Russell v. Werner Enterprises, Inc.
ORDER - Defendants shall produce the deposition transcripts requested by the Vester opt-out plaintiffs, subject to an appropriate protective order. With respect to the Vester plaintiffs' request for documents, the Court finds class plaintif fs' counsel suggestion is a suitable resolution. Defendants shall provide the Vester plaintiffs with Defendants' responses to requests for production of documents in the Abarca/Smith actions so that the Vester plaintiffs can identify rel evant document requests by number and identify the documents responsive to those requests by Bates number, and request production of those documents from Defendants. Member Cases: 8:14-cv-00319-JFB-MDN, 8:15-cv-00287-JFB-MDN, 8:17-cv-00145-JFB-MDNOrdered by Magistrate Judge Michael D. Nelson. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EZEQUIEL OLIVARES ABARCA, ALFREDO
ALESNA JR., DAVID CAGLE, STEPHEN L.
DAVIS, FRANK EADS, and KENNETH J.
SURMAN, individually and on behalf of all
those similarly situated,
WERNER ENTERPRISES, INC., DRIVERS
MANAGEMENT, LLC, and DOES 1-100,
WILLIAM SMITH, on behalf of himself and all
others similarly situated, and on behalf of the
WERNER ENTERPRISES, INC., d/b/a
C.L. WERNER, INC., a corporation, and
DOES 1-100, inclusive,
BRIAN VESTER and JOEL MORALES,
individually and on behalf of all others
WERNER ENTERPRISES, INC., and
DRIVERS MANAGEMENT, LLC;
This matter is before the Court following a telephone conference held with counsel for
the parties regarding a discovery dispute raised by plaintiffs’ counsel in the member case Vester,
et al. v. Werner Enterprises, Inc., et al., Case No. 8:17CV145. The parties agreed that the
undersigned magistrate judge may enter a ruling at the conclusion of the conference without
further briefing on the dispute.
The parties’ dispute concerns what discovery the Vester opt-out plaintiffs are entitled to
receive from the Abarca and Smith actions. The Vester opt-out plaintiffs primarily request three
deposition transcripts taken of Defendants’ witnesses and documents served in response to
discovery requests in the other consolidated cases. Defendants oppose such requests as being
overbroad and encompassing evidence irrelevant in the Vester action. Defendants argue that
because the Vester opt-out plaintiffs only allege claims under California law, they are limited to
seeking discovery as it pertains to their California claims, and that any discovery in the Abarca
and Smith actions pertaining to Nebraska law is irrelevant. Defendants propose that the Vester
opt-out plaintiffs prepare a document listing topics of inquiry similar to a Rule 30(b)(6) notice,
and defense counsel will produce the sections of deposition testimony responsive to the
requested topics. Defendants also argue that the depositions have been marked as “Confidential”
under the protective order in the Abarca/Smith cases.
Defendants’ view of the scope of discovery is too narrow.
The scope of relevant
discovery extends to both claims and defenses. See Fed. R. Civ. P. 26(b)(1). Defendants have
raised the affirmative defense in the Vester action that Plaintiffs consented in writing that their
employment was Nebraska-based and subject to Nebraska law.
(Filing No. 46 at p. 11).
Additionally, the Vester opt-out plaintiffs simply request copies of discovery and deposition
transcripts already completed in the Abarca/Smith actions. Pursuant to Defendants’ request, this
Court consolidated the above-captioned cases for all purposes in order to conserve judicial
resources and to avoid repetitive discovery. See Filing No. 77- Order on Consolidation (“[T]the
Court will grant the Defendants’ motion and consolidate all of the above-captioned cases for
purposes of discovery and trial); Filing No. 74 – Defendants’ Motion to Consolidate (“The Court
will hear testimony from the same witnesses in Vester and Abarca/Smith and the Plaintiffs will
offer similar evidence in each case. Werner should not be required to produce witnesses for
depositions and to respond to repetitive discovery in Vester and Abarca/Smith, when the claims,
issues, and parties are virtually identical in each case.”). Counsel for the class plaintiffs does not
object to the Vester opt-out plaintiffs’ being provided with the deposition transcripts and is
willing to enter into a revised protective order to address any lingering confidentiality concerns.
Accordingly, Defendants shall produce the deposition transcripts requested by the Vester opt-out
plaintiffs, subject to an appropriate protective order.
With respect to the Vester plaintiffs’ request for documents, the Court finds class
plaintiffs’ counsel suggestion is a suitable resolution.
Defendants shall provide the Vester
plaintiffs with Defendants’ responses to requests for production of documents in the
Abarca/Smith actions so that the Vester plaintiffs can identify relevant document requests by
number and identify the documents responsive to those requests by Bates number, and request
production of those documents from Defendants.
IT IS SO ORDERED.
Dated this 14th day of March, 2019.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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