Slack et al v. Parball Newco LLC et al
Filing
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ORDER Granting in part and Denying in part 53 Motion to Compel Responses to Discovery Requests. The parties must meet and confer and file a joint status report and an amended discovery plan and scheduling order by 4/25/2018. Signed by Magistrate Judge Carl W. Hoffman on 3/26/2018. (Copies have been distributed pursuant to the NEF - SLD)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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WILLIAM SLACK, et al.,
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Case No. 2:16-cv-02324-KJD-CWH
Plaintiffs,
ORDER
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v.
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PARBALL NEWCO, LLC, et al.,
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Defendants.
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This matter is before the court on defendants Parball Newco LLC dba Bally’s, Parball
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Corp., Parball LLC, and PHWLV, LLC dba Planet Hollywood Las Vegas Resort and Casino’s
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Motion to Compel Responses to Discovery Requests (ECF No. 53), filed on July 28, 2017.
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Plaintiffs filed a response (ECF No. 57) on August 15, 2017. Defendants filed a reply (ECF No.
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59), supported by a request for judicial notice (ECF No. 60), on August 22, 2017.
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I.
BACKGROUND
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This is a Fair Labor Standards Act (“FLSA”) action against defendants who own and
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operate Bally’s Hotel and Casino, Paris Hotel and Casino, and Planet Hollywood Las Vegas
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Resort and Casino in Las Vegas, Nevada. (Am. Compl. (ECF No. 11) at 1-3.) The amended
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complaint alleges that defendants misclassified table games supervisors (also called casino floor
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supervisors) as exempt from overtime under federal and Nevada state law. (Id. at 5-10.) For
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instance, table games supervisors who supposedly were salaried employees were sometimes sent
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home early due to casino floor overstaffing, but received only partial day pay, unless those
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employees used accumulated paid time off. (Id. at 5.) As a result of the misclassification,
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plaintiffs allege they were denied overtime for hours they worked over 40 each workweek for pre-
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shift meetings, quarterly training, and online training and testing/certification. (Id. at 6-7.)
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In March 2017, the court approved the parties’ stipulation to conditionally certify the
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federal claim. (Order (ECF No. 46).) The notice that potential opt-in plaintiffs received
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regarding their right to join the lawsuit stated “[y]ou may or may not be required to provide
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information about your work for the defendants or give evidence as part of this lawsuit if you
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want your claim for overtime wages to be decided as part of this lawsuit.” (Order (ECF No. 46)
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at 8.) The parties stipulated to conduct discovery in a single phase. (Scheduling Order (ECF No.
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51).) The parties’ discovery plan stated that they did not agree regarding the scope of opt-in
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discovery, but they would “confer and attempt to resolve the scope of opt-in plaintiff discovery
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following the conclusion of the opt-in period, once the number and identity of opt-in plaintiffs are
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determined.” (Id.) Three named plaintiffs and 80 opt-in plaintiffs submitted consent forms. (See
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ECF Nos. 7-10, 14-16, 20-21, 28-30, 39, 61.)
Defendants served written interrogatories and requests for production on all plaintiffs,
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including the opt-in plaintiffs. (Papadopoulos Decl. (ECF No. 53-1).) Plaintiffs served written
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objections and no responses to the requests. (Id.) The parties participated in a meet-and-confer
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conference in which plaintiffs stated that opt-in plaintiffs were not required to respond to
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individual discovery as a matter of law. (Id.) Defendants state that as an attempt to compromise,
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they subsequently withdrew certain interrogatories and requests for production, leaving three
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interrogatories and eight document requests for each plaintiff who is still employed by
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defendants, and five interrogatories and eight document requests for each plaintiff who was
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terminated. (Id.) Defendants represent that plaintiffs have not responded to those requests. (Id.)
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Defendants now move to compel individualized discovery from the three named plaintiffs and all
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opt-in plaintiffs.
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II.
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ANALYSIS
Defendants move to compel responses to their written discovery requests, arguing that the
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named plaintiffs have improperly refused to respond until a resolution is reached on the scope of
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discovery on the opt-in plaintiffs. Defendants further argue they are entitled to individualized
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discovery from all opt-in plaintiffs because they are ordinary party plaintiffs who are subject to
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the full range of discovery. Defendants contend that individualized discovery regarding how each
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opt-in plaintiff spent his or her time is required to analyze the overtime exemption and to assess
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whether plaintiffs are similarly situated and their defenses to individual plaintiffs. Defendants
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argue that the opt-in class is relatively small, that nearly all opt-in plaintiffs live and work in Las
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Vegas, that plaintiffs’ counsel have been provided with all opt-in plaintiffs’ contact information,
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and that the parties agreed to conditional certification and to conduct discovery in a single phase.
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In support of their motion, defendants cite various FLSA cases where individualized discovery of
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all of the opt-in plaintiffs was allowed.
