Gonzalez v. JBS Live Pork, LLC

Filing 28

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff Gabriel Gonzalez's Motion to Compel Defendants' Discovery Responses 24 is ALLOWED in part and DENIED in part. See written order. Defendants shall provide all supplemental responses called for in this Opinion by April 5, 2019. The parties shall also provide the Court with an agreed proposed protective order for the Court's consideration by March 15, 2019. (LB, ilcd)

E-FILED

Tuesday, 26 February, 2019 08:53:58 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
GABRIEL GONZALEZ,
Plaintiff,
v.
JBS Live Pork, LLC;
JBS USA, LLC; and
SWIFT PORK COMPANY,
Defendants .

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No. 18-cv-3044

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Gabriel Gonzalez’s
Motion to Compel Defendants’ Discovery Responses (d/e 24) (Motion). For
the reasons set forth below, the Motion is ALLOWED in part and DENIED
in part.
BACKGROUND
Gonzalez was employed at a meat processing plant (Plant) located in
at 8295 Arenzville Road, Beardstown, Cass County, Illinois. Gonzalez
alleges that Defendants JBS USA, LLC, now known as JBS USA Lux S.A.
(JBS USA); JBS Live, LLC (JBS Live); and Swift Pork Company (Swift)
jointly employed him at the Plant. Gonzalez alleges that the Defendants
employed more than 50 employees within 75 miles of the Plant, and so,
Page 1 of 57

were subject to the requirements of the Family Medical Leave Act (FMLA),
29 U.S.C. §§ 2611(2)(B) and 2611(4). Gonzalez alleges that he worked at
the Plant for more than a year, and so, was entitled to leave under the
FMLA. See First Amended Complaint, ¶¶ 1-18.
Gonzalez alleges that on or about March 1, 2016, he developed
headaches and began bleeding from the nose and mouth. Gonzalez went
to the emergency room at Passavant Hospital, Jacksonville, Illinois.
Emergency room staff determined that the symptoms were caused by high
blood pressure. Gonzalez was treated, but still had symptoms during the
month of March 2016. Gonzalez was absent from work numerous days in
March 2016 as a result of this condition. Gonzalez alleges that he promptly
notified Defendants several times of his need for FMLA leave due to his
condition. He alleges the Defendants fired him for excessive absences on
March 30, 2016, in violation of his rights under the FMLA. He alleges a
claim for interference with his rights under the FMLA and retaliation for
exercising his rights under the FMLA. He alleges that Defendants did not
act in good faith. He seeks back pay, prejudgment interest, liquidated
damages equal to his back pay and prejudgment interest, reinstatement or
front pay, and attorney’s fees. First Amended Complaint, ¶¶ 22-55 and
Prayer for Relief ¶¶ A-E.
Page 2 of 57

On September 4, 2018, Gonzalez serve interrogatories and requests
to produce on all three Defendants. On November 9, 2018, the Defendants
provided written responses. Gonzalez found the responses to be deficient.
The parties’ counsel met and conferred to resolve the dispute without court
action, but disputes remain. Gonzalez, therefore, filed this Motion.
The Court addresses the disputed discovery requests in order. The
Court addresses the discovery requests to JBS USA and JBS Live together
and then addresses the disputed discovery requests to Swift.
JBS USA and JBS LIVE
Requests to Produce to JBS USA and JBS LIVE
Gonzalez asks the Court to compel JBS USA and JBS Live to provide
responsive documents to Requests to Produce (Requests) 1, 2, 3, 4, 5, 7,
8, 9 ,10, 11, 14, 15, 17, 18, 19, 20, 22, 24, 25, 27. The Court addresses
the disputed request as follows.
Request 1
Request 1 asks for a copy of the articles of incorporation of
Defendants JBS USA and JBS Live respectively.
Motion, Group Exhibit 2, JBS USA Request Response, 24-2 at 24 of 71;
Motion, Group Exhibit 2, Defendant JBS Live, LLC’s Responses to

Page 3 of 57

Plaintiff’s First Set of Requests to Produce (JBS Live Request Response),
24-2 at 48 of 71.1 JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA.
JBS USA Request Response, 24-2 at 24 of 71; accord JBS Live Request
Response, 24-2 at 48 of 71.
The request to JBS Live and the response were similar. The only
differences were the references to JBS Live instead of JBS USA. JBS
Request Response, 24-2 at 24 of 71. Throughout, Gonzalez’s requests
and interrogatories to JBS Live and JBS Live’s responses, the only
differences were references to JBS Live instead of JBS USA. The Court,
therefore, does not quote the discovery requests directed to JBS Live
separately from the requests to JBS USA because such quotes would be
redundant.
The Defendants argue that the requested documents are irrelevant
because only Swift employed Gonzalez. The Defendants have submitted a
Declaration of Nicholas White, General Counsel of Swift (Nicholas

1

The Court uses the pagination assigned by the Court’s CM/ECF system in referring to Group Exhibit 2.
The CM/ECF pagination identifies the specific page in the Group Exhibit. Also, some documents in the
Group Exhibit 2 have no pagination.

Page 4 of 57

Declaration). Exhibits to Defendants’ Opposition to Plaintiff’s Motion to
Compel (d/e 27), Exhibit C, Nicholas Declaration. Nicholas states that JBS
USA is now a Luxembourg business entity JBS USA Lux, S.A. Nicholas
further states that JBS USA is a holding company and parent corporation
that owns Swift. Nicholas states that Swift operates the Plant and
employed and discharged Gonzalez. Nicholas states that JBS Live is a
subsidiary of Swift. Nicholas states that JBS Live operates live animal
operations. Nicholas states that JBS USA and JBS Live did not and do not
own the Plant and did not employ anyone at the Plant, including Gonzalez.
Nicholas Declaration, ¶¶1-4. The Defendants argue that the Defendants
should not be required to produce any documents related to the
organization of each Defendant or the relationship between each
Defendant because only Swift was Gonzalez’s employer and only Swift has
any potential liability on his FMLA claims.
The Defendants’ objections to Interrogatory 1 are overruled.
Gonzalez alleges that the Defendants jointly employed him. Gonzalez
alleges several documents indicated that JBS owned the Plant and
employed him. Amended Complaint, ¶¶ 15-16. Those documents are
sufficient to put at issue whether the Defendants were joint employers.

Page 5 of 57

If two entities are joint employers of an individual, then both entities
may be liable for violations of the FMLA. 29 C.F.R. § 825.106. Section
106 of the regulations lists factors for determining whether entities are joint
employers:
a) Where two or more businesses exercise some control over
the work or working conditions of the employee, the businesses
may be joint employers under FMLA. Joint employers may be
separate and distinct entities with separate owners, managers,
and facilities. Where the employee performs work which
simultaneously benefits two or more employers, or works for
two or more employers at different times during the workweek,
a joint employment relationship generally will be considered to
exist in situations such as:
(1) Where there is an arrangement between employers to
share an employee's services or to interchange
employees;
(2) Where one employer acts directly or indirectly in the
interest of the other employer in relation to the employee;
or,
(3) Where the employers are not completely
disassociated with respect to the employee's employment
and may be deemed to share control of the employee,
directly or indirectly, because one employer controls, is
controlled by, or is under common control with the other
employer.
29 C.F.R. § 825.106. The Seventh Circuit has determined that these
factors do not “provide much guidance in determining the parameters of
what constitutes a joint-employment relationship.” Moldenhauer v.
Tazewell-Pekin Consolidated Communications Center, 536 F.3d 640, 644
Page 6 of 57

