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United States v. W.R. Grace

ELR Citation: 37 ELR 20186
Nos. No. 06-30192, (9th Cir., 07/12/2007)

The Ninth Circuit reversed and remanded certain lower court pretrial orders that excluded government witnesses and studies in a case concerning the release of asbestos-contaminated vermiculite at a mine. The lower court exceeded its authority by ordering the government to produce a pretrial list of nonexpert witnesses but acted within its authority by setting deadlines for the disclosure of expert witnesses the government intended to present and studies the government's expert witnesses intended to rely upon during the government's case-in-chief. Before the lower court can exclude a witness' testimony for a pretrial disclosure violation—either directly or by precluding the evidentiary basis for the witness' testimony—the court must find that the omission was willful and motivated by a desire to obtain a tactical advantage.

[A related decision to this litigation can be found at 35 ELR 20245.]