Poitra v. Denver Public Schools, District No. 1 et al
ORDER granting 58 Defendant School District No.1's Motion for Sanctions Pursuant to Fed. R. Civ. P. 37(a)(3)(A). By Magistrate Judge Craig B. Shaffer on 12/21/2015. (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00887-WYD-CBS
MICHAEL G. POITRA
SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO,
ANITA MARCHANT, Individually and as an employee of DENVER PUBLIC SCHOOLS
ORDER REGARDING DEFENDANT’S MOTION FOR SANCTIONS
Magistrate Judge Shaffer
Rarely, if ever, do “two wrongs make a right.” The court’s challenge, in the discovery or
case management context, comes in untying the Gordian knot that the two wrongs create. This
case presents just such a problem.
Pending before the court is Defendant School District No. 1's (hereinafter “DPS”) Motion
for Sanctions Pursuant to Fed. R. Civ. P. 37(a)(3)(A)1 (doc. #58), filed on November 16, 2015.
This motion seeks an order striking Rebecca Ortega, James Woods, Kao Vang and Ben Gallegos
from Mr. Poitra’s list of trial witnesses as set forth in the Fed. R. Civ. P. 16(d) Final Pretrial
Order, based on Plaintiff’s failure to properly and timely disclose those individuals pursuant to
Fed. R. Civ. P. 26(a)(1) and (e). The District also insists that it “should be awarded its
reasonable attorney’s fees incurred as a result of having to file the instant motion.”
During a motion hearing on December 16, 2015, defense counsel conceded that the
caption on the pending motion incorrectly references Rule 37(a)(3)(A), and should more
properly invoke Fed. R. Civ. P. 37(c)(1).
Plaintiff Michael G. Poitra filed his Response to Motion for Sanctions (doc. #62) on
December 1, 2015. Mr. Poitra’s counsel argues that “listing . . . the four employees as witnesses
on the pretrial order complies with the disclosure requirements pursuant to Rule 26(e)(1) as the
individuals were discussed during depositions of both the Plaintiff and DPS management, were
listed in interrogatory responses, and were the subject of documents provided by DPS, thus
making them otherwise known to the Defendant.” In the alternative, Plaintiff argued that any
prejudice arising from the inclusion of these individuals on Mr. Poitra’s witness list “nine
months prior to trial could be cured by interviewing those employees at some point during the
nine months which effectively removes any surprise and cures the prejudice.” Moreover, Mr.
Poitra insists that he “did not willfully or in bad faith fail to formally disclose witnesses already
known to the Defendant.”
Defendant DPS filed a Reply in Support of Motion for Sanctions (doc. #69) on December
8, 2015, which largely reiterated the arguments advanced in its initial motion.
This court set the matter for a hearing on December 16, 2015. At that time, counsel for
Defendant advised that her client’s motion for sanctions now was only directed to Ms. Rebecca
Ortega, since Mr. Poitra had agreed to remove the other three individuals from his “final”
witness list. In response to questioning from this court, Plaintiff’s counsel conceded that she had
never formally disclosed Ms. Ortega pursuant to Rule 26(a)(1). However, counsel argued that
Ms. Ortega had been referenced in Mr. Poitra’s December 16, 2015 deposition and in Ms. Anita
Marchant’s deposition on January 5, 2015, thereby satisfying the supplementation requirement in
Rule 26(e)(1)(A). Plaintiff’s counsel also suggested that Ms. Ortega’s inclusion in the Final
Pretrial Order sufficed to give Defendant proper notice, in light of Fed. R. Civ. P. 26(a)(3)(A)
and (B), which requires a party to disclose the witnesses they expect to use at trial “at least 30
days before trial.” At the court’s request, the parties provided a complete copy of Mr. Poitra’s
deposition transcript, as well as copies of their original Rule 26(a)(1) disclosures and any written
The court has carefully reviewed the parties’ briefs and related exhibits, the entire court
file, and the applicable case law. I have also considered the arguments of counsel during the
December 16 hearing. For the following reasons, I will grant Defendant’s motion and strike Ms.
Ortega from Mr. Poitra’s witness list.2
A brief factual recitation is sufficient to place the instant motion in context.
Mr. Poitra commenced this litigation on March 27, 2014 with the filing of a Complaint
(doc. #1) that generally alleged that he was the victim of employment discrimination and tortious
conduct while employed by the Denver Public Schools. Throughout the relevant time period,
Anita Marchant was Mr. Poitra’s supervisor. The Complaint asserts that in February 2013, one
of Mr. Poitra’s co-workers, Etoi Montgomery, advised Ms. Marchant of certain allegations
regarding Plaintiff’s interactions with a female co-worker. See Complaint, at ¶23. Ms. Marchant
allegedly placed Mr. Poitra on administrative leave without first interviewing the Plaintiff. An
On its face, Defendants’ motion does not seek relief that could be considered dispositive.
I am aware of Tenth Circuit precedent holding that “[m]otions not designated on their face as
one of those excepted in [§ 636(b)(1)(A)] are nevertheless to be treated as such when they have
an identical effect.” First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000),
citing Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1462 (10th Cir. 1988). However,
the motion before the court does not seek a dispositive sanction and Plaintiff’s counsel has not
suggested that striking Ms. Ortega from her client’s witness list would effectively preclude Mr.
Poitra from proceeding with his claims at trial.
investigation of those allegations subsequently was conducted by Susan Abeyta, Theresa Hafner
and Lee Renow, DPA Human Resources employees. Id. at ¶32. Ms. Marchant ultimately made
the decision to terminate Mr. Poitra and he received a letter to that effect on April 2, 2013, in
which Ms. Marchant stated that Plaintiff had “engaged in inappropriate workplace conduct and
then failed to fully cooperate with the District’s investigation of the allegations against you.” Id.
