                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 AMERICAN PROPERTY
 CONSTRUCTION COMPANY,

           Plaintiff/Counter-Defendant,
                                                          Civil Action No. 09-01232 (CKK)
      v.

 SPRENGER LANG FOUNDATION, et al.,

           Defendants/Counter-Plaintiffs.


                                  MEMORANDUM OPINION
                                     (March 14, 2011)

       This action involves a relatively straightforward contract dispute about construction

services. Plaintiff/Counter-Defendant American Property Construction Company (“APCC”)

commenced suit against Defendants Paul Sprenger (“Sprenger”), Jane Lang (“Lang”), and the

Sprenger Lang Foundation (the “Foundation”) (collectively, “Defendants”), asserting claims for

breach of express and implied contract based upon Defendants’ alleged failure to remit full

payment for construction services provided by APCC. Sprenger and Lang (“Counter-Plaintiffs”),

in turn, assert a counterclaim for breach of implied contract based upon APCC’s alleged failure

to perform and complete those services in a timely and satisfactory manner. Presently before the

Court is APCC’s [38] Combined Motion to Exclude Testimony/Discovery and for Partial

Summary Judgment (“Motion to Exclude”), pursuant to which APCC seeks an order imposing

sanctions upon Defendants/Counter-Plaintiffs based upon their alleged discovery-related

failures.1 Based upon the parties’ submissions, the attachments thereto, the relevant authorities,


       1
        While APCC’s motion is also styled as a motion for partial summary judgment, its
arguments in that regard are predicated upon the assumption that certain categories of evidence
and the record as a whole,2 the Court shall GRANT-IN-PART and DENY-IN-PART APCC’s

[38] Motion to Exclude, as set forth in greater detail below.

                                       I. BACKGROUND

       APCC commenced this action on July 2, 2009, asserting claims against

Defendants/Counter-Plaintiffs for breach of express and implied contract. See Compl., Docket

No. [1]. From APCC’s perspective, this action is a “straightforward collection case.” Pl.’s

Mem. at 3. APCC alleges that it was engaged by Defendants/Counter-Plaintiffs to provide

general contracting services on an office building located at 1614 20th Street, N.W., Washington,

D.C. 20009 (the “Property”). Compl. ¶ 9. APCC contends that, despite satisfactorily performing

the agreed-upon work, Defendants/Counter-Plaintiffs have failed to make full payment. Id. ¶¶

10-15. Through the instant action, APCC seeks monetary damages in the amount of

$339,727.50, exclusive of interest, as recompense for services rendered. Id. ¶¶ 14, 18.

       Defendants/Counter-Plaintiffs responded to the Complaint on July 27, 2009. See Answer

of Def. the Sprenger Lang Foundation, Docket No. [7]; Answer of Defs. Jane Lang and Paul

Sprenger (“Indiv. Defs.’ Answer”), Docket No. [8]. In addition to responding to the allegations

set forth in the Complaint, Counter-Plaintiffs asserted a single counterclaim for breach of implied



would be excluded in their entirety. Because the Court declines to exercise its discretion to
impose the sanction of exclusion, summary judgment is not available on the grounds articulated.
       2
          While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Pl.’s Mem.
in Supp. of Combined Mot. to Exclude Test./Disc. and for Partial Summ. J. (“Pl.’s Mem.”),
Docket No. [38]; Defs.’ Mem. in Opp’n to Pl.’s Mot. to Exclude Test./Disc. and for Partial
Summ. J. (“Defs.’ Opp’n”), Docket No. [43]; Defs.’ Counter-Stmt. of Material Facts Not in
Dispute, Docket No. [43]; Pl.’s Reply to Defs.’ Opp’n to Pl.’s Mot. to Exclude Test./Disc. and
for Partial Summ. J. (“Pl.’s Reply”), Docket No. [45].

                                                 2
contract based upon APCC’s alleged failure to perform and complete the services for which it

was engaged in a timely and satisfactory manner. Indiv. Defs.’ Answer at 7-8. The Foundation

did not assert a counterclaim of its own.

       An Initial Scheduling Conference was held on September 16, 2009, at which time a

discovery schedule was set. See Scheduling & Procedures Order, Docket No. [13]. Discovery

was initially scheduled to close on March 24, 2010. Id. at 6. Upon APCC’s motion, the

discovery deadline was later extended to April 23, 2010. Min. Order (Mar. 18, 2010).

Subsequently, discovery was further extended until May 7, 2010 for the limited purpose of

completing Defendants/Counter-Plaintiffs’ depositions. Mem. Order (Apr. 26, 2010), Docket

No. [33], at 11. With that sole exception, discovery otherwise remained closed effective April

23, 2010. Id.

       Following the close of discovery, Defendants/Counter-Plaintiffs filed motions for

summary judgment. See Mot. for Summ. J. by the Sprenger Lang Foundation, Docket No. [36];

Mot. for Summ. J. by Jane Lang and Paul Sprenger, Docket No. [37]. Those motions have been

resolved by the Court, see Am. Property Constr. Co. v. Sprenger Lang Found., __ F. Supp. 2d

__, 2011 WL 810092 (D.D.C. Mar. 9, 2011); Am. Property Constr. Co. v. Sprenger Lang

Found., __ F. Supp. 2d __, 2011 WL 791321 (D.D.C. Mar. 8, 2011), and the Court assumes

familiarity with those opinions.




