TCPA v. Young

23CA0891 TCPA v Young 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0891
El Paso County District Court No. 21CV31668
Honorable William B. Bain, Judge

TCPA Litigator List,

Plaintiff-Appellant,

v.

Adam Young; Tubmanburg Limited, a Bahamas corporation a/k/a Ringba; and
Ringba, LLC, a Delaware limited liability company,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE JOHNSON
Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Allen Vellone Wolf Helfrich & Factor P.C., Patrick D. Vellone, Matthew M. Wolf,
Vandana S. Koelsch, Jordan Factor, Denver, Colorado, for Plaintiff-Appellant

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Caitlin C. McHugh,
Denver, Colorado, for Defendants-Appellees
¶1 Plaintiff, TCPA Litigator List (plaintiff or the company), appeals

the district court’s order granting summary judgment in favor of

defendants, Adam Young (Young); Tubmanburg Limited, a/k/a

Ringba (Tubmanburg); and Ringba, LLC (collectively Ringba or

defendants). Plaintiff also appeals the court’s two sanctions orders.

We affirm.

I. Background

¶2 Michael O’Hare (O’Hare) created the plaintiff company in

March 2019. Plaintiff’s business model compiles and tracks

telephone numbers of individuals who are likely to file lawsuits

under the Telephone Consumer Protection Act (the Act). The

company has a subscription service that allows subscribers to

scrub their telephone lists by removing those names who, if called

by the subscriber, may initiate a lawsuit.

¶3 Young founded and is the current CEO of Ringba.

Tubmanburg was Ringba’s owner until January 1, 2021. Ringba is

an inbound call tracking service. In October 2019, Ringba began to

contemplate incorporating a scrubbing service that also included

names of those who might file a lawsuit under the Act. The product

1
would be an ancillary service to other analytic and tracking services

Ringba already provided. To accomplish this, Ringba investigated

the possibility of outsourcing this service, creating its own software,

or purchasing an existing organization dedicated to this service. In

April 2020, Ringba was actively researching its options including

hiring a third-party consultant to develop a research strategy to

compile information.

¶4 As part of its research, Young purchased a subscription with

plaintiff on April 5, 2020 and downloaded the company’s Litigator

List (List). Five days later, an agent of Young’s contacted plaintiff to

discuss a possible acquisition of the company. Plaintiff and

Tubmanburg, Ringba’s owner at the time, signed a mutual

nondisclosure agreement (NDA) related to the discussions on April

10, 2020. Neither Young nor Ringba were signatories to the NDA.

After the discussions, Ringba offered to purchase the company for

$70,000. Plaintiff rejected the offer and there were no further

negotiations.

¶5 In July 2020, Ringba launched its own scrubbing service

called TCPA Shield that incorporated many of the names from

2
plaintiff’s List. After O’Hare found out about TCPA Shield, plaintiff

filed this lawsuit in October 2021. The company alleged that

Ringba manipulated the company’s website by changing the date

range to enable Young to download the complete List and use the

“private information and proprietary listings” for Ringba’s own

product in violation of the company’s terms and conditions.

¶6 Plaintiff asserted five claims for relief, with all except one

asserted against all defendants: (1) breach of contract (against

Tubmanburg); (2) unjust enrichment; (3) fraud; (4) civil conspiracy;

and (5) violation of the Colorado Uniform Trade Secrets Act.

¶7 Throughout the litigation, the parties had numerous discovery

disputes. Plaintiff retained Jason Frankovitz (Frankovitz) as a

computer programmer and software expert. Frankovitz opined in a

sworn declaration that Young downloaded the complete List by

bypassing the website interface “through direct manipulation of the

parameters in the URL” because the web application had a date

restriction feature.

¶8 Ringba filed a motion for summary judgment on all claims.

On May 8, 2023, the district court granted partial summary

3
judgment in favor of Ringba on all claims except the trade secrets

claim, concluding that “there is just enough evidence for a jury to

conclude that the list was a trade secret.”

¶9 Before and after the court granted summary judgment, there

were more discovery disputes. Most of them involved Ringba’s

repeated efforts to obtain plaintiff’s source code for the website as it

existed on April 5, 2020, when Young downloaded the List. To that

end, Ringba filed two motions to compel and two motions for

sanctions, including the sanctions motion terminating the case.

