U.S. COMMODITY FUTURES TRADING COMMISSION, Plaintiff, v. GREGORY L. GRAMALEGUI, Defendant Civil Case No. 15-cv-02313-REB-GPG United States District Court, D. Colorado Filed February 23, 2018 Counsel Daniel Church Jordan, Raagnee Beri, Ilana Dvora Waxman, U.S. Commodity Futures Trading Commission, Washington, DC, for Plaintiff. Martin Melville Berliner, Steven W. McDonald, Berliner McDonald, P.C., Denver, CO, for Defendant. Blackburn, Robert E., United States District Judge ORDER GRANTING IN PART AND DENYING IN PART THE CFTC'S MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF ROBERT MACKOVSKI *1 The matter before me is The CFTC's Motion In Limine To Preclude the Testimony of Robert Mackovski [#326],[1] filed February 14, 2018. I grant the motion in part and deny it in part. By this motion, the Commission seeks to preclude defendant from offering the testimony of his quondam counsel, Robert Mackovski. Mr. Mackovski represented defendant in both the CFTC investigation preceding the entry of the 2001 Order (the alleged violation of which forms the basis of some of the claims in this matter) and the pre-litigation investigation in this case. Mr. Mackovski's name, address, and telephone number – but not the subjects as to which he might have discoverable information – were disclosed in defendant's initial Rule 26(a) disclosures, produced January 25, 2016. On February 11, 2016, defendant submitted responses to the Commission's first set of interrogatories and requests for production wherein he repeatedly referred to Mr. Mackovski as a person who had provided information to the Commission during the investigative stage of the case. (See The CFTC Motion To Preclude Defendants From Presenting the Testimony of John Emmons at Trial, Exh. G [#240], filed June 19, 2017.) In May 2016, Mr. Mackovski submitted an affidavit in support of defendant's response to The CFTC's Consolidated Motion To Compel, for Sanctions, and for Leave To Take Discovery on Spoliation [#46], filed May 3, 2016. (App. Exh. B), in which he made manifest his role as defendant's attorney during the investigative stages of both the earlier and the instant litigation. In February 2017, defendant submitted his witness list in anticipation of the then-scheduled trial. Therein, he listed Mr. Mackovski as a will call witness who would testify concerning the initiation of the CFTC investigation, discussions and communications with the CFTC concerning the investigation, the production of documents to the CFTC during the investigative stage, the July 12, 2001 consent order, and matters occurring prior to the initiation of the Complaint, among other things related to the Complaint and Defendant's defenses. (Final Pretrial Order, Exh. C [#182], filed February 17, 2017.) That trial subsequently was vacated and rescheduled to commence in September 2017. In August 2017, counsel for the CFTC contacted Mr. Mackovski to request a telephone interview.[2] Mr. Mackovski declined such an interview, but offered to consider written questions. Counsel for the Commission questioned Mr. Mackovski's representation that any such communications threatened to impinge on the attorney-client privilege, but the issue went no further. However, Mr. Mackovski reiterated the language used in defendant's witness list regarding the anticipated content of his testimony. (See Commission Motion, Exh. A, Attachments 5, 6, 7, & 8.) *2 That trial setting was continued, and the matter is now set to commence trial on February 27, 2018. In preparation for this new trial date, the parties exchanged emails in late January 2018, in which counsel for defendant suggested that Mr. Mackovski would be able to authenticate certain videos to be introduced as exhibits at trial. Further, counsel represented that Mr. Mackovski would bring so-called “Ninja Trader” software to trial which he would use to demonstrate certain “indicator files” anticipated to be introduced as exhibits at trial. (See id., Exh. A, Attachment 9.) Although the extant version of the Final Pretrial Order ([#319], filed January 31, 2018) reiterates the language previously used to describe the substance of Mr. Mackovski's anticipated testimony, at the combined Final Pretrial Conference and Trial Preparation Conference, counsel for the Commission expressed concern that the subjects of Mr. Mackovski's testimony would stray beyond his role in the investigatory and discovery phases of this case. In response, counsel for defendant represented that Mr. Mackovski, in addition to his “institutional knowledge,” had “technical knowledge” about defendant's products and would be asked to describe an exhibit showing how the “indicators” appear to the customer who views defendant's website and to give a “practical” explanation of how they work. Defendant acknowledged at the Final Pretrial Conference, as he must, that his initial disclosure of Mr. Mackovski was insufficient for purposes of Rule 26(a)(1)(A)(i). “Rule 26(a)(1)(A)(i) requires more than simply a laundry list of potentially knowledgeable individuals.” Poitra v. School District No. 1 in the County of Denver, 311 F.R.D. 659, 666 (D. Colo. 2015). Instead, the rule demands a party disclose, without awaiting a formal discovery request, “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, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). A party who fails to provide the information required by Rule 26(a) or supplement it properly as required by Rule 26(e), may not use that information at trial “unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). I have broad discretion in determining