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N.D.Cal.: Defendant’s Motion to Compel Depositions of 3 Named Plaintiffs and 25 Opt-ins in Venue Where Case Pending Denied Due to Financial Concerns
Gee v. Suntrust Mortg., Inc.
This case was before the court on the defendant’s motion to compel the three named plaintiffs and twenty-five opt-in plaintiffs who live in twenty-five different cities across the country to appear for depositions in San Francisco or in three other cities of its choice. The defendant argued that the deponents were required to appear in San Francisco, which is where the FLSA putative collective action was filed, because they have not established good cause for appearing elsewhere. Prior to its motion, the defendant offered to take the depositions either in San Francisco or in three other cities it claims would be more convenient to the deponents. The plaintiffs had offered to produce the deponents in 14 different cities, or alternatively suggested that the depositions be taken by video conference. Plaintiffs opposed the motion, arguing that traveling to any of the cities selected by the defendant would be financially burdensome for them, and that requiring them to do so despite this burden would contradict the purpose of joining a collective action brought under the FLSA. Holding that the financial concerns expressed by the plaintiffs constituted good cause for excusing the deponents from traveling to the cities selected by the defendant for the depositions, the court denied the defendant’s motion.
Addressing the parties contentions, the court reasoned:
“One of the chief advantages of opting into a collective action, such as the one brought by Plaintiffs, is that it “lower[s] individual costs to vindicate rights by the pooling of resources.” Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 179, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Here, this advantage would be significantly reduced or even eliminated if the proposed deponents are required to travel hundreds of miles for their depositions. See, e.g., Bransfield v. Source Broadband Services, LLC, 255 F.R.D. 447, 450 (W.D.Tenn.2008) (rejecting defendants’ argument that opt-in plaintiffs in FLSA collective action must be required to appear for depositions in the forum where action was filed because doing so “would cancel much of the benefit gained by joining in the collective action” and because “the forum was chosen for [the opt-in plaintiffs]”). The Court is not persuaded by Suntrust’s interpretation of the case law cited by Plaintiffs, but even when taking its interpretation at face value, this case meets the criteria for excusing the deponents from appearing in the cities selected by Suntrust, as Suntrust has made no showing that the issues to be covered in the depositions are sufficiently complex to require in-person depositions.
Likewise, Suntrust’s argument that conducting the depositions via videoconference would be detrimental to its ability to question and observe the deponents is unconvincing. Parties routinely conduct depositions via videoconference, and courts encourage the same, because doing so minimizes travel costs and “permits the jury to make credibility evaluations not available when a transcript is read by another.” Fanelli v. Centenary College, 211 F.R.D. 268, 270 (D.N.J.2002) (citations omitted); see also Guillen v. Bank of America Corp., No. 10–cv–05825, 2011 WL 3939690, at *1 (N.D.Cal. August 31, 2011) (“A desire to save money constitutes good cause to depose out-of-state witnesses via telephone or remote means”). Accordingly, Suntrust’s motion is denied.”
Click Gee v. Suntrust Mortg., Inc. to read the entire Order Denying Motion to Compel.
M.D.Ga.: DOL Properly Invoked the “Government Informer Privilege” Where Defendants Sought Identities of Witnesses Who Cooperated in Pre-Suit DOL Investigation
Solis v. New China Buffet No. 8, Inc.
This case was before the court on defendants’ motion to compel the DOL (“DOL” or “Plaintiff”) to provide complete answers to discovery requests. Specifically, Defendants sought information relating to the DOL’s investigation (prior to the filing of the lawsuit) of this Fair Labor Standards Act (“FLSA”) case, particularly the identities of any employees that gave statements to the DOL, the contents of those statements, and the contents of the investigative file. The DOL refused to provide that information based on the informer’s privilege. The court upheld the DOL’s refusal based on the investigation privilege. However, the court ordered the DOL to provide the full contact information for all witnesses disclosed by the DOL in their Rule 26 disclosures.
The court boiled Defendants’ arguments down as follows:
“Defendants mount two arguments against Plaintiff’s refusal to disclose the requested information and documents. First, they argue that Plaintiff has not properly invoked the informer’s privilege. Second, they argue that the informer’s privilege should not protect the information they are seeking.”
Rejecting the Defendants’ first contention, that the DOL had not properly invoked the privilege, the court explained:
“Plaintiff properly invoked the informer’s privilege in this case. In response to Defendants’ Motion to Compel, Plaintiff produced a declaration from Acting Wage and Hour Administrator Nancy J. Leppink . In her declaration, Administrator Leppink stated that she had personally reviewed the relevant parts of the investigation file, including information withheld or redacted. [Doc. 34–1 ¶ 8]. She went on to the state that the Secretary of Labor objected to the production of the requested documents and identifying information because it was protected from disclosure pursuant to the informant’s privilege. [Id. ¶ 11]. She then “invoke[d] the informant’s privilege to protect from disclosure the identities, and any statements and other documents, or portions thereof, which could reveal the identifies, of persons who have provided information to the U.S. Department of Labor in the instant case.” [Id. ¶ 12].”
