The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney
MEMORANDUM OPINION AND ORDER
Currently before the court are Plaintiffs' Motion to Strike Defendants' Memorandum in Support of its Motion for Summary Judgment, Defendants' Motion to Bar Evidence Related to Damages, and Defendants' Motion to Strike Plaintiffs' Expert's Report. This opinion addresses each of these motions in turn.
I. Plaintiffs' Motion to Strike Defendants' Memorandum in Support of its Motion for Summary Judgment
Defendants' Motion for Summary Judgment was filed on February 29, 2008. In support of defendants' motion were 66 exhibits, including the declarations of six defense witnesses. Each of these witnesses had been disclosed throughout the normal course of discovery and had been interviewed by defense counsel. Plaintiffs' counsel elected not to depose any of these six defense witnesses.
In the days immediately preceding the filing of defendants' Motion for Summary Judgment, defense counsel interviewed each of these six defense witnesses for a second time in an effort to secure their declarations, which were then used in support of defendants' Motion for Summary Judgment. In the course of these interviews, certain new evidence was revealed for the first time. (Defendants' Response at 3). Specifically, the newly revealed evidence consisted of the following: ten pages of notes taken by two of the defense witnesses, an additional list of persons who received picket remuneration, letters sent to Hogan Roofing and Harrison Carpentry from the Carpenters Union, a letter sent to Karen Rioux from the NLRB regarding Orgler's withdrawal of his unfair labor practice charges, and two DVDs portraying "taints" to the reserve gates as well as the signs used by the Union. (Defendant's Response at 5).
Defense counsel immediately disclosed this newly revealed evidence to opposing counsel and supplemented its answers to plaintiffs' interrogatories pursuant to Rule 26(e). Defendants characterize their supplementation as follows:
1. The Supplemental Answers to Plaintiffs Interrogatories added the names of Daniel McMahon and Joel Pagose as persons who were consulted in answering the interrogatories.
2. The Supplemental Answers to Plaintiffs Interrogatories add a conversation between Organizer Matt Swanson and an unnamed carpenter working at the Railway Estates project in January 2006 during which the carpenter responded that he was working for Orgler. Defendants still do not know the name or identity of this individual.
3. The Supplemental Answers to Plaintiffs Interrogatories identify supplemental "Picket Remuneration Sheets" which were part of the supplemental document disclosure. These were Picket Remuneration Sheets turned in since Defendants' last production of documents and were in addition to the "Picket Remuneration Sheets" originally supplied.
4. The Supplemental Answers to Plaintiffs' Interrogatories added the statement that, "Based upon the Union's investigation, Daniel McMahon recommended to William Schambach that the Union initiate a campaign against Orgler to protest the payment of substandard wages and benefits."
5. The Supplemental Answers to Plaintiffs' Interrogatories noted an additional website which defines area standard wages.
6. The Supplemental Answers to Plaintiffs' Interrogatories added the statement that "it is common knowledge in the highly competitive residential construction market in Lake and McHenry Counties that those carpentry contractors who are not a party to a collective bargaining agreement almost never pay the prevailing wages and benefits." (Defendants' Response at 4-5).
Plaintiffs point out that this newly discovered evidence had been around since 2006 and that these disclosures and the associated supplementation came well after fact discovery had closed on September 17, 2007. (Plaintiffs' Motion to Strike at 1). Plaintiffs claim that they "have no ability to present evidence to contest or verify the new factual allegations" because fact discovery is closed, leaving them "without the ability to confront the 'evidence.'" (Plaintiff's Motion at 5, 7). In order to level the playing field, plaintiffs insist that the court must dismiss defendants' motion for summary judgment as a sanction for failing to have produced this discovery sooner.
Rule 37(c)(1) states that a party who without substantial justification fails to disclose information required by Rule 26(e)(1) is not allowed to use that information as evidence unless such failure is harmless. Fed.R.Civ.P. 37(c)(1). In reviewing whether plaintiffs' failure to disclose was harmless, the court considers the following: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith ...