Category Archives: Discovery

E.D.N.Y.: FLSA Defendants Not Entitled To Discovery Of Plaintiffs’ Full Tax Returns; Motion For Protective Order Granted

Melendez v. Primavera Meats, Inc.

Before the court was plaintiffs’ motion for a protective order barring defendants from obtaining their income tax returns.  Reasoning that the defendants failed to show a compelling need for same to overcome the plaintiffs’ privacy rights, the court granted the plaintiffs’ motion.

Framing the issue, the court explained:

“Defendants have served a discovery demand seeking production of federal and state income tax returns for various time periods for each plaintiff. Plaintiffs seek a protective order arguing that the tax returns are not relevant and that the requests are improper attempts to ascertain the immigration status of each plaintiff. Defendants respond that they are uninterested in the immigration question, but seek the information to determine the identity of plaintiffs’ employers.”

The court reasoned:

“Although income tax returns are not inherently privileged, courts are typically reluctant to compel their disclosure because of both ‘the private nature of the sensitive information contained therein’ and ‘the public interest in encouraging the filing by taxpayers of complete and accurate returns.’ “ Carmody v. Village of Rockville Centre, 2007 WL 2042807, at *2 (E.D.N.Y. July 13, 2007) (quoting Smith v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y.1979)). In determining whether to compel discovery of tax returns, the court applies a two prong test: “(1) the tax returns must be relevant to the subject matter of the action, and (2) a compelling need must exist because the information is not readily obtainable from a less intrusive source.” Sadofsky v. Fiesta Prods., LLC, 252 F.R.D. 143, 149 (E.D.N.Y.2008) (citations omitted). The modern trend places the burden on the party seeking the discovery to establish both prongs of this test. See Uto v. Job Site Servs., Inc., — F.Supp.2d —-, 2010 WL 3700239, at *4 (E.D.N.Y. Sept. 20, 2010); see also Carmody, 2007 WL 2043807, at *2.

As the party seeking discovery in this case, the defendants first bear the burden of showing the relevance of the tax returns to the instant action. Defendants argue that the tax returns are relevant since they will identify other employers of the plaintiffs. As defendants apparently claim that they never employed these plaintiffs, they further argue that the tax returns are “relevant as to how much the plaintiffs were paid by these defendants, if they were paid by these defendants at all.” Defs.’ ltr at 1. Plaintiffs respond that the tax returns are irrelevant because even if they reflect the existence of other employers, the returns would not indicate how many hours plaintiffs worked for a particular employer.

Even assuming, arguendo, that the tax returns are relevant, defendants must also establish the second prong of the test-that they have a compelling need for these items because the information is not readily obtainable from a less intrusive source. Sadofsky, 252 F.R.D. at 150 (citations omitted). Defendants offer only a conclusory statement that “there is no other means by which the defendants in this case can establish that someone other than themselves were the plaintiffs’ employer” and a rhetorical question posed to plaintiff’s counsel as to what less intrusive methods might exist. Defendants have singularly failed to establish that the information sought cannot be obtained from a less intrusive source and thus have not met their burden.

As to defendants’ argument regarding the amounts paid by them to the plaintiffs, their own records should reflect this information. Interrogatories, demands for non-tax return documents, and/or inquiries during depositions are discovery devices that apparently have not yet been utilized by defendants. The same devices can be used to obtain discovery regarding any other entities that may have employed the plaintiffs during the relevant time periods. Defendants could, for example, pose interrogatories to determine plaintiffs’ employment history during the relevant time period or question plaintiffs during depositions concerning the number of hours they worked. Carmody, 2007 WL 2042807, at *3 (citing Sabetelli v. Allied Interstate, Inc., 2006 WL 2620385, at *1 (E.D.N.Y. Sept. 13 2006)). Here, there is no representation from defendants that they have attempted to retrieve the information sought from plaintiff’s through discovery of other documentary evidence such as financial records, or “through the use of any other, less intrusive, discovery device.”   Carmody, 2007 WL 2042807, at *3.

For the foregoing reasons, plaintiffs’ motion for a protective order is granted. This ruling may be re-visited upon motion by the defendants, provided they can demonstrate that they have unsuccessfully attempted to obtain the information by other methods.”

 

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D.Neb.: Defendant Limited To Full Discovery For 2 Plaintiffs and Representative Discovery From 15% of Class Where Almost 300 Opt-ins

Morales v. Farmland Foods, Inc.

This matter was before the court on the plaintiffs’ Motion for Protective Order, seeking protection from responding to discovery requests including interrogatories, requests for production, and requests for admission served on nearly all of the almost 300 FLSA opt-in plaintiffs.

Granting Plaintiffs’ Motion, the court reasoned:

“As a starting point, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense-including the existence, description, nature, custody, condition, and location of any documents …” Fed.R.Civ.P. 26(b)(1). However, “[t]he District Court does have discretion to limit the scope of discovery.” Credit Lyonnais v. SGC Int’l, Inc ., 160 F.3d 428, 431 (8th Cir.1998). To determine if a matter is discoverable, the court must first evaluate whether the sought discovery is relevant to a claim or defense. Accordingly, although limited, relevant evidence includes “any matter that could bear on, or that reasonably could lead to other matter that bears on” the claims or defenses of any party.   Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.1992). “Determinations of relevance in discovery rulings are left to the sound discretion of the trial court and will not be reversed absent an abuse of discretion.” Hayden v. Bracy, 744 F.2d 1338, 1342 (8th Cir.1984). Once the requesting party meets the threshold relevance burden, generally “[a]ll discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden.” Continental Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D.Kan.1991) (citation omitted).

