Smith v. Guidant Global, Inc.

Filing 77

OPINION and ORDER (1) Granting in Part and Denying in Part Defendant's 48 MOTION for Protective Order ; (2) Granting Plaintiff's 56 MOTION to Compel Discovery ; Denying as Moot Plaintiff's 50 MOTION to Compel Discovery,; and Denying as Moot Plaintiff's 60 MOTION TO EXTEND Discovery Deadline. Signed by District Judge Gershwin A. Drain. (TMcg)

Case 2:19-cv-12318-GAD-CI ECF No. 77, PageID.2288 Filed 11/19/20 Page 1 of 21

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHADWICK SMITH,
Plaintiff,

Case No. 19-cv-12318

v.

UNITED STATES DISTRICT COURT
JUDGE GERSHWIN A. DRAIN

GUIDANT GLOBAL INC., ET AL.,
Defendants.
______________________________/

OPINION AND ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER [48]; (2)
GRANTING PLAINTIFF’S MOTION TO COMPEL DISCOVERY [56]; (3)
DENYING AS MOOT PLAINTIFF’S MOTION TO COMPEL DISCOVERY
[50]; AND (4) DENYING AS MOOT PLAINTIFF’S MOTION TO EXTEND
DISCOVERY DEADLINE [60]
I. INTRODUCTION
On August 6, 2019, Plaintiff Chadwick Smith (“Plaintiff”) filed the instant
collective action under the Fair Labor Standards Act (“FLSA”) for unpaid overtime
against Defendant Guidant Global, Inc. See ECF No. 1. On September 18, 2019,
Plaintiff amended his Complaint to add Defendant Guidant Group, Inc.1 See ECF
No. 8.

1

Hereinafter, the Court will refer to Defendants Guidant Global, Inc. and Guidant
Group, Inc. together as “Guidant.”
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Presently before the Court are the parties’ four discovery-related motions,
which are fully briefed. These motions include: (1) Guidant’s Motion for Protective
Order (ECF No. 48); (2) Plaintiff’s Motion to Compel Discovery (hereinafter,
“September Motion to Compel”) (ECF No. 50); (3) Plaintiff’s Motion to Compel
Discovery (hereinafter, “October Motion to Compel”) (ECF No. 56); and (4)
Plaintiff’s Motion to Extend Discovery (ECF No. 60).2 A hearing on the parties’
unresolved issues from these discovery-related motions was held on November 16,
2020. For the reasons that follow, the Court will GRANT IN PART and DENY IN
PART Guidant’s Motion for Protective Order [#48]. The Court will GRANT
Guidant’s Motion as it relates to Guidant’s request for the Court to preclude Plaintiff
from taking Lynda Lemoine’s deposition. The Court will DENY Guidant’s Motion
as it relates to Guidant’s request for the Court to enter a protective order as to any
discovery directed to the Opt-In Plaintiffs.
Further, the Court will GRANT Plaintiff’s October Motion to Compel [#56].
The Court will also DENY AS MOOT Plaintiff’s September Motion to Compel
[#50]. Finally, the Court will also DENY AS MOOT Plaintiff’s Motion to Extend
Discovery Deadline [#60].

2

Three of these Motions were previously referred to Magistrate Judge Anthony P.
Patti. On October 15, 2020, this matter was reassigned to Magistrate Judge Curtis
Ivy, Jr. This Court entered an Order Rescinding its Order of Reference to Magistrate
Judge on October 28, 2020. ECF No. 70.
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II. FACTUAL & PROCEDURAL BACKGROUND
Plaintiff asserts that he and those “similarly situated” to him are individuals
who were employed by Guidant as hourly employees. ECF No. 8, PageID.24, 27.
Plaintiff brings this action against Guidant for allegedly failing to compensate him,
and other workers like him, for overtime as required by the FLSA, 29 U.S.C. 201 et
seq. Id. at PageID.24. He seeks to recover unpaid overtime and other damages due
to him and the Putative Class Members in this collective action. Id. On December
11, 2019, this Court denied Guidant’s Motion to Dismiss, finding that Plaintiff
sufficiently alleged Guidant’s joint employment relationship.

