Lebenns v. Frost Productions

Background

Andrew Lebenns sued Frost Productions and other defendants, whom the opinion describes as his former employers, alleging violations of the Fair Labor Standards Act and breach of contract. The dispute concerned whether discovery should be reopened after several extensions and court orders setting deadlines.

Lebenns sought reconsideration of the court’s August 31, 2023 order, which denied his request to reopen fact discovery and extended expert discovery only for a limited forensic examination of work devices. The court later reconsidered and found that the forensic examination was unnecessary. It then allowed further briefing on whether any documents connected to the Sales Credit Reports remained outstanding and on whether Lebenns had timely disclosed an economic damages expert.

Issues Raised in the Motion

Lebenns identified five categories of requests or arguments:

The court did not revisit the requests concerning the sequestered computer, email server, or work devices because it had already ruled on those issues and found no basis for reconsideration.

Legal Standard

The court explained that reconsideration is available only when there is an intervening change in controlling law, new evidence, or a need to correct a clear error or prevent manifest injustice. A party seeking to reopen discovery must also show why the court’s deadlines could not reasonably have been met despite diligence. The court considers factors including the timing of trial, opposition and prejudice, the moving party’s diligence, whether the need for discovery was foreseeable, and whether the discovery is likely to produce relevant evidence.

Sales Credit Report Documents

The court found that Lebenns did not identify specific documents that remained outstanding. Lebenns had received more than 1,200 pages of invoices, spreadsheets, and related materials in March 2023, but waited months before raising alleged deficiencies with the production. The court was satisfied with defendants’ counsel’s representations that the production included the relevant data required by the court’s March 16 order, including information about amounts clients paid for particular jobs.

The court also noted that Lebenns had previously referred to missing “follow-up” sheets, while defendants stated that the production included a “Job Follow-Up Report.” Because Lebenns had not shown diligence or identified specific missing documents, the court found no good cause to reopen discovery for additional Sales Credit Report materials.

Outstanding Depositions

The parties had known for more than a year that depositions of Lebenns, Peter Markowitz, Patrick Rice, and Brendan McCarrick remained to be completed. The court had previously extended deadlines and issued specific orders concerning the Markowitz and McCarrick depositions. It also had ordered that further requests for extensions be made through a joint letter identifying any disagreement.

The court rejected Lebenns’s argument that additional documents prevented completion of the depositions. It noted that documents had already been produced and that Lebenns had not acted diligently to complete the depositions or sought an order compelling defendants to schedule them. The court also found that defendants would be prejudiced by continued discovery delays and that any likely relevance did not outweigh the burden. It therefore declined to reopen discovery for the depositions.

Economic Damages Expert

The court concluded that Lebenns did not timely disclose the identity of his economic damages expert as required by Federal Rule of Civil Procedure 26. The operative expert-discovery deadline was August 30, 2023, but Lebenns sought an extension after that deadline had expired. The court found that Lebenns’s belief that the deadline had not elapsed and his asserted need for additional Sales Credit Report documents did not substantially justify the late disclosure.

The court also found that the failure was not harmless. Although defendants may have known that Lebenns planned to use a damages expert, Lebenns did not show that he had complied with the required disclosure rules. The court therefore found no reason to reopen discovery for the expert.

Disposition

The court denied Lebenns’s motion to reconsider at Dkt. No. 102. It ruled that no further document production would be ordered, discovery would not be reopened for the outstanding depositions or the economic damages expert, and the Clerk was respectfully requested to close the motion. The opinion addressed discovery and reconsideration; it did not decide the merits of Lebenns’s Fair Labor Standards Act or breach-of-contract claims.