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Plaintiffs respond that they will provide full discovery as to the three named plaintiffs, but
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that discovery on all opt-in plaintiffs is burdensome, unnecessary, and undermines the purpose of
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conditionally certifying a collective action. Plaintiffs contend that courts routinely deny
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individualized discovery of opt-in plaintiffs in FLSA classes and argue the class-wide discovery
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principles of Rule 23 (class actions) should apply to this collective action.
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According to plaintiffs, the two crucial factual issues in this case are the plaintiffs’ job
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duties and their hours of work. Plaintiffs argue that individualized discovery on the opt-in
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plaintiffs is unnecessary unless defendants first provide limited discovery indicating the opt-in
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plaintiffs’ job duties differ. Plaintiffs further argue that if they accept the defendants’ assertions
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on these two issues, there would be no need for discovery on the opt-in plaintiffs. Plaintiffs urge
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the court to require the parties to formulate a protocol for determining whether individualized
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discovery on all opt-in plaintiffs is required.
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Plaintiffs’ response primarily focuses on the threshold issue of whether defendants are
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permitted to take individualized opt-in discovery. Plaintiffs do not provide specific objections to
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the discovery that defendants move to compel. However, Plaintiffs argue the discovery requests
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do not relate to the actual tasks, responsibilities, and duties assigned to and performed by the opt-
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in plaintiffs. Plaintiffs also contend that the discovery requests do not relate to decertifying the
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conditionally-certified class. To the extent discovery on the opt-in plaintiffs is allowed, plaintiffs
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argue it should be limited to a 10 percent sample and that the scope of the requests should be
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limited to information supporting a motion to decertify the conditionally-certified class.
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Defendants reply that they are not required to make any showing or prove their
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affirmative defenses before plaintiffs are required to respond to discovery. Defendants further
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reply that their liability depends on each plaintiff’s actual job duties, which requires
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individualized discovery.
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Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties may obtain
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discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and
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proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Rule 37(a) provides that a party
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may move for an order compelling the requested discovery. Fed. R. Civ. P. 37(a)(1), (a)(3)(B).
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The party resisting discovery has the burden to show discovery should not be allowed.
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Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). It is within the court’s broad
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discretion to control discovery, “and its rulings will not be overturned in the absence of a clear
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abuse of discretion.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 601 (D. Nev. 2011) (citing
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Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).
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Courts have taken different approaches regarding the extent of allowable discovery from
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opt-in plaintiffs in collective actions: (1) individual discovery is allowed for all opt-in plaintiffs,
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who are party plaintiffs subject to the full range of discovery; (2) no individualized discovery is
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allowed, on the grounds that it would undermine the purpose and usefulness of collective actions;
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and (3) individualized discovery is allowed, but only from a sample of opt-in plaintiffs. See, e.g.,
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Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (recognizing in
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dicta that the law is unsettled regarding opt-in plaintiffs’ duty to participate in individual
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discovery in FLSA cases); Smith v. Lowe’s Home Centers, Inc., 236 F.R.D. 354, 357-58 (S.D.
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Ohio 2006) (collecting cases on different approaches); Cranney v. Carriage Servs., Inc., No.
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2:07-CV-01587-RLH-PAL, 2008 WL 2457912, at *2 (D. Nev. June 16, 2008) (same).
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While the decisions on individualized discovery are highly fact-specific, common
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considerations are the number of opt-in plaintiffs and the type of discovery being requested, with
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individualized discovery being permitted more frequently in cases with relatively few plaintiffs
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and targeted written discovery. Compare Abubakar v. City of Solano, No. 06-cv-2268-LKK-
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EFB, 2008 WL 508911, at *1 (E.D. Cal. Feb. 22, 2008) (allowing individualized discovery for all
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150 opt-in plaintiffs, including requests for production and interrogatories), and Ingersoll v. Royal
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& Sunalliance USA, Inc., No. 05-cv-1744-MAT, 2006 WL 2091097, at *3 (W.D. Wash. July 25,
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2006) (allowing individualized discovery from named plaintiffs and all 34 opt-in plaintiffs), and
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Coldiron v. Pizza Hut, Inc., No. CV03-05865TJHMCX, 2004 WL 2601180, at *2 (C.D. Cal. Oct.
