Diaz v. New York Paving Inc.
Filing
232
OPINION AND ORDER: re: 210 MOTION for Sanctions Under Fed. R. Civ. P. 37 for Defendant's Concealment of Its Old Bethpage Facility filed by Edgardo Diaz. For the foregoing reasons, plaintiffs' motion for sanctions under Fed. R. Civ. P.37 (Docket # 210) is denied. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 8/11/2021) (ama)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EDGARDO DIAZ,
:
Plaintiff,
-v.NEW YORK PAVING INC.,
:
OPINION & ORDER
:
18 Civ. 4910 (ALC) (GWG)
:
:
Defendant.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, United States Magistrate Judge
Plaintiff Edgardo Diaz, who performed road and sidewalk repairs for his employer, New
York Paving Inc. (“NY Paving”), filed this action alleging violations under the Fair Labor
Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), and the New York State Labor Law, § 190 et.
seq., § 650 et. seq. After the case was conditionally approved as a collective action under 29
U.S.C. § 216(b), with notice purportedly being sent to “all NY Paving pavers employed since
June 3, 2015,” more than 100 plaintiffs who worked at a worksite in Long Island City operated
by NY Paving joined this suit as opt-in plaintiffs. Plaintiffs have now filed a motion for
discovery sanctions under Fed. R. Civ. P. 37, alleging that NY Paving failed to disclose that
pavers worked for NY Paving at a second location, in Old Bethpage, New York, and failed to
disclose to plaintiffs information relating to those pavers. 1 For the following reasons, plaintiffs’
motion for sanctions under Rule 37 is denied.
1
See Notice of Motion, filed June 7, 2021 (Docket # 210); Memorandum of Law in
Support, filed June 7, 2021 (Docket # 211) (“Pl. Mem.”); Declaration of Steven Wittels in
Support, filed June 7, 2021 (Docket # 212) (“Wittels Decl.”); Declaration of Christopher
Hampton in Opposition, filed June 17, 2021 (Docket # 213) (“Hampton Decl.”); Memorandum
of Law in Opposition, filed June 17, 2021 (Docket # 214) (“Def. Mem.”); Plaintiffs’ Reply in
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I. BACKGROUND
The complaint in this case, filed on June 3, 2018 (Docket # 1), alleged that Diaz and the
class he sought to represent worked “more than 40 hours per week to service NY Paving’s
clients,” but NY Paving “failed to pay its pavers the proper wages and overtime they are legally
and justly owed.” Complaint ¶ 2. Diaz sought to bring “this action on behalf of himself and all
similarly situated employees, both as a class action under Rule 23 . . . and as a collective action
under the FLSA.” Id. ¶ 5.
While the complaint contained broad allegations that referred to “pavers” without
mentioning their location, the complaint specifically alleged that NY Paving had “locations at
37-18 and 37-28 Railroad Avenue, Long Island City, New York 11101,” id. ¶ 10, and
challenged defendant’s pay practices — either explicitly or implicitly — with respect to pavers at
the Long Island City locations, id. ¶¶ 20-36. For example, the Complaint alleged that NY Paving
“requires its pavers, including Plaintiff, to arrive at Defendant’s central yard in Long Island City
early each morning” to do various uncompensated work. Id. ¶ 20. The Complaint alleged that
after “completing the final paving assignment, pavers are required to reload the company truck,
ride with or drive the tools and materials back to Defendant’s yard in Long Island City, and then
unload the truck and store the tools and materials at the yard,” again without compensation. Id.
¶ 28. The Complaint made no mention of any other NY Paving location besides those in Long
Island City.
The Complaint stated that Diaz was bringing a collective action “under the FLSA on
behalf of himself and all other similarly situated current and former pavers . . . employed by
Support, filed June 24, 2021 (Docket # 217) (“Pl. Reply”); Reply Affidavit of Steven Wittels in
Support, filed June 24, 2021 (Docket # 218) (“Wittels Aff.”).
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Defendant at any time within the three years prior to the date of the filing of this action and
thereafter.” Id. ¶ 40. Diaz also made allegations on behalf of a putative Rule 23 class of pavers
consisting of “[a]ll persons who were employed by NY Paving as pavers who, at any time within
six years prior to the date of the filing of this action and thereafter, did not receive full
compensation for all overtime and straight hours worked.” Id. ¶ 46.
Three other pavers then joined the suit, and plaintiffs moved to have the case
conditionally approved as a collective action under 29 U.S.C. § 216(b), asking for notice to be
sent to “all New York Paving pavers employed since June 3, 2015,” inviting them to join the
action. Notice of Motion for Conditional Certification, filed August 23, 2018 (Docket # 32), at
2. The Court granted plaintiffs’ motion on December 4, 2018. See Opinion and Order (Docket
# 45) (“FLSA Approval Decision”). While the decision made reference to affidavits of
individuals who worked at the Long Island City yard, the opinion concluded broadly that “all NY
Paving pavers employed since June 3, 2015, are similarly situated with respect to the claim made
in this lawsuit,” and thus ordered that notice be sent to those individuals. Id. at 17. Because
defendant provided information only about Long Island City pavers, however, notice was sent
only to those pavers, not to “all” pavers as stated in the Court’s decision.
Discovery proceeded and the deadline for its conclusion was extended several times.
See, e.g., Order, filed September 19, 2019 (Docket # 81); Order, filed January 22, 2020 (Docket
# 84); Order, filed June 22, 2020 (Docket # 101); Order, filed October 15, 2020 (Docket # 137);
Order, filed February 12, 2021 (Docket # 178). Plaintiffs have not yet filed their motion for
certification under Rule 23.
