Herrera-Velazquez et al v. Plantation Sweets, Inc. et al

Filing 88

ORDER granting 44 Motion to Compel Defendants Narciso Perez and Perez Forestry, LLC's Production of Putative Class Member Names and Permanent Addresses and for Tolling ; denying 67 Motion for Discovery; granting 78 Motion Request to Hol d MOTION to Compel in Abeyance; granting 85 Motion for Extension of Time to Furnish Expert Witness Reports and Complete Discovery; granting 86 Motion for Status Conference. The Court directs the Deputy Clerk to schedule a Status Conference. Signed by Magistrate Judge G. R. Smith on 1/14/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

EMILLANO HERRERA-VELAZQTIEZ,)
et al,
)

Plaintiffs,

)
)

V.

)
)

PLANTATION SWEETS, INC.
VIDALIA PLANTATION, INC.
RONALD A. COLLINS,
NARCISO PEREZ, and
PEREZ FORESTRY, LLC,

)
)
)
)
)

Case No. CV614-127

)

Defendants.

)

ORDER
Before the Court are additional discovery motions in this, the next
in a series of farmworker rights cases that in one way or another turn on
whether farm owners have underpaid their farmworkers. Does. 44, 67,
78 7 85 & 86; see also Ojeda-Sanchez v. Bland Farms, 600 F.Supp.2d 1373,
1378 (S.D. Ga. 2009); Ramos-Barrientos v. Bland, 2009 WL 3851624 at *
1 (S.D. Ga. Nov. 17, 2009); Morales-Arcadio v. Shannon Produce Farms,

Inc., 2006 WL 2578835 at *1 (S.D. Ga. Aug. 28, 2006). The now de rigeur

discovery disputes spring from the record-keeping that plaintiffs say
farmers (and labor contractors) are supposed to maintain so that
payment disputes can be efficiently resolved.' This case is no exception.
I. BACKGROUND
The farmworker plaintiffs in this case "are guest workers from
Mexico and seasonal agricultural workers from the United States
recruited by Defendants, to work in and around Tattnall County,
Georgia between 2012 and 2014." Doc. 8 at 1. They raise Fair Labor
Standards Act and other claims. Id. The Court granted conditional class
action certification, Herrera-Velazquez v. Plantation Sweets, Inc., 2015
WL 4111261 at * 3 (S.D. Ga. July 6, 2015), thus necessitating discovery
in quest of unidentified class members. Herrera-Velazquez v. Plantation

Sweets, Inc., 2015 WL 5613195 (S.D. Ga. Sept. 23, 2015) (Herrera-II).

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Farmers are under a legal duty to keep accurate employment and payment records.
Fanette v. Steven Davis Farms, LLC, 28 F. Supp. 3d 1243, 1261 (N.D. Fla. 2014)
(farm owner failed to keep accurate records regarding agricultural workers in
violation of federal statute, where no records were kept as to time workers spent
harvesting peas or beans paid on piece-rate basis, records listed production of several
workers under single picker's name, and records were not retained by owner or his
labor contractor).
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Unhappy with discovery produced upon their requests, plaintiffs
moved to compel defendants Perez and Perez Forestry, LLC (hereafter
and for convenience only, "Perez") "to produce a complete list of putative
class member names and addresses, as ordered by this Court." Doc. 44
at 1 (emphasis added). They raised substantial doubt about Perez's
discovery compliance, specifically his claimed lack of memory about key
data. Herrera-II, 2015 WL 5613195 at * 3. The Court deferred ruling on
the motion to compel and directed him to "submit an affidavit swearing
under oath to the above "independent recollection" assertions. He shall
also specifically address each and every factual assertion set forth in
plaintiffs ! brief, doe. 50 at 2-3." Id. at * 4. He has since responded.' Doc.
58. Plaintiffs don't believe him. Doc. 60.

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His counsel filed this:
Attached hereto as Exhibit A is Perez's Unsworn Declaration Under Penalty of
Perjury in which, as directed by the Court, he answers plaintiffs' factual
assertions. Furthermore, he states that he has produced all of the documents
that he was able to find that were in any way responsive to the documents
sought by plaintiffs in connection with the Court's Order certifying a
conditional class. Counsel for Defendants likewise informed plaintiffs' counsel
that Defendants had produced all documents that they had regarding all
categories of workers as requested by plaintiffs.

