Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-00077-WYD-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00077-WYD-PAC JENNIFER GIFFORD, Plaintiff, v. FARMERS INSURANCE EXCHANGE, TRUCK INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, MID-CENTURY INSURANCE COMPANY, and FARMERS NEW WORLD LIFE INSURANCE COMPANY, d/b/a FARMERS INSURANCE GROUP OF COMPANIES, Defendants. ______________________________________________________________________________ MOTION TO STRIKE LATE-DISCLOSED WITNESSES ______________________________________________________________________________ Pursuant to Federal Rules of Civil Procedure 26(a)(1), 26(e), and 37(c)(1), Defendants Farmers Insurance Exchange, Truck Insurance, Exchange, Fire Insurance Exchange, MidCentury Insurance Company, and Farmers New World Life Insurance Company d/b/a/ Farmers Insurance Group of Companies (collectively, "Defendants") move this Court to strike Plaintiff's designation of Jim Gifford and Greg Truitt as witnesses in this case. As ground for this motion, Defendants state as follows: INTRODUCTION Almost a year and a half after Plaintiff filed this lawsuit, and over five months after the discovery cut-off, Plaintiff identified two new witnesses on whom she intends to rely at the trial. Specifically, in the proposed Final Pretrial Order, Plaintiff listed Jim Gifford and Greg Truitt

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even though she never identified those individuals in her initial or supplemental disclosures. Under these circumstances, the Federal Rules of Civil Procedure mandate the exclusion of any testimony from these witnesses at the trial of this case, and Plaintiff's designation of the witnesses should be stricken. FACTUAL BACKGROUND Plaintiff filed this lawsuit on January 14, 2004 alleging claims for, among other things, violations of Title VII. As a part of their defense, Defendants assert Plaintiff was an independent contractor, who has no standing to sue under federal discrimination statutes. The Scheduling Order in this case set the deadline for the parties to submit their initial disclosures for April 5, 2004. The Court also set November 1, 2004 as the initial discovery cutoff date. At Plaintiff's request, the Court subsequently extended the deadline for written discovery to and including November 15, 2005 and the deadline to complete depositions to and including January 31, 2005. Plaintiff served her initial disclosures on April 5, 2004, and she supplemented those disclosures on December 14, 2004. However, Plaintiff did not designate Jim Gifford or Greg Truitt as witnesses with discoverable information in either her initial or supplemental disclosures. See Plaintiff's Disclosures attached as Exhibit A. Indeed, at no time in the case did Plaintiff suggest her father, Jim Gifford, has any information concerning Plaintiff's claims. During discovery, Plaintiff produced (along with 20 boxes of other documents) letters detailing a very strained relationship with her father. The letters state, among other things, that Plaintiff and her father needed to "keep their distance" (Plaintiff indicated she planned not to speak to her father for over a year) as a result of "volatile"

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interactions between the two. One of the letters references problems going back "four or five years." Because the letters did not appear to be relevant to the case at the time they were produced, and because Plaintiff did not designate her father as a witness in her disclosures, counsel for Defendants did not question Plaintiff about the letters during her deposition in July 2004 and January 2005. Had Defendants known Mr. Gifford would be a witness as to his observations of the effect on Plaintiff of alleged discrimination, counsel for Defendants would have questioned Plaintiff about the letters, the nature of her relationship with her father, and how he would have been in a position to make the observations. Moreover, the letters reference other "abusive," "nasty," and "angry" communications between Plaintiff and Mr. Gifford, and Defendants would have followed up with written discovery requests to obtain any documents related to those and any other communications. Plaintiff also withheld information concerning Mr. Truitt. For the first time in a hearing on Plaintiff's Motion to Extend Expert Deadlines, Plaintiff identified Mr. Truitt as a potential damages expert in this case. In extending the deadline for Plaintiff to designate experts, the Court indicated Defendants would have the opportunity to depose Mr. Truitt even if Plaintiff chose not to designate him. Accordingly, counsel for Defendants deposed Mr. Truitt on January 31, 2005, but questions were limited to the proposed areas of expert testimony on damages. See Deposition of Greg Truitt attached as Exhibit B, 12:6-15; 20:7-12; 48:3-14. At no time in the deposition did Mr. Truitt indicate that he had ever served as an accountant for Plaintiff. Id. Moreover, Mr. Truitt's testimony in his deposition on the independent contractor issue arose out of his capacity in being retained to serve as an expert witness on damages. Id.. at 20:7-29:25; 39:19-41:23. Plaintiff never, at any time, indicated Mr. Truitt had served as her accountant or

