Tag Archives: Discovery

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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E.D.La.: FLSA Plaintiffs’ Immigration Status Not Discoverable

David v. Signal Intern., LLC

Among their claims in this case, the undocumented immigrant Plaintiffs alleged various FLSA violations. The Defendants moved to compel information pertaining to Plaintiffs’ immigration status and the Court granted Plaintiffs request for a protective order, citing the in terrorem effect such a disclosures would likely have. The Court cited the other Courts who had held the same way and discussed the issue at great length.

The Defendants addressed the relevance of the information sought and contended that plaintiffs must demonstrate that the issues are not relevant to any claim or issue in the case, including plaintiffs’ civil rights or tort claims. Plaintiffs contended that the damage and prejudice which would result if discovery into their current immigration status were permitted far outweighs its probative value with respect to their discrimination and tort claims.

In discussing the issue the Court stated, “[t]his Court finds plaintiffs’ argument persuasive. Even if current immigration status were relevant to plaintiffs race/national origin discrimination, contract and tort claims, discovery of such information would have an intimidating effect on an employee’s willingness to assert his workplace rights. Plaintiffs’ claims and allegations of fact supporting same in the case at bar find no parallel in reported federal decisions reviewed by the undersigned. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir.2004) (“[W]ere we to direct district courts to grant discovery requests for information related to immigration status in every case involving national origin discrimination under Title VII, countless acts of illegal and reprehensible conduct would go unreported.”).

As stated above, this is also an action for unpaid wages and overtime for work actually performed for Signal. Courts have recognized the in terrorem effect of inquiring into a party’s immigration status and authorization to work in this country when irrelevant to any material claim because it presents a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.” Here, plaintiffs’ current immigration status is a collateral issue. The protective order becomes necessary as “[i]t is entirely likely that any undocumented [litigant] forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face … potential deportation.”
Liu v. Donna Karan International, Inc., 207 F.Supp.2d 191, 193 (S.D.N.Y.2002) (citations omitted).
Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002) (quoting Flores v. Albertsons Inc., 2002 WL 1163623, *6 (C. D.Cal. Apr. 9, 2002)); see also EEOC v. First Wireless Group, Inc., 225 F.R.D. 404 (E.D.N.Y.2004) (good cause shown for protective order where disclosure of immigration status would cause embarrassment, potential criminal charges, or deportation if status was discovered to be illegal).”

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E.D.N.Y.: FLSA Plaintiff’s Immigration Information Not Discoverable Because Irrelevant

Trejos v. Edita’s Bar and Restaurant, Inc.

In this case, the Defendant’s moved to compel Plaintiffs to answer questions at deposition regarding their immigration status. The primary issue substantively before the Court was whether Plaintiffs were employees entitled to FLSA coverage or independent contactors, and therefore, outside of the FLSA’s coverage. Initially, the Court granted Defendant’s Motion to Compel this testimony. On Plaintiffs’ Motion for Reconsideration however, the Court reversed itself, vacating its prior Order and, following well-settled law found this information is undiscoverable and irrelevant stating:

“Plaintiffs argue that the questions are not relevant to the issue of whether plaintiffs were employees of defendants for purposes of the Fair Labor Standards Act (the “FLSA”), and that the questions should be precluded in any event because of their in terrorem effect. Defendants respond that the information is necessary for a determination of whether certain plaintiffs were defendants’ employees or, as defendants allege, independent contractors under the FLSA.

The information-whether plaintiffs had green cards or working papers-is not relevant to the question of whether plaintiffs are employees under the FLSA. First, as even defendants acknowledge in their opposition to plaintiffs’ motion, federal courts have consistently recognized that even undocumented workers are entitled to the FLSA’s protections. See, e.g., Flores v. Amignon, 233 F.Supp.2d 462, 463 (E.D.N.Y.2002) (collecting cases). Second, in a case where, as here, defendants contend that plaintiffs were independent contractors and not employees subject to the FLSA, the Second Circuit applied an “economic reality” test, which considers the following factors:

(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business.

Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir.1988); see also Schwind v. EW & Assocs., Inc., 357 F.Supp.2d 691, 700-02 (S.D.N.Y.2005) (applying Brock and concluding that plaintiff was an employee, not an independent contractor); Lee v. ABC Carpet & Home, 186 F.Supp.2d 447, 453-57 (S.D.N.Y.2002) (applying the five factors outlined in Brock to determine whether a worker was an employee or an independent contractor under the FLSA); McGuiggan v. CPC Int’l, Inc., 84 F.Supp.2d 470, 479 (S.D.N.Y.2000). Although these factors are not exclusive, and a court must consider the totality of the circumstances, Brock, 840 F.2d at 1059, whether or not plaintiffs had green cards or working papers is simply not relevant when applying the Brock test to determine whether plaintiffs are employees under the FLSA. Indeed, defendants are unable to cite a single case in which a court held that a plaintiff’s immigration status, or whether the plaintiff possessed a green card or working papers, was relevant to the viability of the plaintiff’s FLSA claim.

Although defendants argue in their opposition that the discovery they seek will establish that plaintiffs sought to avoid employee status, the subjective intent of the parties in forming the employment relationship has little to no significance in determining whether a plaintiff is an independent contractor or employee. Schwind, 357 F.Supp.2d at 702 (finding that plaintiff was an employee for purposes of the FLSA, even though both parties treated plaintiff as an independent contractor). See also Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 302, 105 S.Ct. 1953, 1962 (1985) (concluding that workers may be deemed employees under the FLSA, even though the workers considered themselves volunteers); Brock, 840 F.2d at 1059 (noting that an “employer’s self-serving label of workers as independent contractors is not controlling”). One district court explicitly rejected an argument similar to the one defendants make here, noting that “neither the subjective intent of the worker in forming the employment relationship nor the label affixed by the putative employer controls the question whether a worker is an employee under the FLSA.” Montoya v. S. C.C.P. Painting Contractors, Inc., 589 F.Supp.2d 569, 577-78 (D.Md.2008) (citing Tony & Susan Alamo Found., 471 U.S. 290, 105 S.Ct.1953). While defendants correctly point out that Montoya involved a motion for summary judgment and not a discovery motion, both Flores and Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d 191, 192 (S.D.N.Y.2002), held that discovery of plaintiff’s immigration status should be precluded. I find these authorities persuasive and conclude that defendants’ contention of their need for the information is without merit.”

Recognizing the intimating effect such disclosures could and do have on FLSA Plaintiffs, the Court further noted: “even if the information sought were somehow relevant, the in terrorem effect of the questions defendants seek to press outweighs the need for disclosure. See Flores, 233 F.Supp.2d at 464-65; Liu, 207 F.Supp.2d at 192-93. Indeed, despite my efforts to permit only narrow discovery of whether plaintiffs had green cards or working papers, defendants have attempted to obtain information concerning plaintiffs’ immigration status through other questions. See Pl. Letter dated Feb. 17, 2009 p. 4 (citing the deposition of plaintiff Diana Trejos at 56).

For these reasons, plaintiffs’ motion for reconsideration is granted. Defendants are precluded from asking plaintiffs whether they had green cards or working papers at all future depositions.”

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