Savor Health, LLC v. Day

Background

Savor Health, LLC, the plaintiff and counterclaim-defendant, and Susan Bratton, a third-party defendant, jointly asked the court to reopen discovery. Their request concerned Andrea Day’s supplemental timesheets and revised damages calculations relating to her counterclaims for allegedly unpaid wages. Discovery had closed on November 12, 2021.

Earlier, Savor had asked for sanctions based on Day’s late production of supplemental timesheets. The court found that the timesheets were untimely under Federal Rule of Civil Procedure 26(e), but recommended denying sanctions because precluding the evidence was not warranted and an instruction allowing the jury to draw an unfavorable conclusion was not justified. The court also recommended that Savor be permitted to request limited additional discovery concerning the later-produced damages calculations. Judge Abrams later adopted that recommendation in full.

The Requested Discovery

Savor sought four categories of additional discovery: documents about Day’s newly claimed hours and wage formulas; documents and a deposition involving Matthew Day; a second deposition of Andrea Day; and expert discovery concerning the data underlying Day’s claims about time spent drafting emails.

Savor argued that Day had changed her wage-calculation formula and doubled her claimed hours nine business days before discovery closed. Savor contended that it had not had enough time to investigate what it described as a new damages theory and would be prejudiced if discovery remained closed.

Day argued that her supplemental timesheets used the formula in her employment agreement rather than a changed formula. She maintained that Savor had enough time to investigate the timesheets through document requests and depositions, but chose different litigation strategies instead. She also argued that much of the requested information had already been produced or could have been obtained before discovery closed.

Legal Standard and Analysis

The court applied a six-factor good-cause test for reopening discovery: the closeness of trial, whether the request is opposed, prejudice to the opposing party, the moving party’s diligence, whether the need for additional discovery was foreseeable, and the likelihood that the discovery would produce relevant evidence.

The absence of a trial date favored reopening discovery. However, Day opposed the request, and reopening discovery would increase her costs and burdens and further delay the case. Those factors weighed against reopening discovery.

The court also found that Savor had not acted diligently. Day first produced supplemental timesheets using the different formula on October 29, 2021, nine business days before discovery closed. She produced additional timesheets before her January 21, 2022 deposition and before the parties’ expert depositions later that month. The court concluded that Savor had sufficient time to question Day and the experts about the supplemental timesheets and damages calculations.

The court rejected Savor’s claim that it had no opportunity to seek additional discovery. When Judge Abrams asked whether Savor wanted discovery concerning the supplemental timesheets, Savor sought to exclude the timesheets instead. Savor then pursued sanctions rather than reopening discovery. The court described Savor’s choices about what to ask during Day’s deposition as strategic decisions that did not justify a second deposition.

The court separately found that Savor had not shown why it could not have obtained each requested category of discovery earlier. The requested documents included information already produced or known to Savor. Savor also could have sought to depose Matthew Day before discovery closed, and it had enough time to pursue expert discovery concerning the supplemental materials.

The sixth factor favored reopening because the additional discovery was likely relevant to Day’s counterclaims and damages calculation. But the court noted that the additional discovery would not fundamentally change Day’s counterclaims or damages theory, which remained based on allegedly unpaid wages. On balance, the other five factors outweighed the likely relevance of the proposed discovery.

Ruling

Judge Jennifer E. Willis denied Savor’s request to reopen discovery. The order addressed the discovery request and did not decide the underlying merits of Day’s wage-related counterclaims.