(7th Cir. 2008); see also Papa v. Katy Industries, Inc., 166 F.3d 937, 939-40
(7th Cir. 1999); Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 608 (7th
Cir. 2014). The Seventh Circuit has determined that generally joint
employer status turns primarily on whether each exercised control over the
working conditions of the employee:
[W]e hold generally that for a joint-employer relationship to
exist, each alleged employer must exercise control over the
working conditions of the employee, although the ultimate
determination will vary depending on the specific facts of each
case.
Moldenhauer, 536 F.3d at 644; see also Whitaker v. Milwaukee County,
Wisconsin, 772 F.3d 802, 810 (7th Cir. 2014).2 The determination of joint
employment is “person specific.” Each claimed joint employer must
exercise control over the working conditions of the specific employee at
issue. Cuff, 768 F.3d at 608.
Affiliated entities, such as parent and subsidiary corporations, may
also be subject to joint employer liability if “traditional conditions [are]
present for ‘piercing the veil’ to allow a creditor . . . to sue the parent or
other affiliate.” Papa, 166 F.3d at 940.3

2

The Seventh Circuit has also indicated that a parent corporation or other affiliated business entity may
be liable if the parent or affiliated business directly committed the wrongful act. See Papa, 166 F.3d at
941. In this case, the wrongful act was wrongfully terminating Gonzalez. If JBS USA or JBS Live directly
fired Gonzalez they would have demonstrated sufficient control over the conditions of employment to be a
joint employer.
3
Joint employer liability may also be found if “an organization divid[ed] itself into smaller entities with
fewer than the statutory minimum number of employees for the express purpose of avoiding FMLA

Page 7 of 57

In light of these legal principals, the articles of incorporation of JBS
USA and JBS Live may lead to evidence relevant to the question of
whether joint employer status may be appropriate under the piercing the
corporate veil theory. Whether companies maintain the corporate
formalities is a factor is deciding whether to pierce the corporate veil. See
Papa, 166 F.3d at 941. The Nicholas Declaration is not sufficient to avoid
compliance with the document request. Gonzalez is entitled to see the
documents and make his own analysis. The objection is overruled. JBS
USA and JBS Live are directed to produce the documents in Request 1.
Request 2
Request 2 asks for a copy of the corporate bylaws of JBS USA. JBS
USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(l), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.

obligations.” Moldenhauer, 536 F.3d at 645. In this case, Swift admits that it was Gonzalez’s employer
and was subject to the FMLA. Defendants’ Answer to Plaintiff’s First Amended Complaint and Jury
Demand (d/e 13), ¶¶ 5, 9. The Defendants, therefore, have not subdivided operations to avoid coverage
by the FMLA.

Page 8 of 57

JBS USA Request Response, 24-2 at 24 of 71 (emphasis in the original);
accord JBS Live Request Response, 24-2 at 48 of 71. The objections are
overruled in part and sustained in part. Bylaws may be relevant to whether
Gonzalez may pierce the corporate veil to establish joint employer liability.
Papa, 166 F.3d at 940. Gonzalez has agreed to modify his request to limit
the request to the time period from January 1, 2015 to December 31, 2016.
Motion, at 2. Defendants argue the time period should be limited to March
2016. Defendants’ Opposition to Plaintiff’s Motion to Compel (d/e 26)
(Opposition), at 4. The Court finds the two-year time limitation is
reasonable under the circumstances. Gonzalez is entitled to discover
information about the relationship between these entities, and each
relationship to employment at the plant. Gonzalez reasonably should be
entitled to information from a reasonable period of time to discover the
nature of this relationship. A month is too short for this purpose. Two
years is a reasonable amount of time that will not put an undue burden on
the Defendants. Defendants JBS USA and JBS Live are directed to
produce any corporate bylaws in effect for the period from January 1, 2015
to December 31, 2016.

Page 9 of 57

Request 3
Request 3 asks for a copy of each Defendant’s organizational
structure. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because at all
times relevant to this action, Plaintiff was an employee of Swift
Pork Company and was not an employee of JBS USA. JBS
USA further objects to this request as vague, overbroad, and
unduly burdensome because it is not limited to a relevant time
period.
JBS USA Request Response, 24-2 at 25 of 71 (emphasis in the original);
accord JBS Live Request Response, 24-2 at 49 of 71. The objections are
overruled in part and sustained in part. The organizational structure of
each entity may be relevant to whether Gonzalez may pierce the corporate
veil to establish joint employer liability. Papa, 166 F.3d at 940. Gonzalez
has agreed to modify his request to limit the request to the time period from
January 1, 2015 to December 31, 2016. Each of the Defendants JBS USA
and JBS Live is directed to produce copy of a document in its possession
that sets forth its organizational structure in effect for the period from
January 1, 2015 to December 31, 2016.
Request 4
Request 4 to JBS USA asked for:
Page 10 of 57

Any and all documents, including personnel policies,
personnel handbooks, memorandum which refer to Defendant
JBS USA, LLC's company policies, including but not limited to,
medical leave policies.
JBS USA Request Response, 24-2 at 25 of 71. JBS US responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA.
JBS USA Request Response, 24-2 at 25 of 71 (emphasis in the original);
accord, JBS Live Request Response, 24-2 at 49 of 71.
The objections are sustained in part. JBS Live and JBS USA
objected to the request in its entirety. These documents may be relevant to
the extent the documents governed some aspect of Gonzalez’s
employment at the Plant. The central issue is whether JBS Live or JBS
USA controlled Gonzalez’s conditions of employment. Moldenhauer, 536
F.3d at 644. The JBS USA or JBS Live policies that related to operations
elsewhere from the Plant are not relevant and production of such
documents is not proportional to the needs of this case.
Page 11 of 57

In this case, the issue of joint employment is person-specific. Cuff,
768 F.3d at 608. For purposes of discovery, Gonzalez should be entitled to
any responsive documents that applied to anyone working at the Plant.
Such documents if they exist might lead to relevant evidence of the extent
to which JBS USA or JBS Live controlled the employment of individuals at
the Plant, including Gonzalez. The Court orders JBS USA and JBS Live to
provide any responsive documents that applied to any person employed at
the Plant from January 1, 2015 to December 31, 2016.
JBS USA and JBS Live responded that they did not have responsive
documents that applied to Gonzalez. This response is not sufficient.
These Defendants said succinctly that they had no responsive documents
in response to Requests 6, 12, 13, 21, 21, and 26. JBS USA and JBS Live
hedged their answers to this and other Requests. Thus, the Court requires
them to provide straightforward responses. If JBS USA or JBS Live have
no such documents that relate to the Plant, each may so state in each
supplemental response.
Request 5
Request 5 asked JBS USA for:
Any and all documents, including personnel policies, personnel
handbooks, memorandum which refer to Defendant JBS USA,
LLC's company policies, including but not limited to, medical
Page 12 of 57

leave policies used at the 8295 Arenzville Road, Beardstown, IL
62618 facility.
JBS USA Request Response, 24-2 at 25 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does not have a facility located at
8295 Arenzville Road, Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 25 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 49 of 71.
The objections are sustained in part. For the reasons stated above,
relevant documents are those that relate to employment at the Plant. JBS
USA and JBS Live state that they do not have relevant responsive
documents because they do not have facilities at the Plant’s address. The
issue is not whether either has facilities at that location, but whether either
controlled the employment of individuals at that location. JBS USA and
JBS Live must produce responsive documents to Request 5 that applied to
any individual employed at the Plant from January 1, 2015 to December 31,

