Foster v. Nova Hardbanding, LLC et al

Filing 95

ORDER by Magistrate Judge Lourdes A. Martinez GRANTING in part and DENYING in part 84 Defendants' Motion to Compel. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JARROD B. FOSTER, on behalf
of himself and all others similarly situated,
Plaintiffs,

v.

No. CIV-15-1047 CG/LAM

NOVA HARDBANDING, LLC and
KENNETH BROMLEY,
Defendants.

ORDER GRANTING IN PART
DEFENDANTS’ MOTION TO COMPEL [Doc. 84]
THIS MATTER is before the Court on Defendants’ Motion to Compel Discovery
(Doc. 84), filed November 4, 2016.

Plaintiff filed a response to the motion on

November 17, 2016 [Doc. 85], and Defendants filed a reply on December 1, 2016 [Doc. 87].
Having considered the motion, response, reply, the record of the case, and relevant law, the
Court FINDS that the motion shall be GRANTED in part and DENIED in part.
Plaintiff, on behalf of himself and all others similarly situated, brought suit against
Defendants alleging violations of the Fair Labor Standards Act for failure to properly pay
overtime wages. See [Doc. 84 at 1] and [Doc. 85 at 1]. The Court conditionally certified this
matter as a collective action, and the deadline for opting in has passed. See [Doc. 50]. In their
motion to compel, Defendants ask the Court to compel Plaintiffs to fully respond to Interrogatory
Nos. 9 and 12. See [Doc. 84 at 3 and 14-15]. Defendants also ask the Court to grant their
attorney’s fees related to filing this motion. Id. at 13.

Interrogatory No. 9
Defendants’ Interrogatory No. 9 asks the following:
Between January 1, 2010 through today, did you have a personal
computer, mobile phone, or other electronic device capable of
sending or receiving e-mails, text messages, data, or documents?
If so, identify the make and model of the devices, the operating
systems, software and applications used by the devices, and the
carriers or providers that facilitated data communication services
for the devices, and please identify whose possession each
computer, device, etc., currently resides.
[Doc. 84-1 at 10]. Twenty-four Plaintiffs answered this interrogatory as follows: “Objection: I
have [states brand of smart phone and/or computer], but I am not sure of the exact make and
model, operating systems, software and applications.” See, e.g., [Doc. 84-1 at 20]; see also
[Docs. 84-1, 84-2 and 84-3, Exhibits B-1 through B-24]. Beginning on October 26, 2016,
Plaintiffs began objecting to all of Defendants’ interrogatories by stating that they “exceed[] the
number of interrogatories as allowed by Fed. R. Civ. P. 33,” and also “on the grounds that this
lawsuit was brought on a representative class basis; as such, Defendant is not entitled to
discovery for every single opt-in Plaintiff.” See, e.g., [Doc. 84-4 at 6]; see also [Doc. 84-4,
Exhibits C-1 through C-6].
In their motion to compel, Defendants contend that all Plaintiffs are parties to this case
and, thus, are subject to individualized discovery. See [Doc. 84 at 3-8]. Defendants further
contend that Plaintiffs’ phone records are relevant to the issues in this case because, since no
records were maintained of Plaintiffs’ work hours, Defendants “seek[] to discover what phone
companies call ‘Call Detail Reports,’” which “will likely be able to show the Court a pattern of
usage which demonstrates the average time of day when Plaintiffs ceased working.” Id. at 11.
In response, Plaintiffs contend that representative discovery is proper for this case, and
that, because approximately eighty-percent of Plaintiffs have responded to Defendants’

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discovery requests, “Defendants have ample discovery . . . to try and combat certification.”
[Doc. 85 at 4].

Plaintiffs further contend that Defendants’ request for cell phone carrier

information is unduly burdensome, overly broad, and calls for confidential and sensitive
information.

Id. at 5-8.

