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59. Is the district court likely to grant the motion to modify the final pretrial order?
A baker brought suit against a restaurant in federal court. The baker's federal case was pending for five years. Two weeks before the trial was set to begin, the baker's attorney discovered a person whom she wished to call as a witness at trial. There was no compelling reason why the baker's attorney had not discovered this person sooner. The failure was simply due to an oversight by the investigator for the baker's lawyers. The district court had already entered its final pretrial order identifying all of the witnesses each side intended to call at trial and all of the documents each side intended to offer into evidence. The newly discovered person was not listed as a witness in the pretrial order. The baker's attorney thought that the newly discovered person could be important because his testimony would corroborate the baker's testimony. The baker's attorney then moved for the court to modify the final pretrial order to permit the newly discovered person to testify.
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B is correct. Under the FRCP, the court should modify a final pretrial order only to prevent manifest injustice. That showing has not been made here, where the baker's attorney could have found this witness before the pretrial order was entered. Moreover, the newly discovered person appears to have testimony that will merely corroborate the evidence that will be presented by the baker.
A is incorrect. Per the FRCP, the district court does have the discretion to modify a final pretrial order.
C is incorrect. The FRCP allow the amendment of pleadings under this standard, not the modification of a final pretrial order.
D is incorrect. The baker has not shown sufficient justification for permitting the newly discovered person to testify. The baker's attorney could have found this witness before the pretrial order was entered, and the newly discovered person appears to have testimony that will merely corroborate the evidence that will be presented by the baker.