DTE Electric Company et al v. Toshiba America Energy Systems Corporation et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONSUMERS ENERGY CO. and
DTE ELECTRIC CO.,
Plaintiffs,
Case No. 22-10847
v.
Hon. F. Kay Behm
TOSHIBA AMERICA ENERGY
SYSTEMS CORP. and
TOSHIBA CORP.,
Defendants.
_________________________________/
ORDER ON MOTION IN LIMINE (ECF NO. 261)
Plaintiffs filed a Motion In Limine Regarding Undisclosed Witnesses,
Untranslated Documents, and Late Produced Documents (ECF No. 261). This
matter is fully briefed. (ECF Nos. 272, 281). The court held a hearing on
September 26, 2025. For the reasons set forth below, the court grants in part and
denies in part the motion in limine.
A. 	Undisclosed Witnesses
The court’s CMO required the parties to disclose their witness lists by
March 31, 2023. (ECF No. 30; ECF No. 32). Defendants provided their witness list
on that date. (ECF No. 37). The parties made initial disclosures in October 2022
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 1 of 9

2
and Defendants supplemented their disclosures in July 2023. Fact discovery
closed on April 30, 2024. (ECF No. 74). Defendants’ witness list for trial includes
five witnesses that they did not include in their earlier disclosures: (1) Ryan
Graham, a Toshiba employee; (2) Charles Gorman, an employee of a crane
company called Barnhart that worked with Toshiba; (3) Karl Borling, another
employee of Barnhart; (4) Ernesto Mazolla, an employee of Voith Hydro, the
company performing repair work on the Ludington Plant; and (5) Christoph
Fitschen, another Voith Hydro employee. The first time Toshiba suggested that it
would call any of these individuals at trial was in draft witness lists tendered to
Plaintiffs between August 1 and August 15, 2025.
Plaintiffs argue that Local Rule 16.2(b)(8) precludes the calling of these five
witnesses. This provision provides in part, “Except as permitted by the Court for
good cause a party may not list a witness unless the witness was included on a
witness list submitted under a prior order or has been deposed.” E.D. Mich. LR
16.2(b)(8). Thus, pursuant to this rule, a witness may be included in a final
pretrial order, even if not listed on a previously filed witness list, if the court finds
good cause or the witness was deposed. Iuoe Loc. 324 Ret. Tr. Fund v. LGC Glob.
FM, LLC, No. CV 17-13921, 2020 WL 6391622, at *4 (E.D. Mich. Nov. 2, 2020).
Rule 37 of the Federal Rules of Civil Procedure provides that when a party fails to
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 2 of 9

3
disclose a witness, “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.” Fed. R. Civ. P. 37(c)(1) (emphasis added).
Defendants argue that the testimony of the proposed witnesses is
necessary to address developments instigated by Plaintiffs five months after the
close of discovery. More specifically, Defendants point out that on October 22,
2024, Plaintiffs issued unprompted correspondence purporting to terminate the
Overhaul Contract, and asserting that TAES’s alleged failure “to provide any
comprehensive or permanent repair [plan]” was a basis for termination. (ECF No.
229-22). After Defendants responded with their repair plan, Plaintiffs rejected
the repair plan as unreasonable and unacceptable to the owner. (ECF No. 229-
24). Defendants argue that Plaintiffs’ termination of the contract and rejection of
the repair proposed made new facts and witnesses relevant. Mr. Graham, Mr.
Gorman, and Mr. Borling would address topics relating to Defendants’ repair plan
and Plaintiffs’ asserted reasons for rejecting it. Defendants argue that it only
became clear in 2025 that Plaintiffs would present their concerns with the
“jacking up” approach at trial, citing their opposition to the motion for summary
judgment. Further, on August 1, 2025, Plaintiffs first produced an internal
Consumers “Executive Summary.” According to Defendants, the “Executive
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 3 of 9

4
Summary” appears to reflect Plaintiffs’ decision to reject Defendants’ repair plan,
including comments regarding the jacking-up approach. Thus, Defendants argue
that Graham, Gorman, and Borling are relevant witnesses needed to fairly
respond to Plaintiffs’ “late-breaking contentions about the jacking-up technique.”
(ECF No. 272, PageID.28965).
In contrast, Plaintiffs contend that Defendants’ theory that it was not clear
that the jacking up plan would be a prominent issue at trial lacks credibility.
These witnesses were working on a repair plan in 2022 and thus had discoverable
information but were not disclosed. Further, Count II of the complaint is about
repair. Plaintiffs expended significant efforts at discovering facts related to any
repair plan. In October 2024, Defendants tendered the jacking-up plan, “leaving
no doubt that the plan was ‘prominent issue’ in the case at least ten months
before the trial order.” (ECF No. 281, PageID.29563) (emphasis in original). And
in their December 3, 2024 letter rejecting the plan, Plaintiffs detailed their
objections to the plan. (ECF No. 229-24). Accordingly, Plaintiffs argue these
issues are not “late-breaking” such that they excuse an untimely disclosure.
As to witnesses Mazolla and Fitschen, Defendants point out they are
employees of Plaintiffs’ contractor, Voith Hydro. They have authored a number of
Plaintiffs’ recently produced documents that Plaintiffs intend to rely on at trial.
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 4 of 9