The court granted the motions following hearings that revealed (1) a

person could download the complete List from plaintiff’s website

without any manipulation of a date range restriction; (2) a person

could download the List from plaintiff’s website without having to

agree to the company’s terms and conditions; (3) plaintiff withheld

documents that showed that Young had “permission” to download

the List; and (4) plaintiff possessed substantial portions of this

information throughout litigation. As a result, the district court

terminated the case.

4
¶ 10 Plaintiff appeals contending that the district court (1) abused

its discretion by prohibiting Frankovitz from testifying and

terminating the action as a sanction and (2) erred by granting

summary judgment on its claims for breach of contract and fraud.1

II. Sanctions

¶ 11 Plaintiff asserted two theories for its claims. Both parties

retained experts who opined on the manipulation of website theory

and agreement to the terms and conditions theory. As discussed

above, plaintiff disclosed Frankovitz and defendants retained Dr.

Mark Gianturco (Gianturco). Both experts were deposed and both

were expected to testify at trial.

¶ 12 Plaintiff contends that the district court abused its discretion

when it terminated the action for belated discovery productions that

were timely, cumulative of other evidence, and made available to

and declined inspection by Ringba. We disagree.

1 Plaintiff appeals the summary judgment order on the breach of

contract and fraud claims. Because plaintiff does not reassert the
other claims on appeal, we deem them abandoned. See People v.
Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
5
A. Standard of Review and Applicable Law

¶ 13 We review a district court’s imposition of sanctions under

C.R.C.P. 37 for an abuse of discretion. Pinkstaff v. Black & Decker

(U.S.) Inc., 211 P.3d 698, 702 (Colo. 2009). A district court “abuses

its discretion if its decision is manifestly arbitrary, unreasonable, or

unfair,” id., or a misapplication of the law, Freedom Colo. Info., Inc.

v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d 892, 899 (Colo. 2008).

¶ 14 A party who fails to disclose information required by C.R.C.P.

26 without “substantial justification” may be subject to sanctions.

C.R.C.P. 37(c)(1). C.R.C.P. 37 provides a variety of sanctions a

district court may impose for noncompliance with disclosure.

Pinkstaff, 211 P.3d at 702. “Generally, sanctions under C.R.C.P. 37

‘should be applied in a manner that effectuates proportionality

between the sanction imposed and the culpability of the disobedient

party.’” Id. (quoting Kwik Way Stores, Inc. v. Caldwell, 745 P.2d

672, 677 (Colo. 1987)). The district court “must craft an

appropriate sanction by considering the complete range of

sanctions and weighing the sanction in light of the full record in the

case.” Nagy v. Dist. Ct., 762 P.2d 158, 161 (Colo. 1988).

6
¶ 15 Although district courts have “broad discretion” in imposing

sanctions, it is not unbounded. Beeghly v. Mack, 20 P.3d 610, 614

(Colo. 2001). The district court should “impose ‘the least severe

sanction that will ensure there is full compliance with [its] discovery

orders’” and is commensurate with the prejudice caused to the

opposing party. People v. Lee, 18 P.3d 192, 197 (Colo. 2001)

(quoting People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)).

¶ 16 The harshest sanction a court can impose is dismissal of the

case. Pinkstaff, 211 P.3d at 703. Dismissal is appropriate only in

the “extreme circumstances,” id., when there is “willful or deliberate

disobedience of discovery rules, flagrant disregard of a party’s

discovery obligations, or a substantial deviation from reasonable

care in complying with those obligations,” Prefer v. PharmNetRx,

LLC, 18 P.3d 844, 850 (Colo. App. 2000) (citing Nagy, 762 P.2d at

161). Compare Lewis v. J.C. Penney Co., 841 P.2d 385, 387 (Colo.

App. 1992) (holding that a failure to pay fees was not grounds for

dismissal where the failure was not willful or in bad faith), with

Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564,

571 (Colo. 2009) (Because “the nondisclosure in this case was so

7
extensive that the parties and the water court had virtually no

specific information,” it merited dismissal of the case.), and Sheid v.

Hewlett Packard, 826 P.2d 396, 399 (Colo. App. 1991) (dismissal

appropriate where the plaintiff refused to comply with three orders

directing the plaintiff to sign medical releases despite the tribunal’s

efforts to stay the proceedings pending compliance).

