                           NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                    Submitted June 20, 2013*
                                      Decided July 3, 2013

                                              Before

                              FRANK H. EASTERBROOK, Chief Judge

                              ANN CLAIRE WILLIAMS, Circuit Judge

                              REBECCA R. PALLMEYER, District Judge**


No. 12-3475

BOBBY J. JOHNSON, JR.,                              Appeal from the United States District
     Plaintiff-Appellant,                           Court for the Southern District of Indiana,
                                                    Indianapolis Division.
       v.
                                                    No. 1:08-cv-00050
HIX WRECKER SERVICE, INC., et al.,
     Defendants-Appellees.                          William T. Lawrence,
                                                    Judge.

                                           ORDER

       In this successive appeal, Bobby J. Johnson, Jr. challenges two rulings made during the
bench trial of his suit to recover unpaid overtime wages under the Fair Labor Standards Act


       *
        This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is
unnecessary. See FED. R. APP. P. 34(a).
       **
           The Honorable Rebecca R. Pallmeyer, United States District Court for the Northern
District of Illinois, sitting by designation.
No. 12-3475                                                                                Page 2

(“FLSA”), 29 U.S.C. § 207(a). Johnson contends that the trial court abused its discretion by re-
opening the trial to allow for the submission of additional evidence and by refusing to exclude
certain documents as a discovery sanction. Finding no abuse of discretion by the district court
in rendering either decision, we affirm.

        This case comes before us for the second time. In our first decision, we reversed the
district court's summary judgment award in favor of Johnson's former employers, Hix Wrecker
Service, Inc., James Hix, Ova Hix, and Gail Neal (collectively, “Hix”). Johnson v. Hix Wrecker
Service, Inc., 651 F.3d 658, 663-64 (7th Cir. 2011). We concluded that summary judgment was
inappropriate because Hix had not demonstrated that Johnson was exempt from FLSA's
maximum hour and overtime provisions under the statute's motor carrier exemption. Id.; see
also 29 U.S.C. § 213(b)(1). Under this provision (and related statutes), an employee of a motor
carrier engaged in interstate commerce whose hours are regulated by the Secretary of
Transportation cannot maintain an action for unpaid overtime under FLSA. Hix, 651 F.3d at
660-61; see 49 U.S.C. § 31502(b)(1) (granting Secretary of Transportation authority to prescribe
maximum hours for motor carrier employees); § 13102(14) (defining “motor carrier” as a
person providing commercial motor vehicle transportation for compensation); § 31132(1)
(defining “commercial motor vehicle” as a self-propelled vehicle used on highways in
interstate commerce) (2006). To demonstrate that an employee falls under the Secretary of
Transportation's authority, a motor carrier “must be shown to have engaged in interstate
commerce within a reasonable period of time prior to the time at which jurisdiction is in
question.” Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902.
After reviewing the summary judgment record, we concluded that Hix had not shown
conclusively that it engaged in interstate commerce during the relevant time period such that
the motor carrier exemption would apply. Hix, 651 F.3d at 662-63. We remanded the matter
to the district court for further proceedings. Id. at 664.

        On remand, the parties prepared for a bench trial on Johnson's FLSA claim. Before the
final pre-trial conference, Johnson moved to preclude Hix from introducing tow dispatch logs
containing the pickup location for every run its drivers made during Johnson's employment.
Although Hix produced these materials during discovery, Johnson maintained that they
should be excluded because Hix failed to specifically identify them when responding to
interrogatories or in submitting its trial exhibit list. The district court denied the motion. With
regard to Hix's response to Johnson's request to identify all materials bearing on the company's
defenses, the court found that Hix's response sufficiently identified the logs to survive scrutiny
under Federal Rule of Civil Procedure 33(d). Although the court found Hix's counsel violated
the Federal Rules of Civil Procedure and the court's own case management plan by failing to
identify the logs as potential trial exhibits, the court declined to exclude this evidence as a
sanction. The court concluded that the exclusion of this highly relevant evidence would be
No. 12-3475                                                                                   Page 3
unwarranted because Johnson obtained the documents through discovery and so he could not
demonstrate prejudice resulting from Hix's delayed disclosure.

