SPACK v. TRANS WORLD ENTERTAINMENT et al

Filing 110

MEMORANDUM-DECISION & ORDER granting in part and denying in part 85 Motion for Discovery. ORDERED, that plaintiffs Motion to Compel (Dkt. No. 85) is GRANTED IN PART: (1) plaintiffs are to provide to defendants, within twenty-one (21) days after the close of the opt-in period, the full names of the SMs who chose to opt in, and within forty-five (45) days after receipt of those names, defendants are to provide to plaintiffs the following information for all SMs who opted-in as plaintiffs i n this action: a) Human Resources employees responsible for payroll of opt-in SMs and their contact information; b) District Managers for each opt-in SM and their contact information; c) Dates of employment, pay records and earning statements reflect ing hours worked for all opt-in SMs; d) documents showing compensation and wages paid for all opt-in SMs, and e) employee handbooks; hours worked and time records, and weekly schedules for all opt-in SMs; and it is further ORDERED, that within thirt y (30) days from the date of this Memorandum- Decision and Order, defendants are to provide to plaintiffs the full names, last known addresses, and TWEC- issued work e-mail addresses, where applicable, of all SAMs employed by defendants at any of t heir stores located within the United States for one week or more, from April 1, 2014, to the date of this Memorandum-Decision & Order; and it is further ORDERED, that plaintiffs demand for 20% sample discovery of SAMs is considered WITHDRAWN without prejudice and with opportunity to renew pending the outcome of plaintiffs intended motion for conditional certification for a collective of SAMs; and it is further ORDERED, that insofar as plaintiffs Motion to Compel seeks (1) full names, last known mailing addresses, email addresses, phone number(s), store locations, and dates of employment for the entire class of store managers and (2) 20% sample group discovery of the SM class pertaining to names, contact information, date s of employment, store locations and job titles for sample group members (interrogatories 1 and 3), such request is DENIED as moot; and it is further ORDERED, that plaintiffs Motion to Compel is otherwise DENIED. IT IS SO ORDERED. Signed by Magistrate Judge Christian F. Hummel on 2/13/2019. (khr)

Case 1:17-cv-01335-TJM-CFH Document 110 Filed 02/13/19 Page 1 of 13

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CAROL SPACK, TABITHA SCHMIDT,
Plaintiffs,
v.

1:17-CV-1335
(TJM/CFH)

TRANS WORLD ENTERTAINMENT
CORPORATION; RECORD TOWN, INC.,
Defendants.

NATASHA ROPER,
Plaintiff
-vTRANS WORLD ENTERTAINMENT
CORPORATION, RECORD TOWN, INC.,
Defendants.

APPEARANCES:

OF COUNSEL:

Mashel Law LLC
500 Campus Drive, ste. 303
Morganville, New Jersey 07751
Attorneys for Spack, Schmidt

AMY CATHERINE BLANCHFIELD, ESQ.
PETER DOUGLAS VALENZANO, ESQ.
STEPHEN T. MASHEL, ESQ.

Cooper, Erving Law Firm
39 North Pearl Street, 4th fl.
Albany, New York 12207
Attorneys for Spack, Schmidt

CARLO ALEXANDRE C. DE OLIVERIA, ESQ.

Shavitz Law Group, P.A.
830 3rd Avenue, 5th fl.
New York, New York 10022
Attorneys for Roper

MICHAEL J. PALITZ, ESQ.

Jackson Lewis P.C.
677 Broadway, 9th fl.
Albany, New York 12110
Attorneys for defendants

WILLIAM J. ANTHONY, ESQ.
CHRISTOPHER JOHN STEVES, ESQ.
VINCENT E. POLSINELLI, ESQ.