The defendant has met its burden of showing the discovery sought is relevant to the claims and defenses in this matter, in a broad sense. Similarly, the plaintiffs have met their burden to show the plaintiffs are subject to unusual, undue or extraordinary burden by having to respond on behalf of each separate opt-in class member. Allowing the defendant to obtain the discovery sought from each opt-in class member is inappropriate in this FLSA lawsuit. See Reich v. Homier Distr. Co., 362 F.Supp.2d 1009, 1015 (N.D.Ind .2005) (“The individual discovery required … would destroy ‘the economy of scale envisioned by the FLSA collective action procedure.’ ”). The defendant seeks to obtain information about the differences between each opt-in class member, however the defendant fails to explain how the representative sampling method suggested by the plaintiffs is deficient for the purpose of establishing (or refuting) similarity between the opt-in class members. Furthermore, the extensive nature of the discovery sought outweighs the benefit. See Geer v. Challenge Fin. Investors Corp., No. 05-1109, 2007 WL 1341774 (D.Kan. May 4, 2007) (finding “the burden and expense the requested discovery (depositions of [each of the 272] opt-in plaintiff[s] ) would impose on Plaintiffs clearly outweighs the likely benefit of such discovery”); see also Fast v. Applebee’s Int’l, Inc., No. 06-4146, 2008 WL 5432288 (W.D.Mo. Dec. 31, 2008) (denying motion to compel interrogatory responses from each opt-in plaintiff). The plaintiffs’ generous proposal of limiting discovery to a random sample of fifteen percent of the opt-in class members is reasonable. See Nerland v. Caribou Coffee Co., Inc., 564 F.Supp.2d 1010, 1016 (D.Minn.2007) (noting the court had “authorized individualized discovery for eighty-five randomly selected opt-in plaintiffs through completion of questionnaires and a limited number of depositions”). The court will not determine the content of the discovery requests as it appears the parties will be able to resolve the issue without court intervention. Upon consideration,

IT IS ORDERED:

The plaintiffs’ Motion for Protective Order (Filing No. 158) is granted as follows.

1. The defendant may take full discovery of the two named plaintiffs.

2. The defendant may serve discovery on a random sample of fifteen percent of the FLSA opt-in class members.

3. No opt-in class member will be allowed to testify at trial unless first responding to the discovery discussed in paragraph 2 above.”

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N.D.Ill.: No “Self-Evaluation” Privilege Existed To Shield Relevant Documents From Discovery

Camilotes vs. Resurrection Healthcare

In their motion to compel, Plaintiffs sought information and documents from Defendants relating to Defendants’ participation in the National Database of Nurse Quality Indications (“NDNQI”), a program operated by the American Nurses Association. The NDNQI is a comprehensive database consisting of information compiled from various hospitals. The database includes data compiled from a RN Satisfaction Survey, which includes questions regarding nurses’ meal breaks, shifts and hours. Hospitals participate in the NDNQI in order to improve patient care and nursing practices. The NDNQI provides assurances of anonymity and confidentiality to the nurses who participate in the program.

Declining to shield such discovery under Defendants’ claim of “self-evaluation” privilege, the Court reasoned:

“Defendants contend that the self-evaluation privilege protects the reports and documents sought by Plaintiffs from discovery. “The self-critical analysis privilege is intended to encourage companies to engage in candid and often times critical internal investigations of their own possible wrong doings.”   Ludwig v. Pilkington N. Am., Inc., 2004 WL 1898238, 2004 U.S. Dist. LEXIS 16049 (N.D.Ill. Aug. 13, 2004). “Despite the benefits of encouraging such investigations, courts have been somewhat hesitant to embrace the self-critical analysis privilege and have often qualified their uses of the privilege with phrases like ‘assuming that the self-critical analysis privilege exists’ or have noted that other courts have questioned the existence of such a privilege altogether.” Id. at *4. Significantly, the Seventh Circuit has “never recognized” the “self-critical analysis privilege.” Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); see also Gardner v. Johnson, 2008 WL 3823713, 2008 U.S. Dist. LEXIS 61707 (N.D.Ill. Aug. 13, 2008) (“The self-critical analysis privilege has never been adopted as federal common law by the Seventh Circuit.”). Indeed, when noting that the court has not recognized the privilege, the Seventh Circuit also highlighted that, “[m]any decisions caution against the creation of new privileges, even for what appear to be good reasons.” Burden-Meeks, 319 F.3d at 901 (citing University of Pennsylvania v. EEOC, 493 U.S. 182, 189, 107 L.Ed.2d 571, 110 S.Ct. 577 (1990)).

Defendants cite two cases in their motion to support the contention that courts in this district have applied the self-critical analysis privilege and found documents protected by the privilege. Neither case, however, is instructive because in those rulings the courts merely assumed or presumed that the privilege applied. Moreover, as one court in this district has recognized, “[t]he majority of courts that ultimately concede or assume the privilege exist have narrowed the privilege’s scope so that it does not apply to the documents at issue in the individual cases.” Ludwig, 2004 WL 1898238, 2004 U.S. Dist. LEXIS 16049, at *5 (N.D.Ill. Aug. 13, 2004). Considering that the Supreme Court instructs that privileges are “not lightly created nor expansively construed, for they are in derogation of the search for truth,” United States v. Nixon, 418 U.S. 683, 709 (1974), the Court finds more persuasive the decisions of district courts that have declined to apply the self-critical analysis privilege. See, e.g., EEOC v. City of Madison, 2007 WL 5414902, 2007 U.S. Dist. LEXIS 70647 (W.D.Wis. Sept. 20, 2007) (declining to recognize the “self-critical analysis privilege” because “[t]he Seventh Circuit has not recognized such a privilege”) (citing Burden-Meeks, 319 F.3d at 901); Ludwig, 2004 U.S. Dist. LEXIS 16049, at *8) (N.D.Ill. Aug. 13, 2004) (declining application of the self-critical analysis privilege in part based on the “tenuous” nature of the privilege); Bell v. Woodward Governor Co., 2004 U.S. Dist. LEXIS 1052, 2004 WL 5645759 (N.D.Ill. Jan. 26, 2004) (“Because the Seventh Circuit has not yet taken a definitive position on the proper scope of the self-critical analysis privilege, this court will rely on its past decisions in finding that the privilege does not exist with regards to affirmative action materials.”).

