Full opinion text
MEMORANDUM AND ORDER MURGUIA, District Judge. Pending before the court are plaintiffs’ Motion to Stay (Doc. 115), defendants’ Conditional Motion to Stay (Doc. 130), defendants’ Motion to Dismiss Complaint (Doc. 66), plaintiffs’ Motion to File Supplement to Final Witness and Exhibit List (Doc. 165), defendants’ Motion to Strike Certain Exhibits Submitted in Support of Plaintiffs’ Motion for Partial Summary Judgment (Doc. 118), defendants’ Motion to Strike Affidavit of Cindy Harvel (Doc. 157), defendants’ Motion to Strike and Preclude Testimony of Witnesses Not Previously Disclosed (Doc. 57), plaintiffs’ Motion to Exclude Expert Testimony (Doc. 155), defendants’ Motion for Review of Magistrate’s Decision on Defendants’ Motion for Protective Order Regarding Plaintiffs’ Rule 30(b)(6) Notice (Doc. 119), plaintiffs’ Motion to Compel Answers to Plaintiffs’ First Interrogatories and First Request for Production (Doc. 137), defendants’ Application for Stay of Magistrate Judge’s Order (Doc. 128), defendants’ Motion for Summary Judgment (Doc. 90), and plaintiffs’ Motion for Partial Summary Judgment (Doc. 107). As set forth below, plaintiffs’ Motion to Stay (Doc. 115) is denied as moot. Defendants’ Conditional Motion to Stay (Doc. 130) is denied. Defendants’ Motion to Dismiss Complaint (Doc. 66) is granted in part and denied in part. Plaintiffs’ Motion to File Supplement to Final Witness and Exhibit List (Doc. 165) is denied. Defendants’ Motion to Strike Certain Exhibits Submitted in Support of Plaintiffs’ Motion for Partial Summary Judgment (Doc. 118) is granted in part and denied in part. Defendants’ Motion to Strike Affidavit of Cindy Harvel (Doc. 157) is denied. Defendants’ Motion to Strike and Preclude Testimony of Witnesses Not Previously Disclosed (Doc. 57) is granted in part and denied in part. Plaintiffs’ Motion to Exclude Expert Testimony (Doc.' 155) is denied. Defendants’ Motion for Review of Magistrate’s Decision on Defendants’ Motion for Protective Order Regarding Plaintiffs’ Rule 30(b)(6) Notice (Doc. 119) is denied. Plaintiffs’ Motion to Compel Answers to Plaintiffs’ First Interrogatories and First Request for Production (Doc. 137) is granted. Defendants’ Application for Stay of Magistrate Judge’s Order (Doc. 128) is denied. Defendants’ Motion for Summary Judgment (Doc. 90) is granted in part and denied in part. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 107) is granted in part and denied in part. I. Defendants’ Conditional Motion to Stay (Doc. 130) In their Conditional Motion to Stay, defendants request the court to stay all proceedings in this case (hereinafter “the federal court action”) pending resolution of a related case, No. 01-2448, styled Unified School District # 497 v. D.L., in Kansas state court (hereinafter “the state court action”). Defendants argue that this court should stay the case pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). For the reasons set forth below, defendants’ Conditional Motion to Stay is denied. A. Background Plaintiffs R.L. and J.L. are the minor children of plaintiff D.L. R.L. is autistic and J.L. has a milder learning disability. P.P. cohabitates with D.L., but P.P. has no legal relationship to either D.L. or the children. This case arises from plaintiffs’ allegations that defendants Unified School District # 497 (hereinafter “defendant U.S.D. #497”) and Dr. Douglas Eicher, a U.S.D # 497 administrator, failed to provide plaintiffs with access to educational services to which they were entitled. Furthermore, plaintiffs contend defendants improperly disclosed confidential information concerning the plaintiffs. Plaintiffs assert causes of action under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983; and Kansas state law for invasion of privacy. B. Procedural History On April 18, 2000, defendant U.S.D. # 497 filed a lawsuit against D.L. and P.P. in the District Court of Douglas County, Kansas. In its state court petition, defendant U.S.D. # 497 brought a state law fraud claim and sought a declaratory judgment pursuant to Kansas state law. The petition alleged that D.L.’s children were not residents of defendant U.S.D. #497, and sought to enjoin the children’s attendance of schools in the district. The petition further stated that D.L. had fraudulently enrolled her children in defendant U.S.D. # 497 and that P.P. aided and abetted that fraud. The defendants in the state court action, D.L. and P.P., did not raise counterclaims in that action. Rather, on September 29, 2000, D.L., individually and on behalf of her minor children, along with P.P., filed the instant federal court action against defendants, asserting federal statutory and constitutional claims and a state law claim for invasion of privacy. On September 7, 2001, D.L. and P.P., defendants in the state court action, filed a Notice of Removal of that action to this court. After finding that removal was improper, this court remanded that action, Case No. 01-2448, styled Unified School District No. 497 v. D.L., to the District Court of Douglas County, Kansas on May 30, 2002. Having discussed the relevant procedural history, the court turns to the merits of defendants’ Conditional Motion to Stay. II. Motion to Stay In their motion, defendants assert two bases upon which this court should abstain from ruling on the present case. First, defendants contend plaintiffs’ claims are related to the pending parallel action in Kansas state court, and that, as a result, the federal constitutional issues in this action could be mooted by the state court’s determination of Kansas state law—namely, the issue of whether the children reside within the boundaries of defendant U.S.D. #497 pursuant to Kan. Stat. Ann. § 72-1046. Second, defendants allege that abstention is proper under the Colorado River doctrine, because the Kansas state court action is a parallel proceeding and “considerations of ‘wise administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation,’ ” Colorado River, 424 U.S. at 817, 96 S.Ct. 1236 (internal citation omitted), counsel in favor of staying the federal court action. The court construes defendants’ first argument under the abstention doctrine established in Railroad Commission of Texas v. Pullman Co. Although defendants label this argument as under the “first prong of the Colorado River doctrine” (Def.’s Mot. at 6), the language defendants cite from the Colorado River opinion upon which their argument is based is the Supreme Court’s discussion of its prior rulings in Pullman and other cases that “[ajbstention is appropriate ‘in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.’ ” Colorado River, 424 U.S. at 814, 96 S.Ct. 1236 (citing Pullman, inter alia). A. Pullman Abstention The Pullman doctrine “permits a federal court to stay its hand in those instances where a federal constitutional claim is premised on an unsettled question of state law, whose determination by the state court might avoid or modify the constitutional issue.” Vinyard v. King, 655 F.2d 1016, 1018 (10th Cir.1981) (citing Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)). “Where resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law, abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.” Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). Abstention is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it,” and “can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to State court would clearly serve a countervailing interest.” Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). Pullman provides that a district court should abstain if three conditions are satisfied: (1) an uncertain issue of state law underlies the federal constitutional claim; (2) the state issues are amenable to interpretation by the state courts and such an interpretation would moot or substantially narrow the scope of the constitutional claim; and (3) an erroneous interpretation of the state law by the federal court would hinder important state law policies. Vinyard, 655 F.2d at 1018 (citing D’Iorio v. Del. County, 592 F.2d 681, 686 (3d Cir.1978)). First, the court must examine whether an unsettled issue of state law underlies plaintiffs’ constitutional claims in this action. Defendants request the court to enter an order staying the federal court action so that the state court may first interpret the Kansas law regarding residency for school attendance purposes under Kan. Stat. Ann. § 72-1046. Defendants contend that the application of § 72-1046 is an unsettled question of state law because no Kansas state appellate court has interpreted the statute, even though the Tenth Circuit and the District of Kansas have examined it. To determine whether abstention is proper, the court must examine whether § 72-1046 presents an issue of uncertain state law. [T]he doctrine of abstention “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to “guard, enforce, and protect every right granted or secured by the constitution of the United States.” Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973) (citations omitted). The Tenth Circuit has held that a state law is not unclear for purposes of Pullman abstention if the legal standard is not unsettled and the court’s task merely is to apply the law to a novel set of facts. See Vinyard, 655 F.2d at 1019-20. In Vinyard, the Tenth Circuit held that the district court erred by abstaining to allow the state court to determine whether, under Oklahoma law, the plaintiff had a property interest in continued employment arising from an implied year-to-year contract with her employer. The Tenth Circuit determined that the state law was not so unclear as to permit abstention. In reversing the district court, the Tenth Circuit stated that “the difficulty in determining the state law issue before the court ‘existed] not because of an unclear standard, but because the precise set of facts posed here [had] not been addressed by the Oklahoma Supreme Court.’ ” Id. at 1019. The court emphasized that it “[did] not in any way minimize how difficult it may be to apply the law to the facts,” but held that abstention was inappropriate on that basis, stating that “under such circumstances the district court may not abdicate its duty to adjudicate the matter.” Id. (citations omitted). In light of this guidance from the Tenth Circuit, this court believes that the Kansas law regarding residency of children for school attendance is not unsettled. Although there are no Kansas Supreme Court or Kansas Court of Appeals decisions specifically interpreting § 72-1046, there is authority supporting a conclusion that, under the statute, a child’s residence for school attendance purposes is determined by the residence of the child’s parent or a person acting as the parent. See Kan. Att’y Gen. Op. 97-60 (1997), 1997 WL 369371, at *3 (“The residence of a child for the purpose of determining where a child is able to attend school is determined by the location of the residence of the parent, or person acting as parent, of the child, rather than by the location where the child physically lives.”) (citing Kan. Stat. Ann. § 72-1046). Another opinion of the Kansas Attorney General confirms that when a child lives with his or her parents, the parents’ residence determines the child’s residence for school attendance purposes; when a child does not live with his or her parents, the residence of the person acting in some capacity as the child’s guardian determines the child’s residence for school attendance purposes. See Kan. Att’y Gen. Op. 94-3 (1994), at *3. Although an opinion of the Attorney General is neither conclusive nor binding on Kansas courts, it may be persuasive authority. See In re Lietz Constr. Co., 273 Kan. 890, 902, 47 P.3d 1275, 1285 (2002) (citation omitted). Further, the Tenth Circuit and District of Kansas opinions interpreting § 72-1046 have mirrored the Attorney General’s opinions. In Joshua W. v. Board of Education, 13 F.Supp.2d 1199 (D.Kan.1998) (Marten, J.), aff'd, 211 F.3d 1278, 2000 WL 525904 (10th Cir.2000), cert. denied, 531 U.S. 1071, 121 S.Ct. 760, 148 L.Ed.2d 662 (2001), the district court granted summary judgment to the defendant school district on plaintiffs’ IDEA claim, finding that IDEA did not obligate the district to provide a free and appropriate public education to plaintiff Joshua W. because he had ceased to become a resident of the district when both of his parents moved out of the district. Id. at 1203-05. The district court found that, pursuant to § 72-1046, plaintiff Joshua W. was not a resident of the defendant school district, because he “was neither living in or physically present in the District ... and was not living with a parent or person acting as a parent in the District.” Id. at 1203-04. In addition, the district court rejected plaintiffs’ assertion that plaintiff Joshua W. was a resident of the district because he had lived in the district with his sister, noting that the sister had not been a “person acting as a parent” under the statute. Id. at 1204. The Tenth Circuit affirmed, holding that “[ujnder Kansas law, residency with a parent who lives within the jurisdiction of the school district controls which school district is responsible for providing the free appropriate public education [under IDEA].” 