2021 UT App 130

THE UTAH COURT OF APPEALS

COLTEN JOHANSEN,

Appellee,

v.

KATHY JOHANSEN,

Appellant.

Opinion

No. 20200234-CA

Filed November 26, 2021

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 114900531

Charles R. Ahlstrom, Attorney for Appellant

Jason B. Richards, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN

concurred.

ORME, Judge:

¶1 Kathy Johansen challenges the district court’s denial of 

her motion to dismiss Colten Johansen’s petition to terminate 

alimony. She argues that the court erred in finding that Colten’s 

failure to provide initial disclosures was harmless.1 We agree 

and reverse. 

 

1. Because the parties share the same surname, we refer to them 

by their first names, with no disrespect intended by the apparent 

informality.
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BACKGROUND2

¶2 In 2011, Kathy and Colten divorced. The divorce decree

required Colten to pay Kathy alimony that was to terminate after

15 years or upon Kathy’s remarriage or cohabitation. On October 

30, 2018, Colten filed a petition to terminate alimony, alleging 

that Kathy had been cohabitating with another man (Boyfriend)

since at least January 2018. Acting pro se, Kathy filed her answer 

on November 8, 2018, denying the allegation. A pretrial 

conference was held the following March, during which the 

district court set the case for a three-day bench trial to begin in 

late August 2019. On July 29, Colten, having never filed his 

initial disclosures, provided pretrial disclosures that included his 

witness list and his exhibits. The witness list named Kathy,

Colten, a private investigator, and Kathy and Colten’s daughter 

(Daughter). On August 6, Kathy moved to dismiss the petition to 

terminate alimony, alleging that Colten never served initial 

disclosures as required by rule 26 of the Utah Rules of Civil 

Procedure. Pursuant to rule 26, Colten was required to provide 

these disclosures way back in November 2018, 14 days after 

Kathy filed her answer to his petition. See Utah R. Civ. P. 

26(a)(2)(A).

¶3 Just before the trial began, the district court addressed 

Kathy’s motion to dismiss. Although the court stated that Colten 

appeared to have violated rule 26’s disclosure requirements, it 

declined to exclude Colten’s witnesses and exhibits because it 

 

2. “On appeal from a bench trial, we view the evidence in a light 

most favorable to the trial court’s findings, and therefore recite 

the facts consistent with that standard and only present 

conflicting evidence to the extent necessary to clarify the issues 

raised on appeal.” Linebaugh v. Gibson, 2020 UT App 108, n.5, 471 

P.3d 835 (quotation simplified).
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found that the apparent violation of the rule was harmless. 

Specifically, while addressing Kathy, the court ruled:

[Colten’s] responsibility exists in and of 

itself to provide those initial disclosures to you. 

However, there is an exception. If . . . they can 

show that the failure is harmless or there is good 

cause, . . . they can overcome that requirement. 

There’s one other requirement, and that is 

they don’t have to disclose anything to you that 

would be used for impeachment purposes. And so 

what they would do is they would simply call you 

to testify in their case in chief, allow you to testify. 

Once you testify in a certain way, then 

[Colten] is going to say, “Well, we have witnesses.”

You’ll say, “Wait, those witnesses weren’t 

disclosed to me.”

And then he’ll say, “These are for rebuttal 

purposes or impeachment purposes only. We 

didn’t have to disclose impeachment evidence,”

and so, really, it turns out to be harmless. It’s just a 

matter of the order in which they call their 

witnesses.

And in calling you first and having you 

testify first, then they bring in people [such as] a 

private investigator, your daughter or whoever 

that would be in the nature of impeachment 

evidence, which they are not required to disclose 

under Rule 26.

So the Court finds that while this does 

appear to be a violation of . . . or I’ll say could be a 
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violation of Rule 26(a)(2) and Rule 26.1(b), the 

violation would be harmless in that they’re not 

required under Rule 26 or 26.1(b) to disclose 

impeachment evidence that was retained for 

impeachment purposes only.

¶4 And a few months after trial, at a hearing on Kathy’s 

motion to amend the court’s findings, the court added to its 

harmlessness finding:

As a party and as a person involved in a 

case, to . . . disclose [Kathy] as a potential witness 

certainly is helpful, but what is she going to do to 

then go find out from herself what her testimony 

will be and to find out from herself what her 

documents may be? She’s already got those. She 

should have that knowledge. That . . . is 

harmless. . . . I think this a prime and premium 

example of harmlessness, because her attempts to 

depose herself or subpoena her own documents or 

anything like that, that . . . just doesn’t make sense 

at all why that is necessary. 