Page 13 of 57

2016. If no such responsive documents exist, each should so state in each
supplemental response.
Request 7
Request 7 asked for:
Any and all documents, including policies, memorandums
regarding JBS USA, LLC’s attendance policy.
JBS USA Request Response, 24-2 at 26 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA.
JBS USA Request Response, 24-2 at 26 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 50 of 71.
The objections are sustained in part. For the reasons stated above,
documents related to operations other than at the Plant are not relevant
and production of those documents is not proportional to the needs of the
case. JBS USA and JBS Live must only produce responsive documents to
Request 7 if the documents applied to any individual employed at the Plant
Page 14 of 57

from January 31, 2015 to December 31, 2016. If no such responsive
documents exist, each should so state in each supplemental response.
Request 8
Request 8 asked for:
Any and all documents, including policies, memorandums
regarding the attendance policy used at the 8295 Arenzville
Road, Beardstown, IL 62618 facility.
JBS USA Request Response, 24-2 at 26 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does not have a facility located at
8295 Arenzville Road, Beardstown, IL 62618.
JBS Response Request, 24-2 at 26-27 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 50-51 of 71.
The objections are sustained in part. For the reasons stated above,
documents related to operations other than at the Plant are not relevant
and production of those documents is not proportional to the needs of the
case. JBS USA and JBS Live must produce responsive documents to
Page 15 of 57

Request 8 that applied to any individual employed at the Plant from
January 1, 2015 to December 31, 2016. If no such responsive documents
exist, each should so state in each supplemental response.
Request 9
Request 9 asked for:
Any and all documents, including policies, memorandums
regarding JBS USA, LLC's FMLA policy and/or procedure and
any criteria used to assess requests.
JBS USA Request Response, 24-2 at 27 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA.
JBS USA Request Response, 24-2 at 27 of 71 (emphasis in the original);
accord JBS Live Request Response, 24-2 at 51 of 71.
The objections are sustained in part. For the reasons stated above,
documents related to operations other than at the Plant are not relevant
and production of those documents is not proportional to the needs of the
case. JBS USA and JBS Live must produce responsive documents to
Page 16 of 57

Request 9 that applied to any individual employed at the Plant from
January 1, 2015 to December 31, 2016. If no such responsive documents
exist, each should so state in each supplemental response.
Request 10
Request 10 asked for:
Any and all documents, including policies, memorandums
regarding the FMLA policy and/or procedure and any criteria
used to assess requests at the 8295 Arenzville Road,
Beardstown, IL 62618 facility.
JBS USA Request Response, 24-2 at 27 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does not have a facility located at
8295 Arenzville Road, Beardstown, IL 62618.
JBS Request Response, 24-2 at 27 of 71 (emphasis in the original); accord
JBS Request Response, 24-2 at 51 of 71.
The objections are sustained in part. JBS USA and JBS Live state
that they do not have relevant responsive documents because they do not
have facilities at the Plant’s address. The issue is not whether either has
Page 17 of 57

facilities at that location, but whether either controls the employment of
individuals at that location. JBS USA and JBS Live, therefore, must
produce responsive documents to Request 10 that applied to any individual
employed at the Plant from January 1, 2015 to December 31, 2016. If no
such responsive documents exist, each should so state in each
supplemental response.
Request 11
Request 11 asked for:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding leave policy and/or its' (sic) administration,
including but not limited to FMLA.
JBS USA Request Response, 24-2 at 27 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or relevant subject matter. JBS USA further objects to this
request to the extent it seeks information which is protected by
the attorney-client privilege and/or the work-product doctrine.
JBS USA Request Response, 24-2 at 28 of 71 (emphasis in the original) ;
accord JBS Request Response, 24-2 at 52 of 71.

Page 18 of 57

The objections are sustained in part and overruled in part. The issue
is whether the Defendants each controlled Gonzalez’s employment at the
Plant. Communications between the Defendants regarding leave policy,
including FMLA policy, at the Plant may lead to relevant evidence of control
over employment policies that affected Gonzalez. The Court orders
Defendants JBS USA and JBS Live to produce correspondence, including
e-mail and faxes, between JBS Live Pork, LLC, JBS USA, LLC and Swift
Pork Company regarding leave policy and/or its administration at the Plant,
including but not limited to FMLA, from January 1, 2015 to December 31,
2016.
Defendants’ JBS USA and JBS Live’s objections based on a claim
that documents are protected by the attorney-client or work-product
privileges is overruled. A claim of privilege is not a basis to object.
Defendants JBS USA and JBS Live may withhold documents protected by
privilege but must provide a privilege log that meets the requirements of
Federal Rule of Civil Procedure 26(b)(5)(a).
Request 14
Request 14 to JBS USA asked for:
Any and all documents, including spreadsheets and reports
used by Defendant JBS USA, LLC to track leave, including but
not limited to FMLA.
Page 19 of 57

JBS USA Request Response, 24-2 at 29 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA.
JBS USA Request Response, 24-2 at 29 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 53 of 71.
The objections are sustained in part. For the reasons discussed
above, Defendants JBS USA and JBS Live are directed to produce any and
all documents, including spreadsheets and reports used by Defendant JBS
USA, LLC to track leave at the Plant between January 1, 2015 and
December 31, 2016, including but not limited to FMLA. If either JBS USA
and JBS Live have no responsive documents, the respective Defendants
should so state in its supplemental response.
Request 15
Request 15 to JBS USA asked for:
Any and all documents including but not limited to logs or
records that indicate entry access by Plaintiff Gabriel Gonzalez,
either manually, via keycard, finger or hand scan or any other
Page 20 of 57

method, to the facility at 8295 Arenzville Road, Beardstown, IL
62618.
JBS USA Request Response, 24-2 at 29 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does not have a facility located at
8295 Arenzville Road, Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 29 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 53 of 71.
The objections are overruled except to the extent that the responsive
documents are limited to documents that indicate access to the Plant by
Plaintiff Gonzalez between January 1, 2015 and December 31, 2016. Such
documents may lead to relevant evidence of whether JBS USA or JBS Live
had some control over the access to the Plant. The request is narrowly
tailored. The Court only added the two-year time limit. If JBS USA and
JBS Live have no responsive documents, they can say so.
Request 17
Request 17 to JBS USA asked for:
Page 21 of 57

Any and all termination documents for any employee
terminated based on the attendance policy, including but not
limited to attendance points at the facility at 8295 Arenzville
Road, Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 30 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does employ individuals at a facility
located at 8295 Arenzville Road, Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 30 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 54 of 71.
The objections are sustained in part. The request is overly broad and
not proportional to the needs of the case because the request is not limited
to terminations at the Plant between January 31, 2015 and December 31,
2016. Such documents might lead to relevant evidence that these
Defendants had some control over the employees at the Plant. The Court
directs JBS USA and JBS Live to produce any and all termination
documents for any employee terminated at the Plant between January 31,
2015 and December 31, 2016 based on the attendance policy, including
Page 22 of 57

but not limited to attendance points. If either JBS USA and JBS Live has
no such documents, it may say so in its supplemental response.
Request 18
Request 18 to JBS USA asked for:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding discipline, including but not limited to
termination.
JBS USA Request Response, 24-2 at 30 of 71. JBS Live responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or relevant subject matter. JBS USA further objects to this
request to the extent it seeks information which is protected by
the attorney-client privilege and/or the work-product doctrine.
JBS USA Request Response, 24-2 at 30 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 54 of 71.
The objections are sustained because the request is not limited to
documents related to employee discipline at the Plant. The request asks
for information from every facility throughout the United States. See
Amended Complaint, ¶ 11 (JBS USA is one of the largest meat processing
companies in the world with locations throughout the United States.).
Page 23 of 57