                                               3
                        II. LEGAL STANDARDS AND DISCUSSION

       Through the present motion, APCC raises a series of complaints pertaining to

Defendants/Counter-Plaintiffs’ alleged discovery-related failures. The Court addresses each

complaint in turn.

       A.      Defendants/Counter-Plaintiffs’ Hybrid Fact/Expert Witnesses

       Defendants/Counter-Plaintiffs have identified four individuals whom they propose to call

to provide some form of expert testimony at the trial in this action, only three of whom are

immediately relevant here—Eamon Seidel (“Seidel”), of Case Design/Remodeling, Inc.,3 Shane

Lilly (“Lilly”), of J&R Roofing, and Douglas Clark (“Clark”) of Specialty Pool & Fountain, Inc.4

Defs.’ Expert Identification at 2-3. APCC contends that Seidel, Lilly, and Clark should all be

precluded from testifying at trial due to Defendants/Counter-Plaintiffs’ admitted failure to

produce written expert reports for any of these witnesses. However, because these witnesses are

not required to prepare expert reports, they cannot be precluded from testifying at trial on this

basis. Nevertheless, because Defendants/Counter-Plaintiffs have represented that all three

witnesses will be called in a particular capacity and their testimony offered for a limited purpose,

their testimony at trial must not exceed the metes and bounds identified herein.


       3
          There is some ambiguity as to whether Defendants/Counter-Plaintiffs intend to reserve
their right to call, in lieu of Seidel, “another representative” of Case Design/Remodeling, Inc. at
trial. See Defs.’ Expert Identification, Docket No. [38-5], at 2. Irrespective of whether an expert
report must be prepared, the Federal Rules of Civil Procedure require parties to “disclose . . . the
identity of any witness it may use at trial to present evidence under Federal Rule of Evidence
702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A) (2008). Because Defendants/Counter-Plaintiffs
specifically identified only Seidel, they may not call any other representative of Case
Design/Remodeling, Inc. to provide expert testimony at trial.
       4
         Unlike Seidel, Lilly, and Clark, Defendants/Counter-Plaintiffs’ fourth putative expert
witness, Douglas A. Gardner, P.E., prepared an expert report. See infra Part II.B.

                                                  4
       Under the Federal Rules of Civil Procedure, a written expert report is not required of all

witnesses expected to provide expert testimony, but only those that are “retained or specially

employed to provide expert testimony in the case or one whose duties as the party’s employee

regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B) (2008) (emphasis

added).5 The line between an expert retained to provide expert testimony and an expert retained

for some other purpose, while perhaps clear in the abstract, is often muddled in practice. The

issue most often arises where, as here, a party seeks to introduce the testimony of a so-called

“hybrid fact/expert witness”—that is, someone whose testimony turns in part on scientific,

technical, or other specialized knowledge, but who has a relationship to the subject matter of the

action independent of the litigation itself. Frequent examples include treating physicians or

health care professionals, but the universe is not so limited.

       In evaluating whether an expert report is required, the district court must engage in a two-

prong inquiry: it must first ask whether any of the contemplated testimony will be “expert”

testimony (a shorthand for asking whether it falls within the ambit of Rules 702, 703, or 705 of

the Federal Rules of Evidence), Fed. R. Civ. P. 26(a)(2)(A) (2008); the court must then proceed



       5
           The Court recognizes that Rule 26 was amended effective December 1, 2010. As a
general rule, amendments to the Federal Rules apply to pending cases only insofar as may be just
and practicable. See Landgraf v. USI Film Prods., 511 U.S. 244, 275 n.29 (1994) (endorsing, in
dictum, “the commonsense notion that the applicability of [amended] provisions ordinarily
depends on the posture of the particular case.”). Because the amendment relevant in this case did
not come into effect until long after the parties exchanged expert disclosures and, in fact, long
after the parties finished briefing the present motion, the Court applies the pre-December 1, 2010
version of Rule 26 is assessing the sufficiency of Defendants/Counter-Plaintiffs’ expert
disclosures. However, the Court observes that the recent amendment, which defines with greater
clarity the category of experts who are not required to prepare expert reports, is consistent with,
and “reinforces,” the interpretation reached in the instant case. Downey v. Bob’s Discount
Furniture Holdings, Inc., __ F.3d __, 2011 WL 117263, at *5 n.4 (1st Cir. Jan. 14, 2011).

                                                  5
to ask whether the witness has been “retained or specially employed to provide expert testimony

in the case” or whether his or her “duties as [a] party’s employee regularly involve giving expert

testimony,” Fed. R. Civ. P. 26(a)(2)(B) (2008). Only if both questions are answered in the

affirmative does the obligation to prepare an expert report arise. Therefore, the ultimate question

of whether an expert report is required turns both on the character of the contemplated testimony,

as well as the witness’ relationship to the proponent.6

       In the instant case, because Defendants/Counter-Plaintiffs concede that Seidel, Lilly, and

Clark’s testimony will include at least some expert testimony, the parties’ arguments are directed

exclusively towards the second prong—specifically, whether Seidel, Lilly, and Clark have been

“retained or specially employed to provide expert testimony in [this] case.” Fed. R. Civ. P.

