Parks v. Bost, Inc.

Filing 58

OPINION AND ORDER granting in part and denying in part 45 Defendant's Motion to Compel Discovery, as set forth. The parties are to submit a proposed protective order by April 6, 2015. Signed by Honorable P. K. Holmes, III on March 31, 2015. (jas) Modified text on 3/31/2015 (jas).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JANET CUMMINGS, individually and
on behalf of all others similarly situated
v.

PLAINTIFF

Case No. 2:14-CV-02090

BOST, INC., d/b/a Bost

DEFENDANT
OPINION AND ORDER

Before the Court is Defendant Bost, Inc.’s (“Bost”) motion to compel discovery (Doc. 45)
and brief in support (Doc. 46), and Plaintiff Janet Cummings’s response (Doc. 49). The Court
held a hearing on this matter on March 19, 2015 with counsel for each party in attendance. For
the following reasons, the Court finds that Bost’s motion to compel should be GRANTED IN
PART and DENIED IN PART.
I.

Background
Bost is an Arkansas non-profit corporation that provides various levels of care to disabled

individuals throughout Arkansas. From 2009 to 2012, Cummings was employed by Bost as a
Residential Habilitation Aid (“RHA”), which involved providing direct daily care to Bost clients.
Cummings brings this action 1 to recover, inter alia, unpaid overtime wages under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et. seq., for Bost’s failure to pay her and others who are
similarly situated for hours worked in excess of forty per week. Specifically, Cummings claims
that Bost required all RHAs to work in excess of forty hours per week, but had a policy to
indiscriminately categorize RHAs as day-rate workers as opposed to hourly workers and exempt

1

This action was originally brought by Cliff Parks, but Parks later voluntarily dismissed his claims
against Bost and Cummings was substituted as the named plaintiff.

from the FLSA due to the “companionship exemption.” Bost claims that this exemption was
properly applied to any and all employees who claim they were denied overtime pay.
Bost’s motion to compel asks the Court to enter an order compelling Cummings to produce
complete responses to Bost’s first set of interrogatories and requests for production. Specifically,
Bost moves for Cummings to provide complete responses to Interrogatories 2, 3, 4, 6, 9, 11, 12,
and 14, and Requests for Production 1, 2, 3, 5, 6, 7, 8, 9, 10, 16, 26, 27, and 28. 2 Bost asserts that
the discovery at issue is necessary to assist in proving that Cummings was subject to the
“companionship exemption” of the FLSA and in refuting Cummings’s claims of hours worked. In
response, Cummings contends that the discovery requests are irrelevant, overbroad, impose an
undue burden, and are outside the scope of discovery. Cummings’s overarching premise of her
objections is that all discovery should be limited to the three year period prior to her filing a consent
to join the original action, i.e., the statute of limitations period applicable to her claims. 3
II.

Legal Framework
Determining the scope of discovery is within the discretion of the Court. WWP, Inc. v.

Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011). Federal Rule of
Civil Procedure 26 provides for the discovery of relevant, non-privileged information which
“appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P.
26(b). “Relevance under Rule 26 has been construed broadly to encompass any matter that bears
on, or that reasonably could lead to other matter that could bear on any issue that is or may be in

2

Request for Production 18 and Interrogatory 13 were previously discussed in the parties’
correspondence related to the instant motion, but those requests are now resolved.
3
Ordinarily, a two-year statute of limitations applies to violations of the FLSA; however, a willful
violation has a three-year statute of limitations. 29 U.S.C. § 255(a). Because Cummings has
alleged that any violation by Bost was willful, the Court will assume that the three-year limitations
period applies and is counted from the filing of her consent to join for the purposes of discovery
and ruling on the instant motion.
2

the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In any event, Federal
Rule of Civil Procedure 26 “vests the district court with discretion to limit discovery if it
determines, inter alia, the burden or expense of the proposed discovery outweighs its likely
benefit.” Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).
Because Bost seeks information to assist it in proving the applicability of the
companionship exemption of the FLSA, it is also necessary to understand some of the contours of
that exemption. The Court first notes that Bost, as the employer, bears the burden of proof to
establish that any exemption to the FLSA applies. Fast v. Applebee’s Intern., Inc., 638 F.3d 872,
882 (8th Cir. 2011).

