TIMOTHY D. DEGIUSTI, District Judge.
Before the Court is Defendants' Motion to Strike Plaintiff's Expert Witnesses [Doc. No. 163], filed pursuant to Rule 26(a)(2) and Rule 37(c), Fed. R. Civ. P.
The primary issue raised by Defendants' Motion is Plaintiff's duty to disclose the expected testimony of the challenged witnesses as required by Rule 26(a)(2). Any decision to exclude evidence as a sanction for a party's failure to disclose required information is governed by Rule 37(c)(1). The Motion is thus subject to LCvR37.1, which provides: "With respect to all motions and objections relating to discovery pursuant to Fed. R. Civ. P. 26 through 37 and 45, the court shall refuse to hear any such motion or objection unless counsel for the movant first advises the court in writing that counsel personally have met and conferred in good faith and, after a sincere attempt to resolve differences, have been unable to reach an accord." The Court finds that Defendants' Motion fails to comply with LCvR37.1, and declines to hear it.
In any event, before imposing the requested sanction, the Court would need to determine whether "the failure was substantially justified or is harmless." See Fed. R. Civ. P. 37(c)(1). A district court making this determination "should consider the following factors: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness." Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (internal quotation omitted); see ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1176-78 (10th Cir. 2011). Defendants fail to address these factors and thus to justify the exclusion of Plaintiff's witnesses under the circumstances presented.
IT IS THEREFORE ORDERED that Defendant's Motion to Strike Plaintiff's Expert Witnesses [Doc. No. 163] is DENIED.
IT IS SO ORDERED.