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CHRISTIAN F. HUMMEL
United States Magistrate Judge
MEMORANDUM-DECISION & ORDER
I. Background
Presently pending before the Court is plaintiffs’ Motion to Compel. Dkt. No. 85.
Defendants have opposed this motion. Dkt. No. 90. Plaintiffs filed a reply. Dkt. No. 92. After
this Court requested the parties to address how, if at all, this Court’s January 15, 2019,
Memorandum-Decision & Order (“MDO”) granting in part the Motion for Conditional Certification
impacted the pending motion, dkt. no. 107, the parties filed letter briefs. Dkt. Nos. 108, 109.
For the following reasons, plaintiffs’ Motion to Compel is granted in part and denied in part.

II. Discussion
A. Impact of January 15, 2019 Memorandum-Decision & Order
Parties agree that plaintiffs’ Motion to Compel is rendered moot by the Court’s January
15, 2019, MDO insofar as the motion seeks the “full names, last known mailing addresses,
email addresses, phone number(s), store locations, and dates of employment for the entire
class of store managers” and a “20% sample group discovery of the SM [Store Manager] class
pertaining to names, contact information, dates of employment, store locations and job titles for
sample group members (interrogatories 1 and 3).” Dkt. No. 109 at 2. Accordingly, insofar as
the Motion to Compel seeks the above information, such request is denied as moot.
Parties also agree that plaintiffs’ demands for discovery relating to the Senior Assistant
Store Managers (“SAMs”) have not been affected by the MDO. Dkt. Nos. 108, 109. Plaintiffs
contend that their demand for the full names, last known mailing addresses, email addresses,
phone numbers, store locations, and dates of employment for the entire putative class of SAMs

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is still pending, and request the Court order production of such information. Dkt. No. 109 at 12. Defendants reiterate their argument that discovery relating to the SAMs is premature as the
Court has yet to conditionally certify the SAMs. Dkt. No. 108 at 1-2. The Court will address this
demand below.
Although parties do not dispute that plaintiffs’ request for sample discovery relating to
SAMs has not been impacted by the MDO,1 plaintiffs agree to hold in abeyance their demand
for 20% sample discovery of NJ/PA class of SAMs “pending the outcome of Plaintiff’s intended
Motion for Conditional certification of the SAM class.” Dkt. No. 109 at 3. The Court grants
plaintiffs request to withdraw, without prejudice, their Motion to Compel insofar as it seeks 20%
sample discovery of NJ/PA class of SAMs, permitting plaintiffs to renew pending the outcome of
a timely and properly filed motion for conditional certification.
Finally, plaintiffs’ Motion to Compel demands that defendants produce 20% sample
discovery of the entire putative NJ/PA class of SMs and SAMs. Dkt. No. 85 at 9-14.
Defendants contend that plaintiffs’ request, insofar as it relates to SMs, is “rendered
unnecessary” by this Court’s MDO. Dkt. No. 108 at 1. They argue,
[n]ow that a nationwide collective of SMs has been conditionally
certified, notice will be sent and SMs who desire to opt-in to the
action will do so. The parties will then engage in discovery
relating to the claims of those individualized opt-ins (the exact
scope of which cannot yet be determined, but will likely be
proportional to the number of opt-ins). That discovery is
tantamount to the “Sample Discovery” sought by Plaintiffs’ motion
to compel – and is appropriate now that a collective has been
conditionally certified.
Dkt. No. 108 at 2.

1

Defendants concede that the January 15, 2019, MDO did not affect plaintiffs’ demand for 20%
sample discovery of SAMs, but contend, as they did in opposition to the Motion to Compel, that such
discovery is inappropriate as the SAMs have not yet been conditionally certified. Dkt. No. 108 at 1-2.