. . . . She had . . . at least 28 days to prepare 

for the fact that she was going to be a witness. 

I believe . . . the [pretrial disclosures filed on 

July 29, 2019,] also disclosed the impeachment 

witnesses that were going to testify. So it’s not like 

she didn’t know that either. 

So all of the purposes of Rule 26 were 

served under these circumstances[.]

¶5 At trial, Colten first called Kathy to testify. She testified 

that during the time in question, Daughter and other family 

members lived with her. She stated that she and Boyfriend had 
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been dating for approximately two years. Although she did 

affirm that Boyfriend kept a few dress shirts and a pair of 

running shoes at her house, and that he occasionally spent the 

night there, she denied that he had ever lived in the home with 

her. Colten then presented Kathy with photographs taken from 

inside her home. One photograph showed a carburetor that 

Boyfriend had designed and a plaque that he had received as an 

award for it. Kathy explained that Boyfriend had gifted both to 

her. The second photograph depicted a laptop and a pair of 

glasses. Kathy claimed that the laptop was Boyfriend’s that he let 

her borrow and that the glasses belonged to her. The next 

photograph was taken in her bathroom and showed shaving 

cream, a razor, and a bag. Kathy claimed that the shaving cream 

and razor were hers but the bag belonged to Boyfriend, which 

contained “his stuff to stay overnight.” Colten then showed 

Kathy multiple photos of a computer, her bedroom, and a spare 

bedroom. Kathy claimed that most of the items depicted in the 

photographs belonged to her or her children, with the exception 

of the dress shirts and running shoes that belonged to Boyfriend. 

Throughout Kathy’s testimony, she continued to aver that, while 

Boyfriend obviously spent time at the house, he did not live 

there. 

¶6 Colten next called himself as a witness. He testified that 

when he went to pick up his children from Kathy’s home, they 

“would tell me that [Boyfriend] was there the whole time that 

they would stay there.” Colten also testified that Boyfriend’s car 

would be at Kathy’s house a majority of the time he came by to 

pick them up. Colten then offered into evidence a mailed 

envelope, addressed to Boyfriend at Kathy’s address, that he 

found in a garbage can in front of Kathy’s house. Kathy objected 

to this evidence, claiming that she was not made aware of the 

envelope when Colten identified exhibits in his pretrial 

disclosures. The court overruled her objection, stating, “For 

impeachment purposes those things are not required to be 

disclosed.”
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¶7 Colten next called Daughter to testify. She stated that 

Boyfriend was living with Kathy in the home, that he kept his 

personal belongings in the home, that he had a key to the home, 

and that he had complete access to the home at all times. She 

also claimed that Boyfriend slept in the same room as Kathy, 

gave Kathy money, and bought groceries. Daughter stated that 

she had taken the photographs that were shown to Kathy during 

Kathy’s testimony, and that the computer, clothes, and other 

items mostly belonged to Boyfriend and not to Kathy or to 

Kathy’s children, as Kathy had claimed. Finally, Daughter 

testified that Boyfriend spent approximately 95% of his nights at 

the home.

¶8 Colten’s final witness was a private investigator. He 

testified that over the course of the five days he spent surveilling 

the home, he witnessed Boyfriend carry groceries from his 

vehicle into the home, take tools from the garage and put them 

in his truck, have conversations with neighbors in which he 

presented himself as Kathy’s husband, enter the home in the 

evening and leave the next morning in different clothes, and 

undertake other actions indicative of Boyfriend living in the 

home. Colten then offered into evidence the investigator’s 

written report, which the court accepted.

¶9 Kathy called no witnesses of her own. The district court 

subsequently found that Kathy and Boyfriend had cohabitated

from January 2018 until at least November 2018, when Colten 

served Kathy with the petition to terminate alimony.

Accordingly, the court terminated Colten’s alimony obligations

retroactive to January 2018 and entered judgment against Kathy

in the amount of the excess alimony Colten had paid since that 

time.

