Opinion
Civil Action No. 18-cv-03106-RM-KLM
08-18-2020
THOMAS HAYWORTH, Plaintiff, v. 1ST FINANCIAL BANK USA, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion in Limine to Exclude Evidence of Compliance Conditions Codes [#95] (the "Motion"). Plaintiff filed a Response [#99] in opposition to the Motion [#95], and Defendant filed a Reply [#101]. The Motion [#95] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72. See [#96]. In the Motion, Defendant asks for an order pursuant to Fed. R. Civ. P. 37(c) precluding Plaintiff from offering any evidence or other information concerning any "compliance condition code," also known as a "CCC." Motion [#95] at 1. Based on the following, the Court respectfully RECOMMENDS that the Motion [#95] be GRANTED.
"[#95]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
I. Background
These facts are simply provided as background to the current dispute. They are not intended as final "Findings of Fact" for purposes of summary judgment or for any other reason in this case.
In August 2009, Tomeka R. Hayworth ("Ms. Hayworth"), Plaintiff's twin sister, applied for and received a line of credit with Defendant, which account later became past due. See [#88] at 6-8. In March 2016, Defendant received a settlement payment from Ms. Hayworth and, in April 2016, discharged her remaining balance and closed the account. Id. at 8.
In November 2016, Ms. Hayworth sued Equifax Information Services ("EIS"), alleging her consumer credit file to be mixed with Plaintiff's. Id. at 9. During this same month, Plaintiff began alerting credit reporting agencies, including EIS, that he had been the victim of fraud, possibly perpetrated by Ms. Hayworth herself. Id. at 9-10. Prior to November 2016, Defendant's trade line did not appear on Plaintiff's consumer credit report with EIS. Id. at 9. On November 12, 2016, EIS concluded its reinvestigation of Plaintiff's fraud alert, removed Defendant's trade line from Ms. Hayworth's consumer credit report, and placed it on Plaintiff's report. Id. at 10; Depo. of Hendricks [#95-1] at 101-04. EIS's precise reasons for doing so apparently remain unclear. Motion [#95] at 3.
About two years later, on November 5, 2018, Plaintiff initiated an online dispute with EIS regarding Defendant's trade line that EIS had mistakenly placed on Plaintiff's report. See [#88] at 13. Due to the similarities between Plaintiff's and Ms. Hayworth's names, dates of birth, and social security numbers, Defendant returned an Automated Consumer Dispute Verification ("ACDV") to EIS incorrectly confirming the trade line to be Plaintiff's. Id. at 6, 13-14. EIS did not supply a compliance condition code on the ACDV, and Defendant did not respond with one. Id. at 2-6.
B. Procedural Background
On December 3, 2018, Plaintiff initiated this lawsuit against Defendant and former Defendant EIS. Compl. In short, the basis for Plaintiff's claims is that EIS mixed information from Ms. Hayworth's consumer credit file with his credit file, including Defendant's trade line. Plaintiff alleges that Defendant, in violation of the Fair Credit Reporting Act ("FCRA"), "failed to respond with truthful information, failed to acknowledge the disputes and/or repeatedly reported the false, derogatory information to the consumer reporting agencies . . . ." Id. ¶ 26. The Complaint does not mention compliance condition codes.
On March 19, 2019, Plaintiff provided his initial disclosures to Defendant. Response [#99] at 2. Plaintiff disclosed no witnesses or documents regarding compliance condition codes in these initial disclosures. Motion [#95] at 3.