Request 18 is also redundant of Request 19. Both ask for “Any and all
correspondence, including e-mail and faxes, between JBS Live Pork, LLC,
JBS USA, LLC and Swift Pork Company regarding discipline.”
Request 19
Request 19 asked JBS USA for:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding discipline, including but not limited to
termination based on the attendance policy, including but not
limited to attendance points at 8295 Arenzville Road,
Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 30 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or relevant subject matter. JBS USA further objects to this
request to the extent it seeks information which is protected by
the attorney-client privilege and/or the work-product doctrine.
JBS USA Request Response, 24-2 at 31 of 71 (emphasis in the original)
accord JBS Request Response, 24-2 at 55 of 71.
The objections are sustained to the extent that the request is not
limited to discipline at the Plant. The Court directs Defendants JBS USA
and JBS Live to produce any and all correspondence, including e-mail and
Page 24 of 57

faxes, between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding discipline at the Plant between January 1, 2015 and
December 31, 2016, including but not limited to termination based on the
attendance policy, including but not limited to attendance points. Such
documents may provide information relevant to the issue of which entity
controlled employment at the Plant.
Again, the Defendants’ objections based on claims of privilege are
overruled. Defendants may withhold responsive privileged documents but
must produce a proper privilege log. Fed. R. Civ. P. 26(b)(5)(a).
Request 20
Request 20 to JBS USA asked for:
Any and all telephone records for the "absentee line" provided
by Defendant JBS USA, LLC to its' employees for the facility at
8295 Arenzville Road, Beardstown, IL 62618
JBS USA Request Response, 24-2 at 31 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
Page 25 of 57

by JBS USA and JBS USA does not employ individuals at any
facility located at 8295 Arenzville Road, Beardstown, IL 62618.
JBS USA Request Response, 24-2 at 31 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 55 of 71.
The objections are sustained to the extent that the question
presumes JBS USA or JBS Live has employees at the Plant. The Court
however directs Defendants JBS USA and JBS Live to produce all
telephone records for the "absentee line" provided to individuals employed
at the Plant between January 31, 2015 and December 31, 2016. The
information may, again, be relevant to the question of which entity
controlled the conditions of employment of Gonzalez. If either JBS USA or
JBS Live has no responsive documents, it may say so in its supplemental
response.
Request 22
Request 22 to JBS USA asked for:
Any and all FMLA denials by Defendant JBS USA, LLC for
employees employed at its 8295 Arenzville Road, Beardstown,
IL 62618 facility.
JBS USA Request Response, 24-2 at 32 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Page 26 of 57

Company and was not an employee of JBS USA. JBS USA
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiver of these objections, JBS USA
states that it has no documents responsive to this request
which would have applied to Plaintiff as he was not employed
by JBS USA and JBS USA does not employ any individuals at
any facility located at 8295 Arenzville Road, Beardstown, IL
62618.
JBS USA Request Response, 24-2 at 32 of 71 (emphasis in the original);
accord JBS Request Response, 24-2 at 56 of 71.
The objections are sustained to the extent that the question
presumes JBS USA or JBS Live has employees at the Plant. The Court
however directs Defendants JBS USA and JBS Live to produce any and all
FMLA leave denials for employees at the Plant between January 1, 2015
and December 31, 2016. If either JBS USA or JBS Live has no responsive
documents, it may say so in its supplemental response.
Request 24
Request 24 to JBS USA asked for:
Any and all documents that show the legal relationship between
JBS Live Pork, LLC, JBS USA, LLC and Swift Pork Company.
JBS USA Request Response, 24-2 at 32 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because at all
times relevant to this action Plaintiff was an employee of Swift
Page 27 of 57

Pork Company and was not an employee of JBS Live Pork,
LLC or JBS USA, LLC. JBS USA further objects to this request
as vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter.
JBS USA Request Response, 24-2 at 32-33 of 71 (emphasis in the original)
accord JBS Request Response, 24-2 at 57 of 71.
The Court sustains the objections that the request is not proportional
to the needs of the case. JBS USA and JBS Live will provide articles of
incorporation, bylaws, and copies of their corporate structure. In addition,
the Nicholas Declaration sets forth the legal relationship between the
Defendants. This information is sufficient. Ordering these Defendants to
produce additional documents at this time would be cumulative and not
proportional to the needs of the case.
Request 25
Request 25 to JBS USA asked for:
Any and all documents that show the business relationship
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company.
JBS USA Request Response, 24-2 at 33 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because at all
times relevant to this action Plaintiff was an employee of Swift
Pork Company and was not an employee of JBS Live Pork,
LLC or JBS USA, LLC. JBS USA further objects to this request
Page 28 of 57

as vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter.
JBS Request Response, 24-2 at 33 of 71 (emphasis in the original); accord
JBS Request Response, 24-2 at 57 of 71.
The Court sustains the objection that the request is vague and not
proportional to the needs of the case. The term “business relationship” is
undefined and vague. The request also is not limited to their relationship
with respect to employees at the Plant. The request is also cumulative for
the same reasons as Request 24.
Request 27
Request 27 to JBS USA asked for:
A copy of all business documents used by Defendant JBS USA,
LLC including but not limited to letterhead and PAF Form
(Personnel Action Form).
JBS USA Request Response, 24-2 at 33 of 71. JBS USA responded:
Response: JBS USA objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS Live. JBS Live
further objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or subject matter.
JBS USA Request Response, 24-2 at 33 of 71 (emphasis in the original)
accord JBS Request Response, 24-2 at 58 of 71.
Page 29 of 57

The Court sustains the objection that the request is overly broad and
not proportional to the needs of the case. A request for all business
documents is extremely broad and not at all limited to documents relevant
to this case. The Court, in its discretion, directs JBS USA and JBS Live to
produce a copy of its letterhead and any Personnel Action Form used
between January 1, 2015 and December 31, 2016. These documents may
be relevant or lead to relevant evidence about which entity controlled
employment decisions at the Plant. See Amended Complaint ¶ 16
(Gonzalez alleges that documents that he received during his employment,
including his termination letter, identified JBS as his employer).
Interrogatories to JBS USA and JBS LIVE
Gonzalez asks the Court to compel additional responses to
Interrogatories 3, 5, 13, and 15. The Court addresses each below.
Interrogatory 3
Interrogatory 3 to JBS USA asked:
Describe the process by which Defendant JBS USA, LLC
notifies its employees that they are being disciplined for
violation of the attendance policy.
Motion, Group Exhibit 2, Defendant JBS USA, LLC’s Answers to Plaintiff’s
First Set of Interrogatories (JBS USA Interrogatory Response), 24-2 at 37
of 71. JBS USA responded:
Page 30 of 57

Answer: JBS USA objects to this interrogatory, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that
it is not relevant to the subject matter of this action nor is it
proportional to the needs of the case as at all times relevant to
this action, Plaintiff was an employee of Swift Pork Company
and was not an employee of JBS USA. JBS USA further
objects to this interrogatory as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiving these objections, JBS USA
states that any JBS USA policies are wholly irrelevant to this
action as they would not have applied to Plaintiff because he
was at all relevant times an employee of Swift Pork Company
and not an employee of JBS USA.
JBS Interrogatory Response, 24-2 at 37 of 71 (emphasis in the original);
accord Motion, Group Exhibit 2, Defendant JBS Live Pork, LLC’s Answers
to Plaintiff’s First Set of Interrogatories (JBS Live Interrogatory Response),
24-2 at 62 of 71.
The objections are allowed in part. The issue is, again, whether JBS
USA or JBS Live controlled Gonzalez’s conditions of employment. Control
of employees at other facilities is irrelevant. As explained above, control of
persons employed at the Plant may lead to relevant evidence. The Court,
therefore, directs JBS USA and JBS Live to describe the process by which
Defendant JBS USA or JBS Live, respectively, has notified any person
employed at the Plant that such person is being disciplined for violation of
the attendance policy between January 1, 2015 and December 31, 2016. If

