Petrone v. Werner Enterprises, Inc. et al

Filing 430

PRETRIAL ORDER - estimated length of trial is not less than 7 days, not more than 21 days, and probably about 10-14 days. Jury Trial set for 5/16/2017 at 09:00 AM in Courtroom 2, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Chief Judge Laurie Smith Camp. Member Cases: 8:11-cv-00401-LSC-FG3, 8:12-cv-00307-LSC-FG3. Ordered by Magistrate Judge F.A. Gossett. (GJG )

FILED

US DISTRICT ~'!f,.

DISTRICT OF NEB~

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

APR 1 7 2017

OFFICE OF1HE CURI<
Philip Petrone et al., on behalf of
himself and all others similarly
situated,
Plaintiff(s ),
vs.
Werner Enterprises, Inc. and Drivers
Management, LLC,

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Case Nos. 8: l l-cv-401, 8: 12-cv-307

ORDER ON
FINAL PRETRIAL
CONFERENCE

Defendant(s).

A final pretrial conference was held on the 1oth day of April, 2017.
Appearing for the parties as counsel were:
Justin Swidler for Plaintiffs.
Joseph Jones and Elizabeth Culhane, for Defendants.

(A) Exhibits. See attached Exhibit List, noting the objections asserted
by each side. The Court's current deadline for exchanging Designations of
Deposition Testimony and Discovery Responses is April 24, 2017. Because of
this deadline, the parties will not have designated deposition testimony or
discovery responses or noted their objections to the other party's designations
by the April 10, 2017 Pretrial Conference.
Caution: Upon express approval of the judge holding the pretrial conference
for good cause shown, the parties may be authorized to defer listing of
exhibits or objections until a later date to be specified by the judge holding
the pretrial conference. The mere listing of an exhibit on an exhibit list by a
party does not mean it can be offered into evidence by the adverse party
without all necessary evidentiary prerequisites being met.

(B)

Uncontroverted Facts. The parties have agreed that the following

may be accepted as established facts for purposes of this case only:

1. This case involves a class of Plaintiffs consisting of over 52,000 overthe-road truck drivers who worked for Werner Enterprises, Inc. and Drivers
Management, LLC (hereinafter, collectively, "Werner"), in Werner's student driver
program.
2. During the time class members worked for Werner in the student
driver program, the class members rode and drove with an experienced over-theroad truck driver, known as a "driver trainer."
3. Class members recorded their time during the student driver program
by electronically inputting their time using one of four duty statuses in a
Qualcomm computer unit located in the truck to which each class member was
assigned.
4. Class members recorded their time by logging all time on one of four
duty statuses:
o Line 1 - Off-duty;
o Line 2 - Sleeper Berth;
o Line 3 - Driving; and
o Line 4 - On Duty, Not Driving.
5. Class members were paid a flat rate during the time they worked for
Werner as student drivers. The flat rate was supplemented at times by Werner.
6. Werner only considered Line 3 (Driving) and Line 4 (On Duty, Not
Driving) as compensable time.
(C) Controverted and Unresolved Issues. The issues remaining to be
determined and unresolved matters for the court's attention are:

2

Plaintiffs' Statement of the Controverted and Unresolved Issues:

1. Whether class members were on duty continuously for 24 hours or
more when class members were working for Werner as over-the-road drivers.
2. Whether Werner's sleeper berths constituted adequate sleeping
facilities.
3. Whether the time class members spent in Werner's sleeper berths, in
excess of 8 hours per day, while working for Werner as over-the-road truck
drivers, was compensable.
4. Whether class members logged more than 8 hours in sleeper berths
during continuous on-duty shifts lasting 24 hours or more.
5. The amount of damages Werner must pay to the Plaintiff class.
Defendants' Statement of the Controverted and Unresolved Issues:

1. Because drivers are not entitled to wages for time logged on Line 2
(sleeper berth) unless the driver was required to be on duty continuously for 24
hours or more, the jury must decide whether any class member was required to be
on duty continuously for 24 hours or more.
2. The jury must decide whether class members logged more than 8
hours in the sleeper berth during a continuous on-duty shift lasting 24 hours or
more.
3. The jury must decide the total number of continuous 24-hour shifts, if
any, worked by each driver in the class.
4. The jury must determine the total number of sleeper berth hours in
excess of 8, if any, logged by each class member during each 24-hour continuous
shift in which the class member was continuously on duty.
5. The jury must determine what amount is due, if any, to each class
member for time in excess of 8 hours per day logged during a continuous on-duty
shift lasting 24 hours or more.
3

6. The jury must determine what amount is due, if any, to each class
member for certain short rest breaks logged on Line 1 under 29 C.F.R. § 785.18.
7. Whether Plaintiffs have classwide proof of liability for the sleeper
berth claims.
8. Whether Plaintiffs have sufficient proof of damages on the sleeper
berth claims.
9. Whether Plaintiffs have sufficient proof of damages on the short rest
break claims.
10. The Court must determine whether Plaintiffs have classwide proof
that drivers were required to remain on duty for 24 hours or more.
11. The Court must determine whether Plaintiffs' claims can be tried on a
classwide basis.
12. The Court must determine whether Plaintiffs have a claim under the
Nebraska Wage & Hour Act.
13.To the extent class members performed work for which they were not
paid, whether such time was de minimis.
14.To the extent class members performed work for which they were not
paid, whether Werner had knowledge that class members were performing
uncompensated work.
15. Whether class members' claims are barred by the doctrines of
estoppel, waiver, laches and/or unclean hands, to the extent claims members
recorded their time in violation of Werner's policies for logging time.
16. Whether Plaintiffs can call Dr. Robert Topel as a witness.

