Valdez v. Cox Communications Las Vegas, Inc. et al
Filing
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ORDER Denying 145 Motion to Compel; Granting 147 Motion for Protective Order; Denying 158 Motion to Extend Time ; Granting 164 Motion for Protective Order; Granting 168 Motion for Protective Order. Signed by Magistrate Judge Robert J. Johnston on 8/31/2011. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH VALDEZ,
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Plaintiff,
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vs.
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COX COMMUNICATIONS LAS VEGAS, )
INC.,
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Defendant,
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2:09-cv-1797-PMP-RJJ
ORDER
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This matter is before the court on the following motions:
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Plaintiff’s Motion to compel Production of Documents (#145);
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Defendant Cox’s Motion for Protective Order;
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Plaintiff’s Motion to Extend the Discovery Deadline (#158);
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Defendant Cox’s Motion for Protective Order (#164); and,
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Defendant Cox’s Motion for Protective Order (#168).
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BACKGROUND
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This is a Fair Labor Standards Act case. Plaintiff was employed by cable installers who
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were subcontracted by Cox Communications (Cox) to install cable and cable connectors.
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Plaintiff asserts that Defendant Cox is a joint employer along with the subcontractor defendants
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under the FLSA and is therefore liable under that act. The Court reopened discovery to allow
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Plaintiff an opportunity to discover information relevant to the issues raised in Plaintiff’s Rule
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56(f) Motion (#120). Order (#133).
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DISCUSSION
1. Plaintiff’s Motion to Compel the Production of Documents #145
As a preliminary matter, Plaintiff failed to attach an affidavit or statement declaring that
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the parties complied with LR 26-7(b), the requirement to meet and confer. The parties
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communicated by letter, but written correspondence is insufficient to comply with the rule.
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Shuffle Master Inc.v. Progressive Games Inc., 170 F.R.D. 166, 172 (D. Nev. 1996).
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In the motion, Plaintiff seeks documents relevant to the relationship between Cox, its
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subcontractors, and the employees of its subcontractors in order to discover evidence as to
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whether Cox is a joint employer along with the subcontractors for purposes of the FLSA.
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Plaintiff seeks two groups of documents: one group from all the Defendants, and the other only
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from Cox.
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From all Defendants, Plaintiff seeks: Electronic communications, complete contracts
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between Cox and the other Defendants, contact information of other installers who might testify
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as witnesses, complaints made by Cox to its subcontractors regarding installers or installations,
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and installation scheduling records. From Cox only, Plaintiff seeks: Cox’s employee “Code of
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Excellence” and any cost analysis studies performed by Cox related to providing installation
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services. Plaintiff argues that all of these documents fall within the scope of discovery
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authorized by the Court in Order #133, because they are all relevant to whether Cox acted as a
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joint employer for FLSA purposes.
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Whether an employer is a joint employer is a question of law to be decided by the Court.
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Torres-Lopez v. May, 111 F.3d 633, 638 (9th Cir. 1997). Plaintiff argues that the Court should
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apply the economic realities test to determine whether Cox was a joint employer. Factors to
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consider under this test include: the amount of control exercised by the alleged joint employer,
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whether the joint employer provided equipment or workspace, whether the subcontractor’s
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business could shift to other contractors, whether the subcontractor’s work is integral to the joint
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employer’s business, whether Plaintiff’s work was performed exclusively for the joint employer,
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and other relevant factors.
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Here, Plaintiff asserts that all discovery sought is relevant to these factors and ultimately
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to whether Cox was a joint employer for purposes of the FLSA.
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Defendants’ responses argue three main points: 1) Plaintiff’s motion should be denied for
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not complying with LR 26-7(b), the requirement to meet and confer; 2) Plaintiff’s motion should
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be denied because the documents sought have already been provided or do not exists; and 3)
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Plaintiff’s motion should be denied because it goes beyond the scope of the Court’s Order
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(#133).
