Kennard et al v. Another Adventure Day Care, LLC

Filing 27

ORDER denying 19 Motion to Quash; denying 24 Motion to Quash; denying 25 Motion to Quash; denying 26 Motion to Quash. Signed by Magistrate Judge G. R. Smith on 11/3/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SARAH KENNARD and
and TONI PILCHER,

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Plaintiffs,

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V.

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Case No. CV414-139

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ANOTHER ADVENTURE
DAY CARE, LLC

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Defendant.

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ORDER
Plaintiffs Sarah Kennard and Toni Pilcher, former employees of
defendant Another Adventure Day Care, LLC (AADC), brought this Title
VU case against AADC. Doe. 1. Pursuant to Fed. R. Civ. P. 45(d)(3),
AADC moves to quash plaintiffs' non-party subpoena to AADC's bank,
Wells Fargo Bank ("Wells Fargo"). Doe. 19. The dispute arises from the
fact that AADC denies it was Kennard's employer, doe. 6, at 1, though one
of AADC's principals used an AADC account (at Wells Fargo) to pay her to
care for his mother. Doe. 19 at 1; doe. 20 at 1. Plaintiffs want the bank's
AADC records going back two years so they can check for corporate
veil-piercing activities, doe. 20 at 1-2, as well as whether AADC "has a

practice of creating fraudulent employee records that is relevant to the
instant case or has otherwise abused the corporate entity as it has done on
Sarah Kennard's case."

Id. at 3.

Disturbingly, however, AADC says this on page one of its motion:
Pursuant to S.D. Ga. LR 26.5 and Fed. R. Civ. P. 26(c), undersigned
counsel certifies that she attempted to contact [plaintiffs' counsel,
Gwendolyn Fortson] Waring.. . by telephone and email in order to
resolve this dispute without involving the Court. However,
according to her assistant, Ms. Waring will be unavailable until
October 13, 2014, which is the date of production specified on the
subpoena. Ms. Waring has not responded to email correspondence
regarding this issue.
Doc. 19 at 1 n. 1.
A lawyer being "not available," and who fails to respond to basic
correspondence, is simply not a sufficient reason to violate the duty to
confer, as underscored by Local Rule 26.5(c) ("{c]ounsel are reminded that
Fed.R.Civ.P. (26(c) and 37(a)(2) require a party seeking a protective order
or moving to compel discovery to certify that a good faith effort has been
made to resolve the dispute before coming to court."). As this Court
emphasized in a recent Rule 45 case, "[t]hat rule is enforced."

Hernandez v. Hendrix Produce, Inc., 2014 WL 953503 at * 1 (S.D. Ga. Mar.
10, 2014). And the conference must be meaningful.
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Hernandez v.

Hendrix Produce, Inc., 297 F.R.D. 538, 540 (S.D.Ga. 2014).'
Requiring meaningful consultation can lead to informal resolution
and thus conservation of court resources.'

Avera v. United Airlines, Inc.,

465 F. App'x 855, 858-59 (11th Cir. 2012) (magistrate judge did not abuse
1

More than a "we met and talked" certification is needed, though every case is
different. See DirecTV, LLC v. Shirah, 2013 WL 5962870 at * 2 n. 3 (S.D. Ga. Nov. 6,
2013) (collecting cases); Jackson v. Deen, 2012 WL 7198434 at * 1 (S.D. Ga. Dec. 3,
2012) ("[n]either face-to-face nor telephone contact is necessarily essential to the 'good
faith' certification requirement in every case. Sometimes letters, emails, or faxes will
suffice. But under the circumstances here, the Court is persuaded that more is
required than a mere back and forth salvo of papers.").
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The parties thus can take a moment and first revisit the liberal relevancy standard
employed in the discovery phase of litigation. Southard v. State Farm Fire & Cas.
Co., 2012 WL 2191651 at * 2 (S.D. Ga. June 14, 2012) ("the relevancy standard for
discovery is not the same as for at-trial evidence. For discovery it is more liberal,
though not a fishing license."). They can then consult "economic reality" factors in
analogous employment-based cases to try and resolve whether plaintiffs are entitled to
the financial data their subpoena seeks. See Bricker v. R & A Pizza, Inc., 804 F. Supp.
2d 615, 621-22 (S.D. Ohio 2011) (two employers may be considered joint employers
when they handle certain aspects of their employer-employee relationship jointly;
under this doctrine, an employee, formally employed by one entity, who has been
assigned to work in circumstances that justify the conclusion that the employee is at
the same time constructively employed by another entity, may impose liability for
violations of employment law on the constructive employer, on the theory that this
other entity is the employee's joint employer); Long v. Aronov Realty Management,
Inc., 645 F.Supp.2d 1008, 1029-30 (M.D. Ala. 2009) (discussing financial factors
considered in joint-employer discrimination cases); Doe v. Lee, 943 F. Supp. 2d 870,
876 (N.D. Iii. 2013) (the existence, amount and kind of compensation received by a
worker is relevant to, if not dispositive of, the issue of whether an individual is an
employee under Title WI or a volunteer); Donovan v. Tony & Susan Alamo Found.,
722 F.2d 397, 400 n. 8 (8th Cir. 1983) (applying "economic reality" test to determine
that religious foundation was employer of laborers under the Fair Labor Standards
Act), cited in Maurer v. Chico's FAS Inc., 2013 WL 6388451 at * 6 (E.D. Mo. Dec. 6,
2013) ("The Supreme Court has noted that whether a relationship is covered by the
FLSA turns on the economic realities of the working relationship rather than
technical definitions relating to employment.").
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his discretion in denying, without prejudice, plaintiffs motion to compel
discovery where plaintiff had not sought to resolve his discovery dispute
with defendant before filing the motion); In re Rhodes Companies, LLC,
475 B.R. 733 2 742 (D.Nev.2012) (affirming bankruptcy court's denial of
protective-order motion based on moving party's failure to include such
certification, rejecting "futility" assertion); Jo Ann Howard & Associates,
P.C. v. Cassity, 2012 WL 1247271, at *8 (E.D. Mo. Apr. 13, 2012) (rejecting
compulsion request in part because "the failure of the parties to
communicate materially impeded their resolution of this matter.")
(emphasis added).
Defendant AADC's motion to quash (doe. 19), then, is DENIED
without prejudice to its right to renew it within 14 days of the date this
Order is served, during which attorney Fortson shall be freely available,
and both counsel shall meaningfully confer. Wells Fargo, meanwhile, is
relieved of having to respond to the subpoena until the fifteenth day after
this Order is served, and is further relieved if AADC timely renews its
quash motion, after which it shall await further Court order.
Finally, the Court also DENIES (also without prejudice) plaintiffs'
In

just-filed quash motions (does. 24, 25 & 26) for lack of the same "confer"
certification. "Discovery, it must be remembered, should be a
self-executing, extrajudicial exercise requiring at most infrequent court
intervention[.]" Jackson v. Deen, 2012 WL 7198434 at * 1 (S.D. Ga. Dec.
3, 2012); Scruggs v. International Paper Co., 2012 WL 1899405 at *1 (S.D.
Ga. May 24, 2012). The Court will not tolerate such a casual disregard of
its rules, much less the ensuing waste of its resources.
SO ORDERED, this & day of November, 2014.

UNITEII STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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