Smith v. Pizza Hut, Inc.
ORDER granting in part and denying in part 342 Motion to Compel. by Magistrate Judge Boyd N. Boland on 4/23/13.(bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 09-cv-01632-CMA-BNB
MARK SMITH, individually and on behalf
of other similarly situated persons,
PIZZA HUT, INC.,
This matter arises on the Plaintiffs’ Motion to Compel [Doc. # 342, filed 3/21/2013]
(the “Motion to Compel”). I held a hearing on the Motion to Compel on April 16, 2013, and
took the matter under advisement.
The Motion to Compel raises numerous disputed issues, and is GRANTED IN PART and
DENIED IN PART as specified below.
1. Studies and Analyses Regarding Pizza Hut’s Reimbursement Rate
In response to interrogatories, Pizza Hut indicated that it will rely on certain studies in
defense of the claim that its reimbursement rate is adequate. In particular, Pizza Hut relies on
“data provided by Runzheimer,” Response to Interrogatory No. 9 [Doc. # 345-1] at p. 12; “a
survey of Pizza Hut’s delivery drivers . . . to determine the type of automobile that should be
used as the standard vehicle for calculating Fixed Costs and Operating Costs,” id. at p. 13; “[a]
survey . . . to determine the age of Pizza Hut’s driver vehicles to account for depreciation in the
Fixed Costs calculation, id.; “vehicle cost data” developed by Runzheimer International,
Response to Interrogatory No. 14 [Doc. # 345-2] at p. 11; “data received from Runzheimer to
calculate a per-mile cost,” id. at p. 13; an analysis by which “Pizza Hut determined the average
miles its delivery drivers travel per trip, which is less than 3 miles round trip”, id.; analyses
supporting Pizza Hut’s decision to make exceptions “where the average round trip may be
higher,” including that supporting an increased the rate for Store No. 311417 in Porter, Texas,
id.; and information derived from Pizza Hut’s “Concerned Resolution Process.” Id. The
plaintiffs moved to compel the production of these materials.
Pizza Hut responded that it “agrees to produce all final studies upon which [it] may rely,
subject to redactions for privileged information that is irrelevant to any of the claims and
defenses at issue in this case.” Response [Doc. # 351] at p. 3. Based on this, Pizza Hut argued
that this portion of the Motion to Compel should be denied as moot.
Pizza Hut may not produce only those portions of the “final studies” upon which it will
rely. To the contrary, the plaintiffs are entitled to the complete studies and the underlying data
supporting those studies in order to be able to test and/or challenge the reasonableness of Pizza
Hut’s reliance on the final studies to justify its position. For example, if the raw data was
improperly manipulated in the final studies relied on by Pizza Hut, the plaintiffs must be able to
demonstrate that impropriety.
In addition, Pizza Hut claimed that some communications concerning the studies and
underlying data are immune from discovery because of the involvement of Pizza Hut’s in-house
counsel, Erika Burkhardt, in “ensuring that Pizza Hut’s policies concerning driver
reimbursement rates were in compliance with the FLSA.” Id. at p. 6. In particular, Pizza Hut
argued that “the withheld communications contain in-house counsel’s thoughts and impressions
regarding Pizza Hut’s legal compliance, as well as factual information transmitted between
employees and in-house counsel for the purpose of obtaining legal advice.” Id. The plaintiffs
countered by arguing that Pizza Hut has waived any claim of privilege by putting the
Runzheimer and other studies at issue. Motion [Doc. # 342] at pp. 2-4 (arguing that “[m]erely
referencing such a study in its defense, without actually producing any of it, constitutes issue
This case arises under the federal Fair Labor Standards Act, and jurisdiction exists under
28 U.S.C. § 1331. Consequently, questions of privilege are determined by applying the federal
common law of privileges. Everitt v. Brezzel, 750 F. Supp. 1063, 1066 (D. Colo. 1990).
To establish at issue waiver of the attorney-client privilege, as the plaintiffs allege here, it
must be shown:
1) assertion of the privilege was the result of some affirmative act,
such as filing suit or assertion of an affirmative defense, by the
party claiming the privilege; 2) through this act, the party put the
protected information at issue; and 3) application of the privilege
would have denied the opposing party access to information vital
to his or her defense.
The mere fact that privileged material is relevant to a matter that is
raised as an issue in connection with the assertion of an affirmative
defense is insufficient to trigger a waiver of the privilege. Instead,
the key is whether the defendant will assert privileged material in
aid or furtherance of its argument that it complied with the . . .
Frazier v. Bd. of County Comm., 2010 WL 447785 *1 (D. Colo. Feb. 3, 2010)(internal
quotations and citations omitted).
In this case, I find that there has not been an at issue waiver of the attorney-client
privilege. Although Pizza Hut will rely on certain studies performed by Runzheimer and others,
there is no showing that it will rely in its defense on materials created by Ms. Burkhardt or other
Pizza Hut lawyers or on their legal advice or opinions. The studies, which are not privileged and
on which Pizza Hut will rely in defense, must be produced in their entirety, including drafts and
raw data. The legal advice given to Pizza Hut based on those studies, on which Pizza Hut does
not intend to rely, is privileged, and there has been no waiver of that privilege. See id. at *3.
