United States District Court, D. Colorado
MICHAEL G. POITRA, Plaintiff,
SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO, ANITA MARCHANT, Individually and as an employee of DENVER PUBLIC SCHOOLS, Defendants
Michael G. Poitra, Plaintiff: Elizabeth Lamb Kearney, LEAD
ATTORNEY, Elizabeth Lamb Kearney, P.C., Berthoud, CO.
Denver County School District No. 1, also known as Denver
Public Schools, Defendant: Holly Eileen Ortiz, Mary Barham
Gray, Michael Brent Case, Semple, Farrington & Everall, P.C.,
Anita Marchant, employee of Denver Public Schools, Anita (I)
Marchant, Individually, Defendants: Matt Ratterman, LEAD
ATTORNEY, Holly Eileen Ortiz, Mary Barham Gray, Michael Brent
Case, Semple, Farrington & Everall, P.C., Denver, CO.
REGARDING DEFENDANT'S MOTION FOR SANCTIONS
B. Shaffer, United States Magistrate Judge.
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
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) (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."
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."
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.
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 supplemental disclosures.
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.
factual recitation is sufficient to place the instant motion
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 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. at ¶ 41.
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
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). 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,
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 losses suffered by Plaintiff."  Defendants
listed 4 " will call witnesses"  and 7 "
may call" witnesses.
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
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.
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 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 provide.
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
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 alsoFitz, 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