Biggio et al v. H2O Hair Inc. et al
Filing
111
ORDER AND REASONS GRANTING IN PART AND DENYING IN PART 92 Motion to Compel as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/7/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARRIE BIGGIO ET AL.
CIVIL ACTION
VERSUS
NO. 15-6034
H20 HAIR INC. ET AL
SECTION “B” (2)
ORDER AND REASONS ON MOTION
This is an action for allegedly unpaid overtime wages and other damages for
violation of and retaliation under the Fair Labor Standards Act (“FLSA”). The action was
originally asserted by two named plaintiffs. The record establishes that 11 other persons
subsequently opted into the case, Record Doc Nos. 22, 28, 51, 74, 86, and that conditional
certification of the collective action has been granted. Record Doc. No. 44.
Plaintiffs’ Motion to Compel Answers to Deposition Questions and Responses to
Written Requests, Record Doc. No. 92, is pending before me. Defendants filed a timely
written opposition memorandum. Record Doc. No. 95. The court granted leave for
plaintiffs to file a reply and defendants to file a supplemental opposition memorandum.
Record Doc. Nos. 102, 104, 107-110. Having considered the record, the applicable law and
the written submissions of counsel, IT IS ORDERED that the motion is GRANTED IN
PART AND DENIED IN PART as follows.
As an initial matter, I cannot accept defendants’ argument that the motion should be
denied because “Plaintiffs waited until after the discovery completion deadline to file this
motion to compel. Discovery in this case is over.” Record Doc. No. 95 at p. 7. First, as
to the deposition questions defense counsel instructed witnesses not to answer, the court
invited the filing of this or a similar motion, in the manner contemplated by Fed. R. Civ.
P. 30(c)(2) and 30(d)(3), when I could not resolve the dispute without further information
during an unanticipated telephone call to the court by counsel during the deposition.
Second, in addressing further responses to written requests for production, the motion
appears to seek only supplementation of defendants’ previous responses to timely requests,
not new discovery. Fed. R. Civ. P. 26(e)(1) imposes upon all parties an ongoing obligation
to supplement prior discovery responses “in a timely manner if the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and if the additional
or corrective information has not otherwise been made known to the other party during the
discovery process. . .” (emphasis added). This obligation to supplement is not subject to
a deadline.
Plaintiffs request an order compelling defense witnesses to answer deposition
questions that defense counsel instructed them not to answer. The questions concerned the
employment histories and employment circumstances of certain of defendants’ employees
who are not parties to this lawsuit, either originally or by opting in. One such question, for
example, sought the reason for a non-party’s “termination” - “insubordination” or
“separation” from defendants’ employment, Record Doc. Nos. 92-2 at p. 1 and 92-9 at p. 2,
clearly a subject of potential embarrassment under Fed. R. Civ. P. 30(d)(3)(A) to the
unrepresented, non-party.
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During the impromptu telephone conference with the court concerning this dispute,
in instructing counsel to file an appropriate motion, I also indicated that such questions
would be permitted only if the information sought was both discoverable (i.e., relevant to
claims or defenses and proportional to the needs of the case under Fed. R. Civ. P. 26(b)(1))
and subject to an appropriate protective order. Record Doc. No. 92-9 at pp. 8-9. This is
so because discovery of information about employment histories and sometimes
embarrassing personnel actions, taken either in favor or to the detriment of non-party
individual employees, presents special concerns about the privacy rights of the individuals
involved, particularly when it concerns a person who has opted not to participate in the
public forum of a lawsuit in court. An individual’s employment history can be expected
to contain much information that is not only personal and private but also irrelevant or not
proportionally appropriate to a particular lawsuit. This does not mean that a party is never
entitled to discover the employment histories of an opponent’s employees or that
everything about them is irrelevant. The court must balance the interests of the parties in
obtaining permissible discovery against the privacy interests of individual non-parties.
Thus, a district court has discretion to determine whether such discovery is warranted. See
Davis v. Precoat Metals, No. 01 C 5689, 2002 WL 1759828 (N.D. Ill. July 29, 2002) (citing
Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994); Knoll v. American Tel. & Tel.
Co., 176 F.3d 359, 365 (6th Cir. 1999); Atkinson v. Denton Publ’g Co., 84 F.3d 144, 148
(5th Cir. 1996) (all concerning Rule 34 discovery of employment personnel files).
