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S.D.Ohio: Stage I Scrutiny Applied to Motion for Conditional Certification, Filed Prior to Bulk of Discovery, Notwithstanding Discovery Thereafter
Engel v. Burlington Coat Factory Direct Corp.
In a scenario that seems to be playing out more and more throughout the country, given the prevalence of FLSA collective action filings, this court was faced with a decision regarding which type of scrutiny to apply to plaintiffs’ motion for conditional certification of a collective action. Although the plaintiffs filed their motion only three (3) months into discovery, by the time the court was able to address the motion, discovery had concluded. While the plaintiffs maintained that the court should apply Stage I scrutiny, the defendants argued that Stage II scrutiny (or “final certification” scrutiny) should be applied, because discovery had been completed after plaintiffs filed their motion. The court reasoned that the lower Stage I scrutiny should be applied, based on the posture of the case when plaintiffs filed their Motion, not when the decision was rendered.
Discussing the issue, the court explained:
Plaintiffs and Defendants dispute whether this suit is in the first or second phase of inquiry. Defendants argue that this case is fully discovered, as the parties have produced more than 3,500 documents, served multiple sets of interrogatories and requests for production, and have taken six depositions. (Doc. 24, at 23). Plaintiffs filed their motion for conditional certification eight months after discovery opened, and five months before discovery closed on March 29, 2013. (Id.). Plaintiffs argue that because no discovery was permissible prior to the February 13, 2012 26(f) conference, and the parties agreed to postpone discovery pending mediation in July 2012, discovery had occurred less than three months before their motion for conditional certification was filed. (Doc. 26, at 8). Before Plaintiffs’ motion was filed in October, only three depositions had been taken. (Id.)
This Court finds that this suit is in the first phase of inquiry. Discovery closed on March 29, 2013, and Plaintiffs’ motion was filed in October 2012. Thus, discovery had not completed by the time Plaintiffs’ motion was filed. Moreover, as Plaintiffs correctly point out, only three out of eight total months of discovery took place before their motion was filed.
In ruling on Plaintiff’s motion, the Court’s analysis will employ the first phase of inquiry.
Click Engel v. Burlington Coat Factory Direct Corp. to read the entire Order & Opinion.
W.D.N.Y.: Defendant’s Attorneys’ Billing Records Relevant and Discoverable Where Defendant Put Reasonableness of Hours and Rates Charged by Employee’s Attorneys at Issue, By Opposing Plaintiffs’ Motion For Attorneys’ Fees
Mendez v. Radec Corp.
Following an order granting the parties’ joint motion for approval of settlement agreement, the plaintiff moved for award of attorneys’ fees and renewed his motion to reopen discovery to discover defense counsel’s billing records. Over defendant’s objection, the court granted plaintiff’s motion, reasoning that the billing records were relevant and discoverable, because the defendant had put the reasonableness of hours and rates charged by plaintiff’s counsel at issue, by opposing plaintiff’s motion for attorneys’ fees.
Initially the court noted that cases have come down on both sides of the issue, with some courts holding that defenses counsel’s billing records are discoverable, while others have held that they are not.
Discussing the applicable law generally, the court explained:
The general principle underlying these divergent results seems to be that whether such information is discoverable depends on the nature of the objections raised to the fee request. Where the opposing party challenges the reasonableness of the rate or hours charged by the moving party’s counsel, courts are more likely to find that evidence of the nonmoving party’s counsel’s fees are relevant and discoverable. See State of New York v. Microsoft Corp., No. 98–1233, 2003 WL 25152639, at *2 and n. 3 (D.D.C. May 12, 2003) (stating that “some of the cases explicitly note that ‘ [w]hether discovery is appropriate depends, in part, on the objections raised by the opponent to the fee petition going to the reasonableness of the fee petition’ “) (quoting Murray v. Stuckey’s Inc., 153 F.R.D. 151, 152–53 (N.D.Iowa 1993)) (collecting cases); see, e.g., Pollard, 2004 WL 784489, at *3 (stating that because “DuPont objected to the excessiveness of the fees requested in the fee petition for the preparation of the fee petition …, it appears that DuPont’s own counsel’s time spent in preparing a response to Pollard’s petition for fees would serve as a logical yardstick from which to determine the reasonableness of such time expended by the plaintiff’s counsel”).