Pending Motions:
a)

Werner's Motion to Clarify the Court's February 2, 2017 Order.

b)
c)

Werner's Motion in Limine.
Plaintiffs' Motion in Limine.

4

(D) Witnesses. All witnesses, including rebuttal witnesses, expected to
be called to testify by plaintiff, except those who may be called for
impeachment purposes as defined in NECivR 16.2(c) only, are:
1.

2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Phillip Petrone, Representative Plaintiff (to be contacted through
Plaintiffs' counsel);
Stewart Fisher, Representative Plaintiff (to be contacted through
Plaintiffs' counsel);
Brian Pankz, Representative Plaintiff (to be contacted through
Plaintiffs' counsel);
Jasbir Singh, Representative Plaintiff (to be contacted through
Plaintiffs' counsel);
Rickey Smiley, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Gregory Proctor, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Joseph Gambino, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Tamara Lindsey, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Craig Campbell, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Sterling Davidson, opt-in Plaintiff (to be contacted through Plaintiffs'
counsel);
Mary Kaye Howe;
Jaime Maus;
Steve Tisinger;
Jim Mullen;
Richard Kroon; Data Analyst Expert, 75 Rowland Way, Suite 250,
Novato CA 9495;
5

16.

All witnesses identified by Defendants in their witness list (the only
witness identified not explicitly listed by Plaintiffs is Robert Topel).

[List names and complete addresses of all persons who will testify in person
only. Such list shall identify those witnesses the party expects to be present
and those witnesses the party may call if the need arises, and shall also
identify, by placing an "(F)" following the name, each witness whose only
testimony is intended to establish foundation for an exhibit for which
foundation has not been waived.

All witnesses expected to be called to testify by Defendants, except those
who may be called for impeachment purposes as defined in NECivR 16.2(c)
only, are:
1.
Jaime Maus, Omaha, Nebraska (to be contacted through defense
counsel);
Defendants may also call the following witnesses ifthe need arises:
1.

Phillip Petrone, class representative;

2.

Stewart Fisher, class representative;

3.

Brian Pankz, class representative;

4.

Jasbir Singh, class representative;

5.

James Mullen, Omaha, Nebraska (to be contacted through defense
counsel);

6.

Mary Kaye Howe, Omaha, Nebraska (to be contacted through defense
counsel);

7.

Steve Tisinger, Omaha, Nebraska (to be contacted through defense
counsel);

6

8.

Dr. Robert Topel, Ph.D., Senior Consultant, Charles River Associates,
One South Wacker Drive, 34th Floor, Chicago, Illinois 60606;

9.

Any witness whose testimony is identified in Werner's deposition
designations.

10.

Any witness necessary to establish foundation for any document.

11.

Any witness listed by Plaintiff and not objected to by Defendants.

It is understood that, except upon a showing of good cause, no witness
whose name and address does not appear herein shall be permitted to testify over
objection for any purpose except impeachment. A witness whose only testimony is
intended to establish foundation for an exhibit for which foundation has not been
waived shall not be permitted to testify for any other purpose, over objection,
unless such witness has been disclosed pursuant to Federal Rule of Civil Procedure
26(a)(3). A witness appearing on any party's witness list may be called by any
other party.

(E)

Expert Witnesses' Qualifications.

Experts to be called by plaintiff and their qualifications are:
Richard Kroon. See attached curriculum vitae for qualifications.

Experts to be called by defendant and their qualifications are:
Dr. Robert Topel, Ph.D. See attached curriculum vitae for qualifications.

(F)

Voir Dire. Counsel have reviewed Federal Rule of Civil Procedure

47(a) and NECivR 47.2(a) and suggest the following with regard to the conduct of
juror examination:

7

The parties request that each side's attorneys be given 60 minutes to
question potential jurors.
(G) Number of Jurors. Counsel have reviewed Federal Rule of Civil
Procedure 48 and NECivR 48.1.
Defense counsel suggests that this matter be tried to a jury composed of
12 members.
Plaintiffs' counsel suggests that this matter be tried to a jury composed
of 8 members.
(H) Verdict. The parties [will] [will not] stipulate to a less-thanunanimous verdict. (If applicable), the parties' stipulation is: N/A
(I)
Briefs, Instructions, and Proposed Findings.
Counsel have
reviewed NECivR 39.2(a), 51.1 (a), and 52.1, and suggest the following schedule
for filing trial briefs, proposed jury instructions, and proposed findings of fact, as
applicable:
Deadline to submit trial briefs, proposed jury instructions, and proposed
findings of fact:

Friday, May 12, 2017.

(J) Length of Trial. Counsel estimate the length of trial will consume
not less than 7 day(s), not more than 21 day(s), and probably about 10-14
day(s).
(K)

Trial Date. Trial is set for Tuesday, May 16, 2017.

8

BY:

/s/ Justin L. Swidler
Justin L. Swidler (PA #205954)
SWARTZ SWIDLER, LLC
1101 Kings Highway N., Suite 402
Cherry Hill, NJ 08034
Phone: [phone]
Fax: [phone]
[e-mail]
ATTORNEYS FOR PLAINTIFFS

BY:

/s/ Joseph E. Jones
Joseph E. Jones, #15970
Elizabeth A. Culhane, #23632
FRASER STRYKER PC LLO
500 Energy Plaza
409 South 17th Street
Omaha, NE 68102-2663
[phone]
jj [e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANTS
BY THE COURT:

1646454vl4

9

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA

PHILLIP PETRONE, et al.

v.