Page 31 of 57

either JBS USA or JBS Live has not done so, it should say so in its
supplemental answer.
Interrogatory 5
Interrogatory 5 to JBS USA asked:
Please state, in detail, Defendant JBS USA, LLC's policy and/or
procedure governing medical leave requests, including the
processing and determinations of those requests that are
submitted by its employees. If the policy and/or procedure
changed, please describe in detail when and what the
change(s) occurred.
JBS USA Interrogatory Response, 24-2 at 38 of 71. JBS USA responded:
Answer: JBS USA objects to this interrogatory, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that
it is not relevant to the subject matter of this action nor is it
proportional to the needs of the case as at all times relevant to
this action, Plaintiff was an employee of Swift Pork Company
and was not an employee of JBS USA. JBS USA further
objects to this interrogatory as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period.
Subject to and without waiving these objections, JBS USA
states that any JBS USA policies are wholly irrelevant to this
action as they would not have applied to Plaintiff because he
was at all relevant times an employee of Swift Pork Company
and not an employee of JBS USA.
JBS USA Interrogatory Response, 24-2 at 38 of 71 (emphasis in the
original) accord JBS Live Interrogatory Response, 24-2 at 63 of 71.
The objection is again sustained in part to the extent the request
seeks information about persons not employed at the Plant. The Court
directs JBS USA and JBS Live to state, in detail, JBS USA or JBS Live’s
Page 32 of 57

policy and/or procedure governing medical leave requests that were
submitted by persons employed at the Plant between January 1, 2015 and
December 31, 2016, including the processing and determinations of those
requests. If the policy and/or procedure changed, please describe in detail
when and what change(s) occurred. If either JBS USA or JBS Live did not
any have policies or procedures that applied to any person employed at the
Plant during the relevant dates, it may say so in the supplemental
response.
Interrogatory 13
Interrogatory 13 to JBS USA asked:
Identify any employees of Defendant JBS USA, LLC at its' (sic)
8295 Arenzville Road, Beardstown, IL 62618 location who
requested medical leave(s) of absence, whether or not
specified as FMLA leave, from January 2012 to the present
date, and state for each employee whether his or her request
was granted or denied, identify the people involved in making
the decision, why the leave was granted or denied, and state
whether Defendant required the employee to provide it with
medical certification and whether the certification was given.
JBS USA Interrogatory Response, 24-2 at 41-42 of 71. JBS USA
responded:
Answer: JBS USA objects to this interrogatory, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is not relevant to the subject matter of this action nor is it
proportional to the needs of the case as at all times relevant to
this action, Plaintiff was an employee of Swift Pork Company
and was not an employee of JBS USA. JBS USA further
Page 33 of 57

objects to this request as overbroad and unduly burdensome
because the time period specified is overbroad. Subject to and
without waiver of these objections, JBS USA states that it does
not have a facility located at 8295 Arenzville Road, Beardstown,
IL 62618.
JBS USA Interrogatory Response, 24-2 at 42 of 71 (emphasis in the
original); accord JBS Live Interrogatory Response, 24-2 at 66 of 71.
The objections are sustained in part. Gonzalez is entitled to know
whether JBS USA or JBS Live granted or denied any leave request for any
person employed at the Plant from January 1, 2012 to December 31, 2016.
The Court directs JBS USA and JBS Live to each state whether it granted
or denied any request for medical leave by any person employed at the
Plant from January 1, 2012, to December 31, 2016. If so, state for each
employee whether his or her request was granted or denied, identify the
people involved in making the decision, why the leave was granted or
denied, and state whether Defendant required the employee to provide it
with medical certification and whether the certification was given. If either
JBS USA or JBS Live did not grant or deny any such request for leave for a
person employed at the Plant during the relevant time, it should say so in
its supplemental response.
Interrogatory 15
Interrogatory 15 to JBS USA asked:
Page 34 of 57

List any and all employees who have been terminated since
January 2012 for going over the maximum number of
attendance points within a specific period, per the attendance
policy and include the date of termination, the number of
attendance points over the maxim um attendance points and
the supervisors, management or any person in a position of
authority who participated in the action.
JBS US Interrogatory Response, 24-2 at 43 of 71. JBS USA responded:
Answer: JBS USA objects to this interrogatory, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is not relevant to the subject matter of this action nor is it
proportional to the needs of the case as at all times relevant to
this action, Plaintiff was an employee of Swift Pork Company
and was not an employee of JBS USA. JBS USA further
objects to this request as overbroad and unduly burdensome
because the time period specified is overbroad.
JBS Interrogatory Response, 24 -2 at 43 of 71 (emphasis in the original);
accord JBS Live Interrogatory Response, 24-2 at 57 of 71.
The objections are allowed in part. Gonzalez is allowed to know
whether JBS USA or JBS Live terminated any person employed at the
Plant between January 1, 2012 and December 31, 2016. The Court directs
JBS USA and JBS Live to each list any and all persons employed at the
Plant that it terminated between January 1, 2012 and December 31, 2016
because such person went over the maximum number of attendance points
within a specific period, per the attendance policy and include the date of
termination, the number of attendance points over the maximum
attendance points and the supervisors, management, or any person in a
Page 35 of 57

position of authority who participated in the action. If either JBS USA or
JBS Live did not terminate any person employed at the Plant during the
relevant period, it may say so in its supplemental response.
SWIFT
Requests to Produce to Swift
Gonzalez asks the Court to compel additional responses to Requests
1, 2, 3, 11, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 27. The Court addresses
each below.
Requests 1, 2, 3
Requests 1, 2, and 3 are the same as the first three requests to JBS
USA and JBS Live: articles of incorporation, bylaws, and organizational
structure. Swift is directed to provide the requested documents for the
period from January 1, 2015 to December 31, 2016 for the reasons
discussed above with respect to the requests directed at JBS USA and JBS
Live.
Request 11
Request 11 to Swift asked:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding leave policy and/or its' administration,
including but not limited to FMLA.

Page 36 of 57

Motion, Group Exhibit 2, Defendant Swift Pork Company’s Responses to
Plaintiff’s First Set of Requests to Produce (Swift Request Response), 24-2
at 5 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS Live Pork, LLC or
JBS USA, LLC. Swift Pork further objects to this request as
vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter. Swift
Pork further objects to this request to the extent it seeks
information which is protected by the attorney-client privilege
and/or the work-product doctrine.
Swift Request Response, at 24-2 5 of 71 (emphasis in the original).
The objections are sustained in part and overruled in part. The issue
is whether the Defendants each controlled the conditions of Gonzalez’s
employment at the Plant. Communications between the Defendants
regarding leave policy, including FMLA policy, at the Plant may lead to
relevant evidence of control over employment policies that affected
Gonzalez. The Court orders Defendant Swift to produce correspondence,
including e-mail and faxes, between JBS Live, JBS USA and Swift
regarding leave policy and/or its' administration at the Plant from January 1,
2015 to December 31, 2016, including but not limited to FMLA leave.

