IN THE SUPREME COURT OF THE VIRGIN ISLANDS OPINION OF ...

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Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 14 of 235. Appellant failed to timely provide initial disclosures, pursuant toRule 26(a) of the Federal Rules of Civil ProcedureOne aspect of possible prejudice to Appellees in this case is Appellant’s failure totimely provide initial disclosures to Appellees, pursuant to Rule 26(a)(1) of the FederalRules of Civil Procedure. “A party must make the initial disclosures at or within 14 daysafter the parties’ Rule 26(f) conference unless a different time is set by stipulation or courtorder.” Fed. R. Civ. P. 26(a)(1)(C). Further, Rule 26(f) provides additional clarification onwhen Appellant was required to make his initial disclosures and states that “the partiesmust confer as soon as practicable—and in any event at least 21 days before a schedulingconference is held or a scheduling order is due under Rule 16(b).”According to the February 15, 2007 Scheduling Order, Appellant was obligated tocomplete his fact witness depositions by May 25, 2007. Although Appellant commencedthis action on May 28, 2003, Appellant’s counsel did not file his initial disclosures,pursuant to Rule 26 of the Federal Rules of Civil Procedure, until three-and-a-half yearslater on August 2, 2007, and one week after Appellees filed their Motion to Dismiss forFailure to Prosecute.“[T]he goal of the initial disclosure requirement is to ‘accelerate the exchange ofbasic information about the case and to eliminate paper work involved in requesting suchinformation.’” U.S. ex rel. Hunt v. Merck-Medco Managed Care, LLC, 223 F.R.D. 330,333 (E.D.Pa. 2004) (citing Fed. R. Civ. P. 26 advisory committee’s note; Fitz, Inc. v.Ralph Wilson Plastics Co., 174 F.R.D. 587, 589 (D.N.J. 1997)). Therefore, whenAppellant delayed his initial disclosures to Appellees, he may have delayed Appellees’access to the information Appellees may have needed to proceed with their defense and
Watts v. Two Plus Two, Inc.S.Ct. Civ. No. 2007-127Concurring OpinionPage 15 of 23defend their case. Moreover, at a September 18, 2007 Hearing, Appellant’s counsel wasunable to proffer any plausible reason why he filed the initial disclosures extremely latein the proceedings. (J.A. at 31.)Appellant argues that Appellees failed to file their disclosures under Rule 26.(Appellant’s Br. 4.) Appellant’s argument originates from Rule 26(a)(1)(E), which statesthat “[a] party must make its initial disclosures based on the information then reasonablyavailable to it.” This Rule further states that “[a] party is not excused from making itsdisclosures because . . . another party has not made its disclosures.” Id. Appellees failed tocomply with the rule on filing their initial disclosures, and it is irrelevant to their failurethat Appellant was likewise dilatory in filing his initial disclosures.Nonetheless, in this case, the fact that Two Plus Two would be compelled to file itsexpert disclosures without the benefit of Appellant’s expert disclosures (or his Rule 26initial disclosures) could constitute some prejudice to Two Plus Two. See Poulis, 747 F.2dat 868 (3d Cir. 1984) (holding that a defendant is prejudiced when it is required to first filea pre-trial statement without an opportunity to review a plaintiff’s pre-trial statement thatmust be filed before a defendant’s pre-trial statement).C. History of DilatorinessA history of dilatoriness is characterized by conduct involving a consistent delay bythe plaintiff’s counsel. Poulis, 747 F.2d at 868. “Extensive or repeated delay ordelinquency constitutes a history of dilatoriness, such as consistent non-responses tointerrogatories, or consistent tardiness in complying with court orders.” Briscoe, 538 F.3dat 260. Therefore, “conduct that occurs one or two times is insufficient to demonstrate a
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