Perez v. KDP Hospitality LLC et al
Filing
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ORDER re 25 Telephone Conference. Plaintiff is not required to produce un-redacted copies of the employee interview statements at this time and Defendants are not permitted to inquire about immigration status at this time. Signed on 5/6/2016 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENRAL DIVISION
THOMAS E. PEREZ,
Plaintiff,
v.
KDP HOSPITALITY, LLC, et al.,
Defendants.
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Case No. 2:15-cv-04293-MDH
ORDER
The parties notified the Court of a discovery dispute pursuant to Local Rule 37.1(a)(2)
and the Court held a telephone conference to hear argument on the disputed issues (Doc. 25).
During the telephone conference, the Court granted Plaintiff’s request to submit additional
briefing on the issues presented. The parties have now submitted additional briefing and the
matter is ripe for review.
The issue before the Court is whether Plaintiff, the Secretary of Labor of the United
States Department of Labor (“Secretary”), should be required to produce un-redacted copies of
employee interview statements to Defendants in this FLSA action. As a part of its initial
disclosures, Plaintiff produced twelve employee interview statements to Defendants that were
taken during the course of the Secretary’s investigation of Defendants. The produced statements
included certain redactions. According to Plaintiff, the redacted information includes identifying
information for the current and former employees of Defendants who provided statements as
well as the immigration status of those individuals. Defendants seek un-redacted copies of the
employee interview statements. Plaintiff states “[i]f Defendants pursue discovery of the redacted
information, the Secretary will seek a protective order, pursuant to Fed. R. Civ. P. 26(c), barring
discovery of the identities of informants and of any individual’s immigration status.”
Plaintiff argues the identities of the individuals interviewed by the Secretary are protected
by the informer’s privilege and Defendants have not established the requisite need for unredacted employee interview statements at this stage of the litigation, see Brennan v. Engineered
Products, Inc., 506 F.2d 299, 302-03 (8th Cir. 1974). Plaintiff argues the immigration status of
the individuals who provided the statements is irrelevant, see Lucas v. Jerusalem Cafe, LLC, 721
F.3d 927, 933-37 (8th Cir. 2013). Defendants argue the informer identities should be produced
because Plaintiff has already disclosed in Appendix A to the Complaint the identities of the eight
employees who Plaintiff alleges were not properly paid, thereby negating the need for the
informer’s privilege as to those individuals, and because fundamental fairness requires that
Defendants have access to the identities in order to adequately prepare for, and conduct, effective
depositions, see Roviaro v. United States, 353 U.S. 53, 60-61 (1957). As to immigration status,
Defendants argue they are not directly seeking information related to immigration status but
rather they are seeking the full statements of the witnesses in order to prepare for effective
depositions. Defendants argue immigration status may be relevant to test the credibility of
witnesses and a protective order will sufficiently protect the interests of the individuals.
Upon review of the relevant case law and the arguments provided by the parties, the
Court finds Plaintiff should not be required to produce un-redacted copies of the employee
interview statements at this time.
The Eighth Circuit has clearly distinguished between a
defendant’s need for information protected by the informer’s privilege during the course of
discovery and the defendant’s need for such information during immediate pretrial proceedings.
Brennan, 506 F.2d at 302-05. The Eighth Circuit has suggested that a defendant usually cannot
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make a sufficient showing during discovery to overcome the informer’s privilege but the
defendant is entitled to know “the charges, dates, names of the underpaid employees, and names
of those persons known to the plaintiff who had information concerning the issues.” Id. at 30203. Here, it appears Defendants were provided all of that information through the Complaint and
the initial Rule 26 disclosures.
Defendants’ argument that the informer’s privilege ceases to apply because Plaintiff
identified certain individuals in Appendix A is rejected. Appendix A lists eight employees who
Plaintiff alleges are entitled to damages for unpaid overtime and minimum wage compensation.
While it is true that “once the identity of the informer has been disclosed to those who would
have cause to resent the communication, the privilege is no longer applicable[,]” Roviaro, 353
U.S. at 60, courts have distinguished between the disclosure of informer identities and the
disclosure of claimant identities in FLSA actions, holding that the former “waives” the privilege
whereas the latter does not. See Solis v. Delta Oil Co., No. 1:11-CV-233, 2012 WL 1680101, at
*4 (S.D. Ohio May 14, 2012) (collecting cases); Solis v. New China Buffet No. 8, Inc., No. 5:10CV-78 CAR, 2011 WL 2610296, at *4 (M.D. Ga. July 1, 2011) (“Defendants’ argument that
Plaintiff waived the informer’s privilege by disclosing the list of employees that may have
knowledge regarding the case and on behalf of whom she was making claims is also a common
and unsuccessful argument. Disclosure of the identity of an informer vitiates the privilege.
Providing a list of employees that may have knowledge pertaining to the case, however, is not
the same as identifying employees that have provided information to the Department of Labor. .
. . [F]or the purposes of the privilege, listing a former employee in Appendix A does not go
nearly far enough in identifying them as an informer to waive the privilege.” (internal citations
omitted)); Chao v. Westside Drywall, Inc., 254 F.R.D. 651, 660 (D. Or. 2009) (“Here, the
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Secretary disclosed the names of Defendants’ employees who, according to the Secretary, were
not properly paid in violation of the FLSA; she did not identify any of these fifty-two individuals
as ‘informants.’ As discussed above, the informant’s privilege covers both the identities of
informants as well as statements given to or obtained in the course of a DOL investigation. The
Secretary’s disclosure does not necessarily waive the informant’s privilege regarding the
claimant’s statements.”). Although it is a sound assumption that some or all of the employees
listed in Appendix A were informers, the term “employee” is not synonymous with the term
“informer” and it is possible that either none, some, or all of the employees listed in Appendix A
were informers. Therefore, the informer’s privilege applies here and it is Defendants’ burden to
overcome that privilege. See generally In re Perez, 749 F.3d 849, 858 (9th Cir. 2014) (“For the
informants privilege to give way, the party seeking disclosure has the burden of showing that its
need for the information outweighs the government's interest in nondisclosure.”).