ECF No. 20,

PageID.329. This Court also determined that Guidant’s raised consent issue was
moot. See id. at PageID.329.
On August 20, 2020, this Court denied Plaintiff’s Motion for Conditional
Certification of a class defined as: “[a]ll workers covered by a Guidant Staffing
Company Agreement who were paid straight time for overtime within the past 3
years.” See ECF No. 43. In its Opinion and Order, this Court expressed its concern
with the action’s case management. Specifically, this Court determined that this
matter, at the time of its writing, would not be manageable as a collective action in
light of Guidant’s assertion that the potential nationwide class may include 200,000
workers, who are employed by over 1,600 staffing agencies and assigned to work at
56 different companies in a variety of different industries. Id. at PageID.1677. This

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Court otherwise found Plaintiff sufficiently demonstrated a class of similarly
situated workers existed.
On September 2, 2020, this Court held a Status Conference with the parties.
At this Conference, Plaintiff explained that it planned to serve limited discovery
requests on Guidant for the specific purpose of addressing the Court’s manageability
concerns.

Guidant expressed its opposition with such discovery, citing

proportionality and relevancy concerns. The Court decided to extend discovery by
thirty days, concluding on September 30, 2020.
On October 28, 2020, this Court held another Status Conference with the
parties. ECF No. 71. At this Conference, the parties discussed the status of their
discovery, as well as their recently filed motions, which are now presently before
the Court. Id. at PageID.2251. Further, the Court emphasized that it previously
denied Plaintiff Motion to Certify Class (ECF No. 30) without prejudice. The Court
also explained that its decision was confirmed at the September 2, 2020 Status
Conference, when it decided to extend discovery as to the parties’ manageability
disputes. At the conclusion of the October 28, 2020 Conference, the Court entered
an Amended Scheduling Order. Id. Included in the parties’ new dates was a renewed
deadline for discovery related to Plaintiff’s forthcoming Renewed Class
Certification Motion. Id. at PageID.2251–52.

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The parties timely submitted a Joint Brief of Resolved & Unresolved Issues
on November 5, 2020 (hereinafter, “Joint Brief”). ECF No. 75. In its Joint Brief,
the parties explain they resolved the following outstanding issues in the four pending
motions:
 Guidant’s Motion for Protective Order (ECF No. 48): (1) fact depositions
of Christina Cervera and Susan deBlaquiere are scheduled during the week
of November 9, 2020; and (2) the manageability 30(b)(6) deposition will
go forward, with limitations as to workers in the power/energy industry;
 Plaintiff’s September Motion to Compel (ECF No. 50): Guidant will
supplement its responses to Plaintiff’s First Set of Requests for Production
Nos. 2, 4-5, and 7-9, limited to workers in the power/energy industry, with
additional limitations set forth in Plaintiff’s Motion;
 Plaintiff’s October Motion to Compel (ECF No. 56): Guidant will respond
to Plaintiff’s First Set of Interrogatories and Second Set of Requests for
Production, as to Plaintiff, by November 25, 2020.
Id. at PageID.2279–80. Additionally, the parties set forth their unresolved issues:
 Guidant’s Motion for Protective Order (ECF No. 48): whether the Court
should compel Guidant to present a 30(b)(6) witness as to the Opt-In
Plaintiffs and fact witness Lynda Lemoine for deposition; and

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 Plaintiff’s October Motion to Compel (ECF No. 56): whether the Court
should compel Guidant to respond to Plaintiff’s First Set of Interrogatories
and Second Set of Requests for Production as to the Opt-in Plaintiffs.
Id. at PageID.2280. Accordingly, this Order will focus on these unresolved issues.
III. LAW & ANALYSIS
A. Guidant’s Motion for Protective Order (ECF No. 48)
Guidant moves for a protective order as to the Rule 30(b)(6) deposition
concerning the Opt-In Plaintiffs, as well as a protective order barring Plaintiff from
taking a fact deposition of Lynda Lemoine. As for the Rule 30(b)6) deposition,
Guidant argues that Plaintiff’s requested

discovery

is

“irrelevant

and

disproportional.” ECF No. 75, PageID.2282. Guidant emphasizes that the four
individuals who have opted into the instant litigation are not yet parties to the case,
as conditional certification was previously denied. Id. As for the fact deposition of
Lynda Lemoine (hereinafter, “Lemoine”), Guidant contends that this deposition is
“patently disproportionate and irrelevant” given that she “has no involvement with
the Duke Program, and, therefore, no involvement with [Plaintiff].” ECF No. 48,
PageID.1707.
1. Legal Standard
The Federal Rules of Civil Procedure allows for a broad scope of discovery.
Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir.1998). Rule 26(b)(1) allows

