Scott et al v. Chipotle Mexican Grill, Inc. et al
Filing
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ORDER granting in part and denying in part 1 Motion to Quash; denying as moot 3 Motion to Quash; denying 11 Motion to Transfer. By Magistrate Judge Michael J. Watanabe on 05/26/2015. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-mc-00065-CMA-MJW
CINDA DAGGETT,
Movant,
v.
MAXCIMO SCOTT,
JAY ENSOR,
MATTHEW MEDINA,
EUFEMIA JIMENEZ,
KRYSTAL PARKER,
STACY HIGGS, and
CHRISTINA JEWEL GATELY,
on behalf of themselves and all others similarly situated,
Respondents.
ORDER ON NON-PARTY CINDA DAGGETT’S MOTION TO QUASH OR MODIFY
SUBPOENA TO TESTIFY AT A DEPOSITION (Docket No. 1)
and
ORDER ON INTERESTED PARTY CHIPOTLE MEXICAN GRILL, INC.’S and
CHIPOTLE SERVICES, LLC’S MOTION TO QUASH SUBPOENA AND DEPOSITION
OF CINDA DAGGETT (Docket No. 3)
and
ORDER ON RESPONDENTS’ MOTION TO TRANSFER THE SUBPOENA MOTIONS
TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK (Docket No. 11)
Entered by Magistrate Judge Michael J. Watanabe
In the Southern District of New York, a collective and class action is pending
against Chipotle Mexican Grill, Inc. and Chipotle Services, LLC (“Chipotle”). The lawsuit
is a conditionally certified collective action under the Fair Labor Standards Act (“FLSA”),
with pendant state-law claims that the plaintiffs hope to certify as class actions.
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Generally, the lawsuit alleges that employees with the job title “Apprentices” (or similar
titles) were inappropriately treated as management positions exempt from overtime pay.
Pending before this Court are three motions related to a Rule 45 deposition subpoena.
The Court has reviewed the parties’ filings (Docket Nos. 1, 3, 4, 5, 11, 12, 13, 14,
18, 19, 20, 21, & 22), taken judicial notice of the Court’s entire file in this matter, and
considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now
being fully informed, the Court:
Grants in part and denies in part Movant’s motion to quash (Docket No. 1);
Denies as moot Chipotle’s motion to quash (Docket No. 3); and
Denies Plaintiffs’ motion to transfer (Docket No. 11).
Background
The underlying lawsuit was filed in late 2012. (Docket No. 4, p.1.) But in 2011,
sensing a trend in wage-and-hour litigation, Chipotle had sought out legal opinions on its
treatment of Apprentices. (Id. at 2–3.) One of the law firms rendering an opinion hired a
human resources consultant, Cinda Daggett, to observe the day-to-day work of
Apprentices and prepare a written report for the law firm’s use. (Id.) Several discovery
disputes before the Southern District of New York, and now the Rule 45 motions pending
in this Court, concern Ms. Daggett and her report.
The Plaintiffs in the underlying lawsuit (Respondents here) sought Ms. Daggett’s
records in discovery. Chipotle asserted attorney-client privilege. The Southern District
of New York ruled against Chipotle on the privilege question—finding both that Chipotle
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had waived privilege by placing good faith and reliance on counsel at issue, Scott v.
Chipotle Mexican Grill, Inc., ___ F. Supp. 3d ___, 2014 WL 7236907 (S.D. N.Y. Dec. 18,
2014), and that Ms. Daggett’s report was not privileged in the first place, Scott v. Chipotle
Mexican Grill, Inc., ___ F. Supp. 3d ___, 2015 WL 1424009 (S.D. N.Y. Mar. 27, 2015),
motion for reconsideration denied, 2015 WL 2182674 (May 7, 2015). Plaintiffs then
served a document subpoena on Ms. Daggett. (Docket No. 1-1.) She responded by
providing a copy of her report; she did not produce her work-file or any related
documents, claiming that such documents were lost in a computer crash. (Docket No.
12, pp. 3–4.)
Plaintiffs then served a deposition subpoena on Ms. Daggett. (Docket No. 1-2.)