211 F.3d 1278, 2000 WL 525904, at *2 (10th Cir.2000) (citing § 72-1046). Even though Kansas courts would not be bound to apply the decisions of federal courts interpreting state law, a state court likely would give at least some weight to the federal courts’ interpretation of § 72-1046 in Joshua W. Moreover, in contexts outside the issue of residency for school attendance purposes, there is a long line of Kansas cases holding that a child’s domicile is that of his or her parents. See, e.g., In re Robben, 188 Kan. 217, 220, 362 P.2d 29, 31-32 (1961). Further, the court does not believe that the language of § 72-1046 is unclear or ambiguous on its face. Even if the court must look to the residency of the children’s mother pursuant to § 77-201(23), in order to determine the children’s residency, the court does not believe the state of Kansas law regarding that statute is so unclear as to warrant abstention. Because the court does not believe that Kansas law is unsettled regarding § 72-1046, the court finds that the first element required for Pullman abstention in this case is lacking. Even if the second element required for Pullman abstention were present, that a state court’s interpretation of the issue could moot or substantially narrow the constitutional issues before this court, defendants have not attempted to establish the third element, that an erroneous interpretation by this court would hinder important state law policies. Accordingly, the court denies defendants’ Conditional Motion to Stay to the extent it is based on Pullman abstention. B. Colorado River Abstention Defendants also argue that the court should stay its decision in this case pursuant to the Colorado River doctrine. Colorado River recognized that concerns regarding judicial economy may warrant deferral of a federal suit when pending state litigation will resolve the issues presented in the federal case. 424 U.S. at 816-18, 96 S.Ct. 1236. Because the doctrine “springs from the desire for judicial economy, rather than from constitutional concerns about federal-state comity,” and “is an exception to our jurisdictional mandate from Congress,” it “may only be used when ‘the clearest of justifications ... warrants] dismissal.’ Thus, while Colorado River’s judicial economy goals allow a federal court to avoid the ‘virtually unflagging obligation ... to exercise the jurisdiction given [it],’ the appropriate circumstances for deferral under the Colorado River doctrine are ‘considerably more limited than the circumstances appropriate for abstention’ and must be ‘exceptional.’ ” Rienhardt v. Kelly, 164 F.3d 1296, 1303 (10th Cir.1999) (quoting Colorado River, 424 U.S. at 817-19, 96 S.Ct. 1236). To determine whether deferral is appropriate under Colorado River, the court must first examine “whether the state and federal proceedings are parallel.” Allen v. Bd. of Educ., 68 F.3d 401, 402 (10th Cir.1995). “ ‘Suits are parallel if substantially the same parties litigate substantially the same issues in different forums.’ The court should ‘examine the state proceedings as they actually exist to determine whether they are parallel to the federal proceedings,’ resolving any doubt ‘in favor of exercising federal jurisdiction.’ ” Id. at 403 (quoting Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir.1994)). Here, the parties in the federal and state court actions are “substantially the same.” In the federal court action, D.L., her two minor children, R.L. and J.L., and P.P., who resides with D.L., bring several claims against defendants U.S.D. #497 and Eicher, individually and in his official capacity. In the state court action, defendant U.S.D. # 497 brings a claim against D.L. and P.P. for fraud. Regarding whether “substantially the same” issues are being litigated in both suits, the court finds that the issue of whether the children resided within defendant U.S.D. # 497 is common to both the federal and state actions. However, any parallelism between the two actions relates only to the question of residency. In the federal action, plaintiffs allege several statutory and constitutional causes of action that are not present in the state action, whereas the state court action encompasses fraud claims based on Kansas state law. Whether there is enough overlap between the cases to warrant a finding that they are “parallel” is unclear. However, given the Tenth Circuit’s guidance that the court must resolve all doubts in favor of the exercise of federal jurisdiction, the court finds that the federal and state actions are not parallel. Although the issue of residency is common to both cases, the causes of action and issues raised differ significantly in the federal and state actions. Even if the actions were parallel within the meaning of Colorado River, the court finds that this case lacks the “exceptional circumstances” which must be present for abstention. To determine whether dismissal or an entry of stay is appropriate, a district court should consider the following factors: (1) [W]hether either court assumed jurisdiction over property; (2) whether the federal forum is inconvenient to the parties; (3) the avoidance of piecemeal litigation; (4) the order in which the courts obtained jurisdiction; (5) which forum’s substantive law governs the merits of the litigation; and (6) the adequacy of the state forum to protect the rights of the parties. Joseph Stowers Painting, Inc. v. A. Zahner Co., No. Civ. A. 99-2391-KHV, 2000 WL 210219, at *1 (D.Kan. Feb. 4, 2000) (citing Colorado River, 424 U.S. at 819, 96 S.Ct. 1236; Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23, 26, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). The test should be applied in a pragmatic, flexible manner. Shadwick v. Butler Nat’l Corp., 950 F.Supp. 302, 304 (D.Kan.1996). No single factor is determinative, and “[o]nly the clearest of justifications will warrant dismissal.” Colorado River, 424 U.S. at 818-819, 96 S.Ct. 1236. In the case at bar, the first factor is inapplicable because neither court has assumed jurisdiction over property. With regard to the second factor, the court concludes that litigating the federal action in Kansas City, Kansas, as opposed to Lawrence, Kansas, the venue for the state action, would pose only a slight inconvenience to the parties, if any. The third factor, the desirability of avoiding piecemeal litigation, weighs only slightly in favor of abstention. If the court denies the motion to stay, the parties will continue to litigate the same factual and legal issues regarding residency in both courts, risking inconsistent results and undermining judicial economy as to that issue. However, the federal and state actions involve several claims that do not overlap, and this court ultimately will rule on the constitutional and statutory claims regardless of when and how the state court determines the residency issue. That plaintiffs’ federal claims may remain even after the residency issue is determined weighs against a finding that a stay would avoid piecemeal litigation. See Moses H. Cone, 460 U.S. at 28, 103 S.Ct. 927 (finding that a stay under Colorado River “necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case”); Waddell & Reed Fin., Inc. v. Torchmark Corp., 180 F.Supp.2d 1235, 1242 (D.Kan.2001). Regarding the fourth factor, the court notes that the defendants in this action filed the state court action approximately five months prior to the date in which plaintiffs filed the instant action in federal court. However, courts should not measure priority “exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.” Moses H. Cone, 460 U.S. at 21-22, 103 S.Ct. 927. In this federal court action, discovery has closed, and the parties have fully briefed their motions for summary judgment, while the court has learned that the state court action has not progressed to a similar degree. Finally, upon consideration of the fifth factor, whether state or federal law governs the merits of the litigation, the court determines that Kansas state law will apply to the residency issue, while plaintiffs’ constitutional and statutory claims arise under federal law. With respect to the sixth factor, the court notes that state courts are entrusted with jurisdiction to hear plaintiffs’ federal statutory and constitutional claims. Applying these factors, the court finds that the “exceptional circumstances” which must exist for an entry of stay are lacking. The judicial economy concerns raised by the pendency of the residency issue in both the state and federal court actions are not so substantial as to weigh against the court’s “unflagging obligation” to exercise its jurisdiction. Defendants’ Conditional Motion to Stay is denied. As such, the court turns to the merits of the additional motions pending before the court. III. Defendants’ Motion to Dismiss Complaint (Doc. 66) Defendants request the court to enter an order, pursuant to District of Kansas Rule 16.2(d), dismissing plaintiffs’ complaint for failure to act in good faith in preparing the parties’ joint pretrial order. As set forth below, defendants’ motion is granted in part and denied in part. District of Kansas Rule 16.2(d) provides that if counsel “fail[s] to appear at the pretrial conference or fail[s] to comply in good faith with the provisions of the rule, the court may, in its discretion, enter a judgment of dismissal or default.” In the alternative, or in addition to dismissal, the court may impose any sanction provided for in Federal Rule of Civil Procedure 16(f) or District of Kansas Rule 11.1. D. Kan. R. 16.2(d). That rule incorporates D. Kan. R. 11.1(b)(4), which authorizes the court to order that costs, including attorney’s fees, may be imposed against any party, or its attorney, who has failed to comply with a local rule. In considering whether to award sanctions, the court “may consider whether a party’s failure was substantially justified or whether other circumstances make the imposition of sanctions inappropriate.” D. Kan. R. 11.1(c). The Scheduling Order of the court required the parties to submit a joint pretrial order no later than February 25, 2002. Defendants state that they contacted plaintiffs’ counsel through two telephone calls and one faxed letter to request that plaintiffs submit their drafting contributions to the order by February 21, 2002, so that the parties could finalize the order before the deadline. Defendants further contend plaintiffs’ counsel did not provide plaintiffs’ contribution to the pretrial order by February 21, 2002, or by the date upon which the pretrial order was due, February 25, 2002. Defendants’ attorneys submitted the pretrial order without plaintiffs’ drafting contributions. Plaintiffs respond by stating that plaintiffs’ counsel was involved in trial preparation in another case during the week the pretrial order was due, and that he was involved in trial preparation for his own divorce trial, which was scheduled to commence February 25, 2002. Plaintiffs’ counsel states he does not recall receiving either telephone message or the faxed letter from defendants’ counsel. Plaintiffs’ counsel states he spoke with W. Joseph Hatley, counsel for defendants, by telephone on February 25, 2002, and Mr. Hatley did not mention the proposed pretrial order. Plaintiffs claim that defendants’ counsel “made virtually no effort” to communicate, stating that “a single faxed letter and two telephone messages” did not constitute “a good faith effort to converse, confer, compare views, consult, and deliberate.” The court finds that dismissal of the complaint would be an unduly harsh sanction under these circumstances. However, the court also finds that plaintiffs’ counsel’s conduct in failing to confer with defendants in order to submit a joint proposed pretrial order by the deadline merits some sanction-by the court. Even if plaintiffs’ counsel did not receive the communications from defendants’ counsel regarding the deadline, plaintiffs’ counsel should have contacted defendants’ counsel upon his own accord, to ensure that the parties were able to work together on the proposed pretrial order before the deadline. The court understands that counsel may, at times, become overwhelmed by other obligations. In such circumstances, counsel should request an extension of time to comply with a deadline. In this case, however, plaintiffs’ counsel sought no such extension. As a result, defendants’ counsel was required to prepare the entire proposed pretrial order, and the parties had not conferred to create a workable joint pretrial order prior to the pretrial conference. The court does not believe that plaintiffs have shown they attempted in good faith to comply with D. Kan. R. 16.2. Further, plaintiffs have not shown that their failure to comply with the court’s order was “substantially justified” or that other circumstances would render the imposition of sanctions inappropriate pursuant to D. Kan. R. 11.1. Consequently, the court sanctions plaintiffs pursuant to D. Kan. R. 11.1(b)(4) and 16.2(d). Plaintiffs are hereby ordered to pay the defendants’ attorney’s fees incurred in drafting plaintiffs’ portion of the pretrial order. Further, plaintiffs are ordered to pay the attorney’s fees incurred by defendants in drafting the instant Motion to Dismiss Complaint. Defendants are ordered to submit a Statement of Attorneys’ Fees and costs to the court by September 26, 2002. Having determined that dismissal of the complaint is not warranted, the court turns to the pending evidentiary motions. IV. Plaintiffs’ Motion to File Supplement to Final Witness and Exhibit List (Doc. 165) Defendants move to strike from plaintiffs’ Motion for Partial Summary Judgment the affidavit of Kathleen Ur-bom. Defendants seek to strike Ms. Ur-bom’s affidavit on the grounds that plaintiffs failed to identify Ms. Urbom as a witness, either in their Initial Disclosures, their Final Witness and Exhibit List, or their Answers to First Interrogatories to Plaintiff D.L. Defendants point out that plaintiffs knew that Ms. Urbom was someone who could be a potential witness in the case, because she was plaintiffs’ attorney in late 1999 and early 2000. Defendants contend that Ms. Urbom’s affidavit will not be admissible evidence at trial, because plaintiffs have never identified Ms. Urbom as a witness whom they expected to call at trial, either in their initial disclosures or in their Final Witness and Exhibit List filed on or about February 1, 2001. In their reply, plaintiffs state that the purpose of Ms. Urbom’s affidavit is to address defendants’ assertion that plaintiffs failed to exhaust their administrative remedies prior to filing suit. Plaintiffs contend that they should be able to offer Ms. Urbom as a witness, because defendants did not raise the issue of exhaustion of administrative remedies until the pretrial conference, and Ms. Urbom would testify as to whether plaintiffs exhausted their administrative remedies. Further, plaintiffs state defendants would not be prejudiced by Ms. Urbom’s testimony. In their Motion to File Supplement to Final Witness and Exhibit List, plaintiffs claim Ms. Urbom’s testimony “was not known to be relevant to the plaintiffs at the time their Witness and Exhibit list was filed,” and that defendants would not be prejudiced by their delay. Plaintiffs further claim, without analysis, that they will be “severely prejudiced” if they are not allowed to supplement their final witness list to include Ms. Urbom’s testimony. The pretrial order in this ease provides that no witness who is not listed on the parties’ Final Witness List will be permitted to testify absent leave of the court. (Pretrial Order at 21). A final pretrial order shall be modified “only to prevent manifest injustice.” Fed.R.Civ.P. 16(e). To determine whether a "witness who was not included in the final pretrial order should be permitted to testify, a district court should consider: (1) [T]he prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and (4) bad faith or willfulness in failing to comply with the court’s order. Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1108 (10th Cir.1998) (citing Smith v. Ford Motor Co., 626 F.2d 784, 797 (10th Cir.1980)). Applying this test, the court does not believe plaintiffs have shown that modification of the pretrial order is necessary to prevent manifest injustice. Regarding the first factor, the degree of prejudice defendants would face, the court recognizes that defendants would incur prejudice by being required to depose Ms. Urbom and conduct related discovery less than one month from trial. At the same time, the court is not persuaded by defendants’ argument that they would incur prejudice if Mr. Hatley would testify in order to rebut Ms. Urbom’s testimony. In determining whether to modify the pretrial order, the court must be guided not by concerns due to the prejudice that would occur to defendants from the fact of Ms. Urbom’s appearance as a witness, but rather by the prejudice defendants would incur due to the untimeliness of plaintiffs’ request to include her. Regarding the second and third factors, the court recognizes that defendants could cure the prejudice they would incur through an extension of time so that they could depose Ms. Urbom. As set forth later in the opinion, however, plaintiffs also have sought to introduce at trial the testimony of 31 witnesses who were not previously disclosed. While the impact of an extension of a deadline and time for related discovery may not be significant as to any one witness, the court believes that the cumulative impact of discovery for all of these witnesses would significantly disrupt the order and efficiency of the litigation. Thus, the second and third factors weigh against allowing Ms. Urbom to testify at trial. With respect to the fourth factor, although plaintiffs had knowledge that Ms. Urbom was a potential witness in the case, they did not list her in their initial disclosures or in any other discovery documents. The court does not believe this is by itself indicia of bad faith or willful noncompliance on the part of plaintiffs. Further, plaintiffs’ argument that Ms. Urbom’s testimony is needed to address whether plaintiffs exhausted their administrative remedies is not persuasive. The court was able to fully analyze this issue without Ms. Ur-bom’s affidavit, because the affidavit repeated facts that already were part of the record. Accordingly, the court denies plaintiffs’ Motion to File Supplement to Final Witness and Exhibit List, and turns to defendants’ Motion to Strike. Y. Defendants’ Motion to Strike Certain Exhibits Submitted in Support of Plaintiffs’ Motion for Partial Summary Judgment (Doc. 118) Defendants move the court for an order striking Exhibits 21 (Lawrence Journal-World article dated January 31, 2001), 22 (Affidavit of Kathleen R. Urbom, former attorney for the plaintiffs), and 25 (Lawrence Journal-World article dated April 20, 2000) from the exhibits submitted in support of Plaintiffs’ Motion for Summary Judgment. Defendants also request the court to strike three statements from the affidavit of plaintiff D.L. As set forth below, defendants’ motion is granted in part and denied in part. A. Motion to Strike Lawrence Journal-World Articles Defendants move to strike Exhibits 21 and 25, articles that appeared in the Lawrence Journal-World, on the grounds that the articles are unauthenticated and are hearsay. Specifically, defendants contend the articles consist of the out-of-court statements of the reporters who authored the articles, and are being offered for the truth of their contents. Plaintiffs have neither deposed the reporters who wrote the articles, nor provided their affidavits to the court. Federal Rule of Civil Procedure 56(e) provides that affidavits supporting and opposing motions for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Federal Rule of Evidence 801 holds that hearsay, i.e., an out-of-court statement offered for its truth, is not admissible. Plaintiffs contend that the articles are not hearsay, because they are not offered for their truth. Rather, plaintiffs argue the articles are offered to show the mere fact that they were published. The first article, Exhibit 21, is attached to support plaintiffs’ Fact 110, which provides that “[s]hortly after the lawsuit was filed on April 20, 2000, an article appeared in the Lawrence Journal World discussing the suit.” The court finds that Exhibit 21 is not hearsay because it is not being offered to prove that the contents of the article are true; rather, plaintiffs seek to introduce the article merely to show that it was published. Exhibit 21 thus falls outside the definition of hearsay, and is admissible to prove that it was published. Further, pursuant to Federal Rule of Evidence 902(6), newspaper articles are “self-authenticating.” Extrinsic evidence of authenticity as a condition precedent to the admissibility of evidence is not required for printed materials purporting to be newspapers or periodicals. Accordingly, the court finds plaintiffs are not required to provide authentication in order to determine the admissibility of the newspaper articles. Fed.R.Evid. 902(6). Exhibit 21 is admissible to show the fact of publication, and may be considered on summary judgment. The second article, Exhibit 25, is attached to support plaintiffs’ Facts 113 and 114. Fact 113 provides that Joe Nyre, an official for defendant U.S.D. # 497, stated that the U.S.D. # 497 “could increase Medicaid funding by $855,000 annually if U.S.D. # 497 sought Medicaid Reimbursement for all its eligible special education students.” Fact 114 states that Mr. Nyre “also stated that the money received from Medicaid would be used to buy equipment for students with disabilities or to improve training for special education teachers.” Plaintiffs argue that the articles are not hearsay because they are not being offered to prove the truth of the matters contained in the articles, but rather to show the fact they were published. The court finds that plaintiffs seek to introduce Exhibit 25 for the purpose of proving that Mr. Nyre made the statements contained within it. However, the court finds that Mr. Nyre’s statements in the article are not hearsay, because they constitute admissions by a party-opponent, and thus