Davenport v. Charter Communications, LLC

Filing 321

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' motion to stay briefing on Defendant's decertification motion, or alternatively to deny Defendant's decertification motion as premature is GRANTED. (Doc. No. #305 .) IT IS FURTHER ORDERED that Defendant's motion to decertify the conditionally certified FLSA class is DENIED without prejudice. (Doc. No. #302 .) Defendant may refile this motion after the close of discovery. IT IS FURTHER ORDERED that Defendant's motion to stay discovery is DENIED. (Doc. No. #307 .) IT IS FURTHER ORDERED that Plaintiffs' motion to compel is GRANTED. (Doc. No. #308 .) Defendant shall have until February 13, 2015 to produce the following: (SEE ORDER). IT IS FURTHER ORDERED that on or before January 23, 2015, the parties shall file a joint motion to amend the case management order, attaching a proposed amended case management order setting forth proposed deadlines for the remainder of these proceedings. IT IS FURTHER ORDERED that Plaintiffs' motion to extend expert deadlines is DENIED as moot, without prejudice to including the requested extension in the joint motion to amend the case management order as discussed above. (Doc. No. #320 .) (Response to Court due by 1/23/2015.) Signed by District Judge Audrey G. Fleissig on January 13, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PENNY DAVENPORT, et al.,
Plaintiffs,
vs.
CHARTER COMMUNICATIONS, LLC,
Defendant.

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Case No. 4:12CV00007 AGF

MEMORANDUM AND ORDER
This conditionally certified collective action for unpaid overtime wages under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., is before the Court on several
related motions. Defendant Charter Communications, LLC (“Charter”) moves to
decertify the FLSA collective action (Doc. No. 302) and to stay discovery pending
resolution of that motion (Doc. No. 307). Plaintiffs, in turn, move to stay briefing on
Charter’s decertification motion until after the close of all discovery or at least until 30
days after the close of expert discovery; alternatively, Plaintiffs request that Defendants’
decertification motion be denied as premature. (Doc. No. 305.) Plaintiffs also move to
compel certain outstanding discovery from Defendants, which they claim is necessary to
resolve the decertification issue. (Doc. No. 308.) For the reasons set forth below, the
Court will grant Plaintiffs’ motions and will deny Charter’s, but Charter’s motion for
decertification will be denied without prejudice.

BACKGROUND
Penny Davenport and three other named Plaintiffs brought this action on their own
behalf and on behalf of similarly situated call center employees who worked on an hourly
basis at Charter. Plaintiffs claim that Charter violated the FLSA, 29 U.S.C. § 207, and the
state wage and hours laws of Missouri, Kentucky, and Michigan, by failing to pay them for
the time it took them to access computer applications when beginning to work and to close
down computer applications at the end of work.
On March 27, 2014, the Court entered an order conditionally certifying Plaintiffs’
FLSA collective action for the purpose of providing notice to putative plaintiffs and an
opportunity to opt in. (Doc. No. 172.) Charter moved to reconsider this order, which the
Court denied (Doc. No. 199), and the Court ultimately required that notice of the FLSA
collective action be disseminated to the following class:
All persons who, between September 25, 2009 and August 31, 2011 worked
as a nonsupervisory hourly employee whose primary duty was to respond to
incoming calls from a queue on Charter’s toll-free lines, commonly referred
to as “advisors,” “representatives,” or “agents,” who were hired and had
completed training before September 1, 2011, and who worked at Defendant
Charter Communications, LLC’s call centers located in Town and Country,
Missouri; Walker, Michigan; Louisville, Kentucky; Greenville, South
Carolina; Vancouver, Washington; Rochester, Minnesota; Fond du Lac,
Wisconsin; and Worcester, Massachusetts, but excluding persons who were
hired by Defendant but worked only as trainees.
(Docs. No. 203-1 & 204.) The opt-in period closed on September 22, 2014, and
approximately 820 opt-in plaintiffs (the “Opt-in Plaintiffs”) joined suit.
Earlier in the proceedings, Plaintiffs also moved to certify their state law overtime
claims as class actions under Federal Rule of Civil Procedure 23(b)(3). On August 4,
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2014, the Court denied Plaintiffs’ Rule 23 motions with respect to the Michigan and
Kentucky claims because the Court found that Plaintiffs’ class claims were not cognizable
under the applicable state statutes. (Doc. No. 218.)
On September 30, 2014, the Court also denied Plaintiffs’ Rule 23 motion with
respect to their Missouri claims. (Doc. No. 294.) The Court found that the
individualized evidence put forth by Plaintiff Davenport, including evidence that
Davenport responded to the pressures of Charter’s punctuality and employee metric
policies by working off the clock, did not satisfy the “demanding” Rule 23(b)(3)
requirements that “questions of law or fact common to class members predominate over
any questions affecting only individual members” and that a class action is “superior to
other available methods for fairly and efficiently adjudicating the controversy.” Id. at
19-27.
Charter now moves to decertify the FLSA collective action. (Doc. No. 302.)
Charter filed its motion on November 13, 2014, before the close of discovery.1 Charter
seizes on the Court’s denial of Rule 23(b)(3) certification of Plaintiffs’ Missouri claims,
arguing that this ruling conclusively demonstrates that Plaintiffs’ FLSA collective action
must likewise be decertified. Charter also moves to stay discovery pending resolution of
its decertification motion. (Doc. No. 307.)