        Soon after the ruling, the district court conducted a one-day bench trial on Johnson's
claim and requested post-trial submissions from both sides. In his post-trial brief, Johnson
raised an issue that neither Hix nor the court had previously considered. Johnson contended
that, at the time of Johnson's employment, the statutory definition of “motor carrier” only
applied to vehicles weighing in excess of 10,000 pounds. See 49 U.S.C. § 13102(14)(defining
“motor carrier” as a person providing commercial motor vehicle transportation for
compensation); § 31132(1)(A) (defining “commercial motor vehicle” as vehicle with “gross
vehicle weight of at least 10,001 pounds”) (2006). Because Hix had not introduced evidence
that Johnson's vehicle satisfied the statutory weight requirement, Johnson maintained that the
company had not met its burden of proof of showing that the motor carrier exemption applied.

         In response to Johnson's submission, the district court issued an order reopening the
trial to receive additional evidence on the weight of Johnson's vehicle. The court noted that the
earlier bench trial (like the previous decision by this court) had proceeded on the assumption
that the dispositive issue was whether Hix engaged in interstate commerce during Johnson's
employment. Now that Johnson had raised the issue of vehicle weight, the court noted the
absence of “competent evidence . . . regarding the weight of any of the vehicles that were or
could have been driven by Johnson.” While acknowledging that Hix had not met its burden
by failing to present evidence on this point, the court nevertheless decided to re-open the trial
in order to “to decide this case on its merits rather than by default based upon the action or
inaction of counsel.” The court characterized its decision as another second chance in “a case
filled with second chances” for both sides. After another one-day bench trial, the court ruled
that Hix had satisfied its burden of proof on the motor carrier exemption and entered
judgment in its favor on Johnson's FLSA claim.

        In this appeal, Johnson maintains that the district court erred in re-opening the bench
trial. The decision to reopen a civil bench trial to submit additional proof rests in the sound
discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331-32
(1971); see also Fed. R. Civ. P. 59(a)(2) (“After a nonjury trial, the court may . . . take additional
testimony”). We review such decisions under an abuse of discretion standard. Nanda v. Ford
Motor Co., 509 F.2d 213, 223 (7th Cir. 1974). We see no abuse of discretion here. After
discovering a gap in the trial record on a potentially dispositive matter, the district court
appropriately exercised its supervisory trial authority in giving both sides an opportunity to
present evidence on the issue. See Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc.,
899 F.2d 291, 295 (4th Cir. 1990) (“It is well within the discretion of the trial court to correct any
errors or gaps in the record by hearing additional evidence”). Although the trial court had the
discretion to end the litigation without receiving such evidence, we cannot fault it for re-
No. 12-3475                                                                                 Page 4

opening proceedings to make an informed decision on the merits. See Imbler v. Pachtman, 424
U.S. 409, 439 (1976) (“It is precisely the function of a judicial proceeding to determine where
the truth lies”).

         Johnson's chief complaint is that he suffered prejudice as a result of the district court's
re-opening because he was deprived of a “gotcha” moment. As Johnson's attorney tells it, he
waited until after the end of trial to raise the vehicle weight issue in hopes that Hix's counsel
would fail to recognize its importance and lose the case for his client through neglect. By
allowing both sides to present testimony on this issue, Johnson contends, the district court
prejudiced Johnson by thwarting his attorney's strategy and forcing him to actually litigate the
issue. A civil party does not suffer prejudice when a district court spoils its attempts to secure
a tactical advantage through such gamesmanship. As the district court recognized, ideally,
civil litigation “is not supposed to be merely a game, a joust, a contest[.]” Ash v. Wallenmeyer,
879 F.2d 272, 275 (7th Cir. 1989). District courts conduct civil trials with an eye toward
discovering the truth. They are not required to reward tactics designed to deprive the
factfinder of information needed to decide a claim fairly. See id. The district court did not abuse
its discretion by preventing Johnson from securing a victory in this way.