fall outside the hearsay rule pursuant to Federal Rule of Evidence 801(d)(2). Rule 801(d)(2) provides that a statement made by a party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, is not hearsay. As an official for the school district, Mr. Nyre was an agent of defendant U.S.D. # 497. He made his comments during the scope of his duties as a school official, and the statements concerned his conduct as a school official. Accordingly, the court finds Exhibit 25 is admissible. B. Affidavit of Kathleen Urbom Defendants move to strike Exhibit 22, the affidavit of Ms. Urbom, on the grounds that plaintiffs failed to identify Ms. Urbom as a witness, either in their Initial Disclosures, their Final Witness and Exhibit List, or their Answers to First Interrogatories to Plaintiff D.L. Because the court has denied plaintiffs’ motion to modify the pretrial order to include Ms. Urbom as a witness, her testimony will be inadmissible at trial. The court notes that while Federal Rule of Civil Procedure 56(e) requires that affidavits must be supported by admissible evidence, it does not require that affiants be listed as witnesses for trial. See, e.g., Schmitt v. Beverly Health & Rehab. Services, 993 F.Supp. 1354, 1359 (D.Kan.1998); Taylor v. St. Louis Sw. Ry. Co., 746 F.Supp. 50, 53 (D.Kan.1990). In their motion to strike the affidavit of Cindy Harvel, which the court will consider later in the opinion, defendants attempt to distinguish Schmitt and Taylor on the grounds that the affidavits at issue in those cases either were not essential to the court’s decision, Schmitt, 993 F.Supp. at 1360, or because the party moving to strike would have incurred no prejudice, Taylor, 746 F.Supp. at 53. Defendants argue that the court should reject these cases because defendants would incur prejudice in this case if Ms. Urbom and Ms. Harvel’s affidavits were admitted. Further, defendants claim that Rule 56(e) limits the testimony that courts may consider upon summary judgment to that of affiants who will also testify at trial. After having considered defendants’ arguments, the court believes that Schmitt and Taylor are persuasive authority. Rule 56(e) provides that “[supporting and opposing affidavits ... shall set forth such facts as would be admissible in evidence.” The interpretation of Rule 56(e) advanced by the Schmitt and Taylor courts is supported by the clear language of the rule. Rule 56(e) “focuses on the quality of the information contained in the affidavit and the affiant’s relationship to that information, not whether the affiant will be available to testify at trial.” FDIC v. Horn, 751 F.Supp. 186, 188 n. 1 (D.Colo.1990); see also Paolello v. Marco, No. 96-C-2793, 1997 WL 280654 at *4 (N.D.Ill. May 22, 1997) (denying motion to strike affidavit of witness not listed as a potential trial witness). Defendants’ motion to strike Ms. Urbom’s affidavit for purposes of consideration on summary judgment is denied. C. Affidavit of D.L. Defendants move to strike from plaintiff D.L.’s affidavit her statement that the Turner and Piper School Districts requested that she sign certain forms “so that R.L. would be eligible for Medicaid benefits.” (Pis.’ Mot. Partial Summ. J. Attach. 20). In addition, defendants ask the court to strike plaintiff D.L.’s statement that the school districts “received Medicaid benefits for R.L.” during the time in which R.L. was enrolled in defendant U.S.D. # 497. Defendants object on the basis that plaintiff D.L.’s statements are hearsay and are not based upon her personal knowledge, and are therefore inadmissible under Federal Rule of Civil Procedure 56(e). Specifically, defendants contend that plaintiff D.L.’s statements that “the Turner School District provided me with a Medicaid Consent form and requested that I sign it so that R.L. could be eligible for Medicaid benefits” and that “the Piper Unified School District No. 203 ... also provided me with a Spectra Consent form and requested that I sign it so that R.L. could be eligible for Medicaid benefits” are hearsay because plaintiff D.L. merely repeated information given to her by employees of the Turner and Piper school districts. The court finds that plaintiff D.L.’s statements are hearsay only to the extent that she states that the officials requested that she sign the forms “so that R.L. could be eligible for Medicaid benefits.” That portion of plaintiff D.L.’s statement contains the alleged out-of-court statement of the school district officials as repeated by plaintiff D.L., and plaintiffs offer the statement to prove the truth of the matter asserted — that the districts sought to make R.L. eligible for Medicaid benefits. However, plaintiff D.L.’s testimony is admissible to the extent she states that the Turner and Piper School District officials provided her with a Medicaid Consent form and the Spectra Consent form; this portion of her testimony does not fall within the definition of hearsay as provided in Federal Rule of Evidence 801. Second, defendants contend plaintiff D.L. has not shown that her statement that the Turner and Piper districts “received Medicaid benefits for R.L.” was based upon sufficient personal knowledge. Defendants claim that only school district officials would have direct personal knowledge whether defendant U.S.D. # 497 received Medicaid benefits, and that any knowledge plaintiff D.L. would have received related to defendant U.S.D. # 497’s Medicaid benefits would have come from district employees. The court agrees with defendants that plaintiffs have failed to show that plaintiff D.L.’s statements that the Turner and Piper School Districts “received Medicaid benefits for R.L.” are based upon plaintiff D.L.’s personal knowledge. Accordingly, the statements are inadmissible under Federal Rule of Evidence 602, and may not be considered by the court pursuant to Federal Rule of Civil Procedure 56(e). Defendants’ Motion to Strike Certain Exhibits Submitted in Support of Plaintiffs Motion for Partial Summary Judgment (Doc. 143) is therefore granted in part and denied in part. VI. Defendants’ Motion to Strike Affidavit of Cindy Harvel (Doc. 157) Defendants also request the court to strike the affidavit of Cindy Harvel from plaintiffs’ Reply in support of plaintiffs’ Motion for Partial Summary Judgment on the basis that it fails to meet the requirements of Federal Rule of Civil Procedure 56(e). In the alternative, defendants seek to strike the affidavit on the grounds that plaintiffs were not substantially justified in failing to disclose the identity of Ms. Harvel pursuant to Federal Rule of Civil Procedure 26(a). The affidavit provided by Ms. Harvel contains information regarding R.L.’s eligibility for Medicaid. Defendants further claim that Ms. Harvel’s testimony, if admitted, would be prejudicial due to the vagueness of the business record Ms. Harvel authenticated. Finally, defendants contend that plaintiffs’ submission of the affidavit is sanctionable under Federal Rule of Civil Procedure 37(b)(2), because plaintiffs failed to obey the scheduling order of the court when they failed to identify Ms. Harvel on their