United States District Court, D. Colorado
NINA Y. WANG, UNITED STATES MAGISTRATE JUDGE
This civil action comes before the court on Defendant's Motion to Strike Plaintiffs Non-Retained Experts ("Motion to Strike") [#76, filed April 26, 2015], which was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), the Order of Reference dated January 3, 2014 [#6], the Reassignment dated February 9, 2015 [#65], and the Memorandum dated November 4, 2015 [#99]. This court has reviewed the Parties' briefing, the entire court file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of this instant Motion to Strike. Upon consideration, this court GRANTS IN PART and DENIES IN PART the Motion to Strike
This case arises from a dispute over insurance coverage associated with damage to Plaintiff Green Earth Wellness Center, LLC ("Plaintiff or "Green Earth") caused by the Waldo Canyon fire in June 2012. Green Earth owned two commercial properties, located at 519 N. 30th St., Colorado Springs, CO 80904 and 505 N. 30th St., Colorado Springs, CO 80904 (the "Properties") that were insured by Defendant Atain Specialty Insurance Company ("Defendant" or "Atain") at the time of the Waldo Canyon fire. [#1 at ¶¶ 5-7]. As a result of the fire, the Properties and Plaintiffs business stock sustained significant smoke and soot damage. [Id. at ¶ 8]. Atain denied coverage for this damage. In March 2013, and then again in June 2013, the Properties were burglarized. [Id. at ¶ } 10]. Atain also denied coverage for the damage purportedly caused by the burglaries.
Plaintiff asserts the following claims against Defendant: (1) breach of contract; (2) breach of the implied warranty of good faith and fair dealing; and (3) statutory bad faith breach of contract. [Id.]. The court entered a Scheduling Order on March 31, 2014, setting out deadlines for expert disclosures. [#20]. The Parties were required to designate all experts and provide opposing counsel with all information specified in Fed.R.Civ.P. 26(a)(2) on or before July 29, 2014. [Id. at 8]. Rebuttal expert designations and reports were due on or before August 29, 2014. [Id.]. While the disclosure requirements for the respective type of expert testimony are different, Rule 26(a)(2) pertains to both specially-retained experts as well as non-retained experts. Fed.R.Civ.P. 26(a)(2).
On July 29, 2014, Plaintiff served its Expert Disclosures pursuant to Fed. R. Civ. 26(a)(2). [#76-1]. Plaintiff supplemented these disclosures in September, and again in October, 2014. [#82-1]. In its disclosures, Plaintiff identifies a number of non-retained expert witnesses, both by names and using "Current and Former Employees, Agents and/or Representative of [Entity]" as an identifier. See e.g. [id. at 4]. Defendant now seeks to strike the designations of the non-retained experts, based on inadequate disclosure pursuant to Fed.R.Civ.P. 26(a)(2)(C). [#76]. Plaintiff opposes, contending that its disclosures comply with the requirements of Rule 26(a)(2)(C), and that Defendant has had the opportunity to fully depose all of the designated non-retained expert witnesses. [#82]. Defendant filed a Reply on June 2, 2015 [#85], and the instant Motion to Strike is now ripe for disposition.
I. Standard of Re view
Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that a party must disclose to all other parties the identity of any person who may be used at trial to present evidence under Rule 702, 703, or 705 of the Federal Rules of Evidence. Fed.R.Civ.P. 26(a)(2)(A). Pursuant to Rule 26(a)(2)(C), expert witnesses not required to provide a written report by Rule 26(a)(2)(a) must, absent contrary stipulation or court order, provide a disclosure stating the "subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705" and "a summary of the facts and opinions to which the witness is expected to testify." Fed.R.Civ.P. 26(a)(2)(C)(i-ii). This court has traditionally employed a burden-shifting analysis for determining whether the requirements of Rule 26(a)(2) have been satisfied. Morris v. Wells Fargo Bank, N.A., No. 09-cv-02160-CMA-KMT, 2010 WL 250108, at *1 (D.Colo.2010). The party moving to strike the witness bears the initial burden of showing that the disclosing party failed to comply with Rule 26(a)(2) properly. Id. Then the burden shifts to the disclosing party to demonstrate sufficiency. Id.
A violation of Rule 26(a)(2) is addressed by the court pursuant to Rule 37(c) of the Federal Rules of Civil Procedure. Rule 37(c)(1) provides:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in ...