WERNER ENTERPRISES, INC., et al.

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LIST OF EXHIBITS
Case Number:

11-CV-401
12-CV-307

Courtroom Deputy:
Court Reporter:

Trial Date(s): Trial Starts MAY 16, 2017

R

PLF

DF

DESCRIPTION

OFF

OBJ

c
v
D

N
0
T
R

c
v
D

1

2

3

WERNER DRIVERS
HANDBOOK 2008, WRNPETOOO 1-0262

QUALCOMM MESSAGES
FOR PHILLIP PETRONE,
WRN-PET0388-0528
PAYSTUBS FOR PHILLIP
PETRONE, WRN-PET0529,
0531,0533

R, 0 (unnecessarily
cumulative and/or
likely to result in
juror confusion,
to the extent
Plaintiffs intend to
offer the entire
Handbook)
R, 0 (unnecessarily
cumulative and/or
likely to result in
juror confusion, to
the extent Plaintiffs
intend to offer all
messages)

R, 0 (cumulative)

DATE

4

5

6

7

8

EXCERPT OF
scplogrcCSV14.CSV
showing Phillip Petrone
(484852) Driver Logs,
ColumnsA:K
PAYSTUBSFOR
STEWART FISHER, WRNPET1247-1258

H, 0 (Foundation)

R, 0 (cumulative)
R, 0 (unnecessarily
cumulative and
likely to result in
juror confusion, to
the extent Plaintiffs
intend to offer all
messages)

QUALCOMM MESSAGES
FOR STEWART FISHER,
WRN-PET1259-1912
EXCERPT OF
scplogrcCSV6.CSV showing
Stewart Fisher (450410)
Driver Logs, Columns A:K
PAYSTUBS FOR BRIAN
P ANKZ, WRN-PET20092020

11

R, 0 (cumulative)
R, 0 (unnecessarily
cumulative and/or
likely to result in
juror confusion, to
the extent Plaintiffs
intend to offer all
messages)

QUALCOMM MESSAGES
FOR BRIAN PANKZ,
WRN-PET2021-2647
EXCERPT OF
scplogrcCSV12.CSV
showing Brian Pankz
(469046) Driver Logs,
ColumnsA:K
PAYSTUBS FOR JASBIR
SINGH, WRN-PET29572974

12

H, 0 (Foundation)

QUALCOMM MESSAGES
FOR JASBIR SINGH,
WRN-PET2975-3577

9

10

H, 0 (Foundation)

R, 0 (cumulative)
R, 0 (unnecessarily
cumulative and/or
likely to result in
juror confusion, to
the extent Plaintiffs
intend to offer all
messages)

2

13
14-1
14-2
14-3
14-4
14-5
15-1
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15-3
15-4
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15-7
15-8
15-9

EXCERPT OF
scplogrcCSVl .CSV showing
Jasbir Singh (435431) Driver
Logs, Columns A:K
prpchkdtcsvl .csv or any
excerpt thereof
prpchkdtcsv2.csv or any
excerpt thereof
prpchkhd.csv or any excerpt
thereof
prpchkdt 031814.csv or any
excerpt thereof
prpchkhd 031814.csv or any
excerpt thereof
scplogrcCSVl .csv or any
excerpt thereof
scplogrcCSV2.csv or any
excerpt thereof
scplogrcCSV3.csv or any
excerpt thereof
scplogrcCSV4.csv or any
excerpt thereof
scplogrcCSV5.csv or any
excerpt thereof
scplogrcCSV6.csv or any
excerpt thereof
scplogrcCSV7.csv or any
excerpt thereof
scplogrcCSV8.csv or any
excerpt thereof
scplogrcCSV9.csv or any
excerpt thereof
scplogrcCSVl O.csv or any
excerpt thereof

H, 0 (Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)

15-10
15-11
15-12
15-13
15-14

scplogrcCSVl 1.csv or any
excerpt thereof
scplogrcCSV12.csv or any
excerpt thereof
scplogrcCSV13.csv or any
excerpt thereof
scplogrcCSV14.csv or any
excerpt thereof
3

15-15
15-16
15-17
15-18
15-19
15-20
15-21
15-22
15-23
15-24
15-25
15-26
15-27
15-28
15-29
15-30
15-31
15-32
16-1

scplogrcCSVl 5.csv or any
excerpt thereof
scplogrcCSVl 6.csv or any
excerpt thereof
scplogrcCSVl 7 .csv or any
excerpt thereof
scplogrcCSV18.csv or any
excerpt thereof
scplogrcCSVl 9.csv or any
excerpt thereof
scplogrcCSV20.csv or any
excerpt thereof
scplogrc 031814.000.csv or
any excerpt thereof
scplogrc 031814.001.csv or
any excerpt thereof
scplogrc 031814.002.csv or
any excerpt thereof
scplogrc 031814.003 .csv or
any excerpt thereof
scplogrc 031814.004.csv or
any excerpt thereof
scplogrc 031814.005.csv or
any excerpt thereof
scplogrc 031814.006.csv or
any excerpt thereof
scplogrc 031814.007 .csv or
any excerpt thereof
scplogrc 031814.008.csv or
any excerpt thereof
scplogrc 031814.009.csv or
any excerpt thereof
scplogrc 031814.011.csv or
any excerpt thereof
scplogrc 031814.csv or any
excerpt thereof

R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,*H,O
(Foundation)
R,H,O
(Foundation)