26(a)(2)(B) (2008). Two of these three putative witnesses (Seidel and Lilly) are contractors who

actually performed construction work at the Property and the third (Clark) is a contractor who

inspected the premises and submitted a bid, but never actually performed any work at the

Property. Defs.’ Expert Identification at 2-3; Defs.’ Opp’n at 9. According to

Defendants/Counter-Plaintiffs’ representations, Seidel, Lilly, and Clark will all testify as to the

information they obtained, and the opinions they formed, while performing the tasks they were

hired to do in their capacity as contractors. Provided their testimony is so confined, they do not



       6
          APCC argues at some length that the answer to the question of whether a witness’
relationship with the proponent arises pre- or post-litigation is outcome determinative, Pl.’s
Reply at 4-7, but that argument is misplaced. While that may be one relevant consideration, the
plain language of Rule 26 requires the Court to ask whether the witness has been “retained or
specially employed to provide expert testimony in the case.” Fed. R. Civ. P. 26(a)(2)(B) (2008).
As illustrated by the instant case, a witness may be engaged by a party in a non-litigation capacity
after an action has commenced, and still not be “retained or specially employed to provide expert
testimony in the case.” Id.

                                                  6
come to this action as “stranger[s]” or draw their opinions “from facts supplied by others, in

preparation for trial.” Downey, 2011 WL 117263, at *5; see also St. Paul Mercury Ins. Co. v.

Capitol Sprinkler Inspection, Inc., No. 05 Civ. 2115, 2007 WL 1589495, at *13 (D.D.C. June 1,

2007) (concluding that witness was not required to prepare expert report in connection with

testimony about his role in ascertaining damages where it was a function of his ordinary

employment), aff’d, 630 F.3d 217 (D.C. Cir. 2011). Indeed, courts have consistently reached the

same conclusion in this context. See, e.g., Full Faith Church of Love W., Inc. v. Hoover Treated

Wood Prods., Inc. No. 01 Civ. 2597, 2003 WL 169015, at *2 (D. Kan. Jan. 23, 2003) (no expert

report required where general contractors’ testimony would be based on “facts which they

learned during the course of their work as general contractors,” including the scope of the

problem and the purpose and reasonableness of repairs); Goodbys Creek, LLC v. Arch Ins. Co.,

No. 07 Civ. 947, 2009 WL 1139575, at *4-5 (M.D. Fla. Apr. 27, 2009) (no expert report required

of replacement contractor where testimony would be limited to information obtained and

opinions formed in his role as a contractor); Beechgrove Redevelopment, L.L.C. v. Carter & Sons

Plumbing, Heating & Air-Conditioning, Inc., No. 07 Civ. 8446, 2009 WL 981724, at *6 (E.D.

La. Apr. 9, 2009) (“hybrid fact-opinion testimony” as to factual observations and professional

analyses rendered during renovation project admissible despite the lack of expert reports). In

short, because Seidel, Lilly, and Clark were not “retained or specially employed to provide expert

testimony in [this] case,” Fed. R. Civ. P. 26(a)(2)(B) (2008), they are not required to prepare

expert reports. This finding, however, is conditioned upon Defendants/Counter-Plaintiffs

honoring their representation that Seidel, Lilly, and Clark’s testimony will be limited to the

information they obtained, and the opinions they formed, while performing the tasks they were


                                                 7
hired to do in their capacity as contractors. Any expert testimony exceeding those bounds will

not be admitted.

       While experts reports are not required of these witnesses, amendments to Rule 26

affecting these matters came into effect in the time since the parties exchanged their expert

disclosures. Most notably, the amended Rule 26 includes a new subsection specifying the

disclosures required in those situations, such as the present, where a witness is not specifically

retained to provide expert testimony, but is nevertheless expected to provide such testimony at

trial. Fed. R. Civ. P. 26(a)(2)(C) (2011). In such situations, the proponent must identify “the

subject matter on which the witness is expected to present [expert] evidence,” and (b) provide “a

summary of the facts and opinions to which the witness is expected to testify.” Id. Given the

present posture of this case, most notably the fact that a pretrial conference is yet to be scheduled,

the Court believes it is practicable and sensible to require Defendants/Counter-Plaintiffs to

comply with these new requirements with respect to Seidel, Lilly, and Clark. Having these

disclosures in hand will aid the parties in tailoring their efforts as they proceed along the path to

trial and, in particular, in crafting any motions in limine directed to the testimony to be provided

by these witnesses.7


       7
           To the extent APCC intends at this time to challenge the proffered testimony of these
witnesses on the grounds that such testimony may be vague, unsupported, or improperly stray
into legal conclusions, its arguments are premature for at least three reasons. First, because an
expert report is not required in this context, APCC’s arguments are purely evidentiary and more
appropriately raised in a motion in limine in advance of trial. Second, because the scope of the
permissible testimony has been narrowed to the information obtained and opinions formed in the
course of the witnesses’ performance of their work, many of APCC’s arguments are now moot.
Third, because the Court shall require Defendants/Counter-Plaintiffs to provide written
disclosures for Seidel, Lilly, and Clark in a form compliant with the recently amended Rule
26(a)(2)(C), it makes sense to await these disclosures so that the parties will be able to better
tailor their arguments to the testimony actually expected to be presented at trial.