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Plaintiffs disagree with defendants’ assertion that their request for 20% sample
discovery of a class of SMs has been fully “rendered necessary” by the Court’s January 15,
2019, MDO. Dkt. No. 109 at 2. They argue that the
following categories of items during the liability period (one week
from April 1, 2014 to the date of the Order) is [sic] not impacted by
the January 15th Order: a) Human Resources employees
responsible for payroll of sample group members and their
contact information; b) District Managers for each member of
sample group and their contact information;
c) Dates of employment, pay records and earning statements
reflecting hours worked; d) documents showing compensation
and wages paid, and e) employee handbooks; hours worked and
time records, and weekly schedules. Therefore, Plaintiffs seek to
compel Defendants to respond to the following document
demands for the 20% sample group discovery of the SM class:
Document Demands 5, 9, 17, 23, 30, 34. Plaintiffs also seek to
compel Defendants’ responses to the following interrogatories for
the 20% sample group discovery of the SM class: Interrogatories
7, 9, 11, 12.
Dkt. No. 109 at 3.
Thus, as parties either agree that all other portions of the Motion to Compel have been
rendered moot by the January 15, 2019, MDO and the 20% sample discovery of the NJ/PA
class of SAMs, is withdrawn without prejudice, the Court addresses below plaintiffs’ Motion to
Compel insofar as plaintiffs seek (1) 20% sample discovery of the NJ/PA class of SMs as to
certain categories; and (2) the names, last known mailing address, e-mail addresses, phone
numbers, store locations, and dates of employment for the entire putative class of SAMs.

B. Sample Discovery of NJ/PA Class of SMs2

2

In plaintiffs’ Motion to Compel, plaintiffs “agree[d] to limit their sample group discovery demands
at this pre-class certification point in time to only those SMs and SAMs who comprise Plaintiffs Spack’s
and Schmidt’s NJ/PA Rule 23 putative classes, to wit, those SMs and SAMs who worked for TWEC at its
New Jersey and Pennsylvania stores during the Liability Period.” Dkt. No. 85-1 at 7. Thus, it is the Court’s
understanding that in the categories discussed within this section, plaintiffs seek a “sample class” limited
to those SMs who worked in TWEC’s New Jersey and Pennsylvania stores. Id.

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Plaintiffs contend that they still seek to compel responses to interrogatory numbers 7,3
9,4 11,5 and 12,6 and document demands 5,7 9,8 13,9 17,10 23,11 30,12 and 34.13 Dkt. No. 109 at
3

Interrogatory 7: “For each member of the Sample Group, identify by full name, job title, last
known address, phone number, and dates of employment with Defendant, each employee of Defendant,
including, but not limited to, any Human Resources employee, who worked on and/or were responsible
for, in whole or in part, payroll matters for each member of the Sample Group during the Liability Period.”
Dkt. No. 84-5 at 10.
4

Interrogatory 9: “For each member of the Sample Group, identify by full name, job title, last
known address and phone number, and dates of employment with Defendant . . . , each individual
employed by Defendant who, at any time during the Liability Period, managed, supervised, or oversaw
them, and list each store in his/her region during this period.” Dkt. No. 84-5 at 11.
5

Interrogatory 11: “For each member of the Sample Group, identify by full name, job title, last
known address and phone number, and dates of employment with Defendant, each District Manager
employed by Defendant who, at any time during the Liability Period, who managed, supervised, or
oversaw them, and list each store in his/her region during that period.” Dkt. No. 84-5 at 11.
6

Interrogatory 12: “For each member of the Sample Group, identify by full name, job title, last
known address and phone number, and dates of employment with Defendant, each Regional Manager
employed by Defendant who, at any time during the Liability Period managed, supervised, or oversaw
them, and list each store in his/her region during this period.” Dkt. No. 84-5 at 11.
7

Document demand 5: “For each member of the Sample Group all monthly, weekly, or bi-weekly
payroll records, payroll registers, paystubs, paychecks, receipts, and ledgers reflecting the hours they
worked during each workweek while employed by the TWEC Defendants during the Liability Period.” Dkt.
No. 85-5 at 10.
8

Document demand 9: “For each member of the Sample Group, all monthly, weekly, or bi-weekly
earnings statements or paystubs including monthly gross wages, monthly net wages, and, any deductions
while employed by the TWEC Defendants during the Liability Period.” Dkt. No. 85-5 at 10.
9