The Court has reviewed Defendants’ arguments for disclosure and it appears Defendants
seek access to the informant identifying information for the purposes of efficiency, cost, and
impeachment and because Defendants believe such disclosure is necessary to satisfy principles
of fundamental fairness. Similar arguments have been considered and rejected by the courts at
this stage of the litigation. See Brennan, 506 F.2d at 304 (noting employer’s attorney expressed
a fear about untruthful testimony “[y]et, he made no effort prior to his discovery motion to obtain
statements on his own or depose any of his own employees” and holding “[a]ccess for
impeachment purposes should be handled at the pretrial stage”); Hodgson v. Charles Martin
Inspectors of Petroleum, Inc., 459 F.2d 303, 307 (5th Cir. 1972) (“That the statements might lead
to other evidence and that depositions would be expensive show that the statements would
facilitate defendant’s investigation but such facilitation is not a requirement for fundamental
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fairness to defendant.”); Solis, 2011 WL 2610296, at *3 (“The Defendants’ need to depose all
forty-eight former employees listed in Appendix A, or even only those who provided statements,
in order to adequately prepare a defense appears far from pressing. The relevance of the identity
of informers in a FLSA case is often questionable. . . . In any event, courts have generally found
that the cost and inconvenience that Defendants seek to avoid does not tip the balance in favor of
disclosure.” (citations omitted)); Chao, 254 F.R.D. at 660 (noting “[c]ourts since have applied
the [fundamental fairness] exception in FLSA cases, but in doing so have often commented that
the names of the informers are irrelevant to whether the employer properly paid its employees
and otherwise complied with the Act’s requirements” and holding “as to those claimants still
available to Defendants for deposition, they will be required to depose those claimants and work
through with those deponents the redacted statements the Secretary has provided, consistent with
the case decisions.”).1 Defendants have failed to make a showing that this case is outside the
normal situation where the privilege applies.2
1
When faced with an argument to overcome the informer’s privilege in the FLSA context, Judge Clark of the
Western District of Missouri found the privilege was not overcome in that case, explaining that:
[D]efendant’s only step towards discovery has been this broad request for production of documents. Other
discovery techniques may reveal information which will assist the defendant in preparing for trial.
Interrogatories, requests for admissions, and depositions of the plaintiff will surely assist the defendant in
gathering vital information upon which to structure his defense. As discovery progresses and the time of
trial draws closer at hand, the court will upon motion, then balance the needs of the defendant against the
qualified privilege to discern if the cautionary remarks of the Eighth Circuit no longer are applicable.
Marshall v. Domestic Empl. Serv., Inc, No. 77-0279-CV-W-3, 1978 WL 1703, at *2 (W.D. Mo. Oct. 21, 1978).
2
In another prior FLSA case decided by this Court involving informer’s privilege, then Chief Judge Clark held:
It would appear from the file that defendant knows the names of all claimants for whom the government
seeks to recover, the amount claimed and the method used to determine the amount claimed. The defendant
has failed to show that facts in statements given by its employees to plaintiff would be of substantial aid to
it in preparing its defense. It would further appear that plaintiff has furnished defendant with the names of
all persons who have any knowledge of facts concerning the issues in this case. It is this Court's view that
the balance of interests favors the government in maintaining the confidentiality of those employees who
have given it information. The Court believes that this is in accord with the teachings of Brennan v.
Engineer Products, Inc., [75 LC P 33,164] 506 F.2d 299 (8th Cir. 1974).
Donovan v. Roadway Exp., Inc, No. 80-3160-CV-S-A, 1981 WL 2345, at *1 (W.D. Mo. Sept. 29, 1981).
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As to immigration status, the Court finds such information is irrelevant to the issues to be
decided in this FLSA action, see Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933-37 (8th Cir.
2013), and any potential relevance, including to test the credibility of a claimant’s or informer’s
representations, is outweighed by the potential damage and prejudice that would result if
Defendants were permitted to inquire into the claimants’ and informers’ immigration status in
cases such as this. See, e.g., Rosas v. Alice's Tea Cup, LLC, 127 F. Supp. 3d 4, 9-11 (S.D.N.Y.
2015); Reyes v. Snowcap Creamery, Inc., 898 F. Supp. 2d 1233, 1235-36 (D. Colo. 2012)
(collecting cases); Sanchez v. Creekstone Farms Premium Beef, LLC, No. 11-4037-KGG, 2011
WL 5900959, at *3 (D. Kan. Nov. 23, 2011) (collecting cases); Villareal v. El Chile, Inc., 266
F.R.D. 207, 212-14 (N.D. Ill. 2010); Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 50103 (W.D. Mich. 2005). Accordingly, the Court will not allow discovery into immigration status
at this time, see generally Fed. R. Civ. P. 26(b)(1) (discussing proportionality standard), 26(c)(1)
(discussing issuance of protective orders to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense”), and the Secretary need not remove
the redactions on the basis of immigration status at this time.
Based on the foregoing, the Court hereby ORDERS that Plaintiff is not required to
produce un-redacted copies of employee interview statements at this time. The Court may
reconsider this ruling upon a showing by Defendants, either after additional discovery or during
the course of pre-trial proceedings, that Defendants’ need for the redacted and protected
information outweighs the government’s interest in protecting the information.
IT IS SO ORDERED.
Date: May 6, 2016
/s/ Douglas Harpool_______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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