On May 15, 2019 Plaintiff served his first set of interrogatories, requests for production, and requests for admission on Defendant. Response [#99] at 2. Interrogatory No. 5 requested that Defendant answer:
Have you ever reported to a consumer reporting agency that Plaintiff disputed the account? If yes, please identify each date you marked the loan as disputed, and the method you reported the dispute to any consumer reporting agency, i.e. Metro-2 or e-Oscar. If no, please state all reasons why not.See [#99-3] at 7. Plaintiff argues that this interrogatory "clearly asked for information related to whether Defendant informed" the consumer reporting agencies ("CRAs") that Plaintiff disputed the account. Response [#99] at 3. Plaintiff asserts that "[t]he vehicle through which to do so is the CCC." Id. On June 26, 2019, Defendant responded to Interrogatory No. 5 as follows:
1st Financial objects to Interrogatory No. 5 as disproportionate to the needs of the case since it seeks information not relevant to any claim or defense in this case. 1st Financial objects to this interrogatory as vague: "consumer reporting agency" is not defined and is capable of more than one meaning; "reported" is not defined and capable of more than one meaning; "disputed" is not defined and is capable of more than one meaning. 1st Financial objects because this request seeks confidential information of either 1st Financial or a third party, and therefore will be subject to the entry of a protective order. Without waiving the foregoing objections, 1st Financial states that it will produce responsive business records pursuant to Fed. R. Civ. P. 33(d).See [#99-3] at 7.
On July 5, 2019, Defendant served its first set of interrogatories and requests for production on Plaintiff. Response [#99] at 3. On August 8, 2019, Plaintiff responded, omitting any reference to compliance condition codes or to "dispute codes":
INTERROGATORY 1. Identify all actions or omissions by 1st Financial which violated the Fair Credit Reporting Act and which form the basis of your Count II against 1st Financial. As used in this interrogatory, "identify" means to state the date of the alleged action or omission, name the individual acting or making the omission, and describe how such act or omission violated the Act.See [#95-2] at 1-2. Defendant also served Plaintiff with Request for Production No. 11, which sought "all Consumer Reports for [Plaintiff] dated [between September 2009 and present]." Id. at 10. Plaintiff produced no consumer credit reports post-dating November 2018 and none showing an incorrect compliance condition code. Motion [#95] at 4. Plaintiff emphasizes that, without personal knowledge of the credit industry or of Defendant's policies and procedures for responding to and investigating FCRA disputes, Plaintiff had necessarily answered Defendant's written discovery requests, in part, based merely on the "information and investigation of counsel." Response [#99] at 3; see also [#95-2] at 1.
RESPONSE: [Objection omitted.] 1st Financial violated the Fair Credit Reporting Act by providing inaccurate information about Plaintiff to a consumer reporting agency; by reverifying inaccurate credit information about Plaintiff to a consumer reporting agency after dispute; by failing to have policies and procedures in place to prevent the reporting of inaccurate consumer information; or failing to follow policies and procedures to prevent the reporting of inaccurate consumer information. Plaintiff never applied for credit with 1st Financial, and the credit application on file had a different name, SSN, address, and gender than Plaintiff's information.
On September 10, 2019, Plaintiff disclosed Evan Hendricks ("Hendricks") as an expert witness pursuant to Fed. R. Civ. P. 26(a)(2), who opined regarding the "defects" in the November 2018 ACDV. Motion [#95] at 4. Mr. Hendricks' report does not mention compliance condition codes and does not opine that Defendant erred by not providing one. Depo. of Hendricks [#95-1] at 78-80. Mr. Hendricks testified that he had not identified any flaws in Defendant's procedures for responding to consumer disputes. Id. at 78-80, 95-98; see also [#88] at 2-3. According to Mr. Hendricks' testimony, his report contains all of the opinions he will offer at trial. Depo. of Hendricks [#95-1] at 35-37, 78-80.
On July 22, 2019, and October 2, 2019, Defendant respectively served its expert and rebuttal expert disclosures. Motion [#95] at 5. Defendant's expert did not offer any opinions regarding the general use of compliance condition codes or about Defendant's policies regarding such codes because Plaintiff had previously presented no facts showing them to be at issue. Id.
Defendant asserts that the only evidence in the record concerning these codes is from the deposition of Heidi Stewart ("Stewart"), a representative of Defendant who had actually conducted the investigation into Plaintiff's dispute and who completed the ACDV on behalf of Defendant. Motion [#95] at 5. Ms. Stewart testified as follows:
Q. . . . . Do you know how to report that a person disputes an account on an ACDV form?
. . . . .Depo. of Stewart [#95-4] at 30. Plaintiff asserts that this was the first time that Plaintiff learned that Defendant does not utilize compliance condition codes in its FCRA investigations and that Defendant had not used one in the investigation of Plaintiff's dispute. Response [#99] at 3-4.