                                                  8
       B.      Defendants/Counter-Plaintiffs’ Expert Report

       APCC next contends that Counter-Plaintiffs have not designated, and by the terms of this

Court’s prior orders cannot designate, an expert in support of their counterclaim.8 Unfortunately,

as has become a recurring theme in this action, the record relevant to the present motion is so

poorly developed by the parties that the burden has effectively been shifted to this Court to sift

through the pertinent materials in order to evaluate the merits of the parties’ respective positions.

In particular, APCC’s argument that Counter-Plaintiffs are somehow barred from designating an

expert is so vague and cursory that this Court is left to guess as to its precise foundation. See

Pl.’s Mem. at 16; Pl.’s Reply at 9. Providing the parties’ papers an exceedingly generous

construction, the Court can surmise four possible bases for APCC’s contention: first, that

Counter-Plaintiffs failed to timely identify an expert witness in accordance with Rule

26(a)(2)(A); second, that Counter-Plaintiffs failed to timely produce a written expert report in

accordance with Rule 26(a)(2)(B); third, that the report actually produced by Counter-Plaintiffs’

expert is not substantively in compliance with the requirements of Rule 26(a)(2)(B); and fourth,

that Counter-Plaintiffs’ expert disclosures pertain only to their affirmative defense that they are

entitled to a setoff and do not extend to Counter-Plaintiffs’ counterclaim. In an exercise of its

discretion, the Court shall address each of these bases on the merits in lieu of summarily denying

APCC’s requested relief based upon the deficiencies in the parties’ briefing.

       First, to the extent APCC intends to suggest that Defendants/Counter-Plaintiffs’

identification of expert witnesses was untimely, the Court cannot agree. Rule 26 requires parties

to identify any and all witnesses who may be called to provide expert testimony at trial,

       8
         While APCC actually directs its argument towards all Defendants, only Sprenger and
Lang assert a counterclaim in this action.

                                                  9
irrespective of whether they are required to prepare an expert report. Fed. R. Civ. P. 26(a)(2)(A)

(2008). Because Defendants/Counter-Plaintiffs have indisputably disclosed the identities of their

four putative expert witnesses, see Defs.’ Expert Identification, the Court can only assume that

APCC considers the disclosure to be untimely. However, Defendants/Counter-Plaintiffs’ expert

identification disclosure is undated, see id., and neither party makes it clear when it was served

upon APCC. To the extent the service date is buried somewhere in the record, it is not this

Court’s responsibility to hunt down the pertinent materials in support of the parties’ respective

arguments. Based on this record, the Court cannot conclude that the identification was untimely.

In any event, to the extent APCC’s motion rests on this basis, it has failed to specifically identify

any prejudice emanating from the timing of Defendants/Counter-Plaintiffs’ disclosure. See Fed.

R. Civ. P. 37(c)(1) (2011) (“If a party fails to provide information . . . as required by Rule 26(a)

or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially justified or is harmless.”) (emphasis

added). Accordingly, relief may not rest on this ground.

       Second, to the extent APCC intends to suggest that Defendants/Counter-Plaintiffs failed

to produce an expert report in a timely manner, its position arguably has some merit. In this case,

Defendants/Counter-Plaintiffs produced a putative expert report prepared by Douglas A. Gardner

(“Gardner”), P.E., of Gardner James Engineering, Inc., on or about February 1, 2010. See Report

of Findings (“Gardner Report”), Docket No. [38-6]. The report was not produced when required.

Following the Initial Scheduling Conference in this action, the Court set a schedule for the

exchange of written expert reports for any witness for whom such a report is required under Rule

26(a)(2)(B). See Scheduling & Procedures Order at 6. Subsequently, upon the parties’ joint



                                                  10
motion, the Court amended the schedule to provide as follows: the proponent’s expert report was

required to be served on or before January 11, 2010; the opponent’s expert report was due to be

served on or before February 1, 2010; and the proponent’s rebuttal, if any, was due to be served

on or before February 15, 2010. See Order (Dec. 11, 2009), Docket No. [19], at 1. On January

13, 2010, two days after opening expert reports were required to be exchanged by the Court’s

prior order, Defendants/Counter-Plaintiffs moved for an additional fourteen-day extension of

time. See Defs.’ Mot. for Extension of Time to Identify Expert, Docket No. [20]. However,

when Defendants/Counter-Plaintiffs inexplicably failed to produce an expert report by their own

unilaterally proposed deadline, the Court denied their request for an extension. Min. Order (Jan.

29, 2010). Defendants/Counter-Plaintiffs never sought reconsideration of the Court’s decision.

Instead, without prior notification to the Court, Defendants/Counter-Plaintiffs nevertheless

served Gardner’s report upon APCC on or about February 1, 2010. See Gardner’s Report at 1.

While Gardner’s report arguably would have been timely if it was responding to an expert report

prepared by one of APCC’s experts, Defendants/Counter-Plaintiffs expressly state that Gardner’s

“report . . . is in now [sic] way based on any disclosure made by [APCC].” Defs.’ Opp’n at 14.

Accordingly, the Court’s prior order required the report to be produced no later than January 11,

2010, see Order (Dec. 11, 2009), and because it was not, the report is untimely.

       Defendants/Counter-Plaintiffs in actuality contest none of this, but instead argue that

APCC has not shown that it suffered any prejudice arising from its tardy disclosure. Defs.’

