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United States v. 269 Acres, More or Less, Located in Beaufort County

United States District Court, D. South Carolina, Beaufort Division

August 1, 2017

United States of America, Plaintiff,
v.
269 Acres, More or Less, Located in Beaufort County, State of South Carolina; Harold E. Trask, Jr.; Defendants.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         This 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 deadlines.

         I. Background

         The 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.

         With 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.

         On June 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.[1] 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.

         II. Legal Standard

         Rule 37 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.

         "[T]he 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.

         III. Discussion

         The 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. Hartnett.

         A. The Executed Solar Farm Lease

         The 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.

         B. The Identification of ...


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