A. We're just responding to the dispute they send. We're not saying that they're disputing it in some extra way. Is that what you mean?
Q. Right, yeah. So if you look at -- like you see on the first page it says compliance condition code kind of on the bottom left?
A. Okay.
Q. Do you know what that means?
A. Yes.
Q. Okay. What does that mean?
A. There are different codes you could use to -- like I can't think of them all offhand. They're like XA, XH, XR. They all have different meanings.
Q. Yeah.
A. We don't use those when we respond to the askers because we're responding to them -- usually the same time that we open it is when we respond to it.
Q. Okay. And would you agree with me that code XB translates to account disputed by consumer?
A. I don't have that information in front of me to verify that.
On October 22, 2019, Plaintiff deposed EIS under Fed. R. Civ. P. 30(b)(6), but Plaintiff did not ask questions about whether Defendant's trade line indicated a particular compliance condition code or about EIS's use of the codes in general. Motion [#95] at 5. The only "dispute code" about which EIS testified concerned the one that Plaintiff himself had selected and not any that were provided by Defendant. Dep. of Munson [#99-3] at 22-23.
Discovery closed in this case on November 1, 2019. Minute Order [#59]. Defendant argues that "the record contains no baseline information about the CCC, the meaning of the specific codes, their proper use in the industry, nor even the CCC reported by EIS for [Defendant's] trade line." Response [#95] at 6.
Plaintiff and Defendant filed motions for summary judgment on December 2, 2019. See [#66, #69]. These motions are fully briefed and were ripe for disposition as of January 6, 2020. See [#86, #87]. On December 2, 2019, Plaintiff argued in his motion that certain undefined "dispute codes" form a basis for Plaintiff's claim for reckless violation of the FCRA. See [#66] at 15-16. Plaintiff states that Defendant "never avails itself [of] these types of codes" and that Defendant routinely "fail[s] to properly mark disputed accounts as 'disputed.'" Id. at 15. Defendant argues that, since Plaintiff took no discovery and produced no discovery on use of the codes, nothing in the record supports Plaintiff's assertion. Motion [#95] at 6.
Beginning in February 2020, Plaintiff began to prepare a proposed final pretrial order. Response [#99] at 4. Plaintiff circulated the proposed final pretrial order to Defendant's counsel, who participated in and contributed to the final version. Id. The proposed pretrial order included Plaintiff's claim that Defendant had violated the FCRA by failing to properly notate that the account was disputed by Plaintiff. See [#91] at 2. Defendant approved of the language in the proposed order. See [#99-2]. Plaintiff's counsel filed the jointly prepared final pretrial order on February 21, 2020. See [#91]. The Final Pretrial Order [#92], which included the claim that Defendant had violated the FCRA by failing to properly indicate that the account was disputed by Plaintiff, was entered by the Court on February 24, 2020.
Defendant argues that Plaintiff's failure to comply with the requirements of Fed. R. Civ. P. 26(e) is prejudicial to it and neither substantially justified nor harmless. Motion [#95] at 6-8. Thus, Defendant asks the Court to prohibit Plaintiff from offering any information regarding compliance condition codes at the trial of this matter, pursuant to Fed. R. Civ. P. 37(c)(1). Id. at 15.
II. Analysis
At the outset, the Court addresses a few issues raised by Plaintiff. See Response [#99]. Plaintiff argues that Defendant's Motion [#95] is not actually a motion in limine, that the Motion is untimely, and that the Motion should be denied for failure to comply with the undersigned's discovery dispute procedures. Response [#99] at 5. Plaintiff also argues that the Motion [#95] must be denied "because it improperly seeks to resolve a substantive issue that must be presented to the Jury." Id. at 8. In addition, Plaintiff argues that Defendant waived any objection to this issue "by agreeing to include this claim in the joint pretrial order." Id. at 14-15.
