Todd v. Fidelity National Financial, Inc. et al
ORDER granting 191 Motion Under Rule 37(c)(1) to Exclude from Trial Plaintiff's Late-Produced Documents. Under Fed. R. Civ. P. 37(c)(1), the documents disclosed by the plaintiff, Dale Todd, in his fifth supplemental disclosures, dated 2/27/2015, are excluded from evidence. By Judge Robert E. Blackburn on 3/19/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-666-REB-CBS
UNITED STATES OF AMERICA, ex rel. DALE TODD,
FIDELITY NATIONAL FINANCIAL, INC.,
FIDELITY NATIONAL TITLE INSURANCE COMPANY,
CHICAGO TITLE INSURANCE COMPANY,
SERVICELINK, INC., and
ORDER GRANTING MOTION TO EXCLUDE
LATE PRODUCED DOCUMENTS
This matter is before me on the Motion Under Rule 37(c)(1) To Exclude from
Trial Plaintiff’s Late-Produced Documents [#191]1 filed March 5, 2015. The plaintiff
filed a response [#209], and the defendants filed a reply [#211]. I grant the motion.
Trial in this case will begin Monday, March 23, 2015. Fact discovery closed on
February 13, 2015. On February 27, 2015, the plaintiff, Dale Todd, produced over 500
pages of documents from boxes of the personal files of Mr. Todd. Those boxes were
stored in his shed. The defendants contend these late-produced documents should be
excluded from evidence under Fed. R. Civ. P. 37(c)(1).
“[#191]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
Rule 37(c)(1) provides that if a party fails to properly disclose information as
required by Rule 26, “the party is not allowed to use that information or witness to
supply evidence . . . at trial, unless the failure was substantially justified or is harmless.”
When applying Rule 37(c)(1), the court is guided by the following factors: “(1) the
prejudice or surprise to the party against whom the [evidence] is offered; (2) the ability
of the party to cure the prejudice; (3) the extent to which introducing such testimony
would disrupt the trial; and (4) the moving party’s bad faith or willfulness.”
Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th
Given the circumstances evidenced in the motion, response, and reply, as well
as the circumstances of this case, I conclude that the documents disclosed by Mr. Todd
in his fifth supplemental disclosures, dated February 27, 2015, must be excluded from
evidence. The record indicates that Mr. Todd had custody and control of these
documents since before he filed this case. Nothing in the response [#209] of Mr. Todd
demonstrates substantial justification for his failure to disclose these documents in his
initial Rule 26 disclosures or in subsequent disclosures. His failure to timely disclose is
not harmless. In their motion [#191], the defendants specify prejudice they will suffer if
Mr. Todd is permitted to use these documents at trial. That prejudice is significant.
Given that trial is set to begin on March 23, 2015, there is little if any reasonable
opportunity to cure the prejudice. In addition, permitting Mr. Todd to use the latedisclosed documents at trial would cause some disruption of the trial, particularly in the
form of additional and hastily planned examination of Mr. Todd concerning the newly
revealed documents. Even if I assume there is no evidence of bad faith or willfulness
by Mr. Todd, the other relevant factors weigh strongly in favor of exclusion.
THEREFORE, IT IS ORDERED as follows:
1. That the Motion Under Rule 37(c)(1) To Exclude from Trial Plaintiff’s
Late-Produced Documents [#191] filed March 5, 2015, is granted;
2. That under Fed. R. Civ. P. 37(c)(1), the documents disclosed by the plaintiff,
Dale Todd, in his fifth supplemental disclosures, dated February 27, 2015, are excluded
Dated March 19, 2015, at Denver, Colorado.
BY THE COURT:
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