The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendants' Objections to Plaintiff's Witness and Exhibit List. (Doc. # 57).
Plaintiff Victor Manneh, a scientist, filed this action against his former employer Defendants Inverness Medical Innovations, Inc. and Innovations Research, LLC (collectively "Inverness"); David Scott, an employee of Inverness; and Does 1-50, in the Superior Court of the State of California for the County of San Diego. (Doc. # 1). Plaintiff alleged the following claims: (1) recision of his severance agreement; (2) declaratory relief that the severance agreement does not waive Plaintiff's claims; (3) breach of an agreement to transfer laboratory equipment to Plaintiff; (4) a common count for the reasonable value of Plaintiff's services; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) breach of Plaintiff's employment contract; and (8) intentional interference with economic advantage. Id. Plaintiff sought to recover damages for the value of the laboratory equipment he did not receive, or alternatively, for the reasonable value of the services he performed in exchange for the equipment; for the lost profits caused by a delay in opening his own business when he did not receive the equipment; for the value of an option to purchase 7,500 shares of stock he did not receive; for not being named as an inventor on a patent for an assay device; and for a business opportunity he lost because he did not receive the equipment. Id. On April 10, 2008, Defendants filed a Notice of Removal removing the case to federal court. Id. On December 1, 2009, this Court granted summary judgment in favor of Defendants and against Plaintiff on Plaintiff's seventh claim for breach of the employment contract as to the patent for the assay device and Plaintiff's eighth claim for interference with prospective economic advantage. (Doc. # 43 at 21).
On May 21, 2010, the parties filed pretrial disclosures which list the witnesses and exhibits each party expects to introduce at trial. (Docs. # 55-56). On June 4, 2010, Defendants filed their objections to Plaintiff's pretrial disclosures. (Doc. # 57). Defendants contended that Plaintiff failed to timely disclose witnesses Sean McHugh, Brian Mitchell, Dulce Santos, Mike Donnelly, Ty Wilson, William E. Rogers, Steven Fait, Robert Dicheck, and Jack Wilkins and Exhibits 14, 15, 40, 49, and 108-143. Id. On June 11, 2010, the Court held a pretrial conference. See Doc. # 60. Following the pretrial conference, the Court set a briefing schedule and hearing date on Defendants' objections. (Doc. # 61). On June 29, 2010, Defendants withdrew their objections to witnesses Sean McHigh, Brian Mitchell, and Steven Fait. (Doc. # 62). On July 8, 2010, Plaintiff withdrew Ty Wilson and Robert Dicheck as witnesses. (Doc. # 63 at 1, n. 1). On July 30, 2010, Defendants withdrew their objections to Plaintiff's Exhibits 109-110 and 143 and as to part of Exhibit 108. (Doc. # 64 at 2, n.1). The Court held oral argument on the objections on August 6, 2010. At oral argument, Plaintiff withdrew Dulce Santos and Mike Donnelly as witnesses and stated Jack Wilkins would only be used for impeachment. Plaintiff also withdrew Exhibit 49 and the portion of Exhibit 108 to which Defendant objected. Defendants withdrew their objection to Wilkins to the extent he is offered for impeachment purposes.
Pursuant to Federal Rule of Civil Procedure 37(c)(1), If 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. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions....
District courts have "wide latitude" to exercise discretion in applying 37(c)(1). See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). "Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness." Id. at 1107.
Among the factors that may properly guide a district court in determining whether a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.
Lanard Toys, Ltd. v. Novelty, Inc., 2010 U.S. App. LEXIS 7585, No. 08-55795, slip op. at 19-20 (9th Cir. Apr. 13, 2010). Reopening discovery or changing the trial date can constitute harm pursuant to Rule 37(c)(1). Hoffman v. Constr. Protective Servs., 541 F.3d 1175, 1180 (9th Cir. 2008). "Unfair surprise" or unnecessary expenditure ...