SOl-00 Create All Tables.sq!
S02-00 Create Table
Indexes. sq I

R,H,O
(Foundation)
R,H,O
(Foundation)

16-2
16-3

S03-00-b Add New
Fields.sqI
4

16-4
16-5

16-6
16-7
16-8
16-9
16-10
16-11
16-12
16-13

16-14
16-15
16-16
16-17
16-18
16-19
16-20
16-21
16-22
16-23
16-24

S04-01-1 Populate
tbl SCPLOGRC Split.sq!
S05-0l-2 Adjust Elapsed
Time.sq!
S06-01-3 Flag records that
should not be counted as
breaks.sqI

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

S07-01-4 Flag issue records
that will be excluded.sq!
S08-0l-5 Flag Line 2 over
72 hours.sq!
S09-07-a Create Sequential
Analysis Table.sq!
S 10-07-b Analyze
Sequential Records.sq!
S 11-07-c Analyze Sequential
Records.sq!
S 12-07-d Determine
Sequential. sqIf
Sl3-07-e Flag affected
records.sq I
S 14-17-a Create Sequential
Analysis Table Line 2
Only.sqI
Sl5-l 7-b Analyze
Sequential Records.sq!
S 16-17-c1 Determine
Sequential. sqI
S 17-1 7-c2 Determine
Sequential.sqI
S 18-17-d Flag affected
records.sq I

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

S 19-08-a Create Sequential
Analysis Table 3-4.sql
S20-08-b Analyze
Sequential Records 3-4.sql
S2 l-08-c Determine
Sequential.sqI
S22-08-d Flag affected
records.sq!
S23-02 Populate CALC
tables.sq I
S24-03 Calculate 15 minutes

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
5

(Foundation)

damages.sq}

16-27

S25-03-2 Adjust 15 minutes
damages.sq}
S26-04 Populate
tbl_ CALC_ DailyTimeLine 1
and2.sql
S27-04-2 Adjust sleeper
damages.sq}

16-28

S28-04-3 Flag Line 2 with
not 3&4 time in week.sq}

16-25

16-26

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
16-29

16-32

S29-08 - QA Checks.sq}
00-Create New Split
Table.sq I
01-1 Populate
tbl_SCPLOGRC_ Split_New
.sql
01-2 Adjust Elapsed
Time New.sq}

16-33

01-3 Flag Records.sq}

(Foundation)

16-34

01-4 Check Consecutive.sq}
01-5 Check Consecutive
Add.sqI
01-6 Determine Sequential
12.sql

(Foundation)

16-30

16-31

(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
R,H,O
16-35
16-36

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
16-37

16-40

01-7 Determine Max.sq}
01-8 Finish Max
Determine. sqI
01-9 Flag affected
records.sq}
2-0 Append New Data to
Old Tables.sq}

16-41

Append Log Data.sq}

(Foundation)

16-42

Append Pay Data.sq}

(Foundation)

16-43

Data Check l .sql

(Foundation)

16-44
16-45

Data Check 2.sql
Data Check 3.sql

(Foundation)

16-38
16-39

(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
(Foundation)

R,H,O
R,H,O
R,H,O
R,H,O
R,H,O
6

(Foundation)
16-46
16-47
16-48
16-49

17
18

Issue 0 I -Overlapping
Dates.sq}
Issue 02-Start DateTime
after End DateTime.sql
Issue 03-Flag Large 3 & 4
Lines.sq I
Issue 04-Elapsed Time do
not match.sq}

R,H,O
(Foundation)
R,H,O
(Foundation)
R,H,O
(Foundation)
R,H,O
(Foundation)
R,H,O
(Foundation,
Cumulative, Rule
403)
R,H,O
(Foundation,
Cumulative, Rule
403)
R, H, 0 (Werner's
pending Motion in
Limine; April, 2016
order dismissing
certain clams with
prejudice; February,
2017 dismissing
certain claims with
prejudice; Rule 403)
R, H, 0 (Werner's
pending Motion in
Limine; July, 2013
order declining to
certify certain
claims; April, 2016
order dismissing
certain clams with
prejudice; February,
201 7 dismissing
certain claims with
prejudice; Rule 403)
R, H, 0 (Werner's
pending Motion in
Limine; July 2013
order declining to
certify certain
claims; April, 2016
order dismissing
certain clams with
prejudice; February,

August 1, 2014 Report of
Richard Kroon and
accompanying spreadsheet
January 12, 2015 Reply
Report by Kroon

19

Defendants' Answer to
Second Amended
Complaint, 1 l-cv-401, Doc.
No. 93

20

Defendants' Answer to
Plaintiffs' Class Action
Complaint, 12-cv-307, Doc.
No. 14

21

Defendants' Answer to
Plaintiffs' Amended
Collective Action
Complaint, 11-cv-401, Doc.
No. 37
7

22

Department of Labor Field
Operations Handbook,
Chapter 14

23

Department of Labor Field
Operations Handbook,
Chapter 31

24

29 C.F.R. § 785.18

25

29 C.F.R. § 785.21

26

29 C.F.R. § 785.22

27

Nebraska Wage & Hour Act

28

Nebraska Wage Payment
Collection Law

29

29 C.F.R. § 516

30

201 7 dismissing
certain claims with
prejudice; Rule 403)
R,H,O
(Foundation; Court's
February, 2017
Order; Werner's
Pending Motion in
Limine, Rule 403)
R,H,O
(Foundation; Court's
February, 2017
Order; Werner's
pending Motion in
Limine, Rule 403)
R,H,O
(Foundation; and
Werner's pending
Motion in Limine)
R,H,O
(Foundation;
Werner's pending
Motion in Limine;
Rule 403)
R,H,O
(Foundation,
Werner's pending
Motion in Limine)
R, H, 0 (Werner's
pending Motion in
Limine, Rule 403)
R,H,O
(Foundation; Court's
April, 2016 order
dismissing
Plaintiffs' NWPCA
claims; Werner's
pending Motion in
Limine, Rule 403)
R,H,O
(Foundation;
Werner's pending
Motion in Limine;
Rule 403)
R,H,O
(Foundation; Court's
February, 2017
Order; and Werner's