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25, 2004) (allowing individualized discovery for all 306 opt-in plaintiffs, including
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interrogatories, requests for production of documents, and requests for admission), with Cardoza
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v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137 (D. Nev. 2015) (limiting discovery to ten percent
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of approximately 9,500 opt-in plaintiffs, including interrogatories, requests for production, and
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requests for admission on randomly-selected opt-in plaintiffs, and a total of 95 depositions of opt-
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in plaintiffs who were chosen for written discovery), and Smith, 236 F.R.D. at 358 (limiting
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discovery to a statistically-significant sample of 1,500 opt-in plaintiffs, without prejudice for
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defendants to move to expand the number), and Wellens v. Daiichi Sankyo, Inc., No. C-13-00581-
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WHO (DMR), 2014 WL 7385990, at *4 (N.D. Cal. Dec. 29, 2014) (limiting discovery to
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approximately forty percent of a class of 213 opt-in plaintiffs, including full discovery of named
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plaintiffs, declarations from 39 opt-in plaintiffs, depositions of 25 opt-in plaintiffs, and
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interrogatory responses from 37 opt-in plaintiffs), and Cranney, 2008 WL 2457912, at *3
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(limiting individualized discovery to ten percent of approximately 300 opt-in plaintiffs, including
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interrogatories and requests for production of documents), and Davis v. Westgate Planet
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Hollywood Las Vegas, LLC, No. 2:08-cv-00722-RCJ-PAL, 2010 WL 2872406, at *3-4 (D. Nev.
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2010) (limiting discovery to ten percent of approximately 500 opt-in plaintiffs, including
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interrogatories, requests for production of documents, and depositions of 10 opt-in plaintiffs).
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Here, the size of the opt-in class is relatively small. Defendants represent that most of the
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opt-in plaintiffs reside in Las Vegas. The opt-in plaintiffs chose to participate in this lawsuit
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knowing that they may be required to respond to discovery. The parties agreed to conduct
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discovery in a single phase, making this the only opportunity for the parties to discover evidence
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supporting the claims and defenses in this matter.
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The court is mindful of the efficiency considerations underlying collective actions and of
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the fact that permitting the full scope of discovery authorized by the Federal Rules of Civil
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Procedure could be unreasonably burdensome on the parties and the court. See Cranney, 2018
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WL 2457912, at *3. However, fairness dictates that defendants should be permitted to conduct
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enough discovery to move for decertification and to support their defenses, particularly in light of
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the fact the parties agreed to a single phase of discovery. Given the nature of the discovery
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requested, which appears to be targeted primarily at the defenses, the court finds that the
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requested information cannot be assessed based on a sample of the opt-in plaintiffs. Thus, the
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court in its discretion will allow individualized discovery on all named plaintiffs and opt-in
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plaintiffs. The court therefore grants defendants’ motion in part.
The court denies the motion without prejudice, however, to the extent that defendants
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move to compel responses to the particular discovery requests at issue. The court does not have
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the benefit of objections and cannot evaluate the relevance and proportionality of the requests.
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Although the court does not express an opinion on the discovery requests at issue in the motion,
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the court expects that in moving forward with discovery, the experienced and professional
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counsel on this case will be mindful of the purpose of collective actions and will make every
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effort to avoid burdening counsel, the parties, and the court with excessive discovery. The court
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expects that discovery requests will be limited in number and that the substance of the requests
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will be targeted to the issues of whether the plaintiffs are similarly-situated and/or defendants’
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defenses. The court expects counsel to work collaboratively to propound written discovery on the
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opt-in plaintiffs in a simple and direct fashion that reduces the burden on plaintiffs’ counsel to the
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greatest extent possible.
In light of these findings, the parties must meet and confer and file the following
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documents by April 25, 2018:
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A joint status report stating whether the parties need to submit additional briefing
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on any of the pending discovery motions (ECF Nos. 62, 73, 74, 76, 78, 85, 89) and
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whether the parties withdraw any of those motions in light of this order; and
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plaintiff discovery.
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An amended proposed discovery plan and scheduling order to accommodate opt-in
III.
SANCTIONS
Defendants request attorney’s fees for having to bring the motion to compel. Plaintiffs do
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not respond to the request for sanctions. When a motion to compel is granted in part and denied
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in part, the court may apportion the reasonable expenses for the motion. Fed. R. Civ. P.
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37(a)(5)(C). As for the opt-in plaintiffs, given that the law is unsettled on their responsibility for
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responding to individualized discovery, the court declines to award sanctions for their failure to
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respond to discovery pending the outcome of this motion. While the named plaintiffs’ failure to
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respond to discovery was not substantially justified, the court declines to apportion expenses
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under these circumstances because the substantial majority of the briefing was dedicated to the
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issue of opt-in plaintiff discovery. The court therefore denies defendants’ request for sanctions.
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IV.
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CONCLUSION
IT IS THEREFORE ORDERED that defendants Parball Newco LLC dba Bally’s, Parball
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Corp., Parball LLC, and PHWLV, LLC dba Planet Hollywood Las Vegas Resort and Casino’s
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Motion to Compel Responses to Discovery Requests (ECF No. 53) is GRANTED in part and
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DENIED in part as stated in this order.
IT IS FURTHER ORDERED that the parties must meet and confer and file a joint status
report and an amended discovery plan and scheduling order by April 25, 2018.
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DATED: March 26, 2018
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C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE
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