Alvarado Balderramo et al v. Go New York Tours Inc. et al

Filing 183

ORDER granting 182 Letter Motion for Local Rule 37.2 Conference. Plaintiffs' request for a pre-motion conference on their proposed motion to compel was previously granted, Doc. 180. (Signed by Judge Edgardo Ramos on 9/11/2020) (cf)

LAW OFFICE

OF

JUSTIN A. ZELLER, P.C.
J USTIN A. Z ELLER
JAZELLER @ ZELLERLEGAL .COM
J OHN M. G URRIERI
JMGURRIERI@ ZELLERLEGAL . COM

T ELEPHONE : 212.229.2249
F ACSIMILE : 212.229.2246

at page 5.
September 10, 2020

VIA ECF
Hon. Edgardo Ramos, United States District Judge
United States District Court for the Southern District of New York
�urgood Marshall United States Courthouse
Re: Alvarado Balderramo et al v. Go New York Tours Inc. et al, 15 CV 2326 (ER)
Dear Judge Ramos:
�is firm represents the plaintiffs in the above-referenced action. �e plaintiffs request that the
September 17, 2020, conference serve also as a Local Civil Rule 37.2 conference in anticipation of
the plaintiffs’ anticipated motion to compel amended responses to plaintiffs’ document demands,
interrogatories, and requests to admit, pursuant to Rule 37(a)(3)(B)(iii)–(iv) of the Federal Rules
of Civil Procedure. �e amended responses are required so that plaintiffs can immediately proceed
with depositions and a partial summary judgment motion.
If the Court is unable to address these issues at the September 17, 2020, conference, then the
plaintiffs move the Court to schedule a Local Civil Rule 37.2 conference as soon as possible
thereafter in anticipation of plaintiffs’ motion to compel. �e plaintiffs need this additional
discovery immediately so that plaintiffs can proceed with depositions and a partial summary
judgment motion.
Background
On July 10, 2019, a letter substantially similar to this one was submitted. See ECF No. 123. In
anticipation of that letter, the parties conferred on the below issues, but the defendants refused to
amend their responses until the Court ruled on the defendants’ motion to dismiss. See id.
On November 1, 2019, the Court denied the defendants’ motion to dismiss. See ECF No. 159.
�en, the parties received clarification from the Court as to the scope of the class. See ECF No.
165. �e parties were also referred to Magistrate Judge Freeman where the parties engaged in
informal document exchange, analysis, and settlement discussions with Judge Freeman’s
assistance until July 2020. See ECF No. 172. �e parties were unable to settle in front of Magistrate
Judge Freeman and informed the Court that they believed settlement discussions would no longer
be productive. See id. On July 20, 2020,the Court ordered the parties to submit a proposed
discovery scheduling order to the Court on July 24, 2020. See ECF No. 173. �e parties submitted
the proposed order on July 23, 2020. See ECF No. 174. On July 24, 2020, the Court ordered an
amended civil case management plan. See ECF No. 175.