The Complaint named as defendants Denver County School District No. 1 and Anita
Marchant in her individual capacity and as a DPS employee, and asserted six claims for relief.
The First Claim alleged tortious interference with contract by Defendant Marchant. The Second
Claim was brought under 42 U.S.C. § 1983 and asserted a violation of Plaintiff’s liberty and
property interests under the Fourteenth Amendment. The Third and Fifth Claims asserted race
discrimination and gender discrimination, respectively, under Title VII. The Fourth Claim
alleged retaliation in violation of 42 U.S.C. § 2000e-3(a), and the Sixth Claim asserted a
violation of the Age Discrimination in Employment Act.
On June 13, 2014, this court held a Fed. R. Civ. P. 16(b)(1) scheduling conference and
entered a case management order establishing certain pretrial deadlines. At the scheduling
conference, counsel indicated that Fed. R. Civ. P. 26(a)(1) disclosures had been made on or
before June 6, 2014, pursuant to a deadline that I set in an April 3, 2014 Minute Order (doc. #5).3
Mr. Poitra’s initial disclosures identified 26 individuals “likely to have discoverable
information relevant to disputed facts alleged with particularity in the pleadings.” These
disclosures are notable for at least two reasons. First, Plaintiff’s counsel applied the initial
disclosures standard found in Rule 26(a)(1)(A) of the Colorado Rules of Civil Procedure, rather
than Fed. R. Civ. P. 26(a)(1)(A)(i), which requires the disclosing party to identify those
individuals with discoverable information that the disclosing party may use to support its claims
or defenses. Second, for 21 of the identified individuals, Plaintiff’s counsel provided the same
The court adopted, without change, the December 6, 2014 discovery cutoff proposed by the
parties, as well as their proposed dispositive motion deadline of January 15, 2015. Consistent
with Fed. R. Civ. P. 30(a)(2)(A)(i), each party was permitted to take ten depositions without
leave of court. After I extended the deadline at the request of the parties, discovery closed in this
case on January 5, 2015. Defendants moved for summary judgment on February 18, 2015.4
On April 30, 2015, the parties submitted their proposed Rule 16(d) Final Pretrial Order.
This court held a final pretrial conference on May 5, 2015. The District Court’s Instructions for
Preparation of Final Pretrial Order require each party to separately list their witnesses “who will
be present at trial” and those witnesses “who may be present at trial if the need arises.” For both
“will call” and “may call” witnesses, the designating party also must provide “a short statement
as to the nature and purpose of the witness’ testimony.” In the Final Pretrial Order submitted by
the parties, Mr. Poitra’s counsel listed 22 “will call” witnesses, 18 “may call” witnesses, and one
“will call” expert witness who will “offer testimony and expert opinions regarding the economic
generic description: that the named individual “may have information regarding Plaintiff and his
claims, as well as the workplace environment.” Four other individuals were simply described as
“character witness[s] for Plaintiff.” Cf. Cohen v. Public Service Company of Colorado, No. 13cv-00578-WYD-NYW, 2015 WL 6446948, at *4 (D. Colo. Oct. 26, 2015) (noting that Rule
26(a)(1) “does not contemplate generic disclosures, nor does it permit a party to provide an
undifferentiated list of possible witnesses”).
The district court granted in part and denied in part Defendants’ Motion for Summary
Judgment with an Order (doc. #55) entered on September 11, 2015. The court entered judgment
in favor of Defendants as to Plaintiff’s retaliation, due process and tortious interference claims,
but denied Defendants’ motion with respect to the claims of discrimination based on race, gender
losses suffered by Plaintiff.”5 Defendants listed 4 “will call witnesses”6 and 7 “may call”
In the Final Pretrial Order submitted to the court, Defendants noted their objection to the
following individuals included on Plaintiff’s “will call” witness list, “because such witnesses
have never been disclosed by either party:” Rebecca Ortega, James Woods, Ben Gallegos, Kao
Vang, Pastor Paul Burleson, Robert Canada, and James Purfield. Plaintiff’s counsel conceded
that these individuals, including Ms. Ortega, had not been formally disclosed previously. See
Courtroom Minutes/Minute Order (doc. 46). Counsel also suggested that she would be revisiting
her witness list and would likely pare that list down. While the court heard from each side on the
matter of the previously undisclosed witnesses, I emphasized that I was not privy to all discovery
in this case and was not making any ruling because no motion challenging the inclusion of these
individuals on Plaintiff’s witness list had been filed.
On May 8, 2015, Judge Daniel entered a Minute Order (doc. #48), setting this matter for
a five-day jury trial to commence on January 11, 2016, and setting a final trial preparation
conference for December 17, 2015. Defendant DPS filed the instant motion for sanctions on
November 16, 2015, less than two months before trial.
This court, in Sender v. Mann, 225 F.R.D. 645 (D. Colo. 2004), discussed at length the
standards governing Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure. That discussion
On December 15, 2015, Mr. Poitra filed his final witness list, consisting of 9 “will call”
witnesses, 4 “may call” witnesses, and one expert witness.
