IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

Magistrate Judge Kathleen M. Tafoya

Civil Action No. 11BcvB02369BPABBKMT 

LARRY SIPES, 

Plaintiff, 

v. 

ALLSTATE INDEMNITY COMPANY, an Illinois corporation, 

Defendant. 

ORDER 

 This matter is before the court on “Plaintiff’s Motion to Reopen Discovery to Conduct a 

Discovery Deposition of Allstate Witness Rand Smith” [Doc. No. 182] filed September 24, 2013. 

“Defendant’s Response to Plaintiff’s Motion to Reopen Discovery to Conduct a Discovery 

Deposition of Allstate Witness Rand Smith (Doc. No. 182)” was filed on October 7, 2013. [Doc. 

No. 187.] 

 Forty-two days preceding trial, in a case which was filed over two years ago and for which 

discovery has been closed for over a year, Plaintiff moves to take the last minute deposition of one 

of Defendant’s employees, a supervisory adjuster named Rand Smith. As grounds, Plaintiff 

states that because he took the depositions of two other of Defendant’s adjusters, Stephanie 

Littleton and Lori Kidwell, he determined that the deposition of Rand Smith, “who supervised 

Stephanie Littleton and Lori Kidwell” (Mot. ¶ 10), was unnecessary. (Mot. ¶ 11.) Now, because 

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both Ms. Kidwell and Ms. Littleton1 have been listed on Allstate’s Witness List as “may call” 

witnesses and Rand Smith has been listed as a “will call” witness, Plaintiff is justified in taking a 

last minute deposition of Mr. Smith. 

 Rand Smith was the second name listed in Allstate’s initial disclosures as a person “likely 

to have discoverable information that the disclosing party may use to support its claims or 

defenses.” (Resp., Ex. A. at 1.) Rand Smith appeared on Allstate’s first Final Pretrial Order 

[Doc. No. 63 filed December 3, 2012] and the Amended Final Pretrial Order [Doc. No. 109, filed 

April 23, 2013] as a will call witness. Twice Mr. Smith appeared as a may call witness [Doc. No. 

132 filed May 23, 2013 and Doc. No. 149 filed June 3, 2013] and most recently has made his third 

appearance as a will call witness on Allstate’s Trial Witness List [Doc. No. 180 filed Sept. 16, 

2013]. No witness list has ever been propounded by Allstate in this case that did not include Rand 

Smith. Testimony was elicited by Plaintiff from both Ms. Littleton and Ms. Kidwell during their 

depositions indicating that Rand Smith was a Special Investigative Unit adjuster with specialized 

knowledge about the case and that he oversaw the case file. (Resp. at 3-4.) Nonetheless, the 

Plaintiff determined not to take the deposition of Rand Smith until this twelfth hour request. 

 This court finds that there is no justification to re-open discovery for the purpose of taking 

Mr. Smith’s deposition at this late date and to do so would be prejudicial to the Defendant whose 

counsel would be interrupted in their trial preparation and strategy by this untimely request. 

 

 

1 Both are out of state witnesses. 

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 Therefore, it is ORDERED

“Plaintiff’s Motion to Reopen Discovery to Conduct a Discovery Deposition of Allstate 

Witness Rand Smith” [Doc. No. 182] is DENIED. 

Dated this 8th day of October, 2013. 

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