United States District Court, D. Colorado
WILLIAM B. ELLER, Plaintiff,
TODD TONCHE, TAMI RUCH, JEANNIE PARK, KENNETH LEFEVER, SARAH DARULA, CHARLENE LARSON, and MEGHAN JACKSON, Defendants.
ORDER ON PLAINTIFF'S MOTION TO STRIKE
Michael E. Hegarty United States Magistrate Judge.
trial in this case is set to commence in less than one month.
Despite the quickly approaching trial date, Defendants
recently disclosed one document and ten fact witnesses
pursuant to Federal Rule of Civil Procedure 26(a)(1). I find
the untimely disclosure is not substantially justified, and
the prejudice to Plaintiff cannot be cured. Accordingly, I
grant Plaintiff's motion to strike.
the allegations giving rise to this case, Plaintiff was
incarcerated at the Sterling Correctional Facility, which is
part of the Colorado Department of Corrections. Am. Compl.
¶ 2, ECF No. 107. According to Plaintiff, Defendants
Todd Tonche, Tami Ruch, and Jeannie Park punched him in the
face, slammed him into a concrete floor, and “stomped
down violently on [his] left leg.” Id.
¶¶ 41-44, 53. As a result, Plaintiff allegedly
suffered “a serious displaced fracture of [his] left
fibula.” Id. ¶ 54. In an Amended
Complaint filed on November 21, 2016, Plaintiff asserts
claims for excessive force and deliberate indifference to
medical needs. Id. ¶¶ 144-73.
March 14, 2018, I issued a recommendation on Defendants'
Motion for Summary Judgment. R&R on Mot. for Summ. J.,
ECF No. 174. I first found that exhaustion did not bar
Plaintiff's claims. Id. at 12-18. I then found
summary judgment improper as to Officer Park, Officer Ruch,
Ms. Jackson, and Ms. Larson. Id. at 18-31. However,
I found that Plaintiff failed to present sufficient evidence
that Ms. Albright and Mr. Kudlauskas committed a clearly
established constitutional violation. Id. Defendants
Tonche, LeFever, and Darula did not seek summary judgment on
qualified immunity grounds. Id. at 10. The Honorable
Robert E. Blackburn adopted my recommendation in full. Order
Adopting R&R, ECF No. 179.
May 8, 2018 order, Judge Blackburn set a five-day jury trial
to begin on September 24, 2018. Trial Preparation Conference
Order 4, ECF No. 181. Prior defense counsel moved to withdraw
on July 30, 2018, and present counsel entered their
appearances. See ECF Nos. 183-84, 186.
August 17 and 21, 2018, Defendants disclosed ten additional
witnesses pursuant to Rule 26(a)(1)(A). Defendants' Sixth
Supplemental Disclosures, ECF No. 200-1. Defendants'
Seventh Supplemental Disclosures, ECF No. 200-2. Each of
these individuals interacted with Plaintiff shortly after the
alleged excessive force incident. Defendants also disclosed a
document titled, “Sterling Correctional Facility
Punitive/Removal from Population Segregation Allowable
List.” Shortly thereafter, Plaintiff filed the present
Motion to Strike, ECF No. 200. Plaintiff contends failing to
strike the document and permitting these witnesses to testify
would significantly prejudice him. Id. In response,
Defendants argue Plaintiff learned of these witnesses during
discovery. Resp. to Mot. to Strike 4-13, ECF No. 205.
Additionally, Defendants assert any prejudice could be cured
by taking the witnesses' depositions. Id. at 13.
Plaintiff filed a reply brief on August 28, 2018. Reply in
Supp. of Mot. to Strike, ECF No. 206.
Rule of Civil Procedure 26(a)(1)(A) requires parties to
disclose the identity “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.” If a party fails to timely
disclose a witness or piece of evidence, “the party is
not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.”
Fed.R.Civ.P. 37(c)(1). “The determination of whether 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) (quoting
Mid-Am. Tablewares, Inc. v. Mogi Trading Co., 100
F.3d 1353, 1363 (7th Cir. 1996)).
exercise my discretion to strike Defendants' untimely
disclosures. Pursuant to Federal Rule of Civil Procedure
26(a)(1)(C), initial disclosures were due on or before
January 24, 2017. See Proposed Scheduling Order 13,
ECF No. 125 (stating that the parties held the Rule 26(f)
conference on January 10, 2017). Because Defendants served
their supplemental disclosures on August 17 and 21, 2018,
they were untimely.
I find the untimely disclosures were not substantially
justified. Defendants explain their untimely disclosures by
stating that their present counsel, who was retained on July
30, 2018, recently realized that Defendants' former
attorney did not disclose a number of witnesses. Resp. to
Mot. to Strike 2, ECF No. 205. However, “[r]etention of
new counsel generally is not substantial justification for
late disclosure.” Valdez-Castillo v. Busch
Entm't Corp., No. 06-20772-CIV-DIMITROULEAS, 2009 WL
10668210, at *2 (S.D. Fla. Jan. 8, 2009). Although I am
certainly sympathetic to the difficulties in being retained
shortly before trial, Defendants' decision to hire new
counsel does not justify disclosing witnesses for the first
time one month before trial. See Chamberlain Grp., Inc.
v. Interlogix, Inc., No. 01 C 6157, 2002 WL 653893, at
*5 (N.D. Ill. Apr. 19, 2002) (“Although [the
plaintiff's] new counsel may prefer [a different] expert,
that rationale is insufficient to justify an untimely
disclosure.”); Edizone, L.C. v. Cloud Nine,
No. 1:04-CV-117 TS, 2008 WL 584991, at *4 n.23 (D. Utah Feb.
29, 2018) (“The only possible reason to justify this
late disclosure is that Defendants' new counsel disagrees
with the actions taken by Defendants' prior counsel. This
is not, however, a valid reason to allow this information to
the untimely disclosure is not harmless. In considering
whether a failure to comply with Rule 26(a) is harmless,
courts analyze: (1) the prejudice or surprise to the party
against whom the testimony is offered, (2) the ability of the
party to cure the prejudice, (3) the extent to which
introducing such testimony would disrupt the trial, and (4)
the moving party's bad faith or willfulness.
Woodworker's Supply, Inc. v. Principal Mut. Life Ins.
Co., 170 F.3d 985, 993 (10th Cir. 1999).
the first factor, Plaintiff will suffer significant surprise
and prejudice. Defendants argue Plaintiff should not be
surprised by the addition of these witnesses, because
Plaintiff had contact with each of them shortly after the
incident and all of their names appeared in discovery
documents or deposition testimony. Resp. to Mot. to Strike
4-13, ECF No. 205. However, “knowledge of the existence
of a person is distinctly different from knowledge that the
person will be relied on as a fact witness.”