First, a motion in limine is an appropriate procedural vehicle to address Rule 26(e) violations and accompanying Rule 37(c)(1) sanctions. See, e.g., Guerrero v. Meadows, 646 F. App'x 597, 599 (10th Cir. 2016). Thus, this issue is not limited to being addressed by a "discovery motion," as argued by Plaintiff. Response [#99] at 5-7. Importantly, the requirements of Rule 26(e) apply regardless of whether the opposing party sought a discovery hearing on the issue. Zykronix, Inc. v. Covenant Sys., Inc., No. 16-cv-00163-KLM, 2018 WL 1942764, at *4 (D. Colo. Apr. 25, 2018).
Second, the District Judge's practice standards require motions in limine to be filed at least seven days before the trial preparation conference. Civ. Practice Standard IV.L. The Trial Preparation Conference is set for September 25, 2020, at 10:00 a.m. See [#94]. Accordingly, Defendant's Motion [#95] is not untimely.
Third, although Defendant theoretically could have addressed this issue through a timely-presented discovery motion via the undersigned's discovery dispute procedures, that route was relatively unfeasible under the circumstances of this case. The only evidence regarding compliance condition codes was discovered on October 17, 2019, near the end of the discovery period, which closed on November 1, 2019. Depo. of Stewart [#95-4] at 30; Minute Order [#59]. As discussed in more detail below, Plaintiff was not required to supplement his disclosures unless and until he decided to rely on that evidence as a basis for the alleged FCRA violation. There is no indication in the record until Plaintiff filed his Motion for Summary Judgment [#66] on December 2, 2019, that Plaintiff intended to do this. Thus, with discovery closed, and with the undersigned's direction that discovery motions must be made by the discovery cutoff except under exceptional circumstances, Defendant theoretically could have attempted to bring the dispute to the undersigned's attention through my discovery procedures, but the alternative vehicle of filing a motion in limine was also available to Defendant, as discussed above. Accordingly, the Motion [#95] should not be denied for failure to follow the undersigned's discovery procedures.
Fourth, Plaintiff argues that the compliance condition codes constitute a substantive issue which must be resolved by a jury because a motion in limine should not be used to resolve factual questions, should not be used as a substitute for a motion for summary judgment, and should not be used as a vehicle to dismiss a case. Response [#99] at 8-11. Through adjudication of this Motion [#95], the Court does not attempt to address factual questions regarding the merits of the compliance condition codes issue or any other issue as framed by Plaintiff. Rather, as discussed in more detail below, the issue here is one of notice to the opposing party of the basis for the Plaintiff's claims. "A key policy goal of requiring parties to keep their disclosures current is to avoid trial by ambush." Gallegos v. Swift & Co., No. 04-cv-01295-LTB-CBS, 2007 WL 214416, at *2 (D. Colo. Jan. 25, 2007) (internal quotation marks and citation omitted). Thus, regardless of the substantive merits of a party's claims or any factual disputes which may underlie those claims, the opposing party nevertheless must be provided proper notice for the basis of one's claims as a prerequisite for presentation of those claims to a jury. Accordingly, the Court rejects Plaintiff's argument that the issue of alleged compliance condition code violation(s) must be presented to the jury under all circumstances.
Finally, Plaintiff argues that Defendant agreed to this issue through its acceptance of the Final Pretrial Order [#92] in this case. Response [#99] at 14-15. The Final Pretrial Order states: "Plaintiff further alleges that 1st Financial's investigation was unreasonable because 1st Financial failed to indicate that the account was disputed by Plaintiff." See [#92] at 2. However, as Defendant points out, this sentence falls within Plaintiff's summary of the case in the Final Pretrial Order, and there is no indication that this sentence constituted a stipulation between the parties. Reply [#101] at 10; Final Pretrial Order [#92] at 2. Moreover, the lack of reference to any specific "compliance code" is notable, rendering the assertion utterly vague as to how Plaintiff asserts that Defendant should have "indicate[d] that the account was disputed by Plaintiff." Accordingly, the Court rejects Plaintiff's argument that the Motion [#95] should be denied on this basis.
Thus, the Court now turns to the merits of the Motion [#95].
