The opinion of the court was delivered by: Tonianne J. Bongiovanni United States Magistrate Judge
OPINION and ORDER ON INFORMAL MOTION
This matter comes before the Court on the informal motion of Plaintiff Thomas & Betts Corporation (hereinafter "T&B") to bar Defendants', Richards Manufacturing Company and Glenn Luzzi (hereinafter "Richards"), use of certain documents at trial. For the reasons set forth below the motion is GRANTED in part and DENIED in part.
II. PROCEDURAL BACKGROUND
In late 2005, T&B sought to preclude Richards from proffering certain evidence at trial which T&B alleges was not produced in discovery. On November 17, 2005 this Court denied T&B's motion and ordered that T&B "provide [Richards] a comprehensive list of evidence it alleges it has not been provided regarding the independent manufacturing process of 600 Amp connectors that [T&B] allege they have developed." [Docket Entry #195]. On December 2, 2005, T&B electronically filed two evidence lists (hereinafter "Evidence List") [Docket Entry #198-2]. The first list outlined information consistent with the specific instructions of this Court's November 17, 2005 Order. The second list outlined evidence which T&B alleges "Richards apparently intends to rely upon at trial for issues other than its alleged 'independent manufacturing process of 600 Amp connectors,' " and should be precluded because it was not provided to T&B during discovery. (Evidence List at 1-2).*fn1 The Court established a briefing schedule, with Richards' response to the Evidence List due on January 31, 2006 (hereinafter "Richards Brief") and T&B's reply and renewed formal motion due by February 22, 2006 (hereinafter "T&B Reply Brief").
The allegations in this case are well known to the parties and will not be repeated here at length. T&B's Trade Secrets and items of Confidential Information have been a moving target since the inception of this case. (See Richards Brief at 4). During discovery Richards propounded Interrogatories to T&B asking for a description of each Trade Secret and item of Confidential Information that had allegedly been misappropriated by Richards. (Id.). With the filing of T&B's Amended Answer in December 2001,*fn2 T&B identified four specific trade secrets. T&B's initial responses to Richards' interrogatories identified the same four trade secrets, but not a single item of confidential information. (Id.) After a January 11, 2003 site inspection of Richards' facility, T&B provided Richards with an approximately 600 page supplemental document production. (Id. at 5). Upon receipt of the documents, Richards requested that the Court Order T&B to identify any additional misappropriated trade secrets or other items of confidential information related to the supplemental document production. (Id.) The Court ordered T&B to supplement its response to Interrogatory Number 10 to identify any additional allegations. (Id.) T&B served its first supplemental interrogatory responses in March 2003, identifying six additional alleged trade secrets. (Id.) After various schedule changes, fact discovery was closed on June 20, 2003 and expert reports were to be exchanged by August 8, 2003.
Two months after the close of fact discovery, seven months after conducting their site inspection, and four months after first identifying the four trade secrets, T&B served the report of its expert Walworth "that identified for the first time[,] 39 items of confidential information that T&B claimed was misappropriated by Richards." (Id. at 6) (emphasis added) On September 12, 2003 the parties attended an in-person discovery conference to address what discovery was needed related to the 39 new items of confidential information. At this conference, T&B indicated that they intended to raise additional items of confidential information that were misappropriated. The Court ordered T&B to identify all items it claimed are confidential and proprietary no later than September 22, 2003. [Docket Entry # 55]. On September 22, 2003, T&B supplemented its response to Interrogatory Number 10, listing 92 items of confidential information that it alleged were misappropriated by Richards. (Richards Brief at 7). Contrary to the Court's clear instructions, T&B marked its list of 92 items as non-exhaustive. (Id.) Eventually in November 2003, after numerous conferences with this Court, T&B was barred from raising any additional items of misappropriated confidential information other than the 92 it had most recently alleged (hereinafter "92 items"). Fact discovery was reopened for the sole purpose of identifying and finalizing what T&B alleged were its misappropriated trade secrets and 92 items of confidential information. (Id. at 7-8). However, it was eventually discovered that the additional six trade secret claims and 92 items were identified by T&B's expert Walworth. (Id. at 8). Richards finally learned the specifics of T&B's allegations regarding the 92 items when they deposed Mr. Walworth in November 2004. (Id.) During December 2004, the parties were working on a joint proposed Final Pretrial Order which was forwarded to the Court on January 4, 2005. (Id. at 8-9) The Final Pretrial Order was filed by this Court on April 4, 2005 [Docket Entry # 65]. By the time the Court approved the Final Pretrial Order "nearly every one of [the] Exhibits had been physically inspected by [T&B]." (Richards Brief at 9).
T&B then moved to preclude Richards from proffering evidence at trial that was not tendered during discovery. (T&B Reply Brief at 3).
Under Rule 26 of the Federal Rules of Civil Procedure, a party is required to supplement their discovery production only if "the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(2) (emphasis added). Under Rule 37, a court may impose sanctions, including exclusion of the evidence, if a party "without substantial justification fails . . . to amend a prior response to discovery as required by Rule 26(e)(2) . . . unless [the] failure is harmless." Fed. R. Civ. P. 37(c)(1).
The Third Circuit Court of Appeals has held that "the exclusion of critical evidence is an 'extreme' sanction, not normally to be imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence." Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-905 (3d Cir. 1977) (quoting Dudley v. South Jersey Metal, Inc., 555 F.2d 96, 99 (3d Cir. 1977)); See also In Re TMI Litig., 193 F.3d 613, 721-22 (3d Cir. 1999). In determining whether to exclude evidence based on a failure to comply with discovery obligations, the court must consider: "(1) the prejudice or surprise to a party against whom the evidence is offered; (2) ability of the injured party to cure the prejudice; (3) likelihood of disruption of trial; (4) bad faith or willfulness involved in not complying with the disclosure rules," In Re Mercedes-Benz Anti-Trust Litigation, 225 F.R.D. 498, 506 (D.N.J. 2005), and "(5) importance of the evidence to the proffering party." Astrazeneca A.B. v. Mutual Pharmaceutical Co., Inc., 278 F.Supp. 2d 491, 504 (E.D. Pa. 2003) (citing Meyers, 559 F.2d at 904); See also Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997).
T&B requests that the exhibits listed in its Evidence Lists be precluded from trial based upon Fed. R. Civ. P. 37(c)(1) because of Richards' failure to timely supplement its discovery responses. T&B Reply Brief at 8 (emphasis added). T&B cannot however reasonably claim prejudice as the Court in January 2005 gave them the opportunity to take any additional discovery they deemed necessary. Moreover a showing of willful disregard or bad faith on the part of Richards is lacking. None of the items sought to be excluded could have been identified until Richards was granted discovery in late 2004 based upon T&B's untimely disclosure of the 92 items after the close of discovery. The evidence sought to be precluded is also critical to Richards claim of an independent ...