Opp’n at 14-15. While the Court does not take Defendants/Counter-Plaintiffs’ backdoor

circumvention of its scheduling orders lightly, it must agree that APCC has failed to point this

Court to any prejudice arising from the delay. Indeed, while APCC discusses at some length the



                                                11
alleged prejudice flowing from Defendants/Counter-Plaintiffs’ allegedly belated document

productions, see Pl.’s Mem. at 13-15; Pl.’s Reply at 8-9, it has failed to similarly identify any

prejudice pertaining to the timing of the production of Gardner’s expert report, see Pl.’s Mem. at

16; Pl.’s Reply at 10. Meanwhile, APCC waited over four months to raise the issue with the

Court, suggesting that it did not consider the prejudice, if any, to be great. More importantly,

discovery otherwise remained open at the time of production and Defendants/Counter-Plaintiffs

represent, without contradiction, that APCC in fact took Gardner’s deposition after his expert

report was produced, Defs.’ Opp’n at 16 & Ex. G, evidencing that APCC did not forego the

opportunity to conduct relevant responsive discovery. Even today, APCC concedes that Gardner

is “at least a possible [] fact witness,” Pl.’s Reply at 6, and in accordance with this Court’s

findings above, see supra Part II.A, would still be allowed to testify as to the information he

obtained, and the opinions he formed, while performing the tasks he was hired to do in his

capacity as a contractor. In the absence of any specific showing of prejudice by APCC, these

considerations lead ineluctably to the conclusion that the timing of the production of Gardner’s

report, while not “substantially justified,” was nevertheless “harmless.” Fed. R. Civ. P. 37(c)(1)

(2011). Accordingly, relief cannot rest on this basis either.

       Third, to the extent APCC intends to suggest that Gardner’s report is not compliant with

the substantive requirements of Rule 26(a)(2)(B), it has completely failed to support its

arguments with specific references to the contents of Gardner’s report or with citation to relevant

legal authority. Accordingly, relief cannot rest on this basis either.

       Fourth, and finally, to the extent APCC intends to suggest that Defendants/Counter-

Plaintiffs’ expert disclosures pertain only to their setoff defense and do not extend to Counter-



                                                  12
Plaintiffs’ counterclaim, the Court is not convinced. As an initial matter, Defendants/Counter-

Plaintiffs’ expert disclosures are not unambiguously limited to their setoff defense. See generally

Defs.’ Expert Identification; Gardner’s Report. Regardless, the factual bases for Defendants’

setoff defense and Counter-Plaintiffs’ counterclaim are essentially coterminous. Under these

circumstances, to endorse APCC’s position that Counter-Plaintiffs should somehow be precluded

from relying on expert testimony in support of their counterclaim when the relevant experts were

identified as individuals who would provide essentially the same testimony on a related defense

would unnecessarily elevate formalism above substance. The Court rejects the argument, and

therefore relief cannot rest on this basis either.

        In sum, APCC has failed to establish the circumstances that would justify striking

Gardner’s report or otherwise precluding him from testifying in support of Counter-Plaintiffs’

counterclaim. Nevertheless, even though it appears that APCC has already engaged in

responsive discovery in connection with Gardner’s proffered opinions, given the indisputably

belated production of Gardner’s expert report and in order to ensure that APCC suffers no

material prejudice thereby, APCC shall be afforded an opportunity to explain to the Court what

additional discovery not already provided or addressed during Gardner’s prior deposition, if any,

it considers necessary to respond to Gardner’s opinions.

        C.      Defendants/Counter-Plaintiffs’ Document Productions and Fact Witness
                Identification

        Discovery in this action closed on April 23, 2010. Min. Order (Mar. 18, 2010). One day

prior to the close of discovery, Defendants/Counter-Plaintiffs produced approximately six-

hundred pages of documents purportedly going to their “delay damages”—namely, their claims

for lost rental income. Pl.’s Mem. Ex. B at 1. On May 7, 2010, two weeks after the close of


                                                     13
discovery, Defendants/Counter-Plaintiffs produced an additional round of documents. See Pl.’s

Mem. Ex. C at 1. Finally, on May 19, 2010, Defendants/Counter-Plaintiffs sent a letter to

APCC, identifying a single previously undisclosed fact witness, Christina Virzi Weaver

(“Weaver”), of CB Richard Ellis Brokerage Services, who is expected to testify as to

Defendants/Counter-Plaintiffs’ lost rental income. Pl.’s Mem. Ex. D. at 1. Through the present

motion, APCC contends that all three disclosures were untimely and that Defendants/Counter-

Plaintiffs should be precluded from introducing such documents or calling Weaver to testify at

trial. Pl.’s Mem. at 15. While it is clear that Defendants/Counter-Plaintiffs have failed to

exercise the sort of diligence this Court expects of litigants, it declines to impose the sanction of

exclusion under these circumstances. As an initial matter, Defendants/Counter-Plaintiffs’

counsel assumes personal responsibility for the belated production, at least in part.9 Defs.’ Opp’n

at 19 n.5. While APCC speculates that the timing of the production was “an intentional effort to

prohibit any sort of responsive discovery,” Pl.’s Mem. at 14, the Court accepts the representation

of Defendants/Counter-Plaintiffs’ counsel, as an officer of the Court, that the delay in production

was due to an inadvertent oversight and that the documents were promptly produced upon

discovering the error, Defs.’ Opp’n at 19 n.5. In circumstances such as these, courts are reticent

to visit the failings of counsel upon the client. See Atkins v. Fischer, 232 F.R.D. 116, 128

(D.D.C. 2005) (“[T]he sins of an attorney should not be visited upon an innocent client.”).