She has moved to quash the subpoena, claiming status as an unretained expert under
Federal Rule of Civil Procedure 45(d)(3)(B)(ii). (Docket No. 1.) Chipotle filed a motion
seeking the same relief. (Docket No. 3.) Plaintiffs oppose such relief, and they argue in
the alternative that the matter should be transferred to the Southern District of New York
to be handled by U.S. Magistrate Judge Sarah Netburn, who is presiding over pretrial
matters in the underlying litigation. (Docket No. 11.)
Discussion
I.
Ms. Daggett’s Motion to Quash
Under Federal Rule of Civil Procedure 45(d)(3):
(3) Quashing or Modifying a Subpoena.
...
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(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
...
(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the
expert’s study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot
be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.
Fed.R.Civ.P. 45(d)(3). Nothing in this rule protects a fact witness—one whose testimony
is based on personal knowledge under Federal Rule of Evidence 701 rather than
specialized opinion under Federal Rule of Evidence 702—from compulsory testimony
simply because the witness happens also to be an expert. See Fed. R. Civ. P. 45
advisory committee’s note (1991 amendments) (“the district court’s discretion in these
matters should be informed by ‘the degree to which the expert is being called because of
his knowledge of facts relevant to the case rather than in order to give opinion
testimony’”). But the rule does protect experts from uncompensated work as expert
witnesses. See id. (“A growing problem has been the use of subpoenas to compel the
giving of evidence and information by unretained experts. Experts are not exempt from
the duty to give evidence, even if they cannot be compelled to prepare themselves to give
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effective testimony, but compulsion to give evidence may threaten the intellectual
property of experts denied the opportunity to bargain for the value of their services.
Arguably the compulsion to testify can be regarded as a “taking” of intellectual property.”
(internal citations omitted)).
In situations like this, where experts have been hired to perform factual
investigations as part of a company’s due diligence (rather than in anticipation of specific
litigation), courts draw a distinction between (1) the factual record compiled by the expert
and (2) the opinion and analysis performed by the expert. See Chavez ex rel. Chavez v.
Bd. of Educ. of Tularosa Mun. Sch., 2007 WL 1306734, at *3–5 (D. N.M. Feb. 16, 2007)
(“[R]ule 45(c)(3)(B)(ii)’s protections would appear to be applicable when the substance of
a deponent’s testimony can be considered expert in nature pursuant to rule 702.”); see
also MedImmune, LLC v. PDL Biopharma, Inc., 2010 WL 2794390, at *2 (N.D. Cal. July
15, 2010) (collecting cases); In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 242
(E.D. Pa. 2014) (distinguishing between market-analysis firm’s records from third-party
sources, which were subject to subpoena, and its original analysis, which was protected
by Rule 45(d)(3)(B)(ii)). This distinction appears in the text of Rule 45(d)(3)(B)(ii): the
expert’s factual record “describe[s] specific occurrences in dispute” and therefore falls
outside the protection of Rule 45(d)(3)(B)(ii); but the same expert’s own analysis “does
not describe specific occurrences in dispute”; rather, it “results from the expert’s study”
and is protected by the rule.
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Ms. Daggett and Chipotle both argue that Plaintiffs seek Ms. Daggett’s expert
opinion and therefore the protections of Rule 45(d)(3)(B)(ii) apply. The record, however,
suggests that Plaintiffs seek the factual basis for Ms. Daggett’s report. Neither the
documents subpoena nor the deposition subpoena refer to Ms. Daggett’s methodology or
to the specialized authorities she relied upon in forming her opinions. Instead, the
documents subpoena seeks the factual record she compiled—for example, her notes or
recordings from interviewing Apprentices. (See Docket No. 1-1, p.5.) The deposition
subpoena does not identify the topics to be covered in the deposition (see Docket No.
1-2), but Plaintiffs’ briefing before this Court suggests that Plaintiffs intend to inquire as to
Ms. Daggett’s factual assumptions and investigation. In opposing Ms. Daggett’s motion,
Plaintiffs made the following statement as to what they hope to gain from the deposition:
[T]he report is only the end product of her observations and interviews. It
does not include what she relied on in making her conclusions, what
Chipotle’s employees told her (including what they told her to write), or
information she might have disregarded or failed to include in her report.