Each of Defendants’ “will call” witnesses were also included in Mr. Poitra’s list of “will
bears repeating. Rule 26(a)(1) provides, in pertinent part, that a party must disclose, without
awaiting a formal discovery request, “the name . . . 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, unless the use would be solely for impeachment.” See Rule
26(a)(1)(A)(i) (emphasis added). Rule 26(a)(1)(A)(i) does not require the identification of every
individual that may know something about the matter in dispute. Rather, the disclosure
obligation is limited to those individuals who are likely to have discoverable information “that
the disclosing party may use” to support its claims or defenses. Rule 26(a)(1)(A)(I) also requires
the disclosing party to identify “the subjects of the information” that a disclosed individual may
As I explained in Sender, 225 F.R.D. at 650, Rule 26(a)(1) disclosures are designed to
accelerate the exchange of basic information and “help focus the discovery that is needed, and
facilitate preparation for trial or settlement.” See Advisory Committee Notes to 1993
Amendments to Fed.R.Civ.P. 26(a). To that end, initial disclosures should provide an opposing
party “with information essential to the proper litigation of all relevant facts, to eliminat[e]
surprise, and to promot[e] settlement.” Windom v. FM Industries, Inc., No. 8:00CV580, 2003
WL 21939033, at *2 (D. Neb. Aug. 12, 2003) (quoting Rolscreen Co. v. Pella Prods. of St.
Louis, Inc., 145 F.R.D. 92, 94 (S.D. Iowa 1992)). See also Ollier v. Sweetwater Union High
School District, 768 F.3d 843, 863 (9th Cir. 2014) (“An adverse party should not have to guess
which undisclosed witnesses may be called to testify.”); City and County of San Francisco v.
Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003) (noting that Rule 26(a) seeks to
“‘accelerate the exchange of basic information’ that is ‘needed in most cases to prepare for trial
or make an informed decision about settlement’”). More to the point, initial disclosures should
be “complete and detailed,” and should “give the opposing party information as to the
identification and location of persons with knowledge so that they can be contacted in
connection with the litigation.” Crouse Cartage Co. v. National Warehouse Investment Co., No.
IP02-071CTK, 2003 WL 23142182, at *1 (S.D. Ind. Jan. 13, 2003) (quoting Biltrite Corp. v.
World Road Markings, Inc., 202 F.R.D. 359, 362 (D. Mass. 2001)). “Indicating briefly the
general topics on which such persons have information should not be burdensome, and will
assist other parties in deciding which depositions will actually be needed.” See Fed. R. Civ. P.
26(a) advisory committee’s note to 1993 amendment. Further reflecting the important role that
initial disclosures play in the discovery process, Fed. R. Civ. P. 26(g)(1)(A) provides that an
attorney or party, by signing initial disclosures, certifies to the best of their “knowledge,
information, and belief formed after a reasonable inquiry” that the disclosure is “complete and
correct as of the time it is made.”
In short, the Rule 26(a)(1) disclosure requirements should “be applied with common
sense in light of the principles of Rule 1, keeping in mind the salutary purposes that the rule is
intended to accomplish. The litigants should not indulge in gamesmanship with respect to the
disclosure obligations.” See Fed. R. Civ. P. 26(a) advisory committee’s note to 1993
amendment. See also Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 589 (D.N.J. 1997)
(Rule 26 disclosure requirement should be applied with common sense). Counsel who make the
mistake of treating Rule 26(a)(1) disclosures as a technical formality, rather than as an efficient
start to relevant discovery, do their clients no service and necessarily risk the imposition of
Fed. R. Civ. P. 26(e) imposes a self-executing obligation to supplement initial disclosures
to the extent their disclosures are “incomplete or incorrect.” See A PDX Pro Co., Inc. v. Dish
Network Service, LLC,
F.R.D. , No. 12-cv-01699-RBJ-CBS, 2015 WL 7717199, at *5 n.5
(D. Colo. Nov. 30, 2015). See also Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1226 (10th
Cir. 2015). As the court noted in Dayton Valley Investors, LLC v. Union Pacific R. Co.,
No.2:08-cv-00127-ECR-RJJ, 2010 WL 3829219, at *3 (D. Nev. Sept. 24, 2010), Rule 26(e)
“creates a duty to supplement, not a right” and does not “create a loophole” to be exploited by a
party to its advantage. There is, however, no affirmative duty to supplement initial disclosures
“if the additional or corrective information” has “otherwise been made known to the other parties
during the discovery process or in writing.” See Fed. R. Civ. P. 26(e)(1)(A).
It is undisputed that Plaintiff Poitra did not include Ms. Ortega in his initial Rule 26(a)(1)
disclosures or in any written supplemental disclosure provided to Defendants prior to the final
pretrial conference on May 5, 2015. In opposing Defendant’s motion to strike Ms. Ortega,
Plaintiff’s counsel points to specific deposition testimony from Mr. Poitra and Ms. Marchant as
satisfying her client’s supplementation obligation. Resolution of the pending motion for
sanctions thus turns on the application of Rule 26(e)(1)(A).
Defense counsel deposed Mr. Poitra on December 16, 2014. That deposition lasted for
approximately four hours, during which Plaintiff’s counsel asked a total of 12 questions; none of
which referenced Ms. Ortega or prompted a response that mentioned Ms. Ortega. The passages
referring to Ms. Ortega are found on all or portions of 18 pages of a 161-page deposition
transcript. Without quoting verbatim from Mr. Poitra’s deposition transcript, the references and
testimony regarding Ms. Ortega address the following subjects.
Mr. Poitra testified that he had discussed his case with Ms. Ortega and others, but also
conceded that it “has probably been a year” since he spoke last to Ms. Ortega. According to
Plaintiff, Ms. Ortega was interested in knowing whether he “was going to pursue a case” and
expressed her opinion that he should. Mr. Poitra recalled that Ms. Ortega “felt she may have her
own case and she wasn’t too happy [at DPA],” but she also “said she had a fear of saying
anything because she felt she may lose her job.”
