*1 Before the Court is Plaintiffs' motion to exclude Defendants Liberty Mutual Insurance Company and Does 1-10's (“Defendants”) July 11, 2019 production of documents and analysis of 37 million data points and supplemental witness disclosure, and Plaintiffs' motion for a jury instruction on wilful suppression. (Dkt. No. 479). Defendants filed an opposition to Plaintiffs' motion. (Dkt. No. 483). The Court heard oral argument regarding Plaintiffs' motion on September 20, 2019. For the reasons stated below, the Court GRANTS Plaintiffs' motion to exclude Defendants July 11, 2019 production of documents and analysis of 37 million data points and supplemental witness disclosure, and DENIES Plaintiffs' motion for a jury instruction on wilful suppression.

1. Defendants' July 11, 2019 production of documents and analysis of 37 million data points and supplemental witness disclosure violate Rule 26.

Under Federal Rule of Civil Procedure 26(a)(1)(B),

In addition to the general requirement of voluntary disclosure under Rule 26(a)(1)(B), Plaintiffs made several discovery requests throughout this litigation. See Dkt. No. 479-1 at 6–11. Plaintiffs' discovery requests specifically sought, inter alia, all records for hours worked, all documents reflecting actual hours worked for the class representatives, and all documents completed by anyone in the class as to the amount of hours worked at any time during the class period. Id. at 6; see also Dkt. No. 480-1 at 50. Despite Defendants' obligation to produce all pertinent electronically stored information in its control, Defendants' obligation to respond to Plaintiffs' discovery requests, and Defendants' obligation to timely supplement its discovery disclosures, Defendants failed to produce historical claims system transaction data and its analysis of 37 million data points until July 11, 2019, approximately one month before the previously scheduled trial date. Because Defendants failed to produce the historical claims system transaction data upon which their analysis relies, the Court finds this production in violation of Rules 26(a) and 26(e).

*2 Moreover, Defendants have not shown that their belated production is substantially justified or harmless. Defendants argue that their belated production is substantially justified because the data compilation took several months and would not be reasonable to begin until after the class was certified and Plaintiffs' expert witness provided his own damages calculations. (Dkt. No. 483 at 18). However, this does not explain or provide any justification for Defendants' failure to produce the historical claims system transaction data upon which their new analysis relies. Further, Plaintiffs have shown that permitting the introduction of this belatedly produced evidence would substantially delay this action and impose significant burdens on Plaintiffs, and thus is not harmless.

Because the Court concludes that Defendants' belated production violated Rules 26(a), and 26(e), and is not substantially justified or harmless, the Court precludes Defendants from using this information going forward, including at trial. See Fed. R. Civ. P. 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”).

Plaintiffs also move to prohibit Gary DeGrutolla (“DeGrutolla”) from testifying about Defendants' newly produced data. (Dkt. No. 479-1 at 1). Plaintiffs argue that DeGrutolla was first identified as a witness on July 11, 2019, several years after the commencement of this action. Defendants have provided no argument in response as to why DeGrutolla could not be identified as a witness earlier. (Dkt. No. 483). Because the Court finds that Defendants belatedly identified DeGrutolla as a witness under Federal Rule of Civil Procedure 26(a)(1)(A)(i), and that such delay was not substantially justified or harmless, the Court precludes Defendants from introducing DeGrutolla as a witness. See Fed. R. Civ. P. 37(c)(1).

2. Because the Court precludes the introduction of Defendants' evidence, an adverse inference jury instruction is not warranted

Plaintiffs seek an adverse inference jury instruction based on Defendants' purported willful suppression of historical claims system transaction data and its analysis of 37 million data points. (Dkt. No. 479-1 at 19-20). However, because the Court orders that this evidence be excluded going forward, the Court DENIES Plaintiffs' request for an adverse inference jury instruction as moot.

IT IS SO ORDERED.