*1 AND NOW, this 9th day of August 2022, upon reviewing Plaintiffs’ Motion in limine to exclude untimely produced documents and information (D.I. 564), and Defendants’ Response (D.I. 598), it is ORDERED Plaintiffs’ Motion (D.I. 564) is DENIED to preclude evidence without prejudice to Plaintiffs, on or before August 22, 2022:

1. Issuing four discrete interrogatories seeking Mahathi's sworn answers no later than September 9, 2022 detailing the fact basis and supporting witnesses for its claimed damages under the Computer Fraud and Abuse Act and alleged lost profits in the Orlando Health opportunity; and,

2. Noticing Health Grid's deal counsel Michael Wilson, Esquire for a deposition limited to his potential non-privileged rebuttal testimony not exceeding three hours over a virtual platform to be completed no later than September 12, 2022.

Allscripts moves in limine to exclude Andor from introducing (1) evidence of Mahathi's damages for its Computer Fraud and Abuse Act claim and lost profits with Orlando Health; (2) fifty-three unproduced documents now appearing in Andor's trial exhibit list; and (3) an undisclosed witness.[1] Andor opposes arguing Allscripts suffered no prejudice, it did not need to produce publicly available documents now identified as trial exhibits in discovery, and the new witness is being offered for rebuttal purposes and late disclosure is harmless.[2]

Allscripts moves to exclude this evidence under Federal Rule of Civil Procedure 37 based on Andor's perceived failures to comply with Federal Rule of Civil Procedure 26.[3] Rule 37(c)(1) provides: “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 ... at a trial, unless the failure was substantially justified or is harmless.”[4] But we should not exclude evidence for technical non-compliance with the Federal Rules.[5] We should instead only exclude evidence for failing to comply with disclosure obligations after considering five factors: (1) “the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified or the excluded evidence would have been offered; (2) the ability of that party to cure the prejudice; (3) the extent to which allowing such witnesses or evidence would disrupt the orderly and efficient trial of the case or of other cases in the court; (4) any bad faith or willfulness in failing to comply with the court's order; and (5) the importance of the excluded evidence.”[6]

We begin with Mahathi's damages. Allscripts argues Mahathi failed to supplement sworn interrogatory responses and failed to provide expert testimony as to Mahathi's Computer Fraud and Abuse Act claim and lost profits due to losing the Orlando Health opportunity. Allscripts argues it is prejudiced because it now cannot rebut this testimony, Andor has a history of late-produced evidence, and acted in bad faith. Andor disputes these facts, arguing it is Allscripts's failures in discovery which led it to not discover Mahathi's damages, it did not act in bad faith, and it does not have a history of late produced evidence. The factors here weigh against exclusion of this evidence. Allscripts moved to exclude this evidence with the understanding trial would begin in twelve days from the date of its Motion. Allscripts understandably had concerns it could not rebut late produced evidence as discovery had closed and trial was imminent. We no longer have those concerns. Trial is set for January 2023—over four months away. To the extent Allscripts has suffered prejudice we can cure the prejudice by reopening discovery on the issue of Mahathi's damages. Factors one and two weigh against exclusion. Factor three is neutral. Allowing this evidence will not disrupt trial. The parties dispute factor four. Allscripts says Andor acted in bad faith; Andor says Allscripts was ineffective during discovery. We decline to wade into this thicket. Even assuming Andor acted in bad faith, the factors still weigh against exclusion. Factor five weighs in favor of admission. The evidence is essential to Mahathi's claims. We deny Allscripts's Motion and permit the evidence. To cure any potential prejudice, we allow four interrogatories on the limited issue of Mahathi's damages for its Computer Fraud and Abuse Act claim and lost profits with Orlando Health.

*2 We turn to the fifty-three unproduced documents on Andor's exhibit list. We have no idea what these documents are or whether Andor needed to produce them under Rule 26. Allscripts does not identify the documents. It does not argue whether Andor needed to produce the documents with initial disclosures or in response to written discovery requests. We cannot exclude evidence because Allscripts says Andor did not produce it in discovery without Allscripts identifying the documents or why Andor needed to produce them. We deny Allscripts's Motion to preclude these documents.

We lastly address precluding testimony from an untimely disclosed witness, Michael Wilson, Esquire, Health Grid's deal counsel (from Andor's law firm). Andor identified Attorney Wilson in its final Pretrial Memorandum (D.I. 556) to testify regarding discussions with Allscripts during the negotiations to purchase Health Grid. Andor now shifts its argument to contend Attorney Wilson's testimony regarding due diligence in the Health Grid deal is required to rebut Allscripts's argument the product did not function as anticipated to the extent we allow much of this evidence. Allscripts argues we must exclude his testimony because Andor failed to identify him as a witness in its disclosures or any supplemental discovery responses. Andor argues he is a rebuttal witness and need not be disclosed and failure to disclose is harmless. We denied Andor's relevance argument raised in its motion in limine at D.I. 575 relating to pre-Merger Agreement conduct including the functionality of Health Grid applications as relevant to Mr. Toleti's counterclaim for breach of the Merger Agreement. We warned the parties we would not permit a side show at trial on this issue. But we cannot deny Andor's request to present Health Grid's deal counsel's testimony regarding the due diligence process involved when Allscripts acquired Health Grid to rebut Allscripts's proffered evidence. And the factors here similarly weigh against excluding this evidence even if Andor needed to disclose him as a witness to Allscripts. We find little to no prejudice of the late disclosed witness because we moved trial to January 2023. We can cure prejudice supposedly suffered. We grant Allscripts leave to depose Health Grid's deal counsel for no more than three hours. Factors one and two weigh in favor of admission. Mr. Wilson's testimony will not disrupt the orderly and efficient trial of the case provided the parties heed our warning we will not permit a side trial of these issues. Factor five similarly counsels against exclusion because Andor needs the testimony to rebut Allscripts's evidence. Even assuming factor four counsels in favor of exclusion, on balance, the factors weigh against exclusion under Rule 37. We deny Allscripts's motion but permit Allscripts to depose Health Grid's deal counsel.