In response to defense counsel’s questions, Mr. Poitra testified that Ms. Ortega had been
one of “his supports in vending,” but that he had not made the decision to hire her and initially
believed she “was [not] going to be a good fit for my team, but yet I was forced to make her part
of my team.” Expanding on that response, Mr. Poita explained that Ms. Ortega “always
complains about DPS” and that she did not hide the way she felt.
Mr. Poitra described Ms. Ortega’s attitude toward Anita Marchant. According to
Plaintiff, Ms. Ortega “didn’t like Anita at all” and “would complain about Anita.” Mr. Poitra
recalled that Ms. Ortega would tell him to “watch” his back and describe Ms. Marchant as
“really controlling.” In response to a question later in his deposition, Mr. Poitra seemed to
suggest that “Anita was aware of” how Ms. Ortega felt about her.
During his deposition, Mr. Poitra mentioned that when Ms. Ortega applied for his old
position as a vending route driver, she “apparently went to HR and she came up with this thing
that I was somebody who didn’t want to work with a woman.” Mr. Poitra opined that Ms.
Ortega made this comment because “she was trying to get my old position,” but then
acknowledged that Ms. Ortega “didn’t feel the same about me after she got to know me.”
Ms. Marchant made only one reference to Ms. Ortega during her January 5, 2015
deposition. That entire colloquy between Plaintiff’s counsel and Ms. Marchant reads as follows:
Q: Sitting here today, you can’t recall that you’ve terminated any female from
any position other than job abandonment?
A: That I can recall, correct.
Q: Okay. Do you recall a situation where Rebecca Ortega complained about an
individual named Brian Williams?
Q: What do you recall about that situation?
A: If I recall correctly, she had made some statements about him harassing her
when he and she were working up at Hilltop prior to the merger of the two
warehouses, which I was not a party of. And I also turned that over to human
resources for investigation.
Q: And what was the result of that investigation?
A: I don’t recall. I believe it was that it was unfounded. Her allegation was
Q: Was Mr. Williams – what race is Mr. Williams?
A: He’s black. And she also made the same allegations against Mr. Poitra and it
was investigated and it was also found to be unfounded. And it was handled the
same way. I turned it over to human resources for investigation and they gave me
the details surrounding it and then we made the decision of whether we felt it was
founded or not.7
Approximately four months after Ms. Marchant’s deposition and the discovery cutoff,
Plaintiff’s counsel listed Ms. Ortega in the Final Pretrial Order as a “will call” witness who “will
testify regarding her observation of Plaintiff in the workplace, the discipline policies and
practices, her observations of Ms. Marchant and the interaction with Mr. Montgomery, Mr.
Although Mr. Poitra argues that his deposition testimony should have alerted defense
counsel to Ms. Ortega’s potential importance as a trial witness, his own counsel apparently felt
that Ms. Ortega merited little discussion during Ms. Marchant’s deposition.
In suggesting that her client complied with his supplementation obligations under Rule
26(e), Plaintiff argues that “[b]oth parties and their counsel were present when Ortega . . . [was]
discussed in the context of this case, not simply as [an individual] who might now something but
within the specific factual parameters relevant to this case.”8 (See doc. 62 at 4 of 5). Plaintiff’s
counsel further contends that Ms. Ortega “became relevant as discovery progressed, and [her]
involvement with DPS management became apparent.” (See id.). It is difficult to reconcile
these sweeping generalizations with the very specific, and limited, nature of Mr. Poitra’s and Ms.
Marchant’s references to Ms. Ortega. Moreover, there does not appear to be any direct nexus
between the specific passages from the Poitra and Marchant depositions cited in Plaintiff’s
Response to Motion for Sanctions and the description of Ms. Ortega’s anticipated trial testimony
in the Final Pretrial Order. Neither Mr. Poitra nor Ms. Marchant were ever asked during their
deposition to discuss or describe Ms. Ortega’s “observations of Plaintiff in the workplace” or
Ms. Ortega’s “observations of Ms. Marchant;” indeed, one wonders how Mr. Poitra or Ms.
Marchant could even address or describe Ms. Ortega’s personal “observations.” Mr. Poitra did
not mention Mr. Montgomery or Mr. Worden in connection with his testimony relating to Ms.
Reduced to its essence, Plaintiff’s argument maintains that a party’s duty to supplement
Plaintiff’s counsel also contends that her supplementation obligation should be qualified
by the fact that Ms. Ortega is a DPS employee who has readily been accessible to defense
counsel. But see Cohen v. Public Service Company of Colorado, No. 13-cv-00578-WYD-NYW,
2015 WL 6446948, at *5 (D. Colo. Oct. 26, 2015) (“A party is not relieved of its obligations
under Rule 26(a)(1) simply because the Defendant can obtain the information from another
Rule 26(a)(1)(A)(i) disclosures is satisfied if an individual that may have relevant information is
mentioned, even in passing, during a deposition. That argument is predicated on an incomplete
reading of Rule 26(a)(1)(A)(i) and would effectively undermine the very purpose for initial
disclosures. Rule 26(a)(1)(A(i) requires more than simply a laundry list of potentially
knowledgeable individuals. Rather, a party is duty-bound to disclose those individuals “likely to
have discoverable information” that the disclosing party “may use to support its claims or
defenses.” To complete the disclosure obligation, the party must also identify “the subjects of
[the discoverable] information” that the putative witness may provide.
Rule 26(e) must be construed and applied against the backdrop of the very specific
requirements set forth in Rule 26(a)(1)(A)(i). Indeed, the elements of Rule 26(e) are quite clear.
First, to trigger the duty to supplement, a party’s initial disclosures must, in some respect, be
incomplete or incorrect. Here, that element is not in dispute, for Plaintiff concedes that Ms.