5
For example, on July 17, 2025, Plaintiffs produced 14 documents in which the
names of Mazolla and Fitschen appeared. Accordingly, Defendants argue that
there can be no prejudice where the witnesses work for Plaintiffs and whose
documents are included in Plaintiffs’ recent productions. Plaintiffs point out,
however, that they produced documents about the Voith repair plan in
September 2023, including documents identifying Mazolla and Fitschen.
The court agrees with Plaintiffs that the witnesses could have and should
have been identified earlier. The court does not find good cause for the late
disclosure or that it was substantially justified or harmless. There was clear
surprise that such witnesses would be offered. There was also little ability to cure
the surprise because the witnesses were disclosed only months before trial.
Calling five additional witnesses would disrupt an already lengthy trial. Given the
extensive expert testimony being offered by Defendants, the importance of the
evidence from these witnesses does not seem critical. Finally, the court is not
persuaded by Defendants’ reasoning for the late disclosures. The court agrees
with Plaintiffs that rejection of the jacking up plan is not “late breaking” news and
Defendants were aware of its prominence at least 10 months before the final
pretrial order was due to be filed. Further, the Voith witnesses were identified in
documents in September 2023. Accordingly, the court is similarly unpersuaded
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 5 of 9

6
that their identification in more recent documents provides a basis for their late
identification. See Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015).
Accordingly, the motion in limine is GRANTED as to the late disclosed witnesses.
B. 	Untranslated Documents
Defendants have included on its trial exhibit list about 100 documents
written in a foreign language and unaccompanied by a certified translation.
Defendants explain that the issue will be moot by the time briefing is complete
because they are in the process of providing certified translations. At the time of
their response brief, Defendants had provided certified translations for 123 out of
134 non-English documents on their proposed exhibit list for which certified
translations were not previously exchanged. Defendants also pointed out at the
hearing that Plaintiffs have their own translators. In the court’s view, the vast
majority of the translations were provided sufficiently in advance of trial such that
Plaintiffs have suffered no prejudice, particularly where they have employed their
own translators. The motion in limine is DENIED in this respect.
C. 	Late Produced Documents
On August 15, 2025, Defendants produced 344 documents1 for the first
time and added some of these documents to their trial exhibit list. Plaintiffs
1 Defendants characterize the production as 123 families of documents.
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 6 of 9

7
contend that Defendants should be precluded from putting any late-produced
documents on their trial list. The parties disagree as to whether Plaintiffs’
reiterated their request for the documents produced. In an email dated July 28,
2025, counsel for Plaintiffs asserted that “Toshiba has failed to respond to post-
deposition requests made by Plaintiffs, including our post-deposition request for
documents expressly referenced by Ms. Ogino during the deposition.” (ECF No.
272-3, PageID.29073). In response to this email, counsel for Defendants wrote
that they would be “supplementing our production for additional responsive
materials that we are able to identify from our investigation, in view of Plaintiffs’
request.” Id. Plaintiffs’ counsel did not address this characterization in response
to the email. Id. at PageID.29072. Defendants proceeded with its production of
documents apparently responsive to Plaintiffs’ February 13, 2025 email2 (ECF No.
272-4) on August 1, 8, and 15, 2025, related to Opinions from ESS and LDV
relating to the Ludington Plant. (ECF No. 272-5).
2 The February 13, 2025 email asked for, among other things:
“c. Any “opinions” from LDV related to the Ludington Plant, including but not
limited to the “opinions” referenced in Ms. Ogino’s Deposition Notes;
d. Any “opinions” from ESS related to the Ludington Plant, including but not
limited to the “opinions” referenced in Ms. Ogino’s Deposition Notes. If all
“opinions” have already been produced, please identify the Bates Numbers of
the documents.”
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 7 of 9

8
According to Plaintiffs, about half the documents produced concern its
work on the Plant and are dated between 2009 and 2015. The documents pertain
to topics such as Defendants’ DR/DRE designs and the parties’ contract
negotiations, which were called for in discovery requests dating back to 2022.
(ECF No. 281-2). Defendants offer no reasonable explanation for the late
production of these documents. Additionally, some documents are what
Plaintiffs characterize as improper expert documents including emails between
Defendants and an engineering consulting firm, LDV between 2019 and 2022.
While Plaintiff did request these documents back in February, they did not
request them more recently, contrary to Defendants’ assertion. Thus,
characterizing Plaintiffs’ observation that the documents were never produced as
a “request” does not provide a justification for their late production. Defendants
also produced documents about other plants, dated between 1980 and 2024.
According to Plaintiffs, Defendants plan to use these documents to show it has
done good work at other plants. Again, Defendants offer no reasonable
explanation for the late disclosure of this category of documents. Instead,
Defendants argue that Plaintiffs’ own late production justifies their actions. The
court finds that it does not and if Defendants took issue with Plaintiffs’
production, that could have been addressed in their own motion in limine.
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 8 of 9

9
For these reasons, the court GRANTS the motion in limine as to the late
identified witnesses and documents but DENIES the motion in limine as to the
untranslated documents.
SO ORDERED.
Dated: October 21, 2025 	s/F. Kay Behm
F. Kay Behm
United States District Judge
Case 4:22-cv-10847-FKB-CI ECF No. 313, PageID.<pageID> Filed 10/21/25 Page 9 of 9