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that she intended to rely on him as a fact witness on Plaintiff's alleged employment status. Had Plaintiff designated Mr. Truitt as a witness in these areas, Defendants would have questioned him extensively on those topics. On July 18, 2005 ­ over a year after her initial disclosures and several months after the discovery cut-off expired ­ Plaintiff attempted to include Messrs. Gifford and Truitt in the proposed Final Pretrial Order. Plaintiff indicated that "Mr. Gifford is Plaintiff's father and will testify to the effect of Defendants' discrimination on Plaintiff." See Final Pretrial Order at 6. She further indicated that "Mr. Truitt is Plaintiff's former accountant and may testify regarding Plaintiff's status as an employee." Id. at 7. At the Final Pretrial Conference, counsel for Defendants objected to the late-disclosed witnesses. In response to the objection, the Court suggested counsel for the parties attempt to resolve the issue before seeking Court intervention. Pursuant to D.C.COLO.LCivR 7.1A, the undersigned certifies that he has conferred with Plaintiff's counsel by telephone and mail regarding this issue, but they have not been able to obtain a resolution. See Letters and E-mails attached as Exhibit C. Specifically, Plaintiff will not agree to allow Defendants another opportunity to depose Mr. Truitt in his capacity as a fact witness. Although Plaintiff agreed to the deposition of Mr. Gifford, Plaintiff will not agree to reopen discovery for the limited purpose of exploring her estranged relationship with her father. ARGUMENT I. RULE 37(c)(1) MANDATES THE EXCLUSION OF TESTIMONY FROM DEFENDANTS' LATE-DISCLOSED WITNESSES. Plaintiff cannot dispute that she failed to comply with the disclosure requirements of Rule 26(a) or 26(e) with respect to Messrs. Gifford and Truitt. Federal Rule of Civil Procedure -4-

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37(c)(1) provides: A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. F.R.C.P. 37(c)(1) (emphasis added). Rule 37(c)(1) mandates that a trial court sanction a party for discovery violations in connection with Rule 26. See Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998) ("[T]he sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless."); Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (Rule 37(c)(1) "contemplates stricter adherence to discovery requirements, and harsher sanctions for breaches . . . and the required sanction in the ordinary case is mandatory preclusion."), cert. denied, 119 S. Ct. 1334 (1999). In the Tenth Circuit, courts consider several factors to determine whether a plaintiff's failure to comply with Rule 26(a) is harmless. The factors include: (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 Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). When applied to the facts in this case, these factors demonstrate Plaintiff's designation of the witnesses at issue should be stricken. As demonstrated above, Plaintiff did not disclose her intent to call these witnesses at trial until after the discovery cut-off date had passed. As a result of this late surprise disclosure, Defendants have not had the opportunity to conduct any discovery concerning what, if any,