final witness list. First, the court addresses defendants’ claim that Ms. Harvel’s affidavit is inadmissible under Federal Rule of Civil Procedure 56(e) because Ms. Harvel was not listed on plaintiffs’ final witness list. As the court has noted in its discussion of Ms. Urbom, while Federal Rule of Evidence 56(e) requires that affidavits must be supported by admissible evidence, it does not require that affiants be listed as witnesses for trial. See, e.g., Schmitt, 993 F.Supp. at 1359; Taylor, 746 F.Supp. at 53. The court thus finds that, although Ms. Harvel is not listed as a trial witness, the court may consider her testimony for summary judgment purposes if it meets the requirements of Rule 56(e). Accordingly, defendants’ motion to strike is denied. At the same time, the court recognizes it must counterbalance any prejudice that could occur to defendants through the court’s consideration of Ms. Harvel’s affidavit. The court thus allows defendants to depose Ms. Harvel, if they choose to do so. Second, defendants claim that Ms. Harv-el’s affidavit would be prejudicial to defendants, because the record is vague. The court believes that defendants’ argument addresses the persuasive weight of the evidence, rather than its admissibility. Effective cross-examination would mitigate any potential prejudice. Defendants’ motion to strike Ms. Harvel’s affidavit is denied on this basis. Third, defendants request the court to impose sanctions upon plaintiffs due to their failure to obey the scheduling order of the court, as provided in Federal Rule of CM Procedure 37(b)(2)(B), (C), and (D). Specifically, defendants contend plaintiffs violated the court’s scheduling order by failing to identify Ms. Harvel as a witness on plaintiffs’ final witness list. Defendants also complain that plaintiffs never provided any indication, until after the close of discovery, that they would rely upon plaintiffs R.L. and J.L.’s eligibility to receive Medicaid benefits to support their case-in-chief. Defendants contend that plaintiffs have “sandbagged” this issue by failing to reveal it in their answers to defendants’ Interrogatories Nos. 4 and 5, in which plaintiffs purported to state the complete factual basis for their ADA and equal protection claims. Further, defendants argue that plaintiffs’ omission of Ms. Harvel from their witness lists was intentional. Defendants have not shown that plaintiffs’ conduct is worthy of sanctions under Federal Rule of Civil Procedure 37 for failure to comply with the court’s scheduling order. The court believes plaintiffs have offered a sufficient justification for their failure to previously disclose Ms. Harvel as a potential witness, because Ms. Harvel’s testimony is rebuttal evidence. Moreover, the court believes it can mitigate any potential prejudice defendants would incur due to the timing of plaintiffs’ disclosure of Ms. Harvel by allowing defendants sufficient time to conduct any needed discovery. Defendants’ Motion to Strike Affidavit of Cindy Harvel Submitted in Support of Plaintiffs’ Motion for Partial Summary Judgment (Doc. 157) is denied. VII. Plaintiffs’ Motion to Strike and Preclude Testimony of Witnesses Not Previously Disclosed (Doc. 57) In addition, defendants move the court for an order precluding the use of all witnesses and exhibits listed by plaintiffs in their Final Witness and Exhibit List that have not been previously or properly disclosed. The scheduling order for this ease obligated all parties to serve their initial Rule 26 disclosures by October 26, 2001, file and serve their Preliminary Witness and Exhibit Lists by November 30, 2001, and their Final Witness and Exhibit Lists by February 1, 2002. On February 1, 2002, plaintiffs filed a Final Witness and Exhibit List, which included 31 persons who had not been listed in plaintiffs’ initial Rule 26 disclosures, or in any of plaintiffs’ responses to written discovery requests. Further, plaintiffs listed four witnesses, Diane Lund, M.A., Jackie Springer, M.D., Jan B. Roosa, Ph.D., and Paul Richard Epps, M.D., as witnesses who would testify regarding “the children’s disabilities and the impact of the actions of the District on the children.” Defendants state they believe plaintiffs are attempting to introduce these witnesses for the purpose of introducing expert testimony, and ask the court to exclude these witnesses because plaintiff did not make expert disclosures prior to the December 31, 2001 deadline. In addition, defendants claim that plaintiffs’ Final Witness and Exhibit List also fails to describe sufficiently many of plaintiffs’ proposed exhibits. The court will examine each of defendants’ objections in turn. A. Standard A party must make an initial disclosure of “the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information .... ” Fed. R.Civ.P. 26(a)(1)(A). Further, a party is under a continuing obligation “to supplement or correct the [Rule 26(a) ] disclosure or response to include information thereafter acquired ... if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1). A court must exclude evidence if a party’s failure to disclose information or amend a prior response in accordance with Rule 26 lacks substantial justification and is not harmless. Fed.R.Civ.P. 37(c)(1). Further, The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court. A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose. Nevertheless, the following factors should guide its discretion: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party’s bad faith or willfulness. Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999) (citations omitted). B. Analysis The court first examines whether plaintiffs failed to disclose information or to supplement their disclosures according to Rule 26. After determining whether plaintiffs failed to comply with the rules, the court will turn to the question of whether such failure was substantially justified. Plaintiffs included for the first time in their Final Witness and Exhibit List eleven employees or agents of defendants; two investigators with the Office of Civil Rights of the U.S. Department of Education (OCR), who had been corresponding with defendants and conducting an investigation of alleged discrimination by defendants against individuals with disabilities; two reporters from the Lawrence Journal-World who wrote several articles about this litigation and with whom defendants gave interviews; Ms. Cynthia Lane, a witness who was not included on either party’s lists but was deposed by defendants; four individuals involved with special education programs at the University of Kansas attended by R.L. after school; and four doctors, whom plaintiffs claim are listed not as experts, but as treating physicians exempt from expert disclosure requirements. Defendants claim plaintiffs were aware of the existence of the witnesses at the time plaintiffs filed their Rule 26(a) Initial Disclosures. Plaintiffs counter that defendants would incur little prejudice because the witnesses in question are individuals about whom defendants had knowledge throughout discovery. The court will examine each of