The companionship exemption excludes from the FLSA overtime

requirements “any employee employed in domestic service employment to provide companionship
services for individuals who (because of age or infirmity) are unable to care for themselves . . . .”
29 U.S.C. § 213(a)(15). “The term ‘domestic service employment’ refers to services of a
household nature performed by an employee in or about a private home (permanent or temporary)
of the person by whom he or she is employed.” 29 C.F.R. § 552.3 (emphasis added). To
summarize, “[a]n employer is not required to pay overtime to an employee who provides
companionship services to the aged or infirm in a private home.” Welding v. Bios Corp., 353 F.3d
1214, 1216 (10th Cir. 2004).
In seeking the discovery requests subject to the instant motion to compel, Bost is primarily
concerned with determining whether its client received services in a private home, as that term is
used in the regulations. 4 To show how its requests are relevant, Bost relies on the Tenth Circuit’s

4

The Court also notes that whether Cummings provided companionship services to Bost’s client
would be pivotal in determining whether the companionship exemption applies; however, neither
party has addressed the issue. Regardless, the type of services Cummings provided does not need
to be determined in ruling on the instant motion.
3

analysis of the private home determination in Welding. 353 F.3d at 1218–21. Because the Eighth
Circuit has not yet addressed the companionship exemption in detail and the Tenth Circuit’s
analysis appears well-founded, the Court considers Welding persuasive in ruling on the instant
motion to compel.
“The definition of a ‘private home’ exists along a continuum.” Id. at 1218 (citation
omitted). “At one end of the continuum is ‘a traditional family home in which a single family
resides,’ which clearly constitutes a private home.” Id. (citation omitted). “At the other end of the
continuum is an institution primarily engaged in the care of the sick, the aged, the mentally ill, or
a boarding house used for business or commercial purposes, which clearly do not constitute private
homes.” Id. (citation and internal quotations omitted). In determining whether the services were
provided in a private home, “the object of evaluation is the living unit of the person receiving the
services, i.e., the client.” Id.. The court must look at each living unit on a case by case basis to
determine where on the continuum each lies. Id. at 1218–19.
The key inquiries in determining where on the continuum a living unit lies are “who has
ultimate management control of the living unit and whether the living unit is maintained primarily
to facilitate the provision of assistive services.” Id. at 1219. To answer those inquiries, the Tenth
Circuit enumerated the following factors to consider: (1) whether the client lived in the living unit
as his or her private home before beginning to receiving the services; (2) who owns the living unit;
(3) who manages and maintains the residence; (4) whether the client would be allowed to live in
the unit if not contracting with the provider for services; (5) the relative difference in the cost/value
of the services provided and the total cost of maintaining the living unit (including governmental
subsidies); and (6) whether the service provider uses any part of the residence for the provider’s
own business purposes. Id. at 1219–20 (quotation marks omitted).

4

III.

Analysis
As a threshold matter, the Court finds that the temporal scope of discovery should be

limited to two distinct timeframes, the applicability of which depends on the types of information
requested. First, as a general matter (and unless further limited by a specific request), for discovery
requests that seek personal financial or tax records, Cummings need only provide responses for
the timeframe of January 1, 2011 to August 25, 2014—the date Cummings filed her consent to
join the original action. Several of Bost’s requests seek either wholesale authorizations for
Cummings’s financial or tax records, or specific documents dating back to many years before
Cummings began employment with Bost. Bost’s reasons for seeking this information is to
determine Cummings’s methods of payment, other potential employers, and to show what hours
she worked and, potentially, her whereabouts during the hours she claims to have worked for Bost.
While the Court finds that the types of documents sought are relevant to determine damages and
for Bost to defend the amount of hours allegedly worked, Bost provides no valid justification for
the substantial breadth of its requests. Accordingly, the Court finds that limiting the relevant time
frame for requests for financial and tax documents to January 1, 2011 to August 25, 2014 (“2011
timeframe”) will provide Bost sufficient access to information to use for its intended purposes
without imposing an undue burden on Cummings.
Second, the Court finds that Bost’s requests that seek more general discovery of
information aimed at defending its use of the companionship exemption should be limited to the
period of January 1, 2007 to August 25, 2014 (“2007 timeframe”). Currently, Bost’s requests in
this regard generally encompass the past fifteen years—as noted above, a period that greatly
exceeds the time that Cummings was employed by Bost. At the hearing on this matter, counsel
for Bost explained that the reason for seeking information from such a broad time was geared