Specifically, Plaintiffs contend that Defendants are seeking “to

essentially go on a fishing expedition in an attempt to ascertain whether Plaintiffs were having
personal conversations during the hours they claim to have been working overtime” (id.
at 6, n.5), and that Defendants seek “records of phone calls as well as the content of text
messages and other communications Plaintiffs sent or received, as well as Plaintiffs’ financial
payments and statements relative to Plaintiffs’ cell phone carriers” (id. at 8). Plaintiffs further
contend that Defendants “seek[] to acquire information that may be barred under the
attorney-client privilege,” including “logs of telephone calls and text messages, data transfers
between Plaintiffs and their legal counsel, as well as the potential to include the actual content of
the electronic communications.” Id.
In reply, Defendants maintain that the number of interrogatories they have served on
Plaintiffs is within the parties’ agreement set forth in their Joint Status Report, which was
adopted by the Court, to allow twenty-five interrogatories by each party to any other party. See
[Doc. 87 at 1]. Defendants contend that when an employee consents to join a collective action,
the employee becomes a party plaintiff, and must provide individual discovery. See id. at 2-5.
Defendants state that they only seek to discover the phone companies’ “Call Detail Reports,”
which “contain the time and duration of a call, the time a text message is sent, and the phone
number of the other party to the communication,” and “do not contain the content of the text
message or phone calls, or the name, address, etc. of the other party to the communication.” Id.
at 6. Defendants further contend that Plaintiffs waived their objections to Interrogatory No. 9 by
failing to provide specific grounds for their objections. Id. at 6-7.
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“The grounds for objecting to an interrogatory must be stated with specificity. Any
ground not stated in a timely objection is waived unless the court, for good cause, excuses the
failure.” Fed. R. Civ. P. 33(b)(4). Here, the first twenty four Plaintiffs did not provide any basis
for their objections to Interrogatory No. 9 and, instead, merely stated “Objection” and then
partially answered the interrogatory.

See [Docs. 84-1, 84-2 and 84-3, Exhibits B-1

through B-24]. Plaintiffs ask the Court to find good cause for their failure to specifically object
to this interrogatory because they contend that Interrogatory No. 9 is unduly burdensome, overly
broad, and calls for confidential and sensitive information. See [Doc. 85 at 6].
Pursuant to Rule 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case,”
and the Court must consider “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” In addition, “[i]nformation within this scope of
discovery need not be admissible in evidence to be discoverable.” Id. The Court finds that
consideration of these factors weighs in favor of granting Defendants’ motion to compel with
regard to Interrogatory No. 9, but only to a limited extent. Contrary to Plaintiffs’ contention that
Defendants are seeking the content of Plaintiffs’ text messages and other communications,
Plaintiffs’ financial payments and statements, and information that may be attorney-client
privileged (see Doc. 85 at 8), Defendants have explained that they only seek to discover the
phone companies’ “Call Detail Reports” containing only “the time and duration of a call, the
time a text message is sent, and the phone number of the other party to the communication,” and
“do not contain the content of the text message or phone calls, or the name, address, etc. of the
other party to the communication” (see Doc. 87 at 6). In addition, Defendants have explained
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that, since no records were maintained of Plaintiffs’ work hours, these reports may show a
pattern of usage which could demonstrate the average time of day when Plaintiffs ceased
working. Plaintiffs should have access to this information, and there should be no burden or
expense to Plaintiffs since it will be Defendants who may pursue obtaining the reports from the
phone companies. While Plaintiffs contend that Defendants intend to use this information to
ascertain whether Plaintiffs were having personal conversations during work hours, Plaintiffs
provide no support for this contention. Moreover, this appears to be an admissibility issue,
which the Court need not decide at this time. Finally, the Court rejects Plaintiffs’ contention that
the request is unduly burdensome because Plaintiffs fail to set forth any specific reasons as to
why it is unduly burdensome. See Oleson v. K-mart Corp., 175 F.R.D. 570, 571 (D.Kan. 1997)
(“The objecting party has the burden to substantiate its objections. . . . The objecting party must
specifically show how each discovery request is overly broad, burdensome or oppressive by
submitting affidavits or offering evidence revealing the nature of the burden”) (citations
omitted).
For the reasons stated above, the Court finds that Interrogatory No. 9 falls within the
proper scope of discovery as long as it is limited to seeking only the make and model of
Plaintiff’s mobile phones, and the carrier or provider that facilitated data and/or communication
services for Plaintiffs’ phones, from January 1, 2010 through the present. The Court further
finds that Defendants may only seek “Call Detail Reports” from these carriers or providers. The
Court rejects Defendants’ request for information regarding Plaintiffs’ personal computers,
operating systems, software and applications, and information regarding the possession of each
device, because that information does not appear to be relevant to any claim or defense in this
case.