whether a violation of a party's obligations under Rule 26 are justified or harmless. Woodworker's Supply Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir. 1999). Although I need not make explicit findings concerning the matter, the following factors guide my discretion: (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. Id. Given these considerations, I must conclude that defendant's failure to disclose Mr. Mackovski as a witness was ultimately harmless insofar as Mr. Mackovski will testify as to his role in the investigative and discovery phases of this and the earlier Commission inquiries into defendant's business practices. While “Rule 26(a)(1) does not permit a party to avoid its mandatory discovery obligations by arguing that the other side could have relied on its own resources to obtain the same information,” Lobato v. Ford, 2007 WL 2593485 at *6 (D. Colo. Sept. 5, 2007), aff'd, 2007 WL 9666115 (D. Colo. Oct. 31, 2007), Rule 26(e) does not require supplementation where the substance of the witness's testimony not properly disclosed nevertheless has been “made known to the other parties during the discovery process or in writing,” Fed. R. Civ. P. 26(e)(1)(A). Here, the Commission was clearly on notice no later than the submission of the first Final Pretrial Order in January 2017, of the topics on which Mr. Mackovski ostensibly would testify. Yet it waited until August 2017 – nearly eight months later and within a month of the then-scheduled commencement of trial – to attempt to speak with him on those matters. Because discovery was then long-closed, the Commission had no right or ability to compel Mr. Mackovski to speak to its attorneys, nor did it ever seek leave to do so. Thus, the Commission has no basis to complain about Mr. Mackovski's invocation of the attorney-client privilege, unfounded or not. Even if it had, its failure to bring that matter to the attention of the court for resolution for an additional six months, on the eve of trial, bars its request for relief on that basis in any event. See Carbajal v. Warner, 2015 WL 7450269 at *6 (D. Colo. Nov. 24, 2015) (“Although Fed. R. Civ. P. 37 does not specify any time limit ..., courts have made it clear that a party seeking to compel discovery must do so in timely fashion.”) (citation and internal quotation marks omitted); Buttler v. Benson, 193 F.R.D. 664, 666 (D. Colo. 2000) (“A party cannot ignore available discovery remedies for months and then, on the eve of trial, move the court for an order compelling production.”). *3 I reach the opposite conclusion, however, with respect to Mr. Mackovski's purported testimony on and/or demonstration of defendant's products and/or software and how they operate. Regardless whether this testimony is properly classified as expert testimony vel non, it is patently clear that Mr. Mackovski has never been designated to testify about these matters. The expansive reservation in defendant's disclosure of Mr. Mackovski's intended testimony of “other things related to the Complaint and defendant's defenses” is simply too inexplicit to give the Commission fair notice that Mr. Mackovski intended to testify on these matters.[3] I therefore grant the motion in limine as to that aspect of Mr. Mackovski's purported testimony. The Commission argues also that Mr. Mackovski's testimony should be barred because it would violate the rules which limit an attorney's ability to appear as a witness. I disagree. The Colorado Rules of Professional Conduct do not prohibit lawyers from testifying at trial at all, but instead, address a limited class of situations in which the lawyer would appear as both a witness and an “advocate at trial.” C.R.P.C. 37(a). See also D.C.COLO.LAttyR 2(a) (adopting the Colorado Rules of Professional Conduct as the standards for professional responsibility in this district). Mr. Mackovski is not counsel of record in this matter and thus is not defendant's advocate at trial. In any event, the Commission has known since the inception of this case that Mr. Mackovski was a potential witness. By waiting until the eleventh hour to raise the issue, it has waived it. THEREFORE, IT IS ORDERED as follows: 1. That The CFTC's Motion In Limine To Preclude the Testimony of Robert Mackovski [#326], filed February 14, 2018, is granted in part and denied in part; 2. That the motion is granted to the extent that defendant's witness, Robert Mackovski, shall be precluded from testifying as to the use and operation of defendant's products or software or any demonstration of those products or software, or any other related matters not plainly disclosed previously; 3. That in all other respects, the motion is denied; and 4. That defendant is precluded for now from referring to or offering in evidence testimony from Mr. Mackovski relating to the use and operation of defendant's products or software or any demonstration of those products or software, or any other related matters not plainly disclosed previously, unless by way of proper impeachment or pending further order of court. Dated February 23, 2018, at Denver, Colorado. Footnotes [1] “[#326]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order. [2] The discovery deadline was November 14, 2016. (See Order [#77], filed August 16, 2016.) The Commission never sought leave to reopen discovery to depose Mr. Mackovski or otherwise compel his testimony. [3] Indeed, during discovery, defendant claimed he had did not and could not know what a user of his website might hear, see, and experience while using the products. (See Commission Motion, Exh. A, Attachment 2 at 6.)