Taylor v. HD and Associates, LLC
ORDER AND REASONS: Plaintiff's 102 MOTION to Compel is DENIED as set forth in document. Oral Argument set for 11/18/2020, is CANCELLED. Signed by Magistrate Judge Janis van Meerveld on 11/16/2020.(ajn)
Case 2:19-cv-10635-ILRL-JVM Document 117 Filed 11/16/20 Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BYRON TAYLOR, ET AL.
HD AND ASSOCIATES, LLC, ET AL.
CIVIL ACTION NO. 19-10635
JUDGE IVAN L. R. LEMELLE
JANIS VAN MEERVELD
ORDER AND REASONS
Before the Court is the plaintiffs’ Motion to Compel. (Rec. Doc. 102). For the following
reasons, the Motion is DENIED. Oral argument set for November 18, 2020, is CANCELLED.
This is an action to under the Fair Labor Standards Act (“FLSA”). Plaintiffs worked as
cable technicians for HD and Associates LLC (“HD”). They allege that HD failed to pay them for
all hours worked and also failed to pay appropriate overtime wages. On March 18, 2020, the district
court conditionally certified this matter as a collective action. The conditional class is composed
of cable technicians employed by HD within 12 months of plaintiffs’ demand letter to the
defendant or the filing of the court action, whichever occurred earlier.
According to the plaintiffs, the defendants admit that they did not pay overtime to the
technicians and that no records of hours were kept. In this litigation, defendants take the position
that the technicians were independent contractors, not employees. During the deposition of John
Davillier, plaintiffs learned that in submitting its Payroll Protection Plan (“PPP”) loan application,
defendants designated their technicians as employees. Thereafter, plaintiffs served discovery
regarding defendants’ PPP loan application, the dates and hours worked by plaintiffs, and the
amount paid to plaintiffs by the defendants. As to the PPP information, they insist this information
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is relevant because HD still pays those same technicians as independent contractors, despite
classifying them as employees in its PPP application. In the present motion to compel, plaintiffs
contend that defendants’ responses to that discovery are deficient. The following requests are at
ROG 1: Describe the guidance that was used in determining that its cable technicians were
employees in its PPP loan application.
ROG 2: State the number of employees on HD’s PPP application.
ROG 3: State the name and job title for all individuals included in the numbe r of employees
in the PPP application and state whether they received a W-2 for 2019 and will receive a
W-2 for 2020.
ROG 4: State the amount of money received from the PPP application.
ROG 5: State the amount paid to each employee accounted for in the PPP application.
ROG 7: State the amount paid to each plaintiff for each week worked during the period of
time approved by the Court pursuant to this litigation.
ROG 8: Of the total amount of PPP loan received, how much was paid to employees?
ROG 9: What is the present balance of PPP loan provided to HD and if exhausted, indicated
the date of exhaustion.
ROG 10: For each plaintiff, state the total number of hours that HD contends each
individual plaintiff worked during each work week as a technician and your methodology
for calculating same.
RFP 1: Produce a copy of HD’s PPP loan application and supporting documentation.
RFP 3: Provide a copy of all guidance used by HD in deciding to include its technicians in
the number of employees stated on the PPP loan application.
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RFP 4: For each cable technician included in the PPP loan application, provide pay records
showing that such pay was provided as a result of HD’s PPP Loan.
RFP 5: Provide copies of any and all checks, direct deposit records, or other financial
documents showing how HD spent its PPP loan.