Moreover, it is clear that the documents and information sought by Plaintiffs are relevant to this dispute. In their complaint, Plaintiffs seek damages from Defendants for unpaid wages as a result of work performed during meal breaks. The NDNQI documents contain information regarding whether nurses received meal breaks, whether they interacted with patients during those meal breaks, and the duration of the meal breaks. The information contained in the NDNQI documents is thus relevant to Plaintiffs’ claims. Moreover, while Defendants contend that the documents are inadmissible hearsay, the Federal Rules of Civil Procedure only limit discovery to “any matter, not privileged, that is relevant to the claim or defense of any party” and specifically note that the discovery “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1); see also Automated Solutions Corp. v. Paragon Data Sys., 231 Fed. Appx. 495, 497 (7th Cir.2007.)

Finally, while the Court recognizes that disclosure of the NDNQI data to Plaintiffs may raise confidentiality concerns, the protective order already in place in this matter should allay any concerns in this regard.

For the foregoing reasons, the Court grants Plaintiffs’ motion to compel. Defendants are to produce responsive documents and information to Plaintiffs’ Second Request for the Production of Documents by August 23, 2010.”

The Court thus joined other courts that have declined to recognize the self-evaluation privilege, such as the case previously reported here.

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W.D.Mo.: Where Over 1,000 Opt-ins, “Full Discovery” Targeting All Class Members Inappropriate

Dernovish v. AT&T Operations, Inc.

This case involved a collective action brought under the Fair Labor Standards Act (“FLSA”). Plaintiffs, call center employees, alleged that Defendant failed to pay them for some time spent working, while they were in the process of logging in to Defendant’s computer system, prior to their scheduled shift.  The issue before the Court was what proper scope of discovery should be granted to Defendant, with respect to the over 1,000 members of the opt-in class.  While the Defendant maintained that all opt-ins were parties and thus, they were entitled to full discovery from each and every class member, the Plaintiffs disagreed.  The Court held that the opt-ins need only produce limited discovery responses, because they were akin to class members in a Rule 23 class.

Discussing the issue, the Court said:

“The Court holds Plaintiffs’ view is more appropriate. Normally, a class action governed by Rule 23(b)(3) would permit those defined by the class definition to opt out of the suit. The FLSA effectively changes the normal situation in two ways: it creates its own class action device that replaces the one created in Rule 23 and requires individuals defined by the class definition to opt in, not opt out. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (describing section 216(b) as permitting “employees to proceed on behalf of those similarly situated”); Anderson v. Unisys Corp., 47 F.3d 302, 305 n. 6 (8th Cir.1995) (declaring that “Certification of ADEA class actions is governed by 29 U.S.C. § 216(b) rather than Fed.R.Civ.P. 23.”); Kelley v. Alamo, 964 F.2d 747, 749 (8th Cir.1992) (“the FLSA provides for a form of ‘class action’ suit under” section 216(b)); Kloos v. Carter-Day Co., 799 F.2d 397, 399-400 (8th Cir.1986) (describing section 216(b) as creating a “type of statutory class action”). Other courts have reached the same conclusion. E.g., Alvarez v. City of Chicago, No. 09-2020, slip op. at —- (7th Cir. May 21, 2010) (“A collective action is similar to, but distinct from the typical class action…. The principle difference is that plaintiffs who wish to be included in a collective action must affirmatively opt-in to the suit….”); Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1127 (10th Cir.2009) (“the opt-in class mechanism of the [FLSA] authorizes class actions when the complaining parties are ‘similarly situated.’ ”); Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122 (9th Cir.2009) (“A plaintiff seeking FLSA collective action certification does not have a procedural right to represent a class in the absence of any opt-in plaintiffs.”); Ruehl v. Viacom, Inc., 500 F.3d 375, 379 & n. 3-4 (3d Cir.2007). This characterization suggests the permissible scope of discovery for the class members is not necessarily intended to be as great as it is for the actual parties to the case.

Another factor affecting the scope of discovery is the measure of damages, which consists of “the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). This determination is based on a formula, not subjective testimony; there is no recovery for pain and suffering or emotional distress. Defendant’s policies provide the commonality that binds the class together. If it is determined that employees were required to login before the start of their shift, damages will be calculated by multiplying the applicable wage by the amount of time necessary to login, multiplied again by the number of days the employee worked. There is also no great need to rely on the employees’ memory to ascertain damages-the superior, more reliable evidence resides in Defendant’s records.”

The Court was careful to note that the Defendant was entitled to some individualized discovery:

“Nothing the Court has said, however, means that Defendant is not entitled to any information about the individuals who opt in. Even in a traditional class action under Rule 23, class members may be required to supply a certain amount of information. However, allowing the “full” range of discovery defeats the purpose of permitting a collective/class action by denying the efficiencies such a procedure is intended to produce. The nature and extent of the discovery effort is subject to the trial court’s discretion and depends on the nature of the case and the purported need for the information. Manual for Complex Litigation (Fourth) at 256.

With these principles in mind, the Court has reviewed Defendant’s discovery requests. The Court concludes it is appropriate and proper for those who opt-in to the case to answer Interrogatory Number Two. This interrogatory asks the individual to identify job titles, supervisors, and locations worked for Defendant. The remaining interrogatories ask for information that is more readily (and conclusively) found in Defendant’s records (such as Interrogatories 3 and 5), carries a significant burden that can be obviated by seeking discovery from the named Plaintiffs (such as Interrogatories 1 and 4), or ask for information that is of dubious importance in the case (such as Interrogatories 6, 7, 8, and 9).

