United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion to Strike Witnesses [#259] (the "Motion"). On September 6, 2013, Defendant filed a Response [#269]. On September 23, 2013, Plaintiff filed a Reply [#272]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to this Court for disposition [#260]. The Court has reviewed the Motion, the Response, the Reply, the exhibits, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Motion [#259] is GRANTED.
Defendant owns and operates a meat packing plant in Greeley, Colorado at which a large number of Somali, Muslim, and black persons work. The EEOC filed this suit alleging that Defendant discriminated against these workers based on their national origin, religion, and ethnicity. The EEOC brings several pattern or practice claims alleging discriminatory harassment, disparate treatment, denial of religious accommodation, retaliation, and discipline and discharge. The EEOC also brings individual claims on behalf of charging parties for failure to accommodate religion, retaliation for requesting accommodation, hostile work environment, and discriminatory discipline and discharge. The EEOC's claims are based on Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended (the "Act"). Section 706 of the Act permits the EEOC to sue an employer on behalf of persons aggrieved by the employer's alleged unlawful practice. Section 707 of the Act permits the EEOC to sue employers whom it has reasonable cause to believe are engaged in a pattern or practice of unlawful employment discrimination. 42 U.S.C. §§ 2000e-5(f)(1), 2000e-6; see also Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 324 (1980).
The Intervenors in this lawsuit, who number in excess of two hundred, are former or current workers at Defendant's Greeley plant. They assert multiple claims against Defendant, including claims based on a pattern or practice of discriminatory treatment because of race, national origin, religion, and/or retaliation, pursuant to 42 U.S.C. § 2000e-2(a). See First Am. Compl. in Intervention and Jury Demand [#286] at ¶¶ 61-71, 77-92 (the "Abdulle Intervenors' Compl."); Am. Compl. in Intervention and Jury Demand [#61] at ¶¶ 156-61 (the "Abade Intervenors' Compl."); Compl. in Intervention and Jury Demand [#132] at ¶¶ 34-39 (the "Abdi Intervenors' Compl."); Am. Compl. in Intervention and Jury Demand [#137] at ¶¶ 52-57 (the "Adan Intervenors' Compl."); Compl. In Intervention and Jury Demand [#236] at ¶¶ 51-56 (the "Abdille Intervenors' Compl.").
On August 8, 2011, the Court granted in part the EEOC's Motion to Bifurcate the trial, and ordered that the trial will be conducted in two phases. Order [#116] at 18. During Phase I of the trial, the EEOC will present its claim that Defendant engaged in a pattern or practice of denial of religious accommodation, retaliation, and discipline and discharge. Id. During Phase II, the EEOC may present its pattern or practice claim for hostile work environment, pursue individual damages for its pattern or practice claim presented in Phase I, and pursue individual claims for compensatory and punitive damages. Id. The individual Intervenors' claims not covered by the EEOC's claims will also be evaluated in Phase II. Id. The Court also granted the EEOC's request to bifurcate discovery. Id. at 17-18. The Court determined that Phase I discovery should proceed as follows:
During Phase I discovery, defendant may depose aggrieved employees that plaintiffs identify as those upon whom they will rely to prove their bifurcated pattern or practice claims. Defendant may also depose 10 aggrieved employees selected by defendant and defendant may depose any combination of up to 10 of the following additional non-expert witnesses: non-aggrieved Somali, Muslim, or black employees who worked at the Greeley plant during the relevant time period, non-employee witnesses, union, co-worker witnesses, management (corporate and Greeley) and/or Rule 30(b)(6) witnesses. Plaintiffs may depose the witnesses defendant identifies as its Phase I witnesses and any combination of up to 20 non-expert witnesses, including, non-aggrieved Somali, Muslim, or black employees who worked at the Greeley plant during the relevant time period, non-employee witnesses, union, co-worker witnesses, management (corporate and Greeley), and/or Rule 30(b)(6) witnesses. Additional depositions may be taken upon leave of Court upon a showing of good cause. Any party may seek leave of Court to depose the affiants of statements submitted in support of or opposition to a dispositive motion. The scope of deposition questioning may include questions related to plaintiffs' claims of harassment/hostile work environment or individual plaintiffs' alleged damages. The assigned magistrate judge may set an appropriate schedule for Phase I depositions and the schedule and parameters of Phase I expert discovery.
