1900 Market LLC et al v. Omnia LLC et al

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
1900 Market LLC et al.,
Plaintiffs,
v.
Omnia LLC et al.,
Defendants.
Case No. 3:23-cv-00954
Judge Eli J. Richardson
Magistrate Judge Luke A. Evans
MEMORANDUM ORDER
On May 2, 2025, defendants Randy Cook, Omnia LLC, Veritas Global LLC, and
Christopher Watson filed a motion to exclude documents that plaintiffs produced after the close of
fact discovery and to strike certain portions of the March 28, 2025 report of plaintiffs’ expert
Tammy Hersh. (Doc. No. 87.) The Court held a telephonic conference on March 17, 2026 to hear
from the parties regarding the motion.
Whether late discovery should be excluded depends on “(1) the surprise to the party against
whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent
to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5)
the nondisclosing party’s explanation for its failure to disclose the evidence.” 	Howe v. City of
Akron, 801 F.3d 718, 748 (6th Cir. 2015) (citations omitted). 	After reviewing the parties’
pleadings and papers and hearing from them at the telephonic conference, the Court concludes that
the Howe factors do not require exclusion here. 	The expert’s opinions will be important to
establish damages and can be questioned at a deposition. Because the expert can be deposed, and
because a trial date has not yet been reset, any surprise or prejudice to defendants from the
inclusion of the discovery in question will be minimal.
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Consequently, for the above reasons and for the reasons discussed at the telephonic
conference, the motion to exclude and to strike (Doc. No. 87) is denied.
It is so ORDERED.
____________________________________
LUKE A. EVANS
United States Magistrate Judge
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