A. Fed. R. Civ. P. 26(e)
"A party who has made a disclosure under Rule 26(a) . . . must supplement or correct its disclosure or response . . . in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26 (e)(1). "Information is 'incomplete or incorrect' in 'some material respect' if there is an objectively reasonable likelihood that the additional or corrective information could substantially affect or alter the opposing party's discovery plan or trial preparation." Gallegos, 2007 WL 214416, at *2 (quoting Sender v. Mann, 225 F.R.D. 645, 654 (D. Colo. 2004)).
The purpose of interrogatories and other discovery "is to assist in narrowing the issues and to enable the interrogating party to ascertain precisely what he will have to meet at the trial." D.R.A. Servs., LLC v. Hallmark Ins. Co., No. 13-cv-172-J, 2014 WL 11498163, at *2 (D. Wyo. Feb. 25, 2014) (quoting Truck Drivers & Helpers Local Union No. 696 v. Grosshans & Petersen, Inc., 209 F. Supp. 161 (D. Kan. 1962)). Here, Defendant asked Plaintiff to:
Identify all actions or omissions by 1st Financial which violated the Fair Credit Reporting Act and which form the basis of your Count II against 1st Financial. As used in this interrogatory, "identify" means to state the date of the alleged action or omission, name the individual acting or making the omission, and describe how such act or omission violated the Act. (Emphasis added).Plaintiff responded:
1st Financial violated the Fair Credit Reporting Act by providing inaccurate information about Plaintiff to a consumer reporting agency; by reverifying inaccurate credit information about Plaintiff to a consumer reporting agency
after dispute; by failing to have policies and procedures in place to prevent the reporting of inaccurate consumer information; or failing to follow policies and procedures to prevent the reporting of inaccurate consumer information. Plaintiff never applied for credit with 1st Financial, and the credit application on file had a different name, SSN, address, and gender than Plaintiff's information.See [#95-2] at 1-2.
Defendant's interrogatory here is what is sometimes called a "contention interrogatory." See id. "Contention interrogatories are distinct from other interrogatories" because they "seek to clarify the basis for or scope of a party's claim and narrow and define issues for trial so the requesting party may determine what proof he will need to rebut his adversary's position." Id. at *4 (citing Lucero v. Valdez, 240 F.R.D. 591, 594 (D.N.M. 2007)). "Contention interrogatories may ask another party to indicate what it contends, to state all the facts on which it bases its contentions, to state all the evidence on which it bases its contentions, or to explain how the law applies to the facts." D.R.A. Servs., 2014 WL 11498163, at *4. Plaintiff does not allude to, and certainly does not state here, any intention of basing his FCRA claim on compliance condition codes, "dispute" codes, or anything similar.
The Court finds that Plaintiff failed to comply with his obligation to supplement under Fed. R. Civ. P. 26(e) for the following reasons. Plaintiff states that he did not have information about compliance condition codes early in the case and did not obtain information about them until October 17, 2019, at Ms. Stewart's deposition. Response [#99] at 12. Even then, Plaintiff was under no obligation to supplement his discovery response to Defendant's Interrogatory No. 1 until Plaintiff decided to base his FCRA claim on this evidence, at least in part. In other words, Defendant's contention interrogatory asked for the basis for Plaintiff's claim, and to the extent Plaintiff chose not to base his claim on compliance condition codes after he learned that information, there was no reason for him to supplement his response to Interrogatory No. 1. However, as made clear by Plaintiff's Motion for Summary Judgment [#66], Plaintiff is indeed seeking to base his claim on this purported violation. Thus, the Court finds that Plaintiff's failure to supplement his response to Defendant's Interrogatory No. 1 is a violation of Fed. R. Civ. P. 26(e).
The Court emphasizes that Plaintiff asserts that he did not learn about potential compliance condition code issues until the October 17, 2019 deposition, which means, of course, that one cannot broadly construe his August 8, 2019 response to Interrogatory No. 1 as including this basis for his FCRA claim, as he purportedly did not know about it at that time. Response [#99] at 12.
