Agerbrink v. Model Service LLC et al
MEMORANDUM AND ORDER granting in part and denying in part 148 Motion to Compel; denying 163 Motion to Compel. For the reasons discussed above, the plaintiff's motion to compel (Docket no. 148) is granted in part and denied in part. Spe cifically, within thirty days of the date of this order, the defendants shall (1) produce for all exclusive fit models, except those with arbitration agreements, the same information they have previously provided with respect to Ms. Agerbrink and the exemplar models; for exclusive fit models who have arbitration agreements with MSA, the defendants shall those agreements; (2) produce financial check reports and reports on "go-sees" for all exclusive fit models except those with arbitrat ion agreements; and (3) permit plaintiff to inspect and copy, at her expense, the contracts, vouchers, and schedule books. In all other respects, the plaintiff's motion is denied. The defendants' motion to compel disclosure of tax returns (Docket no. 163) is denied. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 3/8/2017) Copies Transmitted this Date By Chambers. (anc)
Amended Complaint (“SAC”), ¶ 1).
From March 2013 through June
2014, she worked for the corporate defendant, Model Service LLC,
doing business as MSA Models (“MSA”).
(SAC, ¶¶ 25, 91).
classified her as an independent contractor, Ms. Agerbrink contends
that she should have been deemed an employee and compensated
(SAC, ¶¶ 25-26, 31).
She has brought this action
alleging violations of the Fair Labor Standards Act (the “FLSA”),
29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”).
She also alleges that the defendants were unjustly
enriched when MSA relied on an unenforceable liquidated damages
provision in her contract to withhold monies owed to her.
This case has been conditionally certified pursuant to 29
U.S.C. § 216(b) as a collective action on behalf of all fit models
who have worked for MSA at any time after September 2011, three
years before the action was filed (the “Fit Model Collective”).
Agerbrink v. Model Services LLC, No. 14 Civ. 7841, 2016 WL 406385,
at *1-2, 9 (S.D.N.Y. Feb. 2, 2016).
Ms. Agerbrink also intends to
seek certification under Rule 23 of the Federal Rules of Civil
Procedure of a class of all fit models who could assert NYLL claims
(the “Fit Model Class”), as well as all models employed by MSA who
were subject to withholding of compensation under the challenged
liquidated damages provision (the “Unjust Enrichment Class”).
The Honorable J. Paul Oetken, U.S.D.J., has granted partial
summary judgment in favor of the plaintiff on her unjust enrichment
Agerbrink v. Model Services LLC, 196 F. Supp. 3d 412, 416-19
responded. In part, that response consisted of identifying fifteen
“exemplar” models with respect to whom the defendants collected
more detailed information.
I will discuss the specifics of the
parties’ discovery disputes in connection with the analysis of
A. Plaintiff’s Motion to Compel
Generally speaking, the plaintiff’s complaints about the
defendants’ discovery responses fall into three broad categories:
database discovery, email, and contracts.
(Tr. at 2).1
the plaintiff also seeks an order effectively compelling the
defendants to produce virtually everything that the plaintiff has
ever requested, regardless of whether the defendants have already
“Tr.” refers to the transcript of oral argument held on
February 3, 2017.
asserted meritorious objections. Ms. Agerbrink’s memorandum of law
recategorizes the original requests into 38 new groupings, but does
not acknowledge the extent to which these requests have been
addressed. (Memorandum in Support of Plaintiff’s Omnibus Motion to
Compel (“Pl. Memo.”) at 4-39).
Take, for example, the category
that the plaintiff characterizes as “Agreements Between Defendants
and MSA Fit Models,” which encompasses five different document
(Pl. Memo. at 19-20).