Furthermore, while APCC alleges that the timing of Defendants/Counter-Plaintiffs’ productions

prevented it from engaging in “thoughtful and prepared discovery,” APCC fails to specify what


       9
         When Defendants/Counter-Plaintiffs’ counsel avers that the “tardiness of the
production” was due to his own oversight, it is not clear whether he is referring only to the April
22, 2010 production, or all three productions at issue. See Defs.’ Opp’n at 19 n.5.

                                                 14
additional discovery, if any, it might have sought had production hypothetically been made

earlier in time. Pl.’s Mem. at 9. The lone exception to this generalized claim to prejudice is

APCC’s suggestion that it might have sought “depositions of and/or subpoenas to [] Weaver.”

Id. However, Defendants/Counter-Plaintiffs aver that the alleged prejudice “can be easily cured

by permitting [APCC] to depose [] Weaver, if [APCC] believes such to be merited,” Defs.’

Opp’n at 20, which this Court takes as an expression of consent to such additional discovery.

Given the posture of these proceedings, particularly the fact that the pretrial conference is yet to

be scheduled, the Court declines to exercise its discretion to impose the sanction of exclusion

based upon Defendants/Counter-Plaintiffs’ admitted, but relatively brief, delays in producing

responsive documents and information. Nevertheless, in light of the indisputably belated nature

of Defendants/Counter-Plaintiffs’ disclosures and in order to ensure that APCC suffers no

material prejudice thereby, APCC shall be afforded an opportunity to explain to the Court what

additional discovery, if any, it considers necessary in responding further. At a minimum, APCC

may, at its election, take Weaver’s deposition and, if it so chooses, Defendants/Counter-

Plaintiffs’ counsel (not Defendants/Counter-Plaintiffs) shall be required to pay the cost of

securing the services of a court reporter for the deposition.

       D.      Defendants/Counter-Plaintiffs’ Itemization of Their Claimed Damages

       APCC also contends that Defendants/Counter-Plaintiffs have failed to provide a detailed

and complete itemization of their claimed damages. The Court agrees. Defendants/Counter-

Plaintiffs’ obligation to provide such an itemization emanates from two sources. First, as part of

their mandatory initial disclosures,10 Defendants/Counter-Plaintiffs were required to produce “a

       10
         Defendants/Counter-Plaintiffs’ initial disclosures were due on September 22, 2009.
Scheduling & Procedures Order at 6. Even assuming, arguendo, that Defendants/Counter-

                                                 15
computation of each category of damages claimed . . . [and to] make available . . . the documents

or other evidentiary material, unless privileged or protected from disclosure, on which each

computation is based.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Second, independent of this pre-existing

obligation, APCC specifically included with its interrogatories a request for “[a]n itemization of

all damages suffered by you as alleged in any Counterclaim.” Def. Jane Lang’s Answers to

Interrogs. (“Defs.’ Interrog. Resps.”), Docket No. [38-7], at 17.11

       Despite being under a clear obligation to provide a “computation” and “itemization” of

all their claimed damages, Defendants/Counter-Plaintiffs’ only response was as follows:

               [A] complete itemization of damages will be provided when the
               investigation into the water problem is complete, and the bids for
               fixing the problems are received. Defendants have sought and
               obtained bids to complete and/or repair the work that Plaintiff failed
               to perform. At this time, [Defendants] claim damages for, inter alia,
               the cost of repairing and completing the work unsatisfactorily and/or
               incompletely performed by [APCC], the cost of engineering fees
               incurred to ascertain the scope of the water infiltration problems, the
               expenses resulting from delay in completion, including excess rent
               paid for interim office space, excess architectural supervision fees,
               and lost tenant rents, and we seek to recover amounts paid to [APCC]
               for supervision and overhead. * * * However, additional problems
               with [APCC’s] work relative to the patio and associated gutters have
               materialized, and Defendants are still in the process of determining
               the extent and cause of the problems, as well as the necessary
               remedies.


Plaintiffs at that time required additional discovery or factual investigation to provide a complete
calculation of their damages, a party “is not excused from making its disclosures because it has
not fully completed its investigation of the case,” and must instead “make its initial disclosures
based on the information then reasonably available.” LCvR 26.2(a).
       11
           The interrogatory responses introduced into the record were verified by Lang. See
Defs.’ Interrog. Resps. at 18. In briefing the present motion, the parties have proceeded under the
assumption that the interrogatories were directed to, and the responses provided by, all
Defendants/Counter-Plaintiffs. In any event, it seems clear that Sprenger and the Foundation did
not provide a more fulsome itemization of damages, and Defendants/Counter-Plaintiffs have
never suggested otherwise.

                                                 16
Defs.’ Interrog. Resps. at 17-18. The response is patently inadequate; it consists of nothing more

than a generalized, non-exhaustive list of categories of damages and excuses for failing to

provide a complete response and, as such, does not amount to a “computation” or “itemization”

at all. See Steinbuch v. Cutler, 463 F. Supp. 2d 4, 12 (D.D.C. 2006) (response that “specifics [as

to damages] unknown at this moment” held “utterly deficient”); Bregman v. District of

Columbia, 182 F.R.D. 352, 359 (D.D.C. 1998) (response that damages were identified in the

complaint and that the party would supplement its response after consultation with an expert held

insufficient).