Id. at 17.
Subsequently, the Court entered a Scheduling Order governing Phase I. See generally Phase I Scheduling Order [#128]. The Court has not entered a scheduling order governing Phase II. In the Scheduling Order, the Court modified the language proposed by the parties regarding identification of fact witnesses relating to Phase I. Id. at § 8(d)(2). Specifically, the Court wrote:
[Plaintiff] will identify aggrieved employees for Phase I only by November 15, 2011. [Defendant] will identify Phase I witnesses by December 15, 2011. Either party may amend [its] list up to 60 days thereafter. Subsequent amendments may be made only on a showing of good cause, which shall not include lack of diligence.
Id. The Scheduling Order also provided that the parties' disclosure requirements under Fed.R.Civ.P. 26(a)(1) were not changed. Id. at § 6(d). The Scheduling Order stated that the parties' initial Rule 26(a)(1) "disclosures were exchanged on November 15, 2010 by email[, ]" and set October 20, 2011 as the deadline for supplemental initial Rule 26(a)(1) disclosures. Id. at § 6(c). The Scheduling Order also separately addressed expert witness disclosures. Id. at § 9(d).
In the Motion, Plaintiff moves to strike Defendant's designation of 103 witnesses. Motion [#259] at 1. Plaintiff argues that these witnesses, who were disclosed on February 22, 2013 [#259-1], March 6, 2013 [#259-2], and March 29, 2013 [#259-3], were improperly disclosed because they were disclosed after the deadline set in § 8(d)(2) of the Scheduling Order. Id. at 5-6. Plaintiff further argues that the 103 newly disclosed witnesses are not rebuttal nor impeachment witnesses. Id. at 6-9. Plaintiff maintains that the Scheduling Order does not allow for the designation of Phase I rebuttal or impeachment witnesses. Id. at 9-11. In addition, Plaintiff avers that Defendant has not established good cause for identifying these witnesses after the Scheduling Order deadline. Id. at 11-13. Finally, Plaintiff argues that Defendant's disclosures of the 103 witnesses were inadequate. Id. at 13-15.
In its Response, Defendant argues that the witness disclosure deadlines set in § 8(d)(2) of the Scheduling Order did not require the parties to "identify all trial witnesses." Response [#269] at 4 (emphasis in original). Defendant maintains that "[t]he intent of Section 8(d)(2) was merely to formalize the identification of Phase I witnesses in order to implement the Bifurcation Order's deposition parameters." Id. at 5. Defendant further argues that to require it to disclose all trial witnesses by the deadline set in § 8(d)(2) of the Scheduling Order would foreclose Defendant from identifying rebuttal and impeachment witnesses. Id. at 6. Defendant also offers argument based on the parties' various disclosures throughout discovery. Id. at 8-10. In addition, Defendant contends that its disclosure of the additional 103 witnesses complies with Rule 26 because the witnesses are offered for rebuttal and/or impeachment purposes. Id. at 10-13. Defendant further maintains that disclosure of the 103 additional witnesses was consistent with Rule 26(e)'s requirements that Rule 26(a) disclosures be supplemented in a "timely manner." Id. at 13-14. Finally, Defendant argues that the information included in its disclosure of the 103 additional witnesses is adequate and that there is no prejudice to Plaintiff. Id. at 14-15.
In its Reply, Plaintiff revisits its argument that the 103 witnesses are neither rebuttal nor impeachment witnesses. Reply [#272] at 2-6. Plaintiff further argues that it will be prejudiced by Defendant's late identification of the 103 witnesses. Id. at 1, 9-10. Further, Plaintiff maintains that Defendant cannot rely on Rule 26(e) to ...