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Shortly before filing its decertification motion, Charter requested and obtained
another extension of the discovery deadlines in this case, a 30-day extension of time to
respond to Plaintiffs’ document requests for certain computer records regarding the Opt-in
Plaintiffs, including computer log in records, time clock records, and door swipe records.
(Docs. No. 300 & 306.)
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Plaintiffs, on the other hand, move to stay or deny without prejudice Charter’s
decertification motion until after the close of all discovery, or at least until 30 days after the
close of expert discovery. (Doc. No. 305.) Plaintiffs argue that the Court cannot base the
decertification decision on the same evidence as Plaintiffs’ Rule 23 motions because in the
span of time since the Rule 23 motions were filed, several hundred more Opt-in Plaintiffs
have joined suit. Plaintiffs argue that once they obtain Charter’s computer records and
other discovery relating to these additional Opt-in Plaintiffs, they will be able to “fill the
‘gaps’ in evidence” the Court cited in its denial of Rule 23 certification of the Missouri
claims, including by obtaining “evidence of wide-spread instruction to work on unpaid
time and computerized evidence of unpaid work,” rather than just “evidence of the
consequences of Charter’s employee metrics.” (Doc. No. 312 at 2.)
Noting that Charter’s decertification motion was filed less than two months after the
close of the opt-in period, Plaintiffs argue that they are still in the process of identifying
and collecting evidence from the new Opt-in Plaintiffs to demonstrate that they are
similarly situated, as required to proceed collectively under the FLSA, 29 U.S.C. § 216(b).
Plaintiffs also note that Charter has not responded to outstanding discovery requests
seeking computer records and personnel files regarding the Opt-in Plaintiffs, and has in
fact obtained an extension of time for such responses,2 the analysis of which is necessary

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Plaintiffs assert that they did not object to Charter’s request for an extension of time
to serve its discovery responses because Charter, in turn, agreed that it would not object to
Plaintiffs’ request to extend the deadline for their expert report. On January 11, 2015,
Plaintiffs moved for a three-month extension of the deadline for their expert report. (Doc.
No. 320.)
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for Plaintiffs’ expert report regarding class-wide overtime violations. Instead Charter has
limited its document production to personnel files and employee counseling notes for only
the named Plaintiffs and the 13 Opt-in Plaintiffs who joined suit before conditional
certification.
Plaintiffs argue that Charter has also refused to produce a corporate deponent under
Federal Rule of Civil Procedure 30(b)(6), to answer questions regarding any call center
other than the three call centers at issue in the Rule 23 motions (“Rule 23 call centers”),
despite Charter’s prior agreement to do so upon conditional certification of the FLSA
collective action. See, e.g., Doc. No. 305-4 at 2-3; Doc. No. 305-6 at 3-4; Doc. No.
305-16 & Doc. No. 305-17. And Plaintiffs assert that the 30(b)(6) deponents Charter did
produce for the Rule 23 call centers stated that they were “unprepared” to answer several
questions within the scope of Plaintiffs’ 30(b)(6) notice.3 See, e.g., Doc. No. 308-1 at 6, 9,