defendants’ objections in turn. 1. Current and Former Employees; Lawrence Journal-World Reporters; Ms. Cynthia Lane; Special Education Program Officials; OCR Investigators; and Doctors and Therapists Plaintiffs present no evidence that they were unaware at the time they issued their initial disclosures of the existence of the eleven employees of defendant U.S.D. #497, the two reporters, Ms. Lane, the four individuals from the special education programs at the University of Kansas, the two investigators from the U.S. Department of Education’s Office of Civil Rights (OCR), and the four doctors and therapists at the time plaintiffs issued their initial disclosures. Further, plaintiffs offer no explanation for their failure to supplement their initial disclosures. Defendants proffer several reasons why plaintiffs’ failure to disclose these witnesses violated Rules 26(a) and 26(e). First, defendants point out that the newspaper articles written by the reporters were published in the spring of 2000. In addition, defendants specifically requested in their interrogatories that plaintiffs disclose the identity of any witness whom D.L. claimed had information that would support her invasion of privacy claim. Further, defendants state that plaintiffs knew of the OCR investigation prior to this lawsuit, because plaintiffs instigated the investigation through a complaint to the OCR which was filed on May 11, 2000. Defendants also point out that, at the time of their initial disclosures, plaintiffs knew of the existence of the four treating physicians and therapists who had worked with plaintiffs. The court thus finds that plaintiffs failed to disclose the eleven current and former employees of defendant U.S.D. # 497, two Lawrence JoumaUWorld reporters, Ms. Cynthia Lane, the special education program officials, the two investigators from the OCR, and the four doctors and therapists as required by Federal Rule of Civil Procedure 26(a), or to provide a supplemental disclosure of these witnesses under Rule 26(e). Next, the court must determine whether plaintiffs’ failure to disclose these witnesses was substantially justified. In this case, defendants have shown that plaintiffs had knowledge of these individuals at the time plaintiffs filed their initial disclosures. Plaintiffs offer no cognizable explanation for their failure to include the witnesses at that time. Accordingly, the court finds that plaintiffs’ failure to disclose these eleven witnesses at the time of the initial disclosures lacks substantial justification. Plaintiffs’ assertion that defendants had knowledge of the existence of the witnesses is simply insufficient to put defendants on notice that these individuals would be potential witnesses in the ease. Accord Barker v. Williams Pipeline Co., Civ. A. No. 92-2117, 1993 WL 191335, at *2-3 (D.Kan. May 14, 1993) (striking expert witnesses from plaintiffs’ witness list when plaintiff testified his attorneys had been aware of the experts’ existence three months prior to their designation). A party’s failure to comply with required disclosures is only harmless when it results in no prejudice to the opposing party. Hall v. United Parcel Serv., No. Civ. A. 99-2467-CM, 2000 WL 554059, at *2 (D.Kan. Apr. 28, 2000). Plaintiffs’ failure to make the required disclosures has undermined defendants’ ability to conduct discovery as related to these witnesses. The court finds that plaintiffs’ failure to disclose or supplement as to these witnesses lacked substantial justification and was harmful to defendants. Accordingly, the court grants defendants’ motion to strike eleven current and former employees of defendant U.S.D. #497, two Lawrence Joumal-World reporters, Ms. Cynthia Lane, the special education program officials, the two investigators from the U.S. Department of Education’s Office of Civil Rights, and the four doctors and therapists from plaintiffs’ Final Witness and Exhibit List. 2. Defendants’ Counsel Defendants’ lead counsel, Mr. Hatley, is included as a witness on plaintiffs’ Final Witness List. Defendants allege that they would suffer prejudice if Mr. Hatley is required to testify, because he may become unable to represent defendants at trial. Further, defendants contend plaintiffs violated Rule 26(a) by failing to disclose Mr. Hatley as a potential witness earlier in discovery, since plaintiffs had been aware of his existence. Plaintiffs state in their Final Witness List that Mr. Hatley is listed: [T]o testify concerning his involvement with plaintiffs concerning the enrollment of R.L. and J.L. in U.S.D. # 497, his communications with the press concerning allegations made by defendants against plaintiffs, his involvement with O.C.R. related to their investigation, his involvement with defendants concerning the decision to initiate a lawsuit against plaintiffs and other matters relevant to this litigation. (Pis.’ Witness & Ex. List at 4). Courts must exercise “great care” prior to permitting the deposition of an attorney, if the attorney’s advice is not an issue in the case. Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171 (D.Kan.1994). Accordingly, the deposition of opposing counsel is permissible only when (1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and nonprivileged, and (3) the information is crucial to the preparation of the case. Id. (citing Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986)). In the case at bar, plaintiffs have made no showing that any information Mr. Hat-ley may have is not discoverable by other means. In fact, plaintiffs do not address the issue of Mr. Hatley’s testimony in their Response to defendants’ Motion to Strike. Moreover, even assuming that the information Mr. Hatley could disclose is relevant and nonprivileged, plaintiffs have not shown that the information would also be crucial to the preparation of their case. Accordingly, defendants’ Motion to Strike is granted as to Mr. Hatley. Mr. Hatley is stricken from plaintiffs’ Final Witness List. 5. Matters Not Sufficiently Identified Defendants’ move to strike several discovery requests on the grounds that they are vague or insufficient. The court denies defendants’ motion on the basis that defendants have not certified that they have made a reasonable effort to confer with plaintiffs’ counsel as required by District of Kansas Rule 37.2. Defendants’ Motion to Strike and Preclude Testimony by Witnesses Not Previously Disclosed and the Use of Exhibits not Properly Disclosed or Identified by Plaintiffs is therefore granted in part and denied in part. The court next examines plaintiffs’ Motion to Exclude Expert Testimony. VIII. Plaintiffs’ Motion to Exclude Expert Testimony (Doc. 155) Plaintiffs have moved the court to exclude the expert testimony and reports of Dr. Jay Chambers. Plaintiffs contend that Dr. Chambers’s testimony is not relevant for two reasons. First, plaintiffs claim that Dr. Chambers’s analysis of the costs of educating special education students in Kansas is not relevant because undue expense is not a defense to a claim of discrimination under the Rehabilitation Act § 504,-unless defendan