Page 37 of 57

Defendant Swift’s objections based on a claim that documents are
protected by the attorney-client or work-product privileges is overruled. A
claim of privilege is not a basis to object. Defendant Swift may withhold
documents protected by privilege but must provide a privilege log that
meets the requirements of Federal Rule of Civil Procedure 26(b)(5)(A).
Request 18
Request 18 to Swift asked for:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding discipline, including but not limited to
termination.
Swift Request Response, at 7 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS Live Pork, LLC or
JBS USA, LLC. Swift Pork further objects to this request as
vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter. Swift
Pork further objects to this request to the extent it seeks
information which is protected by the attorney-client privilege
and/or the work-product doctrine.
Swift Request Response, 24-2 at 7 of 71 (emphasis in the original).
The objections are sustained because the request is not limited to
documents related to employee discipline at the Plant. The request asks
Page 38 of 57

for information from every facility. Request 18 is also redundant of Request
19. Both ask for “Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork Company
regarding discipline.”
Request 19
Request 19 to Swift asked for:
Any and all correspondence, including e-mail and faxes,
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company regarding discipline, including but not limited to
termination based on the attendance policy, including but not
limited to attendance points at 8295 Arenzville Road,
Beardstown, IL 62618.
Swift Request Response, 24-2 at 7 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case as at all times
relevant to this action, Plaintiff was an employee of Swift Pork
Company and was not an employee of JBS Live Pork, LLC or
JBS USA, LLC. Swift Pork further objects to this request as
vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter. Swift
Pork further objects to this request to the extent it seeks
information which is protected by the attorney-client privilege
and/or the work-product doctrine.
Swift Request Response, 24-2 at 8 of 71 (emphasis in the original).
The objections are sustained to the extent that the request is not
limited to discipline at the Plant. The Court directs Defendant Swift to
Page 39 of 57

produce Any and all correspondence, including e-mail and faxes, between
JBS Live, LLC, JBS USA, and Swift regarding discipline at the Plant
between January 1, 2015 and December 31, 2016, including but not limited
to termination based on the attendance policy, including but not limited to
attendance points. Such documents may provide information relevant to
the issue of which entity controlled employment at the Plant.
Again, the Defendant’s objections based on claims of privilege are
overruled. Defendants may withhold responsive privileged documents but
must produce a proper privilege log. Fed. R. Civ. P. 26(b)(5)(a).
Request 20
Request 20 to Swift asked for:
Any and all telephone records for the "absentee line" provided
by Defendant Swift Pork Company to its' (sic) employees for the
facility at 8295 Arenzville Road, Beardstown, IL 62618.
Swift Request Response, 24-2 at 8 of 71. Swift responded:
Response: Swift Pork objects to this request as vague,
overbroad, and unduly burdensome because it is not limited to
a relevant time period or relevant subject matter or specific
employee or phone number.
Swift Request Response, 24-2 at 8 of 71 (emphasis in the original).
The objections are sustained in part and overruled in part. The Court
directs Swift to produce the requested information for the time period from
January 1, 2015 to December 31, 2016. The records may be relevant to
Page 40 of 57

whether Gonzalez was treated differently from other employees who used
the “absentee line.” This evidence may be relevant to the claim of
retaliation if Swift singled Gonzalez out for different treatment for asserting
his rights under the FMLA.
The evidence may also be relevant to whether Swift acted in good
faith. Gonzalez seeks liquidated damages against Defendants. Liquidated
damages are presumed unless the employer can demonstrate that it acted
in good faith and had reasonable grounds to believe that it did not violate
Gonzalez’s rights under the FMLA. If the Defendants cannot overcome this
presumption, the Court may, in its discretion, impose liquidated damages or
reduce the amount of liquidated damages. 29 U.S.C. § 2617(a)(1)(A)(iii).
Evidence of Swift’s treatment of other employees who used the absentee
line may lead to relevant evidence of whether Swift treated Gonzalez
differently because he asserted his rights under the FMLA. Such evidence
may relate to whether Swift acted in good faith in its treatment of Gonzalez
and whether it had a reasonable basis to believe it did not violate
Gonzalez’s rights.
Request 21
Request 21 to Swift asked for:

Page 41 of 57

Any and all communications, including but not limited to emails,
memos faxes, and text messages referencing Plaintiff Gabriel
Gonzalez.
Swift Request Response, 24-2 at 8 of 71. Swift responded:
Response: Swift Pork objects to this request to the extent it
seeks information which is protected by the attorney-client
privilege and/or the work-product doctrine. Swift Pork further
objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or relevant subject matter.
Swift Request Response, 24-2 at 8 of 71.
The objections are overruled in part. The Court directs Swift to
provide the responsive documents originally sent during the period from
January 1, 2015 to December 31, 2016. Swift again may withhold
responsive privileged documents but must provide a privilege log. Fed. R.
Civ. P. 26(b)(5)(A).
Request 22
Request 22 to Swift asked for:
Any and all FMLA denials by Defendant Swift Pork Company
for employees employed at its 8295 Arenzville Road,
Beardstown, IL 62618 facility.
Swift Request Response, 24-2 at 8 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is not relevant to the subject matter of this action nor is it
proportional to the needs of the case because Plaintiff does not
allege that he was treated differently than any other employee
Page 42 of 57

employed by Swift Pork at its 8295 Arenzville Road,
Beardstown, IL 62618 location. Information related to other
employee medical leaves is wholly irrelevant to this action
based upon the allegations contained in Plaintiff s complaint.
Swift Pork further objects to this request as vague, overbroad,
and unduly burdensome because it is not limited to a relevant
time period.
Swift Request Response, 24-2 at 9 of 71. The objections are overruled in
part. Swift is directed to produce responsive documents for FMLA denials
between January 1, 2015 and December 31, 2016. The Court believes
Swift’s treatment of other FMLA requests may be relevant to the question
of whether Swift treated Gonzalez differently in retaliation for exercising his
rights under the FMLA.
Request 23
Request 23 to Swift asked for:
A copy of all contracts Defendant Swift Pork Company has
entered into, including but not limited to loans, equipment,
goods, personnel or otherwise for, on behalf of the 8295
Arenzville Road, Beardstown, IL 62618 facility.
Swift Request Response, 24-2 at 24-2 9 of 71. Swift responded:
Response: JBS Live (sic) objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because Plaintiff s
complaint contains no allegations relating to contracts entered
into by Swift Pork and contracts unrelated to Plaintiff s
employment are wholly unrelated to this action. Swift Pork
further objects to this request as vague, overbroad, and unduly
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burdensome because it is not limited to a relevant time period
or relevant subject matter.
Swift Request Response, 24-2 at 24-2 9 of 71.
The objection is sustained. A request for all contracts is overly broad
and not proportional to the needs of the case.
Request 24
Request 24 to Swift asked for:
Any and all documents that show the legal relationship between
JBS Live Pork, LLC, JBS USA, LLC and Swift Pork Company.
Swift Request Response, 24-2 at 9 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because at all
times relevant to this action Plaintiff was an employee of Swift
Pork Company and was not an employee of JBS Live Pork,
LLC or JBS USA, LLC. Swift Pork further objects to this
request as vague, overbroad, and unduly burdensome because
it is not limited to a relevant time period or relevant subject
matter.
Swift Request Response, 24-2 at 9 of 71 (emphasis in the original).
The Court sustains the objections that the request is not proportional
to the needs of the case. Swift will provide articles of incorporation, bylaws,
and copies of their corporate structure in response to Requests 1-3. In
addition, the Nicholas Declaration sets forth the legal relationship between
the Defendants. This information is sufficient. Ordering Swift to produce
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additional documents at this time would be cumulative and not proportional
to the needs of the case.
Request 25
Request 25 to Swift asked for:
Any and all documents that show the business relationship
between JBS Live Pork, LLC, JBS USA, LLC and Swift Pork
Company.