¶ 17 The district court’s findings of fact and witness credibility

determinations may not be disturbed on appeal unless they are

clearly erroneous and lack support in the record, and we may not

substitute our own findings of fact for those of the trial court.

M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-84 (Colo.

1994).

B. “Manipulation” of Website Evidence

¶ 18 Because we affirm the court’s termination of the case, we

could simply conclude that any error committed by the court in its

first sanction order is harmless. See C.A.R. 35(c) (“The appellate

court may disregard any error or defect not affecting the substantial

rights of the parties.”); see also People in Interest of R.J., 2019 COA

109, ¶ 22 (noting that an error affects a substantial right if it can be

8
said with fair assurance that it substantially influenced the

outcome of the case or impaired the basic fairness of the trial itself).

But the court’s findings and analysis in the first order support the

cumulative violations discussed in the second order.

1. The Court’s First Sanction Order

¶ 19 Ringba sought termination of the case on March 31, 2023,

because it needed the source code for plaintiff’s reconstructed April

5, 2020 website for testing and because plaintiff untimely produced

a January 22, 2020 call (January 2020 call) that plaintiff’s counsel

had in their possession since at least April 2022. The January

2020 call was between O’Hare and Yevgeni Malosev (Malosev), a key

computer programmer who worked for the company. In it, O’Hare

and Malosev discussed the “non-existence of any time constraints

to downloading the list,” which rebutted plaintiff’s theory that

Young manipulated the website to obtain the complete List. By the

time of the April 17 hearing, plaintiff had produced some of the

reconstructed website’s source code that apparently allowed Ringba

to test it.

9
¶ 20 At the April 17 discovery hearing, Gianturco and Malosev

conducted demonstrations of the website. Gianturco demonstrated

that he was able to download the complete List without selecting

any date range, manipulating any parameters, or agreeing to any

terms and conditions. Malosev performed his own demonstration of

the reconstructed website.

¶ 21 In an April 25, 2023 order, the court declined to terminate the

case but prohibited plaintiff’s expert, Frankovitz, from testifying at

trial. The court found plaintiff’s first counsel and the agent of

plaintiff’s first counsel,2 were grossly negligent in their explanations

as to why the January 2020 call was not produced to Ringba until

March 2023.

¶ 22 It also found Frankovitz “reckless in pressing the argument

and opinion that Mr. Young manipulated the website to download

the entire list.” The court laid out the timeline of events in detail:

2 Plaintiff had two sets of counsel, the second entering their

appearances in December 2022. The record does not include a
motion or notice indicating the withdrawal of plaintiff’s first
counsel.
10
• In April 2022, O’Hare complied with his discovery

obligation and turned over about fifteen boxes of

materials to his then counsel, which included the

January 2020 call.

• In July 2022, Frankovitz was given access to the website

with a “basic subscriber” account, which was supposedly

what Young had used when he accessed the website to

manipulate and download the complete List.

• In October 2022, Frankovitz notified plaintiff that he

could not replicate what Young had done because he

downloaded the complete List without any date

restriction and without manipulating the website.

• Later in October 2022, Frankovitz was sent new access

credentials that enabled him to replicate the date

restriction.

• Also in October 2022, O’Hare sent an email to Frankovitz

with a copy of the January 2020 call, but he represented

in the body of the email that, despite the discussion in

the call, Young’s “download was limited to 30 days.”

11
• The day after Frankovitz received O’Hare’s email

Frankovitz issued his expert report opining that Young

had manipulated the website to gain access to the

complete List.

• In January 2023, O’Hare testified at his deposition that

his “personal knowledge” of Young’s manipulation of the

website was based on Frankovitz’s report and a download

log that the court found showed nothing more than

Young conducting four downloads in four minutes.

• In March 2023, Malosev testified at his deposition that he

was “mistaken” in thinking there were functional time

restrictions on the April 5, 2020 version of the website

but gave no explanation as to why he made that error.

¶ 23 Based on these findings, the court concluded that “Mr.

Frankovitz, in forming his opinion, relied on [O’Hare’s] ‘memory’

about the time restrictions that existed on the site on April 5, 2020.