        Moreover, we reject Johnson's contention that the district court exhibited a bias in favor
of the Hix in re-opening the trial. The record shows that Judge Lawrence conducted the
litigation in this case fairly and impartially. Both sides received reprieves from the court for
missing deadlines; indeed, the only reason Johnson was allowed to raise the vehicle weight
issue at all was because the district court allowed him to submit his post-trial brief 10 days
after the deadline. Furthermore, the district court did not allow Hix to ignore deadlines with
impunity. The court imposed sanctions on Hix's counsel for failure to respond to discovery
requests in a timely manner. Under the circumstances, we find no abuse of discretion in the
district court's decision.

        Johnson also challenges the district court's refusal to exclude Hix's tow logs and related
testimony from the trial as a discovery sanction. “District courts have broad discretion in
supervising discovery, including deciding whether and how to sanction such misconduct, for
they are much closer to the management of the case and the host of intangible and equitable
factors that may be relevant in exercising such discretion.” Hunt v. DaVita, Inc., 680 F.3d 775,
780 (7th Cir. 2012). “We review all discovery sanctions for abuse of discretion and will uphold
a district court's decision so long as it could be considered reasonable.” James v. Hyatt Regency
Chi., 707 F.3d 775, 784 (7th Cir. 2013). In this instance, the district court declined to impose
sanctions on two grounds: (1) Hix's response to Johnson's request for all documents related to
the company's defenses complied with Rule 33(d); and (2) although Hix failed to identify the
tow logs as trial exhibits, the exclusion of this evidence was too severe given the lack of
prejudice to Johnson.
No. 12-3475                                                                                  Page 5
         Under the unique circumstances of this case, we agree with the district court that Hix's
response to Johnson's request for all documents supporting the company's defenses satisfied
Federal Rule of Civil Procedure 33(d). Rule 33(d) provides that when the answer to an
interrogatory may be discerned by examining a party's business records and the burden of
ascertaining that answer is the same for either party, a responding party may answer by
“specifying the records that must be reviewed, in sufficient detail to enable the interrogating
party to locate and identify them[.]” Id. The district court found that Hix's response to this
request, though consisting of a broad acknowledgment that all documents relevant to its
defenses had been produced, was specific to allow Johnson to identify the logs given the low
volume of discovery exchanged. As the district court noted, “defendants produced
approximately 700 pages of dispatch logs and only about 70 other documents, which means
that it should have been readily apparent to Plaintiff's counsel where the relevant information
could be found.” The level of specificity required by Rule 33(d) necessarily depends on a
number of factors, including the amount of discovery exchanged. Where, as here, the parties
exchanged a comparatively small amount of discovery, the court did not abuse its discretion
in finding that Hix's response sufficiently identified the business records that supported Hix's
defenses.

        Nor do we find fault with the district court's refusal to exclude the logs as a sanction
for Hix's deficient identification of its trial exhibits. Generally, a party that fails to disclose a
trial exhibit in its pre-trial disclosures “is not allowed to use that information . . . at a trial,
unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Here, the
district court concluded that Hix's failure to disclose the tow logs was harmless because
Johnson had received the documents months before in discovery. See Fidelity & Deposit Co. v.
Krebs Eng'rs, 859 F.2d 501, 511-12 (7th Cir. 1988) (finding that litigant's “claims of surprise and
prejudice ring hollow” when it had copy of report from tardily disclosed witness in its
possession). Given that Johnson had access to the logs before trial and was aware of their
importance to the issues in the case, we find no abuse of discretion in the district court's
determination that Hix's delayed disclosure was harmless.

       The judgment of the district court is AFFIRMED.