(Docket No. 12, p.9.) To be sure, this focus on factual assumptions and omissions
sounds like the inquiry one would make when preparing to cross-examine an expert
witness. But it should also be noted that, here, Ms. Daggett has not produced her
work-file; she has claimed that she lost all her files in a computer crash. As a result,
there is no other way for Plaintiffs to discover the factual record compiled in Ms. Daggett’s
investigation. Plaintiffs will need to ask Ms. Daggett what she learned from her
investigation—and a necessary part of that process will be asking her what she didn’t
learn.
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Provided that Plaintiffs stick to asking about Ms. Daggett’s factual investigation,
Plaintiffs are entitled to take her deposition. To that extent, Ms. Daggett’s motion to
quash is DENIED. However, Plaintiffs have provided no reason why they cannot hire
their own expert witness in this case, and therefore have not shown any undue hardship
justifying the deposition of an unretained expert’s opinion. To the extent Plaintiffs wish to
move beyond the factual investigation, into Ms. Daggett’s methodology, analysis, or
expertise, Ms. Daggett’s motion to quash is GRANTED.
II.
Other Motions
Chipotle also moved to quash the deposition subpoena. The parties dispute
whether Chipotle has standing to do so. However, Chipotle makes no arguments that
are materially different from Ms. Daggett’s own arguments. The Court has resolved the
matter based on Ms. Daggett’s motion, and Chipotle’s motion is thus DENIED AS MOOT.
Finally, Plaintiffs ask that the Court transfer this matter to the Southern District of
New York rather than resolve the motion on the merits. Federal Rule of Civil Procedure
45(f) allows transfer in only two situations: (1) where the subpoenaed party consents, and
(2) where “exceptional circumstances” warrant the transfer. Fed. R. Civ. P. 45(f). Ms.
Daggett does not consent to transfer (Docket No. 22), and thus the applicable standard is
“exceptional circumstances.” The advisory committee notes explain:
The prime concern should be avoiding burdens on local nonparties subject
to subpoenas, and it should not be assumed that the issuing court is in a
superior position to resolve subpoena-related motions. In some
circumstances, however, transfer may be warranted in order to avoid
disrupting the issuing court’s management of the underlying litigation, as
when that court has already ruled on issues presented by the motion or the
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same issues are likely to arise in discovery in many districts. Transfer is
appropriate only if such interests outweigh the interests of the nonparty
served with the subpoena in obtaining local resolution of the motion.
Fed. R. Civ. P. 45 (advisory committee note for 2013 amendments). Here, there would
seem to be little real burden on Ms. Daggett—since her attorneys are capable of entering
appearances and appearing telephonically in the Southern District of New York, and the
place of deposition would remain in Colorado. But that said, there is also little reason to
believe that this Court’s order would interrupt Magistrate Judge Netburn’s ability to
manage the underlying litigation. As Plaintiffs point out, Magistrate Judge Netburn has
issued at least two rulings on whether Ms. Daggett’s report is subject to the attorney-client
privilege—but that question has little (if anything) to do with whether Ms. Daggett is an
expert witness or a lay witness. The Court sees little risk of conflicting orders and
therefore does not find exceptional circumstances warranting transfer.1 Plaintiffs’ motion
to transfer is thus DENIED.
1
The Court does note, however, that Defendants have not disclaimed an intention to use
Ms. Daggett’s report in support of forthcoming dispositive motions. (Docket No. 19, p.5.)
This Order considers only the application of Rule 45(d)(3)(B), based on the parties’
representations that Ms. Daggett is not retained as an expert in the underlying litigation.
This Order should not be read to limit or impact any future order by the Southern District of
New York under Rule 26(b)(4), should Ms. Daggett’s relationship to the underlying
litigation change.
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Order
For the foregoing reasons, it is hereby ORDERED that:
Interested Party Chipotle Mexican Grill, Inc.’s and Chipotle Services, LLC’s
Motion to Quash Subpoena and Deposition of Cinda Daggett (Docket No. 3) is
DENIED AS MOOT; and
Dated:
Movant Cinda Daggett’s Motion to Quash or Modify Subpoena to Testify at a
Deposition (Docket No. 1) is GRANTED IN PART and DENIED IN PART, as
set forth above;
Respondents’ Motion to Transfer the Subpoena Motions to the United States
District Court for the Southern District of New York (Docket No. 11) is DENIED.
May 26, 2015
Denver, Colorado
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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