Doc. 58 at 1. In his 28 U.S.C. § 1746 Declaration, Perez concedes he was "mistaken"
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Third party Plum Creek Timber Company, Inc., meanwhile, sought
a compliance-ruling with respect to plaintiffs' document subpoena, doc.
47. The Court ruled against it and told it to, inter alia, produce the
pricing data that plaintiffs sought. Herrera-II, 2015 WL 5613195 at * 5..
6; doc. 55 at 14. That ruling is now before the district judge upon Plum
Creek's Fed. R. Civ. P. 72(a) Objection. Doe. 61; see also doe. 63
(response).
II. ANALYSIS
A. First Motion to Compel
Plaintiffs are not happy with Perez's response to the Court's
compulsion Order. They basically call him a liar' and complain that he
persists in failing to produce critical documents. Doe. 60. He resisted
producing data, they emphasize, "not only on the basis of a
misrepresentation, but also on the basis of a flawed legal argument. And

about previously attested facts and now says he has corrected them. Doc. 58-1 at 1.
He now insists that he has turned over all responsive documents to his attorney, id.
at 2, and she says she has produced them. Doc. 58 at 1-2; doc. 58-2.
His lawyer has since withdrawn from representing him. Does. 79 & 82. Three
lawyers have replaced her. Does. 80, 81 & 83 (attorneys Raymond Perez, II, Larry
Stine, and Kathleen J. Jennings).
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[he] made [his] production of H-213 worker information only

after

Plaintiffs filed their Motion to Compel." Doe. 60 at 2. They thus seek
Fed. R. Civ. P. 37(a)(5)(A) attorney's fees and costs. Id. Their assertions
are supported and undisputed. The Court therefore GRANTS their first
motion to compel (doe. 47) and orders Perez to pay them $750.
B. Second Motion to Compel
In their second motion to compel, plaintiffs again allege hide-theball level deception and intransigence, this time by defendant Ronald
Collins. They want this Court to order him to produce his
electronically stored payroll records. Defendant Collins repeatedly
indicated that he would produce the records, which are kept in a
program called Famous, but has failed to do so. Instead, he has
produced only a handful of static documents showing only a very
limited portion of the data, and omitting production of metadata,
the relationships between the data, the pay formulas, and,
therewith, Plaintiffs' ability to reconstruct what occurred with
payroll that Plaintiffs allege was prepared improperly. Doe. 8 ¶ 158163. Hours and pay lie at the heart of this case, .and therefore the
Famous records are of central importance to the claims and
defenses in this litigation. Plaintiffs have alleged that hours went
unrecorded, and believe that the (conflicting) hours data already
produced by Defendant Collins is not genuine.
Doe. 67 at i.

Alter this motion was filed, Collins retained attorney Joe B. Mathews, Jr. Doe. 74.
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Plaintiffs explain that "payroll amounts, payroll calculations, and
payroll data are increasingly the product of specialty payroll programs.
Here, as in much of agriculture, that program is called Famous
Software." Id. Citing Ojeda-Sanchez v. Bland Farms, LLC, 2009 WL
2365976 at * 3 (S.D. Ga. July 31, 2009), they remind this Court that it
and other courts "have emphasized that payroll data productions are to
be made complete, with the associated formulas." Id. at 2. In litigation
marked by chronic complaints of deception and obscurantism, they
remind that "[w]hen only payroll reports, rather than the underlying
payroll data are produced, the relationships between the data are
obscured, the data is not produced in the manner in which it is stored
and Plaintiffs' discovery is significantly hampered."

Id.

They thus

"move to compel because Defendant Collins, while stating he would
produce the data, has repeatedly failed to do so." Id.
With new counsel onboard, see supra n. 3 & 4, the parties have
worked this motion out but also jointly request leave to postpone Collins'
response:
He additionally retained Gerald M. Edenfield, who also represents defendants
Plantation Sweets, Inc. and Vidalia Plantation, Inc. Doe. 72.
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Plaintiffs and Defendant Collins have agreed that Defendant
Collins shall make this access available on January 6, 2016,
allowing some time for set up and taking into consideration
interruptions due to the upcoming holidays. In order to ensure that
they have been provided with complete access to the requested
data, limited only by the timeframe of this litigation, Plaintiffs will
require one week, until January 13, 2015, to review/assess the
remote access provided by Defendant Collins. If such access is not
made or is incomplete, Plaintiffs will inform Defendant Collins so
that Defendant Collins may correct the production or respond to
Plaintiffs Motion. Accordingly, Plaintiffs and Defendant Collins
request that this Court postpone until January 14, 2016 the
deadline for Defendant Collins to file a response to Plaintiffs
Motion to Compel, holding the motion in abeyance.
Doc. 78 at 2 (emphasis added).
The Court grants that request. For docket-clearing purposes only,
however, it DENIES plaintiffs' second motion to compel (doe. 67)
without prejudice to their right to renew it should this informal
resolution attempt fail.
C. Extensions of Time
Acknowledging two prior extensions, plaintiffs move the Court to
extend by 45 days the deadlines set forth in its June 8, 2015 scheduling
order, doe. 40, as amended, doe. 66. Doe. 85 at 1. Discovery, they point

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out, is due to expire on February 19, 2016, 5 and the deadline for expert
witness reports expired on December 22, 2015.