This category includes Requests
Nos. 13 and 69, which sought:
all documents concerning or referring to the negotiation,
execution, agreement, rejection, or finalization of any
agreement or contract (whether oral or written, formal or
informal) between Defendants and any or all MSA Fit
Model(s), including with respect [to] all documents
concerning Defendants’ decision to enter or decline to
enter into any or all agreements or contracts (whether
oral or written, formal or informal), including with
respect [to] all management agreement(s) or modeling
(Plaintiff’s First Request for Production of Documents (“Pl. First
Doc. Req.”), attached as Exh. C to Declaration of Cyrus E. Dugger
dated Nov. 4, 2016 (“Dugger 11/4/16 Decl.”), Request No. 13
(emphasis omitted)), and “all documents concerning or referring to
the working conditions or schedules of any or all MSA Fit Model(s)”
(Pl. First Doc. Req., Request No. 69 (emphasis omitted)).
with respect to these demands, the defendants agreed to produce
responsive, non-privileged documents (Defendants Model Service LLC
Plaintiff’s First Request for Production of Documents, attached as
Exh. E to Dugger 11/4/16 Decl., Requests Nos. 13, 69), and the
The document demands in this category that the defendants
objected to and did not agree to comply with request the following:
all documents reflecting, containing, or constituting any
agreement or contract (whether written or oral, formal or
informal) between Defendants and any or all MSA Fit
Model(s), including any agreement concerning the
management agreement, model management agreement,
compensation, talent management agreement, or concerning
the full or partial release, waiver, or limitation of
rights or claims (including all documents concerning any
associated payment related thereto).
(Pl. First Doc. Req., Request No. 5 (emphasis omitted)); “all
documents concerning or referring to the terms or conditions of any
or all MSA Fit Model(s) provision of fit modeling services (or
potential provision of fit modeling services) to any or all apparel
industry client(s)” (Pl. First Doc. Req., Request No. 18 (emphasis
(including machine-readable electronic documents) concerning all or
The defendants’ objections were well-taken.
Courts have long held that requests for “any and all” documents are
See Gropper v. David Ellis Real Estate, L.P.,
No. 13 Civ. 2068, 2014 WL 518234, at *4 (S.D.N.Y. Feb. 10, 2014)
(holding request for “any and all documents” inherently overbroad);
Rice v. Reliastar Life Insurance Co., Civ. A. No. 11-44, 2011 WL
5513181, at *2 (M.D. La. Nov. 10, 2011) (finding that “a request
for ‘any and all documents’ relating to a particular subject is
overbroad and amounts to little more than a fishing expedition”);
Badr v. Liberty Mutual Group, Inc., No. 3:06CV1208, 2007 WL
2904210, at *3 (D. Conn. Sept. 28, 2007) (finding request for “any
and all” documents overly broad); Pollard v. E.I. DuPont de Nemours
& Co., No. 95-3010, 2004 WL 784489, at *5 (W.D. Tenn. 2004)(holding
“any and all” request ambiguous and overbroad).
It is thus
unhelpful for the plaintiff to file a blunderbuss motion to compel
unhelpful. They have produced relatively complete information with
respect to Ms. Agerbrink and fifteen exemplar models, and they have
offered to produce similar information for perhaps fifteen more
models, to be chosen by the plaintiff.
(Memorandum of Law in
Opposition to Plaintiff’s Omnibus Motion (“Def. Memo.”) at 5; Tr.
at 32; Declaration of Evan Spelfogel dated Dec. 7, 2016, ¶¶ 3-4).
The problem is that the defendants adamantly decline to accept any
sample as representative.
(Tr. at 32-33).
But the defendants
cannot have it both ways: they cannot refuse discovery that is
necessary to demonstrate prerequisites for class certification such
as commonality and typicality and at the same time argue (as they
(Tr. at 33).
The plaintiff must be permitted to
take discovery that will potentially show that the models are
sufficiently similarly situated to warrant class certification.
There is a solution to this problem that does not involve the
plaintiff redrafting her discovery demands (or my doing it for
her): the defendants shall produce for all exclusive fit models the
same information they have produced for the fifteen exemplars. The
defendants’ objection to this approach is one of burden; they have
assembling the information for the plaintiff and each of the
(Declaration of William Ivers dated Dec. 7, 2016 (“Ivers Decl.”),
Such an expenditure of time, however, would not be
There is, of course, no inconsistency between agreeing that
a random sample is “representative,” that is, that its
characteristics reflect those of the universe as a whole, and
arguing that a putative class lacks commonality. If each member of
the class is, in fact, unique, then a random sample would reflect
the diversity of the whole.
