United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Strike Plaintiff's
Exhibit List and Amended Exhibit List [Doc. No. 118]. It is
at issue. See Resp., Doc. No. 138. Defendants
complain that Plaintiff's Final Exhibit List [Doc. No.
66] and Plaintiff's list of exhibits within the
parties' proposed final pretrial report [Doc. No. 104]
(i) “fail to identify which exhibits [Plaintiff]
intends to use at trial as opposed to those which she will
only offer if the need arises” as required both by
Federal Rule of Civil Procedure 26(a)(3)(A)(iii) and by the
Court's Scheduling Order in this case [Doc. No. 46] and
(ii) “contain many improper and inadmissible
‘exhibits' that are overly broad compilation of
vague, confusing, and unspecified documents.” Mot. 2,
Doc. No. 118.
Plaintiff filed its “Final” Exhibit List [Doc.
No. 66] pursuant to the Court's Scheduling Order [Doc.
No. 46] on March 21, 2019, Plaintiff apparently submitted a
revised version of a “Final Exhibit List” [Doc.
No. 138-2] (the “Unfiled Exhibit List”) to
Defendants via email on May 7, 2019. See Email from
Currie Knowles to Dianna C. Wyrick (May 7, 2019, 3:37 PM),
Doc. No. 138-2. This Unfiled Exhibit List [Doc. No. 138-2]
includes an exhibit list identical to that included by
Plaintiff in the parties' proposed final pretrial report
[Doc. No. 104].
Court agrees with Defendants that Plaintiff's
timely-filed Final Exhibit List [Doc. No. 66] does not comply
with Rule 26(a)(3)(A)(iii) or the Court's Scheduling
Order [Doc. No. 46]. The exhibit descriptions are
impermissibly broad, and Plaintiff does not differentiate
between which exhibits she expects to use at trial and which
exhibits she expects to use at trial only if a need arises
for them. The Court will therefore STRIKE Plaintiff's
Final Exhibit List [Doc. No. 66].
Court must now determine whether to allow Plaintiff to submit
an amended final exhibit list remedying the issues identified
herein. The Court notes that Plaintiff has largely remedied
the issue of too-broad descriptions already, albeit in the
Unfiled Exhibit List [Doc. No. 138-2] that was only exchanged
between the parties, not filed with the Court (and without
the Court's leave for amendment). It would be inequitable
for the Court to punish Plaintiff for broad exhibit
descriptions when Defendants have engaged in similar conduct.
The Court notes that Defendants' Final Exhibit List [Doc.
No. 67] includes likewise broad entries-e.g., “[a]ll
documents used by Defendants as exhibits to depositions,
” “[a]ll documents produced by Plaintiff to which
Defendants do not object (MELTZNER 0001-263, 000264-442,
443-605), ” “[r]ecords and documents produced by
Prest & Associates (PREST 1-61), ” and
“[d]ocuments relied on by Dr. Strober in the formation
of his expert opinions.” Defendants have not culled
down these entries to individual exhibits in the parties'
proposed final pretrial report. Compare Doc. No. 67,
with Doc. No. 104.
Court thus addresses only one complaint raised by
Defendants-the failure by Plaintiff to “separately
state those [exhibits] expected to be . . .used and those
which may be . . . used only if the need
arises.” Scheduling Order, Doc. No. 46; see
also Fed. R. Civ. P. 26(a)(3)(A)(iii). The Court will
allow Plaintiff to remedy this disclosure error if it was
substantially justified or is harmless.
In determining whether the failure to comply with Rule 26(a)
is justified or harmless, courts weigh four factors: (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.
ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d
1163, 1176 (10th Cir. 2011) (citing Jacobsen v. Deseret
Book Co., 287 F.3d 936, 953 (10th Cir.
here, the Court finds that Plaintiff should be allowed to
submit an amended final exhibit list with the missing
statements regarding anticipated uses at trial. There is
limited surprise or prejudice to Defendants, as Defendants
have apparently been aware of the disclosure issue since at
least April 8, 2019 (and likely since Plaintiff filed her
Final Exhibit List on March 21, 2019), but they chose not to
raise the issue in a motion filed with the Court until May
17th. See Email from Dianna Calaboyias Wyrick to
Mark Engel & Steve Mansell (Apr. 8, 2019, 9:46 AM), Doc.
No. 118-2. Any prejudice will be cured by Plaintiff filing an
amended final exhibit list as ordered herein. Neither party
indicates that any of the identified evidence will cause a
disruption to trial. The Court does not find any bad faith to
be present-certainly not enough to overcome the other three
Woodworker's Supply factors or enough to result
in the exclusion of exhibits from trial. The Court therefore
finds Plaintiff's disclosure error to be harmless in the
context of this case. In reaching its decision not to issue
an across-the-board exclusion of exhibits (as requested by
Defendants), the Court is mindful that the decision to
exclude evidence is “a drastic sanction.”
Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254
(10th Cir. 2011) (quoting Summers v. Mo. Pac. R.R.
Sys., 132 F.3d 599, 604 (10th Cir. 1997)).
THEREFORE ORDERED that Defendants' Motion to Strike
Plaintiff's Exhibit List and Amended Exhibit List [Doc.
No. 118] is GRANTED IN PART and DENIED IN PART as stated
herein. Plaintiff's Final Exhibit List [Doc. No. 66] is
FURTHER ORDERED that Plaintiff shall file an amended final
exhibit list no later than 12:00 p.m. on May 30, 2019.
Plaintiff's amended final exhibit list shall explicitly
state which exhibits Plaintiff expects to use at trial and
which exhibits Plaintiff expects to use only if the need
arises. Plaintiffs to-be-filed amended final exhibit list
shall not differ from the Unfiled Exhibit List [Doc. No.
138-2] emailed by Plaintiff to Defendants (but not filed with
the Court) in any way except for the additional
information required by the Court herein. If Plaintiff
intends to use all 105 exhibits included in the to-be-filed
amended final exhibit list at trial, Plaintiff should so