        In opposing the present motion, Defendants/Counter-Plaintiffs wisely do not attempt to

justify the substance of their response; instead, their only defense is that APCC has otherwise

“been provided with abundant documentary and testimonial information regarding Defendants’

credits and set-offs.” Defs.’ Opp’n at 13. Defendants/Counter-Plaintiffs’ argument is not well-

taken. By its plain language, “Rule 26(a) requires a party to provide a computation of any

category of damages voluntarily, i.e. without awaiting a discovery request.” Design Strategy,

Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (internal quotation marks omitted). The failure to

do so is “especially troubling” where, as here, the proponent of disclosure has independently

requested a calculation of damages through interrogatories. Id. Simply put, it is

Defendants/Counter-Plaintiffs’ burden to specifically identify, itemize, and document its claimed

damages, and it cannot shift the burden to APCC to “weed through a stack of invoices without

explanation or clarification to determine what exactly Defendant[s] are claiming in this matter.”

Pl.’s Reply at 9.

        While the deficiency is clear, the question remains as to the appropriate remedy. APCC,



                                                17
for its part, submits that Defendants/Counter-Plaintiffs should be precluded from presenting any

evidence in support of their claimed damages. Pl.’s Mem. at 16; Pl.’s Reply at 9. While framed

as an evidentiary sanction, APCC’s request, if granted, would effectively prevent

Defendants/Counter-Plaintiffs from securing any meaningful recovery on the only claim that they

have asserted in this action, and is therefore akin to a request for dismissal of their counterclaim.

Generally speaking, where the requested sanction is tantamount to dismissal, the district court

should evaluate whether the “harshest sanction of dismissal” is warranted. Butera v. District of

Columbia, 235 F.3d 637, 661 (D.C. Cir. 2001). In ascertaining the appropriate sanction in this

case, the Court bears this principle in mind.

        To the extent APCC’s motion rests on Defendants/Counter-Plaintiffs’ failure to provide a

more fulsome response to its interrogatory calling for an itemization of damages, the sanction of

exclusion is not available. The operative provision is Rule 37(b), which provides that “[i]f a

party . . . fails to obey an order to provide or permit discovery . . . the court where the action is

pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A) (2011). In most cases,

including this one, a prior court order requiring production is a necessary prerequisite to invoking

the sanctions contemplated by Rule 37(b), including the sanction of exclusion.12 Shepherd v. Am.

Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995) (internal notations omitted). Because

APCC never formally moved to compel a more fulsome response before now, no such order


        12
           While a separate provision permits a district court to impose sanctions without a court
order when a party “fails to serve its answers, objections, or written response” to properly served
interrogatories, Fed. R. Civ. P. 37(d)(1)(A)(ii) (2011), that provision is triggered only when the
party completely fails to respond, Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1339
(9th Cir. 1985), and is therefore inapplicable here. See In re Miller, No. 96 Br. 431, 2009 WL
4730755, at *5 (Bankr. D.D.C. Dec. 3, 2009) (sanctions under Rule 37(d) triggered where party
“utterly fails” to respond).

                                                   18
exists in this case.13 Therefore, while the Court may compel Defendants/Counter-Plaintiffs to

provide a complete response, the sanction of exclusion cannot rest on this ground. See Grochal

v. Aeration Processes, Inc., 797 F.2d 1093, 1098-99 (D.C. Cir. 1986) (district court erred in

excluding evidence of damages based on incomplete itemization; the proponent of disclosure

never brought a motion to compel a more fulsome answer, and therefore the opponent was never

in clear violation of a court order), vacated on other grounds, 812 F.2d 745 (D.C. Cir. 1987) (per

curiam).

       To the extent APCC’s motion rests on Defendants/Counter-Plaintiffs’ failure to provide

an adequate computation of damages as part of its initial disclosures pursuant to Rule 26(a), or

their failure to supplement their response pursuant to Rule 26(e), its arguments rest on firmer

ground. In this context, the sanction of exclusion is automatic; “[i]f a party fails to provide

information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information .

. . 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) (2011). However, in addition to or in lieu of

exclusion, the district court may impose any other sanction it deems appropriate in an exercise of

its discretion. Id. In opposing the present motion, Defendants/Counter-Plaintiffs offer no basis

for concluding that their failure to provide an adequate calculation of their claimed damages was

justified, let alone “substantially” justified. Indeed, Defendants/Counter-Plaintiffs provide no

explanation at all, apart from the erroneous contention that they were somehow relieved of their



       13
           While APCC avers that it “presumed that the highlighted deficiencies would be
resolved” after they were brought to Defendants/Counter-Plaintiffs’ attention, Pl.’s Mem. at 4
n.3, that did not alleviate APCC from its burden to file a proper motion to compel when its
concerns were not resolved amicably.

                                                  19
clear burden simply by producing the underlying documentation supporting their damages

claims. Defs.’ Opp’n at 12. At the same time, APCC fails to identify any specific prejudice

emanating from Defendants/Counter-Plaintiffs’ failure to provide a complete response, Pl.’s

Mem. at 16; Pl.’s Reply at 9, and the Court finds that, coupled with the use of less onerous

sanctions, the failure is harmless.