The Request for Production of Documents presents an additional problem: Defendant has posed “contention”-type requests. For instance, Defendant asks the class members to produce “[a]ll documents regarding your assertion that AT & T ‘required these call center employees to be ready to work at the beginning of their scheduled shift.’ “ The undersigned generally finds such interrogatories to be unnecessary at best and inappropriate at worst . Here, requiring the class members to supply the documents will result in significant duplication and inefficiencies that are not warranted in the circumstances of this case. The class members will be required to produce any documents they may have responsive to requests 2 and 3, and submit any such documents along with their answer to Interrogatory Number Two. The remaining requests for documents need not be answered by the class members.”

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E.D.N.Y.: Defendant Not Entitled To Discovery Of FLSA Plaintiff’s Immigration Status

Widjaja v. Kang Yue USA Corp.

This case was before the Court, in part, on defendants motion to compel discovery of plaintiffs’ immigration status.  Joining the majority of Courts to have ruled on such motions, the Court denied defendants’ Motion.

Defendants asserted two reasons to discover the immigration status of the plaintiffs for two reasons.  First, they claimed the plaintiffs’ status in this country was relevant to plaintiffs’ credibility, arguing that if plaintiffs entered the country illegally then they are more likely to make false claims regarding hours worked.  Second, defendants argued that if it is discovered that plaintiffs are illegal immigrants, then they would not be entitled to back pay for future loss of earnings since they would not be permitted to work under the Immigration Reform and Control Act of 1986 (“IRCA”). See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (holding that the IRCA prevents the NLRB from awarding backpay to an illegal alien for work not performed).

Rejecting both claimed bases for defendants’ position, the Court explained:

Rule 26 of the Federal Rules of Civil Procedure allows discovery of all relevant non-privileged matters. Fed.R.Civ.P. 26. A plaintiff’s immigration status is not normally discoverable. Rengifo v. Erevos Enterprises, Inc., No. 06 CV 4266, 2007 WL 894376 at *1 (S.D.N.Y. March 20, 2007). “[D]iscovery of such information would have an intimidating effect on an employee’s willingness to assert his workplace rights.” Id.

The Court rejects plaintiffs’ first argument that plaintiffs’ immigration status is relevant to their credibility. “While it is true that credibility is always at issue, that does not by itself warrant unlimited inquiry into the subject of immigration status….” Id. at *3. “[T]he opportunity to test the credibility of a party … does not outweigh the chilling effect that disclosure of immigration status has on employees seeking to enforce their rights.” Id. See also E.E.O.C. v. First Wireless Group, Inc., No. 03 CV 4490, 2007 WL 586720 (E.D.N.Y. Feb. 20, 2007) (finding immigration status not relevant to credibility); Avila-Blue v. Casa De Cambio Delgado Inc., 236 F.R.D. 190 (S.D.N.Y.2006) (same).

Defendants’ second argument is that plaintiffs’ immigration status may be relevant to damages, relying on the Supreme Court’s holding that the IRCA prevents the NLRB from awarding backpay to an illegal alien for work not performed. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271. However, on the issue of damages, “[c]ourts have distinguished between awards of post-termination back pay for work not actually performed and awards of unpaid wages pursuant to the Fair Labor Standards Act (“FLSA”).” Zeng Liu v. Donna Karan Intern., Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002). In Flores v. Amigon, 233 F.Supp.2d 462 (E.D.N.Y.2002), the court stated that Hoffman Plastic Compounds, Inc. v. NLRB does not apply to FLSA cases in which workers are seeking pay for work actually performed. The court in Flores stated that, “enforcing the FLSA’s provisions requiring employers to pay proper wages to undocumented aliens when the work has been performed actually furthers the goal of the IRCA” because if the FLSA did not apply to undocumented aliens, employers would have a greater incentive to hire illegal aliens with the knowledge that they could not be sued for violating minimum wage requirements. Flores v. Amigon, 233 F.Supp.2d at 464See also Sandoval v. Rizzuti Farms, Ltd., No. 07 CV 3076, 2009 WL 2058145, at *2 (E.D.Wash. July 15, 2009) (holding that immigration status is not discoverable and Hoffman does not apply). But see Avila-Blue v. Casa De Carnbio Delgado Inc., 236 F.R.D. at 192 (finding that “the issue of immigration status may be relevant to damages insofar as it may limit the availability of certain forms of damages” and allowing the issue to be reopened at a later stage of the proceeding).”

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S.D.Fla.: Defendant Compelled To Give Plaintiff Names, Addresses And Telephone Numbers Of All Employees Similarly Situated To Plaintiff, Prior To Conditional Certification

Disimone v. Atlas Service, Inc.

This case was before the Court on Plaintiff’s Motion to Compel Defendant to respond to certain discovery items.  Among the discovery items in dispute, Plaintiff sough the name, addresses and telephone numbers of all employees who had similar job duties to Plaintiff, and who were paid in the same way as Plaintiff for the three (3) years preceding the filing of the lawsuit.  The Court granted this portion of Plaintiff’s Motion to Compel.

The specific interrogatories at issue were,

“(13)  Please identify all employees of Defendant (including former employees) whose duties were similar to those performed by Plaintiff for Defendant and who were compensated in a manner similar to Plaintiff between April 2007 and the present. For all such individuals, please provide the last known mailing address and telephone number.” and

“(14) Please identify all employees of Defendant (including former employees) whose duties were similar to those performed by Plaintiff for Defendant and who were compensated in a manner similar to Plaintiff between April 2006 and March 2007. For all such individuals, please provide the last known mailing address and telephone number.”

The Court noted that, “Defendant objected on a variety of grounds, including overbreadth, irrelevance, materiality, undue burden and expense and prematurity given that Plaintiff has not received opt-in notice status.”