Swift Response Request, 24-2 at 9 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case because at all
times relevant to this action Plaintiff was an employee of Swift
Pork Company and was not an employee of JBS Live Pork,
LLC or JBS USA, LLC. Swift Pork further objects to this request
as vague, overbroad, and unduly burdensome because it is not
limited to a relevant time period or relevant subject matter.
Swift Request Response, 24-2 at 9-10 of 71.
The Court sustains the objection that the request is vague and not
proportional to the needs of the case. The term “business relationship” is
undefined and vague. The request also is not limited to their relationship
with respect to employees at the Plant. The request is also cumulative for
that same reasons as Request 24.
Request 27
Request 27 to Swift asked for:
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A copy of all business documents used by Defendant Swift
Pork Company including but not limited to letterhead and PAP
Form (Personnel Action Form).
Swift Request Response, at 24-2 10 of 71. Swift responded:
Response: Swift Pork objects to this request, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is overbroad and not relevant to the subject matter of this action
nor is it proportional to the needs of the case. Swift Pork further
objects to this request as vague, overbroad, and unduly
burdensome because it is not limited to a relevant time period
or subject matter.
Swift Request Response, 24-2 at 10 of 71.
The Court sustains the objection that the request is overly broad and
not proportional to the needs of the case. A request for all business
documents is extremely broad and not at all limited to documents relevant
to this case. The Court, in its discretion, directs Swift to produce a copy of
its letterhead and any Personnel Action Form used between January 1,
2015 and December 31, 2016. These documents may be relevant or lead
to relevant evidence about which entity controlled employment decisions at
the Plant. See Amended Complaint ¶ 16 ( Gonzalez alleges that during his
employment he received documents, including his termination letter, that
indicated that JBS USA employed him.).

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Interrogatories to Swift
Gonzalez asks the Court to compel more complete responses to
Interrogatories 3-15.The Court addresses each below.
Interrogatory 3
Describe the process by which Defendant Swift Pork Company
notifies its employees that they are being disciplined for
violation of the attendance policy.
Motion, Group Exhibit 2, Defendant Swift Pork Company’s Answers to
Plaintiff’s First Set of Interrogatories (Swift Interrogatory Response), 24-2 at
14 of 71. Swift responded:
Answer: Swift Pork objects to this interrogatory as vague,
overbroad, and unduly burdensome because it is not limited
to a relevant time period. Subject to and without waiving these
objections, see documents produced herein SWIFT00001 SWIFT00029; SWIFT00047 - SWIFT00053.
Swift Interrogatory Response, 24-2 at 14 of 71. Swift’s document
references in its responses to these Interrogatories referred Gonzalez to
Swift’s written policies and Gonzalez’s personnel and medical files. See
Opposition, at 6. The Court finds the response was sufficient. Swift may
refer to documents produced if the burden of deriving the answer from the
documents is the same for either party. Fed. R. Civ. P. 33(d). Gonzalez
asks for internal procedures. Gonzalez can read the written policies as
easily as Swift. The reference to such documents is an appropriate
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response under Rule 33(d) to this Interrogatory. The Court will not compel
a further response.
Interrogatory 4
Interrogatory 4 to Swift asked:
Prior to his termination, had Plaintiff Gabriel Gonzalez been
disciplined by Defendant Swift Pork Company. If yes, please
state:
a. The date of each disciplinary action;
b. Whether

the disciplinary action was written or oral; and

c. What,

if any, corrective action was ordered and taken for
each disciplinary action.

Swift Interrogatory Response, 24-2 at 14 of 71. Swift responded:
Answer: See documents produced herein SWIFT00031 –
SWIFT00174.
Swift Interrogatory Response, 24-2 at 14 of 71. The Court finds the
response was sufficient. Either party can review personnel files to find
records of discipline. The response was appropriate under Rule 33(d).
Gonzalez argues that the personnel file might not be complete or might not
be accurate. Such speculation is not sufficient to require Swift to go
beyond reviewing Gonzalez’s personnel file to answer this inquiry.
Gonzalez can find the information just as easily as Swift. The Court will not
compel a further response. If Gonzalez uncovers a factual basis to