¶10 Kathy appeals. 
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ISSUE AND STANDARD OF REVIEW

¶11 Kathy contends that the district court erred in denying 

her motion to dismiss Colten’s petition to terminate alimony and 

bar all his witnesses as a sanction pursuant to rule 26(d)(4) of the 

Utah Rules of Civil Procedure.3 “We review a district court’s 

interpretation of our rules of civil procedure, precedent, and 

common law for correctness.” Keystone Ins. Agency v. Inside Ins., 

2019 UT 20, ¶ 12, 445 P.3d 434. But in reviewing a court’s 

determination with respect to harmlessness and good cause, our 

review is necessarily deferential. This is because “a court’s 

decision in discovery matters is a discretionary call, and . . . we 

will affirm such decisions when the court’s discretion was not 

abused, even if we or another court might have made a different 

decision in the first instance.” Segota v. Young 180 Co., 2020 UT 

App 105, ¶ 22, 470 P.3d 479 (quotation simplified). Accordingly, 

we will reverse a court’s harmlessness determination “only if 

there is no reasonable basis for the district court’s decision.” See 

Berger v. Ogden Reg'l Med. Center, 2020 UT App 85, ¶ 15, 469 P.3d 

1127 (quotation simplified).

ANALYSIS

¶12 In relevant part, rule 26 of the Utah Rules of Civil 

Procedure requires parties to serve initial disclosures “without 

waiting for a discovery request.” Utah R. Civ. P. 26(a)(1). These 

disclosures must include “the name and, if known, the address 

and telephone number of . . . each individual likely to have 

 

3. Kathy also asserts that the district court erred in finding that 

she had cohabitated with Boyfriend. But because we hold that 

the court should have barred Colten’s evidence and dismissed 

his petition due to his failure to file initial disclosures, we have 

no occasion to address this issue.
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discoverable information supporting its claims or defenses, 

unless solely for impeachment . . . ; and . . . each fact witness the 

party may call in its case-in-chief and, except for an adverse 

party, a summary of the expected testimony.” Id. R. 26(a)(1)(A).

A party is further required to serve on the opposing party “a 

copy of all documents, data compilations, electronically stored 

information, and tangible things in the possession or control of 

the party that the party may offer in its case-in-chief.” Id. R. 

26(a)(1)(B). 

¶13 A plaintiff is required to make initial disclosures “within 

14 days after filing of the first answer to the complaint.” Id. R. 

26(a)(2)(A). If a party fails to serve these disclosures, “that party 

may not use the undisclosed witness, document or material at 

any hearing or trial unless the failure is harmless or the party 

shows good cause for the failure.” Id. R. 26(d)(4). In cases like the 

one now before us, “where initial disclosures were not provided 

at all,” a party faces an uphill battle to show harmlessness 

because otherwise it would shift “an unacceptable burden on the 

opposing party to closely parse the pleadings and discovery 

exchanged (if any) to decrypt which individuals even have 

discoverable information.” Hansen v. Kurry Jensen Props., 2021 

UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and 

Pohlman, J., concurring). See also Ollier v. Sweetwater Union High

School Dist., 768 F.3d 843, 863 (9th Cir. 2014) (“An adverse party 

should not have to guess which undisclosed witnesses may be 

called to testify.”), cited with approval in Hansen, 2021 UT App 54, 

¶ 44 n.12. 

And even in cases that do not involve 

“complicated” factual disputes, this burden may 

still be significant. As just one example, witnesses 

known to the opposing party may nevertheless 

speak to other individuals (unknown to the 

opposing party) about the operative facts of the 

case. These individuals would thus, unbeknownst 
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to the opposing party, have discoverable 

information and might even be crucial witnesses.

Hansen, 2021 UT App 54, ¶ 44 n.12 (internal citation omitted).

Thus, “a disclosing party who endeavors, by stratagem or

otherwise, to disclose as little as possible faces a significant risk

that the disclosure will be found insufficient and the evidence or

the witness may not be allowed. To minimize this risk,

disclosing parties should be liberally forthcoming rather than

minimally compliant and risk the possible consequences of

testimony exclusion.” RJW Media Inc. v. Heath, 2017 UT App 34, 

¶ 30, 392 P.3d 956 (quotation simplified).