Document demand 13: “For each member of the Sample Group, all documents showing the
compensation that the TWEC Defendants paid to him or her during the Liability Period, including but not
limited to payroll records, payroll registers, paystubs, paychecks, earning statements, receipts, and
ledgers.” Dkt. No. 85-5 at 11.
10

Document demand 17: “For each member of the Sample Group, all documents showing the
wages that the TWEC Defendants paid to him or her during the Liability Period, including paychecks,
earnings statements and/or earnings/pay stubs.” Dkt. No. 85-5 at 11.
11

Document demand 23: “All employee handbooks distributed [by] the TWEC Defendants to
Plaintiff Spack, Putative Plaintiff Tabitha Schmidt, any Sample Group Member, and/or any NJ/PA Class
Member during the liability Period.” Dkt. No. 85-6 at 1.
12

Document demand 30: “For each member of the Sample Group, all records of hours worked,
including but not limited to close-out reports, time records time reports, clock-in reports, clock-in sheets,
sign-in/sign-out sheets, spreadsheets and/or any other document which reflects the amount of time
worked by each member of the Sample Group. If there is more than one version of these documents, or if

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3. In plaintiffs’ Motion to Compel,14 plaintiffs contend that 20% sample discovery for SMs is
necessary to “satisfy the class certification requirements of Fed. R. Civ. P. 23.” Dkt. No. 85-1 at
7.
Defendants contend that the Court’s partial grant of plaintiffs’ Motion for Conditional
Certification moots plaintiffs’ request for 20% sample discovery as it relates to SMs because,
once the opt-in period ends, discovery can proceed relating to those SMs who opted in, and
such discovery would be “tantamount to the ‘Sample Discovery’ sought by Plaintiffs’ Motion to
Compel – and is appropriate now that a collective has been conditionally certified.” Dkt. No.
108 at 2. Thus, it appears that the disagreement that exists between the parties is whether
plaintiffs are entitled to 20% “sample group” discovery for SMs as to these remaining categories
or whether, as defendants suggest, this discovery should be limited to the specific plaintiffs who
choose to opt-in.
The Court finds that, at this time, plaintiff is entitled to the requested categories of
discovery, but limited to those SMs who opt-in – not for a 20% sample group of all SMs or a
20% sample of SMs employed at New Jersey or Pennsylvania TWEC stores. To require
defendants to provide this information relating to a 20% sample of SMs would appear to the
Court a wasted effort. Conditional certification has been granted for SMs; thus, SMs who wish
to join the lawsuit will have to opt-in within the set time frame. Even if the Court were to order
20% sample discovery of SMs, as the opt-in period is likely to close before plaintiffs would

the documents have been adjusted electronically, provide all versions of the documents.” Dkt. No. 85-6 at
2.
13

Document demand 34: “All documents, including but not limited to weekly schedules,
concerning and/or for how much time each member of the Sample Group was scheduled to work.” Dkt.
No. 85-6 at 2.
14

Plaintiffs do not explicitly address this in their letter brief. See Dkt. No. 109.

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receive the sample discovery,15 it is unlikely that the sample discovery would assist plaintiffs in
identifying potential SM plaintiffs or further defining the collective. Indeed, the Court cannot see
how the requested 20% sample discovery for SMs would assist plaintiffs any greater than
would allowing plaintiffs the requested categories of discovery limited to those SMs who opt in.
As defendants have stated that they will provide plaintiffs discovery on these topics as it relates
to any SMs who opt-in, plaintiffs will soon have access to this information. Dkt. No. 108 at 2.
Accordingly, insofar as plaintiffs seek to compel from defendants 20% sample discovery
for all SMs or SMs employed at TWEC’s New Jersey or Pennsylvania stores, that request is
denied. However, insofar as plaintiffs request the above categories of information limited to
those SMs who opt into this action, plaintiffs request is granted. Within twenty-one days after
the close of the opt-in period, plaintiffs must provide to defendants the names of the SMs who
opted-in. Thereafter, defendants will have forty-five days to provide to plaintiffs responses to
interrogatories 7, 9, 11, and 12 and document demand numbers 5, 9, 13, 17 23, 30, 34, limited
to those SMs who chose to opt-in as plaintiffs in this action. Should plaintiffs determine that the
FLSA opt-in SM plaintiffs are too numerous to be practicable, plaintiffs may renew their request
for 20% sample discovery as to these demands.