Part 395 Hours of Service of
Drivers Guidance issued by
theFMCSA
8

31

February 17, 1964 DOL
Opinion Letter, 25 BA 407 .8

32

October 6, 1965 DOL
Opinion Letter, 25 BA 407 .6

33

November 18, 1966 DOL
Opinion Letter, 25 BA 302.5

34

pending Motion in
Limine)
R,H,O
(Foundation; Court's
February, 2017
Order; and Werner's
pending Motion in
Limine; Rule 403)
R,H,O
(Foundation; Court's
February, 2017
Order; Werner's
pending Motion in
Limine; and Rule
403)
R,H,O
(Foundation; Court's
February, 2017
Order; Werner's
pending Motion in
Limine; and Rule
403)

Train the Trainer Manual,
WRN-PET0263-0294

35

36

37

38

39

R, Rule 403
R,H,O
(Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine; and Rule
403)

Affidavit of John Steele,
submitted on behalf of
Werner during IRS Appeal,
WRN-BAOUCH8918-8926
W emer Company Service
Announcement: Hours of
Service Compliance, 11-cv401, Doc. No. 338-31
Exhibit 2 to Deposition of
May K. Howe, November 6,
2013
Student Driver Minimum
Wage Document, WRNPET620-621
Class List provides names
and Employee ID numbers
for class member, or any
excerpt thereof

R, H, Rule 403
R,H,0
(Foundation)

R, H, Rule 407
R,H,O
(Foundation, Rule
403)
9

40

Defendants' Answers to
Interrogatories

41

R, 0 (Rule 403;
vague because
Defendants served
several sets of
Answers to
Interrogatories and
Plaintiff has not
identified which set
or which
Interrogatory
Answers Plaintiff
intends to offer as
Exhibit 40.
Accordingly,
Defendant reserves
all specific
objections to the
content of any
particular
Interrogatory
Answer until
Plaintiffs clarify
which Interrogatory
Answers are
referred to herein.).
R, H, 0 (Rule 403
and vague:
Defendants served
several Responses
to Requests for
Production and
Plaintiffs have not
identified the
specific Responses
referred to in
Exhibit 41.
Accordingly,
Defendants reserve
all objections to the
specific contents of
any Response until
Plaintiffs clarify
which Responses
are referred to
herein. Also, to the
extent Plaintiffs
intend by reference
to this Exhibit to

Defendants' Responses to
Plaintiffs' Requests for
Documents
IO

42

43
44

include all
documents
produced with any
Responses served
by Defendants,
Defendants reserve
all objections to
those documents
because Plaintiffs
have not specifically
identified which
documents enclosed
with Defendants'
various Responses
are referred to as
Exhibit 41.
R, H, 0 (As set
forth in Wemer's
pending Motion in
Limine, Plaintiffs
did not serve any
Requests for
Admission on
Defendants and
Plaintiffs have not
produced a copy of
the "Responses"
referred to as
Exhibit 42)
R, H, 0 (The
portions of the
deposition that
Plaintiffs intend to
use must be
designated in
Plaintiffs' discovery
designations and
should be read into
the record; to the
extent the transcript
is marked as an
exhibit, it should be
for record purposes
only and should not
be shown to the
jury)
R, H, 0 (The
portions of the

Defendants' Answer to
Plaintiffs' Requests for
Admissions

Deposition Transcript of
30(b)(6) Designee Mary K.
Howe, April 23, 2013, and
all attached exhibits thereto
Deposition Transcript of
30(b)(6) Designee Jamie
11

deposition that
Plaintiffs intend to
use must be
designated in
Plaintiffs' discovery
designations and
should be read into
the record; to the
extent the transcript
is marked as an
exhibit, it should be
for record purposes
only and should not
be shown to the
jury)
R, H, 0 (The
portions of the
deposition that
Plaintiffs intend to
use must be
designated in
Plaintiffs' discovery
designations and
should be read into
the record; to the
extent the transcript
is marked as an
exhibit, it should be
for record purposes
only and should not
be shown to the
jury)
R, H, 0 (The
portions of the
deposition that
Plaintiffs intend to
use must be
designated in
Plaintiffs' discovery
designations and
should be read into
the record; to the
extent the transcript
is marked as an
exhibit, it should be
for record purposes
only and should not
be shown to the

Maus, April 23, 2013, and
all attached exhibits thereto

45

Deposition Transcript of
30(b)(6) Designee Jim
Mullen, April 23, 2013, and
all attached exhibits thereto

46

Deposition Transcript of
30(b)(6) Designee Steve
Tsinger, April 23, 2013, and
all attached exhibits thereto
12

jury)

47

Deposition Transcript of
30(b)(6) Designee Mary K.
Howe, November 6, 2013,
and all attached exhibits
thereto

