the
BPSI 	report 	and 	deposition 	testimony 	of 	two 	officers. 	The 	BPSI
report 	and 	deposition 	testimony 	speak 	for 	themselves, 	and 	thus
Cotton’s 	recounting 	of 	certain 	portions 	of 	that 	evidence 	would
appear to be, at most, of minimal importance. Thus, the request to
exclude 	Cotton’s 	declaration 	from 	consideration 	at 	summary
judgment is GRANTED.
However, 	as 	to 	Plaintiffs’ 	passing 	request 	to 	also 	exclude
Cotton as a witness at trial, that relief is DENIED at this time.
Plaintiffs’ 	motion, 	which 	is 	styled 	as 	a 	“Motion 	to 	Exclude 	the
Declaration of Annette Cotton,” does not specifically address why
Cotton 	should 	be 	excluded 	as 	a 	witness 	at 	trial. 	Indeed, 	at 	this
time, it is unclear whether Defendant will even call her as a trial
witness. 	Plaintiffs 	may 	renew 	their 	motion 	to 	exclude 	her 	as 	a
trial 	witness 	after 	the 	court 	rules 	on 	the 	cross-motions 	for
summary judgment.
III. CONCLUSION
For 	the 	reasons 	above, 	Plaintiffs’ 	Motion 	to 	Exclude 	the
Declaration 	of 	Annette 	Cotton 	is 	GRANTED 	in 	part 	and 	DENIED 	in
part.
IT IS SO ORDERED.
s/ Tu M. Pham
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TU M. PHAM
Chief United States Magistrate Judge
February 5, 2026
Date
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