United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on the Government's motion to
strike Defendants' supplemental expert report and
supplemental answers to interrogatories (Dkt. No. 50). For
the reasons set forth below, the Court denies the motion and
will issue a new scheduling order extending certain
United States filed this action on July 15, 2016, to acquire
a restrictive easement over 269 acres of land adjacent to the
Marine Corps Air Station in Beaufort, South Carolina, to
protect flight operations. The issue in this case is the
compensation due for the property taken.
certain exceptions not germane to the present motion, the
discovery deadline in this matter was June 16, 2017. Expert
reports were due April 7, 2017 and rebuttal reports May 12,
2017. On February 6, 2017, the Government propounded its
first set of interrogators and requests for production, which
requested that Defendants identify all witness and provide
any documents associated with plans to develop the property.
Defendants responded 32 days later, on March 10, 2017,
identifying witnesses and providing an unexecuted copy of a
contract with Southern Current for a solar farm lease on the
property. On March 20, 2017, the Government requested an
executed copy of the lease. In response, Defendants provided
a partially executed lease on March 31, 2017. Defendants also
timely provided an expert report from their appraiser, Thomas
Hartnett, dated March 21, 2017.
15, 2017, Defendants identified three new potential witnesses
from Southern Current. They provided a copy of the fully
executed lease on June 16, 2017, and a
"supplemental" report from Mr. Hartnett on June 19,
2017. Mr. Hartnett provided the new report to
Defendants' counsel on June 10, 2017, describing it as
"my corrected version of the Trask appraisal." The
corrections are modifications to address criticisms raised in
the Government's rebuttal report; Mr. Hartnett's
conclusion regarding the value of the property did not
change. The Government moves to strike the new expert report,
the new witness identifications, and the fully executed lease
as untimely disclosed.
of the Federal Rules of Civil Procedure provides that
"[i]f a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless."
Fed.R.Civ.P. 37(c)(1). Local Civil Rule 16.02(D)(2) provides
that witnesses identified in the last twenty-eight days of
the discovery period are presumed to be untimely identified,
absent a showing of good cause.
basic purpose of Rule 37(c)(1) [is] preventing surprise and
prejudice to the opposing party." S. States Rack
& Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592, 596 (4th Cir. 2003). Thus, the district court has broad
discretion to determine whether a nondisclosure of evidence
is substantially justified or harmless. Id. at 597.
"[I]n exercising its broad discretion to determine
whether a nondisclosure of evidence is substantially
justified or harmless for purposes of a Rule 37(c)(1)
exclusion analysis, a district court should be guided by the
following factors: (1) the surprise to the party against whom
the evidence would be offered; (2) the ability of that party
to cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party's explanation
for its failure to disclose the evidence." Id.
Government objects to three disclosures made on or after June
15, 2017: a copy of an executed solar farm lease with
Southern Current, identification of representative witnesses
from Southern Current, and a new expert report from Mr.
The Executed Solar Farm Lease
Government objects Defendants provided a copy of the executed
solar farm lease on June 16, 2017, the last day of discovery.
That contract apparently should have been provided by March
8, 2017 in response to the Government's interrogatories
of February 6, 2017. (See Dkt. 50-6.) Defendants
produced a partially executed but substantively identical
solar farm contract on March 31st. (See Dkt. No. 56
at 11.) At that time, the Government was aware the contract
had been fully executed. (Id. at 11-12.) The
Government also received a copy of the fully executed
contract before the close of discovery. The failure to
disclose the executed copy by March 8th, therefore, is
harmless. The Court denies the Government's motion to
strike the contract.
The Identification of ...