R, H, 0 (The
portions of the
deposition that
Plaintiffs intend to
use must be
designated in
Plaintiffs' discovery
designations and
should be read into
the record; to the
extent the transcript
is marked as an
exhibit, it should be
for record purposes
only and should not
be shown to the
jurv)

48

Werner 2013 Driver
Handbook (WRN-PET263294)

R,H,0 (Defendants'
pending Motion in
Limine)

49

Driver Job Description
WRN-PET0617

R,H

50

Train the Trainer Guidelines,
WRN-PET0308

R,H

51

Acknowledgment of
Employment in Nebraska,
WRN-PET0329

R, H, Rule 403

52

53

54
55

Acknowledgment of
Employment in Nebraska,
WRN-PET1200
Acknowledgment of
Employment in Nebraska,
WRN-PET2804
Acknowledgment of
Employment in Nebraska,
WRN-PETl 963
Affidavit of Steve Tisinger,
l 1-cv-401, Doc. No. 10-4

R, H, Rule 403

R, H, Rule 403

R, H, Rule 403
R,H
13

57

HOS Final Rule, 1 l-cv-401,
Doc. No. 323-4
Min. Wage Review and
Corresponding Driver Logs
for Phillip Petrone (WRNPET550, 383-385)

58

H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)

27 Fed. Reg. 3553

56

59

60
61

H, R, Rule 407
H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)
H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)

February 3, 1981 Wage and
Hour Administrator's
Advisory Opinion Letter
Plaintiffs' Second Amended
Complaint, 11-cv-401, Doc.
No. 84

R,H

Affidavit of Jaime Maus, 11cv-401, Doc. No. 64-1

62

June 30, 1988, Wage and
Hour Administrator's
Advisory Opinion Letter

63

70 Fed. Reg. 49, 978, 50,047

64

R,H
H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)
H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)
H, R, 0 (Rule 403;
Foundation; Court's
February, 2017
Order; and Werner's
Pending Motion in
Limine)

September 30, 1964 Wage
and hour Administrator's
Advisory Opinion Letter
14

65

66

Printed Driver Logs relating
to Named Plaintiffs (Def.
Ex.326,335,342,348)
Minimum Wage Review
and Paystubs for Named
Plaintiffs (Def. Ex. 328, 333,
340, 346)
Portions of Werner's
Employment Records for
Plaintiff Philip Petrone
(Def. Ex. 325, WRNPET000327-332, 335)

H, 0 (Foundation)
R,H,O
(Foundation,
Cumulative, Rule
407)

R,H,O
(Foundation,
Cumulative, Rule
403)

67
Portions of Werner's
Employment Records for
Plaintiff Stewart Fisher
(Def. Ex. 331, WRN-PET
1187-1188, 1200, 1210)

R,H,O
(Foundation,
Cumulative, Rule
403)

68
Portions of Werner's
Employment Records for
Plaintiff Brian Pankz
(Def. Ex. 338, WRN-PET
1953-1957, 1963-1964, 19681973)

R,H,O
(Foundation,
Cumulative, Rule
403)

69
Portions of Werner's
Employment Records for
Plaintiff Brian Pankz
(Def. Ex. 344, WRN-PET
2767,2772-2776,2798,28012805,2840,2842-2843,2845)
70

All discovery and
depositions designated by
Plaintiffs

15

R,H,O
(Foundation,
Cumulative, Rule
403)
Defendants reserve
all objections
because the parties
have not yet
exchanged
discovery and
deposition
designations. (See
Filing 328).

Defendants reserve
all objections
because the parties
have not yet
exchanged
discovery and
deposition
designations. (See
Filing 328).
Defendants object to
the extent Plaintiff
intends to offer a
demonstrative
exhibit referencing
any exhibit listed
above to which
Defendants have
objected
Defendants reserve
all objections to
unidentified
foundational
exhibits until those
exhibits are
specifically
identified and
produced to
undersigned counsel
for inspection.
To the extent
Defendants listed an
exhibit but do not
offer it at trial,
Defendants reserve
all objections to
Plaintiffs' efforts to
introduce that
exhibit until the
specific exhibit at
issue is identified.

All discovery and
depositions designated by
Defendants

Demonstrative Exhibits
consisting of summations,
enlargements, call-outs, and
presentations of any of the
exhibits listed herein.

Any additional exhibits
necessary to establish
foundation

Plaintiffs reserve the right to
offer any and all exhibits
listed or offered by
Defendants not object to by
Plaintiffs

16

OBJECTIONS
R: Relevancy
H: Hearsay
A: Authenticity
0: Other (specify)

*

Defendants object on relevance to Plaintiffs' Exhibits 14-1 through 15-32 to the extent those
exhibits reference any information regarding drivers who have opted out of the Rule 23(b )(3) class
action.
1647948v4