5

toward preventing problems they faced in a similar litigation with witnesses lying and an
abundance of nondisclosures. But Cummings was not a party or witness in that litigation, and
there has been no indication that she has presented any such problems. Furthermore, requiring
disclosures for the entire requested fifteen year period would create a substantial burden on
Cummings, and Bost has not provided the Court with any reason to believe the potential benefits
of information encompassing the entire period would outweigh that burden. Therefore, the Court
declines to grant such a broad period of discovery given Bost’s purported objectives. However,
whereas Bost’s proposed discovery is too broad, Cummings’s proposal to limit discovery to the
statute of limitations period is unnecessarily rigid under the facts and circumstances of this case.
Specifically, the Welding factor-based inquiry may consider matters beyond the dates of liability
and possibly the dates of Cummings’s employment with Bost, at least to a reasonable degree.
Accordingly, the Court finds it appropriate to limit the relevant time frame for the more general
discovery requests (i.e., those not requesting Cummings’s financial and tax records) to
January 1, 2007 to August 25, 2014, as information from that period should provide Bost with
sufficient access to information to make its case for the applicability of the companionship
exemption.
The Court will now address each discovery request or group of requests subject to the
instant motion to compel in light of Cummings’s specific objections and the relevant timeframes
outlined above.
1.

Interrogatory 2
This interrogatory seeks the names and addresses for each of Cummings’s employers for

the past fifteen years. Bost explains that this information is needed to determine if the Bost client
for whom Cummings provided services was living in Cummings’s home before beginning to

6

receive services through Bost. The Court agrees that this information is relevant in light of the
first Welding factor relating to whether the client lived in a living unit before receiving services
from the employee. Specifically, because Cummings has been employed by companies providing
services similar to Bost’s, this information could aid Bost in determining whether Cummings’s
provided her Bost client with services in the same home while employed at a different company.
However, the Court also finds that the scope of this request should be temporally limited to the
2007 timeframe for the reasons described above. Therefore, the Court finds that the motion to
compel as it relates to Interrogatory 2 should be GRANTED IN PART. Cummings is ordered to
produce a response to Interrogatory 2 for the period of January 1, 2007 to August 25, 2014.
2.

Interrogatories 3 and 4
These interrogatories seek a list of Cummings’s personal addresses for the past fifteen

years, including the dates lived at each address and contact information for any cohabitants, and
contact information for all of Cummings’s clients while at Bost or a similar company. Bost argues
that Cummings’s past living situations and, in particular, how she treated living situations with
other clients are relevant to the private home determination necessary to prove that the
companionship exemption applies. Cummings’s contends that information relating to other
companies, including clients at those companies, is wholly irrelevant to the instant action and that
the request is otherwise unnecessarily broad. The Court finds that the inquiries related to how
Cummings’s treated past living situations with clients are generally relevant to the private home
analysis under Welding. This information will allow Bost to determine if its client had lived with
Cummings’s prior to her employment at Bost, and in the case of Cummings’s providing care to
other companies’ clients, may be probative in providing a source for comparison. However, Bost
has failed to demonstrate the relevance of information on cohabitants who were not clients at Bost

7

or a similar company and for whom Cummings did not provide care. Bost argued at the hearing
that how Cummings treated her past living situations with any individual would be relevant to her
state of mind in this case. But the inquiries under Welding involve the service provider, the service
provider’s employee, and the client. Unrelated individuals and Cummings subjective beliefs are
not considered under this analysis, and the Court will not require Cummings to provide information
on any such individuals. Furthermore, the Court finds that this request should be limited to the
2007 timeframe, as that will provide a reasonable time beyond Cummings’s dates of employment
with Bost to investigate these issues as they may relate to other companies or clients. Accordingly,
the Court finds that the motion to compel as it relates to Interrogatories 3 and 4 should be
GRANTED IN PART. Cummings is ordered to produce a response to Interrogatories 3 and 4 for
the period of January 1, 2007 to August 25, 2014, but need only produce responsive information
for past cohabitants who were clients at Bost or a similar company and for whom Cummings
provided care.
3.