Turning to the applicability of the informer privilege to the case at bar, the court held that the discovery sought was properly the subject of the privilege. Describing the nature and purpose of the informer privilege, the court explained:
“What courts have termed the “informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Rovario v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The privilege protects “employees with legitimate complaints, exercising their constitutional and statutory right to present their grievances to the government.” Brennan v. Engineered Prods. Inc., 506 F.2d 299, 302 (8th Cir.1974). “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement.” Rovario, 353 U.S. at 59, 77 S.Ct. at 627. The government may invoke the privilege “to conceal the names of employees who precipitated the suit by filing complaints with the Department of Labor.” Does I thru XXIII v. Advanced Textile Corp. ., 214 F.3d 1058, 1072 (9th Cir.2000). The privilege “applies whether the [Department of Labor] solicited statements from an employee or the employee made a complaint to the [ Department of Labor].” Martin v. New York City Transit Auth., 148 F.R.D. 56, 63 (E.D.N.Y.1993) (citing Dole v. Local 1942, International Bhd. of Elec. Workers, AFL–CIO, 870 F.2d 368, 370–71 (7th Cir.1989)). The privilege applies to both current and former employees of a company whose workers have communicated with the Department of Labor. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305–06 (5th Cir.1972).
The informer’s privilege is not absolute. Its scope is “limited by the underlying purpose of the privilege as balanced against the fundamental requirements of fairness and disclosure in the litigation process.” Charles Martin, 459 F.2d at 305. If the “disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Rovario, 353 U.S. at 60, 77 S.Ct. at 627. Generally, in questions involving the privilege, “the interests to be balanced … are the public’s interest in efficient enforcement of the Act, the informer’s right to be protected against possible retaliation, and the defendant’s need to prepare for trial.” Charles Martin, 459 F.2d at 305. The defendant’s need for certain information is generally less weighty during the discovery phase, as opposed to the pre-trial stage of the proceedings. See id. at 307, Brennan, 506 F.2d at 303.”
The court then held that the privilege was indeed applicable here. In so doing, the court rejected Defendants’ argument that it would be inefficient to depose all 48 witnesses disclosed by the DOL, and questioned Defendants’ base assertion that they needed to know who participated investigation:
“The Defendants’ need to depose all forty-eight former employees listed in Appendix A, or even only those who provided statements, in order to adequately prepare a defense appears far from pressing. The relevance of the identity of informers in a FLSA case is often questionable. See Chao v. Westside Drywall, Inc., 254 F.R.D. 651, 660 (D.Or.2009) (noting that “the names of informers are [often] irrelevant to whether the employer properly paid its employees and otherwise complied with the Act’s requirements”). Defendants have failed to make any showing that this case is outside the normal situation wherein a defendant has access to information and its own witnesses regarding its wage and record keeping practices, and the identity of informers is largely irrelevant. In any event, courts have generally found that the cost and inconvenience that Defendants seek to avoid does not tip the balance in favor of disclosure. See Charles Martin, 459 F.2d at 307 (“[T]hat depositions would be expensive show that the statements would facilitate defendant’s investigation but such facilitation is not a requirement for fundamental fairness to the defendant.”); Brennan, 506 F.2d at 303 & n. 3 (noting that at the discovery stage defendant was entitled to know “the charges, dates, names of underpaid employees, and names of those persons known to the plaintiff who had information concerning the issues” and that defendant had the ability to depose nineteen workers listed as possessing such information).”
For these reasons, the court upheld the application of the informer privilege. However, because the DOL had disclosed the names of the witnesses at issue, among the 48 witnesses on their Rule 26 disclosures, the court held Defendants were entitled to their contact information, notwithstanding the fact that the DOL did not have to identify whom of the 48 witnesses had given statements in the pre-suit investigation.
While this case is of limited usefulness to private practitioners, it does give an interesting analysis into a privilege that seems to be litigated more and more, with the DOL getting more active in litigating cases.
Click Solis v. New China Buffet No. 8, Inc. to read the entire Order on Defendants’ Motion to Compel.
S.D.Ind.: FLSA Defendant Not Entitled to Discovery of Plaintiff’s Attorney’s Billing Records, Until Such Time Plaintiff Is “Prevailing Party”
Johnson v. Bridges of Indiana, Inc.
This case was before the court on the defendant’s motion to compel discovery of plaintiff’s attorney’s billing records. In denying the motion, the court noted that only a “prevailing” plaintiff is entitled to attorney’s fees. As such, the request was premature.
Denying the motion to compel, the court explained:
“The FLSA directs courts to award reasonable attorneys’ fees and costs to prevailing plaintiffs.” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir.1999) (emphasis added). Federal Rule of Civil Procedure 54(d)(2) and the common practice in this District requires the court to establish an appropriate fee after the Plaintiff has prevailed at trial. Plaintiff has not yet, and may never, become a “prevailing plaintiff.” Rule 26(b)(1) of the Federal Rules of Civil Procedure explains: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense …. Because Plaintiff has not yet become a prevailing party, her attorney’s billing records are not relevant to any claim she has raised against Defendants, nor is it relevant to any defense that Defendants might raise.”
Click Johnson v. Bridges of Indiana, Inc. to read the entire decision.