Rejecting Defendant’s arguments, the Court stated, “[t]hese objections are not well-taken. Interrogatories No. 13 and 14 properly seek the identification (through the provision of employees’ names, addresses, and telephone numbers) of all employees who performed similar duties to Plaintiff, and who have been compensated in a similar manner to Plaintiff while working for Defendant during the relevant two (2) year and three (3) year statute of limitations period. See Donahay v. Palm Beach Tours & Transp., Inc., Case No. 06-61270, 2007 WL 1119206, *1 (S.D.Fla. Apr. 16, 2007) (denying on grounds of overbreadth motion to compel production of personnel files of all employees similarly situated to plaintiff for the previous six years, but noting that a request seeking the names and addresses of said employees would be acceptable). The current and/or former similarly situated employees not only likely have knowledge of the actual hours Plaintiff worked during his employment with Defendants, but these individuals may very well possess knowledge of Defendants’ time/record keeping, lunch deduction policies and compensation practices, which will corroborate (or possibly refute) Plaintiffs claims that he and/or other employees were not paid for the full extent of their overtime hours worked. Plaintiff is not required to obtain Opt-In Notice Status before receiving identification of other witnesses who performed the same job duties or who were compensated in a manner similar to Plaintiff. See Hammond v. Lowe’s Home Centers, Inc., 216 F.R.D. 666, 671 (D.Kan.2003) ( “provisional certification is not necessarily a prerequisite for conducting limited discovery necessary for defining the proposed class”); Tucker v. Labor Leasing, Inc., 155 F.R.D. 687, 689 (M.D.Fla. Feb. 1, 1994) (same); Dupervil v. Asplundh Construction Co., Case No. 04-81106-CIV-MIDDLEBROOKS (DE 19, p. 2) (same). It should not be an “undue burden or expense” to provide the names, last known mailing address and telephone number of these employees, as Defendant is in possession of such information.”

Thus the Court granted Plaintiff’s Motion to Compel in part, ordering the Defendant to respond to Interrogatories No. 13 and 14, outlined above.

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W.D.Wash.: Plaintiffs’ Immigration Status Irrelevant To FLSA/RCW Claims; Affirmative Defense Seeking To Estop Undocumented Immigrants From Recovery Based On Immigration Status Dismissed; No Counterclaim Against A Plaintiff For Indemnity Is Legally Cognizable Either

Bailon v. Seok AM No. 1 Corp.

This case was before the court on plaintiffs’ motion to dismiss and motion for protective order.  The issues presented turned largely around the question of whether the immigration status of plaintiffs/employees is at all relevant to the claims those employees filed against their defendant/employer under the Fair Labor Standards Act (“FSLA”) 29 U.S.C. §§ 201-219 and the Washington Minimum Wage Act (“MWA”) RCW 49.48.010 et. seq. Defendants sought to pursue discovery against plaintiffs arguing that their alleged status as illegal aliens prevents them from pursuing claims for unfair employment practices.  The Court concluded that the plaintiffs’ immigration status is irrelevant to any valid claim or defense and that public policy prohibits defendants from pursuing such discovery.  Additionally, the Court held that an FLSA Plaintiff may not properly be the subject of a counterclaim for indemnity based on actions taken as Defendants’ supervisory employee. 

The Court framed the issues before it as follows: (1) Whether alleged undocumented-worker immigration status provides a defense or counterclaim in an FLSA/MWA case for work already performed; (2) Whether FLSA/MWA defendants have a right to seek indemnity or contribution from third parties such as co-workers or joint employers; and (3) Whether FLSA/MWA claims are subject to personal defenses such as waiver, estoppel, unclean hands, laches, “independent intervening conduct of” third party, failure to mitigate damages, “equal[ ] or exceed[ing] fault of plaintiffs,” proximate cause of third party, failure to pay taxes, or a public policy punitive damages defense.

Addressing Plaintiffs’ Motion to Dismiss Defendants’ Affirmative Defenses first, the Court stated, “After carefully reviewing the case law and the facts as alleged by the parties, it appears that plaintiffs’ immigration status is irrelevant to any issue in this case. While the Supreme Court ruled that immigration status bars recover for future wages, see Hofman Plastics Compounds v. NLRB, 535 U.S. 137, 149, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), if the wage claim involves damages for past work performed, then the immigration status of the plaintiff is irrelevant. See Rivera v. Nibco, Inc., 364 F.3d 1057, 1063-69 (9th Cir.1004) (discussing Hoffman, Title VII claims for back wages are not barred because of employee’s immigration status).

Furthermore, although there is no Washington case directly on point, Washington courts have consistently construed the MWA in the same manner as the FLSA. See, e.g., Hisle v. Todd Pacific Shipyards Corp., 151 Wash.2d 853, 862, 93 P.3d 108 (2004); Chelan County Deputy Sherifs’ Assoc. v. County of Chelan, 109 Wash.2d 282292-93, 745 P.2d 1 (1987). While not binding, in the absence of state authority to the contrary, the federal precedent is persuasive on this issue. This appears to be consistent with the Washington State Department of Labor and Industries’ policy, as stated by its Director in May of 2002, following the Hoffman Plastics decision. The Washington State Director of Labor & Industries, Gary Moore, issued the following statement:

The 1972 law that revamped Washington’s workers’ compensation system is explicit: All workers must have coverage. Both employers and workers contribute to the insurance fund. The Department of Labor and Industries is responsible for protecting worker safety, ensuring that all workers be paid at least the minimum wage and providing workers with medical care and wage replacement when an injury or an occupational disease prevents them from doing their job. The agency has and will continue to do all that without regard to the worker’s immigration status. Exhibit 2 to Schmitt Decl. (Statement by Gary Moore, Director of the Department of Labor & Industries, May 21, 2002) Doc. # 11.