Addressing and rejecting the defendant’s contentions that their billing records were not subject to discovery, the court reasoned:
In the case at bar, defendants have not only challenged the reasonableness of the fees sought by plaintiffs, they have also expressly referenced their own fees in support of their arguments. For example, in their memorandum of law, defendants cite the specific fees and costs sought, and hours claimed, by plaintiffs’ counsel, and contrast them with those of defense counsel, noting that “Plaintiffs seek almost 3 times as much compensation for prosecuting this action as Radec spent to defend.” Dkt. # 334 at 6. Later, in discussing plaintiffs’ counsel’s hourly rates, defendants state that “the rates charged to Radec in this case are instructive.” Id. at 12. Similarly, defendants state that over a certain period, “Radec was charged only the flat fee of $175,000,” whereas “Plaintiffs claim $764,915.00 in fees for the same period….” Id. at 19.
Thus, defense counsel themselves have put at issue the reasonableness of the hours and rates charged by plaintiffs’ attorneys, and have used their own hours and rates as yardsticks by which to assess the reasonableness of those sought by plaintiffs. I therefore find that defense counsel’s billing records are relevant and discoverable. Cf. Marks Constr. Co. v. Huntington Nat’l Bank, No. 1:05CV73, 2010 WL 1836785, at *7 (N.D.W.Va. May 5, 2010) (“absent an attempt [by defendants] to claim a comparison between what Defendants paid and the claims of Plaintiffs as the basis for challenging the reasonableness of Plaintiffs’ claimed fees, there is no relevance shown with respect to the issues of the amount and reasonableness of attorneys fees and costs claimed by Plaintiffs’ counsel that justifies the required production of the billing records of [defense counsel]”).
Defendants’s argument that their detailed billing records are not discoverable because their opposition to plaintiffs’ fee request only cited the total hours and rates charged to defendants by their attorneys, see Def. Mem. of Law (Dkt. # 344) at 3, misses the point. In arguing that the hours claimed by plaintiffs’ attorneys are unreasonable, defendants have focused on specific hours and entries in plaintiffs’ counsel’s billing records. Defendants have stated, for example, that plaintiffs’ request for $15,000 for time spent preparing affidavits in connection with a particular motion is excessive, that one of plaintiffs’ attorneys billed 1.5 hours for a hearing that only took a half hour, and that plaintiffs’ allocation of 1443.2 hours of work on preparing binders is “outrageous.” Dkt. # 334 at 17–18. It is precisely because defense counsel then cite only their total time spent on the case that renders it difficult to determine whether this is a fair comparison.
While the court recognized that there may be significant differences in the ways that plaintiffs’ counsel and defense counsel litigate a case, and that this could cause a disparity between the two sides’ respective hours and hourly rates, the court explained that any such a disparity would not necessarily mean that one side’s fees were necessarily unreasonable or excessive. Further, the court held that such considerations go to the weight to be assigned to defense counsel’s billing records rather than rendering them non-discoverable. Thus, the court granted plaintiff’s motion.
Click Mendez v. Radec Corp. to read the entire Decision and Order.
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.”
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 464. See 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).”
E.D.Ky.: “Self-Critical Analysis” Privilege Does Not Shield Employer From Disclosure Of Documents Relating To FLSA Classification; Such Discovery Is Relevant To Issues Of “Good Faith” And Willfulness
Cochran v. National Processing Co.
This matter was before the Court on the Motions to Quash filed by the Defendants. Defendants sought to quash a subpoena issued by the Court and served on one of the Defendants (Hanna), seeking documents relating to the FLSA classification of the Plaintiffs, who were employees of Defendant, National, assigned to work for Defendant, Hanna. Defendants argued that the documents requested in the subpoena are protected under the self-critical analysis privilege and that they are beyond the scope of discovery.
