Gomez et al v Tyson Foods

Filing 113

ORDER granting in part and denying in part 106 Motion to Compel. On or before August 17, 2012, the plaintiffs shall serve responses or supplemental responses to the defendant's interrogatories and requests for production, without objection, as set forth in this order, or show cause why sanctions should not be imposed against them. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE A. GOMEZ, et al.,
Plaintiffs,
vs.
TYSON FOODS, INC.,
Defendant.

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8:08CV21

ORDER

This matter is before the court on the defendant’s Motion to Compel Plaintiffs to
Answer Interrogatories and Document Requests, or in the Alternative to Dismiss Plaintiffs
for Failure to Respond to Discovery (Filing No. 106). The defendant filed a brief (Filing No.
107) and an index of evidence (Filing No. 108) in support of the motion. The plaintiffs did
not respond.

BACKGROUND
The plaintiffs are current or former employees who worked some time during the
period January 17, 2004, to the present, at the defendant’s Dakota City, Nebraska, meat
processing facility. See Filing No. 1 - Complaint ¶¶ 1-3, 14. The case was filed as a class
action alleging violations of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201,
et seq., and state law regarding pay for pre- and post-production line activities, including
“donning and doffing,” and other activities in connection with job functions. The plaintiffs
seek relief for alleged violations of state and federal wage-and-hour laws, including alleged
failures to pay minimum wage and overtime compensation for uncompensated job-related
activities.
The plaintiffs filed the instant action on January 16, 2008. See Filing No. 1. The
defendant filed an answer on June 4, 2008.

See Filing No. 10.

The matter was

temporarily stayed while the Judicial Panel on Multidistrict Litigation reviewed, then denied,
the defendant’s motion to transfer the case. See Filing Nos. 16 and 18. On November 6,
2008, the court dissolved the stay and the parties were free to begin discovery. See Filing

No. 22. Due to the volume of class certification discovery materials, the parties were
granted several extensions of time to complete such discovery. See, e.g., Filing No. 37.
On March 30, 2011, the court certified the plaintiffs’ class, pursuant the Fed. R. Civ. P. 23,
for those employees who were paid under a “gang time” compensation system in the
Slaughter or Processing departments. See Filing No. 76 - Order. The plaintiffs have not
sought conditional certification of a class in relation to the FLSA collective action claims.
On November 23, 2011, the court entered a progression order scheduling trial for
March 18, 2013. See Filing No. 77. At the parties’ request, on July 12, 2012, the court
extended the deadline for completing discovery to July 30, 2012, and for filing motions for
summary judgment to August 30, 2012. See Filing No. 110 - Text Order.
On June 29, 2012, the defendant filed the instant motion to compel. See Filing No.
106. In the motion, the defendant seeks an order compelling the plaintiffs who have not
yet responded to discovery to provide responses and the plaintiffs who have provided
arguably inadequate discovery to supplement their responses. See Filing No. 107 - Brief.
The parties conferred and the plaintiffs generally agreed to supplement responses,
however supplemental responses were not forthcoming. Id. at 5-6. The plaintiff did not
respond to the motion to compel.

ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . [or] appears reasonably calculated to lead to the discovery
of admissible evidence.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an important tool
for the litigant, and so ‘[r]elevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.’”
WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir.
2011) (alteration in original) (quoting Fed. R. Civ. P. 26(b)(1)). However, “[t]he District
Court does have discretion to limit the scope of discovery.” Credit Lyonnais v. SGC Int’l,
Inc., 160 F.3d 428, 431 (8th Cir. 1998).
Once the requesting party meets the threshold relevance burden, generally “[a]ll
discovery requests are a burden on the party who must respond thereto. Unless the task
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of producing or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.” Continental Ill. Nat’l
Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation
omitted). 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. St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198
F.R.D. 508, 511-12 (N.D. Iowa 2000) (objecting party has the burden to substantiate its
objections). The party resisting discovery has the burden to show facts justifying its
objection by demonstrating that the time or expense involved in responding to requested
discovery is unduly burdensome. See Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 610
(D. Neb. 2001). This imposes an obligation to provide sufficient detail and explanation
about the nature of the burden in terms of time, money, and procedure required to produce
the requested discovery. See id.
Federal Rule of Civil Procedure 33 provides:
An interrogatory may relate to any matter that may be inquired
into under Rule 26(b). An interrogatory is not objectionable
merely because it asks for an opinion or contention that relates
to fact or the application of law to fact, but the court may order
that the interrogatory need not be answered until designated
discovery is complete, or until a pretrial conference or some
other time.
Fed. R. Civ. P. 33(a)(2).
Generally, “[t]he responding party must serve its answers and any objections within
30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). “Each
interrogatory must, to the extent it is not objected to, be answered separately and fully in
writing under oath.” Fed. R. Civ. P. 33(b)(3). If an objection is made, “[t]he grounds for
objecting to an interrogatory must be stated with specificity. Any ground not stated in a
timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R.
Civ. P. 33(b)(4).
Federal Rule of Civil Procedure 34 allows a party to request of another party
production of documents for inspection and copying. Fed. R. Civ. P. 34(a). The rule
applies to such documents that are “in the responding party’s possession, custody, or
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control.” Id. Rule 34(b)(2) further provides that “[t]he party to whom the request is directed
must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2).
The parties are under a continuing obligation to supplement or correct any
disclosure, including an initial disclosure, response to an interrogatory, and response to a
request for production, that is, or becomes, incomplete or incorrect. Fed. R. Civ. P. 26(e).

A.

Failure to Respond
The defendant served selected plaintiffs with interrogatories and requests for

production on May 4, 2012.

See Filing No. 108 - Ex. 1 Defendant’s First Set of

Interrogatories to Designated Plaintiffs and Defendant’s First Request for Production of
Documents to Designated Plaintiffs.1 According to the defendant,
While the Plaintiffs served timely objections on June 4 or 5,
2012, only 17 of them included substantive answers. To date,
Defendant has not received substantive responses for another
13 of the Plaintiffs.
See Filing No. 107 - Brief p. 3 (internal citations to evidence omitted).
The court does not have any information about whether the plaintiffs filed additional
responses or supplemental responses after the defendant filed the instant motion.2
The plaintiffs have not filed a response to the motion to compel, substantiated their
objections, or provided any explanation for failure to timely serve all of their responses as
required under the Federal Rules. Accordingly, the defendant’s motion to compel will be
granted with regard to the plaintiffs with outstanding unanswered interrogatories and
requests for production.

The plaintiffs who have not yet served responses to the

defendant’s interrogatories and requests for production shall provide answers and
responses, without objection, or show cause why sanctions should not be imposed against
them, pursuant to Fed. R. Civ. P. 37(b)(2) and (d).

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The court notes no Certificate of Service was filed for either the requests or responses as is
required by NECivR 33.1(e) and 34.1, however because the plaintiffs do no dispute when the defendant
served the discovery requests, the court will assum e they were served on May 4, 2012.
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No Certificates of Service were filed indicating service of additional responses to date.
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B.

Requests for Production
The defendant served the same three requests for production on each of the

