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As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. Rather than start with a more traditional "plaintiff moves to strike defendant's late-disclosed production of sales data," he did a concise summary of the issues and outcome:

Deadlines are not suggestions. Litigants must respect them. Here, a defendant failed to produce thousands of data points when requested. It now asks me to overlook its failure and extend the discovery deadlines yet again. But more time is not always the answer. Going forward, the defendant may not use these belated data.

Judge Bibas then applied the Third Circuit's oft-cited Pennypack decision to exclude the late-produced information. Judges in Delaware tend to articulate the Pennypack standard in varying ways, with between 4 and 6 factors. Judge Bibas is apparently no exception; he came up with another new five-factor articulation of the Pennypack factors:

- Would letting the sales data in now disrupt the case?
- Did [defendant] Defenders’ delay hurt the [plaintiff] employees?
- Did Defenders act in bad faith?
- Is there a reasonable way to cure the prejudice?
- How important are the sales data to Defenders?

Interestingly, Judge Bibas' articulation of his second factor replaces "prejudice"—the language of Pennypackwith "hurt," a clearer but possibly broader term that isn't found in the original opinion. Later in the opinion, however, he uses "prejudice" interchangeably with "hurt," and the core analysis seems broadly typical of a Pennypack opinion.

Judge Bibas found the defendant's behavior here to be grossly negligent. He noted just how easy it was for the defendant to actually produce this data, once it tried to:

Though Defenders’ delay was not willful, it was grossly negligent. . . . As Defenders admits, these new data fit squarely within the employees’ discovery request. . . . But, Defenders says, it “w[as] unaware this data was in DealMaker.” . . . That is no excuse. Defenders had a duty to look long and hard for responsive data.
Tellingly, Defenders easily found these data when it wanted to. In their depositions, the employees testified that they rarely sold products to customers. To undermine them, Defenders “[went] and s[ought] this data out.” . . . Once it set its mind to it, it took just a “couple [of] hours,” to produce each spreadsheet. . . . But Defenders had to produce these data when requested, not when convenient.

The Court ultimately excluded the late evidence. Pennypack decisions that decline to exclude evidence often turn on the fact that there is time to cure before trial, including via schedule extensions. Here, because the parties had already received six revisions to the scheduling order, Judge Bibas stated that he is "'unwilling to … alter the pre-trial schedule' for a seventh time."

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