Ortega was not identified in Mr. Poitra’s initial disclosures or in any subsequent written
supplement. Second, Rule 26(e)(1)(A) requires that supplemental disclosures occur “in a timely
manner.” Cf. United States v. Guidant Corp., No. 3:03-0842, 2009 WL 3103836, at *4 (M.D.
Tenn. Sept. 24, 2009) (noting that while Rule 26(e) does not define “in a timely manner,” that
provision must be applied in accordance with the particular facts and circumstances of each case;
supplementation must occur “in a fashion that will allow [the opposing party] to conduct
meaningful discovery and avoid undue delay in the progress of [the] case”). See also Reed v.
Washington Area Metropolitan Transit Authority, No. 1:14cv65, 2014 WL 2967920, at *2 (E.D.
Va. July 1, 2014) (“Making a supplemental disclosure of a known fact witness a mere two days
before the close of discovery . . . is not timely by any definition.”). And finally, a reasonable
interpretation of Rule 26(e)(1)(A) and its reference to “incomplete or incorrect” disclosures
presumes that the “additional or corrective information . . . otherwise made known . . . during the
discovery process” will provide the functional equivalent of the information required under Rule
26(a)(1)(A). Cf. L-3 Communications Corp. v. Jaxon Engineering & Maintenance, Inc., No.10cv-02868-MSK-KMT, 2015 WL 5117792, at *8 (D. Colo. Sept. 1, 2015) (“To satisfy the ‘made
known’ requirement, a party’s collateral disclosure of the information that would normally be
contained in a supplemental discovery response must be in such form and of such specificity as
to be the functional equivalent of a supplemental discovery response; merely pointing to places
in the discovery where the information was mentioned in passing is not sufficient.”).
As the court noted in Auraria Student Housing at the Regency, LLC v. Campus Village
Apartments, LLC, No. 10-cv-02516-WJM-KLM, 2014 WL 2933189, at *2 (D. Colo. June 30,
2014), “knowledge of the existence of a person is distinctly different from knowledge that the
person will be relied upon as a fact witness.” Cf. Jama v. City and County of Denver, 304 F.R.D.
289, 297 (D. Colo. 2014) (“[B]ecause the purpose of the disclosure under Rule 26(a) was to
inform Denver of which individuals the Plaintiffs believed had pertinent information, what the
information was and how to contact the individual, Denver’s identification of individuals in
response to discovery requests did not relieve Plaintiffs of the obligation of disclosing the
individuals they thought had useful information.”) (emphasis added).
While discovery is, by necessity, an iterative process, Plaintiff’s interpretation of the
“otherwise made known” phrase has the potential to convert the Rule 26(e) supplementation
requirement into a “whack-a-mole” game. Cf. Cohlmia v. Ardent Health Services, LLC, 254
F.R.D. 426, 433 (N.D. Okl. 2008) (observing that Rule 26(e) “does not give license to sandbag
one’s opponent”). Constrained by the numerical limit on depositions imposed under Rule
30(a)(2) and by proportionality factors expressly incorporated in Fed. R. Civ. P. 26(b)(1),
opposing counsel is confronted with a real dilemma if the mere mention of an individual’s name
during a deposition discharges a party’s disclosure and supplementation obligations. A riskaverse party must either expend time and money taking a deposition that could prove worthless,
or risk surprise at trial. Cf. Sender, 255 F.R.D. at 656 (Rule 26(e) “disclosures must be
sufficiently detailed to allow [the opposing party] to make intelligent decisions regarding how
[it] will efficiently use the limited number of depositions permitted under the Rule 16 scheduling
Ms. Ortega illustrates this dilemma. Mr. Poitra indicated during his deposition that he
had not spoken to Ms. Ortega within the last year, thus leaving open the possibility that Ms.
Ortega’s dissatisfaction with her situation at DPS had diminished or had been resolved
completely. The prospect that Ms. Ortega might testify for Plaintiff at trial was less than certain
given her purported fear “of saying anything because she felt she may lose her job.” Finally, Mr.
Poitra and Ms. Marchant both suggested that Ms. Ortega’s credibility as a witness might be
compromised by her prior apparently unfounded allegations against Mr. Poitra and another DPS
employee. Cf. Johnson v. School District 1, No. 12-cv-02950-MSK-MEH, 2014 WL 983521, at
*3 (D. Colo. Mar. 13, 2014) (suggesting that a party has no reason to depose a witness whom the
other side did not disclose; “[d]efendants’ argument that [p]laintiff knew about all 10
administrators prior to their disclosure does not excuse their failure to disclose”).
The facts in this case are distinguishable from those in Llewellyn v. Allstate Home Loans,
Inc., 795 F. Supp. 2d 1210 (D. Colo. 2011), aff’d in part, rev’d in part on other grounds, 711
F.3d 1173 (10th Cir. 2013). In the latter case, the defendants moved to strike a declaration
offered by the plaintiff in response to the defendants’ motion for summary judgment. That
declaration had been signed by the plaintiff’s accountant, an individual who had not been
formally disclosed under Rule 26(a)(1) as a fact witness or disclosed in the plaintiff’s discovery
responses. In denying the motion to strike, the court noted that the accountant had been a topic
of questioning during the plaintiff’s deposition and that defense counsel specifically had asked
the plaintiff about “a produced document that had been previously created [by the accountant]
for purposes of the litigation.” The court emphasized that defense counsel “knew during
[p]laintiff’s deposition that [the accountant] had discoverable information related to [p]laintiff’s
purported damages.” Id. at 1220.9 In contrast, Mr. Poitra’s deposition testimony could be
reasonably interpreted to suggest that Ms. Ortega was disinclined to play any role at trial.
