Love et al v. Retzer Resources Inc et al

Filing 202

ORDER denying 186 motion for sanctions. Supplemental production by 8/19/2016 ordered. Trial remains set for 9/26/2016. Amended pretrial disclosures due 9/2/2016 if we stay on track for trial. The Court has been able to reserve the Pine Bluff courthouse. Signed by Judge D. P. Marshall Jr. on 8/2/2016. (jak) (Additional attachment(s) added on 8/2/2016: # 1 Main Document - Correct) (thd).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JONATHAN LOVE; SHERI McWILLIAMS;
TRACY KEEN; and ROBIN LOVE

v.

PLAINTIFFS

No. 5:13-cv-292-DPM

MICHAEL L. RETZER, Individually, and in his
Capacity as an Owner, Officer and Manager of Retzer
Resources, Inc. and the Retzer Group, Inc.; and
RETZERLLC

DEFENDANTS

ORDER
Former Retzer employee Donna Thornton's last minute overture to
plaintiffs' counsel, her garage full of records, and the shadows her affidavit
cast over the time change records that Retzer had provided- all this
prompted the Court to take several steps. It continued the triat ordered all
the Thornton records copied and produced, and held an evidentiary hearing.
NQ 196.

The garage records were well handled as directed. But Thornton sent

new documents to plaintiffs' counsel after the production deadline. These
were not revealed until the evidentiary hearing. This caused another tangle.
The Court excluded the unproduced materials, but allowed plaintiffs to
proffer them and question witnesses about them to make a complete record.
The Court heard testimony from Thornton, Ezra Yildirim (a computer

technician involved in getting some records), Hal Burt (the Retzers' chief
operating officer), and Keasha Jones (a Retzer supervisor who used to work
for Thornton). The Court apologizes for its delay in ruling on plaintiffs'
motion to sanction the Retzers by striking their answer and reinstating the
collective action. Long story short, the motion is denied but the Court orders
a further production by the Retzers before trial. Here are the Court's findings
of fact.
1. The "Time Punch Change Approval Report[ - ]All Employees With
Detail" materials gathered by Yildirim and produced to plaintiffs were
unaltered. He was a credible witness- a computer guy with imperfect
English, who explained what happened. He came across some unreachable
payroll files on the POS server while working on another problem. He
reported this to Thornton, which prompted her to contact McDonalds
corporate for help. Only then did Retzer get codes and instructions about
how to retrieve these reports-not from the POS server, but from back-up
CDs created in the ISP server. Retzer (through Yildirim) faithfully printed
these reports for plaintiffs. While it was possible for these PDFs (like most

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PDFs) to have been altered, there's no evidence these reports were changed
in any way before production.
2. Why didn't the back-up CDs surface earlier? The proof as a whole
from Yildirim, Burt, Thornton, and Jones demonstrated uncertainty and
confusion. This was true about the different restaurant computer systems and
about how deep the records were archived on the back-up CDs. There was
also some incomplete record keeping. Retzer' s discovery responses and jointreport statements reflect mistakes resulting from this uncertainty and
confusion, not an effort to hide the truth.
3. The email/letter exchange between counsel in late October 2014 is
critical.

Plaintiffs' counsel immediately recognized that the Yildirim

production didn't come from the binders in Greenville. Retzer's counsel, at
that point, explained about the incomplete paper records and Retzer' s use of
back-up

CDs

at

the

Sheridan, Stuttgart,

and

Helena

locations.

Retzer - through Donna Thornton - confirmed the correctness of counsel's
explanation before it was given.
4. At that point, Retzer should have also produced the partial set of
time punch change reports it had in the binders. Given all the fussing about

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company reports that had already ocurred, and the related confusion, a full
production would have been most helpful to everyone. Here again, though,
more confusion: Burt testified at the hearing, for example, that he thought the
binder records were produced and supplemented with records from the backup CD. Not so. Thornton was managing the document production for
Retzer, and some of the fault here is with her. There was also time pressure.
If Retzer had also produced copies of the admittedly incomplete binder

reports, then everyone would have known about the second version of a key
report-the "Time Punch Change Approval Report[-]Changed Employees
Without Detail." The title of this record is a bit of a misnomer. Even though
the other version has more details, the second version has a place for the
manager and the employee to initial, showing joint approval of the time
change. That's important. The absence or presence of initials on the report
is relevant evidence from which reasonable inferences could be drawn. And
Retzer must fill this gap by copying whatever reports exist in the binders for
the remaining plaintiffs and providing those records now.
5. Retzer' s stumble here was matched by plaintiffs'. There was no
follow up on the back-up CDs and what other information they might