plaintiffs selected to respond to discovery.
Request No. 1: All documents that relate or refer to your
employment with Tyson. This request includes, but is not
limited to, all documents that you created, or which Tyson
Foods gave to you, relating to your employment application,
hiring, orientation, initial training, subsequent training or
meetings of any kind, pay stubs, or notes documenting facts
relevant to the activities at issue.
Request No. 2: All documents that relate to, that plaintiffs
contend support, or that may refute the allegations in the
Complaint.
Request No. 3: Any documents that support or refute Tyson’s
contention that changing clothes and washing at the beginning
or end of each workday at the Dakota City, NE facility has
been excluded from compensable time pursuant to the express
terms or by custom or practice under the bona fide collective
bargaining agreements with United Food and Commercial
Workers Local Union No. 222.
See Filing No. 108 - Ex. 1 p. 15 Requests for Production.
The plaintiffs who responded to these requests gave the following response to each
request:
Information responsive to this request are in the possession of
the Defendant and plaintiff exercises Federal Rule 33(d) to
refer Defendant to its own business records, its own employee
time and attendance system, and Plaintiff’s personnel file in
Defendant’s possession.
See, e.g., Filing No. 108 - Ex. 2 p. 16-17 Responses to Requests for Production.
Further, the defendant states that although eight of the plaintiffs admitted in
interrogatory responses they kept or have pay stubs, these plaintiffs did not produce them
despite the plain language of Request for Production No. 1 seeking any pay stubs
maintained by the individual plaintiffs. See Filing No. 107 - Brief p. 4.
The defendant has met the threshold burden of showing the requests for production
of documents seek relevant discovery. More specifically, the court finds the defendant’s

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request for pay stubs retained by the plaintiffs bears on the plaintiffs’ claims and the
defendant’s defenses in this matter. The pay stubs may contain codes indicating certain
categories of pay for activities at issues in this case. Id. at 10. Accordingly, the burden
shifts to the plaintiffs to substantiate any objections to production. The plaintiffs did not
object to the requests. Rather the plaintiffs reference Fed. R. Civ. P. 33(d) and indicate
the defendant should already have access to the documents sought. To the extent the
plaintiffs’ response can be read as an objection to production of documents, it is overruled.
The plaintiffs do not deny they have documents responsive to the defendant’s
requests. In fact, some of the plaintiffs admit they have, or may have, responsive
documents such as pay stubs. Moreover, an objection based on information that the
moving party is already in possession of documents it seeks to obtain by inspection, is an
insufficient response to requests for production; a party is required to produce documents
in its possession, custody, or control, regardless of whether it believes the requesting party
already has those documents. See Ragan v. Jeffboat, LLC, 149 F. Supp. 2d 1053, 1061
(S.D. Ind. 2001); Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D. Cal. 1996);
Cook v. Rockwell Intern. Corp., 161 F.R.D. 103, 105 (D. Colo. 1995); Fort Washington
Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994) (“[I]t is not a bar to the
discovery of relevant material that the same material may be in the possession of the
requesting party or obtainable from another source.”). Finally, Rule 33(d) does not apply
to the circumstances here because the documents are the information sought, rather than
an answer requiring computation, summarization, or examination of information contained
in documents. See Fed. R. Civ. P. 33(d). Accordingly, the defendant’s motion to compel
will be granted such that the plaintiffs shall, without objection, supplement their responses
to Request for Production Nos. 1 through 3 to provide the discovery requested to the extent
the discovery requested is in each “responding party’s possession, custody, or control.”

C.

Interrogatory No. 2
The defendant served Interrogatory No. 2 on each of the selected plaintiffs.

Interrogatory No. 2 seeks:

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For each position identified in response to Interrogatory No.13
above, identify each item (other than undergarments or street
clothes) that you put on or wore in connection with your work
for Tyson. Identify the activities associated with these items
for which you contend that should have been paid but were not
paid. List each item in the order in which you put on the item
and identify the location at which you put it on before the start
of the shift (i.e., at home, in the locker room, in the cafeteria,
etc).
See Filing No. 108 - Ex. 1 p. 4 Interrogatories.
The plaintiffs responded with the following objection:
Plaintiff objects to this request on the grounds that it is overly
broad. It is vague in its request to “identify the activities
associated with these items”.
Plaintiff objects to this
interrogatory as Defendant has much more accurate and
detailed information regarding what it requires its employees
to do “in connection with their work for Tyson.” Defendant has
in its possession, custody and control all relevant information
on Plaintiff’s job titles, areas worked and dates, equipment
required for such job throughout the entirety of plaintiff’s
employment with Defendant.
See, e.g., Filing No. 108 - Ex. 2 p. 5 Delgadillo’s Response.
The defendant argues, “Interrogatory No. 2 seeks information that is at the heart of
this case–namely, the items that Plaintiffs claim they were required to wear in connection
with their work.” See Filing No. 107 - Brief p. 10. The defendant agrees with the plaintiffs
that it has certain information, however the defendant seeks to understand the plaintiffs’
perspective in an attempt to narrow the issues for trial and determine the amount of time
each plaintiff spent donning and doffing that is actually in dispute. Id. at 11. The
defendant contends it is entitled to discovery about the plaintiffs’ version of the facts absent
a stipulation from the plaintiffs about the items, activities, and timing referenced in the
interrogatory. Id.

