Martinez-Garcia et al v. Perez, et al.

Filing 31

ORDER granting in part and denying in part 25 Motion to Compel. Signed by Magistrate Judge G. R. Smith on 10/16/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
CIRILO MARTINEZ-GARCIA, et al.,
and others similarly situated,
Plaintiffs,
v.

Case No. CV613-015

MARIA PEREZ and
DAHLIA GUERRERO,
Defendants.

ORDER
The Mexican migrant worker plaintiffs who brought this Fair
Labor Standards Act (FLSA) case against two farm labor recruiters
previously moved to compel subpoena responses from one of them, doc.
21, and now also move against the other. Doc. 25. Here they contend
that defendant Maria Perez failed to produce “full and complete”
employment records in response to their Fed. R. Civ. P. 34 document
requests. Id. at 1-2. They show that after Perez claimed she turned over
all that she had, they sent her a Fed. R. Civ. P. 36 Request To Admit that
there were no further records -- and she denied it. Id. at 2-3. Hence, she
is effectively maintaining that she does have additional records but

refuses to produce them. And, plaintiffs contend, she waived her
objections by failing to timely answer their discovery. Id. at 3.
Perez insists she “has produced all documents in her possession as
she has indicated through counsel and as stated in her affidavit”
attached to her response brief. Doc. 28 at 1. She seems to deny (unclear
writing) that she has, via the requests for admissions, admitted that she
is holding any document back. Id. at 1-2. She also maintains that, after
the admission requests were denied, she received from one Brenda Gail
Lewis 1 additional documents and turned them over. Doc. 28 at 1-2. And,
she will allow the inspection of her documents. Id. at 2.
Perez, plaintiffs underscore in their reply, does not dispute that she
waived (by way of untimeliness) her objections. 2 Doc. 29 at 1. They also
read her response as conceding that “additional documents exist.”

Id.

1

Her role is not specified by Perez, doc. 28-1, nor Lewis herself, doc. 28-2, but
plaintiffs seem to reference her as Perez’s bookkeeper. Doc. 29 at 3.
2

This is moot, as Perez has stood on no objections here and claims only that she has
produced all that she has, and in timely fashion at that. Doc. 28. Note, incidentally,
that the dispute here goes to things like defendants’ alleged failure to pay plaintiffs
“the required average minimum wage for every compensable hour of labor performed
in a workweek, as required by 29 U.S.C. § 206(a).” Doc. 1 at 10 ¶ 63. FLSA discovery
thus can become document-intensive, especially with respect to time and payment
records. See, e.g. , Garcia v. Bana, 2012 WL 2119157 (N.D. Ca. June 9, 2012).
2

And while she “claims in response to [their] motion that she has no
documents to produce, [Perez’s] representation in her tax return
contradict that claim.”

Id. at 2. They also accuse her of quibbling

wordplay, pointing out that she claims to have turned over all documents
in her “possession,” when in fact Rule 34 commands turnover of all
documents in her possession, custody, and control. Id. at 3; see also Rule
34(a)(1) (authorizing the production of all documents in the party’s
“possession, custody or control”). In short, they do not believe her. Id.
at 4 (“Defendant’s claims in response to Request Nos. 8, 10, and 11,
about her inability to produce bank records are also not credible.”).
Plaintiffs’ motion to compel is GRANTED in part and DENIED in
part. Doc. 25. Within 14 days of the date this Order is served, Perez will
file, in a sworn affidavit, a point-by-point concession or rebuttal to
plaintiffs’ reply-brief assertions, distilled here:
1. Perez’s 2011 tax return reveals that she is in possession or
control of business records that she claims not to possess for turnover on
document requests 8 & 11.

See doc. 29 at 2 (plaintiffs insist her tax

return and bookkeeper say otherwise). The Court will not accept a
generic invitation from Perez to plaintiffs that they may inspect her
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records. Instead, she must respond directly and specifically, under oath,
whether her tax returns reflect the existence of any records not produced
-- and if so, then identify and promptly produce them. 3
2.

