Stebbins et al v. S & P Oyster Co. et al
ORDER granting in part and denying in part plaintiffs' 72 MOTION to Compel. Signed by Judge Sarah A. L. Merriam on 4/3/2017. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAMES STEBBINS, et al.
S&P OYSTER CO., et al.
Civ. No. 3:16CV00992(AWT)
April 3, 2017
RULING ON PLAINTIFFS’ MOTION TO COMPEL [#72]
On February 15, 2017, plaintiffs James Stebbins, Daniel
Clark, and Brian Pothier (“plaintiffs”) filed a Motion to Compel
Discovery. [Doc. #72]. Plaintiffs’ motion seeks an Order
compelling defendants S&P Oyster Co., Peter Nikolaisen, and
Cathleen Holland (“defendants”) to provide further responses to
plaintiffs’ November 3, 2016, discovery requests. See id. at 1.
Defendants have filed a Memorandum of Law in Opposition to
Plaintiffs’ Motion to Compel. [Doc. #79]. Plaintiffs have filed
a Reply. [Doc. #81]. For the reasons set forth below,
plaintiffs’ Motion to Compel is GRANTED, in part, and DENIED, in
part, with leave to renew.
Plaintiffs filed this action on June 20, 2016, pursuant to
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201, et seq.,
and the Connecticut Minimum Wage Act (“CMWA”), Conn. Gen. Stat.
§§31-59, et seq., on behalf of plaintiffs and all similarly
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situated individuals. Plaintiffs, all servers at the defendant
restaurant, allege, inter alia, that they were deprived of their
statutory minimum wage and overtime wages, and that defendants
failed to provide them with mandated notice regarding a tip
credit allowance. See generally, Doc. #1. Plaintiffs have filed
a Motion for Conditional Certification of a Collective Action
pursuant to the FLSA (Doc. #54), and have indicated that they
also plan to pursue certification of a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure. See Doc. #1 at
6-9; Doc. #72 at 2. Defendants deny the allegations in the
Complaint, and have filed an opposition to plaintiffs’ motion
for conditional certification. [Doc. #62]. That motion, which is
fully briefed, is pending before Judge Alvin W. Thompson. A
settlement conference is scheduled for May 5, 2017, before the
undersigned. [Doc. #68].
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
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scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
Plaintiffs’ Motion to Compel seeks to compel further
responses to plaintiffs’ First Sets of Interrogatories and
Requests for Production, served on November 3, 2016. Defendants’
responses to the requests at issue were served on December 5,
2016. After several efforts to meet and confer, defendants
agreed to provide additional responses and documents responsive
to plaintiffs’ requests. This motion to compel was filed while
those discussions were ongoing.
Plaintiffs contend that defendants have failed to comply
with Rule 34(b)(2)(C) of the Federal Rules of Civil Procedure,
because defendants’ objections do not state whether responsive
materials were withheld. See Doc. #72 at 4. Plaintiffs also
argue that they are entitled to a more complete response to
Interrogatory 6, which requests the identities of the putative
class members. The remainder of plaintiffs’ motion relates to 21
requests for documents that generally concern pay records, tip
records, and time records for the named plaintiffs and for
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putative class members. Plaintiffs argue, inter alia, that they
“are clearly entitled to class-wide discovery in aid of their
anticipated motions for class/collective certification.” Doc.
#72 at 11. They further aver that this discovery is expressly
permitted by the Court’s Scheduling Order, Doc. #48, which
provided for “preliminary discovery related to class
certification,” specifically, “[i]nitial discovery requests
related to the certification of a class and the suitability of
the class representatives.” Doc. #48 at 2. Plaintiffs claim that
providing responses to their requests would not be burdensome,
and that the discovery sought is not disproportional “to the
amounts in controversy here.” Doc. #72 at 12.
Defendants oppose plaintiffs’ motion, arguing, inter alia,
that plaintiffs’ requests exceed the limited discovery that was
authorized by the Court’s Scheduling Order, and that plaintiffs
are not entitled to the disclosure of the identifying
information of putative class members at this point in the
litigation. See Doc. #79 at 1-3. Specifically, defendants argue
that the disclosure of identifying information of potential optin class members is appropriate only after a collective action
is conditionally certified. See id. at 3. Defendants contend
that the redacted documents that they have now provided,
including daily tip sheets, contain the unique employee number
for each server who might be a class member, so that plaintiffs
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may “properly craft a damages model” in preparation for the
settlement conference scheduled in this matter. Id. at 4.
Finally, defendants have offered to provide all documents in
response to the discovery requests at issue for a sampling of
ten servers of plaintiffs’ choosing. See id.