Interrogatory 14
Interrogatory 14 asks for the name, address, employer, and employer’s address for each

individual listed in Interrogatories 3 and 4. Bost contends that this request is relevant to determine
whether any of Cummings’s clients had gainful employment while living with Cummings, as this
may bear on the Welding factors—specifically the third factor asking who manages and maintains
the residence. Cummings’s again objects that the interrogatory covers periods outside of the time
she was employed at Bost. First, the Court finds, as in regard to Interrogatories 3 and 4, that this
request could only possible be relevant for Cummings and the clients to whom she provided care
for on behalf of Bost or a similar company. Second, the Court does not find Cummings’s clients’
employment information relevant to who manages and maintains the residence, but does find it

8

relevant to potentially refuting the amount of hours Cummings’s claims to have worked—if
Cummings’s client was working, then Bost may dispute that Cummings was actually providing
care during those times. However, because this information is only relevant in Bost possibly
refuting the extent of its potential liability, the Court finds that the request should be limited to the
narrower 2011 timeframe. Therefore, the Court finds that Bost’s motion to compel as it relates to
Interrogatory 14 should be GRANTED IN PART. Accordingly, Cummings is ordered to produce
a response to Interrogatory 14 for the period of January 1, 2011 to August 25, 2014, but need only
produce responsive information for past cohabitants who were clients at Bost or a similar company
and for whom Cummings provided care.
4.

Requests for Production 1, 2, 3, 5, and 9
These requests are for photographs of the residences listed in Interrogatory 3, as well as

documents evidencing insurance agreements or claims, ownership, and rental agreements for those
residences. Bost argues that photographs of the residences will show whether improvements were
made to accommodate Bost’s or similar companies’ clients, and that the documents sought are
relevant to establish the second Welding factor—who owns the residence. In regard to the request
for photographs, the Court finds that the request—at least as limited to the 2007 timeframe
described above—is relevant in that photographs may provide some factual basis to aid Bost in
proving that Cummings rendered services to her Bost client in a private home, which the Court
again notes is a highly fact-intensive inquiry under the Welding analysis. Regarding the requests
for documents, the Court finds that they definitively seek relevant information that go toward the
second Welding factor—ownership of the residence. One specific consideration in determining
ownership under the second Welding factor includes whether a client executed a lease agreement
for the living unit. Lochiano v. Compasionate Care, LLC, 2012 WL 4059873, at *4 (W.D. Mo.

9

Sept. 14, 2012); Solis v. Firstcall Staffing Solutions, Inc., 2009 WL 3855702, at *3 (W.D. Mo.
Nov. 18, 2009). Furthermore, insurance documents could also presumably indicate a person’s
ownership interest in a residence. Therefore, the Court finds that Requests for Production 1, 2, 3,
5, and 9 should be GRANTED IN PART. To the extent the requested photographs and documents
are available, Cummings is ordered to produce responses to Requests for Production 1, 2, 3, 5, and
9 for the period of January 1, 2007 to August 25, 2014.
5.

Request for Production 10
This request seeks an itemized list of all personal belongings of the clients kept by

Cummings at any of the residences listed in Interrogatories 3 and 4. Cummings has indicated that
she has no such itemized list and her counsel confirmed such at the hearing. Therefore, the Court
finds that Bost’s motion to compel as it relates to Request for Production 10 should be DENIED.
6.

Request for Production 6
This request seeks photographs of the living spaces utilized by Bost clients for whom

Cummings was a caregiver from 2011 to present. As the request is already tailored to the
timeframes for discoverable information set out by the Court, and because the Court otherwise
finds the photographs relevant to the private home determination for the reasons discussed in
relation to Requests for Production 1, 2, 3, 5, and 9, the motion to compel as it relates to Request
for Production 6 should be GRANTED.
7.

Request for Production 7
This request seeks copies of pay records for all of Cummings’s sources of income from

2003 to present, including all tax returns, pay stubs, 1099s, and W-2s. Bost asserts that it needs
these documents to refute the hours Cummings’s purports to have worked and potentially discover
the existence of her other employers. While Cummings objected to a separate request (Request

