ORDER GRANTING PLAINTIFFS' MOTION IN PART TO COMPEL DEFENDANT TO PRODUCE DAVID NORRIS AT TRIAL, OR ALTERNATIVE RELIEF, AND REQUEST FOR EXPEDITED RULING

CHRISTINE M. ARGUELLO, District Judge.

This matter is before the Court on Plaintiff EEOC's and Plaintiff-Intervenors (Plaintiffs') Motion to Compel Defendant to Produce David Norris at Trial, Or Alternative Relief, and Request for Expedited Ruling. (Doc. # 212.) For the reasons provided below, the Court grants the instant Motion in part.

The instant Motion indicates that Defendant Jetstream Ground Services (Jetstream) informed Plaintiffs' counsel on March 4, 2016, just a little over one month before a jury trial is set to commence in this case, that it "cannot guarantee" the attendance of witness David Norris at trial.1 This is despite the fact that Mr. Norris was included in Defendant's "will-call" witness list as a "witness[] who will be present at trial" on the Final Pretrial Order governing this case,2 entered almost a year ago, on May 12, 2015 (he also appeared on Plaintiffs' "may-call" witness list) (Doc. # 147 at 24, 25) (emphasis added). Defendants have provided no explanation as to why Mr. Norris suddenly will not attend. (See Doc. # 220.) Accordingly, the instant Motion requests that the Court compel his presence at trial, or, in the alternative, either allow Plaintiffs to take a deposition in advance of trial (to be shown at trial) or order Mr. Norris to testify during trial via remote, contemporaneous transmission. (Doc. # 212 at 1.)

Although the parties hotly contest the actual extent of Mr. Norris' alleged role in the hiring and decision-making process in the instant case, a few crucial facts are not in dispute, to wit: (1) Mr. Norris is the Vice-President and co-owner of a majority of Jetstream, and he still owns and works for Jetstream (Doc. # 212-1); (2) Defendant's own attorneys note that "the central dispute in the in the instant case" is Jetstream's motives for its decision not to hire Plaintiffs (Doc. # 220 at 3); (3) Plaintiffs wore headscarves during their interviews; (4) Mr. Norris interviewed at least three of the Plaintiffs who were not hired by Jetstream, at least in part because — as JetStream itself explained (at least at one point in this lawsuit)3 — Plaintiffs purportedly did not perform very well in their interviews with Mr. Norris, specifically:

(Doc. # 84-6 at 2-3) (emphasis added); (5) Mr. Norris is alleged to have made derogatory comments about Muslim women who wear hijabs to multiple JetStream employees, including telling employee Michael Maina that such women "should be fired because they looked like `terrorists,'" and employee Brenda Holan that he "`did not care if the reason [for wearing hijabs] was `religion' or not. Female cabin-cleaners would not be allowed to wear headscarves, `no ifs, ands, or buts,' and he wanted `none of this headscarf garbage. We're not putting up with any of that.'" (Doc. ## 117-14, ¶¶ 1-2, 10-11; 117-15 ¶¶ 16, 17, 19); (6) Plaintiffs did not depose Mr. Norris about these derogatory statements at least in part because they only found out about them (or were only able to obtain declarations about them) after Mr. Norris' deposition;4 (7) Mr. Norris currently lives in Florida and has lived there continuously throughout the course of this litigation (as such, he lives more than 100 miles from the District of Colorado's courthouse); and (8) Defendants have not sought leave to amend the Final Pretrial Order to remove Mr. Norris as a "will-call" witness.

Although Plaintiffs point to two cases in which a district court outside of the Tenth Circuit utilized its inherent equitable power to compel a party witness to attend a trial, this Court does not believe, particularly in light of the 2013 amendments to Rule 45 of the Federal Rules of Civil Procedure, that it can grant the instant Motion on this basis alone.5 Additionally, perhaps because this particular litigation tactic at least appears to be seldom used, the Court was unable to find a case in the Tenth Circuit that was directly on point after the 2013 Amendments to the Rules (i.e., a case in which a party lists a witness as a "will-call" witness in the final pretrial order and, after the discovery deadline passes, informs the other party, approximately a month before trial, that it may not, in fact, produce the witness).

Nevertheless, the Court finds the principles of law guiding proposed amendments to pretrial orders to be especially helpful in analyzing the instant Motion. Specifically, because Mr. Norris was listed as a "will-call" witness on the Final Pretrial Order, JetStream's conduct in opposing the instant Motion to Compel is the procedural/theoretical equivalent of a de facto Motion to Amend the Pretrial Order to remove Mr. Norris as a witness from that Order, because the Court "interpret[s] the assertion of an issue not listed in the pretrial order6 as the equivalent of a formal motion to amend the order. . . ." See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1543 (10th Cir. 1996) (internal citation omitted, emphasis added); see also Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000) (citing Trierweiler, 90 F.3d at 1543, and holding that plaintiffs who sought to have an additional witness testify who was not listed on the pretrial order, despite not formally moving for amendment of the final pretrial order, were "effectively" moving for such amendment "by opposing the Defendants' in limine motion, eliciting Eckert's testimony, and opposing the Defendants' motion to strike that testimony as beyond the scope of the [Final] Pretrial Order.")