Rule 26(b)(1) allows discovery of
any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the
case, considering 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.
Fed. R. Civ. P. 26(b)(1).
These factors support discovery with
respect to all fit models parallel to that provided for the
First, the issues at stake in this case are of substantial
The FLSA reflects “the public’s interest in
ensuring that workers receive ‘[a] fair day’s pay for a fair day’s
Camacho v. Ess-a-Bagel, Inc., No. 14 Civ. 2592, 2014 WL
6985633, at *3 (S.D.N.Y. Dec. 11, 2014) (alteration in original)
Roosevelt)); cf. Chao v. Gotham Registry, Inc., 514 F.3d 280, 285
humanitarian goals, the Supreme Court consistently has interpreted
the [FLSA] liberally and afforded its protections exceptionally
And here, the public interest is enhanced both
because this case is brought as a class action and because it
involves determining the contours of an exemption that would have
implications for other workers.
According to the complaint, Ms. Agerbrink is seeking approximately
$2,400.00 for minimum wage and overtime violations.3
amount could be awarded as liquidated damages, 29 U.S.C. § 216(b),
bringing the total damages under the FLSA for Ms. Agerbrink alone
Furthermore, as noted above, the plaintiff has
already been awarded summary judgment on her claim for unjust
enrichment, a claim valued at $17,946.41.
3d at 415.
Agerbrink, 196 F. Supp.
The value of one and one-half hours of employee time to
collect information in connection with each employee’s claim pales
The factor of relative access to relevant information likewise
favors the additional discovery.
The Advisory Committee’s note to
the 2015 amendments to Rule 26 states:
Some cases involve what is often called “information
asymmetry.” One party -- often an individual plaintiff
This number is derived by totaling the alleged damages as
¶ 179: $1,500.00
¶¶ 171-172: $793.88 (109.5 hrs. x $7.25/hr.)
¶ 155: $72.50 (20 hrs. x $3.625/hr.)
¶ 154: $14.50 (2 hrs. x $7.25/hr.)
¶ 151: $58.00 (8 hrs. x $7.25/hr.)
There is no information in the record, one way or the other,
about whether the magnitude of Ms. Agerbrink’s claims is
representative of those of other fit models.
-- may have very little discoverable information. The
other party may have vast amounts of information,
including information that can be readily retrieved and
information that is more difficult to retrieve.
practice these circumstances often mean that the burden
of responding to discovery lies heavier on the party who
has more information, and properly so.
This is such a case.
The greater burden will
necessarily fall on MSA because it possesses by far the greater
amount of relevant information.
To be sure, MSA’s resources are not unlimited. William Ivers,
its Chief Operating Officer, has described the wide range of duties
that he performs within the 35-employee company; he will no doubt
be diverted from those responsibilities to the extent that he must
respond to discovery requests.
(Ivers Decl., ¶¶ 1, 5-6).
The discovery at issue is nevertheless central to the claims
in the case. The defendants recognized this when they provided the
same discovery with respect to Ms. Agerbrink and the exemplar
And it is crucial to demonstrating or contesting the
appropriateness of class certification.
Finally, the benefit of the discovery plainly outweighs the
Critical issues, including class certification, cannot
properly be decided without it.
Given what each model has at
stake, the investment of one and one-half hours of time per model
gathering the information is not disproportionate.
the relevant considerations favor proceeding with the additional
discovery, and the defendants shall therefore provide for all
exclusive fit models, except those with arbitration agreements, the
same information they have previously provided with respect to Ms.
Agerbrink and the exemplar models.
For exclusive fit models who
have arbitration agreements with MSA, the defendants shall produce
That leaves the three constellations of issues that the
plaintiff focused on at oral argument: databases, email, and
With respect to databases, the plaintiff argues that
“there are thousands of tables that are available and  there are
at least dozens of reports that weren’t produced.”
(Tr. at 4).
it may be, but, for the most part, the plaintiff has failed to
demonstrate the relevance of any particular report.
