Perry v. The Margolin & Weinreb Law Group, LLP et al
ORDER granting in part and denying in part 34 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 7/7/2015. (Kandel, Erin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARY ANNE PERRY,
14-3511 (JS) (AKT)
- against -
THE MARGOLIN & WEINREB LAW
GROUP LLP, and PITNICK & MARGOLIN,
LLP, and ALAN WEINREB, C. LANCE
MARGOLIN, and IRWIN PITNICK,
each in their professional and individual
A. KATHLEEN TOMLINSON, Magistrate Judge:
Presently before the Court in this single-plaintiff Fair Labor Standards Act (“FLSA”) and
New York Labor Law (“NYLL”) action is Defendants’ letter motion to compel Plaintiff to respond
to supplemental document requests served following Plaintiff’s deposition. See Defendants’ Letter
Motion (“Defs.’ Mot.”) [DE 34]. Defendants seek to compel Plaintiff to produce copies of her
credit card statements, debit card statements, transaction journals associated with her checking
account, and cellular phone records for the time period when Plaintiff was employed by
Defendants. See generally id. Plaintiff opposes the motion. See Plaintiff’s Letter Motion in
Opposition (Pl.’s Opp.”) [DE 36]. For the reasons explained below, Defendants’ motion is
GRANTED, in part, and DENIED, in part.
Plaintiff was employed as a paralegal for Defendants from October 2009 to March 5, 2014.
Compl. [DE 1] ¶¶ 21, 22. The Complaint alleges that, from the time Plaintiff began working for
Defendants in October 2009 until approximately March 2010, “Defendants required Plaintiff to
work, and Plaintiff did in fact work, approximately fifty-five hours per week in order to fulfill her
duties.” Id. ¶ 23. From about April 2010 to June 2012, “Defendants required Plaintiff to work an
additional ten hours per week from home, thus bringing her weekly total hours worked to
approximately sixty-five.” Id. ¶ 24. From around July 2012 until Plaintiff’s termination on March
5, 2014, “Plaintiff ceased working from home and her office hours decreased by five each week.
Thus, Plaintiff’s hours totaled approximately fifty per week during this period.” Id. ¶ 25. The
Complaint asserts that, for the duration of Plaintiff’s employment, “Defendants paid Plaintiff for
only her first thirty-five hours worked per work,” and “did not compensate Plaintiff at any rate, let
alone the statutorily mandated minimum wage rate of pay or her overtime rate of one and one-half
times her standard rate of pay,” for the hours Plaintiff worked per week in excess of forty. Id. ¶
26. Defendants also “did not keep records of the hours Plaintiff worked.” Id. ¶ 28. At all times
during her employment by Defendants, Plaintiff states that she was a covered “person” and
“employee” entitled to protection under the FLSA and NYLL. Id. ¶ 5.
Based on these allegations, Plaintiff has brought claims against the Defendants under the
FLSA and NYLL. See id. ¶¶ 30-69. Defendants answered the Complaint, denying Plaintiff’s
allegations and asserting a number of affirmative defenses, including that the claims are barred by
statutory exemptions set forth in the FLSA and NYLL. See Answer [DE 13] ¶¶ 87, 94.
Plaintiff’s deposition was held on May 18, 2015. See Excerpts of Plaintiff’s Deposition
Transcript (“Dep. Tr.”), attached to Defs.’ Mot. as Ex. A. During the deposition, Defendants’
counsel questioned Plaintiff about a December 14, 2012 email produced during discovery, which
concerned Plaintiff’s dispute over a charge to her checking account. See id. at 75:1-77:25.
Plaintiff testified that the email was not work-related, and that she sent it during a workday
afternoon from her work email address. See id. 76:11-78:10. Defendants’ counsel also questioned
Plaintiff about a one-page, redacted statement from her checking account which was attached to
the email. See id. at 78:11-83:10. In particular, Defendants’ counsel focused on four transactions
represented on the statement which, according to their dates and times, purport to show that
Plaintiff made purchases on her debit card during working hours. See id. Plaintiff also testified at
her deposition that she occasionally made personal phone calls while at work. Id. at 85:18-21.