¶14 Here, it is undisputed that Colten completely failed to file 

his rule 26 initial disclosures detailing the witnesses or the 

material supporting his claim, insofar as then in his possession, 

either when initially due or at any time thereafter. Thus, the

presumptive sanction was for his evidence to be barred from 

trial. See Utah R. Civ. P. 26(d)(4). But because the district court 

found this failure to be harmless, Colten was ultimately allowed 

to present all his evidence at trial. To come to this conclusion, the 

court made what is in essence a two-part ruling. First, it found 

that Colten’s failure to disclose Kathy as a case-in-chief witness

was harmless because she presumably knew what her testimony 

would be. Second, having found that this was harmless, it 

essentially piggybacked on that ruling and determined Colten 

did not have to disclose the remaining witnesses and evidence 

under rule 26’s impeachment exception. We disagree on both 

counts.

I. Kathy’s Testimony

¶15 Colten argues that the district court’s harmlessness ruling 

in regard to his calling Kathy as a witness was correct because “it 

is nonsensical to think that Kathy would need to depose or seek 

document production from herself” and because “[t]here were 
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many times throughout the history of the case where Kathy was 

put on notice that her alleged cohabitation was the only issue for 

trial.” All this, Colten argues, put Kathy “at absolutely no 

disadvantage by her not being listed on Colten’s initial 

disclosures.” We disagree. 

¶16 Colten and the district court both focus unduly on the fact 

that Kathy would know what her testimony would be. But both 

fail to recognize that if Colten had actually served his initial 

disclosures informing Kathy that she was the only witness on 

whom his case was based—and the court’s order assumes he 

had to disclose only Kathy—that disclosure could have 

completely altered Kathy’s legal strategy, including her decision 

on whether she should retain counsel. 

¶17 Knowing that Colten was going to make his case based on

her testimony would be quite instructive concerning Colten’s 

trial strategy or lack thereof. Having knowledge of this 

important fact early on, Kathy likely would have deposed Colten

or at least sent him interrogatories to ferret out how he believed 

her testimony would help him prove his case-in-chief, given the 

denial in her answer that she was cohabitating. See Saudi v.

Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003) (“The 

importance of . . . witness disclosures and the harms resulting 

from a failure to disclose need little elaboration. When one party 

does not disclose, the responding party cannot conduct 

necessary discovery, or prepare to respond to witnesses that 

have not been disclosed[.]”), cited with approval in Hansen v. Kurry

Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131

(Mortensen, J., and Pohlman, J., concurring). Early disclosure of 

Kathy’s pivotal role in Colten’s case-in-chief would have led 

Kathy to discover the “impeachment” witnesses and materials 

Colten had in reserve and through which he actually intended to

prove his case under the guise of impeaching Kathy’s testimony,

long before he made Kathy aware of this information in his 

pretrial disclosures just 28 days before trial.
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¶18 Thus, had Kathy been informed that she would be

Colten’s only case-in-chief witness,4 she would have been given 

a better opportunity to decide whether she needed to hire an 

attorney and investigate what Colten’s case really hinged on, 

better preparing herself for trial. Not being provided this 

information until 28 days before trial—months past the rule 26

deadline for initial disclosures—went against the purpose of rule 

26, “which is to preclude parties from trying to gain an 

advantage by offering ‘surprise’ testimony at trial that has not 

been [properly] disclosed.” Arreguin-Leon v. Hadco Constr. LLC, 

2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d 

927. See also Utah R. Civ. P. 26 advisory committee notes (“The 

intent of [initial disclosures] is to give the other side basic 

information concerning the subjects about which the witness is 

expected to testify at trial, so that the other side may determine 

the witness’s relative importance in the case, whether the 

witness should be interviewed or deposed, and whether 

additional documents or information concerning the witness 

should be sought.”). As we have explained, 

Disclosure of specific facts and opinions is required 

so that parties can make better informed choices 

about the discovery they want to undertake or, just 

as important, what discovery they want to forgo. 

More complete disclosures serve the beneficial 

purpose of sometimes giving the opposing party 

the confidence to not engage in further discovery. 

But this is only true if the potential for surprise is 

 

4. Given our perspective on the narrowness of the impeachment 

exception under rule 26, contrary to the district court’s 

assumptions, adequate initial disclosures would actually have 

included much more than just that Kathy would be called as a 

witness in Colten’s case-in-chief. See infra Section II.
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reduced by at least minimum compliance with 

the rule 26 disclosure requirements. 

RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956. 

While RJW Media dealt with disclosures about expert testimony, 

these policy considerations apply to all disclosures and to the

circumstances present in the instant case.