The dispute can be broken into two categories: (1) plaintiffs’ request for additional
information related to the PPP loan and (2) plaintiffs’ request that defendants calculate the hours
worked and amounts paid to the plaintiffs. With regard to the PPP loan, HD’s position is that none
of the plaintiffs were included in the PPP loan application because the loan application took place
after the plaintiffs’ terminated their engagement with the defendants and outside of the class period
set by the Court. Additionally, defendants contend that the definition of employees for purposes
of the PPP loan is not informative to the definitions and exclusions applied by the FLSA. They
refuse to provide any additional information to plaintiffs’ interrogatories 1-5 and 8-9 and requests
for production 1 and 3-5. In their opposition memorandum, defendants point out that the Small
Business Association (“SBA”) included the following definition in its April 2, 2020, Interim Final
Rule regarding who could get PPP loans: “You are eligible for a PPP loan if . . . . [y]ou were in
operation on February 15, 2020 and either had employees for whom you paid salaries and payroll
taxes or paid independent
contractors, as reported on a Form 1099 -MISC.”
https://www.sba.gov/sites/default/files/2020-04/PPP--IFRN%20FINAL_0.pdf (emphasis added).
Ultimately the SBA amended this Interim Final Rule to provide that independent contractors could
obtain PPP loans directly. Defendants argue that their application is not evidence of anything.
Defendants also point out that in their discovery responses they stipulated that they applied for a
PPP loan that included current technicians.
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As to pay information, defendants objected that they have produced pay records for the
plaintiffs (in response to request for production 2). Thus, as to interrogatories 7 and 10, defendants
say that they do not have this information in summary format and they argue that plaintiffs can use
the documents produced to calculate the hours worked and amounts paid just as easily as the
defendants can. In their opposition memorandum, defendants point out that they have produced
90,000 pages of records and that their expert was able to use this information to develop a detailed
Law and Analysis
1. Scope of Discovery
The Federal Rules of Civil Procedure provide that “parties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense and proportional to the
needs of the case.” Fed. R. Civ. Proc. 26(b)(1). “Information within this scope of discovery need
not be admissible in evidence to be discoverable.” Id. The Rule requires consideration of the
following factors in assessing proportionality: “the importance of the issues at stake in the action,
the amount in controversy, the parties' relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id.
2. PPP Loan Information
The court finds that the PPP loan information sought by the plaintiffs is not relevant to the
present litigation. The loan application does not include any current plaintiffs and all of HD’s
actions with regard to the PPP loan took place after the plaintiffs ceased to work for them.
Moreover, the PPP is a different statutory scheme than the FLSA. As HD points out, the SBA
indicated that a company could obtain a PPP loan for its 1099 independent contractors. Thus, HD’s
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submission of an application for its current independent contractors (which it apparently clearly
identified as 1099 contractors by submitting their 1099 paperwork) does not amount to any kind
of admission that those independent contractors are employees under the FLSA. In any event, HD
has stipulated that it included these independent contractors in its PPP loan application. The PPP
loan documents and details about PPP loan payments are completely irrelevant to the issue of the
plaintiffs’ employee status under the FLSA. The court will not compel their production.
3. Calculation of Hours Worked and Amounts Paid
There appears to be no dispute that defendants have produced the source payroll documents
that plaintiffs seek. Rather than responding to plaintiffs’ interrogatories regarding how much time
plaintiffs worked and how much money they made, defendants have pointed to this information.
Federal Rule of Civil Procedure 33(d) explicitly provides that:
If the answer to an interrogatory may be determined by examining, auditing,
compiling, abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving or ascertaining the
answer will be substantially the same for either party, the responding party may
(1) specifying the records that must be reviewed, in sufficient detail to
enable the interrogating party to locate and identify them as readily as the
responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and
audit the records and to make copies, compilations, abstracts, or summaries.
Fed. R. Civ. P. 33
Because plaintiffs can obtain the answer to their questions just as easily as the defendants can from
the information produced, defendants are permitted to cite the documents and leave the
calculations to be plaintiffs. The court will not compel the defendants to perform these calculations
for the plaintiffs.
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For the foregoing reasons, plaintiffs’ Motion to Compel (Rec. Doc. 102) is DENIED. Oral
argument set for November 18, 2020, is CANCELLED.
New Orleans, Louisiana, this 16th day of November, 2020.
Janis van Meerveld
United States Magistrate Judge
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