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parties to “obtain discovery regarding any non-privileged matter that is relevant to
any party’s claim or defense ... if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). As relevant here,
Rule 26(b)(1) applies to Rule 30(b)(6) deposition notices. See Edwards v. Scripps
Media, Inc., 331 F.R.D. 116, 122 (E.D. Mich. 2019) (citation omitted).
Nevertheless, Rule 26(c) provides this Court with authority to issue a
protective order for good cause “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense including,” orders
“forbidding the disclosure of discovery.” Fed. R. Civ. P. 26(c). The Sixth Circuit
has explained that a moving party “must show good cause for protection from one
(or more) harms identified in Rule 26(c)(1)(A) with a particular and specific
demonstrate of fact, as distinguished from stereotyped and conclusory statements”
in order to sustain a protective order under Rule 26(c). In re Ohio Execution
Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (internal quotation marks and
citation omitted). “Good cause” exists if “specific prejudice or harm will result”
should the Court not issue a protective order. Id. (citation omitted). Moreover, the
Court must balance the “right to discovery” with the need to “prevent fishing
expeditions.” Id. at 236–37 (internal quotation marks and citation omitted).

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2. Analysis
a. 30(b)(6) Deposition
The Court will first address the parties’ dispute of whether Guidant should be
compelled to present a 30(b)(6) witness as to the Opt-In Plaintiffs.

Plaintiff

originally served Guidant with this disputed 30(b)(6) deposition notice on September
3, 2020. ECF No. 54-6. Guidant maintains that the discovery sought in this
deposition is irrelevant and disproportional in light of the Court’s Opinion and Order
denying conditional certification. ECF No. 75, PageID.2282. It asserts that the
Court’s Opinion and Order “made no provision for the ‘opt ins’ to continue to
participate in the case.” Id.
Guidant cites to several district court opinions for the proposition that opt-in
plaintiffs are not parties to a case when conditional certification is denied. Id. at
PageID.2282–83. Plaintiff disputes this argument, asserting that opt-in plaintiffs
become parties to a case upon the filing of a consent, even if conditional certification
is never requested. Id. at PageID.2281. Plaintiff maintains that it would be
inappropriate to dismiss the claims of the Opt-In Plaintiffs at this time, where the
Court’s denial of certification was made without prejudice.

ECF No. 54,

PageID.1908.
As an initial matter, the Court denotes that the question of an opt-in plaintiff’s
status, specifically when there is no conditionally certified collective action under

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the FLSA, has resulted in a conflict among courts. Upon careful review of Guidant’s
cited authority, the Court declines to follow the line of cases which support
Guidant’s argument that the Opt-In Plaintiffs are not parties to the present case.
Rather, for the reasons discussed below, the Court finds that the Opt-In Plaintiffs are
properly before the Court at this juncture.
First, a plain reading of FLSA 29 U.S.C. § 216(b) demonstrates that nothing
beyond the filing of a consent, including conditional certification, is required for an
opt-in party to become a plaintiff. As the Eleventh Circuit explained in Prickett v.
DeKalb Cnty., Congress, by referring to opt-in plaintiffs as “party plaintiff[s],”
indicated that such opt-in plaintiffs “should have the same status in relation to the
claims of the lawsuit as do the named plaintiffs.” 349 F.3d 1294, 1296 (11th Cir.
2003). Conditional certification thus does not necessarily serve the purpose of
joining plaintiffs to the action, as suggested by Guidant in its present Motion and
statement in the parties’ Joint Report. This Court agrees with the Eleventh Circuit’s
finding that “conditional certification is solely for notice purposes and does nothing
to determine if a party becomes a plaintiff.” Mickles v. Country Club Inc., 887 F.3d
1270, 1278 (11th Cir. 2018).
The Court also finds the Ninth Circuit’s differentiation of collective actions
from Rule 23 class actions informative. Campbell v. City of Los Angeles, 903 F.3d
1090, 1105 (9th Cir. 2018). While a class action is conditioned on the court’s