¶19 Essentially, Colten’s and the district court’s rationale 

would lead to the conclusion that it is always harmless to omit 

from initial disclosures the fact that the plaintiff plans to call the 

opposing party as a witness because that party will always know

their own testimony. But this approach essentially eviscerates

the rule that explicitly requires parties to designate the opposing 

party as a witness if they intend to call the opposing party in 

their case-in-chief at trial, albeit with a less extensive disclosure 

duty than with other witnesses. See Utah R. Civ. P. 26(a)(1)(A)(ii) 

(requiring parties to designate “each fact witness the party may 

call in its case-in-chief and, except for an adverse party, a 

summary of the expected testimony”). Ultimately, this rationale 

misses the point that an opposing party can be harmed in this 

situation. A party may well know the content of their own

testimony, but the fact that they will or will not be called as a 

witness by the other side in the other side’s case-in-chief 

undoubtedly will dictate how they prepare to prosecute or 

defend at trial. Thus, the district court exceeded its discretion in

determining that Colten’s failure to provide initial disclosures 

naming Kathy as his only case-in-chief witness was harmless,

and the court should have precluded Colten’s use of her 

testimony due to his clear violation of the rule.

¶20 This is not the end of the inquiry, however, because 

“when we determine that a trial court erred, we do not reverse 

unless there is a reasonable likelihood that a different result 

would have been reached absent the errors,” or, in other words,

we do not reverse unless the aggrieved party was prejudiced. Lee
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v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88 (quotation 

simplified). See also Utah R. Civ. P. 61 (“The court at every stage 

of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the 

parties.”). We need not belabor this analysis. It is perfectly clear 

that had the court excluded Kathy from testifying as Colten’s 

witness, it is certain that a different result would have been 

reached given that Colten’s strategy was to call Kathy and then 

prove his case by impeaching her testimony. Specifically, had the 

court precluded Colten from calling Kathy to testify, Colten 

would have had no testimony to impeach and he would have 

been unable to prove his case for lack of evidence. Thus, Kathy 

was prejudiced by the court’s failure to exclude her as a witness 

for Colten.

II. Remaining Evidence

¶21 Colten argues that the district court did not err in 

admitting his remaining evidence because rule 26 “does not 

require a party to disclose witnesses or evidence if it is solely 

used for impeachment.” See Utah R. Civ. P. 26(a)(1)(A)(i). Colten 

also asserts that because “Utah has not held that the ‘solely for 

impeachment’ language means that you can only present it 

when challenging a particular witness’s veracity or credibility 

. . . , the trial court ha[d] the discretion to use impeachment 

evidence to assist in establishing the core facts of a case.” We 

disagree and we reverse the court’s ruling concerning the 

remaining evidence on two grounds.

A. First Ground: Kathy’s Testimony

¶22 To be clear, in a technical sense, we need not reach the 

district court’s impeachment ruling because of the nature of its 

order regarding Colten’s ability to call Kathy as a witness.

Specifically, the court actually excluded Colten’s remaining 

witnesses and evidence from being used in his case-in-chief for 
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anything other than impeachment by reason of his failure to 

make his initial disclosures. Accordingly, under the court’s 

ruling, and had Kathy been precluded from testifying as she 

should have been, Colten would not have been able to present 

any of his remaining evidence because the court would allow it 

only for the purpose of impeaching Kathy. And because we have 

determined that the court exceeded its discretion in allowing 

Colten to call Kathy as a witness despite not having initially 

disclosed his plan to do so, it necessarily follows that none of 

Colten’s remaining witnesses and evidence should have been 

allowed. Because Kathy could not properly have been called,

there would have been no testimony to impeach. Kathy was thus

necessarily prejudiced because, without this evidence, Colten 

could not have proven his case, and the district court should 

have then dismissed his petition. See Lee v. Williams, 2018 UT 

App 54, ¶ 69, 420 P.3d 88. 

