Fair v. Communications Unlimited Inc. et al

Filing 65

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Fairs motion to compel, [No. 50], is GRANTED. Defendant CUA shall provide, by June 14, 2018, the phone numbers, email addresses, and dates of service for the Technicians identified in their March 8, 2018 letter to Fair and any other Technicians as defined in Fair's complaint. All Defendants shall likewise provide, by June 14, 2018, the names, phone numbers, email addresses, and dates of service of 1099 independent contractors paid by subcontractors who installed cable on Defendants' behalf between September 11, 2014 and September 11, 2017.. Signed by District Judge Rodney W. Sippel on 5/16/18. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TACITA FAIR,
Plaintiff,
v.
COMMUNICATIONS UNLIMITED,
INC, et al.,
Defendants.

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No. 4:17 CV 2391 RWS

MEMORANDUM & ORDER
Plaintiff Tacita Fair moves to compel production of the names, dates of
service, and contact information of Technicians that Defendants employed as
independent contractors. [No. 46]. Three of four Defendants—C.U. Employment,
Inc., Communications Unlimited Contracting Services, Inc., and Martin Rocha—
take the position that they do not employ any independent contractors. Rather, they
argue that any independent contractors are employed by subcontractors. They
further argue that Fair’s request for information on non-party subcontractors’
employees is not relevant or proportional to the needs of her case. Defendant
Communications Unlimited Alabama (CUA) has not responded to the motion to
compel, but it has provided limited contact information for 107 persons employed
as 1099 independent contractors. Because Fair’s effort to obtain contact
information for Defendants’—and their subcontractors’—1099 independent

contractors is relevant and proportional to the needs of her claims, I will grant her
motion to compel.
BACKGROUND
Fair alleges that the Defendants improperly classified her, and a purported
class of other “Technicians,” as independent contractors. She claims that
Defendants therefore failed to pay her and the other Technicians for overtime
hours, in violation of the Fair Labor Standards ACT (FLSA), 29 U.S.C. § 201
et seq, and the Missouri Minimum Wage Law (MMWL) § 290 RSMo. et seq.
Within days of filing her complaint, Fair moved to conditionally certify a class of
Technicians. Fair defined “Technicians” in her complaint as cable installers
employed by Defendants “to install digital cable, telephone, and high-speed data
services . . . on behalf of cable companies and high-speed data service providers.”
[No. 1]. I equitably tolled the claims of these potential opt-in Technicians until
such time as Defendants provide those individuals’ contact information to Fair.
[No. 43]. I also ordered Defendants to provide to Fair the “full names, phone
numbers, email addresses, and dates of service” for their Technicians. [Id.].
Finally, I ordered the parties to submit supplemental briefs on the issue of class
certification, once Defendants had provided that contact information.
Fair now argues that Defendants are withholding the same contact
information. She moves to compel production of the contact information for any

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and all of the remaining Technicians employed by Defendants. Only Defendant
CUA has provided Fair with any names or contact information. On March 8, 2018,
CUA sent a letter with a list of 107 individuals and sixteen (16) corporations that
received 1099s for work performed between September 11, 2014 and September
11, 2017. [No. 51-2]. The list does not include any email addresses or dates of
service for the 1099 recipients. The list provides phone numbers for only seven (7)
individuals on the list. [Id.]. Fair argues that Defendants should have email
addresses for the other listed Technicians. In a prior case, the same Defendants
produced emails from CUA’s owner to its Technicians. See Lonnie Spells v.
Communications Unlimited, Inc., et al., No. 4:15-CV-00747-ERW; [No. 51-5].
Fair also argues that these Defendants collected the Technicians’ contact
information through paperwork at the beginning of their employment. [No. 1 at
Par. 38].
All Defendants except CUA respond that they employ no 1099 independent
contractors and possess no information regarding any Technicians as defined in the
complaint. [No. 57 at 2]. These Defendants argue that Fair is seeking information
on persons employed by their subcontractors. Defendants object that disclosure of
such information is not “relevant to [Fair’s] claim . . . and proportional to the
needs of the case,” as required by Federal Rule of Civil Procedure 26(b)(1).