Based on the foregoing, Defendants served Plaintiff with supplemental document requests
seeking copies of Plaintiffs’ (1) credit card records and statements, (2) debit card records and
statements, (3) transaction journals associated with Plaintiff’s checking account, and (4) cell phone
records from October 27, 2009 to March 5, 2014, the time period during which Plaintiff was
employed by Defendants. See Defendants’ First Set of Supplemental Document Requests,
attached to Defs.’ Mot. as Ex. D, at 7-8. Plaintiff objected to the production of these documents,
prompting the instant motion to compel.
Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of relevant, non-
privileged information which “appears reasonably calculated to lead to the discovery of admissible
evidence.” Fed. R. Civ. P. 26(b). “‘Relevance” under Rule 26 ‘has been construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on any issue that is or may be in the case.’” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978); Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 114 (2d Cir.
1992) (noting that the scope of discovery under Rule 26(b) is “very broad”); Greene v. City of New
York, No. 08 Civ. 243, 2012 WL 5932676, at *3 (E.D.N.Y. Nov. 27, 2012) (citing Crosby v. City
of New York, 269 F.R.D. 267, 282 (S.D.N.Y. 2010) (explaining that Rule 26 must be construed
broadly to include any matter that has, or could reasonably have, bearing on any issue that is, or
may be, in the case)); Barrett v. City of New York, 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that
the information sought “need not be admissible at trial to be discoverable.”).
Notwithstanding the foregoing principles, however, “[t]he party seeking discovery must
make a prima facie showing that the discovery sought is more than merely a fishing expedition.”
Barbara v. MarineMax, Inc., No. 12 Civ. 368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10, 2013)
(citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5 (D. Conn.
Mar. 4, 2009); Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12,
1994)). In general, “[a] district court has broad latitude to determine the scope of discovery and to
manage the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir.
2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara,
2013 WL 1952308, at *3 (“Courts afford broad discretion in magistrates’ resolution of discovery
Credit Card, Debit Card, and Checking Account Records
Defendants argue that the documents they seek in their supplemental requests are relevant
“to ascertain Plaintiff’s personal activities and whereabouts during the workday,” and more
specifically, “to support Defendants’ defenses that Plaintiff did not ‘always’ work the hours
alleged in the Complaint.” Defs.’ Mot. at 2. Defendants assert that, “[c]ontrary to Plaintiff’s
objection, courts have deemed relevant and have directed the production of credit card, debit card
and cellular phone statements to refute . . . allegations of continued uninterrupted work in FLSA
cases.” Id. Defendants rely exclusively on one such case, Caputi v. Topper Realty Corp., No. 14CV-2634, 2015 WL 893663 (E.D.N.Y. Feb. 25, 2015), in which Magistrate Judge Locke recently
denied the defendant’s motion to compel the plaintiff to produce her credit and debit card
statements. Caputi, 2015 WL 893663, at *4. However, Judge Locke did require the plaintiff to
provide a “sampling” of both her ATM transactions records and her cell phone records for the
relevant time period. Id. at *4-*5. Defendants assert that, unlike Caputi, Plaintiff here has been
deposed and has testified regarding certain debit card transactions set forth in the sample of her
checking account statement. See Defs.’ Mot. at 3. According to Defendants, Plaintiff’s testimony
about these transactions is sufficient to demonstrate that the credit card, debit card, and checking
account records they seek are “relevant and probative on the issue of the actual hours Plaintiff
worked during her employment.” Id. at 3.
In her opposition, Plaintiff characterizes Defendants’ requests as a “fishing expedition,”
and argues that Defendants have provided “no basis to justify their intrusive requests for Plaintiff’s
personal financial records.” Pl.’s Opp. at 2. Noting that courts have been reluctant to allow
defendants in FLSA cases “to comb through a plaintiff’s financial records for the purposes of
establishing that . . . the plaintiff was engaging in non-work activities,” Plaintiff points out that, in
Caputi, Judge Locke declined to compel the plaintiff to produce her credit and debit card
statements due to “the ‘intrusiveness’ and privacy concerns associated with such requests.” Id.
(quoting Caputi, 2015 WL 893663, at *4). Accordingly, Plaintiff urges that Defendants’ motion
be denied in its entirety. See id.
