CONSTANTINE HELLEN, Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant Civil Action No. 22-cv-02717-REB-SBP United States District Court, D. Colorado filed February 29, 2024 Counsel Jessica L. Breuer, Stephen Jonathan Burg, Burg Simpson Eldredge Hersh Jardine PC, Englewood, CO, for Plaintiff. Billy-George Hertzke, SGR, LLC, Denver, CO, Jessica Rae Schultz, Gordon Rees Scully Mansukhani LLP, Denver, CO, for Defendant. Blackburn, Robert E., United States District Judge ORDER *1 The matter before me is Defendant American Family Insurance Company's Motion To Strike Late Disclosed Non-Economics Witnesses [#51],[1] filed November 22, 2023. I have jurisdiction over this matter under 28 U.S.C. § 1332 (diversity of citizenship). I deny the motion. This case involves a claim for underinsured motorist (“UIM”) benefits, including allegations of statutory and common law bad faith. Plaintiff Constantine Hellen claims he suffers from a seizure disorder as a result of an automobile accident and seeks damages from his insurer, defendant American Family Insurance Company (“American Family”). In his initial disclosures, Mr. Hellen identified his mother and father as persons likely to have discoverable evidence regarding Mr. Hellen's seizure disorder and the effect it has had on him. At Mr. Hellen's August 30, 2023, deposition, counsel for American Family asked whether anyone other than his parents had “detailed enough information that you would anticipate calling them if needed to testify on your behalf,” and whether he knew of others “familiar enough with the accident and your injuries from the accident that you would consider calling them at trial to testify on your behalf[.]” (Motion App., Exh. A at 21:18-20, 21:25-22:3.) Mr. Hellen responded that while other family and friends knew he had been involved in an accident and had seizures, “no one really knows the details except my mom and dad.” (Id., Exh. A at 22:11-16, 23:6-9.) Forty-one days later, on October 10, 2023, Mr. Hellen supplemented his disclosures to endorse his brother as a person likely to have discoverable evidence. On October 13, he supplemented again to add a close friend and his aunt and uncle to that list. Discovery closed two weeks later, on October 27, 2023. By this motion, American Family claims these disclosures were untimely and asks the court to strike them as a sanction. Federal Rule of Civil Procedure 26(e)(1)(A) requires a party's disclosures to be supplemented “in a timely manner.” In practice, this requirement means “supplementation must occur in a fashion that will allow [the opposing party] to conduct meaningful discovery and avoid undue delay in the progress of [the] case.” Poitra v. School District No. 1 in the County of Denver, 311 F.R.D. 659, 666 (D. Colo. 2015) (citation and internal quotation marks omitted; alterations in original). Accordingly, and notwithstanding Mr. Hellen's arguments to the contrary, “simply because supplemental disclosures are made on or before a deadline does not necessarily mean that they are ‘timely’ under Rule 26(e)”: [T]he court will also consider a party's diligence in obtaining the supplemental information, the length of time to supplement once the party obtained the supplemental information, and other relevant facts to determine whether a party's course of conduct in supplementing frustrates the purpose of Rule 26 to promote full and orderly pretrial disclosure. *2 Great Northern Insurance Co. v. NGL Warehouse, LLC, 2016 WL 11691162 at *3 (D. Colo. Sept. 21, 2016). Indeed, a party's duty to supplement continues even after discovery closes. Carroll v. SAFECO Insurance Co. of America, 2020 WL 7664731 at *3 (D. Colo. Dec. 24, 2020). Fed. R. Civ. P. 30(b)(1) provides that “[a] party who wants to depose a person by oral questions must give reasonable written notice to every other party.” Under the Local Rules of this District, “reasonable notice for taking a deposition shall be not less than 14 days, as computed under Fed. R. Civ. P. 6.” D.C.COLO.LCivR 30.1. American Family argues that Mr. Hellen's supplemental responses, submitted 17 and 14 days prior to the close of discovery, left American Family inadequate time to notice, much less take, depositions of the newly disclosed witnesses. American Family further maintains Mr. Hellen should have known these witnesses – his family and close personal friends – had relevant knowledge well before he disclosed them. See Cereceres v. Walgreen Co., 2022 WL 2105895 at *4 (D. Colo. June 9, 2022) (whether supplementation is timely “centers on when the disclosing-party reasonably should know that its disclosures are incomplete or incorrect”). I agree with both these propositions. It simply beggars belief to imagine Mr. Hellen did not know his