Ritz v. Directory Publishing Solutions, Inc. et al

Filing 63

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants renewed motion to compel (Doc. No. 59) is GRANTED such that within ten days of the date of this Memorandum and Order, Plaintiffs shall (1) produce their home phone and cellular phone records f or the time period that they were employed by Defendants, (2) provide the time, date, sender, and receiver of text messages, personal emails, and Facebook messages sent or received during their mployment with Defendants, and (3) consent to the subpoena of such informationfrom the applicable service providers for existing messages unavailable to Plaintiffs. ( Response to Court due by 5/24/2014.) Signed by District Judge Audrey G. Fleissig on 5/14/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANGELA RITZ, individually and on
behalf of others similarly situated,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DIRECTORY PUBLISHING SOLUTIONS, )
INC., and PAUL DUFOUR,
)
)
Defendants.
)

Case No. 4:13CV01236 AGF

MEMORANDUM AND ORDER
This collective action under the Fair Labor Standards Act (“FLSA”) for unpaid
wages is before the Court on Defendant’s “renewed” motion to compel production of
documents. The ten opt-in Plaintiffs contend that they were misclassified as exempt from
the FLSA and denied overtime compensation during their employment with Defendants.
Plaintiffs worked from their homes as Telephone Sales Representatives (“TSRs”) selling
advertisements for phone books. To complete sales, Plaintiffs called, faxed, and emailed
current and potential customers to sell the advertising space. Two Plaintiffs assert that
they repeatedly worked between 50 and 70 hours per week; others estimated about 5 hours
of overtime per week. It is undisputed that prior to April 2013, Defendants did not keep
records of the hours worked by its TSRs.
By Order dated February 19, 2014, the Court granted in part Defendants’ motion to
compel the production of certain documents. Among other records, Defendants requested
phone and Internet records showing calls and texts from each Plaintiff’s cell and home

phones, between 7:00 a.m. and 7:00 p.m. Monday through Friday from May 1, 2010; and
the time, date, sender, and receiver of personal emails and internet messages during that
time frame. Defendant contended that these records were relevant to whether Plaintiffs
engaged in personal activities while they claimed they were working for Defendants. The
Court ordered two Plaintiffs (of Defendants’ choosing) to produce these documents for a
two-month period, as a sampling to determine whether such records were probative for
Defendants’ defense.
Defendants now assert that the documents that were produced indeed proved to be
probative, as they demonstrate that the two Plaintiffs engaged in significant personal
activities during time they alleged that they were working for Defendants. And so
Defendants now ask for the same records from all Plaintiffs for the period of their
employment with Defendants. Defendants assert that these records are easy to obtain –
through either a subpoena at no cost or effort from Plaintiffs or a few clicks of a button on
Plaintiffs’ computers. Defendants emphasis that they are not seeking the content of these
communications. Plaintiffs respond that Defendants’ motion is really a motion to
reconsider the Court’s prior ruling and, as such, the motion should be treated with disfavor.
Plaintiffs argue that the material sought is intrusive, burdensome, and irrelevant. They
assert their belief that Defendants discovery efforts are intended to harass Plaintiffs, to
suppress opt-in participation, and to delay this litigation.
DISCUSSION
As the Court noted in its February 19, 2013 Order, “[p]arties may obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim or defenses,” and
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“[r]elevant information need not be admissible at trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).
And “after the proponent of discovery makes a threshold showing of relevance, the party
opposing a motion to compel has the burden of showing its objections are valid by
providing specific explanations or factual support as to how each discovery request is
improper.” Cincinnati Ins. Co. v. Fine Home Managers, Inc., 4:09CV234-DJS, 2010 WL
2990118, at *1 (E.D. Mo. July 27, 2010).
Although Plaintiff argues that the material sought is intrusive, burdensome, and
irrelevant, they do not explain how it is burdensome, nor how it is intrusive, as the content
of the communications at issue is not sought. While the records produced in response to
the Court’s February 19, 2014 Order, hardly “paint a lurid picture” of Plaintiffs’ activities
during time they allegedly spent working, as Defendants state, the Court does believe that
the records do show that the information sought may be relevant to Defendants’ defense.
As Plaintiffs have failed to present a persuasive argument that the discovery sought would
be overly-burdensome or overly-intrusive, the Court will grant Defendants’ motion.
As the Court provided in its February 19, 2014 Order, Plaintiffs may produce any or
all of the information at issue pursuant to a Stipulated Protective Order that the parties
agree upon and submit to this Court for entry.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ renewed motion to compel (Doc.
No. 59) is GRANTED such that within ten days of the date of this Memorandum and
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Order, Plaintiffs shall (1) produce their home phone and cellular phone records for the time
period that they were employed by Defendants, (2) provide the time, date, sender, and
receiver of text messages, personal emails, and Facebook messages sent or received during
their employment with Defendants, and (3) consent to the subpoena of such information
from the applicable service providers for existing messages unavailable to Plaintiffs.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 14th day of May, 2014.

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