       Specifically, the Court shall afford Defendants/Counter-Plaintiffs a final opportunity to

produce a complete, detailed, and exhaustive itemization of all damages that they intend to

pursue in this action. That itemization may, for purposes of clarity, divide Defendants/Counter-

Plaintiffs’ claimed damages into one or more of the categories previously identified, but it must

nevertheless identify with particularity all claimed damages, and correlate those damages with

specific citations to any and all supporting materials. The evidence relied upon by

Defendants/Counter-Plaintiffs must be limited to documents already produced, or testimony

already taken, during the course of discovery in this action. Moreover, Defendants/Counter-

Plaintiffs shall be limited to the categories of damages they have identified in their previous

disclosures, namely—

               •       Expenses incurred in the course of completing or repairing the work
                       performed by APCC;

               •       The cost of engineering fees incurred in ascertaining the scope of water
                       filtration problems;

               •       Delay damages, including excess rent paid for interim office space, excess
                       architectural fees, and lost rental income; and

               •       Amounts paid to APCC for supervision and overhead.

See Defs.’ Interrog. Resps. at 17-18; Indiv. Defs.’ Answer at 8. If Defendants/Counter-Plaintiffs

fail to itemize an element of its claimed damages in accordance with these strictures, they shall,


                                                 20
without further order of the Court, be precluded from seeking such damages at trial.

        E.      Lang’s Failure to Appear for Her Deposition

        As its final complaint, APCC contends that sanctions are warranted based upon Lang’s

admitted failure to appear at her noticed deposition. On April 26, 2010, this Court found that

Lang “willfully [chose] not to appear for [her] deposition[] as noticed, despite the Court’s

explicit order to the contrary.” Mem. Order (Apr. 26, 2010), Docket No. [33], at 1. While

concluding that Lang’s behavior was borderline contumacious, the Court found that APCC’s

request for sanctions was premature, and held that request in abeyance. Id. at 9. APCC now

renews its request. Based upon its prior findings, which are incorporated herein, and

Defendants/Counter-Plaintiffs’ complete failure to come forward with any justification for

Lang’s conduct, the Court concludes that sanctions, albeit in a form more limited than proposed,

are indeed appropriate.

        Under Rule 37(d), district courts have the discretion to impose sanctions where “a party .

. . fails, after being served with proper notice, to appear for that person’s deposition,” and, where

appropriate, the Court may select from a range of sanctions including exclusion and dismissal.

Fed. R. Civ. P. 37(d)(1)(A)(i) & (d)(3) (2011).14 However, “[i]nstead of or in addition to these

sanctions, the court must require the party failing to act . . . to pay the reasonable expenses,

including attorney’s fees, caused by the failure, unless the failure was substantially justified or

other circumstances make an award of expenses unjust.” Id. In opposition to the present motion,



       14
           Because Lang’s conduct also violated an express court order, Rule 37(b) provides an
alternative basis for the Court’s ruling today. See Fed. R. Civ. P. 37(b)(2)(A) (“If a party . . . fails
to obey an order to provide or permit discovery . . . the court where the action is pending may
issue further just orders.”).

                                                  21
Defendants/Counter-Plaintiffs dispute none of the facts that previously led this Court to hold that

Lang failed to appear at her deposition “willfully and without good cause,” Mem. Order (Apr. 26,

2010) at 10-11, and instead rejoin only that the delay in completing Lang’s deposition was

minimal, Defs.’ Opp’n at 16. The rejoinder falls woefully short of establishing that the failure

was substantially justified or that an award of expenses would otherwise be unjust. At the same

time, the Court considers the two sanctions proposed by APCC—i.e., dismissing Lang’s

counterclaim and prohibiting her from testifying in this action entirely, Pl.’s Reply at 11—to be

excessive. Given that Lang’s deposition ultimately proceeded on May 3, 2010, shortly after the

Court’s prior order, see Dep. of Jane Lang, Docket No. [38-1], the actual harm to APCC is

confined to the expenses it incurred in securing a court order directing Lang to sit for her

deposition. Accordingly, in an exercise of its discretion, the Court shall require Lang15 to pay (a)

the reasonable expenses, including attorneys’ fees, incurred by APCC in responding to

Defendants/Counter-Plaintiffs’ [29] Emergency Motion for Protective Order and (b) the

reasonable expenses (but not attorneys’ fees) incurred in connection with Lang’s deposition,

including the cost of securing the services of a court reporter for purposes of the deposition. The

parties are encouraged to promptly meet and confer to reach an agreement as to the amounts at

issue; in the event they are unable to reach an agreement, the Court shall consider a petition for

fees brought in advance of the pretrial conference. The briefing on any such petition shall be

confined to the question of the proper amount to be awarded to APCC; the parties may not use

the briefing as an opportunity to relitigate the merits of the cost-shifting issue more broadly.



       15
         Because Lang was the offending party, the sanction does not extend to Sprenger or the
Foundation.

                                                 22
                                      III. CONCLUSION

       The Court has considered the remaining arguments tendered by the parties and has

concluded that they are without merit. Therefore, and for the reasons set forth above, the Court

shall GRANT-IN-PART and DENY-IN-PART APCC’s [38] Motion for Discovery Sanctions.

An appropriate Order accompanies this Memorandum Opinion.



Date: March 14, 2011
                                                            /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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