Lozoya et al v. AllPhase Landscape Construction, Inc., et al.,
ORDER granting in part and denying in part 60 Motion to Compel by Judge John L. Kane on 01/21/14.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No:12-cv-1048-JLK
ANTONIO MALDONADO; and
MARIO PEÑA, on behalf of
themselves, individually, and on behalf
of those similarly situated,
ALLPHASE LANDSCAPE CONSTRUCTION, INC., a Colorado corporation,
doing business as ALL PHASE LANDSCAPE;
DONALD TROY TINBERG;
MARK FISHER; and
LYLE FAIR, in their individual and corporate capacities,
ORDER ON DEFENDANTS’ MOTION TO COMEPL, DOC. 60
This Order concerns Defendants’ Motion to Compel, Doc. 60.
The Motion is
GRANTED in part and DENIED in part as specified herein.
1. Handwritten Time Records
By stating, “Plaintiffs also do not dispute that Mr. Lozoya destroyed his
handwritten time records after Mr. Lozoya had complained about All Phase’s recordkeeping for hours worked,” Defendants make it seem like Plaintiffs have affirmatively
admitted such or at the least have failed to protest the veracity of such. Doc. 67, p.2.
Not so. At his deposition and as set forth in ¶ 5 of Plaintiffs’ Response Brief, Doc. 63,
Mr. Lozoya testified that for a short period he recorded his time at All Phase in a pocketsized notebook that he no longer has. Depo. of J. Lozoya at 38:18 – 38:24, attached to
Response as Ex. 1. He states he recorded his time for two weeks. Id. at 41:13. He asserts
he had stopped recording his time before he filed a complaint with the Department of
Labor in 2011. Id. at 39:3. He testified that he kept the notebook in the All Phase truck
that he used and it was lost from the truck. Id. at 67:5. He does not make any statements
about “destroying,” even accidentally destroying, the notebook, nor does he at any time
testify that he had the notebook after he started to consider legal recourse.
The duty to preserve is triggered when a party reasonably anticipates litigation
involving the evidence. Cache La Poudre Feeds, LLC v. Land, 244 F.R.D. 614 (D. Colo.
2007). Defendants argue that Mr. Lozoya had a duty to preserve his notebook because he
must have reasonably anticipated litigation after complaining to his supervisors about
time-keeping and alleged improper deductions. I think this hypothesis is a willful stretch
benefited by hindsight. The more reasonable and common sense hypothesis is that Mr.
Lozoya anticipated that his supervisors would act favorably on his complaint.
Defendants’ destruction theory is also nonsensical from a strategic point of view.
Mr. Lozoya testified that he “gave up” keeping track of his time after his supervisors told
him that All Phase was going to deduct time from him “no matter what.” Depo. of J.
Lozoya at 40:6. Assuming for purposes of this motion that Mr. Lozoya’s deposition
testimony is true and accurate, the records he was keeping himself reflect more time than
All Phase’s records, ie, his records presumably would show him as entitled to overtime.
If both this is so and also he anticipated litigation, destruction of beneficial evidence and
ceasing to gather more by discontinuing his practice of keeping personal records would
have been self-defeating.
Because the handwritten records no longer exist and are therefore unable to be
produced, Defendants seek, as an alternative to production, that I give the jury an adverse
inference for any of the requested information that Plaintiffs have (in Defendants’ eyes)
failed to preserve, disclose, and produce. This request applies both to the handwritten
time records discussed in this section and to the ESI discussed immediately below. The
request is denied. Such an instruction presupposes intentional or reckless destruction of
data that is not presented by this motion.
2. Defendants’ Request for Relevant Electronically Stored Information (“ESI”)
Defendants requested all of Plaintiffs’ relevant communications, including ESI, with
any person concerning the alleged wage and hour violation. Defendants specifically
move to compel the production of ESI from (a) the cell phones of Jose Lozoya, Humberto
Robles-Rivera, and Javier Ramirez; and (b) the computers of Mr. Robles-Rivera and Mr.
Lozoya’s ex-girlfriend, Rosa Islas.
Defendants’ Reply does not address Plaintiffs’ Response arguments regarding the
ESI on Ms. Islas’s computer (“Isla ESI”); it merely notes that such discovery is
requested. Plaintiffs argue, inter alia, that they do not have to produce the Islas ESI,
because the Isla ESI is irrelevant. Plaintiffs submit that the Isla ESI is irrelevant because
Ms. Isla’s role (and her computer’s) is limited to having searched for a lawyer at Mr.
Lozoya’s bequest. When asked how Mr. Lozoya came to know of his current counsel,
Mr. Lozoya testified that his girlfriend (Ms. Islas) provided their names and number.
Depo. of J. Lozoya at 154:23-25, 155: 1-2. When asked how Ms. Islas in turn knew of
Mr. Lozoya’s current counsel, he testified “I don’t know. I just told her to look for a
lawyer for me and she looked it up.” Id. at 155:3-4.