277 B ROADWAY , S UITE 408, N EW Y ORK , N.Y. 10007-2036

Conferral
On July 22, 2020, in anticipation of a motion to compel amended responses to plaintiffs’
document demands, interrogatories, and requests to admit, the parties conferred over the phone
regarding defendants’ deficient discovery responses. On this July 22, 2020, call, the defendants
informed me they would amend their discovery responses by August 5, 2020. Defendants did not
produce revised responses to plaintiffs’ document demands, interrogatories, and requests to admit
by August 5, 2020, as agreed. �erefore, I emailed defendants on August 7, 2020, asking them
when they would submit revised responses. �at same day, defense counsel responded via email
“Sorry, John. I got slammed this week b/c of the storm and loss of power. Is next Wednesday
okay?” I responded “Yes, that’s fine. �ank you.” On Wednesday, August 12, 2020, defendants did
not produce amended responses but instead wrote me an email stating “Just a short note to let you
know that I am working on the amended discovery responses, and expect to get them out to you
by tomorrow or early Friday.”
Defendants have yet to provide any revised discovery responses but did provide New York
State Department of Labor (“NYSDOL”) documents attached to their August 21, 2020, letter to
the Court. In that same letter, defendants stated “Plaintiffs should be precluded from making a
motion to compel until the promotion conference that has been scheduled by the Court for
September 17, 2020.” See ECF No. 181. Defendants today confirmed that they would not be
providing supplemental discovery responses at this time. It is plaintiffs’ position that their Rule
37.2 motion and motion to compel should not be delayed further due to defendants’ baseless motion
to stay. �e defendants can brief their motion to stay while simultaneously responding to discovery
demands that they have been on notice of.
�us, the parties have conferred and have been unable to resolve the discovery disputes
outlined below without Court intervention.
Plaintiffs’ Basis to Move to Compel Response to Request for Production of Documents
Concerning parts 1, 2, 3, 4, 5, 6, 12, and 13, the defendants’ response is evasive or incomplete
within the meaning of Rule 37(a)(4) of the Federal Rules of Civil Procedure. See ECF No. 135
(defendants’ document response). In each of these parts, the plaintiffs requested production of
documents, each part within a unique subject matter, but all of them concerning all the defendants’
employees. See ECF No. 131 (plaintiffs’ document demand). �e defendants failed to do so,
asserting no legal obligation to respond with documents concerning any other employee except
Mr. Alvarado Balderramo and Mr. Falquez, the two named plaintiffs. �e defendants likewise have
failed to supplement their response, pursuant to Rule 26(e)(1)(A) of the Federal Rules of Civil
Procedure, even after this court’s decisions on motions granting conditional certification and class
certification warranted revisiting the defendants’ contested legal positions on the scope of
discovery.
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “Parties 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.” Discovery for all of the defendants’ employees is relevant
and proportional because this action is conditionally certified a collective action and a class action
for persons employed by the defendants as drivers, and at least one party plaintiff who was

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employed by the defendants as a tour guide, for which the plaintiffs may still again move to
conditionally certify a collective action or class action. To prove liability and damages as to the
class and the party plaintiffs, and to have evidence to move for collective and class certification on
behalf of the putative party plaintiffs and class in other job categories, the plaintiffs are entitled to
discovery relating to all the defendants’ employees. In the alternative, plaintiffs are entitled to
discovery related to all the defendants’ employees who are part of the class and tour guides who
may comprise a class or be collective action members.
Concerning the entire request but particularly parts 1 and 5, the defendants have not produced
any electronically stored information, and this failure is an evasive or incomplete response within
the meaning of Rule 37(a)(4) of the Federal Rules of Civil Procedure. �e plaintiffs seek as a
remedy that the defendants produce electronically stored information identified by a computerized
search of the defendants’ electronic storage upon search terms furnished by the plaintiffs, and that
the defendants identify the custodians of the defendants’ electronically stored information.
�e defendants’ remaining objections to the request for production of documents are baseless.
�e defendants have articulated no particular basis to object that the plaintiffs’ request is either
vague or ambiguous, or unduly burdensome. �e defendants have also asserted privileges, but have
failed to produce a privilege log pursuant to Local Civil Rule 26.2. To the extent that defendants
are withholding responsive documents on these bases, the plaintiffs seek an order compelling the
defendants to produce them. Concerning parts 7, 8, 10, and 11, in particular, for which the
defendants have refused to provide documents or respond that no such documents exist, the
plaintiffs will seek to compel the defendants to produce responsive documents. �e scopes of all
these parts of the request are appropriate to the production of relevant and proportional discovery.
Guidance not publicly available upon which the defendants might have relied, prior lawsuits,
and prior government investigations are all relevant not just to the substance of defendants’ liability
but also to prove willfulness under the Fair Labor Standards Act and to oppose the defendants’
“good faith” affirmative defense to liquidated damages under the Portal-to-Portal Act and
Minimum Wage Act. �e defendants have informally provided documents related to an NYSDOL
investigation in their August 21, 2020, letter to the Court, but the plaintiffs still require a formal
response whereby the defendants attest the documents produced are comprehensive.
For these reasons, the plaintiffs will seek an order overruling the defendants’ objections and
compelling the defendants to supplement their response to the plaintiffs’ request for production of
documents.
Plaintiffs’ Basis to Move to Compel Answers to Interrogatories
Upon the same argument set forth as to the request for production of documents, the plaintiffs
seek to compel the defendants to answer the interrogatories as to all of the defendants’ employees,
not just the named plaintiffs, or if the Court will not grant that relief, alternatively as to all members
of the class and also tour guides who may become party plaintiffs or class members upon further
motion. �e plaintiffs have separately filed the interrogatories. See ECF No. 130.
As to all of the interrogatories seeking the identification of documents, the defendants’ answers
are incomplete or evasive within the meaning of Rule 37(a)(4) of the Federal Rules of Civil

