Perez v. Ahmed et al

Filing 16

TEMPORARY RESTRAINING ORDER AND ORDER RE ENFORCEMENT OF ADMINISTRATIVE SUBPOENAS Preliminary Injunction Hearing set for 4/22/2015 10:00 AM.. Signed by Judge Alsup on 3/17/2015. (whalc2, COURT STAFF) (Filed on 3/17/2015)

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7
8
9

THOMAS E. PEREZ, Secretary of Labor, United
States Department of Labor,

11
For the Northern District of California

United States District Court

10

12
13

Plaintiff,
v.
NATIONAL CONSOLIDATED COURIERS,
INC., a corporation, and TANWEER AHMED,
an individual

14

TEMPORARY RESTRAINING
ORDER AND ORDER RE
ENFORCEMENT OF
ADMINISTRATIVE SUBPOENAS

Defendants.
/

15
16

No. C 15-01026 WHA

A hearing on plaintiff’s motion for a temporary restraining order was held on March 12,

17

2015. The parties were requested to submit a joint proposed order regarding defendants’

18

compliance with the Secretary of Labor’s administrative subpoenas, relating to production of

19

documents responsive to the Secretary’s investigation into defendants’ employee classifications,

20

as discussed at the hearing. The parties have stated that they were unable to agree on a joint

21

proposal, and instead each submitted their own proposed orders. Based on these proposals, the

22

parties are ordered as follows:

23

(1)

Defendants are enjoined from interfering with the Secretary’s investigation and

24

shall not intimidate any witness or retaliate against any person for exercising his

25

or her rights under the Fair Labor Standards Act.

26
27
28

(2)

Defendants shall preserve and shall not delete any documents related to the
Secretary’s investigation, including but not limited to, emails, text messages,
voice mails, and all other documents sought by the administrative subpoenas.

1

(3)

Defendants shall provide the following notice to all employees, contractors and

2

vendors that work with, or for, NCCI by posting this notice in any and all

3

locations necessary to ensure that such individuals are likely to view it:

4

The Secretary of Labor is conducting an investigation into
NCCI and Tanweer Ahmed, including whether the couriers
should be classified as employees. You are protected by
the Fair Labor Standards Act.

5
6

The United States District Court for the Northern District
of California has ordered NCCI and Tanweer Ahmed, and
anyone acting on their behalf, not to retaliate against,
threaten to retaliate against, intimidate, or attempt to
influence or in any way threaten employees from providing
information to the Department of Labor.

7
8
9

The Court has also ordered that no documents, including
e-mails, text messages, and voice mails related to the
Secretary of Labor’s investigation may be destroyed.

11
For the Northern District of California

United States District Court

10

12

It is a violation of federal law for NCCI, or Tanweer
Ahmed, or anyone acting on their behalf, to retaliate
against any person for participating in the Secretary of
Labor’s investigation or to instruct any person to destroy
documents related to the investigation.

13
14
15

It is a violation of federal law to destroy, or attempt to
destroy, any documents, electronic files, emails, text
messages, or voicemails related to the Secretary of Labor’s
investigation.

16
17

If you are an employee of NCCI and have documents in
your possession including, but not limited to, text messages
or emails, that have been requested by the Secretary of
Labor, please immediately inform NCCI’s attorney Ron
Arena by calling 415-433-1062. If you are not an
employee of NCCI and have documents in your possession
including, but not limited to, text messages or emails, that
have been requested by the Secretary of Labor and are
related to NCCI’s employment classification of its couriers,
please contact the Secretary of Labor by calling Mary
Pham at 408-282-4768.

18
19
20
21
22
23

If you believe you have been retaliated against for
participating in the Secretary of Labor’s investigation or
instructed to destroy documents by NCCI, Tanweer
Ahmed, or anyone acting on their behalf, call the U.S.
Department of Labor by contacting Mary Pham at 408282-4768.

24
25
26
27
28

(4)

Defendants are ordered to pay for the services of a third-party data recovery
service to obtain an exact image copy of the hard drives, back-up drives, other
2

1

backup electronic media, and servers housing any email messages at the

2

following NCCI locations:

3

(a) NCCI San Leandro. 14755 Catalina Street, San Leandro, California 94755;

4

(b) NCCI San Jose. 836 Jury Court, San Jose, California, 95112;

5

(c) NCCI Sacramento. 4009 West Seaport Blvd, West Sacramento, California,
95691.

6
Defendants shall provide the third-party data recovery service all information,
7
including but not limited to all usernames and passwords, necessary to access the
8
copies at a later date. Kivu Consulting is hereby appointed and approved to
9
complete the work described in this paragraph, which must begin no later than
10

For the Northern District of California

United States District Court

MARCH 19, 2015.
11
12

(5)

Investigators from the Department of Labor’s Wage and Hour Division are

13

authorized to attend the imaging, provided that an attorney representative

14

designated by defendants shall also be entitled to attend the imaging and nothing

15

in this order permits any representative from the Wage and Hour Division to

16

review or gain access to any of defendants’ documents, including electronic

17

documents, during the imaging process.

18
(6)

Defendant Tanweer Ahmed shall produce all emails that are currently in his

19
custody and control and responsive to the Secretary’s administrative subpoenas,
20
to attorneys for the Secretary not later than MARCH 26, 2015.
21
22

(7)

Defendants shall produce all documents responsive to the Secretary’s
administrative subpoenas not later than APRIL 12, 2015.

23
24
(8)

Defendants shall make a good faith effort to produce as many emails as it can

25
reasonably identify as responsive to the administrative subpoenas by MARCH 26,
26
2015.
27
28
3

1

(9)

If, after receiving documents produced by defendants in response to the

2

administrative subpoenas, the Secretary has reason to believe that defendants’

3

document production is incomplete or that there are documents that have been

4

omitted from the production, a Special Master for Electronic Data Recovery and

5

Production shall be appointed by the Court. Defendants shall pay for the Special

6

Master’s services. The Special Master shall be prepared to work with the third

7

party data recovery service retained by defendants in order to recover all

8

information responsive to the Secretary’s administrative subpoenas. The Special

9

Master shall further be prepared to determine which documents shall be produced
to the Secretary and which documents are non-responsive or privileged. The

11
For the Northern District of California

United States District Court

10

Special Master shall periodically report to the Court on the foregoing. The parties

12

shall submit the name of the proposed Special Master to the Court. If the parties

13

are unable to agree on a Special Master the Court will appoint one.

14
(10)

A hearing is hereby set for TEN A.M. ON APRIL 22, 2015, where defendants must

15
show cause, if any exists, why a preliminary injunction should not issue enjoining
16
defendants from further destruction of evidence and interfering with the
17
Secretary’s investigation. If the parties are able to stipulate to a proposed
18
injunction, then there will be no need for this hearing.
19
20

The fact that certain provisions in the parties’ proposals have not yet been adopted does

21

not mean that they have been rejected and would not be approved in the future. Some proposals

22

were deemed unnecessary in light of other language.

23
24

IT IS SO ORDERED.

25
26

Dated: March 17, 2015.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

27
28
4