B. Second Ground: Limits of Impeachment Exception

¶23 We also reverse the district court’s ruling on the 

independent ground that, even if it was not error to allow Kathy 

to testify in Colten’s case-in-chief, the court misapplied the rules

of civil procedure in allowing Colten to present his remaining 

witnesses and documents as impeachment evidence. Regardless 

of whether Kathy should have been permitted to testify, the 

court still erred in allowing Colten’s remaining evidence under 

rule 26’s impeachment exception.5

 

5. Because we determine that the impeachment exception did not 

apply to Colten’s remaining witnesses and the documents and 

other tangible things he presented at trial, we do not address the 

additional argument Colten advances, i.e., that “the trial court 

ha[d] the discretion to use impeachment evidence to assist in 

establishing the core facts of a case.”
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¶24 Rule 26 states that 

(a)(1) . . . a party shall, without waiting for a 

discovery request, serve on the other parties:

(A) the name and, if known, the address and 

telephone number of:

(i) each individual likely to have 

discoverable information supporting 

its claims or defenses, unless solely 

for impeachment, identifying the 

subjects of the information; and

(ii) each fact witness the party may 

call in its case-in-chief and, except for 

an adverse party, a summary of the 

expected testimony;

(B) a copy of all documents, data 

compilations, electronically stored 

information, and tangible things in the 

possession or control of the party that the 

party may offer in its case-in-chief . . . .

Utah R. Civ. P. 26(a)(1). 

¶25 “When we interpret a procedural rule, we do so according 

to our general rules of statutory construction.” Arbogast Family

Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. 

Thus, “we start by examining the ordinary meaning or usually 

accepted interpretation.” Id. If we determine the language is

unambiguous, then the inquiry ends there. Pilot v. Hill, 2018 UT 

App 105, ¶ 11, 427 P.3d 508, aff'd, 2019 UT 10, 437 P.3d 362. Cf.

Amax Magnesium Corp. v. Utah State Tax Comm'n, 796 P.2d 1256, 

1258 (Utah 1990) (“[S]tatutory construction mandates that a 

statute be read according to its literal wording unless it would be 
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unreasonably confusing or inoperable.”). In undertaking this 

inquiry, we presume “that the words and phrases used were 

chosen carefully and advisedly.” Amax Magnesium Corp., 796 

P.2d at 1258.

¶26 Based on the plain language of rule 26, the “solely for 

impeachment” exception is found within subsection (a)(1)(A)(i), 

which addresses only “individual[s] likely to have discoverable 

information supporting [the party’s] claims or defenses.” Utah R.

Civ. P. 26(a)(1)(A)(i). This exception does not appear in 

subsections (a)(1)(A)(ii) or (a)(1)(B), which deal with witnesses 

and documents and other tangible things that a party plans on 

using in its case-in-chief. Thus, because we presume that the 

drafters of the rule used the words and phrases in rule 26 

“carefully and advisedly,” Amax Magnesium Corp., 796 P.2d at

1258, an impeachment exception cannot be read into subsections

(a)(1)(A)(ii) and (a)(1)(B) to allow for witnesses or documents

and tangible things a party plans to use in its case-in-chief to not 

be initially disclosed even if their use is focused on 

impeachment. Therefore, an analysis of whether a witness 

should have been disclosed turns initially on whether that 

witness will be called in a party’s case-in-chief or held in reserve 

as a possible rebuttal witness whose testimony is “solely for 

impeachment.”

¶27 This interpretation comports with the purpose of the rule 

as a whole, see id. (“A principal rule of statutory construction is 

that the terms of a statute should not be interpreted in a 

piecemeal fashion, but as a whole.”), which is to maximize 

disclosure “to preclude parties from trying to gain an advantage 

by offering ‘surprise’ testimony at trial that has not been 

[properly] disclosed,” see Arreguin-Leon v. Hadco Constr. LLC, 

2018 UT App 225, ¶ 24, 438 P.3d 25, aff'd, 2020 UT 59, 472 P.3d 

927. If we were to allow a party to forgo disclosing in initial 

disclosures the witnesses and documents it planned to use in its 

case-in-chief and then slip them in at trial under the 
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impeachment exception, then we would not be following the 

clear language of the rule, much less honoring its purpose.6

¶28 We first address the documents and tangible things the 

court allowed and then turn to the witnesses Colten was 

permitted to call at trial. 

1. Documents and Tangible Things

¶29 Once Colten filed his petition, under subsection (a)(1)(B)

any documents and tangible things in his possession that Colten 

intended to present in his case-in-chief were required to be 

disclosed to Kathy in initial disclosures. In making initial 

disclosures, no impeachment exception exists allowing such 

evidence not to be disclosed. Therefore, all the pictures Colten 

presented from inside Kathy’s home and the private 

investigator’s report should not have been allowed at trial 

because Colten failed to disclose any of it to Kathy in his initial 

disclosures.7 Utah R. Civ. P. 26(a)(1)(B); id. R. 26(d)(4).