The requests at issue can be grouped into two categories:
requests that seek identifying information of putative class
members, and requests that seek discovery that goes to the
merits of the case. The Court will address each category in
Interrogatory 6 seeks identifying information of putative
Interrogatory 6: Identify all Persons who received tips,
whether directly from customers or indirectly through a
tip distribution scheme, at S&P Oyster throughout the
Liability Period. For each Person identified, set forth
the Person’s title at S&P Oyster.
Doc. #72-2 at 46.1 Defendants raised objections to this
request, and responded, stating:
During the period of November 1, 2013, to present, there
were approximately 63 servers employed by S&P who
received tips. In addition, kitchen team members,
expediters, and server team members employed by S&P
during that time period received tips from the servers,
Plaintiffs have also requested the “expedited disclosure” of
the contact information of putative plaintiffs in connection
with plaintiffs’ Motion for Conditional Certification, which is
pending before Judge Thompson. Doc. #54-1 at 12.
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per the servers’ voluntary agreement. None of them were
employed by Cathleen Holland or Peter Nikolaisen.
Id. at 46-47.
Plaintiffs assert that they are entitled to discovery of
these individuals’ identities, including their names; current
and prior job titles and job descriptions; last known telephone
numbers; and last known email addresses. See Docs. #72 at 6;
#72-1 at 3. Plaintiffs argue that this information will tend to
show whether other employees are similarly situated and thus
whether certification of a collective action is appropriate in
this matter. Plaintiffs also contend that the production of this
contact information “will identify witnesses whose testimony is
highly relevant to whether putative collective members are
similarly situated.” Doc. #72 at 13; see also id. at 14.
Defendants argue that discovery of the names and contact
information of putative class members is appropriate only if the
motion for conditional certification is granted. See Doc. #79 at
13. Defendants argue that since the motion for conditional
certification is fully briefed, plaintiffs only seek this
discovery to “identify and solicit new clients.” Doc. #79 at 4.
“Pre-certification discovery of potential class lists is
favored by most cases considering the question, within the
contexts of Rule 23, FLSA, or both.” Zaniewski v. PRRC Inc., No.
3:11CV01535(CSH), 2012 WL 996703, at *1 (D. Conn. Mar. 22,
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2012); see also Youngblood v. Family Dollar Stores, Inc., No.
09CV3176(RMB) 2011 WL 1742109, at *3 (S.D.N.Y. Jan. 5, 2011)
(“[A] number of courts, in [the Southern District of New York]
and elsewhere, have concluded that pre-certification disclosure
of the names and addresses of putative class members in wage and
hour cases is appropriate.” (collecting cases)).
Given the Supreme Court’s direction that the broad
remedial goal of the FLSA should be enforced to the full
extent of its terms, pre-certification discovery is
appropriate to enable Plaintiff to define the class and
Precertification discovery of employee contact information
will either enable Plaintiff to make a fuller showing at
the conditional certification stage, or reveal that the
collective action is not suitable for certification.
Additionally, early access to this information may allow
Plaintiff to move for conditional certification earlier
and potentially permit putative class members to opt-in
earlier. Encouraging early certification furthers the
limitations period continues to run until the potential
class member opts in, giving rise to a need to identify
and provide notice to potential class members promptly.
Whitehorn v. Wolfgang’s Steakhouse, Inc., No. 09CV1148(LBS),
2010 WL 2362981, at *2 (S.D.N.Y. June 14, 2010) (quotation marks
and citations omitted).
Courts in this District have addressed the question of
whether and when to order the disclosure of contact information
of potential class members, and, in similar situations, have
concluded that discovery of some identifying information is
proper prior to the conditional certification of a collective
action. See Strauch v. Computer Scis. Corp., No. 3:14CV956(JBA),
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2015 WL 75884, at *4 (D. Conn. Jan. 6, 2015) (permitting limited
pre-certification discovery of identification and contact
information); Allard v. Post Rd. Entm’t, No. 3:11CV901(AWT),
2012 WL 951917, at *2 (D. Conn. Mar. 20, 2012) (same). Indeed,
this Court has been unable to locate a District of Connecticut
or Second Circuit Court of Appeals decision holding that
discovery of the identities of potential class or collective
members is barred until after certification has been granted,
and the defendants have cited to none in their brief.
In Allard, the Court adopted the approach of courts in the
Southern District of New York and elsewhere allowing “discovery
of a putative class ... where the plaintiff shows a good faith
need for employee contact information for the purpose of
establishing the propriety of conditional certification.”
Allard, 2012 WL 951917, at *1 (quotation marks and citations
omitted). There, Judge Martinez held that plaintiff had
demonstrated “a good faith need for the putative class list to
enable her to define the class and identify similarly situated
employees,” and that there were “no legitimate grounds to limit
the requests at issue.” Id. at *2.