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approval, and involves a “less active role” in the litigation for the class members, a
collective action under the FLSA permits aggrieved workers to act as a collective of
individual plaintiffs, with individual cases, even before a court approves notice to a
conditionally certified class. Id. Such aggrieved workers can opt-in to a collective
action by their own choosing with a properly filed consent to the appropriate court.
Id. Stated differently, § 216(b) permits interested, similarly situated parties to join
an action even before proper notice has been sent. Myers v. Hertz Corp., 624 F.3d
537, 55 n.10 (2d Cir. 2010) (citation omitted).
Second, the Court does not find that any of the cases cited to by Guidant stand
for the proposition that a court must dismiss an opt-in plaintiff upon the denial of
certification without prejudice. Rather, the cited out-of-circuit cases suggest that the
Court may dismiss an opt-in plaintiff when no class has been certified or where the
conditionally certified class has been decertified. For example, the district court
explained in Gibbs v. MLK Express Servs., LLC that existing opt-in plaintiffs are
“usually” dismissed from a lawsuit when a conditional certification is denied. No.
2:18-cv-434, 2019 WL 2635746, at *10 (M.D. Fla. June 27, 2019). In Rowe v. Hosp.
Housekeeping Sys., LLC, the district court determined it was “appropriate” to
dismiss the opt-in plaintiffs’ claims after it denied the plaintiff’s motion for
conditional certification without prejudice. No. 18-9376, 2018 WL 1123621, at *1
(E.D. La. Feb. 28, 2018). Importantly, neither of these courts explained that they

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were required to reach this conclusion. The courts instead appear to exercise
discretion in dismissing the opt-in plaintiffs at their respective junctures.
This Court declines to prevent the four Opt-In Plaintiffs from participating in
the present matter when it neither ruled on a motion for decertification, when an
action officially becomes a single plaintiff lawsuit, nor denied Plaintiff’s motion for
conditional certification with prejudice. See Bamgbose v. Delta-T Grp., Inc., 724 F.
Supp. 2d 510, 514 (E.D. Pa. 2010) (declining to dismiss opt-in plaintiffs until the
plaintiff articulated and presented a subclass). Indeed, the Court expressly permitted
Plaintiff to file a Renewed Class Certification Motion no later than January 15, 2021.
ECF No. 71, PageID.2251. It is therefore premature to dismiss the Opt-In Plaintiffs
without prejudice from this matter.
Third, and as alluded to above, the Court emphasizes that it is within its
discretion to “manage the process of joining multiple parties in a manner that is
orderly, sensible, and not otherwise contrary to the statutory commands or the
provisions of the Federal Rules of Civil Procedure.” Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 170 (1989). The Court finds the Second Circuit’s analysis
of § 216(b) and the Supreme Court’s rationale in Hoffman-La Roche, Inc. instructive
for its analysis here: “while courts speak of ‘certifying’ a FLSA collective action, it
is important to stress that the ‘certification’ we refer to here is only the district court’s
exercise of the discretionary power, upheld in Hoffmann–La Roche, to facilitate the