There are two
First, the plaintiff requests the financial check
report, which purportedly shows the rate paid for each visit to a
client by an MSA model.
(Tr. at 4).
That information is
pertinent, and the defendants shall produce it for all exclusive
fit models, except those with arbitration agreements.
allegedly has data showing when models went on unpaid “go-sees,”
which are apparently initial appointments with clients in which the
client determines whether it wishes to utilize the services of that
relevant, and the defendants shall produce it with respect to the
same universe of models.
Next, the plaintiff argues that the defendants’ search of
email has been inadequate. As an illustration, she offers the fact
that she came into possession of a relevant policy document that
the defendants did not produce, and she notes that rather than
defendants only produced those that they happened to locate while
searching the email of the exemplar models.
(Tr. at 15-18).
contention fails for two reasons. First, the fact that a party has
located a single relevant document that the adversary failed to
produce hardly demonstrates that the search was flawed.
perfection. See Freedman v. Weatherford International Ltd., No. 12
Civ. 2121, 2014 WL 4547039, at *3 (S.D.N.Y. Sept. 12, 2014);
Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 615 (C.D. Cal.
2013) (“[W]hile parties must impose a reasonable construction on
discovery requests and conduct a reasonable search when responding
to the requests, the Federal Rules do not demand perfection.”);
Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees
and Restaurant Employees International Union, 212 F.R.D. 178, 223
(S.D.N.Y. 2003) (Rule 26(g) requires a “reasonable inquiry under
the circumstances”); Moore v. Publicis Groupe, 287 F.R.D. 182, 188
(S.D.N.Y. 2012) (“[T]he Federal Rules of Civil Procedure do not
require perfection.”); Pension Committee of the University of
Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.
Supp. 2d 456, 461 (S.D.N.Y. 2010) (“Courts cannot and do not expect
that any party can meet a standard of perfection.”), abrogated on
other grounds by Chin v. Port Authority of New York & New Jersey,
685 F.3d 135, 162 (2d Cir. 2012).
Second, the defendants’ search
for policy documents was, in fact, reasonable.
not surprisingly, are in hard copy form, and they were collected
from the MSA managerial personnel most likely to possess them.
(Tr. at 36).
It is unlikely that searching for random references
to policies in email would elicit additional unique information.
More generally, it is not the court’s role to dictate how a party
should search for relevant information absent a showing that the
party has abdicated its responsibility.
See York Group, Inc. v.
No. 10-CV-1078, 2011 WL 13136291, at *4 (W.D. Pa. Dec.
22, 2011). Ms. Agerbrink has made no such showing here.
Finally, the plaintiff seeks copies of contracts, vouchers,
and schedule books that apparently exist in hard copy.
contained in these documents, but contend that the burden of
copying and producing them is substantial. (Ivers Decl., ¶¶ 12-18,
They need not incur that burden.
The responsibility for
bearing the costs attendant to copying responsive documents rests
upon the requesting party.
See, e.g., Clever View Investments,
Ltd. v. Oshatz, 233 F.R.D. 393, 394 (S.D.N.Y. 2006). The plaintiff
may therefore inspect the documents at issue at MSA’s premises and
designate those that she wishes to have copied.
shall then arrange for copying at a commercially reasonable price,
for which the plaintiff shall reimburse them.
B. Tax Returns
The defendants seek to compel Ms. Agerbrink and any opt-in
plaintiffs to disclose their personal tax returns.
rationales for this request.
They offer two
First, the defendants contend that
the fact that a worker may classify herself as an independent
contractor on her tax returns cuts against a claim that she is in
fact an employee and therefore entitled to the protections of the
FLSA and NYLL.
Second, the defendants maintain that if the tax
employers, it will undermine the plaintiff’s argument that the
defendants exercised control over the workers’ schedules.
Income tax returns are not inherently privileged.
“courts are typically reluctant to compel their disclosure because
of both ‘the private nature of the sensitive information contained
therein’ and ‘the public interest in encouraging the filing by
taxpayers of complete and accurate returns.’”