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Interrogatory No. 1 states: “Identify each position you held during your em ploym ent with Tyson,
including but not lim ited to: the position title; the dates you held each position; the departm ent and line in
which you held each position; the nam e(s) of your supervisor(s) in each position; and the persons you
supervised, if any, in each position.” See Filing No. 108 - Ex. 1 p. 4 Interrogatories.

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The defendant has met the threshold burden of showing Interrogatory No. 2 seeks
relevant discovery. Information about the items worn and activities engaged in by the
plaintiffs is central to the plaintiffs’ claims and the defendant’s defenses. Accordingly, the
burden shifts to the plaintiffs to substantiate any objections to production. The plaintiffs
objected to the interrogatory based on overbreadth and vagueness. Further, the plaintiffs
indicate the defendant should already have accurate information about the plaintiffs.
Ideally an interrogatory should be a single direct question
phrased in a fashion that will inform the other party what is
requested. . . . Rather general language has been permitted
so long as the interrogatory gives the other party a reasonably
clear indication of the information to be included in its answer.
8B Charles Alan Wright, et al., Federal Practice and Procedure § 2168 (3d ed. 2012).
“Only rarely is it held that an interrogatory is so unclear that the other party cannot
reasonably be required to answer it.” Id.; see Cardenas v. Dorel Juvenile Group, Inc.,
230 F.R.D. 611, 625 (D. Kan. 2005) (noting overly broad requests “require the respondent
either to guess or move through mental gymnastics to determine which of many pieces of
[information] may conceivably contain some detail, either obvious or hidden, within the
scope of the request”). A party who is concerned about uncertainty in the meaning of the
interrogatory may qualify its answer. 8B Wright, et al., Fed. Prac. & Proc. § 2168; see Fed.
R. Civ. P. 33(b)(3).
The court finds the defendant gave adequate guidance to determine the proper
scope of Interrogatory No. 2. The interrogatory includes a sufficiently specific category of
information rather than large or general categories, which may or may not have anything
to do with this lawsuit. Accordingly, the plaintiffs’ objections are overruled. The plaintiffs
shall supplement their responses to include complete answers, without objection.

D.

Interrogatory Nos. 19 and 23
The defendant argues the plaintiff Rick Zimmerman should be required to