But it is the practical effect of counsel’s interpretation of Rule 26(e) that is most
troubling. Rule 26(a)(1) and (e)(1) impose an affirmative obligation to provide disclosures that
are complete and correct as of the time they are made. The importance of that disclosure
obligation is reflected in the certification requirement imposed on counsel under Rule 26(g). A
passing and perhaps oblique reference to an individual during a deposition should not
presumptively equate to a Rule 26(a)(1)(A)(i) disclosure that reflects counsel’s “knowledge,
information and belief formed after a reasonable inquiry.” Similarly, the phrase “otherwise
This ruling seems consistent with the Advisory Committee’s view that Rule 26(e) is
satisfied if “supplemental or corrective information . . . has been otherwise made known to the
parties in writing or during the discovery process, as when a witness not previously disclosed is
identified during the taking of a deposition.” See Rule 26(e) advisory committee’s note to 1993
amendment (emphasis added). There was nothing in Mr. Poitra’s or Ms. Marchant’s deposition
testimony, and certainly nothing in the questioning by Plaintiff’s counsel, that would have
reasonably put Defendants on notice that Ms. Ortega would be a witness in this action.
made known to the other parties during the discovery process” should not be broadly applied to
circumvent Rule 26(g) or give a party “license” to engage in ambush or supplement their
disclosures almost by happenstance. Cf. Bath and Body Works Brand Management, Inc. v.
Summit Entertainment, LLC., No. 11 Civ. 1594 (GBD)(JLC), 2012 WL 5278528, at *2
(S.D.N.Y. Oct. 23, 2012).10
For the foregoing reasons, I find that Mr. Poitra failed to comply with his disclosure
obligations under Rule 26(a)(1)(A)(i), as well as his duty to supplement those disclosures in a
timely manner pursuant to Rule 26(e)(1)(A). The issue then becomes whether striking Ms.
Ortega from Plaintiff’s witness list is an appropriate remedy for those transgressions. That
analysis requires me to address the second “wrong” implicated by the pending motion; that is,
Defendant’s protracted delay in seeking relief from Mr. Poitra’s untimely disclosure.
Rule 37(c)(1) of the Federal Rules of Civil Procedure states that where a party fails to
make a disclosure required by Rule 26(a) or Rule 26(e)(1), that party may not use at trial any
witness or information not so disclosed, unless the court determines that the failure to disclose
was substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1). The non-moving party has
the burden of showing that they were substantially justified in failing to comply with Rule
26(a)(1). Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995). While Rule 37(c)(1) is
During the hearing on December 16, 2015, Plaintiff’s counsel suggested that Ms.
Ortega’s belated disclosure was appropriate under Fed. R. Civ. P. 26(a)(3), which requires a
party to identify at least 30 days before trial the name “of each witness . . . the party expects to
present and those it may call if the need arises.” This provision should not be viewed as an
acceptable alternative for complete and timely disclosures under Rule 26(a)(1). Indeed, Rule
26(a)(3) makes clear, by its very terms, that the disclosure of a final witness list on the eve of
trial, is not a substitute for initial disclosures, but rather is “[i]n addition to the disclosures
required by Rule 26(a)(1) and (2).” Any other interpretation would effectively revive the “trial
by ambush” philosophy that Rule 26(a)(1) and (e)(1) were meant to prevent.
written in mandatory terms, it also vests the court with discretion to impose “other appropriate
sanctions” in addition to or in lieu of an order striking witnesses or evidence not properly
disclosed. See Woodworker’s Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d
985, 993 (10th Cir. 1999) (recognizing that Rule 37(c) vests broad discretion with the trial court).
See also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)
(noting that the district court’s discretion should be given particularly wide latitude in imposing
sanctions under Rule 37(c)(1)); Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y
Beneficiencia de Puerto Rico, 248 F.3d 29, 34 (1st Cir. 2001) (holding that district courts have
broad discretion in meting out Rule 37(c) sanctions for Rule 26 violations).
Sanctions should not be imposed under Rule 37(c)(1) where the failure to disclose was
substantially justified. For purposes of Rule 37(c)(1), a party’s failure to disclose is substantially
justified where the non-moving party has a reasonable basis in law and fact, and where there
exists a genuine dispute concerning compliance. Nguyen v. IBP, Inc., 162 F.R.D. at 680. In this
particular case, I cannot find that Plaintiff’s counsel’s position has a reasonable basis in law or
fact. Indeed, it appears that counsel’s initial disclosures are predicated upon the wrong version
of Rule 26(a)(1)(A).
Colorado’s version of Rule 26(a)(1)(A) harkens back to Fed. R. Civ. P. 26(a)(1)(A) as it
was adopted in 1993. See Fed. R. Civ. P. 26(a)(1)(A) advisory committee’s note to 1993
amendment. The Advisory Committee explained in 1993:
Subparagraph (A) requires identification of all persons who, based on the
investigation conducted thus far, are likely to have discoverable information
relevant to the factual disputes between the parties. All persons with such
information should be disclosed, whether or not their testimony will be supportive
of the position of the disclosing party. As officers of the court, counsel are
expected to disclose the identity of those persons who may be used by them as
witnesses or who, if their potential testimony were known, might reasonably be
expected to be deposed or called as a witness by any of the other parties.
Thus, the Advisory Committee seemly distinguished between the disclosures required by the
then-current version of Rule 26(a)(1)(A) and counsel’s separate responsibility, as an officer of
the court, to disclose the identities of their prospective witnesses.