17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
)
)
Plaintiff,
)
)
)
vs.
)
)
WERNER ENTERPRISES, INC.
)
d/b/a WERNER TRUCKING and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
~~~~~~~~~-)
)
)
PHILIP PETRONE, et al.,
)
Plaintiffs,
)
)
)
vs.
)
)
WERNER ENTERPRISES, INC.
)
d/b/a WERNER TRUCKING and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.

PHILIP PETRONE,

CIVIL ACTION: 8:11-cv-00401

DEFENDANTS' EXHIBIT LIST

CIVIL ACTION: 8:12-cv-00307

COME NOW the Defendants, Werner Enterprises, Inc. and Drivers Management,
LLC (collectively, "Werner"), by and through their counsel of record and pursuant to
1J3.C of the Court's Amended Final Progression Order (Filing 402), and set forth the
following list of exhibits which Werner expects to introduce during the trial of this matter,
EACH SUBJECT TO OFFER:
Trial Start Date: May 16, 2017
EXHIBIT NO.
PLF

DF

301

DESCRIPTION

Plaintiffs' Collective Action
Complaint, September 12, 2011
(Filing 1, Case No. 11-cv- 401)

OFF

OBJ

R (403), H,

0
(foundation)

RCVD

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

302

303

304

OFF

DESCRIPTION

Plaintiffs' Class Action Complaint,
filed in Pennsylvania State Court,
October 19, 2011
Plaintiffs' Amended Collective Action
Complaint, December 21, 2011
(Filing 33, Case No. 11-cv-401)
Plaintiffs' Class Action Complaint,
August 28, 2012 (Filing 1, Case No.
12-cv-307)

305

Plaintiffs' Reply Brief in Support of
Plaintiff's Motion for Conditional
Certification Pursuant to the FLSA
(Filing 65, Case No. 11-cv-401)

307

Plaintiffs' Reply Brief in Support of
Motion for Class Certification (Filing
49, Case No. 12-cv-307)

RCVD

R (403), H,

0
(foundation)
R (403), H,

0
(foundation)
R (403), H,

0
(foundation)

Plaintiffs' Second Amended
Collective Action and Class Action
Complaint, October 11, 2012 (Filing
84, Case No. 11-cv-401)

306

OBJ

/
R (401, 403)
H,O,
(foundation)

R (401, 403)
H,O,
(foundation)

308

Plaintiffs' Brief in Opposition to
Werner's Motion to Compel (Filing
218, Case No. 11-cv-401)

R (401, 403)
H,O,
(foundation)

309

310

Plaintiffs' Brief in Support of Motion
for Partial Summary Judgment as to
Liability (Filing 322, Case No. 11-cv401)
Portions of June, 2008 Werner
Driver Handbook
(WRN-PET000001-262)

2

R (401, 403)
H,O,
(foundation)

/

NOT
RCVD

DATE

EXHIBIT NO.
PLF

DF

311

DESCRIPTION

OFF

Portions of Federal Motor Carrier
Safety Regulations Pocketbook
(WRN-PET000670-952)

OBJ

RCVD

R (401, 403)

H,O
(foundation)

312

Pay Log Data Spec Document,
produced on August 30, 2013

H,O
(foundatio
n)

313

Portions of scplogrc.csv (CSV files
produced on August 30, 2013)

1006
(Complete
ness)

314

Portions of prpchkhd.csv (CSV files
produced on August 30, 2013)

1006
(Complete
ness)

315

Portions of prpchkdt.csv (CSV files
produced on August 30, 2013)

1006
(Complete
ness)

316

Portions of scplogrc.csv (CSV files
produced on March 24, 2014)

1006
(Complete
ness)

317

Portions of prpchkhd.csv (CSV files
produced on March 24, 2014)

1006
(Complete
ness)

318

Portions of prpckdt.csv (CSV files
produced on March 24, 2014)

1006
(Complete
ness)

319

Werner Drop Off Messages or any
portion thereof (Excel file produced
on May 23, 2014)

R (401, 403)

H, A, BE, 0,
(foundation)

320

Position Description: OTR Driver,
Truckload (WRN-PET000617)

3

v

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

321

OFF

DESCRIPTION

Driver Progress Report
(WRN-PET000568-571)

OBJ

RCVD

R (401, 403)

H,O,
(foundation)

322

323

324

325

Richard Kroon's August 1, 2014
Expert Report and Damage
Calculation Spreadsheets or any
portion thereof
Richard Kroon's April 11, 2014
Expert Report and Damage
Calculation Spreadsheets or any
portion thereof

/
R (403)

H

Richard Kroon's January 14, 2014
Expert Report and Damage
Calculation Spreadsheets or any
portion thereof

R (403)

Portions of Werner's Employment
Records for Plaintiff Philip Petrone
(WRN-PET000327-378)

R (401/403),

H

H,BE,A
(foundation).
No obj. to doc
Listed in

P. Ex.67
326

Printed Driver Logs for Plaintiff Philip
Petrone (WRN-PET000379-387)

327

Portions of Werner Status Event
Worksheets for Plaintiff Philip
Petrone (WRN-PET000622-669)

J
R (401/403),

H, BE,A
(foundation)

328

Portions of Statements of Earnings
and Student Payroll Minimum Wage
Reviews for Plaintiff Philip Petrone
(WRN-PET000529-534)

4

/

NOT
RCVD

DATE

EXHIBIT NO.
PLF

DF

DESCRIPTION

OFF

OBJ

RCVD

329

Portions of Qualcomm messages
sent to or received by the truck( s) to
which Plaintiff Philip Petrone was
assigned (W RN-PET000388-528)

v

330

Portions of Werner AS400 Printouts
of Loads for Plaintiff Philip Petrone
(WRN-PET000553-567)

v

331

Portions of Werner's Employment
Records for Plaintiff Stewart Fisher
(WRN-PET 001160-1226)

R (401/403),

H, BE,A
(foundation)
No obj. to doc
Listed in

P.Ex.68
332

Portions of Status Event
Worksheets for Plaintiff Stewart
Fisher (WRN-PET001127-1235)

R (401/403),