12
Meanwhile [O’Hare] testified that he has relied on Mr. Frankovitz’s

opinion in asserting that Mr. Young manipulated the website.”3

¶ 24 Given the computer demonstration and Frankovitz’s doubt

that he had access to the April 5, 2020 website for his tests, he

would “no longer be opining that Mr. Young manipulated the

website when he downloaded the entire list.” In prohibiting

Frankovitz from testifying altogether, though, the court reasoned,

“Mr. Frankovitz embraced his original opinion based on not much

more than the word of plaintiff’s principal and primary software

programmer, Mr. Malosev. I further find that he is now abandoning

this opinion, again based on the word of these two men.” The court

also ordered that plaintiff could not make mention at trial of the

April 5, 2020 website that plaintiff had reconstructed, both as a

sanction and because of its late disclosure.

3 The court erroneously referred to Young when, based on context,

it meant O’Hare. Although plaintiff disputes the characterization of
the testimony and actions, it does not dispute that the court meant
to refer to O’Hare.
13
2. Analysis

¶ 25 We conclude that the court’s sanction was supported by

evidence in the record and not an abuse of discretion.

¶ 26 Plaintiff raises four arguments contending the court abused its

discretion: (1) O’Hare reasonably relied on his computer

programmer in asserting that the April 5, 2020 website had a date

restriction component, and Frankovitz relied on other information

besides the January 2020 call; (2) by early January 2023, the

parties had abandoned plaintiff’s website manipulation theory; (3)

the court had made findings that the delay in updating Frankovitz’s

opinion had been substantially justified, and Ringba was not

prejudiced; and (4) the court’s sanction was too extreme, as it

should have allowed Frankovitz to testify to his modified opinion.

We are not persuaded by any of these arguments.

¶ 27 First, the court’s findings that Frankovitz relied solely on

O’Hare and Malosev for his manipulation opinion is supported by

the mere fact that Frankovitz was so uncomfortable with his

assertions, he withdrew his opinions on that basis. Both O’Hare

and Malosev testified at their depositions that the source code for

14
the April 5, 2020 website “doesn’t exist,” suggesting that Frankovitz

did not test the version of the website used by Young before issuing

his opinion in October 2022. And O’Hare’s reliance on his key

programmer, no matter how reasonable, is flawed. Plaintiff still

does not account for how Malosev was mistaken when he said there

was a date restriction at the time Young accessed the April 5, 2020

website.

¶ 28 Second, the April 5, 2020 source code remained relevant to the

terms and conditions theory, even if plaintiff had abandoned its

manipulation theory. At a January 2023 hearing, plaintiff’s counsel

said the manipulation evidence “shows motive, it shows intent, it

shows what Mr. Young was really after,” to which the court said,

“So, it’s totally relevant,” and plaintiff’s counsel responded

affirmatively. Ringba’s counsel said the April 5, 2020 source code

was relevant because “to input dates or not input dates and

download specific lists off of [plaintiff’s] website” would mean that

the “glitch [was] due to Plaintiff’s error, not something that [was] a

fault of Defendants” and because Ringba did not improperly access

15
the information, then this evidence would go to whether the List

was a trade secret.

¶ 29 Third, even though the court made findings in an April 2,

2023 order that plaintiff’s late disclosure of the April 5, 2020

reconstructed website was substantially justified, it was justified in

coming to the opposite conclusion in its April 23 order based on the

evidence and website demonstrations presented at the April 17

hearing. Between the late disclosures of the January 2020 call and

Ringba expending attorney fees and resources on its expert to

defend against Frankovitz’s withdrawn opinion, the court did not

abuse its discretion finding that plaintiff’s actions had prejudiced

Ringba. See Ranger Ins. Co. v. Dist. Ct., 647 P.2d 1229, 1231 (Colo.

1982) (the court has the inherent authority to revisit and reverse its

prior rulings).

¶ 30 Finally, even though there is case law that supports an expert

being allowed to testify despite an erroneous opinion, given that

Frankovitz had already withdrawn a significant portion of his

opinion and that the court had found that Frankovitz and O’Hare

were reckless in pursuing that opinion, the court’s sanction

16
foreclosing Frankovitz’s testimony altogether was not an abuse of

discretion. This is especially true when, as here, the reckless

finding was, in part, based on credibility assessments, to which we

are bound. See M.D.C./Wood, Inc., 866 P.2d at 1383-84. Thus, we

discern no abuse of discretion.