Therefore, there appear to be no set of facts that would support any of defendants’ allegations that plaintiffs’ claims under the FLSA are barred by their immigration status. Furthermore, defendants have cited no authority for the proposition that the WMA claims should be barred because of plaintiffs’ immigration status either. Accordingly, plaintiffs’ motion to dismiss defendants’ counterclaim alleging that plaintiffs lacked “standing to be lawfully employed” is hereby GRANTED.”

Next the Court turned to the question of whether an FLSA Plaintiff may ever be required to indemnify Defendants for actions committed as a supervisor under Defendants’ employ.  Answering this question in the negative, the Court stated, “The Court is unaware of any case in the Ninth Circuit regarding whether an individual supervisor may be held liable for contribution or indemnity to another defendant who may be liable for violations of the FLSA. But several other courts of appeals in other circuits have rejected claims seeking indemnity or contribution under those circumstances. See LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1264 (5th Cir.1986) (affirming dismissal of employer’s counterclaim against supervisory personnel for indemnity of plaintiffs’ claims under FLSA, and stating, “No cause of action for indemnity by an employer against its employees who violate the Act appears in the statute, nor in forty years of its existence has the Act been construed to incorporate such a theory”; Lyle v. Food Lion, 954 F.2d 984, 987 (4th Cir.1992) (affirming dismissal of employer’s counterclaim and third-party complaint for indemnity against plaintiff-supervisor for plaintiffs’ FLSA claims); Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir.1992) (holding employer’s third-party complaint seeking indemnity from employee for alleged FLSA violations was preempted); Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 144 (2d Cir.1999) (affirming dismissal of corporation chairman’s claims for contribution and indemnification against his co-owner and corporation’s manager and vice president).

 The Court is persuaded that it should dismiss defendants’ counterclaim seeking indemnity or contribution in this case. To rule otherwise would frustrate Congress’ purpose in enacting the FLSA, since an employer who believed that any violation of the statute’s overtime or minimum wage provisions could be recovered from its employees would have a diminished incentive to comply with the statute. LeCompte, 780 F.2d at 1264.

 Defendants argue they are entitled to assert their contribution and indemnity claim(s) based on state law, citing RCW 49.52.050, 49.52.070, Morgan v. Kingen, 166 Wash.2d 526, 210 P.3d 995 (2009), and Ellerman v. Centerpoint Prepress, 143 Wash.2d 514, 22 P.3d 795 (2001). Defendants’ argument misses the mark. This authority stands for the proposition that plaintiffs may have a claim against an individual supervisor, but does not stand for the proposition that another defendant who may be liable for wage claims has a contribution or indemnity claim against someone similarly situated.

Furthermore, the FLSA’s preclusion of contribution and indemnity claims preempts state law. “Creation of a state-law-based indemnity remedy on behalf of employers would not serve the congressional purpose of creating and maintaining minimum standards of employment throughout the national economy.”   LeCompte, 780 F.2d at 1264.

In sum, plaintiffs’ motion to dismiss is GRANTED; defendants’ counterclaim based on contribution or indemnity against Plaintiff Esquivel is DISMISSED.”

 Last, the Court granted Plaintiffs’ Motion for a Protective Order regarding discovery sought concerning their immigration status.

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E.D.Tex.: Where Class Consists Of Over 1000 Plaintiffs, Court Limits Discovery To 91 Randomly Chosen Representative “Discovery Plaintiffs”

Nelson v. American Standard, Inc.

Before the Court is Plaintiffs’ motion for entry of limited discovery order, filed in support of Plaintiffs’ proposal contained in the Joint Motion for Entry of Discovery and Case Management Plan and Scheduling Order.  Although the parties largely agreed on the extent of discovery to be conducted, Plaintiffs sought an Order limiting such discovery a representative sampling of 91 “discovery Plaintiffs,” while Defendants claimed they should be entitled to seek discovery from every individual class member.  Agreeing with Plaintiffs, the Court pared discovery down to the 91 representative Plaintiffs.

The Court described the dispute as follows:

“[The parties] have agreed to the scope of oral discovery and to a schedule governing the deadlines in this case. The parties have also agreed that they will select individual case participants as “Discovery Plaintiffs” as a representative sample from all of the individuals who are named plaintiffs or who have opted into the litigation. The “Discovery Plaintiffs” are to be selected as follows: (1) three Named Plaintiffs (Nelson, Gross, and Dewberry); (2) 19 individuals who submitted declarations in support of the Motion for Notice; and (3) 84 opt-ins selected at random by the parties from the 1,328 individuals in the consolidated case, with a specified number of opt-ins for each location.  The fundamental disagreement which remains to be resolved by the Court is the scope of written discovery. The central disagreement is that Plaintiffs seek to limit written discovery to the Discovery Plaintiffs who may be used at trial while Defendant seeks to allow written discovery to be issued to the entire class of 1,328 opt-in plaintiffs in some capacity. In the joint motion, both sides present their proposals on how written discovery should be conducted. In support of Plaintiffs’ proposal contained in the joint motion for discovery order, Plaintiffs’ also filed a motion for entry of limited discovery order. (Dkt. No. 110.) Plaintiffs seek to limit both written and oral discovery of class members to the agreed upon group of 91 Discovery Plaintiffs rather than to require all 1,328 participants to be subjected to written discovery and disclosures. Defendant seeks individualized written discovery for all opt-in plaintiffs.”

