Petrone v. Werner Enterprises, Inc. et al

Filing 109

MEMORANDUM AND ORDER regarding plaintiff's MOTION to Compel discovery filing 79 . The parties shall meet and confer regarding a proposed protective order. The parties shall submit the proposed protective order to the Court no later than Fe bruary 4, 2013. No later than 10 days after the issuance of a protective order by the Court, defendants must produce a useable copy of the software program used to calculate compensation from driver log entries and a copy of the code that was com piled to create the usable software program. Defendants shall produce a privilege log covering all materials that they refuse to produce on the grounds of attorney client privilege or work product privilege if defendants would otherwise be required to produce such materials. The log may exclude attorney-client communications following the initiation of this litigation. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)

8:11CV401

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
to compel discovery (Filing No. 79).
I. Background
Student drivers in defendants’ (“Werner”) training
program communicate their status using coded messages over a
“Qualcomm” system that connects the driver in the vehicle to
Werner’s home office.

Werner then uses a computer program to

calculate compensation based on the coded entries made by the
student drivers.

Plaintiffs seek the “source code” and a

“forensic copy” of the computer program.

In addition, plaintiffs

request “all e-mails, memorandums, notes, and other documents
which discuss actual or proposed policies and practices of
Defendants which related to the compensability of rest breaks,
sleeping time, and time designated ‘off duty’ for purposes of DOT
regulations.”

Defendants’ original responses refused production
primarily on the basis that discovery on class certification
issues had closed before the request was made.

The Court

subsequently consolidated the FLSA case with the state-law case
and reopened discovery on class certification issues for the
state-law claim with a new deadline of May 7, 2013 (Filing Nos.
83 and 104).

In their brief opposing the motion to compel,

defendants assert that the words “source code” and “forensic
copy” are vague and ambiguous.

In addition, defendants argue

that any information relating to the computer program that
calculates compensation is irrelevant because defendants have
already produced their payroll policies.

Defendants also claim

some of the documents requested have already been produced or are
privileged.

In the alternative, defendants request a protective

order to limit the publication of their proprietary software.
II. Legal Standard
Rule 26(b) states that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense.”

Fed. R. Civ. P. 26(b)(1).

is directed to limit discovery where
(i) the discovery sought is
unreasonably cumulative or
duplicative, or can be obtained
from some other source that is more
convenient, less burdensome, or
less expensive; (ii) the party
seeking discovery has had ample
opportunity to obtain the
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The Court

information by discovery in the
action; or (iii) the burden or
expense of the proposed discovery
outweighs its likely benefit,
considering the needs of the case,
the amount in controversy, the
parties' resources, the importance
of the issues at stake in the
action, and the importance of the
discovery in resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C).

The Rule places additional limits

on the production of electronically stored information, which
would include the computer program at issue here, where there is
a showing that the information is not reasonably accessible
because of undue burden or cost.

Fed. R. Civ. P. 26(b)(2)(B).

III. Analysis
A. Computer Program
Defendants assert that the terms “source code” and
“forensic copy” are ambiguous.

Defendants interpret these

requests to be seeking “information about the computer program
that Werner uses to process student drivers' paychecks and how
Werner identifies through that program the student driver's
compensable time.”

Brief in Opposition, Filing No. 100, 4-5.

Defendants also argue such information is irrelevant in light of
the written compensation policies already produced.

Though

plaintiffs have not taken the opportunity to brief an opposition
to these arguments or suggest a definition of “source code” or
“forensic copy,” defendants’ “interpretation” appears to the
Court to be precisely what plaintiffs are seeking.
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It is also

highly relevant to proving the allegations in the amended
complaint.

Plaintiffs have alleged a systematic calculation of

compensation by the defendants’ computer program in a way that is
inconsistent with the written policies that defendants have
provided.

Consulting the written compensation policies will not

reveal whether plaintiffs’ compensation was calculated correctly
by the software program.

The only way to confirm such an

allegation is to review the workings of the computer program
itself and compare the calculated compensation to Werner’s
policies and the requirements of the relevant wage and hour laws.
Aside from concerns over the protection of proprietary
information, the Court has not been presented with any arguments
that the production of the programs would be unduly costly or
burdensome or that any of the limitations of Rule 26(b)(2)(C)
apply to the requested discovery.

A useable copy of the software

and a copy of the un-compiled source code in the programing
language which the program was written are relevant and must be
produced.

A protective order is appropriate and will be issued

by the Court upon submission of a proposed order prepared by the
parties.
B. Documents Discussing Pay Policies
Defendants point out that plaintiffs have previously
made a substantially similar request for production of documents.
Defendants contend that they have “already produced all documents

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responsive to this request and Werner has no additional documents
that are responsive to this request.”

Plaintiffs have failed to

identify any specific documents that they contend are responsive
but which defendants have refused to produce.

In the absence of

a dispute over a specific document, any further order by the
Court is inappropriate at this time.
Defendants have also claimed that some of these
documents are privileged.

Plaintiffs’ motion suggests that a

privilege log in conformance with Rule 26(b)(5) has not been
provided.

This Court has joined other district courts in

assuming privilege for attorney-client communications that
transpire after the initiation of litigation in situations where
the plaintiff is requesting extensive discovery.

Prism

Technologies, LLC v. Adobe Sys., Inc., 8:10CV220, 2011 WL
5523389, *2 (D. Neb. Nov. 14, 2011) (quoting PaineWebber Group,
Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988, 992 (8th Cir.
1999)).

The Court sees no reason to depart from that assumption

in this case.

However, this does not relieve defendants of their

remaining burden.

To the extent that responsive documents have

not been produced on the basis of privilege, a privilege log must
be provided to plaintiffs so that any dispute about the scope or
appropriateness of the privilege asserted can be reviewed and, if
necessary, contested.

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IT IS ORDERED:
1) The parties shall meet and confer regarding a
proposed protective order.

The parties shall submit the proposed

protective order to the Court no later than February 4, 2013.
2) No later than 10 days after the issuance of a
protective order by the Court, defendants must produce a useable
copy of the software program used to calculate compensation from
driver log entries and a copy of the code that was compiled to
create the usable software program.
3) Defendants shall produce a privilege log covering
all materials that they refuse to produce on the grounds of
attorney client privilege or work product privilege if defendants
would otherwise be required to produce such materials.

The log

may exclude attorney-client communications following the
initiation of this litigation.
DATED this 11th day of January, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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