Viewed in that light, the 1993 version of Rule 26(e)(1) makes more sense. When the
duty to disclose broadly encompasses any “individual likely to have discoverable information
relevant to the factual disputes between the parties,” the mere mention of an individual during a
deposition might suffice for purpose of Rule 26(e). The Advisory Committee apparently did not
revisit that language in Rule 26(e) when Rule 26(a)(1)(A) was revised in 2000 to no longer
require a party “to disclose witnesses . . . whether favorable or unfavorable, that it does not
intend to use.” See Fed. R. Civ. P. 26(a)(1), advisory committee’s note to 2000 amendment.11
Plaintiff’s counsel’s misapplication of Rules 26(a)(1)(A)(i) and (e)(1)(A) becomes more
glaring in light of her own actions. Counsel indicated during the recent hearing that she did not
learn of Ms. Ortega’s existence until very shortly before or during her client’s deposition on
December 16, 2014. Counsel also acknowledged that she personally interviewed Ms. Ortega
after Mr. Poitra’s deposition and close to the discovery cutoff. Defendant’s motion for summary
judgment made only passing reference to Ms. Ortega and she did not figure prominently in Mr.
The Advisory Committee did recognize that “[a]s case preparation continues, a party
must supplement its disclosures when it determines that it may use a witness . . . that it did not
previously intend to use.” Given this anomaly in the evolution of Rules 26(a)(1), trial judges and
parties may wish to reconsider how or to what extent they rely upon the “otherwise made
known” exception in Rule 26(e)(1)(A). See Fed. R. Civ. P. 26(a)(1), advisory committee’s note
to 2000 amendment.
Poitra’s response brief and attached exhibits. Ms. Ortega was not affirmatively disclosed as a
“will call” witness until on or about April 30, 2015, nearly four months after the close of
discovery. In short, I cannot find that Plaintiff’s counsel’s actions were substantially justified.
“Failure to comply with the mandate of [Rule 26(a)( and (e)] is harmless when there is no
prejudice to the party entitled to the disclosure.” Id.
The determination of whether a Rule 26(a) violation is justified or harmless is
entrusted to the broad discretion of the district court. A district court need not
make explicit findings concerning the existence of a substantial justification or
the harmlessness of a failure to disclose. Nevertheless, the following factors
should guide its discretion: (1) the prejudice or surprise to the party against whom
the testimony 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 Mutual Life Insurance Co., 170 F.3d at 993.
Applying the Woodworker’s factors to the record before the court, I cannot find that
Plaintiff’s non-compliance was harmless. Cf. Lintz v. American General Finance, Inc., No. 982213-JWL, 1999 WL 619045, *6 (D. Kan. August 2, 1999) (noting that non-compliance is
harmless only when there is no prejudice to the opposing party). In weighing the element of
prejudice or surprise, the court must again take heed of the purposes underlying Rule 26(a)(1).
“The importance of lay . . . witness disclosures and the harms resulting from a failure to disclose
need little elaboration.” Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003).
The belated disclosure of witnesses, particularly after the close of discovery, is antithetical to the
objectives underlying Rule 1; i.e., the just, speedy, and inexpensive determination of every
action. Cf. D.L. v. Unified School District # 497, 270 F. Supp.2d 1217, 1241 (D. Kan. 2002)
(finding prejudice to the extent that plaintiffs’ failure to make required Rule 26(a)(1) disclosures
undermined defendants’ ability to conduct discovery as to the non-disclosed witnesses), aff’d in
part, vacated in part, and remanded on other grounds, 392 F.3d 1223 (10th Cir. 2004).
As to the second Woodworker’s factor, Plaintiff’s counsel disputes any claim of prejudice
by arguing that defense counsel attended Mr. Poitra’s and Ms. Marchant’s depositions and was
free to informally interview any DPS employee. That argument is less than convincing given the
significant number of DPS employees; defense counsel should not be required to expend her
time and her client’s money chasing down interviews that may be wholly superfluous. See Jones
v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993) (recognizing that delay and mounting attorneys
fees can equate to prejudice). In theory, Defendant also could ameliorate any prejudice by
taking Ms. Ortega’s deposition on the eve of trial. However, that same “remedy” presumably
would be available in any case where Rules 26(a)(1) and (e)(1)(A) are violated. As a practical
matter, however, that “remedy” would afford Defendant little time to assimilate Ms. Ortega’s
deposition testimony and re-calibrate their trial preparation as necessary. More to the point, the
default remedy of last-minute depositions threatens to undermine the very objectives underlying
the disclosure and supplementation requirements.12 Cf. Transclean Corp. v. Bridgewood
Services, Inc., 77 F. Supp.2d 1045, 1064 (D. Minn. 1999) (noting while a continuance and
reopening of discovery might alleviate some of the prejudice caused by non-disclosure under
Rule 26(a), “such a remedy would wreak its own distinctive prejudice,” by unnecessarily
prolonging the pretrial process and increasing the expense of litigation), aff'd in part and vacated
in part on other grounds, 290 F.3d 1364 (Fed. Cir. 2002).
As to the fourth Woodworker’s factor, Defendant has not offered any evidence that would
Conversely, I find that striking Ms. Ortega may not have a material adverse effect on
Plaintiff’s case, since the description of her anticipated testimony seems to closely match many
of the topics that Mr. Poitra’s other “will call” witnesses are expected to cover.
demonstrate that Mr. Poitra’s failure to comply with Rule 26(a)(1)(A)(i) and Rule 26(e)(1) was
the product of bad faith or willfulness. However, Plaintiff’s good faith alone may not be enough
to overcome the other three factors. Cf. Jacobsen v. Deseret Book Co., 287 F.3d 936, 955 (10th
Cir. 2002). Mr. Poitra should not be permitted to ignore his disclosure obligations throughout
the discovery period and then avoid sanctions simply by claiming his deficiencies were not
It is the third Woodworker’s factor that presents the Gordian knot in this case. Trial will
begin in this case on January 11, 2016; that trial date was set on May 8, 2015. The rapidly
approaching trial date substantially reduces the court’s ability to fashion an appropriate remedy
under Rule 37(c). To suggest that striking Ms. Ortega as a witness is not appropriate simply
because her deposition can be taken at the eleventh hour or because the trial can be reset would
effectively reward Plaintiff’s non-compliance.