In Strauch, a FLSA action, the plaintiffs moved to compel
pre-certification discovery; namely, the production of all
identifying information, contact information, organizational
information and information regarding compensation for
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prospective class members, 2015 WL 75884, at *1. In finding that
“pre-certification  discovery of some identifying information
regarding putative class members is appropriate[,]” id. at *4,
the Court in Strauch followed the approach of the Court in
Allard, and of many other courts in the Second Circuit. However,
Judge Margolis in Strauch held that discovery of certain
identifying information sought by plaintiffs, such as social
security numbers, was “too excessive and intrusive.” 2015 WL
75884, at *4.
Here, the Court finds that plaintiffs are entitled to
discovery of the identifying information of potential opt-in
plaintiffs at this stage in the litigation. Although the motion
for conditional certification is still pending before the Court,
“conditional certification is not a prerequisite to the turnover
of information concerning the identity of potential class
members.” Fei v. WestLB AG, No. 07CV8785(HB), 2008 WL 7863592,
at *2 (S.D.N.Y. Apr. 23, 2008). Rather, the discovery sought
will inform the question of whether certification should be
granted. Indeed, discovery of the contact information at issue
may “reveal that the collective action is not suitable for
certification.” Whitehorn, 2010 WL 2362981, at *2. Moreover,
“[e]ven where a plaintiff’s motion to certify an FLSA collective
action fails to assert facts sufficient to meet the § 216(b)
threshold, courts ... have often ordered the disclosure of
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contact information for potential opt-in plaintiffs so that
discovery into the collective allegations could continue and the
plaintiffs could renew their motion for certification at a later
date.” Guan Ming Lin v. Benihana Nat’L Corp., 755 F. Supp. 2d
504, 513 (S.D.N.Y. 2010) (collecting cases).2
Finally, although defendants argue that such information
would implicate privacy concerns, “discovery of names, addresses
and e-mail is not extraordinarily invasive of the employees’
privacy and any such burden does not outweigh the likely
benefit.” Allard, 2012 WL 951917, at *2; see also Guan Ming Lin,
755 F. Supp. 2d at 514-515.3 The Court also notes that defendants
It is particularly appropriate to permit plaintiffs this
discovery because defendants have opposed the motion for
conditional certification on the grounds that plaintiffs have
made only “vague, conclusory” allegations and have not made a
sufficient “factual showing” of commonality. See Doc. #62 at 9,
10. These claims are reiterated throughout defendants’
opposition, which also asserts that “there are factual variances
in plaintiffs’ and potential opt-in plaintiffs’ experiences”
that are relevant to the Court’s assessment of the motion for
conditional certification. Id. at 10. If defendants wish to
argue in one context that the plaintiffs lack adequate factual
information, the Court is hard-pressed to find in another
context that defendants should be permitted to withhold that
While plaintiffs’ Interrogatory 6 does not request the social
security numbers of putative plaintiffs, the request for contact
information in plaintiff’s Motion for Conditional Certification
does. The Court declines to order the production of the putative
plaintiffs’ social security numbers at this time. See, e.g.,
Strauch, 2015 WL 75884, at *4 (ordering pre-certification
discovery of contact information, but denying the production of
social security numbers); Tate v. WJL Equities Corp., No.
13CV8616(JLC), 2014 WL 2504507, at *2 (S.D.N.Y. June 3, 2014)
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have offered to provide this information without reservation for
a sampling of ten putative plaintiffs, to be selected by
plaintiffs’ counsel, which raises questions about the merits of
the privacy concerns. See Youngblood, 2011 WL 1742109, at *4
(“Indeed, if the protection of its employees’ privacy is
[defendant’s] paramount concern, it is unclear why [defendant]
would agree to sampling, a procedure which is no less invasive
for those employees comprising the sample set.”).
The Court therefore finds that disclosure of the
identifying and contact information that plaintiff seeks for all
putative class members is appropriate. Accordingly, the Court
GRANTS plaintiffs’ motion to compel a more detailed response to
Interrogatory 6. For each of the sixty-three identified
potential plaintiffs, defendants shall provide the individual’s:
(1) full name; (2) last known mailing address; (3) last known
email address; (4) last known telephone number; (5) present or
last known place of employment; (6) job title during the time in
question; and (7) dates of employment at S&P Oyster Restaurant.
Defendants shall provide this information to plaintiffs on or
before April 18, 2017.
(same, in connection with conditional certification of a
collective action); Guan Ming Lin, 755 F. Supp. 2d at 515 (same,
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Plaintiffs also argue that they are entitled to documents
responsive to Requests 7, 8, 11, 14, and 24, which request, as
to all putative class members4: payroll records, paychecks,
paystubs, weekly schedules, time clock records, tip share
agreement documents, and documents concerning deductions in pay.
Plaintiffs contend that defendants “have not produced a single
document” responsive to these requests. Doc. #72 at 7.
