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.