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Plaintiffs assert that the Rule 30(b)(6) topics that remain unaddressed, even with
respect to the three call centers for which Charter purported to produce a corporate
deponent, are the following:
Any internal investigations, surveys, studies, or audits by Charter concerning
whether its call center employees have been properly compensated for all
work performed.
The existence and resolution of any claims of alleged wage and hour
violations for failure to pay all time worked, failure to pay overtime, or
failure to maintain accurate records against Charter within the last five years
filed by call center employees with any federal or state administrative
agencies or federal or state court by any individual, employee or entity.
The existence and resolution of any informal or internal complaints alleging
Charter’s failure to pay all time worked, failure to pay overtime, or failure to
maintain accurate records within the last five years.
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12. When Plaintiffs complained to Charter about these non-responses, Charter produced a
document entitled “Supplement to Deposition Testimony” purporting to be a supplement
to Charter’s 30(b)(6) depositions and explaining the corporate deponents’ testimony.
(Doc. No. 305-13.) However, the supplement was unverified and was not signed by the
corporate representatives. Id. Plaintiffs argue that this supplement is insufficient to
satisfy Charter’s discovery obligations under Rule 30(b)(6), and that Plaintiffs need
prepared 30(b)(6) deponents to testify regarding all of Charter’s call centers in order to
demonstrate that the Opt-in Plaintiffs are similarly situated with respect to Charter’s
overtime policies and practices.
Plaintiffs move to compel Charter to produce prepared 30(b)(6) deponents to testify
in St. Louis regarding the five call centers for which no corporate deponent has been
produced, and to answer questions regarding the Rule 23 call centers for which the prior
30(b)(6) deponents were unprepared to testify. (Doc. No. 308.) Plaintiffs also move to
compel Charter to produce personnel files and counseling notes for each Opt-in Plaintiff.
Id.
Charter responds that permitting or compelling discovery to proceed while the
decertification motion is pending would be futile and unduly burdensome to Charter
because Plaintiffs’ own evidence offered in support of their Rule 23 motions demonstrates
that their overtime claims cannot proceed on classwide proof. Charter does not dispute
that it agreed to but has not produced a 30(b)(6) deponent to testify regarding five of its call

Doc. No. 308 at 12.
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centers; that the 30(b)(6) deponents that did testify regarding the Rule 23 call centers stated
they were not prepared to answer several questions; and that Charter has not produced the
requested personnel files and counseling notes for any Opt-in Plaintiff other than the
named Plaintiffs and the 13 pre-conditional certification Opt-in Plaintiffs. However,
Charter argues that Plaintiffs’ motion to compel this discovery should be resolved only
after the motions to stay and decertify, and if the Court denies decertification, the parties
should then “meet and confer” regarding this discovery. (Doc. No. 311 at 2.)
Alternatively, Charter argues that the motion to compel should be denied on the
merits. Charter states that Plaintiffs do not demonstrate how their requests for personnel
files and counseling notes for each Opt-in Plaintiff, in addition to the personnel files
already produced, are relevant to Plaintiffs’ claims.
Charter also argues that Plaintiffs’ request to redepose a 30(b)(6) deponent
regarding the Rule 23 call centers is improper because nearly two years have passed since
the original depositions, and another deposition would not shed any new light on the
pending decertification issue. Moreover, Charter argues that at least one of the 30(b)(6)
topics about which its corporate deponents were unprepared to testify encompasses
privileged information.
Finally, Charter maintains that it is still “not refusing to present a witness prepared
to testify as to the remaining five call centers,” but that “any such witness is now