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[No. 57 at 6]. According to these Defendants, Fair did not make any claims or
allegations concerning the employees of any subcontractors. [No. 57 at 5].
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 26(b)(1) “[p]arties 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 . . . .” When evaluating these
criteria, courts should consider such factors as “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. As applied by federal courts, Rule 26(b) is “liberal
in scope and interpretation.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th
Cir. 1992). The party seeking discovery, however, must still make “[s]ome
threshold showing of relevance.” Id.
ANALYSIS
To resolve this dispute, I must determine whether the names and contact
information of subcontractors’ employees are relevant and proportional to the
needs of Fair’s case. Fed. R. Civ. P. 26(b)(1). With respect to relevance, Fair’s case
concerns whether individuals who installed cable on behalf of Defendants should
have been classified as W-2 employees, instead of 1099 independent contractors.

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“The test of employment under the FLSA is one of economic reality.” Karlson v.
Action Process Serv. & Private Investigations, LLC, 860 F.3d 1089, 1092 (8th Cir.
2017) (quoting Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 301,
(1985)). In determining economic reality, courts often consider “degrees of control,
opportunities for profit or loss, investment in facilities, permanency of relation and
skill required in the claimed independent operation.” Id.
Fair alleges that Defendants employ Technicians within the meaning of the
FLSA, including by installing tracking applications on employees’ smartphones.
[No. 1 at 7-11]. Fair does not explicitly mention the word “subcontractors” in her
complaint. It is clear, however, that the complaint purports to cover all persons that
installed cable on behalf of Defendants, regardless of their specific contractual
relationship. [Id. at 6-7]. To the extent that Defendants use subcontractors to
perform cable installation for their clients, those subcontractors’ 1099 employees
would be included in plaintiff’s definition of Technicians if their relationship to
Defendants satisfies the “economic reality” test. Fair’s request is therefore relevant
to the needs of her case.
Fair’s request is also proportional to the needs of her case, as judged by the
factors listed in Rule 26(b)(1). These factors include the “importance of the
issues,” “relative access to relevant information,” “the parties’ resources,” and
“whether the burden or expense of the proposed discovery outweighs its likely

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benefit.” Id. With respect to the “importance of the issues” factor, Fair’s access to
the requested information is important to parties’ arguments for class certification.
I ordered Defendants to provide Technicians’ contact information for this reason,
allowing the parties to submit supplemental briefs on this issue. [No. 43]. With
respect to the “access to information” factor, Fair provides evidence that
Defendants have reasonable access to the information of at least some of their 1099
workers. Specifically, Fair provides emails between CUA and Technicians
produced in other FLSA suits. [No. 51-5]. Fair also convincingly alleges that
Defendants collected CUA Technicians’ email addresses when they started their
employment with CUA. [No. 1 at Par. 38]. Finally, with respect to the “burden or
expense” factor, Defendants do not present evidence that collecting contact
information for CUA’s 1099 workers or any subcontractor’s 1099 workers would
be especially burdensome or expensive. See Fed. R. Civ. P. Rule 26(b)(1). As a
result, I find that Fair’s request is proportional to the needs of her case.
Accordingly,
IT IS HEREBY ORDERED that Fair’s motion to compel, [No. 50], is
GRANTED. Defendant CUA shall provide, by June 14, 2018, the phone
numbers, email addresses, and dates of service for the Technicians identified in
their March 8, 2018 letter to Fair and any other Technicians as defined in Fair’s
complaint. All Defendants shall likewise provide, by June 14, 2018, the names,

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phone numbers, email addresses, and dates of service of 1099 independent
contractors paid by subcontractors who installed cable on Defendants’ behalf
between September 11, 2014 and September 11, 2017.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 16th day of May, 2018.

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