Citing other courts that have reached the same conclusion, the Court ordered representative discovery, rather than individualized discovery, stating:

“The Eastern District of Texas, and specifically this Court, is one of many jurisdictions that has ordered limited, representative discovery of the named plaintiffs and opt-in plaintiffs in FLSA actions. Schiff et al. v. Racetrac Petroleum, Inc., 2:03-cv-402-TJW, Dkt. No. 111 (E.D. Tex. June 8, 2005) (limiting discovery to a random sample of 35 opt-in plaintiffs). Numerous other courts also have found that individualized discovery is generally not appropriate in FLSA collective actions and should be limited to a representative sample of the entire group. See Smith v. Lowes Home Ctrs., 236 F.R.D. 354, 356-58 (S.D.Ohio 2006) (denying defendant’s request for individualized discovery of more than 1,500 opt-ins and instead ordering a representative sample of 90 randomly selected individuals from the opt-in plaintiffs); Cranney v. Carriage Services, Inc., 2008 WL 2457912 at *3-5 (D.Nev. June 16, 2008) (limiting individualized discovery to 10% of a relevant combination of workers and work sites for the opt-in plaintiffs). The Court finds that limiting discovery in a FLSA action to a relevant sample minimizes the burden imposed on the plaintiffs “while affording the defendant a reasonable opportunity to explore, discover and establish an evidentiary basis for its defenses.” Smith, 236 F.R.D. at 357-58. Further, the Court finds that there is no due process violation to Defendant in limiting written discovery to the Discovery Plaintiffs.

In this case “representative” discovery refers not only to the named plaintiffs but to a sample of 91 largely randomly selected individuals that the parties have agreed to designate as “Discovery Plaintiffs.” The Court finds that there is no reason that all defenses and alleged differences among class members cannot be ascertained and articulated based on the results of full discovery for the “Discovery Plaintiffs.” If the discovery shows defenses and differences for these individuals, Defendant Trane will be able to make its case for decertification or summary judgment. The fundamental precept of statistics and sampling is that meaningful differences among class members can be determined from a sampling of individuals. The Court finds that the agreed upon group of “Discovery Plaintiffs” is a statistically acceptable representative sample of the entire group of opt-in Plaintiffs. Defendant Trane has not shown that the representative sample needs expanding to all class members for discovery purposes. However, if after conducting the discovery of the representative sample Defendant Trane can demonstrate to the Court that broader discovery is appropriate and necessary, the Defendant can so move.

III. CONCLUSION

Accordingly, it is ORDERED that written discovery in this case be limited to the named plaintiffs and the 91 opt-in plaintiffs who the parties have agreed to designate as Discovery Plaintiffs. A concurrent order will be entered that adopts the parties’ joint proposal for discovery and case management plan and adopts the Plaintiffs’ proposal on written discovery, consistent with this order. Thus, Plaintiffs’ Motion (Dkt. No. 110) is hereby GRANTED.”

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N.D.Ill.: Tailors Scope Of Representative Discovery In Stage 1 Class Of 522 FLSA Plaintiffs; Plaintiffs Entitled To Protective Order Re: RFAs Served On Entire Class

Russell v. Illinois Bell Telephone Co.

The case was before the Court on Illinois Bell’s motion to compel the depositions of thirty-eight individual plaintiffs and to dismiss three individual plaintiffs. Additionally, plaintiffs moved for a protective order, pertaining to RFAs and RFPs served on every individual Plaintiff, in this 522 person class. For the reasons set forth below, the Court grants the motions in part and denies them in part.At the time of the Motions, Defendant had deposed twenty-four plaintiffs. Each side selected twelve of the deponents.

Significantly, Plaintiffs requested a protective order excusing them from responding to requests for admission (RTA) and requests for the production of documents (RFP) propounded by Illinois Bell.

The RTAs were sent to opt-in plaintiffs that had not been deposed. Each set of RTAs is identical containing ten requests. The ten requests essentially ask the plaintiff to admit that Illinois Bell did not violate her FLSA rights (e.g., “Admit that you did not perform any work on behalf of Defendant without compensation after the end of your scheduled shift.”). Pls.’ Mot for a Protective Order at 4-5. Each of the ten requests is a variation pertaining to a different alleged violation of the FLSA. In granting Plaintiffs a protective order pertaining to the RFAs and requiring them to answer the RFPs, the Court reasoned:

“District courts have broad discretion over matters relating to discovery. E.g., Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.2002); Fed.R.Civ.P. 26(b)(2). The Court agrees with plaintiffs that the responding to the RTAs would be unduly burdensome based on the circumstances of this case. As noted above, Illinois Bell is entitled to depose a reasonable and sufficient number of opt-in plaintiffs. Requiring the plaintiffs to respond to hundreds of RTAs, however, is unreasonable and will not advance the ball in this litigation. It is fair to assume that each plaintiff will deny the RTAs that pertain to her FLSA claim, leaving Illinois Bell without any additional information regarding similarities or dissimilarities among the class members. Conversely, requiring plaintiffs to respond to the RTAs would impose a significant burden on them and an enormous burden on their counsel, and it would defeat the purpose of utilizing representative discovery in FLSA class actions. E.g., Adkins, 143 F.R.D. at 174.

The RFPs were sent to opt-in plaintiffs who had not been previously been served with written discovery. They consist of four narrowly drawn requests for documents that would support or refute the particular plaintiff’s FLSA claims. The RFPs are more likely to yield relevant evidence than the RTAs. For example, disclosure regarding whether a plaintiff kept notes of when she allegedly worked overtime without appropriate compensation might be probative of whether such conduct actually occurred or the extent of it. Additionally, disclosure regarding whether a plaintiff possesses documents she contends required her to work overtime without compensation might be probative whether such a policy actually existed regarding or the whether plaintiff misinterpreted some policy of directive of Illinois Bell.

Moreover, certain actions by plaintiffs’ counsel have elevated the importance of the RFPs. During the deposition of one opt-in plaintiff, that deponent made reference to a document she contended Illinois Bell provided that informed her she would not be paid if she logged off of her phone. Plaintiffs’ counsel had not produced this document before the deposition, contending it was not responsive to a document request. Plaintiffs respond that the disclosures they made pursuant to Rule 26(a)(1) obviate the need for individual RFPs. The actions of plaintiffs’ counsel, however, undermine that contention.”

