Cardoza et al v. Bloomin' Brands, Inc. et al

Filing 302

ORDER Denying 238 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 6/22/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BROOKE CARDOZA, et al.,
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Plaintiff(s),
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vs.
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BLOOMIN’ BRANDS, INC., et al.,
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Defendant(s).
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Case No. 2:13-cv-01820-JAD-NJK
ORDER
(Docket No. 238)

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Pending before the Court is Defendants’ motion to compel. Docket No. 238. Plaintiffs filed a

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response in opposition and Defendants filed a reply. Docket Nos. 255, 264. The Court finds the motion

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properly decided without oral argument. See Local Rule 78-2. For the reasons discussed more fully

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below, the motion to compel is hereby DENIED.

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I.

BACKGROUND AND ANALYSIS

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This is a collective action and putative multi-state class action by Outback Steakhouse Restaurant

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employees who allege their employer failed to pay overtime and minimum wage to thousands of

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minimum-wage employees, violating the Fair Labor Standards Act (FLSA) and various state

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employment laws. Following efforts to resolve the matter without Court intervention, Defendants bring

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the pending motion to compel regarding two discovery disputes.1 First, Defendants seek more detailed

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responses from Plaintiffs regarding various contention interrogatories. Second, Defendants seek detailed

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damages calculations from Plaintiff’s initial disclosures. The Court addresses each dispute in turn.

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As an initial matter, the Court finds that Defendants satisfied their meet-and-confer obligations
prior to filing their motion.

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A.

Interrogatory Responses

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Defendants first contend that Plaintiffs did not sufficiently respond to contention interrogatories

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seeking all facts supporting their minimum wage claims for each week Plaintiffs contend they were paid

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less than minimum wage and all facts supporting their overtime claim for each week they contend they

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did not receive overtime pay. See Docket No. 238 at 5-7. Plaintiffs respond that they are unable to

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respond to these interrogatories based on Defendants’ failure to timely provide related information

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within their control. See Docket No. 255 at 11-12.

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Rule 33(a)(2) imbues the Court with “substantial discretion” in deciding when a contention

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interrogatory must be answered, and expressly provides that the Court may order that interrogatories

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need not be answered until discovery has been completed or at some later time. See Campbell v.

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Facebook Inc., 2015 WL 3533221, *3 (N.D. Cal. June 3, 2015).2 Courts generally look with disfavor

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to broad contention interrogatories served early during litigation. See, e.g., In re eBay Seller Antitrust

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Litig., 2008 WL 5212170, *2 (N.D. Cal. Dec. 11, 2008). Courts “tend to deny contention interrogatories

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filed before substantial discovery has taken place, but grant them if discovery is almost complete.” E.g.,

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Campbell, 2015 WL 3533221, at *3.3 Nonetheless, there is no outright prohibition on propounding

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contention interrogatories early on in the litigation. See, e.g., Cable & Computer Tech. v. Lockheed

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Saunders, 175 F.R.D. 646, 652 (C.D. Cal. 1997).

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In determining whether to require answers to early contention interrogatories, courts look to

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whether answers would contribute meaningfully to (1) clarifying the issues in the case; (2) narrowing

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the scope of the dispute; (3) setting up early settlement discussion; or (4) exposing a substantial basis

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for a motion under Rule 11 or Rule 56. See, e.g., Campbell, 2015 WL 3533221, at *4. “Contention

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interrogatories are premature if a propounding party cannot present plausible grounds showing that early

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answers to contention questions will efficiently advance litigation, or if the [the answering party] does

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References to “Rules” refer to the Federal Rules of Civil Procedure.

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Of course, premature contention interrogatories that are otherwise proper must still be answered
at some point. eBay Seller, 2008 WL 5212170, at *2.
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not have adequate information to assert its position.” Facedouble, Inc. v. Face.com, Inc., 2014 WL

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585868, *2 (S.D. Cal. Feb. 13, 2014).

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Given the current stage of litigation and the discovery remaining, the Court agrees with Plaintiffs

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that further responses are not required at this time. The Court held the scheduling conference in this case

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on December 9, 2014. Docket No. 165. Defendants served the contention interrogatories on December

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19, 2014. See Docket No. 239-1 at 4-5. Discovery related to class certification is not set to expire until

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September 9, 2015. See Docket No. 176 at 2. Plaintiffs have identified further discovery that they

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believe bears on their responses, and the Court finds that requiring additional responses now is

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premature in light of the status of the litigation and the ongoing discovery efforts.

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B.

Initial Disclosures

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Defendants next contend that the damages calculations provided by Plaintiffs as part of their

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initial disclosures are not sufficiently detailed and are not sufficiently tied to the facts as currently

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known. Docket No. 238 at 18-21. Plaintiffs respond that the initial disclosures are sufficient in light

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of the current stage of litigation, and will be supplemented as the case progresses. Docket No. 255 at

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10-11. Plaintiffs have the more persuasive argument.

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Rule 26(a)(1)(A) requires parties to provide initial disclosures to the opposing parties without

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awaiting a discovery request. The disclosures must include a computation of each category of damages

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claimed by the disclosing party. See Rule 26(a)(1). In the event that a party learns that its disclosures

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are incomplete or inaccurate, it has a duty to supplement them “in a timely manner.” See Rule 26(e).

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“Rule 26 does not elaborate on the level of specificity required in the initial damages

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computation.” Allstate Ins. Co. v. Nassiri, 2011 WL 2977127, *4 (D. Nev. July 21, 2011). “A

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computation of damages may not need to be detailed early in the case before all relevant documents or

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evidence has been obtained by the plaintiff.” LT Game Int’l Ltd. v. Shuffle Master, Inc., 2013 WL

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321659, *6 (D. Nev. Jan. 28, 2013). Nonetheless, the word “computation” contemplates some analysis

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beyond merely setting forth a lump sum amount for a claimed element of damages. Allstate Ins, 2011

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WL 2977127, at *4. A plaintiff should disclose the basic method or formula by which it contends its

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damages should or will be calculated even if it cannot identify the specific dollar amount of damages

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pending further discovery. Id. “While a party may not have all of the information necessary to provide
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a computation of damages early in the case, it has a duty to diligently obtain the necessary information

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and prepare and provide its damages computation within the discovery period.” Jackson v. United

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Artists Theatre Circuit, Inc., 278 F.R.D. 586, 593 (D. Nev. 2011); see also Design Strategy, Inc. v.

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Davis, 469 F.3d 284, 295 (2d Cir. 2006) (damages calculation should be more detailed as the case

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progresses).

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The Court finds an order compelling supplementation of Plaintiffs’ initial disclosures

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unnecessary given the current stage of the case. The initial disclosures provide the basic method by

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which Plaintiffs contend damages will be calculated. They also reflect a rough estimate of the damages

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that will be sought. As the case progresses, the Court expects that the damages calculations will be

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supplemented to reflect additional information obtained. At this stage of the litigation, however, the

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Court finds the current initial disclosures sufficient to comply with Plaintiffs’ Rule 26(a) obligations.

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II.

CONCLUSION

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For the reasons discussed more fully above, Defendants’ motion to compel is DENIED.

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IT IS SO ORDERED.

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DATED: June 22, 2015

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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