Russell v. Werner Enterprises, Inc.

Filing 115

MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiffs' motion to compel deposition appearances is denied. Further discovery shall be stayed pending resolution of the plaintiffs' motion to compel responses to interrogatories and requests for production (Filing No. 69 ) and defendants' motion to consolidate (Filing No. 81 ). Defendants' motion for protective order is denied as moot at this time. Ordered by Senior Judge Lyle E. Strom. (TCL)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
EZEQUIEL OLIVARES ABARCA,
individually nd on behalf of
all those similarly situated,
et al.,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
and DOES 1-100, inclusive,
)
)
Defendants.
)
______________________________)

8:14CV319

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
to compel deposition appearances; request for expedited briefing
and decision (Filing No. 91), and defendants’ motion for
protective order (Filing No. 101).
briefed by the parties.

The matter has been fully

See Filing Nos. 88, 102, and 105.1

After review of the motions, the parties’ briefs, and the
applicable law, the Court finds as follows.
BACKGROUND
This matter arises out of plaintiffs’ pursuit of a
class action suit.

Plaintiffs allege eight causes of action

against Werner Enterprises, Inc. (“Werner”), Does 1-100,
inclusive, and Drivers Management, LLC (collectively
1

The Court notes a number of other motions from the parties are
currently pending. Due to the parties’ request that this matter be determined
on an expedited basis, this matter was given priority.

“defendants”).

See Filing No. 80.

Plaintiffs “assert violations

of California law” and “violations of Nebraska law” causing “some
form of injury” due to defendants’
uniform policy and practice [of]
. . . not paying all wages owed,
not paying for all time worked
. . . making improper deductions
from pay for work performed, not
providing properly itemized pay
statements that accurately reflect
hours worked, applicable hourly
rates . . . and, according to
Plaintiff’s information and belief,
not maintaining records that
accurately reflect hours worked and
applicable hourly rates.
(Id. at 6).
On June 4, 2014, Antonia Russell filed a putative class
action against Werner under California wage and hour law in a
California state court.

After the named plaintiffs in the

current action joined and Ms. Russell dismissed her claims
without prejudice, Werner removed the case from the California
state court to the United States District Court for the Northern
District of California.

The case was then transferred to this

Court pursuant to 28 U.S.C. § 1404(a).

See Filing No. 23.

On

March 18, 2015, plaintiffs filed a joint stipulation for leave to
file a second amended complaint (Filing No. 50).2

2

On March 30,

On February 18, 2015, the Court, in accordance with Federal Rule of
Civil Procedure 26(f), issued an order determining that “[d]iscovery limited
to class certification shall be completed by November 16, 2015.” (Filing No.
49).

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2015, the Court approved and adopted the stipulation in part
allowing plaintiffs to file a second amended complaint (Filing
No. 51) on or before April 6, 2015, and gave defendants twenty
days after the filing of the amended complaint to respond.

On

September 16, 2015, with no objection from the defendants, the
Court again permitted plaintiffs to amend their complaint (Filing
No. 79).

The newest complaint adds a nationwide class, in

addition to the California class.

See Filing No. 80.

Defendants

filed an answer to the third amended complaint on September 30,
2015 (Filing No. 87).

That same week, after counsels’ meet and

confer conferences broke down, plaintiffs filed a motion to
compel regarding certain discovery issues.

See Filing No. 88.

This matter is related to the break down of the parties’ meet and
confer conferences and arises out of plaintiffs’ request
concerning the taking of certain depositions under Federal Rule
of Civil Procedure 30(b)(6) and three other individual deponents.
See Filing No. 88.
Plaintiffs request the Court “for an order compelling
Defendant Werner . . . to produce . . . witnesses whom Werner has
refused to produce on the dates duly noticed . . . .”
1).

(Id. at

Defendants not only seek denial of plaintiffs’ motion, but

also seek a protective order staying the depositions until
plaintiffs’ initial motion to compel (Filing No. 69) and Werner’s
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motion to consolidate (Filing No. 81) are decided (Filing No.
102).

Defendants also request the Court to limit “the length of

each Werner representative’s deposition to 7 hours in the
aggregate,” prohibit elicitation of testimony regarding certain
“Topics,” and to strike the words “including, but not limited to”
within certain “Topics.”

(Id. at 17).

LAW
“A district court is afforded wide discretion in its
handling of discovery matters.”
F.2d 602, 604 (8th Cir. 1988).

Cook v. Katridg Pak Co., 840
Under the Federal rules

“reasonable written notice to opposing counsel before the taking
of an oral deposition” is required.

F.A.A. v. Landy, 705 F.2d

624, 634 (2nd Cir. 1983) (citing Fed.R.Civ.P. 30(b)(1)).

“A

party, upon reasonable notice to other parties and all persons
affected thereby, may apply for an order compelling disclosure or
discovery . . . .”

Fed.R.Civ.P. 37(a).

Such motions “must

include a certification that the movant has in good faith
conferred or attempted to confer with the party not making the
disclosure in an effort to secure the disclosure without court
action.”

Fed.R.Civ.P. 37(a)(2)(A); see also NECivR 7.1(i).

“The

party resisting production bears the burden of establishing . . .
undue burden.”

St. Paul Reinsurance Co., Ltd. v. Commercial Fin.

Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).
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DISCUSSION
A. Plaintiffs’ Motion to Compel
The Court finds that plaintiffs’ motion to compel
should be denied.

Given the timing of the plaintiffs’ amending

their complaint, the pending motions before the Court, and the
timing of plaintiffs’ filing of the present motion in relation to
the parties’ meet and confer meetings, the Court finds that
defendants have carried their required burden.

Discovery will be

stayed pending the resolution of plaintiffs’ motion to compel
responses to interrogatories and requests for production (Filing
No. 69) and defendants’ motion to consolidate (Filing No. 81).
The Court determines that resolution of plaintiffs’ first motion
to compel will likely provide the parties with guidance from the
Court in the effective furtherance of future discovery.

The

Court also believes that resolution of defendants’ motion to
consolidate, though unopposed, will likewise assist in resolving
the parties’ disagreements with regard to time limitations of the
depositions.
B. Defendants’ Protective Order
Based on the Court’s decision above, defendants’
motion for protective order (Filing No. 101) will be denied as
moot at this time.

While the Court believes that resolution of

the parties’ motions (Filing Nos. 69 and 81) will provide the
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parties’ guidance in going forward with discovery, nothing in the
Court’s decision today will preclude either party from pursuing
additional motions to compel or for protective orders if the
parties continue to be unable to reach agreements in the future.
However, the Court encourages the parties to seek productive
means and methods of future meet and confer meetings to avoid the
need of involving the Court in future discovery disputes if and
when possible.

Accordingly,

IT IS ORDERED:
1) Plaintiffs’ motion to compel deposition appearances
is denied.
2) Further discovery shall be stayed pending resolution
of the plaintiffs’ motion to compel responses to interrogatories
and requests for production (Filing No. 69) and defendants’
motion to consolidate (Filing No. 81).
3) Defendants’ motion for protective order is denied as
moot at this time.
DATED this 29th day of October, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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