*1 This case was referred to Magistrate Judge Jared C. Bennett under 28 U.S.C. § 636(b)(1)(B).[1] Before the court is Defendants Joshua Moon and Lolcow LLC's (“Defendants”) motion to exclude undisclosed evidence and witnesses under Fed. R. Civ. P. 26(c).[2] The court has carefully reviewed the parties’ written memoranda. Under DUCivR 7-1(g), the court concludes that oral argument is not necessary and, therefore, decides the motion on the written memoranda. For the reasons explained below, the court denies Defendants’ motion.

The court denies Defendants’ motion to exclude pro se Plaintiff Russell G. Greer's (“Mr. Greer”) evidence and witnesses yet to be disclosed under Rule 26(a)(1). At the outset, the court notes that although Defendants’ argument is framed as motion to exclude under Rule 26(c), Defendants cite language from Rule 37(c) in support of their motion,[3] which is the correct mechanism for seeking a court order denying Mr. Greer the opportunity to call any witness or introduce any evidence, including in support of a motion, to the extent the witness or evidence has not been disclosed to Defendants.

Rule 37(c)(1) states:

Although Mr. Greer has indeed twice failed to provide Defendants with any witnesses or evidence in Rule 26(a)(1) initial disclosures, Defendants’ Rule 37(c) motion is premature because Mr. Greer has not sought to use these witnesses or other undisclosed information in a motion, hearing, or trial. For this reason, Defendants have also not demonstrated that the Woodworker's factors currently weigh in favor of the exclusion of this evidence.

Specifically, as to factor one, Defendants assert that, in the absence of Mr. Greer's initial disclosures, Defendants are unable to target their discovery requests and advance toward dispositive motion practice.[5] Though Mr. Greer's failure to disclose potential witnesses or evidence to Defendants has impermissibly caused delay in court-ordered discovery, this is not the kind of prejudice to Defendants that warrants exclusion under Rule 37(c), such as the introduction of new witnesses after the close of discovery, after expert reports and depositions are completed, and after dispositive motions have been filed.[6]

*2 Moreover, as to factor two, any harm to Defendants is readily curable by a lesser remedy than exclusion, which the court outlines as follows. The court HEREBY ORDERS Mr. Greer to produce all information required by Rule 26(a)(1) to Defendants—including all witnesses—on or before December 16, 2024. If Mr. Greer fails to comply with the court's order compelling production of the Rule 26(a) information, he may be subject to potential case-ending sanctions under Rule 37(b)(2).[7]

As to the third Woodworker's factor, there is little danger of disrupting trial because one is not currently scheduled.

Addressing the final Woodworker's factor, the court finds that Mr. Greer's recalcitrant behavior is willful. Mr. Greer lacks excuse for nondisclosure of this information because, as the commentary to Rule 26 states, initial disclosures are court-ordered interrogatories,[8] and, furthermore, the court has entered the court's Standard Protective Order (“SPO”) in this case to expedite the exchange of discovery material and preserve the confidentiality of information.[9] Therefore, the court expressly told the parties they may not withhold information because the SPO would govern any information disclosed in discovery requiring protection.[10] Consequently, the reasons Mr. Greer provides for not disclosing witnesses to Defendants are without merit.[11]

But instead of excluding evidence or witnesses from a motion, hearing, or trial that has yet to materialize, the court may order payment of the reasonable expenses, including attorney's fees, caused by the Rule 26(a) violation.[12] Because Mr. Greer's failures to provide initial disclosures under Rule 26(a)(1) and to supplement them under Rule 26(e) are not substantially justified, the court HEREBY ORDERS Mr. Greer to submit briefing on or before December 23, 2024, showing cause why the court should not require him to pay Defendants’ costs and attorney's fees for having to bring the motion to essentially compel Mr. Greer's compliance with Rule 26(a)(1).

Therefore, it is HEREBY ORDERED:

IT IS SO ORDERED.