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Order (#133) reopened discovery to allow the Plaintiff to discover information on four
topics highlighted in Plaintiff’s 56(f) Motion (#120). These topics include:
1) Cox’s actual control of installer hiring;
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2) records that show installers typically work for successive Cox subcontractors;
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3) information regarding the history of Cox’s Las Vegas, NV subcontractors; and
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4) records showing pre-hiring experience and skill levels of installers. Plaintiff’s
56(f) Motion (#120) at 2-4.
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Defendants argue that Plaintiff should be limited to those topics and that the discovery
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sought in Plaintiff’s Motion to Compel (#145) is outside the limit granted by the Court.
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Plaintiff cites to the Court’s Order (#133) as authorizing “additional discovery relevant to
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the issue of Cox Communications status as a joint employer for purposes of liability under the
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FLSA.” Order (#133) at 3. However, Plaintiff ignores limiting language in the order that states:
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“although ... Plaintiff’s Motion for Additional Discovery under Rule 56(f) ... is procedurally
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defective, the Court finds that Plaintiff has shown good cause to warrant limited additional
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discovery as outlined in Plaintiff’s Motion for Rule 56(f) discovery (Doc. #120).”
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Therefore, it was the clear intention of the Court that additional discovery be limited by
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Plaintiff’s Motion (#120), which mentions only the four topics cited by Defendants. Due to this
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limitation, as well as the failure to comply with the meet and confer requirement, Plaintiff’s
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Motion (#145) should be DENIED.
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2. Defendant Cox’s Motion For Protective Order on Portions of Plaintiff’s 30(b)(6)
Deposition Notices (#147)
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This motion is related to Plaintiff’s Motion to Compel (#145). Plaintiff seeks to take the
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deposition of two Cox employees, 1) the person most knowledgeable about information on
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persons issued a Cox authorized contractor badge; and 2) the person most knowledgeable about
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the ICOMs1 system utilized by Cox and the other defendants.
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Plaintiff argues that he should be allowed to take deposition testimony on all topics
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related to the joint employer issue, while Cox argues that the scope should be limited. The
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argument again is decided by the scope of discovery re-opened by the Court in its Order (#133).
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The order is clear that discovery should be limited to the additional discovery proposed in
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Plaintiff’s Motion (#120), the four topics listed above. Defendant’s Motion should be
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GRANTED.
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3. Plaintiff’s Motion to Extend the Discovery Deadline (#158)
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Plaintiff brought this motion to request a sixty day extension of discovery. The motion
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does not comply with LR 26-4 because it lacks a statement describing the discovery completed
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and the discovery remaining, as well as any reason why the remaining discovery has not been
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completed.
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The crux of this motion also rests on the parties disparate interpretations of the Court’s
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Order (#133). Plaintiff now cites the limitation stated in the rationale of the order as “dicta” and
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claims that the wide breadth of discovery he seeks is authorized by the decree clause of the order.
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Cox claims that an extension should not be granted because the Plaintiff has already discovered
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all known information related to the four topics authorized by the Court, because the information
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does not exist, or because it has already been previously provided.
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If the limitation in the Order (#133) is ignored, then good cause exists because
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Defendants have apparently refused to cooperate in the broad discovery sought by Plaintiff.
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However, interpreting the Order (#133) in its entirety, it is clear that discovery should be limited
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by Plaintiff’s Motion (#120). Therefore, because Plaintiff is not entitled to the discovery he
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seeks, and his failure to comply with LR 26-4, there is no good cause to extend discovery and
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Plaintiff’s motion should be DENIED.
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The parties do not explain what ICOMs is, but it appears to be a billing or accounts
management software application.
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4. Defendant, Cox’s, Motion for Protective Order on Plaintiff’s Notice of Videotaped
Deposition of Cox’s Contractor Database (#164)
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Plaintiff sent a notice of deposition to Cox seeking to take a videotaped deposition of
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Cox’s contractor database. Plaintiff has already taken the deposition of the person most
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knowledgeable at Cox regarding the collection, storage, and use of the database.
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Again, the basic issue in this argument is the scope of the Court’s Order (#133). Cox
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argues not only that the information sought is outside the scope of allowable discovery, but it is
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not even relevant to whether Cox is a joint employer. Plaintiff disagrees.