However, the court cannot overlook Defendant’s delay in filing the instant motion.
During the discovery hearing on December 16, 2015, defense counsel conceded that she had
raised the issue of Plaintiff’s surprise trial witnesses back in April when she and Plaintiff’s
counsel were preparing the proposed Final Pretrial Order. Defense counsel raised the issue with
this court during the final pretrial conference on May 5, 2015, and at that time I advised counsel
that the court could not decide this issue in the absence of a written motion. No motion was
immediately forthcoming, even after Judge Daniel set a trial date of January 11, 2016. Defense
counsel concedes that she did not re-raise this issue with Mr. Poitra’s counsel until November,
justifying that delay on the grounds that Plaintiff’s counsel had indicated she would be
narrowing her list of witnesses. Apparently, defense counsel felt that she would simply wait
impassively for several months while Mr. Poitra fine-tuned his witness list. Under a different set
of facts, Defendant’s delay in filing its motion for sanctions might be outcome determinative.
Compare Adams v. Cline Agency, Inc., No. 10-cv-02758-WJM-KLM, 2013 WL 244696, at *3
(D. Colo. June 5, 2013) (suggesting that any prejudice claimed by defendants as a result of
plaintiffs’ untimely disclosure was mitigated when defendants declined to seek discovery of such
evidence despite sufficient knowledge that it existed; the court found that “[d]efendants bear
some responsibility for their asserted lack of ‘adequate opportunity to prepare a defense for any
such undisclosed evidence’”). In a future case, Defendant’s passivity in the face of an apparent
discovery violation might inure to its detriment.
Defense counsel contends that Mr.Poitra’s untimely designation of Ms. Ortega as a trial
witness left DPS with no time to respond to that surprise. Having allowed that passage of time,
DPS now seeks to exploit that reality to its advantage. Counsel must have realized that the court
has the discretion under Fed. R. Civ. P. 16(b)(4) to modify any pretrial deadline upon a showing
of good cause. The belated and unanticipated disclosure of a trial witness would seem to fall
easily within the good cause requirement. It is not clear whether Defendant’s failure to file a
timely Rule 37(c) motion was the product of inattention or a calculated strategy. Under either
explanation, the net effect was to severely constrain the range of possible remedies for Plaintiff’s
violation of Rules 26(a)(1)(A)(i) and (e)(1)(A). Counsel should not presume the court will be so
willing to accept this result in the future.
While I am loath to ignore Defendant’s dilatory actions, in the end that failure is trumped
by Plaintiff’s disclosure omissions and his own unjustified delay. I find that Mr. Poitra did not
disclose Ms. Ortega as required under Rule 26(a)(1)(A)(i) and did not properly comply with his
supplementation obligation under Rule 26(e)(1)(A). Plaintiff’s counsel’s approach to initial
disclosures is mirrored by her rather cavalier approach to designating trial witnesses. On April
30, 2015, Plaintiff’s counsel disclosed 41 witnesses, including the seven individuals deemed
objectionable by DPS. Over the next several months, counsel agreed to drop three of the
contested witnesses. Now on the eve of trial, Mr. Poitra has reduced his list of witnesses by
more than half and dropped six of the contested individuals. A final witness list, like initial
disclosures, should not become an uncertain or moving target. Both the final pretrial order and
initial disclosures are designed to encourage “self-editing and . . reasonably fair disclosure to the
court and opposing parties of [counsel’s] real trial intentions.” Cf. Monfore v. Phillips, 778 F.3d
849, 851 (10th Cir. 2015) (counsel’s reluctance to make hard decisions should not come at the
expense of or increase the burdens of the opposing party); Steele v. Colorado Springs Early
Colleges, No. 14-cv-03926-KLM, 2015 WL 8479809, at *1 (D. Colo. Dec. 10, 2015) (“The
Final Pretrial Order serves the purpose of ensuring ‘the economical and efficient trial of every
case on its merits without chance or surprise.’ ”) (quoting Hull v. Chevron U.S.A, Inc., 812 F.2d
584, 588 (10th Cir. 1987)). There comes a time when an opposing party is entitled to make
informed decisions and to rely on the statements (or silence) of the other side. If the risk or
consequences of indecision should fall on one side or the other, it should be the party with the
affirmative disclosure obligation. Any other resolution bodes ill for the “just, speedy, and
inexpensive” determination of every action.
After carefully considering the facts in this case, the applicable Rules, the Woodworker’s
factors and the pertinent case law, I hereby grant Defendant’s motion for sanctions and strike
Ms. Ortega as a substantive or merits witness in this action.13 I will not award Defendant DPS
the reasonable attorneys fees and costs it incurred in filing the instant motion, for such an award
might be construed as tacit approval for what can only be considered a very dilatory request for
Dated this 21st day of December, 2015.
BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge
As a caveat to this decision, I note that Rule 26(a)(1)(A)(I) does not require a party to
disclose an individual who will be used at trial “solely for impeachment.” Because my powers
of clairvoyance not so refined and I cannot profess to know the nuances of the parties’ trial
strategies, nothing in this ruling precludes Ms. Ortega from serving in the limited role as an
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