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relevant information these witnesses may possess. More specifically, Plaintiffs have not had the opportunity, through depositions or otherwise, to explore and rebut any information these witnesses might provide in support of Plaintiff's case. Nor can Defendants prepare a proper cross-examination for these witnesses. Defendants would be severely prejudiced if the Court allowed these witnesses to provide surprise testimony on matters which Defendants have not been able to investigate. This is precisely the "trial by ambush" tactic that Rule 26(a) was intended to prevent. See Congressional Air, Ltd. v. Beech Aircraft Corp., 176 F.R.D. 513, 516 (D. Md. 1997) (late disclosures which "[minimize] the opportunity for the exploration of countervailing opinions" are a type of "trial by ambush" that the 1993 revision to the Federal Rules is attempting to eliminate); Reed v. Binder, 165 F.R.D. 424, 431 (D. N.J. 1996) ("The failure to comply with the disclosure requirements of the Rule frustrates the purpose of the Rules ­ the elimination of unfair surprise and the conservation of resources."). Moreover, there is no opportunity for the prejudice to be cured because discovery is closed. Defendants have no means to address any testimony that these witnesses might provide, to demonstrate their lack of personal knowledge, or to impeach their credibility. Plaintiff will not allow Defendants the opportunity depose Mr. Truitt as to what he may know as a fact witness. While Plaintiff has offered to make Mr. Gifford available for a deposition, the offer does not permit Defendants the full opportunity to explore Plaintiff's relationship with her father. Based on the documents Plaintiff produced to date, it appears Mr. Gifford would not be in a position to testify concerning the alleged effects of discrimination on Plaintiff. Defendants need to depose Plaintiff on this topic and to obtain any other documents in Plaintiff's possession

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(which are referenced in the letters produced to date) concerning her communications and interactions with her father. Plaintiff is unwilling, however, to satisfy these needs. Accordingly, the factors set forth in Woodworker's Supply demonstrate that Plaintiff's late disclosure in this case is not harmless. See Woodworker's Supply, 170 F.3d at 993.1 Under circumstances such as these, courts have not hesitated to strike witnesses or exclude testimony when a party does not adhere to the disclosure requirements set forth in the federal rules. See Orjias v. Stevenson, 31 F.3d 995, 1002 (10th Cir. 1994) (witness' testimony properly excluded where party failed to give opponent sufficient notice of nature of testimony); Chavez v. City of Lynwood, 1994 WL 659012, *2 (9th Cir. 1994) (lower court properly excluded testimony of witness who was not timely disclosed); Smith v. Union Pacific R.R. Co., 168 F.R.D. 626, 629 (N.D. Ill. 1996) (expert witness not permitted to testify where, because of late disclosure, party could not conduct follow-up discovery without violating the federal rules and court's order regarding discovery); Carter v. Moog Automotive, Inc., 126 F.R.D. 557, 559 (E.D. Mo.) (party prohibited from calling fact witnesses identified in late disclosure), aff'd 894 F.2d 1342 (8th Cir. 1989); see also Wright v. Continental Airlines Corp., 1996 WL 662448, *1 (10th Cir. 1996) (lower court properly granted motion to strike expert witness where plaintiff did not comply with the rules on disclosure). The fact that Defendants might previously have known the identity of Mr. Truitt is irrelevant. The mere fact that an individual is remotely connected to a case does not amount to knowledge that the individual has discoverable information. Plaintiff cannot claim a lack of prejudice to Defendants because Mr. Truitt's name previously surfaced in this action. It
1 Additionally, Plaintiff's actions in failing to timely disclose these witnesses, taken in conjunction with her apparent plan to rely on those witnesses to provide testimony at trial, demonstrates Plaintiff's bad faith.

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apparently is the nature of Mr. Truitt's proposed testimony as a fact witness that is crucial, and Defendants had no reason to believe he would serve as a fact witness for Plaintiff in this case. CONCLUSION For the reasons set forth above, Defendants request that the Court strike the designations of Jim Gifford and Greg Truitt. Dated: October 12, 2005. /s/ Brett C. Painter Brett C. Painter
DAVIS GRAHAM & STUBBS LLP

1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 [email protected] D.C. Box No. 3 Attorneys for Defendants

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CERTIFICATE OF SERVICE I, hereby certify that on the 12th day of October, 2005, I electronically filed the MOTION TO STRIKE LATE-DISCLOSED WITNESSES with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Ronald E. Gregson [email protected] Mark S. Bove [email protected]

/s/ Linda Frenette Linda Frenette

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