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unnecessary, given the record evidence adduced to date and the Court’s Order denying
Rule 23 certification.”4 Id.
DISCUSSION
The FLSA provides that an action to recover overtime pay may be maintained “by
any one or more employees for and in behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b). The statute provides a procedure for plaintiffs to
join suit by filing a written consent to become a party, but the statute does not prescribe any
standard or procedure for the court to determine whether these plaintiffs are similarly
situated. Nor has the Eighth Circuit Court of Appeals enunciated a standard under §
216(b) for determining whether Opt-in Plaintiffs are similarly situated. However, district
courts in this circuit have applied a two-step approach by which named plaintiffs first seek
conditional certification to facilitate notice to the proposed class; then, later, typically after
the close of the opt-in period and all discovery, the defendant may move to decertify the
collective action if the record reveals that the Opt-in Plaintiffs are not similarly situated.
See, e.g., Fry v. Accent Mktg. Serv., L.L.C., No. 4:13 CV59 CDP, 2013 WL 4093203, at *2
(E.D. Mo. Aug. 13, 2013); Kennedy v. Boulevard Bank, No. 4:12CV40 JCH, 2012 WL
3637766, at *2 (E.D. Mo. Aug. 22, 2012); Davis v. NovaStar Mortg., Inc., 408 F. Supp. 2d
811, 815 (W.D. Mo. 2005).

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Charter requests that if the Court determines that additional evidence is necessary to
examine Charter’s decertification motion, the motion should be denied without prejudice
so that Charter may refile it at a later time. (Doc. No. 309 at 7 n.4.)
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The initial motion for conditional certification is typically, and was here, filed
before any significant discovery has taken place, and the plaintiffs’ burden at this stage is
lenient, requiring “nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy or plan.” Davis, 408 F.
Supp. 2d at 815. At the second stage, however, courts apply a stricter standard, including
making a “factual determination” as to whether the Opt-in Plaintiffs are similarly, but not
necessarily identically, situated. Beasly v. GC Services LP, 270 F.R.D. 442, 444 (E.D.
Mo. 2010). Therefore, motions to decertify are typically resolved after the close of
discovery, giving courts the benefit of a fuller record. Id.
When a defendant files its decertification motion earlier, before the close of
discovery, the court has discretion to stay or deny the motion without prejudice in order to
allow discovery to proceed. See Craig v. Rite Aid Corp., No. 4:08-CV-2317, 2012 WL
279647, at *5-6 (M.D. Pa. Jan. 31, 2012) (finding that the “wide-spread practice of
considering decertification after discovery is entirely or largely complete” makes sense in
light of the court’s obligation to “evaluate the totality of the evidence and circumstances
that may bear upon the suitability of a particular action to proceed collectively.”);
Schaefer-Larose v. Eli Lilly and Co., No. 1:07–cv–1133–SEB–TAB, 2010 WL 3892464, at
*2 (S.D. Ind. Sept. 29, 2010) (“[G]iven that discovery regarding matters pertaining to
decertification is still ongoing, we conclude that a ruling on decertification of the collective
action at this point would be premature.”); Bradford v. CVS Pharmacy, Inc., No.
1:12-CV-1159-TWT, 2013 WL 5587350, at *5 (N.D. Ga. Oct. 10, 2013) (denying

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decertification motion because the defendant filed motion “prematurely” and holding that
decertification should be decided “just before the end of discovery, or at its close” when the
court has a “much thicker record than it had at the notice stage, and can therefore make a
more informed factual determination of similarity.”) (citations omitted).
As Charter correctly notes, however, this case involves the unusual situation in
which, although discovery is not complete, the Court has already denied Rule 23 class
certification of closely related state law wage and hour claims. Thus, the issue in this case
is whether the Court’s denial of class certification of Plaintiffs’ Missouri claims under Rule
23(b)(3) effectively precludes Plaintiffs from proceeding collectively on their FLSA claim
under 29 U.S.C. § 216(b) and renders additional discovery on the issue futile.
The Court finds that, while there may be some analytical overlap, the Court’s ruling
on Plaintiffs’ Rule 23 motions does not moot the FLSA certification issue. The U.S.
Supreme Court has explained, “Rule 23 actions are fundamentally different from collective
actions under the FLSA[.]” See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,
1529 (2013). One key difference is that putative plaintiffs must affirmatively opt in and
provide written consent before becoming parties to a FLSA collective action, whereas class
actions certified under Rule 23(b)(3) requires individuals to opt out of the suit or be bound
by the judgment in the case. Compare 29 U.S.C. § 216(b) with Fed. R. Civ. P.
23(c)(3)(B). This presents serious due process considerations.
As such, to maintain class certification under Rule 23, plaintiffs must not only
“affirmatively demonstrate” that the numerosity, commonality, typicality, and adequacy

