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10-2744 Hicks v. Drei

Civil Procedure

Where a plaintiff had actual knowledge of evidence prejudicial to her case, it was not an abuse of discretion to allow its admission although the defendant only disclosed it 20 days before trial.

“We could review her forfeited contention for plain error, but we rarely apply that doctrine in civil cases, and our assessment shows that hers is not a case with exceptional circumstances or one where a miscarriage of justice could occur if we decline to exercise our discretion and apply plain error review. See Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010). Hicks asserts that she prepared her entire case on the assumption that no cash payments from her desk clerk tenure would be discussed at trial, that the Defendants violated discovery rules by waiting so long, and that finding out twenty days before trial that the evidence would be presented left her without time to prepare her case. Yet Hicks does not explain why it was an abuse of discretion to admit the evidence; rather, she provides only a conclusory statement that the ‘tardy disclosure of this vital information severely prejudiced Employee’s ability to prosecute this action as the circumstances amply demonstrate.’ (Appellant’s Br. at 8.) We cannot agree. The alleged payments would have been made to Hicks, so she would have had knowledge of them or of their nonexistence. She might have been surprised by evidence thereof, but we perceive no reason why refutation of that evidence would have required extraordinary preparation that could not have been accomplished in a ‘mere’ twenty days. Perhaps she believed the evidence was prejudicial simply because it undermined her case. Indeed, her request for a new trial where that evidence would be excluded strongly suggests her underlying objection: if ‘trial by ambush’ was her actual concern, the additional preparation time afforded by a remand for retrial would certainly cure any prejudice arising from the timing of the disclosure. Her requested remedy convinces us that the alleged prejudice arises from the evidence’s power to persuade and not the timing of its disclosure. That is not a kind of ‘prejudice’ that warrants exclusion. See Cobige v. City of Chicago, Ill., ___ F.3d ___, ___, 2011 WL 2708756, at *4 (7th Cir. July 12, 2011) (‘This kind of effect is not “prejudice” at all—not unless we count as “prejudice” all evidence that undermines the other side’s contentions . . . .’).”


10-2744 Hicks v. Drei

Appeal from the United States District Court for the Southern District of Indiana, Magnus-Stinson, J., Kanne, J.

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