brother, aunt, uncle, and close friend might have information relevant to the extent and effect of his injuries until barely two weeks before discovery closed. At best, his belated disclosure shows a lack of diligence and “frustrates the purpose of Rule 26 to promote full and orderly pretrial disclosure.” NGL Warehouse, LLC, 2016 WL 11691162 at *3. The question thus becomes what to do about that failure. Under Fed. R. Civ. P. 37(c), a party is prohibited using at trial a witness or information developed in violation of his discovery obligations “unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). In exercising my “broad discretion” to determine whether a violation of the rule was substantially justified or harmless, see Woodworker's Supply, Inc. v. Principal Mutual Life Insurance Co., 170 F.3d 985, 993 (10th Cir.1999), I must consider “(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,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir.), cert. denied, 123 S.Ct. 623 (2002) (citation and internal quotation marks omitted). Because exclusion of evidence is a drastic remedy, the court should consider lesser sanctions unless there are indications of bad faith or willfulness in connection with the late or inadequate disclosure. See HCG Platinum, LLC v. Preferred Product Placement Corp., 873 F.3d 1191, 1205 (10th Cir. 2017). Given these relevant considerations, I cannot conclude that striking these witnesses constitutes an appropriate sanction for their untimely disclosure. Undoubtedly, there is some prejudice to American Family in not knowing precisely what these witnesses might say under oath, although it seems most likely their evidence will track closely the testimony of Mr. Hellen and that of his mother and father. *3 Yet even if it does not, American Family has had more than adequate opportunity to cure any prejudice occasioned by the late disclosure. At the time these supplemental disclosures were made, trial was six months away. The time constraints on noticing depositions may be modified at the court's discretion. See D.C.COLO.LCivR 30.1 (fourteen days notice required “[u]nless otherwise ordered by the court”). Yet American Family never even bothered to ask. See Stewart v. United Parcel Service, Inc., 2023 WL 143229 at *6 (D. Kan. Jan. 10, 2023) (party not prejudiced by late disclosure where it failed to request extension of discovery deadline). Given that the court previously has been accommodating in extending discovery in this case, American Family's suggestion that it was “precluded ... from completing depositions of the late disclosed witnesses” rings hollow.[2] American Family cannot now insist it is prejudiced when it stood idly by and made no attempt to cure. Moreover, I cannot agree that Mr. Hellen's failure to identify these witnesses during his deposition evidences bad faith or willfulness on his part. The way in which the questions were framed – as matters of who might know enough to merit inclusion on Mr. Hellen's witness list, instead of simply as requests for who else might have relevant information – could well have been confusing to a lay person such as Mr. Hellen. It is questionable whether Mr. Hellen himself knew at the time of his deposition (or indeed, knows now) who might be called to testify at trial, a decision which he does not have final say over in any event. See DeLozier v. Sirmons, 531 F.3d 1306, 1324 (10th Cir. 2008) (“[T]he decision whether to call a witness rests within the sound discretion of trial counsel.”), cert. denied, 129 S.Ct. 2058 (2009).[3] This is not evidence of bad faith. For these reasons, I find the untimely disclosure was harmless. The motion to strike these witnesses therefore will be denied. THEREFORE, IT IS ORDERED that Defendant American Family Insurance Company's Motion To Strike Late Disclosed Non-Economics Witnesses [#51], filed November 22, 2023, is denied. Dated February 29, 2024, at Denver, Colorado. Footnotes [1] “[#51]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order. [2] Although American Family worries that deposing these witnesses beyond the discovery deadline might open up additional avenues of further discovery – a possibility that frankly seems both highly speculative and vanishingly remote – the court would not have been powerless to address any such developments. [3] In so noting, I need not, and thus do not, consider Mr. Hellen's objection that his witness list constitutes attorney work product. Federal courts are split on the issue, see Equal Rights Center v. Post Properties, Inc., 246 F.R.D. 29, 36 (D.D.C. 2007) (citing cases), and the argument is inadequately developed here. Suffice to say that Mr. Hellen's awareness vel non of any such list is not evidence of bad faith on his part.