Id.

And "[a]fter the

filing of Plaintiffs' Motion to Compel Defendant Ronald A. Collins's
Response to Request for Production, the Plantation Defendants agreed to
produce the electronic payroll data on January 6, 2016." Doe. 85 at 2.
They also detail Perez's attempted compliance: He "produced a laptop
computer for inspection on December 9, 2015, but, with the assistance of
their retained computer expert, Plaintiffs discovered that this laptop
computer did not contain the electronic payroll records for the years at
issue in this litigation and instead contained electronic payroll records
from other years. The Perez Defendants have since acknowledged that a
second laptop computer was used for the years at issue in this litigation,
and have agreed to produce it for inspection next week." Id. at 2-3.
In response, defendants Plantation Sweets, Inc., Vidalia Plantation,
Inc., and Ronald A. Collins
move this Court for an Order directing the parties to appear before
the Court to participate in a Status Conference in the. abovereferenced case. Pursuant to Local Rule 16.2, and in order to
Discovery originally was set to expire on November 21, 2015, doe. 40 at 1, but the
Court extended it to February 19, 2016. Doe. 66.
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facilitate the prompt completion of discovery based upon a
reasonable assessment of the discovery that remains, the purpose
of the proposed Status Conference would be to discuss the status of
discovery and to revise the current Scheduling Order.
Doc. 86 at 1. Citing the recent change of counsel and "the unique
circumstances of this case," they want a 180 day extension, not the 45
plaintiffs request. Id. at 3, 5. Perez concurs. Doc. 87 at 1. The Court
GRANTS the plaintiffs extension motion, doc. 85, and also GRANTS
the defendants' conference motion, doc. 86. At that conference the Court
will hear argument on the 180-day extension request and address any
remaining discovery disputes.
III. CONCLUSION
The Court GRANTS plaintiffs' first motion to compel and awards
them $750 in attorney fees against the Perez defendants. Doe. 44. It
DENIES without prejudice plaintiffs' second motion to compel. Doe. 67.
The Court also GRANTS motions # 78, 85 & 86 and DIRECTS the
Deputy Clerk to schedule a Status Conference. Finally, counsel must

familiarize themselves with the December 1, 2015 changes in the
discovery rules.'

The 2015 revision to Fed. R. Civ. P. 26(b)(1) reinforces parties' obligations to
consider proportionality in making discovery requests, responses, and objections:

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Unless otherwise limited by court order, the scope of discovery is as follows:
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 scope of discovery need not be admissible in
evidence to be discoverable.
Rule 26(b)(1) (emphasis added). This new version of the rule "govern[]s in all
proceedings in civil cases thereafter commenced and, insofar as just and practicable,
in all proceedings then pending." Carr v. State Farm Mut. Auto. Ins., Co., - F.
Supp. 3d, 2015 WL 8010920 at * 6 (N.D. Tex. Dec. 7, 2015). It elevates the
proportionality factors previously found under Rule 26(b)(2)(C), but in a different
order. Bonds v. Hyundai Motor Co., 2015 WL 5522072 at * 3 n. 2 (M.D. Ala. Sept.
16 ) 2015). One court has concluded that the "burdens to show undue burden or lack
of proportionality have not fundamentally changed" compared to the earlier version
of the Rule. Carr, 2015 WL 8010920 at * 6; see also id. at * 9 (party seeking to resist
discovery on ground that proposed discovery is not proportional to needs of case
bears burden of making specific objection and showing that discovery fails
proportionality calculation by coming forward with specific information to address,
insofar as that information is available to it, importance of issues at stake in action,
amount in controversy, parties' relative access to relevant information, parties'
resources, importance of discovery in resolving issues, and whether burden or
expense of the proposed discovery outweighs its likely benefit).
Finally the new rule adds as a factor "the parties' relative access to relevant
information." Rule 26(b)(1). Of course, the "access" consideration in this case is
directly affected by statutory record-keeping obligation noted supra n. 1.
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SO ORDERED, this /Iay of January, 2016.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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