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elements of Rule 23(a) are met, but must also demonstrate that the proposed class satisfies
at least one of the three sets of requirements identified in Rule 23(b), such as Rule
23(b)(3)’s predominance and superiority requirements. See Comcast Corp. v. Behrend,
133 S. Ct. 1426, 1432 (2013); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2551 (2011) (holding that the district court must engage in “rigorous analysis” to satisfy
itself that the Rule 23 requirements are met).
But several courts to consider the issue have held that the “rigorous analysis”
required by Rule 23 does not apply with the same force in the FLSA context. See, e.g.,
Nobles v. State Farm Mut. Auto. Ins. Co., No. 2:10-cv-04175-NKL, 2011 WL 3794021, at
*8 (W.D. Mo. Aug. 25, 2011) (stating the “standards governing class claims under Rule 23
. . . do not apply to collective action claims under the FLSA”); Lillehagen v. Alorica, Inc.,
No. SACV 13–0092–DOC (JPRx), 2014 WL 2009031, at *6 (C.D. Cal. May 15, 2014)
(“Courts have mostly held that Section 216(b) collective actions are not subject to Rule 23
class certification requirements[.]”) (citing cases); O’Brien v. Ed Donnelly Enters., Inc.,
575 F.3d 567, 584-85 (6th Cir. 2009) (holding the district court improperly applied “more
stringent” Rule 23-type analysis when it reasoned that the plaintiffs were not similarly
situated because individualized questions predominated); Lewis v. Wells Fargo Co., 669 F.
Supp. 2d 1124, 1127 (N.D. Cal. 2009) (“The requisite showing of similarity of claims
under the FLSA is considerably less stringent than the requisite showing under Rule 23 of
the Federal Rules of Civil Procedure” and requires only “some identifiable factual or legal
nexus binds together the various claims of the class members in a way that hearing the

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claims together promotes judicial efficiency and comports with the broad remedial policies
underlying the FLSA.”); Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357, 365 n.8 (D.
Me. 2010) (noting that even at the second stage of 216(b) certification, “[t]he analysis . . . is
still not a factor-by-factor calculus comparable to that required for certification of a Rule
23 class” and instead “courts take a holistic view” to determine whether employees are
similarly situated) (citations omitted); but see Espenscheid v. DirectSat USA, LLC, 705
F.3d 770, 771-72 (7th Cir. 2013) (although noting the explicit differences between an
FLSA collective action and Rule 23 class action, finding that “there isn’t a good reason to
have different standards for the certification of the two different types of action, and the
case law has largely merged the standards, though with some terminological differences.”).
Instead, in order to proceed collectively under 29 U.S.C. § 216(b), Plaintiffs need
only demonstrate, based on the totality of evidence, that they are similarly situated. See
White v. 14051 Manchester Inc., 301 F.R.D. 368, 372 (E.D. Mo. 2014) (discussing relevant
factors to determine similarity, including “(1) the disparate factual and employment
settings of the individual plaintiffs; (2) the various defenses available to defendant that
appear to be individual to each plaintiff, and (3) fairness and procedural considerations,”
and finding the ultimate “question is simply whether the differences among the plaintiffs
outweigh the similarities of the practices to which they were allegedly subjected”).
Plaintiffs claim that they can make this showing with additional discovery. The Court
will therefore grant Plaintiffs’ motion to proceed with discovery before resolving Charter’s
decertification motion, and the Court will deny Charter’s motion to stay discovery.