Plaintiffs also seek discovery regarding tip income in
response to Request 10, which seeks, “[f]or each Plaintiff, all
payroll records, paychecks, and/or paystubs, and all records of
tip income.” Doc. #72 at 8. Plaintiffs state that defendants
produced “some” time and wage records but did not produce
records of tip income. See id. Plaintiffs argue that defendants’
responses to Requests 12, 13, 15, 16, 17, 18, 19, 20, and 21 are
also deficient. These requests seek records regarding tip shares
or pools, daily amounts of tips earned by different employees,
and accounting procedures or methodology used in calculating
distribution of tips. See id. at 8-10. Finally, plaintiffs seek
documents in connection with Requests 27, 28, 29, 38, 29, and
50, which request records of payroll reporting and payroll
policies; and communications between defendants, plaintiffs, and
Request 8 also requests the weekly schedules for the named
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class members regarding tips and/or wages paid. See id. at 1011.
After plaintiffs’ motion was filed, defendants provided
additional documents responsive to plaintiffs’ requests.
Defendants also contend that their initial production “included
time and payroll records for the named plaintiffs dating back to
January, 2013, as well as daily tip sheets.” Doc. #79 at 22.
Plaintiffs’ reply concedes that defendants have now produced
“thousands of pages” of discovery, but complains that the “great
majority” of it was received “after the filing of the Motion to
Compel.” Doc. #81 at 6-7. Plaintiffs state that defendants’
production “still does not include any class member records from
2013, despite Plaintiffs’ specific requests for records as of
2013 and the three-year statute of limitations.” Doc. #81 at 7.
Plaintiffs also argue that the redacted records identify servers
only by their identification codes, which makes it “absolutely
impossible to determine accurate damages owed to each class
member” because it requires them to “go through thousands of
documents to find the matching six digit numbers that may be
listed on any of the pages.” Doc. #81 at 3.
As an initial matter, the Court notes that plaintiffs must
have anticipated that additional documents would be produced
after the motion to compel was filed, as defendants made it
abundantly clear to plaintiffs that they intended to continue to
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produce documents and that any motion to compel would be
premature. See Docs. #72-3 at 4; #72-7 at 2-6; Doc. #79-1 at 4,
Next, it has not yet been determined whether this case will
be conditionally certified as a collective action. The Court set
a schedule to conduct initial discovery related to class
certification; this deadline was not intended to authorize
merits discovery as to all potential opt-in plaintiffs. Indeed,
plaintiffs themselves have argued that “extensive discovery is
not necessary at [this] initial stage.” Doc. #54-1 at 10
(quotation marks and citation omitted). Despite the repeated
reference in plaintiffs’ papers to “class members,” this action
has not been conditionally certified to proceed as a collective,
nor has a class action been certified. See Doc. #81 at 2, 3.
Thus, extensive discovery regarding wages, tips, and hours
worked for putative class members is not appropriate at this
time. See Rahman v. Smith & Wollensky Rest. Grp., Inc., No.
06CV6198(LAK), 2007 WL 1521117, at *4 (S.D.N.Y. May 24, 2007)
(“[P]re-certification discovery on the merits of the class
claims is generally inappropriate.”).
While discovery as to putative class members might assist
the plaintiffs in the calculation of damages for the purposes of
settlement discussions, the Court believes that defendants have
offered plaintiffs sufficient information to craft a damages
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analysis. Defendants state that “a complete set of daily tip
sheets dating back to May 12, 2014 and payroll and time records
from January 6, 2014 to December 31, 2016” have been produced
for putative class members, with names redacted. Doc. #79 at 4.
The Court declines to compel defendants to provide more
discovery than they are required to at this stage in the
Finally, the Court leaves open the question as to the
relevant time period, as Judge Thompson will necessarily
determine this issue in connection with the Motion for
Conditional Certification. See Doc. #54-1 at 11-12; Doc. #62 at
17-18. It is not this Court’s role, in ruling on this precertification motion to compel, to determine the statute of
limitations applicable to plaintiffs’ FLSA claims.
Accordingly, the Court DENIES plaintiffs’ motion to compel
additional responses to Requests for Production 7, 8, 10, 11,
12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 27, 28, 29, 38, 29,
and 50; with leave to renew upon resolution of plaintiffs’
Motion for Conditional Certification. The Court strongly
encourages the parties to meet in person to attempt to resolve
any additional discovery disputes without further Court
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For the reasons set forth above, plaintiffs’ Motion to
Compel is GRANTED, in part, and DENIED, in part. Defendants
shall provide identifying and contact information of the
putative plaintiffs in response to Interrogatory 6, as described
above, on or before April 18, 2017. The remainder of plaintiffs’
motion is DENIED, with leave to renew after resolution of
plaintiffs’ Motion for Conditional Certification.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 3rd day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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