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discovery abuses by future litigants." Id. The burden is on the non -disclosing party to <br />establish that its failure to timely disclose was either substantially justified or harmless. Id. <br />B. SCC Should be Permitted to Supplement its Exhibits with Rebuttal Reports by <br />Huddleston -Berry and J.E. Stover & Associates, by May 1, 2017, as it deems <br />Appropriate. <br />Prior to the April 12, 2017 deadline for exchange of exhibits, and Fontanari's <br />subsequent production of the Walter Report and the GVC Report, SCC had no reason to <br />prepare or submit rebuttal expert opinions in anticipation of the Formal Hearing. Therefore, <br />it is justifiable that such rebuttals were not prepared or among the SCC Exhibits provided on <br />April 12, 2017. However, it is now appropriate that SCC's experts be permitted to respond <br />to the newly disclosed criticisms contained in the Walter Report and the GVC Report, and to <br />be permitted to testify and give evidence concerning those rebuttal responses, in support of <br />SCC's TR -69 Application. SCC will supplement its Exhibits with any necessary rebuttal <br />reports by May, 1, 2017, and hereby requests leave to do so. <br />C. If SCC is Not Permitted to supplement its Exhibits and Exhibit List, then MLRB <br />should Strike both the Walter Report and the GVC Report, and Preclude <br />Testimony by their Respective Authors. <br />Fontanari has been aware of and in possession of all prior reports by SCC's expert <br />witnesses since at least October of 2016. Nonetheless, Fontanari delayed disclosure of the <br />responsive opinions set forth in the Walter Report and the GVC Report until April 12, 2017, <br />the deadline to disclose its exhibits for the Formal Hearing. The Colorado Supreme Court <br />has held that if the failure to disclose evidence in a timely fashion will prejudice the opposing <br />party by denying that party an adequate opportunity to defend against the evidence, then the <br />.19 <br />