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On one hand, I agree with plaintiffs’ contention that deposition questions concerning
the employments histories of non-parties, including allegedly detrimental personnel actions
taken against them, may reveal information relevant to their retaliation and willful
misconduct claims, Record Doc. No. 45 (Amended Complaint at ¶ 24 p. 6 and ¶’s 27-29
p. 7. Such testimony may tend, as plaintiffs argue, to establish a “culture of retaliation over
wages or other unlawful practices” in defendants’ workplace and an employment
“environment permitting Plaintiffs to suffer” FLSA violations. Record Doc. No. 92-1 at
p. 3. Such evidence of “other wrongs” may be admissible in evidence under Fed. Evid. R.
404(b)(2).
On the other hand, I find that the court should exercise its discretion to prohibit the
proposed invasion of the privacy interests of these non-party employees through deposition
questioning about their employment experiences. A relevance finding does not end the
court’s inquiry because permissible discovery must also be proportional to the needs of the
case. A total of 13 plaintiffs are actually asserting claims in this matter, either as originally
named plaintiffs or because they have opted in. Record Doc. Nos. 1 and 45 (two named
plaintiffs); 22 (six opt-in consents); 28 two opt-in consents); 51 (two opt-in consents); 74
and 86 (one opt-in consent). Certainly, the testimony of 13 plaintiffs who have in fact
made their employment treatment the subject of claims actually asserted in the case should
be sufficient to establish the “culture” and “environment” about which plaintiffs complain.
In these kinds of circumstances, testimony concerning additional non-party employees is
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unimportant to the issues at stake in the litigation or to resolving them, while only
increasing expense and burden, in the form of non-party privacy intrusion, that would result
from broad-ranging deposition questioning about the experiences of other employees who
have chosen not to become involved in litigation. See Fed. R. Civ. P. 26(b)(1)
(Proportionality factors include “the importance of the discovery in resolving the issues,
and whether the burden or expense of the discovery outweighs its likely benefit.”). In
addition, this line of deposition questioning should be prohibited because the anticipated
discovery would be “unreasonably cumulative or duplicative” of the testimony of the 13
plaintiffs themselves. Fed. R. Civ. P. 26(b)(2)(C)(i).
Thus, the motion is denied in part insofar as it seeks to compel answers to deposition
questions concerning non-party employees.
Plaintiffs’ motion also seeks an order compelling defendants to produce certain
materials responsive to particular requests contained in their first set of Rule 34 requests
for production, which they contend have been confirmed to exist in defendants’ possession
through deposition testimony or by the investigation of their own counsel, but which
defendants have not produced. Record Doc. No. 92-1 at p. 2 n. 2-3. Record Doc. No. 45
(Amended Complaint at ¶ 24 p. 6 and ¶’s 27-29 p. 7. Defendants are obligated to make a
good faith search for materials responsive to Rule 34 requests for production and to
produce them. As noted above, defendants’ obligation to supplement their prior responses
to plaintiffs’ discovery requests “in a timely manner” is ongoing. Fed. R. Civ. P. 26(e)(1).
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Although defendants state in their supplemental opposition memorandum that they have
provided “multiple supplemental responses” since the motion was filed, Record Doc. No.
110, I have no indication of what those might have been. If the materials enumerated in
plaintiffs’ motion papers are in defendants’ possession, custody or control, they must be
produced.
Accordingly, no later than December 21, 2016, defendants must (a) supplement
their written responses to state clearly either that they have no materials of the type
enumerated below in their possession, custody or control, or that all such materials have
by then been produced, and (b) make actual production of all such additional materials, all
as follows:
In response to Requests Nos. 3, 5, 8, 12, 15, 21 and 43-49, documents/memoranda
on defendants’ policies and procedures concerning payment of wages; records kept for
employee meetings and attendance at such meetings; documents relating to defendants’
employee training program and requirements; Annual/Quarterly Employee Revenue
Reports and Annual/Quarterly Employee Retention Detail Earnings of the type attached to
the motion papers at Record Doc. No. 92-3 and 92-4, but limited to those concerning only
the 13 named and opt-in plaintiffs; any memorandum regarding “Obamacare” and new
federal law requiring recording of employee hours; training schedules and materials;
electronic mail and records of recorded work hours, but only regarding the 13 named and
opt-in plaintiffs; including any such materials identified above maintained as electronically
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stored information,1 IT IS FURTHER ORDERED that discoverable materials listed
above are limited to the time period 2013 through the present. See Record Doc. No. 44
(Judge Lemelle’s Order and Reasons establishing the relevant time period) at pp. 8, 15.
To whatever extent, if any, that the motion seeks additional relief, it is vague and
unclear and therefore denied.
7th
New Orleans, Louisiana, this _________ day of December, 2016.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
1
Plaintiffs have offered no reason why production of electronically stored information
should be in native format, as requested by plaintiffs, and it is not warranted in this case.
Accordingly, defendants must produce any such electronically stored information in any useable
form. Fed. R. Civ. P. 34(b)(2)(E).
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