10

for Production 26) on the basis that her tax information was privileged, her objection here is
primarily to the broad scope of the request. She has also already produced copies of her tax returns
for the years 2010, 2011, and 2012. While “[f]ederal courts generally resist discovery of tax
returns[,]” E.E.O.C. v. Ceridian Corp., 610 F. Supp. 2d. 995, 996 (D. Minn. 2008), tax information
is not absolutely privileged. 5 Rather, courts generally seek to limit the unnecessary disclosure of
tax returns to further a policy of encouraging complete and accurate returns. See, e.g., Schoenbaum
v. E.I. Dupont de Nemours and Co., 2009 WL 249099, *1 (E.D. Mo. Feb. 2, 2009) (citing Premium
Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir.1975)). Considering Bost’s
stated goals, the Court finds that the information requested would be relevant to determine the
hours Cummings purports to have worked and to determine if she was receiving income from other
sources while she claims to have been working for Bost. But under the facts and circumstances of
this case, the relevance of each of the types of documents sought in this request is limited to the
timeframe that Bost may actually be liable for unpaid overtime wages. Furthermore, although
none of these documents are subject to an absolute privilege, the Court finds they warrant
protection from unnecessary disclosure as each may contain sensitive financial matters. Therefore,
the Court chooses in its discretion to limit the discoverability of these financial and tax records to
the 2011 timeframe outlined above. Accordingly, the Court finds that Bost’s motion to compel as
it relates to Request for Production 7 should be GRANTED IN PART. Cummings is ordered to

5

A “judicially developed qualified privilege” has developed in some courts, including district
courts within the Eight Circuit. PSK, L.L.C. v. Hicklin, 2010 WL 2710507, *1 (N.D. Iowa July 8,
2010) (quoting Terwilliger v. York Intern. Corp., 176 F.R.D. 214, 216–217 (W.D. Va. 1997)).
This requires satisfying a two-prong test that shows (1) the requested tax information is relevant
and (2) that there is a compelling need. Ceridian Corp., 610 F. Supp. 2d.at 996–97; see also
Hicklin, 2010 WL 2710507, *2. The Eighth Circuit, however, has never expressly required this
heightened showing.
11

produce a response to Request for Production 7 for the period of January 1, 2011 to August 25,
2014.
8.

Request for Production 8
This request seeks all bank records, checkbook registers, and other accounting records

evidencing monetary expenditures from April 2011 to present. Bost argues that these documents
are relevant to the third Welding factor—management and maintenance of the residence. On its
face, however, this request encompasses nearly every financial record Cummings may have and is
not specifically tailored to financial records related to any specific residences. To the extent Bost
seeks information relevant to the third Welding factor, the Court finds that Interrogatory 11 and
Request for Production 16 (discussed below) adequately cover that inquiry.

Furthermore,

Cummings has already indicated that she provided a financial institution authorization for her bank
for the period of time that she worked at Bost. That authorization will cover any bank records the
Court would compel under this request. For those reasons, the Court finds that the motion to
compel as it relates to Request for Production 8 should be DENIED.
9.

Interrogatory 6
This request seeks the name and address for the legal guardian of every client of Bost or a

similar company for whom Cummings provided direct care services during the past ten years. Bost
argues that this information is relevant to the fourth Welding factor—whether the client would be
able to live in a certain unit if not receiving services from the provider. As stated above in relation
to Interrogatories 3 and 4, the Court finds that this request is relevant as it may bear upon how
Cummings has treated situations with past clients, and also may reveal more about Cummings’s
relationship with the guardian of Bost’s client before Bost began providing services. However,
the Court finds that this request should similarly be limited to the 2007 time frame outlined above.

12

Therefore, the Court finds that the motion to compel as it relates to Interrogatory 6 should be
GRANTED IN PART. Cummings is ordered to produce a response to Interrogatory 6 for the
period of January 1, 2007 to August 25, 2014.
10.

Interrogatory 9
This interrogatory asks Cummings to identify each calendar week for which she is claiming

entitlement to damages for unpaid overtime while at Bost, and details on the location, tasks, and
number of hours worked for each week. Bost contends that this information is needed because
Cummings’s is seeking payment for hours above what she included on the original timesheets she
submitted to Bost. The Court finds this relevant to determining the exact amount of damages
Cummings is seeking and allowing Bost to refute those claims. If Cummings is claiming that there
are omissions or discrepancies in the time sheets she submitted, then Bost is entitled to know
exactly what is being challenged. Therefore, the Court finds the motion to compel as it relates to
Interrogatory 9 should be GRANTED.
11.