C. Pre-Certification Discovery as to SAMs
Plaintiffs seek to compel defendants to provide the full names, last known mailing
address, e-mail addresses, phone numbers, store locations, and dates of employment for the
entire putative class of SAMs. Dkt. No. 85-1. Defendants oppose precertification discovery for
SAMs, arguing that plaintiffs “have asserted an unsupportable FLSA claim on their behalf”

15

The opt-in period for SMs closes on April 6, 2019. See Dkt. No. 106.

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because “Defendants’ treatment of SAMs was entirely consistent with federal law.” Dkt. No. 90
at 5, 13-14. Thus, defendants argue that plaintiffs have failed to show evidence of a companywide pay policy that violates the law. Id. at 14. Further, defendants contend that plaintiffs have
not demonstrated why they “need the contact information of every SAM, nationwide” in order to
file a motion for conditional certification of their claims. Dkt. No. 90 at 13 (noting that, although
plaintiffs offered to limit their request for sample discovery for the putative Rule 23 classes to
New Jersey and Pennsylvania, “[t]hey have not made a similar offer to limit their request for the
contact information of SAMS – and instead have continued to insist that they are entitled to the
contact information of all SAMs nationwide.”).
“At the pre-certification stage of a collective action under the FLSA, discovery is limited
to issues of certification.” Charles v. Nationwide Mut. Ins. Co., No. 09-CV-94 (ARR), 2010 WL
7132173, at *3 (E.D.N.Y. May 27, 2010) (citing Acevedo v. Ace Coffee Bar, 248 F.R.D. 550,
553 (N.D. Ill. 2008) (additional citations omitted)). “Courts in this Circuit have disagreed over
whether to grant precertification discovery or the extent of such discovery to permit.” Lapointe
v. Target Corp., No. 16-CV-216 (GTS/CFH), 2017 WL 3288506, at *3 (N.D.N.Y. Mar. 24, 2017)
(citing Da Silva Moore v. Publicis Groupe, 868 F. Supp. 2d 137, 169-70 (S.D.N.Y. 2012) (noting
discovery should be limited to the named plaintiffs and company policies prior to class
certification); Whitehorn v. Wolfgang's Steakhouse, Inc., No. 09 Civ. 1148(LBS), 2010 WL
2362981, at *2 (S.D.N.Y. June 14, 2010) (“While some district courts have exercised this
discretion to deny pre-certification disclosure of contact information, the weight of authority in
this district counsels in favor of allowing such disclosures in FLSA cases.”) (citations omitted);
Charles, 2010 WL 7132173, at *3 (“Within these confines, whether to compel production of the
names and addresses of putative class members lies within the discretion of the trial court –
indeed, courts have ruled both ways on the question.”) (citing cases).