The underlying action was pending in the United States District Court for the Southern District of Texas. National was the Defendant in the Texas action. The Plaintiffs in that action are current and former National employees. They asserted a claim against National under the Fair Labor Standards Act, alleging that National had improperly classified them as “exempt” employees under the Act and has, thus, improperly failed to pay them overtime. Hanna, which is located in Lexington, Kentucky, was not a party to the Texas action. However, the subpoena required Hanna to produce certain documents relating to work performed by Hanna for National regarding National’s policies and procedures for paying overtime.
Discussing the lack of “self critical analysis” privilege, the Court stated:
“National argues that the documents sought by the Plaintiffs are protected by the ‘self-critical analysis privilege.’
As an initial matter, it is not clear that the privilege exists. As support for its argument that the Sixth Circuit has adopted the self-critical analysis privilege, the Plaintiffs cite ASARCO, Inc. v. N.L.R.B., 805 F.2d 194 (6th Cir.1986). In that case, the Sixth Circuit determined that the employer should not have to disclose self-critical reports prepared after serious accidents in order to improve safety and prevent similar mishaps. Id. at 199. The court determined that “[t]he practice of uninhibited self-critical analysis, which benefits both the union’s and employer’s substantial interest in increased worker safety and accident prevention, would undoubtedly be chilled by disclosure.” Id. at 200.
However, that case involved a company’s duty to turn over certain information in collective bargaining efforts with the employee’s union. The Sixth Circuit specifically noted that items subject to discovery in litigation may not be subject to disclosure “in the collective bargaining context” and that any duty to disclose in that context must be evaluated in light of the rights and obligations created by the National Labor Relations Act. Id. at 199.
Even after ASARCO, district courts have found that the Sixth Circuit has never explicitly adopted the self-critical analysis privilege. See United States v. Allison Engine Company, Inc., 196 F.R.D. 310, 313-14 (S.D.Ohio 2000); Hickman v. Whirlpool Corp., 186 F.R.D. 362, 363 (N.D.Ohio 1999).
One district court has summarized the status of the privilege as follows:
Furthermore, “no circuit court of appeals has explicitly recognized the self-critical analysis privilege.” Johnson v. United Parcel Serv., Inc., 206 F.R.D. 686, 689-90 (M.D.Fla.2002). Most important, the validity of the self-critical analysis privilege is highly doubtful in light of the Supreme Court’s decision University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S .Ct. 577, 107 L.Ed.2d 571 (1990), which declined to recognize a common law privilege against disclosure of confidential peer review materials.Granberry v. Jet Blue Airways, 228 F.R.D. 647, 650 (N.D.Cal.2005).
In Allison Engine, the court considered a claim of self-critical analysis privilege regarding internal audits of quality control for products supplied to the United States Navy. It applied a four-part test from Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970):
(1) the information must result from self-critical analysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of the type whose flow would be curtailed if discovery were allowed; and (4) no documents should be accorded the privilege unless it was prepared with the expectation that it would be kept confidential.
Allison Engine, 196 F.R.D. at 312.
The court rejected the privilege in that case, noting that the privilege had rarely been applied and that its very rationale had been called into doubt. Id. at 313.See also Wade v. Washington Metropolitan Area Transit Authority, 2006 WL 890679 at * 5 (D.D.C.2006)(the privilege is “rarely recognized.”)
