Fourhorn et al v. Denver, City and County of et al

Filing 487

ORDER granting in part 451 Defendant City and County of Denver's Motion to Strike Witnesses and Documents Pursuant to Fed.R.Civ.P. 37(c)(1). Plaintiffs are prohibited from utilizing the witnesses or documents identified in the 447 Fourth Supplemental Disclosures issued on 11/08/2011 other than witnesses Gerald Whitman, Richard Rosenthal, and Ruth Tafoya, and matters of public record, on a motion, at a hearing, or at trial, by Magistrate Judge Kristen L. Mix on 02/08/2012.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 08-cv-01693-MSK-KLM
MUSE JAMA,
JOSE ERNESTO IBARRA, and
DENNIS MICHAEL SMITH,
Plaintiffs,
ANTONIO CARLOS SANCHEZ,
Intervenor Plaintiff,
v.
CITY AND COUNTY OF DENVER,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant City and County of Denver’s Motion
to Strike Witnesses and Documents Pursuant to Fed.R.Civ.P. 37(c)(1) [Docket No. 451;
Filed December 13, 2011] (the “Motion”). The Motion is referred to this Court for disposition
[#452]. Plaintiffs and the Intervenor Plaintiff (“Plaintiffs”) submitted a Response in opposition
to the Motion on January 20, 2012 [#483], and Defendant filed a Reply on February 1, 2012
[#486]. The Court has reviewed the filings and the applicable law, and is sufficiently advised
in the premises. For the reasons stated below, the Court GRANTS IN PART Defendant’s
Motion.
I. Summary
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, as stated in the Second
Amended Complaint, which is the operative pleading [#221]. After elimination of multiple
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claims and defendants through the adjudication of dispositive motions, the remaining crux
of this lawsuit turns on Plaintiffs’ assertion that Defendant employs policies, procedures,
practices, and customs that enable its law enforcement personnel to effect improper arrests
based on mistaken identity, in contravention of Plaintiffs’ constitutional rights.
In an order issued August 4, 2010, the District Judge determined that no further
discovery would be necessary in this matter [#418]. Presently, no dates or deadlines are
scheduled. Defendant submitted a motion for summary judgment on September 15, 2011,
which remains pending before the District Judge [#439]. Plaintiffs responded to the motion
for summary judgment on December 30, 2011 [## 454, 455, 456, 457, 458, 459, 460, 461].
Defendant has not yet replied.
In the Motion at issue, Defendant asks the Court to exclude “previously undisclosed
witnesses and documents listed in the Plaintiffs’ . . . Fourth Supplemental Disclosures” from
use in this litigation, including use in Plaintiffs’ response to the motion for summary
judgment. [#451] at 1. Plaintiffs served the Fourth Supplemental Disclosures on November
8, 2011 [#447]. In sum, Defendant asserts that the Fourth Supplemental Disclosures are
untimely, and the delayed disclosure is not substantially justified nor harmless. See [##451,
486]. The Court agrees.
II. Analysis
A.

Rule 26(e)
Fed. R. Civ. P. 26(a)(1)(A) requires, with some exceptions inapplicable here, that “a

party must, without awaiting a discovery request, provide to the other parties . . . the name
and, if known, the address and telephone number of each individual likely to have
discoverable information--along with the subjects of that information--that the disclosing
party may use to support its claims or defenses.” This disclosure must be made “at or within
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14 days after the parties’ Rule 26(f) conference.” Fed. R. Civ. P. 26(a)(1)(C). Litigants’
disclosure obligations do not cease after initial compliance with the Rule, however. “A party
who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure
or response . . . in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect . . . .” Fed. R. Civ. P. 26(e).