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Procedure because the defendants have failed to answer with all of the information required by the
uniform definition contained within Local Civil Rule 26.3 of “identify” with respect to documents.
See ECF No. 134 (defendants’ interrogatory response).
Concerning the first, second, ninth, tenth, eleventh, twelfth, thirteenth, and sixteenth
interrogatories, the defendants’ objections are baseless because information about the corporate
form, predecessors and successors, and owners and the like of the defendants, and information
concerning which individuals supervised the plaintiffs and were responsible for the defendants’
wage-and-hour policies and practices, is relevant to determining the joint personal liability of such
persons and entities under the joint employment doctrine, and also identifies individuals and
entities likely to have information relevant to the action that is subject to discovery. �e defendants’
reference to their initial disclosures in the answers to certain of these interrogatories is an
incomplete answer to the interrogatory because it does not explain which individuals named in the
initial disclosure are part of the answer to each interrogatory. �e interrogatories are within the
scope of Local Civil Rule 33.3 because it concerns the identification of persons, including business
entities. Defendants’ assertion of privilege is inapplicable because the identification of individuals
and documents does not disclose privileged information.
Concerning the twelfth interrogatory particularly, defendants’ objection that the interrogatory
is duplicative of a prior interrogatory is incorrect. �e defendants do not identify of which prior
interrogatory the twelfth interrogatory is duplicative, and the subject matter, identification of
persons involved in creation or revision of the defendants’ pay policies, is not subject to any of the
defendants’ remaining objections.
Concerning the thirteenth interrogatory, the identification of accountants, auditors,
bookkeepers, or payroll providers is relevant to identifying individuals with information relevant
to the action that is subject to discovery.
Concerning the fifth, sixth, seventh, fifteenth, and sixteenth interrogatories, the plaintiffs assert
that the defendants should be compelled to answer contention interrogatories given the advanced
pretrial position of this litigation or, alternatively, that defendants should be compelled to answer
these interrogatories thirty days after the plaintiffs take the first deposition of a person whom is
subject to deposition upon notice, and without further charge to the limit on number interrogatories.
Concerning the seventh interrogatory, it is within the scope of Local Civil Rule 33.3 because it
seeks the identification of documents.
For these reasons, the plaintiffs will seek an order overruling the defendants’ objections and
compelling the defendants to supplement their answers to the plaintiffs’ interrogatories.
Plaintiffs’ Basis to Move to Compel Answers to Requests for Admission
Upon the same argument set forth as to the request for production of documents, the
plaintiffs seek to compel the defendants to answer the requests for admission as to all the
defendants’ employees, not just the named plaintiffs, for those to which the defendants’ responded
incompletely on that basis. �e requests to admit have been separately filed. See ECF No. 132. �e
responses have been separately filed as well. See ECF No. 136.

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Respectfully submitted,

John M. Gurrieri
Plaintiffs' request for a pre-motion conference on their proposed motion to compel was previously
granted, Doc. 180.
It is SO ORDERED.

9/11/2020

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