Walsh v. Packers Sanitation Services, Inc.

Filing 23

AMENDED ORDER - IT IS ORDERED that Defendant's Motion for Expedited Discovery, Scheduling Order, and Continuance of Preliminary Injunction Hearing (Filing No. #9 ) is granted, in part, as set out above. Ordered by Magistrate Judge Susan M. Bazis. (TCL)

4:22-cv-03246-JMG-SMB Doc # 23 Filed: 11/21/22 Page 1 of 4 - Page ID # 371

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

MARTIN J. WALSH, Secretary of Labor, U.S.
Department of Labor;
4:22CV3246
Plaintiff,

vs.

AMENDED ORDER

PACKERS SANITATION SERVICES, INC.,
LTD.,

Defendant.

This matter is before the Court on Defendant’s Motion for Expedited Discovery,
Scheduling Order, and Continuance of Preliminary Injunction Hearing (Filing No. 9.) For the
reasons set forth below, the motion will be granted, in part.
BACKGROUND
On November 9, 2022, Plaintiff filed suit alleging that Defendant has violated the Fair
Labor Standards Act by employing oppressive child labor. Plaintiff sought a temporary
restraining order and preliminary injunction prohibiting Defendant from further use of child
labor and from interfering with Plaintiff’s investigation into the matter. On November 10, 2022,
District Court Judge John Gerrard issued a temporary restraining order (Filing No. 8) prohibiting
Defendant from employing oppressive child labor and ordering Defendant to comply with the
Department of Labor’s lawful demands for information. The order also scheduled a hearing on
the propriety of a preliminary injunction. The hearing was set for November 23, 2022.

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The instant motion was filed on November 16, 2022. On November 17, 2022, Judge
Gerrard continued the hearing on the preliminary injunction to December 7, 2022 and referred
the discovery issue to the undersigned. Judge Gerrard’s order noted that additional evidence at
the hearing on the preliminary injunction is neither required nor expected. He further stated that
the Court has not set an evidentiary hearing and if either party expects to adduce evidence at the
hearing, they should advise the Court why that is necessary.
DISCUSSION
Defendant seeks (1) expedited discovery and (2) a scheduling order with provisions
relating to witness and exhibit lists, including the identification and exchange of witness
information and documents for use at the preliminary injunction hearing. Defendant argues that
without discovery, it will be deprived of the opportunity to adequately respond to the request for
a preliminary injunction. Defendant maintains that Plaintiff seized documents and information
from it by search warrant and it has no means of ascertaining the identities of the employees
Plaintiff is referring to in its pleadings.
Defendant seeks the following discovery in advance of the preliminary injunction
hearing:
•

Request 1: All documents or other evidence that DOL intends to present or to rely upon
at the hearing, including any and all witness statements that DOL plans to present;

•

Request 2: All documents relating to assertions by DOL of an employee or employees
with birthdates supposedly in the 1800s, which DOL has referred to on a number of
occasions;

•

Request 3: Any evidence that supervisors, managers, or other management officials at
PSSI had knowledge of child labor violations;

•

Request 4: Any exculpatory evidence that DOL possesses relating to the claims against
PSSI (e.g., interview statements in which employees say that they know of no child labor
violations).

•

Request 5: Any documents or other information relating to your proof that individuals
referred to in your TRO and Preliminary Injunction Pleadings are not the ages that appear
in their I-9s or other employment documentation.

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•

Interrogatory 1: Please provide the identity of the remaining 19 (or 21) individuals
referred to in your TRO and Preliminary Injunction pleadings who the DOL contends
were employed in violation of the FLSA for whom DOL has not already furnished this
information to Defendant.

•

Interrogatory 2: Please provide the identity of any employees referenced in your TRO
and Preliminary Injunction pleadings (other than those identified in response to
Interrogatory No. 1), or about whom DOL intends to offer evidence of at the preliminary
injunction hearing, who DOL contends were employed in violation of the child labor
provisions of the FLSA.

•

Interrogatory 3: Please identify all individuals DOL contends were employed in violation
of the FLSA’s child labor provisions, including the letter designation by which the
individual is referred to for those who appear in the in the DOL’s TRO and Preliminary
Injunction pleadings if applicable, and any of them who appear in any of the photographs
in DOL’s filings (identifying the specific photograph).

•

Interrogatory 4: Please identify all individuals you will or may call to testify at the
preliminary injunction hearing on behalf of DOL, indicating whether you will or may call
each such person.

(Filing No. 9-1.)

Under Federal Rule of Civil Procedure 26(d), parties normally may not seek discovery
from any source until the parties have conferred as required by Rule 26(f). Fed. R. Civ. P. 26(d).
“However, expedited discovery may be appropriate when injunctive relief is sought because of
the expedited nature of injunctive proceedings.@ Coram, Inc. v. Jesus, No. 8:10CV37, 2010 WL
584000, at *1 (D. Neb. Feb. 11, 2010). “The party requesting expedited discovery must provide a
showing of reasonableness or good cause, taking into account the totality of the circumstances.”
Id.
Considering the totality of the circumstances, the Court will order Plaintiff to produce
certain limited information to Defendant in advance of the preliminary injunction hearing.
However, the Court will not order the degree of discovery requested by Defendant as there has
been an insufficient showing of reasonableness and/or good cause. Defendant is aware of the
information Plaintiff submitted to support its request for a temporary restraining order—which is
presumably much of the same information Plaintiff will rely upon in support of its request for a
preliminary injunction. Plaintiff contends most of the documents it relied upon to determine the
names of the minor children came from Defendant. Defendant has known that it is under
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investigation for child labor violations since at least October 13, 2022, when the warrants were
served. Thus, Defendant has had sufficient time and means to gather information to defend
against these accusations.
Defendant claims it has no way to ascertain the identities of the purported minors because
several gigabytes of documents and information were seized when the search warrant was
executed. However, Defendant is already aware of at least six of the minor children’s names
and, at this point, there is no reason that Defendant needs to know the identities of additional
children identified in the investigation. To succeed on its motion for a preliminary injunction,
Plaintiff will only need to prove one act of unlawful child labor. Therefore, the Court will not
order Defendant to identify additional minors by name or provide personal information about
them. Nor will the Court order Plaintiff to identify whom they spoke to as part of their
investigation. Brennan v. Engineered Prod., Inc., 506 F.2d 299, 302 (8th Cir. 1974) (“There is a
privilege in FLSA enforcement actions which permits the Secretary to withhold the names of
people who have given statements as well as the statements themselves.”).
However, if Plaintiff knows (or suspects) a certain minor is still employed by Defendant
at this time, he has an obligation to identify any such minor to protect him/her against further
harm. (Filing No. 14.) Plaintiff shall also provide Defendant with copies of the documents it
intends to present or to rely upon at the hearing and to identify any witnesses that may testify at
the hearing. This information shall be provided no later than November 29, 2022.
Accordingly,
IT IS ORDERED that Defendant’s Motion for Expedited Discovery, Scheduling Order,
and Continuance of Preliminary Injunction Hearing (Filing No. 9) is granted, in part, as set out
above.
Dated this 21st day of November, 2022.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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