Interrogatory 11
This interrogatory asks Cummings to identify the person responsible for paying living

expenses at her home address, including any expenses associated with supporting any residents
living at the addresses referenced in Interrogatories 3 and 4. Bost argues that this information is
relevant to the third Welding factor—management and maintenance of the residence. This factor
asks “who provides the essential things that clients need to live there, such as paying the mortgage
or rent, paying for gas, electricity, and water, providing clean linens and clothes, and providing
food?” Welding, 353 F.3d at 1219.

Because Interrogatory 11 seeks to determine the person

responsible for those types of expenses in this case, the Court finds that the requested information
is relevant; however, for the reasons outline above, the request should be limited to the 2007

13

timeframe. Therefore, the Court finds that Bost’s motion to compel as it relates to Interrogatory
11 should be GRANTED IN PART. Cummings is ordered to provide a response to Interrogatory
11 for the period of January 1, 2007 to August 25, 2014.
12.

Request for Production 16
This request seeks documents evidencing the payment of expenses in Interrogatory 11 from

April 2011 to present. Specifically, Bost seeks records showing the payments for utility bills,
mortgages and rent, home repairs, clothing for Bost clients, and household goods to determine who
is responsible for the management and maintenance of the residence under the third Welding factor.
Because this request seeks information within the spectrum of items properly considered under the
third Welding factor, id. at 1219, and because it is already limited to the 2011 timeframe for
discoverable financial records set forth by the Court above, the Court finds that the motion to
compel as it relates to Request for Production 16 should be GRANTED.
13.

Interrogatory 12
This interrogatory asks whether any of Cummings’s residences since 2011 have been used

for any business purposes, and to identify such if so. Bost asserts that this interrogatory goes
directly to the sixth Welding factor—whether the service provider used any part of the residence
for business purposes. The Court agrees with Bost and finds that the motion to compel as it relates
to Interrogatory 12 should be GRANTED.
14.

Request for Production 26
This request asks Cummings to execute an employment authorization, financial institution

authorization, Facebook information authorization, and tax information release. 6 First, regarding

6

This request originally included a medical authorization request, but counsel for each party
confirmed at the hearing that this request had been withdrawn.
14

the request for an employment authorization, Bost argues that this request is relevant to discovering
whether Cummings was employed elsewhere while at Bost and in determining damages.
However, an employment authorization would give Bost access to all of Cummings’s previous
employment files, including those related to Cummings’s personal matters for which Bost has
provided no basis for obtaining. Moreover, to the extent that information from Cummings’s past
employment is relevant, the Court believes that it has already been covered by other interrogatories
and requests for production, such as Interrogatory 2 and Request for Production 7. Therefore, the
Court finds that Request for Production 26 as it relates to a request for an employment
authorization should be DENIED.
Second, regarding the financial institution authorization, Cummings and her counsel have
indicated that a financial institution authorization was executed for the time period Cummings was
employed by Bost. Furthermore, for the reasons discussed in relation to Request for Production
7, the Court would limit any financial institution authorization to the 2011 timeframe above.
Because it appears that has already been fulfilled, the Court finds that the motion to compel as it
relates to a request for any further financial institution authorization should be DENIED.
Third, regarding the request for a tax information release, Bost argues that the request is
relevant to determine Cummings’s income and the existence of any other employers. Bost
expressed the same reasons for requesting various tax documents in relation to Request for
Production 7. However, the Court is already partially compelling the production of the tax records
requested in Request for Production 7. Furthermore, Bost has provided no indication that a tax
information release will provide any further relevant information not already covered by its
discovery requests. Therefore, because the Court seeks to limit the unnecessary disclosure of tax

15

documents for the reasons discussed in regard to Request for Production 7, it finds that the motion
to compel as it relates to the request for a tax information release should be DENIED.
Finally, regarding the request for a Facebook information authorization, Bost argues that
Cummings may have information regarding other employers or activities contained in her
Facebook profile. The Court finds this request to be rooted in pure speculation and Bost has failed
to demonstrate its relevance. “Courts have long held that while the standard of relevancy in
discovery is a liberal one, it is not so liberal as to allow a party to roam in the shadow zones of
relevancy and to explore matter which does not presently appear germane on the theory that it
might conceivably become so.” Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 686 (S.D.
Fla. 2010) (citations and internal quotations omitted). Furthermore, granting this request would
allow a substantial intrusion into Cummings’s privacy for which Bost has failed to provide a
sufficient justification. Therefore, the Court finds that the motion to compel as it relates to the
request for a Facebook information authorization should be DENIED.
15.