 

6. This does not mean that substantive evidence can never be 

presented through impeachment witnesses. It simply means that 

if a party knows in advance that it wishes to present such 

evidence in its case-in-chief, it must be disclosed as required and 

cannot be sprung on the opposing party at trial, or even during 

pretrial disclosures, which come quite late in the course of 

litigation.

7. There is some confusion in the record regarding when Colten 

obtained the private investigator’s report. At a hearing before 

the district court, Colten asserted that he could not have 

included the report in his initial disclosures because he did not 

have the report at the time initial disclosures were due, i.e., 14 

days after Kathy filed her answer on November 8, 2018. See Utah 

(continued...)
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2. Witnesses

¶30 Colten, Daughter, and the private investigator were all 

witnesses Colten called as part of his case-in-chief for purposes 

of subsection (a)(1)(A)(i) of rule 26. They were not merely

“individual[s] likely to have discoverable information

supporting [his] claims” who had nothing to offer beyond 

impeachment evidence, which would make them exempt from 

disclosure under subsection (a)(1)(A)(ii). On the contrary, as 

witnesses used exclusively in Colten’s case-in-chief, their contact 

information and a summary of their expected testimony was 

required to be served on Kathy in initial disclosures. See id. R. 

26(a)(1)(A)(ii).

 

(...continued)

R. Civ. P. 26(a)(2)(A). This assertion is questionable given that 

the report is dated November 7, 2018. But this confusion is 

ultimately immaterial to our analysis because Colten had a 

continuing duty to disclose it as part of his initial disclosures, 

and Colten clearly had the report at some point soon after Kathy 

filed her answer. See Williams v. Anderson, 2017 UT App 91, ¶ 15, 

400 P.3d 1071 (“Parties . . . have a continuing obligation to 

supplement disclosures with ‘additional or correct information’

if they ‘learn[] that a disclosure or response is incomplete or 

incorrect in some important way’ and ‘if [the additional or

correct information] has not been made known to the other 

parties.’”) (alterations in original) (quoting Utah R. Civ. 

P. 26(d)(5)). And rule 26(d)(4)’s evidentiary exclusion sanction is 

equally applicable to a party who fails to supplement their initial 

disclosures with information that comes into their possession 

after the time period for filing their initial disclosures has 

passed. See Utah R. Civ. P. 26(d)(4) (stating that a party may not 

use undisclosed witnesses or information if they “fail[] to 

disclose or to supplement timely a disclosure”) (emphasis added).
Johansen v. Johansen

20200234-CA 19 2021 UT App 130

¶31 Colten’s trial strategy was to first call Kathy in his 

case-in-chief, and she categorically denied that she was 

cohabitating with Boyfriend. Continuing with his case-in-chief, 

Colten then called himself, Daughter, and the private 

investigator to testify that Kathy was, in fact, cohabitating with 

Boyfriend.8 The court allowed these witnesses to testify in 

Colten’s case-in-chief even though they had not been disclosed 

in initial disclosures because it ruled that they were used solely 

for impeaching Kathy’s testimony and did not have to be 

disclosed under subsection (a)(1)(A)(i). This reasoning was 

flawed because this subsection’s “solely for impeachment”

exception did not properly come into play.9 While these 

 

8. The district court labeled these witnesses as rebuttal or 

impeachment witnesses. But whether their testimony was for 

impeachment or not, they were still part of Colten’s case-in-chief 

as Colten called them immediately after Kathy testified to 

establish Kathy’s cohabitation before resting his case. 