C. Termination of the Case

1. Additional Facts

¶ 31 After issuing the April 25 order, the court held a status

conference on May 4. Ringba again moved for sanctions against

plaintiff for the late disclosure of documents showing Young had

permission to download the List. The court ordered plaintiff to

explain in writing its continued belated disclosure of documents. In

response to the court’s order, plaintiff filed an explanation, which

attached additional unproduced screenshots of its web application

and made new arguments related to those documents.

¶ 32 After plaintiff’s production of the screenshots, Ringba

requested another hearing, which was held on May 11. At that

hearing, O’Hare admitted that he and Malosev had had access to

the original website’s backend source code (different from the

source code it provided for testing of the reconstructed website)
17
since the start of litigation. Gianturco testified that the screenshot

giving Young permission to download the List was a “smoking gun”

that would have “completely changed” his report and assisted in

developing his opinions.4 The district court issued an order the

next day, May 12, terminating the case in its entirety.

¶ 33 The court made extensive findings in its order as to why it

imposed the sanction to terminate the case. It found that based on

the testimony at the May 11 hearing and the newly disclosed

documents it reviewed, “plaintiff could no longer credibly claim that

it had disclosed all relevant evidence in their possession.” It also

concluded that plaintiff was producing discovery in “dribs and

drabs.” And most significant, it found that O’Hare and Malosev’s

violation of the discovery rules was “an attempt to increase their

chances of prevailing at trial.” The court acknowledged plaintiff had

legitimate grievances with Ringba using plaintiff’s List for Ringba’s

4 Gianturco had opined that because of limited information

provided by plaintiff, the company could not prove that Young
downloaded the complete List by manipulating the website. The
new evidence ostensibly would have changed his opinion to a more
definitive stance that Young had not manipulated the website when
downloading the complete List.
18
own product. But, the court reasoned, plaintiff had an obligation

under law to produce all relevant information, “even if that evidence

would help the other side,” and plaintiff had “until too late,

disregarded that law completely.” As a result, it terminated the

case.

2. Analysis

¶ 34 We acknowledge that dismissal is the severest sanction a court

can impose, and therefore, as mentioned, it should be done only

“for willful or deliberate disobedience of discovery rules, flagrant

disregard of a party’s discovery obligations, or a substantial

deviation from reasonable care in complying with those obligations.”

Prefer, 18 P.3d at 850. And while sanctions relating to discovery

should be narrowly tailored to advance resolution of the action on

the merits, “when faced with extensive nondisclosure and a

wholesale failure to prosecute a case, a trial court does not abuse

its discretion in dismissing the action.” Pinkstaff, 211 P.3d at 703.

¶ 35 Plaintiff contends the court erred by imposing the severest

sanction of dismissal because (1) the sanction is not supported by

clear and convincing evidence; (2) plaintiff produced all relevant

19
source code; (3) the late productions were cumulative of already

produced evidence; and (4) the “new” evidence was not a “smoking

gun” disproving plaintiff’s case. We reject them all.

¶ 36 First, plaintiff misstates the applicable standard of review.

Plaintiff cites Xyngular v. Schenkel, 890 F.3d 868, 873–74 (10th Cir.

2018), to contend that we review a court’s imposition of a sanction

for clear and convincing evidence. But we are not bound by the

federal courts’ standard, see Kovac v. Farmers Ins. Exch., 2017 COA

7M, ¶ 19, and our supreme court — to which we are bound — has

repeatedly reviewed discovery sanctions for an abuse of discretion,

see Warden v. Exempla, Inc., 2012 CO 74, ¶ 17. Finally, plaintiff

has not cited, nor are we aware of, any Colorado authority imposing

a clear and convincing evidence standard to a court’s imposition of

discovery sanctions.