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sending of notice to potential class members.” Myers, 624 F.3d at 55 n.10 (citation
omitted). In adopting this rationale, this Court declines to prevent the Opt-In
Plaintiffs from participating in the present action when it may rule on a renewed
motion to certify a proposed class within three months of the date of this writing.
Finally, the Court takes notice that the practice of filing consent forms prior
to conditional certification of a collective action is commonplace within the Sixth
Circuit. In Bey v. WalkerHealthCareIT, LLC, the district court determined that it
was not proper to strike the existing consent forms in a case where the court had not
yet made a final determination on conditional certification. No. 2:16-cv-1167, 2018
U.S. Dist. LEXIS 72819, at *29 (S.D. Ohio May 1, 2018). Importantly, the district
court cited to four other district courts within this Circuit where opt-in plaintiffs filed
consent forms prior to the representative plaintiff’s motion for conditional
certification. Id. (citing Struck v. PNC Bank N.A., No. 2:11-cv-00982, 2013 WL
571849, at *1 (S.D. Ohio Feb. 13, 2013) (45 opt-in plaintiffs filed consent forms
prior to the motion for conditional certification); Fenley v. Wood Grp. Mustang, Inc.,
170 F. Supp. 3d 1063, 1067 (S.D. Ohio 2016) (some of the 37 opt-in plaintiffs filed
consent forms prior to the motion for conditional certification); Swigart v. Fifth
Third Bank, 276 F.R.D. 210, 211 (S.D. Ohio 2011) (some of the 22 opt-in plaintiffs
filed consent forms prior to the motion for conditional certification); Bradford v.
Logan’s Roadhouse, Inc., 137 F. Supp. 1064, 1067 (M.D. Tenn. 2015) (some of the

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100 opt-in plaintiffs filed consent forms prior to the motion for conditional
certification)). While this Court denotes that Plaintiff here previously moved for
conditional certification, it reiterates that its decision to deny the motion was done
without prejudice. Further, the Court explicitly provided a deadline for Plaintiff to
refile a renewed motion in its Amended Scheduling Order.

ECF No. 71,

PageID.2251.
In sum, the Opt-In Plaintiffs are properly before the Court at this juncture,
where Plaintiff’s motion for conditional certification was dismissed without
prejudice and the Court has yet to be presented with a renewed motion. Indeed,
Plaintiff’s decision to file a renewed motion is contingent on the very question of
whether this case would be manageable as a collective action. The Court will revisit
the question of whether the Opt-In Plaintiffs should be dismissed if it were to deny
a renewed motion for class certification with prejudice or eventually grant a motion
for decertification.
In light of this conclusion, the Court now must determine whether Plaintiff’s
requested discovery as to the Opt-In Plaintiffs should be precluded. In its present
Motion, Guidant explains that such discovery is irrelevant, disproportional,
overbroad, and unduly burdensome.

ECF No. 48, PageID.1706.

The Court

disagrees. Given that the Court determined that the Opt-In Plaintiffs are properly
before the Court at this time, the Court finds that such requested discovery is relevant

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and appropriate. Moreover, Guidant fails to present any support beyond conclusory
representations that Plaintiff is not entitled to discovery beyond matters directly
relevant to Plaintiff’s personal claim under the FLSA, including those for the OptIn Plaintiffs. The Sixth Circuit has made clear that in order to justify a protective
order, one of Rule 26(c)(1)’s enumerated harms “must be illustrated with a particular
and specific demonstrate of fact, as distinguished from stereotyped and conclusory
statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (internal
quotation marks and citation omitted) (emphasis added). Guidant relies exclusively
on the Court’s denial of conditional certification without prejudice to support its
present Motion. ECF No. 48, PageID.1700-01, 1711; ECF No. 59, PageID.2153
(“[T]he Court’s order denying conditional certification also precludes Plaintiff from
seeking discovery relating to the opt-in plaintiffs, because they are not parties to
case where conditional certification is denied.”). However, as the Court explained
above, the Opt-In Plaintiffs are properly before the Court, even with the Court’s prior
denial of conditional certification, which to reiterate was made without prejudice.
Moreover, the Court agrees with Plaintiff that Guidant has not offered any
cognizable argument regarding the specific burden or expense of producing this
discovery. See ECF No. 54, PageID.1914. Indeed, Guidant only argues generally
that the discovery as putative class members is “plainly overbroad and burdensome.”