Of course, Plaintiff need only supplement his response "if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26 (e)(1). While Plaintiff correctly argues that Defendant had some of the facts underlying this claim within its possession, there is no indication that Defendant was ever otherwise notified that Plaintiff intended to rely on those facts as the basis of a claim concerning compliance condition codes, such that the duty to supplement Interrogatory No. 1 would be satisfied. A simple analogy illuminates the problem here. Assume Plaintiff sued Defendant for negligence in fixing his car. Plaintiff asserts that various specific repairs were completed negligently such that the car no longer operates safely. Plaintiff provides no disclosures or discovery responses about the repair of the headlights, although they were repaired by Defendant as part of its work on the car. After discovery closes, Plaintiff files a motion for summary judgment contending that he should prevail on his negligence claim because Defendant incorrectly wired the headlights so that they turn off when placed on the "bright" setting used for especially dark road conditions. Defendant should be permitted to exclude the evidence of the faulty headlights because Plaintiff never raised it as the basis for his claim.
The Court turns now to whether sanctions should issue against Plaintiff under Rule 37(c) for this failure.
B. Fed. R. Civ. P. 37(c)
Rule 37(c)(1) prescribes a mechanism for imposing certain consequences if a party fails to supplement his discovery responses in violation of Rule 26(e). See generally Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997). Specifically, the rule provides that failure to supplement responses to interrogatories or other discovery requests precludes the use of the information at issue "to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." See Fed. R. Civ. P. 37(c)(1) (emphasis added).
The determination of whether a Rule 26(e) violation "is justified or harmless is entrusted to the broad discretion of the district court." See Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (quoting Mid-Am. Tablewares, Inc. v. Moqi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996)). "A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose." Id. (citing United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir. 1998)). However, the Tenth Circuit has enumerated four factors the Court should use to guide its discretion in determining whether a Fed. R. Civ. P. 26(e) violation is substantially justified or harmless: "(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 erring party's bad faith or willfulness. Id. (citations omitted); Iowa Pac. Holdings, LLC v. Nat'l R.R. Passenger Corp., No. 09-cv-02977-REB-KLM, 2011 WL 2292307, at *2 (D. Colo. Jun. 9, 2011). In analyzing these factors, the Court notes that the Tenth Circuit has stated that "the decision to exclude evidence is a drastic sanction." Summers, 132 F.3d at 604.
In Woodworker's Supply, the court stated that the last factor is "the moving party's bad faith or willfulness." 170 F.3d at 993. However, the court there proceeded to analyze the bad faith or willfulness of the non-moving plaintiff. See id. Other cases within the Tenth Circuit have similarly construed this last prong to apply to the party who violated Rule 26. See, e.g., O'Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 933 (D. Colo. 2017). Thus, the Court here looks to Plaintiff's bad faith or willfulness.
The non-moving party has the burden of showing that he was substantially justified in failing to comply with Rule 26(e) or that such failure was harmless. See Sender v. Mann, 225 F.R.D. 645, 655 (D. Colo. 2004) (citation omitted). Thus, the Court here examines whether Plaintiff has met this burden. For purposes of Rule 37(c)(1), a party's failure to disclose is substantially justified where the non-moving party has a reasonable basis in law and fact and where there exists a genuine dispute concerning compliance. Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995). Plaintiff argues that his failure to supplement was substantially justified because Defendant had the facts underlying an alleged compliance condition code violation in its possession. Response [#99] at 12. That is not the issue here, however. The issue is whether, after Plaintiff obtained those facts, Plaintiff supplemented his response to Interrogatory No. 1 to correct an answer that had since become incomplete based on new information learned, i.e., a basis for his FCRA claim. As noted above, Plaintiff was only required to do this once he made the decision to rely on this evidence as a basis for his claim, which Plaintiff clearly decided to do at some unspecified point prior to filing his Motion for Summary Judgment [#66] on December 2, 2019. The Court therefore finds that Plaintiff's failure to supplement his response to Interrogatory No. 1 was not substantially justified.