“Defendant Perez’s response to Plaintiffs’ Request No. 10 is

shown to be false by her own exhibit.” Doc. 29 at 3. There the plaintiffs
“sought information about payments [Perez] received from the
agricultural enterprise.” Id. at 3. While Perez denies possession of
relevant documents, plaintiffs again insist that her own bookkeeper and
tax return show otherwise. Again, Perez must swear under oath that
there are, as she now contends, no further documents in her possession

or control.
3. “Defendant’s claims in response to Request Nos. 8, 10, and 11,
about her inability to produce bank records are also not credible.” Doc.
29 at 4. Plaintiffs point out that Perez used checks to make her payroll,
so there simply must be bank records.

The Court incorporates its

directive in point 2 supra.
3

This Court does not tolerate perjury in any form. Colony Ins. Co. v. 9400 Abercorn,
LLC , 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga. 2012). And Perez is reminded of the
qualification/stricture set forth in Rule 34(a)(1) (authorizing the production of all
documents in the party’s “possession, custody or control”).
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4. “Plaintiffs’ Request Nos. 3 and 4 sought details of Defendant’s
reimbursement or payment of travel and immigration expenses.” Doc.
29 at 4. Again, Perez’s tax return, plaintiffs insist, contradicts her claim
that she does not have documents about those expenses. How, plaintiffs
ask, could she then calculate expenses to claim income tax deductions?

Id. Again, the Court is distilling plaintiffs’ dissatisfaction here; Perez
will respond, under oath, point-by-point in light of the possession or
control distinction noted supra.
5. “Request No. 7 sought documents about the recruitment and
processing of H-2A workers.” Doc. 29 at 5. Plaintiffs don’t believe that
only one email exists showing Perez’s communication with the U.S.
Consulate in Mexico. Id. They remind that their request encompasses
communications with that consulate as well as recruiters. The Court
agrees that it seems highly unlikely that only one email exists. Once
again, Perez must swear under oath that there are, as she now contends,
no further documents in her possession or control.
6. “Responses to Plaintiffs’ Requests Nos. 1 and 2 are also still
incomplete. Plaintiffs still do not have complete payroll records from
[Perez], Doc. 25 at 5, nor the admission that [she] has no further record.”
61

Doc. 29 at 5. Plaintiffs then illuminate the fact that they simultaneously
subpoenaed Perez’s bookkeeper, who later “discovered additional
paperwork” turned over to them is suspect. Perez and Gail Lewis shall
each (by separate affidavit to be filed with this Court) swear under oath
that; (a) all requested payroll records have been turned over; (b) none
were deliberately or recklessly held back; and (c) no others exist in
Perez’s possession, custody, or control.
7.

Perez’s “responses to Request Nos. 5 and 6 also remain

unsatisfactory. [She] claims to possess nothing more. Doc. 28 at 3. At a
minimum, there must be records relating to truck driving and forklift
operation responsive to Request No. 5 as these operations require
documentation of the truck, the operator, and the number of runs
made.” Doc. 29 at 5-6. Perez must affirmatively swear that, upon her
good faith effort to retrieve this and all other discovery requested, no
such documents ever existed or, of if they did, they are no longer
recoverable (and why).
8. Perez, plaintiffs complain, “has not explained her response to
Request No. 6 that that she ‘is not in possession of electronic data files at

this time .’ ” Doc. 25-4 at 2 (emphasis added). The Court will not accept

any quibbling qualifiers. If Perez is not in possession of requested
documents at any given moment then she must disclose (a) when she will
be; and (b) the present custodian in a manner that enables plaintiffs to
subpoena same.
9. Finally, plaintiffs point out that “electronic data must have been
prepared to calculate pay for a workforce of more than 75. The files
[Perez] produced to-date do not calculate pay and only contain pay
totals.” Doc. 29 at 6. Perez shall explain why, and promptly furnish that
information. The Court directs counsel to confer by telephone to resolve
any further disputes short of further motions to this Court.
To summarize, plaintiffs’ motion to compel is GRANTED in part
and DENIED in part. Doc. 25. The Court will evaluate plaintiffs’ Fed.
R. Civ. P. 37(a)(5)(A) expenses request, which they are free to renew
should counsel fail to informally resolve same, following Perez’s
response.

SO ORDERED this 16th day of October, 2013.
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LTh11ED STATES MAGISTRATE JUDGE

SOUThIEIT DISTRICT OF GEORGIA

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