In their

Fourth Supplemental Disclosures, Plaintiffs identify 108 witnesses. See [#447]. Plaintiffs
state that each of the 108 witnesses’ addresses and telephone numbers are unknown. Id.
For the majority of the witnesses, Plaintiffs provide the same generic statement of each
witness’ purpose: “[f]acts relating to arrest based on mistaken identity, including
communications to and from law enforcement officers, court proceedings, circumstances
of arrest, and length of detention.” Id. Plaintiffs admit that most of the 108 witnesses were
first identified within Defendant’s own disclosures or document productions. [#483] at 11.
Defendant’s production presumably was complete, at the latest, by August 4, 2010 ([#418]
denying Plaintiffs’ Rule 56(f) motion), and in large part (more than 8,500 pages), as early
as February 2010. Id. at 5
Although timeliness of supplementation is not clearly defined by Rule 26(e), the Court
finds that the delay of more than one year by Plaintiffs in issuing their Fourth Supplemental
Disclosures is excessive, and that Plaintiffs have not established good cause excusing the
delay. In essence, Plaintiffs’ excuse for the delay is the press of business, and apparently,
litigation strategy. As reasons for the delay, Plaintiffs cite to a change in their litigation team,
a sabbatical by one attorney (of the three counsel of record) on their team, multiple counsel
having responsibility for different parts of the litigation, and the general complexity of the
substantive issues and discovery process in this case. See [#483]. However, as stated in
the District Judge’s Practice Standards, good cause for simple extensions of time (let alone
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a delay in excess of one year for submission of required witness disclosures) explicitly does
not include “inconvenience to counsel or parties, press of other business, [or] scheduling
conflicts (especially when more than one attorney has entered an appearance for a party)
. . . .” MSK Civil Practice Standards § II.G.
Plaintiffs’ argument that many of the witnesses identified in the Fourth Supplemental
Disclosures were pulled from Defendant’s own documents, thus arguably Defendant had
fair notice of the witnesses, is not compelling. This assertion would require the Court to
attribute an uncanny level of prescience to Defendant. The Court agrees with Defendant
that knowledge of the existence of a person is distinctly different from knowledge that the
person will be relied on as a fact witness. See Gallegos v. Swift & Co., No. 04-cv-01295LTB-CBS, 2007 WL 214416, at *3 (D. Colo. Jan. 25, 2007) (rejecting plaintiff’s argument
that defendant was on notice of certain witnesses identified in an untimely disclosure
because the names of the witnesses were obtained from defendant’s own document
production). Plaintiffs had the documents from which these witnesses were identified as late
as August 2010, but did not disclose the names of these fact witnesses until November
2011. The Court finds that the delay in disclosure, in the context of the age of this case, the
significant number of witnesses disclosed, and the minimal information provided regarding
each witness, violates Rule 26(e).
B.

Sanctions Pursuant to Rule 37(c)(1)
Pursuant to Fed. R. Civ. P. 37(c)(1), if a party fails to comply with its continuing

disclosure obligations pursuant to Rule 26(e), the party should not be “allowed to use [the
violative] information or witness to supply evidence on a motion, at a hearing, or at trial,
unless the failure was substantially justified or is harmless.” “The determination of whether
a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
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district court.” Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993
(10th Cir.1999). The Tenth Circuit identified four factors for consideration in determining
whether the failure to disclose is substantially justified or harmless: (1) the prejudice or
surprise to the impacted party, (2) the ability to cure the prejudice, (3) the potential for trial
disruption, and (4) the erring party's bad faith or willfulness. Woodworker's Supply, Inc., 170
F.3d at 993. The Court addresses each in turn.
1.

Prejudice to Defendant

Defendant correctly points out that Plaintiffs had the benefit of insight into
Defendant’s defense strategy in late 2009, as Defendant filed motions for summary
judgment [## 333, 350, 356, 358] which were later denied without prejudice on August 24,
2010 [#425], and to which Plaintiffs never responded. Despite this insight, Plaintiffs waited
to submit their Fourth Supplemental Disclosures until Defendant’s renewed motion for
summary judgment regarding the single remaining Monell claim had been filed and pending
for nearly two months.

Due to the timing of the Fourth Supplemental Disclosures,

Defendant has not had the opportunity to investigate the evidence related to the witnesses
who are listed in the Fourth Supplemental Disclosures and relied on by Plaintiffs in their
voluminous response to the motion for summary judgment. See [#486] at 3 (identifying
Resp. [## 454, 454-1, 454-2] at 50-52, 54-61, 65, 70, 75, 82, 86, 87, 88-90, 91, 93, 94, 113,
115, 116, 117, 119, 131-134 (page numbers refer to pagination in document, not pagination
generated by ECF)). Defendant has not yet filed a reply in support of its motion for
summary judgment.
“A key policy goal of requiring parties to keep their disclosures current is ‘to avoid trial
by ambush.’” Gallegos, 2007 WL 214416, at *2 (citing Macaulay v. Anas, 321 F.3d 45, 50
(1st Cir. 2003)). Here, Plaintiffs’ timing of the submission of the Fourth Supplemental
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Disclosures during the pendency of a motion for summary judgment, and subsequent
significant reliance on evidence drawn from the witnesses identified in the Fourth
Supplemental Disclosures in their response to the motion for summary judgment, is akin to
trial by ambush, only on paper.