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The contractor database contains personal information about each Cox installer, including
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name; address; phone number; sex, tech number; hair color, eye color, height, weight, date of
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birth, employer, hire date by contractor, termination by contractor, badge number, drivers license
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number, Social Security number, photo, vehicle make, model, year, type, color, tag number, state
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registered and insurance company.
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Plaintiff claims that Cox cannot be trusted to accurately represent what information is
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contained in the database and so it should be disclosed to see if it has any information related to
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Cox as a joint employer. Plaintiff claims the database may contain information such as “a
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blacklist of persons who [have] filed FLSA claims” and are now denied employment. Plaintiff
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also asserts that Cox would not expend the effort to protect the information in the database unless
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it contained damning information.
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A database containing personal and professional information about Cox installers is not
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relevant to any of the topics outlined in Plaintiff’s Motion (#120), nor is it relevant to whether
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Cox is a joint employer. Defendant’s Motion for Protective Order (#164) should be GRANTED.
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5. Defendant, Cox’s, Motion for Protective Order or to Stay Depositions (#168)
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Cox seeks a protective order from notices of depositions sent by Plaintiff five days
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before the discovery deadline seeking to take the depositions of: 1) a witness regarding Cox’s
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Nevada Contractor’s License; 2) a witness regarding all former employees of Cox “who were
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involved in the State of Nevada in approving and/or disapproving installer badges, reviewing
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and/or processing applications for installer badges, and/or communicated in any manner with
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subcontractors as part of their job duties with Cox, and/or performed the duties of ‘Installation
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Support;’” and 3) a witness regarding the Cox installer database.
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Cox argues that the information being sought is not relevant to whether Cox is a joint
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employer or has already been provided. Plaintiff argues that Cox has not put forth a good faith
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effort to participate in discovery, and that all three depositions are relevant under the Court’s
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Order (#133).
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Cox’s Nevada Contractor’s License
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Plaintiff claims this information is relevant to whether Cox is a joint employer because
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Cox’s subcontractors have identical state issued licenses. Plaintiff claims it is relevant to the
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amount of control Cox has over subcontractors, and other factors relevant to whether Cox is a
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joint employer. This is a very tenuous argument, and was not included in the notice of
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deposition. Rather, Plaintiff sought information regarding: (1) the application and
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possession of Cox's Nevada Contractor's License; (2) the purpose of Cox obtaining such a
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license; (3) what activities by Cox require the possession of such license; and (4) the reason Cox
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currently maintains the license. Response (#184) at 3 ll. 5-8. Such information is not relevant to
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whether Cox is a joint employer, nor is the fact that Cox maintains a Nevada Contractor’s
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license.
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Former Employees in Charge of Installation Support
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Plaintiff has already deposed three current Cox employees with the knowledge and
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information sought, but now seeks to depose former Cox employees regarding the same
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information because they would be “unbiased.” Such an inquiry is not relevant to whether Cox is
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a joint employer.
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The Installer Database
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Cox claims that it already provided this information via the deposition of Cox employee,
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Terry Paul. Plaintiff asserts that Paul did not have the technical knowledge he now seeks to
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obtain from Cox, such as the type of software used to maintain the database.
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This information is not relevant to whether Cox is a joint employer under the FLSA.
Accordingly, Defendant’s Motion (#168) should be GRANTED.
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CONCLUSION AND ORDER
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All of the discovery motions revolve around the interpretation of the Court’s Order
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(#133) and whether the re-opened discovery was limited to the four topics in Plaintiff’s Motion
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(#120).
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Reading the Order (#133) in its entirety, it is clear that discovery was intended to be
limited to the four topics in Plaintiff’s Motion (#120). Accordingly,
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IT IS HEREBY ORDERED that:
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1.
Plaintiff’s Motion to Compel (#145) is DENIED.
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Defendant’s Motion for Protective Order (#147) is GRANTED.
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Plaintiff’s Motion to Extend Discovery Deadlines (#158) is DENIED.
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Defendant’s Motion for Protective Order (#164) is GRANTED.
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Defendant’s Motion for Protective Order (#168) is GRANTED
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DATED this 31st
day of August, 2011.
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ROBERT J. JOHNSTON
United States Magistrate Judge
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