Full docket text for document 382:

Docket Text Order - On March 30, 2018, Defendants amended their witness list to include Gary Peterson, the defendant companies' accountant. Pursuant to Rule 26(a), Defendants failed to timely disclose Gary Peterson. He is a witness whose necessity should have been known from the filing of the complaint, as his testimony bears on the issue of disgorgement. The court has broad discretion in determining whether a Rule 26(a) violation is justified or harmless.

Mr. Peterson should not testify, in light of the four factors in Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999):

(1) Offering a new witness the Friday preceding a Monday trial start date undoubtedly was a surprise to Plaintiffs and his testimony would prejudice Plaintiffs as they relied on Defendants previous disclosures and discovery responses to prepare for trial.

(2) Plaintiff has already prepared for trial based on Defendants disclosures and discovery responses. Had Defendants timely disclosed Mr. Peterson, Plaintiffs would have had time to adequately prepare for trial taking into account his testimony. Defendants are unable to cure this prejudice.

(3) This is a 10-day bench trial spread across a 4-week time frame. This case in the midst of trial. The remaining six days of trial resume on April 19, 2018. At such a late date, adding another witness would disrupt trial.

(4) Defendants did not include Mr. Peterson in their initial disclosures, nor did they supplement their initial disclosures, nor did they otherwise make Mr. Peterson or his testimony known to Plaintiff during the discovery process or in writing prior to March 30, 2018. Defendants witness Gary Peterson will not be permitted to testify.

Docket text only. No attached document.

Signed by Judge David Nuffer on 04/10/2018.

(ms) (Entered: 04/10/2018)