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ECF No. 48, PageID.1711. As explained supra, the Court declines to adopt such
conclusory representations.
In sum, the Court concludes that Guidant fails to present good cause as to why
it should be protected from presenting a 30(b)(6) witness as to the Opt-In Plaintiffs.
Indeed, the Court finds that the Opt-In Plaintiffs are not “off limits” to discovery.
See ECF No. 48, PageID.1700. Accordingly, Guidant’s Motion for Protective
Order, as it relates to the requested discovery directed to the Opt-In Plaintiffs, will
be denied.
b. Lemoine Fact Witness Deposition
The Court next turns to Plaintiff’s request for a fact deposition of Lemoine.
As explained above, Guidant argues that Lemoine, who is a Project Manager for
Guidant’s program with Entergy, is not involved with either the Duke Program or
Plaintiff. ECF No. 48, PageID.1910. Plaintiff emphasizes that he seeks Lemoine’s
testimony because Guidant “expressly relied [on this individual] to convince the
Court to deny conditional certification based on the size of the class[.]” ECF No.
54, PageID.1910.
Guidant submitted Lemoine’s declaration as an exhibit to its Response to
Plaintiff’s Renewed Motion to Certify Class. ECF No. 34-3. The Court takes notice
of Guidant’s citation to Lemoine’s declaration in its original Response for the
proposition that the Court “has not had an opportunity to address a case of this scope

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and magnitude.” ECF No. 34, PageID.1492. The Court also takes notice of
Guidant’s citation to two other declarations in its original Response brief:
declarations by both Christina Cervera (ECF No. 34-2) and Susan deBlaquiere (ECF
No. 34-4). In its present Motion, Guidant explains that it did not object to the fact
depositions of Cervera and deBlaquiere. ECF No. 48, PageID.1707. As explained
supra, the parties confirmed in their Joint Report that they agreed to go forward with
the Cervera and deBlaquiere depositions during the week of November 9, 2020.
ECF No. 75, PageID.2280.
At the hearing, Plaintiff confirmed that the Cervera and deBlaquiere fact
depositions were complete. When the Court questioned Plaintiff on whether it was
possible to determine the scope of a new proposed class without Lemoine’s
deposition, Plaintiff explained that he was unsure if he could solely rely on Cervera’s
and deBlaquiere’s depositions in light of their answers.

Plaintiff argued that

Lemoine’s deposition was necessary to finish the outstanding question of
manageability.
The Court finds that Guidant has met its burden of establishing good cause for
a protective order to issue as to Lemoine’s deposition.

Specifically, Guidant

establishes good cause for protection from undue burden. Fed. R. Civ. P. 26(c)(1).
The Court finds that such harm will result from the absence of a protective order as
to Lemoine’s deposition, especially in light of the recent depositions of both Cervera

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and deBlaquiere, who were deposed for the same reason of determining the scope of
a new proposed class. Both Cervera and deBlaquiere are employed by Corestaff
Support Services, Inc., where they provide or oversee support of Guidant’s
administration of several customers’ contingent worker programs, ECF No. 34-2,
PageID.1502; ECF No. 34-4, PageID.1513, including Duke Energy Corp., the
customer which Plaintiff worked with in 2016 and 2017, ECF No. 30-1, PageID.958.
Lemoine, however, oversees Guidant’s administration of its contingent worker
program with Entergy—not Duke Energy Corp. ECF No. 34-3, PageID.1508.
“A court must balance the right to discovery with the need to prevent fishing
expeditions.” In re Ohio Execution Protocol Litig., 845 F.3d 231, 236–37 (6th Cir.
2016) (internal quotation marks and citation omitted). Here, the Court concludes
that a third deposition on the issue of manageability would be disproportionate and
unduly burdensome for Guidant at this juncture. Indeed, the Court denotes that
Plaintiff initially asked the Court for “limited” discovery on the outstanding question
of manageability. The Court is unable to conclude that Lemoine’s deposition fits
into this description, especially when the depositions of both Cervera and
deBlaquiere already provided Plaintiff with some access to information which can
aid in his discovery on the size of the putative class.

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Accordingly, the Court will grant Guidant’s Motion (ECF No. 48) as it relates
to Guidant’s request for the Court to preclude Plaintiff from taking Lemoine’s
deposition.
B. Plaintiff’s October Motion to Compel (ECF No. 56)
Plaintiff moves to Compel Guidant to respond to his First Set of
Interrogatories and Second Set of Requests for Production, which he served on
September 3, 2020. See ECF No. 56-2. The requested discovery concerns the merits
of Plaintiff’s and the Opt-In Plaintiffs’ claims against Guidant. According to
Plaintiff, the Opt-In Plaintiffs “remain as much a part of this case” as he does and
thus the merits of their claims are relevant and discoverable.