The Court concluded, “Illinois Bell’s RFPs are narrowly tailored, seek relevant information, and will not impose an undue burden on plaintiffs. Accordingly, the Court denies plaintiffs’ motion for a protective order regarding the RFPs.”

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S.D.N.Y.: Email From Employer’s “Management Team” Regarding FLSA Classification Not Attorney-Client Privileged

Clarke v. J.P. Morgan Chase & Co.

Before the Court in this FLSA/Overtime Law case was an application by defendant, J.P. Morgan Chase & Co. for an order compelling plaintiffs to return or destroy all copies of an e-mail message, dated December 3, 2007, allegedly sent from Defendant’s Global Technology Infrastructure Management Team (the “GTI Management Team”) to “all those in GTI who manage employees impacted by upcoming FLSA changes.” Defendants contended that the e-mail is protected by the attorney-client privilege and the work product doctrine and that the email, intended solely for senior management, was errantly forwarded to Plaintiffs, who it was not intended for. After considering arguments from both parties, the Court denied Defendant’s application, finding that the email lacked confidentiality and was not an attorney-client communication either.

First the Court addressed whether the email was in fact an “attorney-client communication”:

“Here, when distributed to management employees, the e-mail in question did not state that it was prepared by or was being sent from Gutfleisch; rather, the “sender” of the e-mail was identified only as the GTI Management Team. (Defendant’s 3/3/09 Letter, at Ex. A2.) Nor did the e-mail state that it contained privileged information. (Id.) Nor did it state that any of the information incorporated therein had been obtained from counsel, or was based on communications from counsel, or even that counsel had been consulted.(Id.) Nor did it state that the policy change reflected in the e-mail was intended to implement a recommendation of counsel. (Id.)

Defendant has the burden of establishing that the e-mail is privileged, see Mercator Corp. v. United States, 318 F.3d 379, 384 (2d Cir.2002), and, as a threshold matter, this includes showing that the recipients of the e-mail would have understood that it contained or referenced a communication from counsel. On this point, Defendant essentially asks the Court to assume that the recipients of the e-mail would have understood that the e-mail incorporated the advice of counsel because (1) the e-mail addressed the issue of FLSA compliance, (2) it noted facts regarding the IT employees’ job duties on which, according to Defendant, “no non-lawyer manager could ever have been expected to focus” (Defendant’s 3/3/09 Letter, at 4), and (3) it referenced litigation against other companies. Yet none of these aspects of the e-mail necessarily signaled to the recipients that the e-mail contained legal advice. Cf. Baptiste, 2004 U.S. Dist. LEXIS 2579, at *7 (finding that it was “of no moment that the e-mail was not authored by an attorney or addressed to an attorney” where the e-mail at issue “was clearly conveying information and advice given to [its author] by … outside counsel”); see also id. at *2 (noting that the e-mail at issue specifically referenced the author’s having spoken with counsel).)

Indeed, all of the information in the e-mail could easily have been understood to have come from senior management, working in conjunction with Defendant’s human resources (“HR”) department, as can be seen from the follow-up memorandum that was apparently sent out by the HR department on or about December 11, 2007. (See Letter to the Court from Sam S. Shaulson, Esq., dated April 1, 2009 (“Defendant’s 4/1/09 Letter”) (enclosing the follow-up memorandum), and attachment thereto; Defendant’s 3/3/09 Letter, at Ex. A2 (noting that follow-up would be sent on December 11 from “Corporate Sector HR”).).  Not only does that second communication also fail to mention any involvement of counsel, but it suggests that the recipients tell the reclassified employees that “Human Resources and technology management partnered to conduct a review of Technology jobs to ensure they are classified consistently from an overtime eligibility standpoint.”(Defendant’s 4/1/09 Letter, attached exhibit, at TG00003.).  Further, this follow-up memorandum explains that the reclassification was being made because, “[a]s a normal practice, we periodically review our jobs to ensure we have them classified consistently.” (Id. at TG00006). There is no implication that this particular compliance review was actually conducted by counsel and that the upshot of the review was a recommendation by counsel to implement a reclassification. On the contrary, the plain implication of the communications, especially when read together, was that the determination to reclassify certain employees was made by HR and “management,” as part of their “normal practice.” (Id. at TG00003, TG00006).”

The Court then addressed the separate issue of confidentiality:

Even if the Court were to find that an attorney-client relationship existed between Gutfleisch and the recipients of the e-mail, the way in which the e-mail was written in any event undermines any argument that a privileged communication was made with the expectation that it be kept confidential. Although the e-mail did request that the recipients “not begin any communication to employees prior to receiving specific details on December 11″ (see Defendant’s 3/3/09 Letter, at Ex. A2), the e-mail did not flag that any of its contents, in particular, were privileged and should not be communicated. Further, the December 11 follow-up memorandum (which, as stated above, was sent out by corporate HR) was plainly intended to provide guidance as to how to communicate with the employees whose positions had been reclassified; nothing therein identified any particular information that was supposed to be held back and not conveyed. (Defendant’s 4/1/09 Letter, at attached exhibit).  Thus, nothing about the original e-mail or its follow-up gave the recipients any indication that portions of the e-mail contained legal reasoning or legal advice that should be held in confidence.

Moreover, the fact that one or more of the affected employees actually obtained the e-mail in the course of their employment (see Declaration of Tapas Sarkar Regarding Letter Sent to Potential Class Members, dated Feb. 24, 2009 (“Sarkar Decl.”), at ¶¶ 2, 4-5, attached to Plaintiffs’ 2/24/09 Letter) bolsters the Court’s view that the recipients of the e-mail would not have been aware that it contained confidential legal advice.

At bottom, Defendant has not satisfied its burden of demonstrating that the recipients of the e-mail would have reasonably understood that its contents, or any specific portion of those contents, contained legal advice that was being communicated in confidence.”

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