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question the accuracy of the personnel file, he may renew his request for a
more thorough response.
Interrogatory 5
Interrogatory 5 to Swift asked:
Please state, in detail, Defendant Swift Pork Company's policy
and/or procedure governing medical leave requests, including
the processing and determinations of those requests that are
submitted by its employees. If the policy and/or procedure
changed, please describe in detail when and what the
change(s) occurred.
Swift Interrogatory Response, 24-2 at 14 of 71. Swift responded:
Answer: Swift Pork objects to this interrogatory as vague,
overbroad, and unduly burdensome because it is not limited to
a relevant time period. Subject to and without waiving these
objections, see documents produced herein SWIFT0000l SWIFT00029; SWIFT00175 - SWIFT00180.
Swift Interrogatory Response, 24-2 at 14 of 71. The Court finds the
response was sufficient. Either party can read Swift’s policies. The
reference to such documents is an appropriate response under Rule 33(d)
in this case. The Court will not compel a further response.
Interrogatory 6
Interrogatory 6 to Swift asked:
If Defendant Swift Pork Company contends Plaintiff Gabriel
Gonzalez was not entitled to leave under the FMLA for any or
all requested time including leave(s) of absence state with
particularity all facts supporting the contention for each request
so deemed.
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Swift Interrogatory Response, 24-2 at 15 of 71. Swift responded:
Answer: After Plaintiff submitted his FMLA paperwork, it was
determined that his absences did not qualify under the FMLA
because they did not meet the criteria under the FMLA because
Plaintiff did not submit adequate documentation and did not
suffer from a serious medical condition under the FMLA. See
also documents produced herein SWIFT00175 -SWIFT00181;
SWIFT00191 - SWIFT00199.
Swift Interrogatory Response, 24-2 at 15 of 71. The Court finds the
response was sufficient. Swift stated the basis for its contention. Swift did
not just refer Gonzalez to documents. Swift should supplement this answer
by the close of discovery if it intends to rely on additional evidence not
otherwise produced during discovery.
Interrogatory 7, 8, 9, 10, 11, and 12
Interrogatory 7 to Swift asked:
For each FMLA request and/or medical leave request made by
Plaintiff Gabriel Gonzalez between March 1, 2016 and March
30, 2016, please that the following: the date, location, the
individuals and contents of each and every conversation, in
writing or orally, between all employees or agents of Defendant
Swift Pork Company regarding either the approval or denial of
each of Plaintiff’s requests and the basis for either granting or
denying the requests. Identify each document that was
reviewed, used and/or created during the decision making
process, provide a basis for the decision, or was used in an
after the fact analysis of the decision.
Swift Interrogatory Response, 24-2 at 15 of 71. Interrogatory 8 to Swift
asked:
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Identify anyone who is an employee or agent of Defendant
Swift Pork Company who communicated, in writing or orally,
with Plaintiff Gabriel Gonzalez regarding his absences and/or
need for FMLA or other leave between March 1, 2016 and
March 30, 2016, and state when the communication occurred,
the form of communication, identify who initiated the
communication and why, what was communicated, and identify
all of the people involved in the communication.
Swift Interrogatory Response, 24-2 at 15-16 of 71. Interrogatory 9 to Swift
asked:
Identify anyone who is an employee or agent of Defendant
Swift Pork Company who communicated, in writing or orally,
with any of Plaintiff Gabriel Gonzalez's health care
professionals between March 1, 2016 and March 30, 2016, and
state when the communication occurred, the form of
communication, identify who initiated the communication and
why, what was communicated, and identify all of the people
involved in the communication.
Swift Interrogatory Response, 24-2 at 16 of 71. Interrogatory 10 to Swift
asked:
If Defendant Swift Pork Company contends that Plaintiff Gabriel
Gonzalez failed to report to Defendant Swift Pork Company or
its' agents as instructed on the status of his condition and need
for a medical leave of absence, state with particularity all facts
supporting the contention for each instance so deemed.
Swift Interrogatory Response, 24-2 at 16 of 71.
Interrogatory 11 to Swift asked:
If Defendant Swift Pork Company contends Plaintiff Gabriel
Gonzalez did not timely give notice that leave was requested
under FMLA, state with particularity the facts supporting that
contention for each and every instance so deemed.
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Swift Interrogatory Response, at 24-2 16 of 71. Interrogatory 12 to Swift
asked:
If Defendant Swift Pork Company contends that Plaintiff Gabriel
Gonzalez did not provide certification or sufficient certification
or recertification of the serious health condition he had, state
with particularity all facts supporting the contention for each and
every absence so deemed.
Swift Interrogatory Response, at 24-2 17 of 71.
Swift responded to Interrogatory 7:
Answer: See documents produced herein SWIFT00175 SWIFT00181; SWIFT00191 - SWIFT00213.
Swift Interrogatory Response, 24-2 at 16 of 71. Swift responded to
Interrogatories 8, 9, 10, 11, and 12 with the same answer:
Answer: See Answer to Interrogatory No. 7.
Swift Interrogatory Response, 24-2 at 16-17 of 71. Swift did not
object to any of these interrogatories.
Swift’s answers are inadequate and fail to comply with Rule 33.
According to Swift, the documents identified in Answer to Interrogatory 7
contain answers to Gonzalez’s interrogatories asking for: (1) all internal
communications between Swift employees about Gonzalez’s FMLA leave
requests; (2) all documents relied on or created in connection with
decisions regarding Gonzalez’s leave requests; (3) all communications with
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Gonzalez regarding his absences in March 2016; (4) all communications
with all of Gonzalez’s health care providers in March 2016; (5) all facts on
which Swift relies to contend that Gonzalez failed to report his need for
medical leave to Swift agents as instructed; (6) all facts on which Swift
relies to contend that Gonzalez did not give timely notice of his FMLA leave
requests; and (7) all facts on which Swift relies to contend that Gonzalez
did not provide certification of his medical condition. Even if the answers
are true, Swift violated Rule 33(d)(1) by failing to identify the documents
responsive to each of these six separate interrogatories in sufficient detail
to enable Gonzalez to locate and identify the responsive documents to
each interrogatory as readily as Swift could. Gonzalez is not required to
guess which documents Swift intended to relate to which interrogatory.
Given Swift’s inability to comply with Rule 33(d) with respect to these six
interrogatories, the Court orders Swift to provide complete answers to each
of these interrogatories without reference to documents, except that Swift
shall identify the documents described in the last sentence of Interrogatory
7.
Interrogatory 13
Interrogatory 13 to Swift asked:
Identify any employees of Defendant Swift Pork Company at its'
8295 Arenzville Road, Beardstown, IL 62618 location who
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requested medical leave(s) of absence, whether or not
specified as FMLA leave, from January 2012 to the present
date, and state for each employee whether his or her request
was granted or denied, identify the people involved in making
the decision, why the leave was granted or denied, and state
whether Defendant required the employee to provide it with
medical certification and whether the certification was given.
Swift Interrogatory Response, 24-2 at 17 of 71. Swift responded:
Answer: Swift Pork objects to this interrogatory, pursuant to
Federal Rule of Civil Procedure 26(b)(1), on the grounds that it
is not relevant to the subject matter of this action nor is it
proportional to the needs of the case because Plaintiff does not
allege that he was treated differently than any other employee
employed by Swift Pork at its 8295 Arenzville Road,
Beardstown, IL 62618 location. Information related to other
employee medical leaves is wholly irrelevant to this action
based upon the allegations contained in Plaintiff’s complaint.
Swift Pork further objects to this interrogatory as overbroad and
unduly burdensome because the time period specified in this
interrogatory is overbroad.
Swift Interrogatory Response, 24-2 at 17 of 71.
The Court sustains the objection that the interrogatory is vague. The
term “medical leave(s) of absence, whether or not specified as FMLA
leave” is not defined. That term reasonably could include every time an
employee took a day off sick. If so, the interrogatory is overly broad and
not proportional to the needs of the case. Compiling a record of every time
one of the 2,000 employees at the Plant took a day off sick would impose a
significant burden on Swift and the result would not provide meaningful

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information for any issue in the case. Given the vagueness of the
interrogatory, the objection in sustained.
Interrogatory 14
Interrogatory 14 to Swift asked:
As to the decision to terminate Plaintiff Gabriel Gonzalez
employment:
a)

Identify each person who had input into that decision,
participated in that decision, finally made or executed that
decision, and state the role of each person (e.g.
recommended the decision, reviewed the decision, made
the decision, communicated the decision, etc.);

b)

Specify the dates of and identify the participants in any
and all discussions (verbal or written) in deciding to
terminate Plaintiff s employment;

c)

Specify each reason for terminating Plaintiff s
employment, and;

d)

Identify each document that was reviewed, used and/or
created during the decision making process, provide a
basis for the decision, or was used in an after the fact
analysis of the decision.

Swift Interrogatory Response, 24-2 at 18 of 71. Swift responded:
Answer: Plaintiff was terminated pursuant to Swift Pork's
attendance policy due to his accumulation of attendance points.
See documents produced herein SWIFT00047 - SWIFT00053;
SWIFT00079 - SWIFT00080; SWIFT00147 - SWIFT00149;
SWIFT00157; SWIFT00160 -SWIFT00161; SWIFT00170 SWIFT00174.

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Swift Interrogatory Response, 24-2 at 18 of 71. The Court directs Swift to
provide a list of the individuals who participated in the decision to terminate
Gonzalez and the role each person played. The remainder of the response
is sufficient.
Interrogatory 15
Interrogatory 15 to Swift asked:
List any and all employees who have been terminated since
January 2012 for going over the maximum number of
attendance points within a specific period, per the attendance
policy and include the date of termination, the number of
attendance points over the maximum attendance points and the
supervisors, management or any person in a position of
authority who participated in the action.
Swift Interrogatory Response, 24-2 at 18 of 71. Swift states that it will
provide a responsive list of terminated employees upon the entry of
an appropriate protective order. Opposition, at 6. The Court notes
that much of the information sought about employees other than
Gonzalez should also be protected by such a protective order. The
Court directs the parties to prepare an agreed protective order for the
Court’s consideration.
The Court has allowed Gonzalez’s motion in part. In such
cases, the Court may apportion the cost of bringing and responding
to the Motion. Fed. R. Civ. P. 37(a)(5)(C). The Court in its discretion
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determines that each party should bear its or his own expenses
incurred in connection with this Motion.
THEREFORE, IT IS ORDERED that Plaintiff Gabriel
Gonzalez’s Motion to Compel Defendants’ Discovery Responses
(d/e 24) is ALLOWED in part and DENIED in part. Defendants shall
provide all supplemental responses called for in this Opinion by April
5, 2019. The parties shall also provide the Court with an agreed
proposed protective order for the Court’s consideration by March 15,
2019.
ENTER: February 26, 2019

s/

Tom Schanzle-Haskins

TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE

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