Reich et al v. American Family Mutual Insurance Company

Filing 41

ORDER; 32 Defendant's Motion to Strike Bob and Lisa Rennick as Trial Witnesses is GRANTED, by Magistrate Judge Kristen L. Mix on 6/9/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01482-KLM
ROGER T. REICH, and
STEPHANIE BARRON,
Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike Bob and Lisa
Rennick as Trial Witnesses [#32]1 (the “Motion”). Plaintiffs filed a Response [#39].2 For
the reasons set forth below,
IT IS HEREBY ORDERED that the Motion [#32] is GRANTED.
Defendant asks the Court to strike Bob Rennick and Lisa Rennick (collectively, the

1

“[#32]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

At the outset, the Court notes that Plaintiffs’ response that Defendant failed to confer is
disingenuous. Plaintiffs suggest that if Defendant had simply conferred, “the parties would have
reached agreement on this issue, and this motion practice would have been unnecessary.”
Response [#37] at 2. Plaintiffs seem to be saying that if Defendant had conferred, Plaintiffs would
have withdrawn the witnesses. However, while Defendant’s conferral may not have been perfect,
Plaintiffs have failed to explain why they could not have discussed the issue with Defendant and
reached agreement in response to the Motion [#32]. Moreover, Plaintiffs’ decision to file a
Response instead of to further confer exacerbated the “motion practice” they purport to wish to
avoid. Accordingly, the Court will not deny the Motion on the basis of insufficient conferral.

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“Rennicks”) as trial witnesses because Plaintiffs disclosed them after the close of discovery.
Motion [#32] at 5. Plaintiffs’ only justification for failing to list the Rennicks as witnesses is
that they were identified as people with knowledge in discovery responses. Response
[#39] at 2. This argument, however, is not compelling. Giving credence to 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-01295-LTB-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); Jama v. City & Cnty. of Denver, 280 F.R.D. 581,
584 (D. Colo. 2012). If a party could call everyone at trial who it previously listed in
response to discovery requests, the purpose of Rule 26's requirement for disclosures would
be diluted. Plaintiffs identified these persons no later than February 11, 2015, as persons
with knowledge, and yet Plaintiffs did not disclose that they might be used as fact witnesses
until submission of the Fourth Supplemental Disclosure on April 15, 2015. Motion [#32] at
1; Response [#39] at 2. The discovery deadline passed on February 16, 2015. Scheduling
Order [#16]. The Court finds that the delay in disclosure of these two witnesses violates
Rule 26(e).
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
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a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
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. Id. The Court addresses each
in turn.
Plaintiffs waited to designate the Rennicks until April 15, 2015, approximately two
months after the discovery deadline.

Due to the timing of the disclosure of these

witnesses, Defendant did not have the opportunity to investigate the evidence related to
these them. “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 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
[Defendants] to make intelligent decisions regarding how [they] 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 Sch.
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 at issue,
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due to the delay in Plaintiffs’ disclosure.
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 Plaintiff to call the Rennicks would necessitate the re-opening of discovery, in
order to permit Defendant to prepare a defense regarding these witnesses’ testimony. As
such, the Court finds that the first factor weighs in favor of striking the witnesses, because
Defendant is indeed prejudiced, in terms of time, money, and effort, by the delayed
issuance of Plaintiffs’ disclosures.
Regarding the second and third factors, a trial in this matter is set to begin on June
22, 2015, and the Final Pretrial Order [#29] has been entered. However, as 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. The Court cannot ignore the
obvious disruption to the imminent trial. Rewarding Plaintiffs’ delayed disclosures with the
re-opening of discovery and prolonging the trial would be an insult to the spirit of Fed. R.
Civ. P. 1, which requires construction of the Federal Rules “to secure the just, speedy, and
inexpensive determination of every action and proceeding.” The Court finds that although
the prejudice suffered by Defendant might be curable, doing so under these circumstances
is unreasonable and unwarranted. The Court additionally concludes that the disruption to
the upcoming trial is sufficiently meaningful that these two factors weigh in favor of striking
these witnesses.
Regarding the fourth factor, Plaintiffs have the burden to justify the late disclosures.
See Gallegos, 2007 WL 214416, at *3 (stating that the plaintiff, as non-movant, bore
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burden to justify untimely and otherwise deficient disclosures). Plaintiffs state that they
failed to disclose these witnesses because they incorrectly thought that disclosure via
written discovery was sufficient. Response [#39] at 2. Assuming the veracity of Plaintiffs’
counsel’s statements, provided here as an officer of the Court, and in the absence of
evidence to the contrary, the Court finds that Plaintiffs did not act in bad faith. Thus, the
final factor weighs against striking these witnesses.
Weighing the Woodworker’s Supply, Inc. factors, the Court concludes that Plaintiffs’
delayed disclosure in this case is not substantially justified or harmless. Thus, according
to the provisions of Fed. R. Civ. P. 37(c)(1), the Court GRANTS Defendant’s Motion [#32],
and therefore strikes the following witnesses from testifying at trial: (1) Bob Rennick, and
(2) Lisa Rennick.

Dated: June 9, 2015

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