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Poitra v. School District No. 1

United States District Court, D. Colorado

December 21, 2015


          For Michael G. Poitra, Plaintiff: Elizabeth Lamb Kearney, LEAD ATTORNEY, Elizabeth Lamb Kearney, P.C., Berthoud, CO.

         For 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., Denver, CO.

         For 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.

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         Craig B. Shaffer, United States Magistrate Judge.

         Rarely, if ever, do " two wrongs make a right." The court's challenge, in the discovery

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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."

         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 supplemental disclosures.

         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.

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          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 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.

         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] 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"

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witnesses, and one " will call" expert witness who will " offer testimony and expert opinions regarding the economic losses suffered by Plaintiff." [5] Defendants listed 4 " will call witnesses" [6] and 7 " may call" witnesses.

         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 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.

         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.,

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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 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 ...

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