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The Court next addresses the remaining six objections by Plaintiffs that Defendants’
interrogatories exceed the number of interrogatories allowed in this case, and that Defendants are
not entitled to discovery for each opt-in Plaintiff because this case was brought on a
representative class basis. See [Doc. 85 at 2-4]. The Court disagrees that the number of
interrogatories exceed the number allowed in this case because, in the parties’ Joint Status
Report, the parties agreed to twenty-five interrogatories “by each party to any other party”
(Doc. 75 at 3), and this proposal was adopted by the Court (see Doc. 81 at 1). The Court agrees
with Defendants that, since the number of opt-in Plaintiffs in this case is thirty, not hundreds or
thousands as in many of the cases cited by Plaintiffs (see Doc. 87 at 4, n.2), there is no need to
limit Defendants to representational discovery at this point. Moreover, contrary to Plaintiffs’
assertion that Defendants have ample discovery because “[a]pproximately 80% of the Plaintiffs
in this matter have responded to discovery requests” (Doc. 85 at 4), Plaintiffs failed to provide
most of the information asked for in Interrogatory No. 9.
Finally, the Court notes that Plaintiffs urge the Court to deny Defendants’ motion to
compel because a similar motion in Varela, et al. v. Nova Hardbanding, et al., No. 16-CV-129
was denied by the referral judge in that case. See [Doc. 46, filed in No. 16-CV-129] (denying
Defendants’ motion to compel, Doc. 40). As set forth above, the Court finds that Interrogatory
No. 9, if limited to Plaintiffs’ mobile phones and “Call Detail Reports,” is asking for information
relevant to the issues in this case, especially given Defendants’ assertion that there may be no
other way to refute Plaintiffs’ contentions regarding the hours that they have worked.

In

contrast, it appears that the judge in Varela emphasized that the defendants’ request was not
proportional to the defendants’ needs at that time, and that the defendants there did not show that
the information is relevant.

See [Doc. 48 at 2, filed in No. 16-CV-129] (Clerk’s Minutes

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regarding hearing on the defendants’ motion to compel). Nevertheless, the Court is not bound to
follow the decision entered in Varela and declines to do so.
For the reasons stated above, the Court finds that Interrogatory No. 9 falls within the
proper scope of discovery as long as it is limited to seeking only the make and model of
Plaintiffs’ mobile phones, and the carrier or provider that facilitated data and/or communication
services for Plaintiffs’ phones, from January 1, 2010 through the present. The Court further
finds that Defendants may only use this information to seek “Call Detail Reports” from these
carriers or providers for Plaintiffs’ individual phones, and not for the phones of any family
members who might be on Plaintiffs’ calling plans. Therefore, the Court will grant in part
Defendants’ motion as to Interrogatory No. 9, and all Plaintiffs must supplement their responses
to provide the make and model of their mobile phones, and the carrier or provider that facilitated
data and/or communication services for their mobile phones, from January 1, 2010 through the
present.
Interrogatory No. 12
Defendants’ Interrogatory No. 12 asks the following:
Please list the entities with whom you were employed during the
last ten years, including the name and address of each employer,
the position(s) you held with each employer, the name of your
supervisor with each employer, the dates on which you were or
have been employed by each employer, the reason(s) you left the
employ of any such employer, your gross, weekly compensation
(including tips) received as a result of employment with each
employer, and a description of how you were paid (for example,
salary basis, hourly wage, commission) by each employer.
[Doc. 84-1 at 20]. Plaintiffs objected to this interrogatory by stating:
Objection, Overbroad, Harassing, irrelevant and not reasonably
calculated to lead to the discovery of admissible evidence. This is
an FLSA case with no claim for back or front pay, mitigation of
damages is not an issue and as such, the information requested
serves no legitimate purpose. To add, the time and scope of the
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request is grossly overbroad especially given that the limitations
period under FLSA is 3 years.
See, e.g., [Doc. 84-1 at 21]; see also [Docs. 84-1, 84-2 and 84-3, Exhibits B-1 through B-24].
Defendants contend that they seek “Plaintiffs’ post-Nova employment history to evidence
whether Plaintiffs represented to subsequent employers that they worked in exempt job positions
or duties while working for Nova.” [Doc. 84 at 12]. Defendants state that, on October 28, 2016,
they propounded Interrogatory No. 20 to Plaintiffs, which tailored Defendants’ request for this
information. Id. While Defendants do not attach a copy of Interrogatory No. 20 to their motion
to compel, they state that Interrogatory No. 20 asks Plaintiffs to: “Identify by name, address and
telephone number any post-Nova employer where you either completed an application for
employment, submitted a resume, or otherwise provided your post-Nova employer with
information regarding your employment at Nova.” Id. at 12, n.6.
In response, Plaintiffs contend that “Plaintiffs’ work for other employers has no relevance
to the claims and defenses in this case, which are limited to whether Defendants properly paid
Plaintiffs for the work they performed for Defendants.” [Doc. 85 at 8]. Plaintiffs state that
“[t]he only relevant inquiry in this case is whether Plaintiffs’ job duties at Nova Hardbanding,
LLC, entitle them to the protections of the FLSA, or whether they are exempt,” and that
Plaintiffs’ “previous or future job duties, job titles, rates of pay, and supervisors’ names are
completely irrelevant.” Id. at 9.
In reply, Defendants contend that Plaintiffs’ post-Nova employment history is relevant
because it may provide evidence that Plaintiffs represented to employers that they worked in
exempt job positions at Nova. [Doc. 87 at 7]. Defendants state that “to the extent that the parties
disagree regarding Plaintiffs’ job duties and responsibilities at Nova, Plaintiffs’ representations
to subsequent employers is highly relevant to what Plaintiffs did while working at Nova and to