The Court concludes that, under the circumstances presented here, Defendants’ requests for
nearly four years’ worth of Plaintiffs’ credit card, debit card, and checking account statements are
overbroad and not reasonably calculated to lead to admissible evidence. Having reviewed the
portion of the deposition transcript provided by the Defendants, the Court finds the “evidence”
relied upon by Defendants to make this motion to be de minimus. Moreover, although Defendants
attempt to distinguish this case from Caputi, the Court finds that, as in Caputi, the potential
relevance of Plaintiff’s financial records “is outweighed by the intrusiveness of disclosing certain
private information contained therein, including Plaintiff’s personal spending habits.” Caputi,
2015 WL 893663, at *4.
The Court further finds that, contrary to Defendants’ contentions, the single sample
checking account statement Defendants uncovered during discovery and referenced during
Plaintiff’s deposition has not opened the door for the wholesale disclosure of Plaintiff’s financial
records. Defendants apparently believe that any time Plaintiff used her debit credit, credit card, or
checking account, she was not working, and they now hope to discover additional financial records
which, in their view, reveal that Plaintiff conducted her personal banking during hours she alleges
she was working. Defendants’ theory is simply “too speculative to support the broad nature of the
discovery [they] seek” here. Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1349 n.2
(M.D. Fla. 2014); see Caputi, 2015 WL 893663, at *4. Even if Plaintiff did conduct financial
transactions during working hours, “this is not the smoking gun Defendant seems to think it is,” as
Plaintiff “may have engaged in personal banking during breaks from work.” Palma, 18 F. Supp.
3d at 1349. Indeed, Plaintiff testified during her deposition that she took breaks during working
hours in to order to handle personal matters. See Dep. Tr. 247:14-17. “Given the ease with which
transactions can be accomplished remotely,” the Court is not convinced that the extensive financial
records Defendants seek here “will provide sufficiently probative indicators of Plaintiff’s activities
and whereabouts to outweigh the risk of unnecessarily disclosing non-discoverable private
information.” Caputi, 2015 WL 893663, at *4. Finally, the Court does not construe Plaintiff’s
deposition testimony as admitting that she did, in fact, make personal purchases with her debit card
during her working hours, as Defendants suggest.
For the foregoing reasons, Defendants’ motion to compel is DENIED to the extent that it
seeks Plaintiffs (1) credit card records and statements, (2) debit card records and statements, and
(3) transaction journals associated with Plaintiff’s checking account for the period of October 27,
2009 to March 5, 2014.
Cell Phone Records
Defendants argue that they are entitled to Plaintiff’s cell phone records from the same time
period because “Plaintiff has testified that she did, in fact, make personal phone calls during work
time.” Defs.’ Mot. at 3. Plaintiff contends in opposition that Defendants have failed to state any
compelling need for Plaintiff’s cell phone records which would “justify such an extension intrusion
into Plaintiff’s personal life.” Pl.’s Opp. at 3.
The Court finds that Plaintiff’s cell phone records are arguably relevant to the issue of how
many hours Plaintiff alleges she worked for Defendants each week. It is undisputed, as Plaintiff
stated during her deposition, that she occasionally made personal phone calls while at work. Dep.
Tr. at 85:18-21. To the extent these personal phone calls were made from an office telephone,
Defendants would already have access to those records. However, Plaintiff has asserted in this
action that she worked up to 10 hours per week from her home while employed by Defendants.
See Compl. ¶ 24. Plaintiff testified during her deposition that her at-home work often took place
after hours and long into the night. See Dep. Tr. at 249:6-17. Defendants are entitled to test the
accuracy of these assertions, and to that extent, the Court finds that Plaintiff’s cell phone records
are marginally relevant. However, the Court declines to compel Plaintiff to turn over the all of the
cell phone records corresponding to her entire period of employment with Defendants. Rather, in
order “to balance Defendant[s’] entitlement to relevant information against Plaintiff’s concerns
over the possibility of a ‘fishing expedition,’” Caputi, 2015 WL 893663, at *5, the Court will
require Plaintiff to produce a sampling of her cell phone records covering the period of April 2012
through June 2012, which are the last three months Plaintiff alleges that she worked from home for
up to 10 hours per week. See Compl. ¶ 24. Should Defendants have a good-faith basis after
reviewing these phone records to seek additional records, Defendants may make an appropriate
application to the Court at that time.
Accordingly, Defendants’ motion to compel is GRANTED, in part, to the extent that
Plaintiff is directed to produce her cell phone records covering the period from April 1, 2012
through June 30, 2012.
Defendants’ motion to compel is GRANTED, in part, and DENIED, in part.
Dated: Central Islip, New York
July 7, 2015
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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