Request for Production 27
This request seeks any other documentation evidencing monthly income received by

Cummings or any person with whom she has resided for the past fifteen years. Bost claims that
this request is relevant to determining if Cummings had any other sources of income and whether
she worked the hours she claims. As for the request for documentation of income for individuals
residing with Cummings, Bost explains that the request is to determine whether any Bost client
residing with Cummings was employed. First, to the extent the request seeks documents relating
to individuals other than Cummings, for the reasons explained in regard to Interrogatories 3 and 4
the Court finds that the request should be limited to individuals who were clients at Bost or a
similar company and for whom Cummings provided care. Second, for the reasons discussed in

16

regard to Request for Production 7 and Interrogatory 14, the Court finds this information relevant.
However, as the request involves financial records and is most relevant to disputing hours
Cummings claims to have worked, the request should be limited to the 2011 timeframe.
Accordingly, the Court finds that the motion to compel as it relates to Request for Production 27
should be GRANTED IN PART. Cummings is ordered to respond to Request for Production 27
for the period of January 1, 2011 to August 25, 2014, and, to the extent they are in her possession,
Cummings need only produce responsive documents for other individuals who were clients at Bost
or a similar company and for whom she provided care.
16.

Request for Production 28
This request seeks documents in Cummings’s possession related to investigations of her

performed by the Adult Protective Services or any other entity from 2007 to present. In the parties’
correspondence, Bost amended its request to only encompass Cummings’s proposed three year
time frame.

Because Bost has limited the scope of the request to three year time period

Cummings’s proposed, and because the Court finds that the documents from any such
investigations could bear upon Cummings’s living situations with clients, the Court finds that the
motion to compel as it relates to Request for Production 28 should be GRANTED IN PART limited
to 2011 time frame. Cummings is ordered to respond to Request for Production 28 for the period
of January 1, 2011 to August 25, 2014.
IV.

Costs and Fees
Generally, if a motion to compel is granted, “the court must, after giving an opportunity to

be heard, require the party . . . whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order

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payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure
or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection
was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R.
Civ. P. 37(a)(5)(A)(i)–(iii). While the Court has largely granted Bost’s motion to compel, it has
also imposed many limitations to the scope of discovery. For that reason, the Court finds that
Cummings was substantially justified in producing partial responses and objections, and that
ordering her to pay expenses and attorney’s fees for this motion would be unjust under Rule
37(a)(5)(A)(ii) and (iii). Therefore, to the extent the motion to compel seeks an order requiring
Cummings to pay Bost’s expenses and attorney’s fees, the Court finds that request should be
DENIED.
V.

Conclusion
IT IS THEREFORE ORDERED that Bost’s motion to compel is GRANTED IN PART

and DENIED IN PART. The motion is GRANTED IN PART insofar as Cummings is ordered to:
(1) produce complete responses to Interrogatories 9 and 12, and Requests for Production 6 and 16;
(2) produce responses to Interrogatories 2, 3, 4, 6, 11, and Requests for Production 1, 2, 3, 5, and
9 for the period of January 1, 2007 to August 25, 2014; and (3) produce responses to Interrogatory
14 and Requests for Production 7, 27, and 28 for the period of January 1, 2011 to August 25, 2014.
Furthermore, to the extent Interrogatories 3, 4, and 14 and Request for Production 27 require
responses involving Cummings’s past cohabitants, Cummings need only produce responses
relating to those individuals who were clients at Bost or a similar company and for whom she
provided care.
At the hearing on this matter, counsel for each party agreed that a protective order would
be necessary if sensitive documents were ordered to be disclosed. Therefore, IT IS FURTHER

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ORDERED that the parties are to submit a proposed protective order by April 6, 2015. To the
extent the Court has ordered a response to Bost’s discovery requests, Cummings is ordered to
respond April 9, 2015.
IT IS FURTHER ORDERED that the motion is DENIED insofar as it requests responses
to Requests for Production 8, 10, and 26.
IT IS FURTHER ORDERED that the motion is DENIED to the extent it requests that
Cummings be ordered to pay reasonable expenses and attorney’s fees.
IT IS SO ORDERED this 31st day of March, 2015.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U. S. DISTRICT JUDGE

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