9. Subsection (a)(1)(A)(i)’s “solely for impeachment” exception is 

applicable only in the much more limited trial context when 

evidence presented by the opposing party takes an unexpected 

turn and the party wishes to impeach that testimony on rebuttal 

with individuals it knew likely had discoverable information but 

planned to use only if they were needed to rebut certain 

testimony, i.e., the individuals were not ones the party intended 

to call in its case-in-chief. Take, for example, a medical 

malpractice case brought against a doctor by a plaintiff. Before 

trial, the parties serve their initial disclosures and conduct 

discovery, and all that information indicates that the doctor had 

one nurse assisting during the procedure. But, at trial, the 

doctor’s story changes, and the doctor testifies that there were

two nurses assisting. To impeach that testimony, the plaintiff 

could then present testimony from a nurse that plaintiff had 

contacted previously, but that plaintiff had not disclosed in 

(continued...)
Johansen v. Johansen

20200234-CA 20 2021 UT App 130

witnesses may have been impeaching Kathy’s testimony, they 

were still called in Colten’s case-in-chief, before Kathy presented 

any evidence in her defense, and were thus fact witnesses Colten 

intended to call in his case-in-chief for purposes of subsection 

(a)(1)(A)(ii), thus requiring that they be disclosed in initial 

disclosures. This is borne out by the fact that had Colten simply 

called Kathy in his case-in-chief and then rested, his case would 

have been dismissed for lack of evidence. Rather, after he called 

Kathy to testify, he continued his presentation of witnesses and 

called himself, Daughter, and the private investigator to 

establish that Kathy was cohabitating—all as part of his 

case-in-chief.

¶32 Based on the plain language of rule 26, the district court 

erred in allowing Colten to call any of his witnesses or to present 

the photographs and investigator’s report because it was all used 

in Colten’s case-in-chief and was required to be disclosed in 

 

(...continued)

initial disclosures, to testify that on this occasion, the doctor had 

only one nurse assisting in the relevant procedure. In this 

situation, the impeachment witness would qualify as a witness 

under subsection (a)(1)(A)(i) because the witness was not used in 

the plaintiff’s case-in-chief but rather was, for purposes of initial 

disclosures, just an “individual likely to have discoverable 

information” that was used “solely” to impeach the doctor’s 

testimony. Utah R. Civ. P. 26(a)(1)(A)(i). This is not the case here. 

Rather, Colten knew from the beginning that he, Daughter, and 

the private investigator were critical to his case-in-chief and 

were not simply individuals with discoverable information who 

would be used, if at all, solely to impeach Kathy because,

without them, his case could not be proven. Colten always 

intended to call them in his case-in-chief, and he was therefore 

required to identify them in his initial disclosures. Id. R.

26(a)(1)(A)(ii).
Johansen v. Johansen

20200234-CA 21 2021 UT App 130

initial disclosures pursuant to subsections (a)(1)(A)(ii) and 

(a)(1)(B). Yet, the court essentially allowed Colten to present his 

entire case-in-chief under subsection (a)(1)(A)(i)’s impeachment 

exception, which is an incorrect use of that extremely limited 

exception, constituting reversible error.10 Because Colten was 

required to serve his initial disclosures detailing this information

and failed to do so, Colten has to show that such failure was 

harmless to Kathy or that his failure to disclose was a result of 

good cause. See id. R. 26(d)(4). He has not made that showing,

and Kathy was prejudiced by the district court’s erroneous 

ruling because without the evidence Colten presented during his 

case-in-chief, he could not have proven that Kathy cohabited 

with Boyfriend. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 

P.3d 88.

CONCLUSION

¶33 The district court erred in allowing Colten to call his 

witnesses and present his documents at trial. Kathy was harmed 

 

10. This result may seem harsh, but as this court recently stated, 

if litigants “are tempted to play fast and loose with our 

discovery rules,” then they run the risk of losing it all. Hansen v.

Kurry Jensen Props., 2021 UT App 54, ¶ 49, 493 P.3d 1131

(Mortensen, J., and Pohlman, J., concurring). And the fact that 

we sometimes uphold a district court’s ruling in this regard 

should “offer no solace or refuge” to parties if they determine to 

ignore the rules. See id. Our discovery rules are written to be 

followed, and if parties determine that they want to skirt around 

them, then let them be warned once more that they “face[] a 

significant risk that [an untimely, inadequate, or skipped] 

disclosure will be found insufficient and the evidence or the 

witness may not be allowed.” See RJW Media Inc. v. Heath, 2017 

UT App 34, ¶ 30, 392 P.3d 956.
Johansen v. Johansen

20200234-CA 22 2021 UT App 130

by not being informed in the required initial disclosures that she 

would be called as a witness by Colten in his case-in-chief, and 

the court misapplied rule 26 of the Utah Rules of Civil Procedure 

in allowing Colten’s remaining witnesses to testify under the 

“solely for impeachment” exception because they were witnesses 

used in Colten’s case-in-chief. The court also erred in allowing 

Colten to present any of his documents and tangible things

under the inapplicable impeachment exception. We therefore 

vacate the judgment against Kathy and remand with instructions 

to dismiss Colten’s petition to terminate alimony.