While Plaintiffs are “not required to marshal all of

[Defendant’s] evidence, Rule 26(a)(1) [and, subsequently, 26(e)] disclosures must be
sufficiently detailed to allow [Defendant] to make intelligent decisions regarding how [it] will
efficiently use the limited number of depositions permitted under the Rule 16 scheduling
order.” Sender v. Mann, 225 F.R.D. 645, 656 (D. Colo. 2004) (citation omitted). See also
D.L. v. Unified School Dist. No. 497, 270 F. Supp. 2d 1217, 1241 (D. Kan. 2002), vacated
on other grounds by D.L. v. Unified School Dist. No. 497, 392 F.3d 1223 (10th Cir. 2004)
(“Plaintiffs' failure to make the required disclosures . . . undermined defendants' ability to
conduct discovery as related to the[ ] witnesses,” and was thus prejudicial). Defendant
simply did not get a chance to determine how to utilize its allotted discovery regarding the
witnesses identified in the Fourth Supplemental Disclosures, due to the delay of over one
year in Plaintiffs’ issuance of the Disclosures.
Moreover, “delay and mounting attorneys fees can equate to prejudice.” Sender, 225
F.R.D. at 656 (citing Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993)). Allowing the
Fourth Supplemental Disclosures to stand would necessitate the re-opening of discovery,
in order to permit Defendant to prepare a defense to the recently disclosed witness
evidence. As such, the Court finds that the first factor weighs in favor of excluding the
disclosures, because Defendant is indeed prejudiced, in terms of time, money, and effort,
by the delayed issuance of Plaintiffs’ Fourth Supplemental Disclosures.
2. & 3.

Ability to Cure the Prejudice and Potential Trial Disruption

No trial date is set in this matter, nor has the District Judge entered a Final Pretrial
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Order. However, like the conclusion in Sender, this Court believes that “[t]o suggest that
sanctions are not appropriate simply because the trial court can provide a further extension
of time or delay the trial would effectively reward [Plaintiffs’] non-compliance.” Sender, 225
F.R.D. at 657.
Furthermore, the Court cannot ignore the obvious disruption to the briefing on
Defendant’s motion for summary judgment. This aging matter has required significant
judicial resources, and rewarding Plaintiffs’ delayed disclosures with the re-opening of
discovery and prolonged adjudication of the single remaining dispositive motion would be
an insult to the spirit of Fed. R. Civ. P. 1, which requires the construction of the Federal
Rules “to secure the just, speedy, and inexpensive determination of every action and
proceeding.”

The Court finds that although it might cure the prejudice endured by

Defendant, doing so under these circumstances is unreasonable and unwarranted. The
Court additionally concludes that, although no trial is set, the disruption to the adjudication
of the pending motion for summary judgment is sufficiently meaningful that these two factors
weigh in favor of excluding the Fourth Supplemental Disclosures.
4.

Plaintiffs’ Bad Faith

As explained above, Plaintiffs assert that the majority of the 108 witnesses listed in
the Fourth Supplemental Disclosures were revealed in Defendant’s documents produced
by August 2010. Again, this flawed argument does not meet Plaintiffs’ burden to justify the
late submission of the Fourth Supplemental Disclosures. See Gallegos, 2007 WL 214416,
at *3 (plaintiff, as non-movant, bore burden to justify untimely and otherwise deficient
disclosures). Further, also as explained above, the press of business does not constitute
good cause for the delay. The Court is left to conclude that Plaintiffs acted willfully in
delaying submission of their Fourth Supplemental Disclosures, and this final factor favors
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the imposition of sanctions pursuant to Rule 37(c)(1).
C.

Documents
Regarding the documents listed in the Fourth Supplemental Disclosures, Plaintiffs

state that PLF00001-20 include four affidavits relating to persons whose identities were
disclosed in 2009. [#483] at 13. However, Defendant explains that the affidavits were
actually executed by March 2010, but not disclosed until November 2011. [#486] at 6.
Consistent with the conclusions explained above, the Court finds that this disclosure is
untimely in light of the delay of over one year, and the previous identification of the
individuals does not cure the tardiness of the affidavits. As to DDS00001-47, Plaintiffs
explain that these documents are public records obtained from Denver’s website. [#483]
at 14. The Court may take judicial notice of public records, thus the Court sees no need to
affirmatively exclude them as untimely.
In sum, the Court finds that in large part,1 the Fourth Supplemental Disclosures are
untimely and in violation of Rule 26(e), and the delayed disclosure is not substantially
justified or harmless.
III. Conclusion
IT IS HEREBY ORDERED that Defendant Denver’s Motion to Strike Witnesses and
Documents Pursuant to Fed.R.Civ.P. 37(c)(1) [#451] is GRANTED IN PART as follows.
Plaintiffs are prohibited from utilizing the witnesses or documents identified in the Fourth
Supplemental Disclosures issued on November 8, 2011 [#447], other than witnesses Gerald
Whitman, Richard Rosenthal, and Ruth Tafoya, and matters of public record, on a motion,
at a hearing, or at trial.

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Defendant withdrew its objection to witnesses Gerald Whitman, Richard Rosenthal, and
Ruth Tafoya. [#486] at 7.

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Dated: February 8, 2012

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