Even if the Sixth Circuit has or would adopt the privilege, National would not meet all four elements of the test set forth above. National argues that the documents requested from Hanna relate to an evaluation that National hired Hanna to perform of National’s classification of employees as exempt or non-exempt under the FLSA. However, clearly not all the information contained in documents relating to the evaluation are necessarily protected by the privilege:
The privilege is not absolute. It applies only to analysis or evaluation, not the facts on which evaluation is based. See In re: Crazy Eddie Securities Litigation, 792 F.Supp. 197, 205 (E.D.N .Y.1992). Courts have protected analytical or evaluative information but allowed discovery of factual information. See Troupin, 169 F.R.D. at 550. Under the privilege, parties are not required to reveal self-critical analyses, but must produce data or statistical information. See Roberts v. National Detroit Corp., 87 F.R.D. 30, 32 (E.D.Mich.1980). Information, documents or records otherwise available from other sources are not immune from discovery. See Shipes, 154 F.R.D. at 307 (citing Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430, 434 (1981)). Additionally, this is a qualified privilege and it can be overcome by showing extraordinary circumstances or special need. See Reichhold Chem. Inc., 157 F.R.D. at 527. The privilege must be balanced against the opposing party’s need for discovery. See In re: Crazy Eddie Securities Litigation, 792 F.Supp. at 205. Allison Engine, 196 F.R.D. at 315.
The subpoena requests “all documents relating or pertaining to any review(s), audit(s), consulting or human resources management-related work performed by you for [National] regarding its policies or procedures concerning payment of overtime and/or classification of employees for overtime purposes,” and “all communications between you and anyone with [National] related to its policies or procedures concerning payment of overtime and/or classification of employees for overtime purposes.”
National has produced no evidence at all regarding the kinds of information contained in the documents requested, i.e., whether the information is “analysis” or “evaluation” or whether the information is “factual.” Thus, the Court has no basis for finding any of the documents are privileged.
Further, the privilege is most often applied in cases involving public health or safety. First Eastern Corp. v. Mainwaring, 21 F.3d 465, 467 n. 1 (C.A.D.C.1994). In fact the privilege was “initially developed to promote public safety by encouraging businesses to voluntarily evaluate their safety procedures. Morgan v. Union Pacific R. Co., 182 F.R.D. 261, 265 (N.D.Ill.1998)(citing Bredice v. Doctors Hosp. Inc., 50 F.R.D. 249, 251 (D.D.C.1970)). “Because production of such documents ‘would tend to hamper honest, candid self-evaluation geared toward the prevention of future accidents,’ the doctrine evolved in order ‘to prevent a ‘chilling’ effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by instituting practices assuring safer operations.’ “ Id. (citing Granger v. National R.R. Passenger Corp., 116 F.R.D. 507, 508-509 (E.D.Pa.1987)).
While the privilege has been applied in other settings, the “essence of the privilege is the value to the public of continuing the free flow of the type of information created by the analysis. Consequently, the inquiry focuses on the public policy requirement, that is, whether disclosure of material generated by a party’s self-critical analysis will discourage or curtail future such studies.” Drayton v. Pilgrim’s Pride Corp., 2005 WL 2094903 at *2 (E.D.Pa.2005).
The assessment at issue in this case involved National’s classification of employees as exempt or non-exempt under the FLSA. National argues that it hired Hanna to develop and implement a compensation structure for the company including an evaluation of National’s classification of employees as exempt or non-exempt under the FLSA. Disclosure of that assessment will not inhibit National from conducting further such assessments. In order to pay its employees, it obviously must continue to classify them as exempt or non-exempt. Thus, to the extent that the Hanna report contained any “evaluation” or “analysis,” National must continue to engage in that analysis in order to pay its employees and avoid liability under the Act.
The privilege has been extended to employment cases to “protect business entities which are legally mandated to critically evaluate their hiring and personnel policies.” Morgan v. Union Pacific R. Co., 182 F.R.D. 261, 265 (N.D.Ill.1998). However, the rationale for the privilege in employment cases is different than it is for tort cases. While, “the justification for the privilege in tort cases is to promote public safety through voluntary and honest self analysis,” id., the privilege in employment cases is meant to “protect those businesses that are required to engage in critical self-evaluation from exposure to liability resulting from their mandatory investigations.” Id. To the extent that Hanna’s assessment contained any “evaluation” or “analysis,” National has pointed to no law requiring such an evaluation.