Uto v. Job Site
Services Inc., 269 F.R.D. 209, 212 (E.D.N.Y. 2010) (quoting Smith
v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y. 1979)).
In order for a
court to compel discovery of income tax returns, a two-pronged test
must be met: “first, the court must find that the returns are
relevant to the subject matter of the action; and second, that
there is a compelling need for the returns because the information
contained therein is not otherwise readily obtainable.” Securities
and Exchange Commission v. Cymaticolor Corp., 106 F.R.D. 545, 547
(S.D.N.Y. 1985); accord Rengifo v. Evervos Enterprises, Inc., No.
06 Civ. 4266, 2007 WL 894376, at *2 (S.D.N.Y. March 20, 2007).
Generally, courts place the burden on the “party seeking discovery
to demonstrate both relevancy and a compelling need.”
F.R.D. at 212; see, e.g., Ellis v. City of New York, 243 F.R.D.
109, 111-12 (S.D.N.Y. 2007).
An “economic realities” test governs whether a worker is an
employee or an independent contractor under the FLSA. The relevant
(1) the degree of control exercised by the employer
over the workers, (2) the workers’ opportunity for profit
or loss and their investment in the business, (3) the
degree of skill and independent initiative required to
perform the work, (4) the permanence or duration of the
working relationship, and (5) the extent to which the
work is an integral part of the employer’s business.
Brock v. Superior Care, 840 F.2d 1054, 1058-59 (2d Cir. 1988);
accord Hart v. Rick’s Caberet International, Inc., 967 F. Supp. 2d
901, 911-12 (2d Cir. 2013).
No factor is dispositive: “[r]ather,
the test is based on a totality of the circumstances” analysis,
with the ultimate question being whether the “workers depend upon
someone else’s business for the opportunity to render service or
“[Employee] status does not require the continuous monitoring of
employees, looking over their shoulders at all times, or any sort
employer’s control is “restricted, or exercised only occasionally,”
the employee may still be entitled to the protections of the FLSA.
Herman v. RSR Security Services Ltd., 172 F.3d 132, 139 (2d Cir.
The fact that an employer does not exercise control
continuously or consistently “does not diminish the significance of
its existence.” Irizarry v. Catsimatidis, 722 F.3d 99, 111 (2d Cir.
2013) (quoting Donovan v. Janitorial Services, Inc., 672 F.2d 528,
531 (5th Cir. 1982)).
Similarly, the New York Court of Appeals has articulated five
factors relevant to determining control under NYLL: whether the
worker (1) worked at her own convenience; (2) was free to engage in
other employment; (3) received fringe benefits; (4) was on the
employer’s payroll; and (5) was on a fixed schedule. Bynog v.
Cipriani Group, Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 695
(2003); see also Browning v. Ceva Freight, LLC, 885 F. Supp. 2d
590, 598 (E.D.N.Y. 2012); Deboissiere v. American Modification
Agency, No. 09 CV 2316, 2010 WL 4340642, at *3 (E.D.N.Y. Oct. 22,
These factors, however, are not exhaustive, and New York
See Hart, 967 F. Supp. 2d at 923.
“the critical determinant is the degree to which the purported
employer exercises control in fact over the results produced or the
means used to obtain them.” Edwards v. Publishers Circulation
Fulfillment, Inc., 268 F.R.D. 181, 184 (S.D.N.Y. 2010).
In light of this analytical framework, courts have offered
divergent views of the relevance of a worker’s tax returns.
Hart, for example, the court held that under both the FLSA and
NYLL, “it is not significant how the parties defined the employment
relationship or how the worker identified herself on tax forms.”
967 F. Supp. 2d at 924; see also Sandrino v. Michaelson Associates,
LLC, No. 10 Civ. 7897, 2012 WL 5851135 (S.D.N.Y. Nov. 19, 2012)
(“The test for whether a person is deemed to be an independent
contractor for purposes of New York Labor Law does not depend,
however, on what the person has labeled themselves.
analysis is a question of fact which hinges on whether ‘the
employer exercises either control over the results produced or over
the means used to achieve the results.’” (quoting Bhanti v.