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As this Court has set forth previously:
Given the Supreme Court's direction that ‘the broad remedial goal
of the [FLSA] should be enforced to the full extent of its terms,’
pre-certification discovery is appropriate to enable the [p]laintiff to
define the class and identify similarly situated employees.”
Whitehorn, 2010 WL 2362981, at *2 (quoting Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 173 (1989)). Thus,
“[p]re-certification discovery of employee contact information will
enable [the] [p]laintiff to make a fuller showing at the conditional
certification stage, or reveal that the collective action is not
suitable for certification.” Whitehorn, 2010 WL 2362981, at *2
(citation omitted); Fei v. WestLB AG, No. 07 Civ. 8785(HB/FM),
2008 WL 7863592, at *2 (S.D.N.Y. Apr. 23, 2008) (“[C]onditional
certification is not a prerequisite to the turnover of information
concerning the identity of potential class members. . . . Indeed,
the information that [the plaintiff] seeks obviously will be of
considerable help to [the plaintiff] in his efforts to define the class.
. . .”) (citation omitted).
Lapointe, 2017 WL 3288506, at *3. In considering whether to allow pre-certification discovery,
the Court must balance various considerations. See id. (citing Fed. R. Civ. P. 26(b)(1)
(considering whether to grant FLSA precertification discovery by balancing the requesting
party’s need for the information to certify the collective, the potential plaintiffs’ reasonable
expectations of privacy, and the defendants’ concern that plaintiffs’ counsel may be seeking
information for the purpose of identifying additional clients).
Plaintiffs argue that they have demonstrated the need for precertification discovery as
to the potential collective of SAMs. Plaintiffs allege that defendants denied both SMs and
SAMs overtime compensation for hours worked over forty per week and because both groups
were forced to work off the clock without compensation. Dkt. No. 85-2 at 5. Although
defendants argue that plaintiffs are unable to state an FLSA claim for the SAMs, as (1)
defendants properly utilized the fluctuating work week method for SAMs, a method which has
been validated by the United States Supreme Court, and (2) plaintiffs have failed to produce
evidence of company-wide policy requiring SAMs to work off-the-clock, Dkt. No. 90 at 14, at

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this early stage, the Court is not to consider the merits underlying the FLSA or Rule 23 claims;
rather, the Court balances the plaintiffs’ need for the requested information in order to proceed
with conditional certification, along with the burden to defendants, and any potential privacy
concerns of the SAMs. Lapointe, 2017 WL 3288506, at *3.
On balance of these factors, the Court concludes that allowing for this limited precertification discovery will assist parties and the Court in determining whether conditional
certification is appropriate for a collective of SAMs. See, e.g., Whitehorn, 2010 WL 2362981,
at *2 (“Pre-certification discovery of employee contact information will enable [the] [p]laintiff to
make a fuller showing at the conditional certification stage, or reveal that the collective action is
not suitable for certification.”); see also Gordon v. Kaleida Health, No. 08-CV-378S F, 2012 WL
432885, at *2 (W.D.N.Y. Feb. 9, 2012)
(“It is well-established that in wage and hour cases, pre-class certification discovery of putative
class member contact information is permissible to assist in demonstrating that representative
plaintiffs can satisfy Rule 23 criteria.”) (citing Doyon v. Rite Aid Corporation, 249 F.R.D. 43 (D.
Me. Nov. 18, 2011)). Potentially, such discovery may permit greater judicial efficiency and
economy, as if the discovery demonstrates that plaintiffs are unlikely to obtain even conditional
certification of the collective of SMs, plaintiffs may decide not to file such a motion, and,
conversely, if such discovery provides information suggesting plaintiffs and the putative SAMs
are similarly situated, plaintiffs will be able to make a stronger and more efficient motion for
conditional certification. Indeed, were the Court to deny this minimal pre-certification discovery
demand, the Court is doubtful that plaintiffs would be able to adequately make the
determination whether to seek conditional certification of the class of SAMs.
Although it appears defendants are suggesting that the Court, if it allows precertification
discovery, should limit it to potential opt-in plaintiffs employed at the New Jersey and