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contain. There was no follow up on the binders. Plaintiffs should have at
least reviewed the binders in Greenville or requested copies.· There was no
further correspondence between counsel about the back-up CDs, a new
records source. And the contents of the CDs weren't explored during the later
Thornton or Burt depositions. It could have been.
6. Thornton's credibility is thin. She's bitter about being eased out of
her job as an operations manager with Retzer in the summer of 2015. It's clear
that Thornton had Keasha Jones in her sights, and the Retzers sided with
Jones. Thornton's anger has colored her memory. The Court is unpersuaded
that anyone at Retzer told Thornton to lie about anything. She contradicted
her 2015 deposition testimony. She was mistaken about several things, such
as whether Jones was reprimanded, the interaction of the two computer
servers in the store, the best way to view u unedited" time punch changes, and
whether Retzer gave plaintiffs unedited change records. On the Friday
afternoon before trial, Thornton decided to return fire on the Retzers by

*Based on the dates, the Court's hunch is that only records involving
Tracy Keen exist in the binders. But Retzer should double check and
produce every report in the binders that it has for Keen, the two Loves, and
McWilliams.
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contacting plaintiffs' counsel. She offered a mixture of truth, overstatement,
and error.
7. For all the talk about the garage records on the morning of the
canceled trial, they revealed only two new things: the existence of the second
version of the time change report, which has the place for initials; and the
fl

Labor Violation Report," which is generated by the R2D2 program. The title

of this second report is unseemly. Though the Retzers did not choose the title,
they use the report, and it reflects their attitude about overtime -if possible,
Retzer doesn't want to pay any. This attitude was not a revelation. Beyond
these two new reports, the garage records and Thornton's critique of Jones
show what the plaintiffs have already demonstrated: Retzer tried hard to
contain labor costs; and there was lots of adjusted time among the fluid
workforce at these Retzer restaurants. What's still missing, though, is any
common Retzer policy of shaving time that could be tried in a collective
action. Ng 148.
8.

After the March 1st disclosure deadline, Thornton peppered

plaintiffs' counsel with email and some more documents.

They were

excluded at the evidentiary hearing out of fairness to Retzer because they

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weren't disclosed beforehand.

The Court has, however, reviewed the

proffered documents and proffered testimony.

Everyone explored this

information to some extent at the hearing. And in fairness, plaintiffs are
entitled to a word about it. Here again, the materials show Retzer pushing
hard to contain labor costs and discouraging overtime. But the additional
reports and the emails do not cast doubt on the Court's earlier decisions. A
collective action needed to be conditionally certified and then it needed to be
decertified-when the Court was faced with no common policies (beyond a
hard line against overtime) and a wilderness of single instances about lost
time.
9. Retzer' s responses to the formal and informal discovery requests, and
the Court's orders on the joint reports, were imperfect but adequate. We all
could have done better: the Court should have worked harder and sooner to
understand Retzer' s electronic records; plaintiffs should have looked into the
back-up CDs, the universe of possible reports, and the binders; and Retzer
should have puzzled through its record-keeping systems better and been
more forthcoming about what could be dug out of them. The Court notes
plaintiffs' good reference to Whittier. This latest dispute is partly a matter of

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what might have been. In a deeper sense, though, unlike Maud Muller and
the Judge, this case would be in about the same place even if no one had made
discovery mistakes. Rule 37 sanctions are not appropriate.

*

*

*

Motion for sanctions, NQ 186, denied. Supplemental production by
19 August 2016 ordered. Trial remains set for 26 September 2016. The Court
will know, and will advise, in late August whether any of its September
criminal cases are going to trial.

Amended pretrial disclosures due

2 September 2016 if we stay on track for trial. The Court has been able to
reserve the Pine Bluff courthouse.
So Ordered.
D.P. Marshall Jr.
United States District Judge

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