H,BE,A
(foundation)

333

Portions of Statements of Earnings
and Student Payroll Minimum
Wage Reviews for Plaintiff Stewart
Fisher (WRN-PET001236-1258)

334

Portions of Qualcomm messages
sent to or received by the truck( s) to
which Plaintiff Stewart Fisher was
assigned (WRN-PET001259-1912)

J

335

Printed Driver Logs for Plaintiff
Stewart Fisher
(WRN-PETOO 1913-1928)

\/

336

Sworn Declaration of Plaintiff
Stewart Fisher, May 31, 2012
(Filing 53-2, Case No. 11-cv-401)

v

R (401/403),

H,BE,A
(foundation)

5

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

337

338

DESCRIPTION

OFF

Documents Produced by Plaintiff
Philip Petrone on May 14, 2012, or
any relevant portions thereof
(PPP00000001-77)
Portions of Werner's Employment
Records for Plaintiff Brian Pankz
(WRN-PET 001929-1986)

OBJ

RCVD

R (401/403),

H,BE,A
(foundation)

R (401/403),

H,BE,A
(foundation)
No obj. to doc
Listed in

P. Ex.69
339

Portions of Werner Status Event
Worksheets for Plaintiff Brian
Pankz (WRN-PET001987-1996)

R (401/403),

H, BE,A
(foundation)

340

Portions of Statements of Earnings
and Student Payroll Minimum
Wage Reviews for Plaintiff Brian
Pankz (WRN-PETOO 1997-2020)

341

Portions of Qualcomm messages
sent to or received by the truck( s) to
which Plaintiff Brian Pankz was
assigned
(WRN-PET002021-264 7)

v

342

Printed Driver Logs for Plaintiff
Brian Pankz (WRN-PET0026482669)

I

343

Sworn Declaration of Plaintiff Brian
Pankz, May 16, 2012, Filing No. 533 in Case No. 11-cv-401

v

R (401/403),

H, BE,A
(foundation)

6

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

344

DESCRIPTION

OFF

Portions of Werner's Employment
Records for Plaintiff Jasbir Singh
(WRN-PET002670-2853)

OBJ

RCVD

R (401/403),
H, BE,A
(foundation)
No obj. to doc
Listed in

P.Ex. 70

345

Portions of Werner Status Event
Worksheets for Plaintiff Jasbir
Singh (WRN-PET002854-2946)

R (401/403),
H,BE,A
(foundation)

346

Portions of Statements of Earnings
and Student Payroll Minimum
Wage Reviews for Plaintiff Jasbir
Singh (WRN-PET00294 7-297 4)

347

Portions of Qualcomm messages
sent to or received by the truck( s) to
which Plaintiff Jasbir Singh was
assigned
(WRN-PET002975-3577)

348

Printed Driver Logs for Plaintiff
Jasbir Singh
(WRN-PET003578-3604)

349

Opt-In Consent Form for any driver
who opted into the collective action
(Case No. 11-cv-401)

350

Defendant's August, 2013 List of
Class Members in Case No. 12-cv307 (produced via CD on August
30, 2013)

7

I
/

v
/

/

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

351

352

DESCRIPTION

OFF

OBJ

Defendant's December, 2013 List of
Class Members in Case No. 12-cv307 (produced via CD on December
23, 2013)
Qualcomm Device

RCVD

I
Not
Produced
During
Discovery.
R (401/403),
C, Waste
(foundation)

353

Qualcomm Message Reference
Card and Driver Messages
document
(WRN-PET000618-619)

I

v

354

Train the Trainer Manual
(WRN-PET000263-295)

355

CLC Check Inn ID Card Request
Form for Trainers
(WRN-PET000296)

R (401/403),
Waste
(foundation)

356

357

Safety Specialists and Train the
Trainer Manual Course Packet
(WRN-PET000297-305)
Sample Paper Load Form, Paper
Driver Log, and Paper Vehicle
Inspection Report
(WRN-PET000306-307)

R (401/403),
(foundation)

R (401/403),
H, BE,
Waste
(foundation)

358

Train the Trainer Guidelines for
Electronic Logging
(WRN-PET000308)

8

/

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

DESCRIPTION

359

Trainee Skill Evaluation form
(WRN-PET000310)

OFF

OBJ

RCVD

R (401/403},
H, BE, Waste
(foundation)

360

Student Pay Minimum Wage
Requirements Document
(WRN-PET000620-621)

361

List of drivers who opted into the
collective action under the Fair
Labor Standards Act (Case No. 11cv-401)

362

List of drivers who opted out of the
Rule 23 Class Action (Case No.
12-cv-307)

/
R (401/403),
H, BE, Waste
(foundation)

R (401/403),
H, BE, Waste
(foundation)

363

All discovery responses and
deposition testimony designated by
Defendants.

364

All discovery responses and
deposition testimony designated by
Plaintiffs and not objected to by
Defendants.

365

Demonstrative exhibits consisting
of enlargements of any of the
exhibits listed herein.

Not yet
known.

366

Defendants reserve the right to
offer any and all additional exhibits
necessary to establish foundation.

Not yet
known.

367

Defendants reserve the right to
offer any and all exhibits listed or
offered by Plaintiffs and not
objected to by Defendants.

9

Not yet
known.

v

NOT
RCVD

DATE

EXHIBIT NO.
PLF

OF

OFF

DESCRIPTION

OBJ

368

Defendants reserve the right to
offer any and all additional exhibits
necessary for rebuttal or
impeachment.

Not yet
known.

369

Defendants reserve the right to
offer additional exhibits obtained
prior to trial including, but not
limited to, additional records not
yet received.

Not yet

OBJECTIONS
R: Relevancy
H: Hearsay
A: Authenticity
0: Other (specify)

10

known.

RCVD

NOT
RCVD

DATE