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Pennsylvania TWEC stores, as the Court is requiring defendants provide only the names, last
known addresses, and work e-mail addresses, where applicable, it would not appear that this
request is so unduly burdensome as to weigh in favor of limiting these categories of precertification discovery to these two states. Dkt. No. 90 at 13.
Although defendants raise concern that plaintiffs are requesting precertification
discovery merely to solicit additional clients, dkt. no. 90 at 11, the Court believes that limiting
the pre-certification discovery to the full names, last known addresses, and TWEC-issued work
e-mail addresses of SAMs currently employed by TWEC minimizes the risk of privacy
infringement of the potential class members. Further, the Court finds that the plaintiffs’ need
for such information outweighs the minimal privacy concerns to the potential putative collective.
See generally Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677 (N.D.N.Y. 2015) (“To the extent
defendants express concerns regarding the potential plaintiffs' right to privacy, the undersigned
finds that plaintiff has a compelling need for discovery and his need for the contact information
of these potential plaintiffs outweighs the minimal privacy concerns resulting from the release of
names and addresses.”) (citing Whitehorn, 2010 WL 2362981, at *3).
Plaintiffs’ motion, insofar as it seeks to compel the full names, last known mailing
address, phone number, store location, dates of employment, is granted in part. Insofar as
plaintiffs request the full names and last known addresses and of the SAMs, this request is
granted, and defendants must provide to plaintiffs the full names and last known addresses of
all SAMs employed by defendants at any of its United States store locations for at least one
week from April 1, 2014, until the date of this Memorandum-Decision & Order. Insofar as
plaintiffs seek e-mail addresses of SAMs, that request is granted to the limited extent that
defendants must provide to plaintiffs any work e-mail addresses issued by TWEC for any SAMs
currently employed by defendants. Insofar as plaintiffs seek store locations, phone numbers,

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personal e-mail addresses, and dates of employment, courts, including this one, have
previously held that precertification discovery is best limited to the names and addresses of
potential members of the collective. DaSilva Moore, 868 F. Supp.2d at 169-70 (“The Court was
reminding plaintiffs that they are only entitled to discovery related to either the named plaintiffs
or to company policies to support a motion (not yet filed, much less granted) for class
certification; plaintiffs are not entitled to discovery about individual potential class members until
plaintiffs have moved for and been granted class certification.”). Accordingly, plaintiffs’ demand
for store locations, phone numbers, personal e-mail addresses, and dates of employment of
the SAMs is denied.

III. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiffs’ Motion to Compel (Dkt. No. 85) is GRANTED IN PART:
(1) plaintiffs are to provide to defendants, within twenty-one (21) days after the close of
the opt-in period, the full names of the SMs who chose to opt in, and within forty-five (45) days
after receipt of those names, defendants are to provide to plaintiffs the following information for
all SMs who opted-in as plaintiffs in this action:
a) Human Resources employees responsible for payroll of opt-in SMs and their contact
information;
b) District Managers for each opt-in SM and their contact information;
c) Dates of employment, pay records and earning statements reflecting hours worked
for all opt-in SMs;
d) documents showing compensation and wages paid for all opt-in SMs, and
e) employee handbooks; hours worked and time records, and weekly schedules for all

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opt-in SMs; and it is further
ORDERED, that within thirty (30) days from the date of this Memorandum-Decision and
Order, defendants are to provide to plaintiffs the full names, last known addresses, and TWECissued work e-mail addresses, where applicable, of all SAMs employed by defendants at any of
their stores located within the United States for one week or more, from April 1, 2014, to the
date of this Memorandum-Decision & Order; and it is further
ORDERED, that plaintiffs’ demand for 20% sample discovery of SAMs is considered
WITHDRAWN without prejudice and with opportunity to renew pending the outcome of plaintiffs’
intended motion for conditional certification for a collective of SAMs; and it is further
ORDERED, that insofar as plaintiffs’ Motion to Compel seeks (1) “full names, last known
mailing addresses, email addresses, phone number(s), store locations, and dates of
employment for the entire class of store managers” and (2) “20% sample group discovery of the
SM class pertaining to names, contact information, dates of employment, store locations and
job titles for sample group members (interrogatories 1 and 3),” such request is DENIED as
moot; and it is further
ORDERED, that plaintiffs’ Motion to Compel is otherwise DENIED.
IT IS SO ORDERED.
Dated: February 13, 2019
Albany, New York

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