Brookhaven Memorial Hospital Medical Center, Inc., 260 A.D.2d 334,
335, 687 N.Y.S.2d 667, 669, (2d Dep’t 1999))).
On the other hand,
in Deboissiere, the court held that
if a plaintiff signs a tax return “under penalty of
perjury” that declares independent contractor status and
seeks “numerous deductions for business purposes
associated with independent contractor status, such as
travel, entertainment, lodging, supplies, telephone and
depreciation of business assets,” such a tax return may
significantly impede the plaintiff’s ability to claim
employee status for purposes of filing an overtime or
minimum wage claim.
2010 WL 4340642, at *3 (quoting Gagen v. Kipany Productions, Ltd.,
27 A.D.3d 1042, 1044, 812 N.Y.S.2d 689, 691 (3d Dep’t 2006)).
I find the analysis is Hart more compelling.
Nothing in the
relevant factors under either the FLSA or the NYLL suggests that
the worker’s subjective perceptions are relevant.
It would be a
bold worker indeed who, notwithstanding the fact that she is paid
as an independent contractor, nevertheless files her taxes as an
employee, thereby exposing her employer to potential tax penalties.
Finally, although workers are classified as either employees or
independent contractors under both tax law and labor law, the
definitions are not identical, and a worker could be properly
classified as an employee for one purpose and an independent
contractor for the other.
See Agerbrink v. Model Service LLC, No.
14 Civ. 7841, 2015 WL 6473005, at *8 (S.D.N.Y. Oct. 27, 2015);
Werner v. Bell Family Medical Center, Inc., No. 3:09 C 701, 2012 WL
1514872, at *2 (M.D. Tenn. May 1, 2012); Herman v. Mid–Atlantic
Installation Services, Inc., 164 F. Supp. 2d 667, 671 (D. Md.
2000), aff’d sub nom. Chao v. Mid–Atlantic Installation Services,
Inc., 16 F. App'x 104 (4th Cir. 2001); Heath v. Perdue Farms, Inc.,
87 F. Supp. 2d 452, 461 (D. Md. 2000).
Somewhat more persuasive is the defendants’ argument that the
tax returns are relevant not merely because they reflect the
workers’ self-identification as independent contractors, but also
because they demonstrate the absence of control by MSA.
to the defendants, claims that MSA exercised control over the
hours, activities, and working conditions of fitness models would
be undermined if tax returns showed that the models in fact were
employed by multiple agencies at the same time. (Memorandum of Law
in Support of Defendants’ Motion to Compel at 4; Reply Memorandum
of Law in Support of Defendants’ Motion to Compel Tax Returns at 34).
To be sure, the fact that a worker reports to multiple
employers does not definitively prove that she is not an employee
of any of them for labor law purposes; a part-time employee may
have time to work for other employers without running afoul of
control. Nevertheless, employment by multiple employers would seem
to pass the low threshold for relevance.
However, relevance is only the first hurdle for overcoming the
quasi-privilege that attaches to tax returns. Here, the defendants
cannot demonstrate a compelling need for the returns, as equivalent
information is available from other sources. To the extent that it
is relevant whether a model filed tax returns as an employee or as
an individual contractor, this information may easily be obtained
by interrogatory or deposition. Similarly, information about other
employment may be gleaned from the models directly as well as from
documents such as 1099 and W-2 forms.
The defendants simply have
not demonstrated that the tax returns -- and only the tax returns
-- contain the potentially relevant information.
defendants’ motion to compel their production is denied.
For the reasons discussed above, the plaintiff’s motion to
compel (Docket no. 148) is granted in part and denied in part.
Specifically, within thirty days of the date of this order, the
defendants shall (1) produce for all exclusive fit models, except
those with arbitration agreements, the same information they have
previously provided with respect to Ms. Agerbrink and the exemplar
models; for exclusive fit models who have arbitration agreements
with MSA, the defendants shall produce those agreements; (2)
produce financial check reports and reports on “go-sees” for all
exclusive fit models except those with arbitration agreements; and
(3) permit plaintiff to inspect and copy, at her expense, the
contracts, vouchers, and schedule books.
In all other respects,
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