Echon et al v. Sackett et al
Filing
73
ORDER by Magistrate Judge Nina Y. Wang on 5/2/16. Plaintiffs' Third Motion to Compel Discovery 64 is GRANTED IN PART and DENIED IN PART; The Motion is GRANTED as to the Interrogatory Responses and Defendants are COMPELLED to respond to the ou tstanding interrogatories fully, in narrative form, no later than May 16, 2016 and Defendants MUST PAY the portion (but in any case, no more than fifty percent (50%)) of the reasonable expenses associated with this instant Motion to Compel attri butable to the deficient interrogatory responses, to be determined by a forthcoming motion for reasonable expenses to be filed by Plaintiffs no later than May 16, 2016; The Motion is DENIED as to the Requests for Production. (Attachments: # 1 Exhibit Gonzales v City of Albuquerque Case Law, # 2 Exhibit Smith v Pizza Hut Inc Case Law, # 3 Exhibit Bouchard v Whetstone Case Law, # 4 Exhibit Miller v Kastelic)(bsimm, )
Smith v. Pizza Hut, Inc., Not Reported in F.Supp.2d (2013)
2013 WL 1751850
2013 WL 1751850
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Mark SMITH, individually and on behalf of
other similarly situated persons, Plaintiffs,
v.
PIZZA HUT, INC., Defendant.
Civil Action No. 09–cv–01632–CMA–BNB.
|
April 23, 2013.
Attorneys and Law Firms
Richard M. Paul, III, Bradley Thomas Wilders, George A.
Hanson, Jack D. McInnes, Lee Richard Anderson, Stueve
Siegel Hanson, LLP, Kansas City, MO, Mark A. Potashnick,
Weinhaus & Potashnick, St. Louis, MO, for Plaintiffs.
David Franklin Graham, Jason John Englund, Sarah Marie
Konsky, Steven Thomas Catlett, Sidley Austin LLP, Chicago,
IL, Geoffrey David Deboskey, Sidley Austin, LLP, Los
Angeles, CA, James Michael Lyons, Joy T. Allen Woller,
Susan Strebel Sperber, Rothgerber Johnson & Lyons, LLP,
Denver, CO, for Defendant.
ORDER
BOYD N. BOLAND, United States Magistrate Judge.
*1 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 inhouse 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
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Smith v. Pizza Hut, Inc., Not Reported in F.Supp.2d (2013)
2013 WL 1751850
“[m]erely referencing such a study in its defense, without
actually producing any of it, constitutes issue waiver”)
(original emphasis).
*2 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 ... laws.
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.
*3 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
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Smith v. Pizza Hut, Inc., Not Reported in F.Supp.2d (2013)
2013 WL 1751850
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 manager
approval.
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.
*4 (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 be
inadequate.
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:
(1) 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 topic; and
• DENIED in all other respects.
(2) Pizza Hut shall provide supplemental discovery responses
and produce responsive documents consistent with this Order
on or before May 17, 2013.
(3) 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.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1751850
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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