The Motion to Compel is GRANTED to require Pizza Hut to produce the complete
studies and the underlying data supporting those studies regarding Pizza Hut’s reimbursement
rate, but it is DENIED insofar as it seeks an order compelling those documents withheld by
Pizza Hut on a claim of attorney-client privilege.
2. Corrected and Additional Information That Should Be Compelled
(a) Pizza Hut agreed to produce “delivery vehicle information” for “all opt-in Plaintiffs.”
Response [Doc. # 351] at p. 10 (original emphasis). Consequently, except for setting a date by
which the information must be produced, I agree with Pizza Hut that this issue is moot.
(b) The plaintiffs seek an order compelling the production of “complete file layouts and
data dictionaries, and data in data format.” Motion [Doc. # 342] at p. 10. Pizza Hut responded
that “no additional file layouts or data dictionaries exist.” Response [Doc. # 351] at p. 11.
At the hearing on the Motion to Compel, the plaintiffs pointed to the PeopleSoft
application as an example of a manual which must exist but has not been produced. Pizza Hut
responded that there is no such thing.
I cannot compel a party to produce that which does not exist. Without additional
evidence to support its request, the plaintiffs have failed to show that there are additional
responsive documents which have not been produced.
(c) The plaintiffs seek an order compelling Pizza Hut to produce information concerning
the “number of deliveries and reimbursement paid.” Motion to Compel [Doc. # 342] at p. 11.
Pizza Hut responded that “[t]he only Pizza Hut data showing the number of deliveries and
reimbursements paid to delivery drivers are the Driver Dispatch Reports” which are “not
readable outside of the point of sale system within each store” and are retained “in .txt file
format.” Response [Doc. # 351] at pp. 12-13. Pizza Hut asserted that it “has diligently
preserved the information that is relevant to this case--the reimbursement data as it exists within
the Driver Dispatch Records.” Id. at p. 14. Implicit is that Pizza Hut made this information
available to the plaintiffs.
At the hearing on the Motion to Compel, plaintiffs counsel again argued, without
supporting evidence, that there must be more. On this record, and without evidence establishing
that something more exists, I cannot compel Pizza Hut to produce what it says does not exist.
(d) The plaintiffs complain:
The Driver Dispatch reports . . . identify each driver using a
convention different from the conventions used in the payroll data.
. . . To calculate the minimum wage violation for each driver who
has opted into this case, the drivers should be matched to both the
payroll and the delivery records. Plaintiffs have repeatedly asked
Pizza Hut to identify and produce any information that allows that
cross-matching between the employee ID in the payroll and the
different convention used in the delivery data. But Pizza Hut has
failed and refused to either specify and produce information, or
state that no such information exists.
Motion to Compel [Doc. # 342] at p. 13.
Pizza Hut responded:
[C]ertain data contained in SUS relating to deliveries . . . holds
business value for only a very short period of time. When a shift
begins, Pizza Hut drivers log into SUS using a two-digit code and
receive a “bank”or advance of money for that shift. The two-digit
code is often, but not necessarily, the driver’s own initial, and no
two drivers at the same store may use the same two-digit code.
Pizza Hut has never created a master list of two-digit codes for its
thousands of employees around the country and has had no
business reason to do so. Much like a company that allows its
employees to create their own computer password when logging
onto a computer system, Pizza Hut’s drivers are responsible for
creating their own code and may change that code at any time with
Response [Doc. # 351] at p. 13.
On this record, and without evidence establishing that something more exists, I cannot
compel Pizza Hut to produce what it says does not exist.
(e) The plaintiffs seek an order compelling production of employee profile data with
corrected and additional information. Motion [Doc. # 342] at p. 14. Pizza Hut responded that
this information was provided on April 12, 2013, and plaintiffs’ counsel acknowledged that he
has not yet reviewed that production. This matter appears to be moot in view of Pizza Hut’s
representation, but may be renewed in the event the plaintiffs find the most recent production to
3. Deposition of Plaintiffs’ Data-Related Topic
Apparently the parties disagreed about whether the requested deposition would be taken
pursuant to Fed. R. Civ. P. 30(b)(6) or individually of Mr. Light. At the hearing, Pizza Hut’s
counsel agreed that the deposition could be pursuant to Rule 30(b)(6), rendering the dispute
moot except for the time within which the deposition must be completed.
IT IS ORDERED:
The Motion to Compel [Doc. # 342] is GRANTED IN PART and DENIED IN
PART as follows:
• GRANTED to require Pizza Hut to produce the complete studies, including
drafts, and the underlying data supporting those studies regarding Pizza Hut’s reimbursement
rate; to produce all delivery vehicle information for all opt-in plaintiffs; and to produce a
deponent pursuant to Fed. R. Civ. P. 30(b)(6) to testify concerning the plaintiffs’ data-related
• DENIED in all other respects.
Pizza Hut shall provide supplemental discovery responses and produce responsive
documents consistent with this Order on or before May 17, 2013.
Pizza Hut shall produce a deponent pursuant to Fed. R. Civ. P. 30(b)(6) to testify
concerning the plaintiffs’ data-related topic at a date, time, and place as the parties may agree,
but not later than June 10, 2013.
Dated April 23, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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