supplement his responses to Interrogatory Nos. 19 and 23. See Filing No. 107 - Brief p.
4-5, 12. Interrogatory No. 19 states:
Identify all persons, including but not limited to Tyson
employees, the media, representative of any federal, state, or
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local government agency, and members or representatives of
any labor unions, including but not limited to the United Food
& Commercial Workers International union (both International
and its locals), with whom you, or individuals acting on your
behalf (including your attorneys), have discussed (either
formally or informally) the claims made by you in this lawsuit,
the Complaint, and/or Tyson’s policies, practices, and/or
procedures relating to matters that are the subject of this
lawsuit. To the extent that you, or individuals acting on your
behalf, obtained statements, signed or unsigned, from any of
persons, identify and describe in detail such statements.
See Filing No. 108 - Ex. 1 p. 10 Interrogatories.
Interrogatory No. 23 states:
Identify all facts within your knowledge that support or refute
Tyson’s contention that changing clothes and washing at the
beginning or end of each workday at the Dakota City, NE
facility has been excluded from compensable time pursuant to
the express terms or by custom or practice under the bona fide
collective bargaining agreements with United Food and
Commercial Workers Local Union No. 222?
See Filing No. 108 - Ex. 1 p. 11 Interrogatories.
Rick Zimmerman responded to Interrogatory No. 19 by stating, “Plaintiff objects to
this request on the grounds that it is unduly burdensome, vague, and harassing.” See
Filing No. 108 - Ex. 2 p. 462 Zimmerman’s Response. Rick Zimmerman lodged the same
objection to Interrogatory No. 23 adding, “This request is contentious and calls for legal
conclusions.” Id.
The defendant relies on the plaintiffs’ absence of a relevance objection and fails to
show or argue how Interrogatory No. 19 seeks relevant information. See Filing No. 107
- Brief p. 12. The defendant’s counsel is “at a loss as to how this standard, straight-forward
request for the identity of individuals with whom [the plaintiff] has spoken about this case”
can be objectionable. Id. Further, the defendant states every plaintiff who provided
substantive responses to interrogatories, except Rick Zimmerman, answered Interrogatory
No. 7. See id. at 5, 12.
The court finds the defendant fails to meet its burden of showing Interrogatory No.
19 seeks relevant information. While a complete answer to the interrogatory may provide

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some evidence bearing on the parties’ claims and defenses, the interrogatory as a whole
is overly broad. As written the interrogatory seeks such a broad unqualified sweep of
information to include possible attorney work-product and the plaintiff’s casual passing
conversation with a stranger about the defendant’s policies. The court will not require the
plaintiff to respond to such an overly broad interrogatory and finds it would be unduly
burdensome to attempt to do so. A conscientious plaintiff would be required to “guess or
move through mental gymnastics” to gather the amount of information sought by the scope
of this interrogatory. See Cardenas, 230 F.R.D. at 625. Accordingly, Rick Zimmerman’s
objections are sustained and he need not supplement his response to Interrogatory No.
19.
The court finds Interrogatory No. 23 does seek relevant information and the
defendant gave adequate guidance to determine the proper scope of Interrogatory No. 23.
The interrogatory includes a sufficiently specific category of information rather than large
or general categories, which may or may not have anything to do with this lawsuit.
Additionally, the plaintiff fails to explain why this interrogatory may be unduly burdensome.
Although the interrogatory may seek information about an application of facts to the law,
the plaintiff is in a position to answer the interrogatory without further delay. Accordingly,
the plaintiff’s objections are overruled. The plaintiff Rick Zimmerman shall supplement his
response to include a complete answer, without objection, to Interrogatory No. 23. Upon
consideration,

IT IS ORDERED:
1.

The defendant’s Motion to Compel Plaintiffs to Answer Interrogatories and

Document Requests, or in the Alternative to Dismiss Plaintiffs for Failure to Respond to
Discovery (Filing No. 106) is granted as set forth herein. The motion is denied with respect
to Interrogatory No. 19.
2.

On or before August 17, 2012, the plaintiffs shall serve responses or

supplemental responses to the defendant’s interrogatories and requests for production,
without objection, as set forth below, or show cause why sanctions should not be imposed

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against them. Such sanctions may include dismissal of each of the non-responding
plaintiff’s claims against the defendant pursuant to Fed. R. Civ. P. 37(b)(2) and (d).
a.

The plaintiffs who have not yet served responses to the defendant’s

interrogatories and requests for production shall provide such answers and
responses.
b.

The plaintiffs shall supplement their responses, without objection, to

Requests for Production Nos. 1 through 3.
c.

The plaintiffs shall supplement their responses to include complete

answers, without objection, to Interrogatory No. 2.
d.

The plaintiffs Rick Zimmerman shall supplement his response to

include a complete answer, without objection, to Interrogatory No. 23. Rick
Zimmerman need not supplement his response to Interrogatory No. 19.
DATED this 31st day of July, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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