Despite the seemingly narrow role Ms. Isla and her computer played in this matter,
the Isla ESI is nonetheless relevant because the Isla ESI, at minimum, will allow
Defendants to get a timeline of when Mr. Lozoya began searching for counsel. Further,
the search terms Ms. Isla used may prove helpful. For example, evidence revealing that
Ms. Isla hunted for counsel using the phrase “attorneys specializing in workers with no
lunch breaks,” would boost the theory of Plaintiffs’ case, while evidence showing that
Ms. Isla hunted for counsel using the phrase “reasons to sue employer” might be less
probative. While the ultimate relevance of the Isla ESI remains to be seen, there is a
logical chain of inferences to support my finding that the data sought appears reasonably
calculated to lead to admissible evidence. Accordingly, Plaintiffs must produce the Isla
Regarding the production of Mr. Robles-Rivera’s ESI (“Robles ESI”), Defendants
argue that Mr. Robles has a duty to provide information that is/or may be on two
computers he used when he was an account manager for All Phase. Plaintiffs argue that
such information is unavailable for production because both of Mr. Robles’s computers
are broken, one having a shattered screen, the other not capable of holding a charge, and
neither machine was backed up before it failed. See Letter dated April 23, 2013 attached
as Ex. 3 to Doc. 63. Plaintiffs further state that both computers became irreparably
inoperable before Mr. Robles became a member of this collective action. Doc. 63 at p. 7.
Defendants argue that though Plaintiffs assert the Robles ESI is unavailable for the
aforementioned reasons, it is not and will not be definitively known whether the
information is irretrievable until a computer forensics expert examines the computers. I
agree. Unless Plaintiffs can cite to legal authority or point to factual support for their
contention that it is impossible to extract data from the damaged computers, Plaintiffs
must produce the data.
As far as the ESI phone records, Plaintiffs’ argument is centered on the incorrect
premise that Defendants seek only the phone records between Plaintiffs and Defendants.
Given that starting position, Plaintiffs argue that they should not have to produce what
Defendants are already in possession of from having their own phone records. I agree
with Defendants that Plaintiffs’ argument on this issue falters for two reasons. Falters,
First, Defendants requested ESI on all of Plaintiffs’ communications relevant to
their claims with any person and not just with All Phase’s supervisors. Second,
Plaintiffs’ argument incorrectly assumes that All Phase has access to the electronic
devices used by every current and former foreman and supervisor. To the extent that
Defendants seek duplicate information that Defendants do have (information stored on
Defendants’ phones or on the phones of Defendants’ employees not part of this collective
action), I agree with Plaintiffs that they should not have to produce such information. For
all other phone ESI in Plaintiffs’ possession relating to alleged wage and hour violations,
however, Plaintiffs must pony up, excepting attorney/client privileged communications.
3. Duty to Supplement
Defendants Motion to Compel also seeks to have the three named representative
Plaintiffs (Lozoya, Maldonado, and Pena) supplement their discovery responses.
Specifically, Defendants ask that the representatives augment their responses to
Interrogatories Nos. 3 and 4, relating to documents evidencing damages and contradicting
any damages calculations. Additionally, Defendants’ Motion to Compel protests that
Plaintiffs have not provided initial disclosures for the members of Plaintiffs’ class who
have opted-into this case with representation by the same legal counsel. A party that is
joined to a case must make his or her initial disclosures within 30 days after being joined,
unless a different time is set by stipulation or Court order. Fed.R.Civ.P. 26(a)(1)(B).
Plaintiffs do not address this issue in their Response. Defendants point out that
Plaintiffs’ counsel have named new members of the collective action and profess to
represent those new members in these proceedings. See Consents to Join (Docs. 38, 39,
49, 54, 56, 57, and 58). The Consents to Join were filed between February 26, 2013 (Doc.
38) and July 15, 2013 (Doc. 58). None of the individuals who have filed the Consents to
Join, however, have filed any initial disclosures within the 30 day time limit applicable in
Here, I order the individuals who have consented to join the action to prepare
initial disclosures and file them within 20 days from the date of this Order. I further
agree with Defendants that the named Plaintiffs must supplement their discovery, but
only to the extent that the supplements do not overlap with the categories of discovery
from above that I rule as unnecessary to produce, namely the handwritten time-records
and the phone ESI already in Defendants’ possession.
Plaintiffs must produce the Isla ESI, the Robles ESI, and the phone ESI not in
Defendants’ possession. The named Plaintiffs must also supplement their discovery as
indicated herein. Finally, all persons who have filed Consents to join must file initial
disclosures within 20 days from the date of this Order. I will not give the jury an adverse
instruction regarding the handwritten time records. If Plaintiffs are noncompliant with
this Order, an adverse instruction relating to whatever data Plaintiffs did not produce may
be warranted. That bridge will be crossed only if and when it presents itself, however.
January 21, 2014
BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge
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