For all these reasons, the Court hold that the Hanna documents are not protected under the self-critical analysis privilege.
Next the Court addressed Defendants’ argument that the documents sought were not relevant. Rejecting this argument, the Court explained, “National objects that the documents sought are not relevant to the Plaintiffs’ action and Hanna has joined in that objection. National argues that the Plaintiffs are IT Support Technicians in Texas but that the subpoena seeks information about every National employee and that it seeks information beyond the classification of those employees under the FLSA.
The Plaintiffs argue that the documents are relevant to the “good faith” defense to the imposition of liquidated damages under the Act and to the extended statutory limitations period for “willful violations” of the Act. National has asserted the good faith defense and has denied any willful violations or purposes of extending the limitations period. The Plaintiffs argue that the defense “delves into the mind of the employer” and, thus, communications with Hanna regarding interpretation and application of the FLSA are relevant.
The Court agrees with the Plaintiffs that National’s communications with Hanna regarding the FLSA classification of its employees for overtime purposes is relevant to National’s “good faith” and “willfulness.” The subpoena is confined to documents regarding “payment of overtime and/or classification of employees for overtime purposes.” Accordingly, the documents requested in the subpoena are discoverable.”
EDITOR’S NOTE: Within days of the issuance of the Order in this case, a court within the Northern District of California held that there is no such thing as the “self-critical analysis” privilege. See Lewis v. Well Fargo & Co., 2010 WL 890183 (N.D.Cal. March 12, 2010).
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.
E.D.La.: FLSA Defendants Not Entitled To Discover Plaintiffs’ Social Security Numbers Because Irrelevant; Need To Comply With Tax Laws Insufficient Reason
Baca v. Brother’s Fried Chicken
Before the Court were: (1) the motion of the defendants, Omar Hamdan, Fatmah Hamdan, Alberta, Inc., FHH Properties, LLC, and Alberta Management, LLC, pursuant to Fed.R.Civ.P. 12(e), for a more definite statement; and (2) the motion of the plaintiffs, Angela Mericia Baca and Abigail Analqueto, for a protective order limiting inquiries with in terrorem effect. The motions were related. The defendants’ sought an order requiring the plaintiffs to provide Social Security numbers and addresses. The plaintiffs sought a protective order barring the defendants from inquiring into this information. The Court granted Plaintiffs’ Motion and denied Defendants’.
The Court noted, “[i]n Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y.2002), the court stated:Courts have generally recognized the in terrorem effect of inquiring into a party’s immigration status when irrelevant to any material claim. In particular, courts have noted that allowing parties to inquire about the immigration status of other parties, when not relevant, would present a danger of intimidating that would inhibit plaintiffs in pursuing their rights.”
The Court, in granting Plaintiffs’ Motion for a Protective Order and denying Defendants’ Motion discussed the 5th Circuit case In re Reyes, 814 F.2d 168,170 (5th Cir.1987) paraphrasing, “[t]here is much stronger justification in this case [for a writ of mandamus] where there is no possible relevance and the discovery could place in jeopardy unrelated personal status matters.” Id. at 170-71. “Inasmuch as the protections provided by the FLSA apply to undocumented aliens, the plaintiffs’ immigration status, Social Security numbers and addresses are not relevant. In Agusiegbe v. Petroleum Associates of Lafayette, 486 So.2d, 314 (La.App. 3rd 1986), the defendant contended that the plaintiff falsely represented himself to be employable as a U.S. citizen. The court held that the LWPA applied to all employees, regardless of their nationality. Id. at 316. The information sought by defendants is not relevant to plaintiffs’ LWPA claims.
The defendants urge that the information is required to permit them to comply with the provisions of the Internal Revenue Code for the completion of Forms 1099 and W-2. The burden of reporting payroll information rests with the employer. The defendants have not demonstrated why they could not have obtained this information when the plaintiffs first began working for them. The plaintiffs are not required to provide it to defendants in connection with the pending FLSA and LWPA claims.”
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.”
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:
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.”
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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