¶ 37 Second, plaintiff’s description of the technical and complex

issues that arise when one party asks for the other side’s source

code, as discussed in Apple Inc. v. Samsung Elecs. Co., Ltd., No. C

11-1846 LHK (PSG), 2012 WL 1595784 (N.D. Cal. May 4, 2012)

(unpublished order), may be accurate. But in this circumstance, it

20
was not the technical issues (or entirely the technical issues) that

gave rise to plaintiff’s nondisclosure. The court found that plaintiff

had “ready access” to the information from the beginning of the

litigation. And it reasoned that Ringba’s discovery requests had

been “broad” and “all-inclusive” so that all information about the

website should have been turned over. At the May 11 hearing,

Gianturco said that he had not seen information like metadata

tables, configuration files, and backend source code, which should

have been produced. He explained that the source code for the

website is not sufficient to understand whether the restrictions

plaintiff claims it put on its website (i.e., a date restriction and

terms and condition agreement) were properly communicated to the

backend source code.

¶ 38 Third, the evidence was not cumulative of already produced

evidence as there was (1) the previously discussed January 2020

call; (2) the failure to provide the version of the “plugins” used by

plaintiff, as that would affect the functionality of the website at the

time of April 5, 2020; and (3) the “metadata tables and

configuration files” — which some or all were never produced —

21
that would have been needed to generate the screenshots that

Malosev provided and were discussed at the May 11 hearing. And

the continual late disclosures dramatically affected the case, such

as the January 2020 call that was so material that plaintiff’s expert

withdrew a significant portion of his opinion or the screenshots

evidencing that Young had permission to download the List. Such

dramatic effects on the course of litigation cannot be considered

cumulative of evidence that had already been produced.

¶ 39 Finally, plaintiff contends that the court abused its discretion

terminating the case because the belated disclosures, such as the

screenshots, were not a “smoking gun” disproving that Young could

not have downloaded the List from the website without agreeing to

the terms and conditions. But plaintiff’s contention misses the

point. Discovery sanctions under C.R.C.P. 37 do not require a

finding that plaintiff would have not prevailed on the merits.

Instead, the rules are intended to keep parties honest so that as

much relevant evidence as possible is part of coming to a resolution

of the dispute on the merits. The May 11 order directly addressed

this point.

22
¶ 40 The court had already found plaintiff’s first counsel grossly

negligent for failing to disclose the January 2020 call and had also

found O’Hare and Frankovitz reckless for opining that the date

restriction was in place and that Young manipulated the website on

April 5, 2020, without verification. The court reasoned, though,

that the completely nondisclosed material or belated productions

were often helpful to Ringba’s defense or could have significantly

narrowed the scope of the litigation, thereby avoiding time,

resources, and attorney fees. The district court sanctioned plaintiff

for late disclosures not once but twice because it found that plaintiff

had “ready access to all sorts of data directly relevant to this case”

and that “Mr. O’Hare and Mr. Malosev completely disregarded their

legally required discovery obligations until just recently in an

attempt to increase their chances of prevailing at trial.”

¶ 41 Therefore, on this record, we cannot say the court abused its

discretion by terminating plaintiff’s case.5

5 We acknowledge that plaintiff did not fail completely to prosecute

its case, which was part of the facts giving rise to the supreme court
affirming the dismissal in Cornelius v. River Ridge Ranch
Landowners Ass’n, 202 P.3d 564, 571 (Colo. 2009). But here,

23
III. Summary Judgment

¶ 42 Plaintiff contends that the district court erred by granting

summary judgment because (1) genuine issues of material fact

existed as to its breach of contract claim, and (2) the economic loss

rule did not bar its fraudulent misrepresentation claim. Even if the

court erred in granting summary judgment in Ringba’s favor on

both claims, the sanction order terminating the case renders any

error harmless.

¶ 43 There is no reason to believe that the court would have

decided against terminating the whole case if these two claims were

pending at the time of the May 11 hearing and May 12 order. The

court’s findings that plaintiff and plaintiff’s agents were reckless,

along with the findings of gross negligence of plaintiff’s first counsel,

the continual discovery violations, and the materiality of the

nondisclosed information or belated productions were just as

relevant to the breach of contract and fraudulent misrepresentation

claims. Plaintiff has provided no rationale for why the court would

where discovery was material and rebutted the very theories
plaintiff asserted, prosecuting the case without full disclosure can
be just as harmful as failing to prosecute the case.
24
not have also terminated these claims as part of its May 12 order

given the state of the record. Accordingly, even assuming the court

erred by granting summary judgment, any error was harmless. See

Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691, 697 (Colo.

App. 2006).

IV. Conclusion

¶ 44 The judgment is affirmed.

JUDGE FOX and JUDGE SCHOCK concur.

25