Magno J. Ortega v. Dennis M. O'connor, Director Napa State Hospital Dorothy Owen, and Richard Friday

We must decide whether the district court properly barred testimony of witnesses as a sanction for failure to serve a witness list on opposing counsel.

I

In July 1982, Dr. Ortega filed suit in the district court against Dr. Dennis O’Connor, Executive Director of the Napa State Hospital, and various other Hospital employees (collectively “Dr. O’Connor”), alleging that the search of his office by such employees violated the Fourth Amendment. The district court ruled against Ortega on summary judgment. Ortega v. O’Connor, No. C82-4045 (N.D.Cal. May 30, 1984) (“Ortega I”). This court reversed the district court. Ortega v. O’Connor, 764 F.2d 703 (9th Cir.1985) (“Ortega II”). The Supreme Court then granted certiorari and, in a plurality opinion, reversed this court and remanded the case to “determine the justification for the search and seizure, and evaluate the reasonableness of both the inception of the search and its scope.” O’Connor v. Ortega, 480 U.S. 709, 729 , 107 S.Ct. 1492, 1503 , 94 L.Ed.2d 714 (1987) (“Ortega III ”). We in turn remanded for trial in an unpublished order.

At trial, the court excluded Dr. Ortega’s witnesses as a sanction for what it perceived was Dr.…