The Court further finds that Plaintiff's failure to supplement was not harmless under the Woodworker's Supply factors. First, the Court finds that prejudice to Defendant would result if compliance condition code evidence is not excluded. See Lintz v. Am. Gen. Fin., Inc., No. Civ.A. 98-2213-JWL,1999 WL 619045, *6 (D. Kan. 1999) (noting that non-compliance is harmless only when there is no prejudice to the opposing party). Plaintiff's argument here again misses the mark. Response [#99] at 13-14. Plaintiff states that the information was in Defendant's possession, that Defendant's expert should have opined on whether there were compliance condition code violations, and that deposing Plaintiff on this issue would be "fruitless" because Plaintiff "does not work in the credit industry and does not have any personal knowledge of these codes or how they operate in the FCRA context." Id. Again, the issue is not who had this information; the issue is how this information would be used, if at all, i.e., whether Plaintiff intended it to form a basis for his FCRA claim. Without knowing that Plaintiff's FCRA claim was based at least in part on an alleged compliance condition code violation(s), Defendant lost the opportunity during discovery to learn about this issue in any way it saw fit within the discovery parameters set by the Court at the Scheduling Conference. Accordingly, the Court finds that Defendant was prejudiced by Plaintiff's failure to supplement given that notice to Defendant of this issue occurred only through dispositive motions practice after discovery closed. The Court therefore finds that this factors weighs against a finding of harmlessness.
In regard to the second and third factors, the Court finds that any prejudice to Defendant may not be cured in a way that does not disrupt the trial. A Trial Preparation Conference is set for September 25, 2020, and a three-day Jury Trial is set to begin on October 26, 2020, approximately one month and two months away, respectively. See [#94]. To be sure, Defendant's decision to file the present Motion [#95] on July 10, 2020, approximately three-and-a-half months before trial, hints of gamesmanship, given that Defendant was on notice as of the December 2, 2019 filing of Plaintiff's Motion for Summary Judgment [#66] that compliance condition codes were being raised as a basis for the FCRA claim. Nevertheless, the Court is aware of no deadline by which these types of motions need to be filed other than the District Judge's direction that they be filed no later than seven days before the Trial Preparation Conference, and, ultimately, the need for the Motion [#95] arose from Plaintiff's failure to comply with his Rule 26(e) obligations. Accordingly, the Court finds that, while the prejudice to Defendant could be cured through reopening discovery, the Court finds that there is no way to do so in the absence of disrupting the imminent trial setting. See, e.g., Chung v. El Paso Sch. Dist. #11, No. 14-cv-01520-KLM, 2015 WL 1882939, at *2 (D. Colo. Apr. 22, 2015) (finding that a trial date less than four months away from order date allowed time for deposition); Reich v. Am. Fam. Mut. Ins. Co., No. 14-cv-01482-KLM, 2015 WL 3619862, at *3 (D. Colo. Jun. 9, 2015) (finding "obvious disruption to imminent trial" set for less than two weeks following order). The Court therefore finds that these factors weigh against a finding of harmlessness.
In regards to the fourth factor, the Court finds that Plaintiff's failure to supplement does not appear to have been willful or done in bad faith. The Court finds based on the briefs that Plaintiff's actions indicate no more than mere carelessness by Plaintiff. Cf. Smith v. Miller, No. 11-cv-00613-REB-KLM, 2011 WL 6020578, at *4 (D. Colo. Dec. 5, 2011) (finding that knowledge of relevant deadlines and lack of diligence in attempting to meet them was "something more than mere carelessness"). The Court therefore finds that this factor weighs against a finding of harmlessness.
Nevertheless, in sum, the Court finds that the four Woodworker's factors weigh in favor of granting Defendant's Motion [#95] to exclude evidence of compliance condition codes, to the extent such evidence is presented as a basis for an alleged FCRA violation, as the failure to supplement is neither substantially justified nor harmless.
The Court finds that Plaintiff has failed to carry his burden of showing that he was substantially justified in failing to comply with Fed. R. Civ. P. 26(a) and that such failure was harmless. See Sender, 225 F.R.D. at 655. Accordingly, the Court recommends that the Motion [#95] be granted and that, pursuant to Fed. R. Civ. P. 37(c)(1), Plaintiff be precluded from offering any evidence or other information concerning compliance condition codes as the basis for a violation of FCRA.
IV. Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motion [#95] be GRANTED, and that Plaintiff be precluded from offering any evidence or other information concerning compliance condition codes as the basis for a violation of FCRA.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
BY THE COURT:
Dated: August 18, 2020
/s/
Kristen L. Mix
United States Magistrate Judge