It is well established that unless the Court modifies its pretrial order, the parties are "bound to its contents and may not contradict its terms." Prager v. Campbell Cnty. Mem'l Hosp., 731 F.3d 1046, 1056 (10th Cir. 2013) (citing Perry v. Winspur, 782 F.2d 893, 894 (10th Cir. 1986)). "This rule, of course, applies to those portions of pretrial orders which list the witnesses and describe the testimony each party may use." Id. (emphasis added). As the Tenth Circuit has explained, "[t]he preparation of a [final] pretrial order requires careful attention and review by the parties and their attorneys," and any last-minute revisions "deprive[] one's adversary of fair notice, possibly discovery, and the opportunity for motion practice, and is subject to abuse by those who employ a sporting theory of justice." Wilson v. Muckala, 303 F.3d 1207, 1215-16 (10th Cir. 2002). Rule 16(e) of the Federal Rules of Civil Procedure allows the Court to modify a final pretrial order, but it may do so "only to prevent manifest injustice." Although such a standard is not entirely inflexible, Rule 16's "laudable" purpose is "to avoid surprise, not foment it." Wilson, 303 F.3d at 1216 (emphasis added) (citing Clark v. Pennsylvania R.R. Co., 328 F.2d 591, 594 (2d Cir. 1964) (noting that the purpose of Rule 16 is to replace "the old sporting theory of justice" with a policy of "putting the cards on the table")).

The Tenth Circuit reviews a district court's decision to deny an amendment to a pretrial order for an abuse of discretion. See Koch, 203 F.3d at 1222. In doing so, it considers the following factors: "(1) prejudice or surprise to the party opposing trial of the issue; (2) the ability of that party to cure any prejudice; (3) disruption to the orderly and efficient trial of the case by inclusion of the new issue; and (4) bad faith by the party seeking to modify the order." Id. That court also considers whether an amendment to the pretrial order was formally and timely requested. See id.

Needless to say, these factors, as applied with slight modifications to the circumstances of the case at bar, all weigh against JetStream here. First, Plaintiffs are extremely prejudiced by this late-breaking development. Mr. Norris has information about an incredibly important aspect (if not the most important aspect) of Plaintiffs' case. However, not only were Plaintiffs only informed that Jetstream could not "guarantee" Mr. Norris' appearance just barely over a month before trial is set to begin in this matter and after the discovery deadline had already passed, they also were surprised by such a development, given Defendant's implicit assurances that it would produce Mr. Norris at trial (he was, after all, listed as a "will-call," not a "may-call" witness or a witness who may "voluntarily absent himself from trial").

Second, and relatedly, Plaintiffs' ability to cure this prejudice is markedly limited here. Although Jetstream asserts that Plaintiffs should be able to use Mr. Norris' prior videotaped deposition in lieu of live testimony, as previously discussed, it is clear that some rather critical "building blocks" of Plaintiffs' circumstantial case of JetStream's discriminatory motive against Plaintiffs include Mr. Norris' allegedly discriminatory statements about Muslims — and it is undisputed that Plaintiffs were not able to depose Mr. Norris about these statements, such that showing his existing deposition testimony to the jury would not cure this prejudice, as Plaintiffs obviously cannot cross-examine a videotape.7 For these same reasons, the trial would be significantly disrupted by Mr. Norris' absence. Additionally, Mr. Norris is a very important witness for both Plaintiffs and Defendants in this matter — particularly because Title VII permits a jury to consider whether an employer's explanations for an adverse action have changed in determining the credibility of its explanation, and JetStream has, at least at one point in the course of this litigation, indicated that Mr. Norris' interviews with Plaintiffs played at least some role in its decision not to hire them, even if they now disclaim this explanation. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (explaining that proof that a defendant's explanation for its adverse action is unworthy of credence is "one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . . In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose"); Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007) (A plaintiff shows pretext by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence").

Finally, although the Court cannot definitively opine regarding the bad faith of Defendant's counsel, two items are of note. First, JetStream only informed Plaintiffs' counsel that Mr. Norris "may voluntarily decline to appear for trial" (Doc. # 220 at 5) just over a month before trial begins (despite the closure of discovery and his inclusion as a "will-call" witness for Defendant in the Final Pretrial Order). Second, JetStream did not formally move for an amendment to the Final Pretrial Order. This kind of conduct at the very least smacks of gamesmanship and the kind of "old sporting theory of justice" that Rule 16(e) is specifically designed to prevent. See Clark, 328 F.2d at 594.

For all of the above-mentioned reasons — particularly because, given the timing of his deposition, Plaintiffs could not adequately cross-examine Mr. Norris about either (1) JetStream's reasoning for the adverse actions it took against them or (2) derogatory statements Mr. Norris allegedly made to other JetStream employees, the Court does not believe that amending the final pretrial order to remove Mr. Norris as a witness is in the interests of justice. See Fed. R. Civ. P. 16(e) (the Court may modify a final pretrial order "only to prevent manifest injustice.") At the same time, Plaintiffs have identified no authority (and the Court has found none) that would allow the Court to force Mr. Norris to attend trial against his will in Denver.

Accordingly, the Court ORDERS that Plaintiffs' Motion to Compel Defendant to Produce David Norris at Trial, Or Alternative Relief, and Request for Expedited Ruling (Doc. # 212) is GRANTED in part. It is

FURTHER ORDERED that if Defendants refuse to assure Mr. Norris' presence at trial in Denver, Plaintiffs are permitted to take another, pre-trial deposition of Mr. Norris. However, if Defendants assure the Court in writing, no later than Wednesday, March 30, 2016, that Mr. Norris will in fact be present in Denver to testify at trial, Plaintiffs will not be permitted to take this deposition.8 It is

FURTHER ORDERED that Defendant's Motion to Strike Plaintiffs' Reply (Doc. # 227) is hereby DENIED AS MOOT because the Court did not need to consider Plaintiffs' Reply in deciding this Motion.9