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the inquiry of whether Plaintiffs were in fact exempt by virtue of their responsibilities and duties
at Nova.” Id. at 8.
The Court agrees with Defendants that the question of whether Plaintiffs represented to
post-Nova employers that they worked in exempt job positions at Nova is relevant as to whether
or not Plaintiffs were exempt employees at Nova. However, Interrogatory No. 12 is much
broader than what Defendants state they are seeking. Interrogatory No. 12 is not limited to
information from post-Nova employers, and instead asks for all of Plaintiffs’ employers for the
past ten years.

See [Doc. 84-1 at 11].

It also asks for names of supervisors, dates of

employment, reasons for leaving the employers, compensation received from each employer, and
a description of how Plaintiffs were paid by each employer. See id. None of this information
relates to whether Plaintiffs represented to employers that they worked in exempt job positions.
Moreover, Defendants state that they propounded an additional interrogatory -- Interrogatory
No. 20 -- on Plaintiffs, which “tailor[ed] [Defendants’] request for this information.” [Doc. 84
at 12]. Defendants do not state whether or not Plaintiffs answered Interrogatory No. 20, or if
they objected to this interrogatory in any way. Regardless, Defendants do not ask the Court to
compel Plaintiffs to respond to Interrogatory No. 20, they ask for responses to Interrogatory
No. 12, and the Court finds that Interrogatory No. 12 is overly broad. The Court, therefore, will
deny Defendants’ motion to compel as to Interrogatory No. 12.
Attorney’s Fees
Finally, the Court considers Defendants’ request for attorney’s fees related to this motion.
See [Doc. 84 at 13-14]. Rule 37(a)(5)(C) provides that, if a motion to compel is granted in part
and denied in part, the court “may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.” Here, Plaintiffs had an opportunity to be heard in that they
were able to address Defendants’ request in their response to the motion to compel. See [Doc. 85
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at 10-11]. The Court finds that attorney’s fees should not be awarded to Defendants. While the
Court granted Defendants’ motion in part as to Interrogatory No. 9, it did so based upon
Defendants’ agreement to significantly narrow that interrogatory to make it tailored to the claims
and defenses in this case.

The Court, therefore, finds that Plaintiffs’ objections to the

interrogatory were substantially justified, and denies Defendants’ request for attorney’s fees.
IT IS THEREFORE ORDERED, for the reasons stated above, that Defendants’
Motion to Compel Discovery (Doc. 84) is GRANTED in part as to Interrogatory No. 9, and
DENIED as to Interrogatory No. 12.
IT IS FURTHER ORDERED that, within ten (10) days of the entry of this order, all
Plaintiffs must supplement their responses to Interrogatory No. 9 to provide the make and model
of the mobile phone used by each Plaintiff, and the carrier or provider that facilitated data and/or
communication services for Plaintiffs’ mobile phones, from January 1, 2010 through the present.
Defendants may only use this information to seek “Call Detail Reports” from these carriers or
providers for Plaintiffs’ individual phones, and not for the phones of any family members who
might be on Plaintiffs’ calling plans.
IT IS SO ORDERED.

__________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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