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The Court will also grant Plaintiffs’ motion to compel. Charter’s only substantive
objection to Plaintiffs’ requests for production of counseling notes and personnel files for
the Opt-in Plaintiffs is that the requests are overbroad. The Court finds this objection to
be without merit. As an initial matter, Charter has already produced nearly identical
documents with respect to the 13 pre-conditional certification Opt-in Plaintiffs.
Moreover, Charter specifically identifies the counseling notes and personnel files in its
supplemental Rule 26(a)(1) disclosures as documents that Charter itself may use in support
of its defenses. (Docs. No. 319 & 319-1.) Therefore, Charter has already conceded the
relevance of these documents.
Likewise, the Court overrules Charter’s objection to producing prepared 30(b)(6)
deponents to testify regarding all eight call centers. Although Charter claims that
Plaintiffs’ request to redepose a 30(b)(6) witness regarding the Rule 23 call centers comes
too late, the emails and correspondence attached to Plaintiffs’ motions demonstrate that
any delay was due, at least in part, to Charter’s own failure to respond to Plaintiffs’
complaints regarding the discovery deficiencies. Charter has not disputed this fact. See
Doc. No. 309 at 2 n.1. Charter also cannot dispute that Plaintiffs are entitled to take the
depositions of prepared corporate representatives on the topics listed in Plaintiffs’ 30(b)(6)
notice with respect to all eight call centers.5 And Plaintiffs may use these depositions, as

5

Charter asserts for the first time in response to Plaintiffs’ motion to compel that there
may be issues of privilege regarding some topics in Plaintiffs’ Rule 30(b)(6) notice. (Doc.
No. 311 at 4-5.) However, Charter’s 30(b)(6) deponents did not assert any privilege in
response to Plaintiffs’ questions during the depositions regarding the Rule 23 call centers;
instead, they stated only that they were “not prepared” to answer these questions. See,
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well as the written discovery discussed above, to respond to Charter’s decertification
motion.
After the additional discovery has been exchanged, Charter may wish to redraft or
supplement its motion for decertification. Therefore, rather than merely staying the time
for Plaintiffs’ response brief, the Court will deny Charter’s decertification motion without
prejudice to refiling after the close of discovery, as Charter itself requested.
Finally, as the prior trial setting in this case was vacated, to be reset following
issuance of the Court’s ruling on class certification (Doc. No. 128), and in light of the prior
and current requests for extensions of the deadlines set forth in the most recent case
management order, the Court will request the parties to file a joint motion to amend the
case management order, attaching a proposed amended case management order setting
forth proposed deadlines for the remainder of these proceedings.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiffs’ motion to stay briefing on
Defendant’s decertification motion, or alternatively to deny Defendant’s decertification
motion as premature is GRANTED. (Doc. No. 305.)
IT IS FURTHER ORDERED that Defendant’s motion to decertify the
conditionally certified FLSA class is DENIED without prejudice. (Doc. No. 302.)
Defendant may refile this motion after the close of discovery.
e.g., Doc. No. 308-1 at 6, 9, 12. If in future depositions, Charter believes certain
testimony is privileged, Charter must assert an appropriate and timely objection.
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IT IS FURTHER ORDERED that Defendant’s motion to stay discovery is
DENIED. (Doc. No. 307.)
IT IS FURTHER ORDERED that Plaintiffs’ motion to compel is GRANTED.
(Doc. No. 308.) Defendant shall have until February 13, 2015 to produce the following:
1) Prepared corporate representatives to testify in the St. Louis area on the topics
listed in Plaintiffs’ Amended Rule 30(b)(6) notice of deposition regarding each
of the call centers at issue in this case, pursuant to Federal Rule of Civil
Procedure 30(b)(6); and
2) Personnel files and counseling notes for each Opt-in Plaintiff, pursuant to
Federal Rule of Civil Procedure 34(b)(2).
IT IS FURTHER ORDERED that on or before January 23, 2015, the parties
shall file a joint motion to amend the case management order, attaching a proposed
amended case management order setting forth proposed deadlines for the remainder of
these proceedings.
IT IS FURTHER ORDERED that Plaintiffs’ motion to extend expert deadlines is
DENIED as moot, without prejudice to including the requested extension in the joint
motion to amend the case management order as discussed above. (Doc. No. 320.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 13th day of January, 2015.

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