ECF No. 56,

PageID.2083–84. Guidant argues that this discovery should be precluded, as the
Court “limited the case to Plaintiff’s claim and, moreover, the [O]pt-[I]ns do not
have independent status as parties to the case because there is no class to which they
could have opted in.” ECF No. 64, PageID.2211.
1. Legal Standard
Federal Rules of Civil Procedure 33 and 34 allow a party to serve
interrogatories and requests for production of documents on an opposing party. Fed.
R. Civ. P. 33, 34. A party receiving these types of discovery requests has thirty days
to respond with answers or objections. Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A).
Federal Rule of Civil Procedure 37 governs motions for compelling disclosure of

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discovery upon a party’s failure to make such disclosures. See Fed. R. Civ. P. 37.
Under Rule 37(a)(4), “an evasive or incomplete disclosure, answer, or response must
be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Additionally, Rule 26(e)(1)(A) requires a plaintiff to supplement her responses in a
timely manner. If the receiving party fails to respond to interrogatories or requests
for production, Rule 37 provides the party who sent the request the means to file a
motion to compel. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv).
2. Analysis
As the Court explained supra, upon careful review of the parties’ presented
arguments, the Opt-In Plaintiffs are properly before the Court at this juncture, where
Plaintiff’s motion for conditional certification was dismissed without prejudice and
the Court has yet to be presented with a renewed motion. The Court thus disagrees
with Guidant’s assertion that the Opt-In Plaintiffs do not have independent status as
parties to the present case. ECF No. 64, PageID.2211; ECF No.75, PageID.2284.
Rather, the Court concludes that the requested discovery related to the Opt-In
Plaintiffs is appropriate, as the Court has yet to provide a final ruling on the
individuals’ similarity or dissimilarity. Moreover, the Court again denotes that the
practice of individuals filing consent forms prior to a final ruling on conditional
certification of the collective action is commonplace within this Circuit. Bey v.

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WalkerHealthCareIT, LLC, No. 2:16-cv-1167, 2018 U.S. Dist. LEXIS 72819, at *29
(S.D. Ohio May 1, 2018) (citing cases).
In sum, it would be contrary to the Federal Rules of Civil Procedure, which
allow for a broad scope of discovery, to prevent the Opt-In Plaintiffs from
participating in the present matter at this juncture. Accordingly, the Court will grant
Plaintiff’s October Motion to Compel (ECF No. 56). The Court reminds the parties
that all discovery related to Plaintiff’s forthcoming Renewed Class Certification
Motion must be completed by December 31, 2020. ECF No. 71, PageID.2251.
C. Parties’ Remaining Motions (ECF Nos. 50, 60)
Lastly, the Court will briefly address Plaintiff’s two remaining discoveryrelated motions. First, the Court takes notice of the parties’ resolution of Plaintiff’s
September Motion to Compel (ECF No. 50). See ECF No. 75, PageID.2280.
Accordingly, Plaintiff’s September Motion to Compel [#50] is moot. Second, the
Court finds that Plaintiff’s Motion to Extend Discovery Deadline [#60] is also moot
in light of the Court’s Order Regarding Status Conference and Setting New Dates
(ECF No. 71), which was entered on October 28, 2020.
IV. CONCLUSION & ORDER
For the reasons articulated above, Guidant’s Motion for Protective Order
[#48] is GRANTED IN PART and DENIED IN PART. The Court GRANTS
Guidant’s Motion as it relates to Guidant’s request for the Court to preclude Plaintiff

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from taking Lynda Lemoine’s deposition. Guidant thus shall have no obligation to
produce Lynda Lemoine for her fact deposition. The Court DENIES Guidant’s
Motion as it relates to Guidant’s request for the Court to enter a protective order as
to any discovery directed to the Opt-In Plaintiffs. Guidant is thus ordered to respond
to Plaintiff’s outstanding discovery requests as to the Opt-In Plaintiffs.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery
[#56] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery
[#50] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Discovery
Deadline [#60] is DENIED AS MOOT.
SO ORDERED.
Dated:

November 19, 2020
/s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 19, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager

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