The current dispute was first mentioned to the Court on March 31, 2021, when plaintiffs
asked for another extension of the discovery deadline “due to several as-yet unresolved
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discovery issues, some of which have only arisen recently,” and identified one of those disputes
as “Defendant’s Old Bethpage location.” Letter from Steven Wittels, filed March 31, 2021
(Docket # 190), at 1. The Court granted the proposed extension. See Memorandum
Endorsement, filed April 1, 2021 (Docket # 191). On June 1, 2021, plaintiffs filed a letter
requesting a pre-motion conference on an anticipated motion for contempt and sanctions,
alleging that NY Paving “willfully violated Your Honor’s December 4, 2018 Opinion and
Order . . . because Defendant hid from Plaintiffs and the Court the existence of its separate NY
Paving Long Island facility in Old Bethpage where more than a hundred pavers have worked
since 2015, and Notice was never sent to those pavers.” Letter from Steven Wittels, filed June 1,
2021 (Docket # 207), at 1. The Court waived the pre-motion conference requirement and
instructed plaintiffs to submit a motion containing “the requests for relief under Rule 37,” with
any “motion for contempt” to “await the disposition of the motion under Rule 37.”
Memorandum Endorsement, filed June 2, 2021 (Docket # 208), at 2. This motion followed.
II. LEGAL STANDARD
Fed. R. Civ. P. 37(c) provides, in relevant part, that if “a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1) allows
additional sanctions for this conduct, including sanctions such as directing that facts be taken as
established, prohibiting particular evidence in support of claims, striking pleadings, or rendering
a default judgment. See Fed. R. Civ. P. 37(c)(1)(C) (incorporating the sanctions listed in Fed. R.
Civ. P. 37(b)(2)(A)(i)-(vi)).
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“The district court has wide discretion in punishing failure to conform to the rules of
discovery.” Outley v. City of New York, 837 F.2d 587, 590 (2d Cir. 1988). In imposing
sanctions, a court’s “proper objective” is “to restore plaintiffs insofar as possible to the position
they would have been in absent defendants’ discovery defiance.” Funk v. Belneftekhim, 861
F.3d 354, 372 (2d Cir. 2017) (punctuation omitted); accord In re Sept. 11th Liab. Ins. Coverage
Cases, 243 F.R.D. 114, 132 (S.D.N.Y. 2007) (“Rule 37 sanctions are intended to restore the
parties to the position they would have occupied but for the breach of discovery obligations.”).
“[A] district court abuses its discretion in issuing harsh sanctions where lesser efficacious
alternatives are available.” Ayinola v. Lajaunie, --- Fed. App’x ----, 2021 WL 1920966, at *3
(2d Cir. May 13, 2021) (citing Funk, 861 F.3d at 372-73).
III. DISCUSSION
Plaintiffs argue that NY Paving has “egregiously and systematically concealed its Old
Bethpage facility from Plaintiffs and from the Court,” Pl. Mem. at 2, and that this behavior
violates Rule 37(c)(1) because NY Paving failed “to provide full and truthful information in
response to Plaintiffs’ discovery requests,” id. at 3. 2 Plaintiffs argue that their discovery requests
should have resulted in NY Paving producing documents related to the Old Bethpage facility, but
that NY Paving never produced any such documents and represented that “it was not withholding
any responsive documents,” when, in fact, it was. Id. at 9. Plaintiffs argue that this behavior
“constitutes bad faith and intentional concealment of members of the certified Collective and
2
In their opening brief, plaintiffs alleged that NY Paving had violated Rule 37(b)(2)(A)
because it failed to “comply fully” with the FLSA Approval Decision, which directed NY Paving
to “disclose . . . the full names, last-known addresses, job titles, and dates of employment with
respect to pavers who worked for NY Paving from June 3, 2015 to the present.” Pl. Mem. at 3
(quoting FLSA Approval Decision at 20). Plaintiffs have evidently abandoned this argument,
however, because in their reply they state they “did not move for sanctions under Rule 37(b).”
Pl. Reply at 14.
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proposed Class Members,” id. at 13, and thus “necessitates severe sanctions,” id. at 14. They ask
this Court to enter judgment against NY Paving “as to all claims of the Collective and Class
Members who worked at Old Bethpage,” id. at 15, along with “deem[ing] all pavers employed at
Old Bethpage since June 3, 2012 to be opt-in members of the already-certified Collective and
also deem them similarly situated as Rule 23 class members,” while sending notice “to all
current and former pavers based in Old Bethpage during the three-year period prior to the filing
of the Complaint . . . to present,” id. at 15-16. In the alternative, “Plaintiffs ask for an adverse
inference that all pavers employed at concealed facilities were required to do preliminary and
postliminary work,” as well as “bring the company’s vehicles” to and from “the yard each day
without pay.” Id. at 16. Plaintiffs ask that NY Paving be required to disclose any other locations
with pavers, and if any exist, those pavers be awarded the same relief. Id. at 16 n.6. They also
seek to bar NY Paving from using any evidence from undisclosed facilities to support its case
and seek costs and fees for the motion. Id. at 17-18.
In opposition, NY Paving does not deny that it did not identify the Old Bethpage location
in its discovery responses. Instead, it argues that “[b]ased on Wittels’ limitation on the scope of
this matter, Defendant complied with the requirements of [Fed. R. Civ. P. 26] by providing all
relevant information about Long Island City, subject to properly and timely raised objections.”
Def. Mem. at 7; accord id. at 23-27. It also argues that even if it did not comply, sanctions are
not warranted. Id. at 27-33.
NY Paving’s memorandum of law opposing plaintiffs’ motion does not actually center on
such arguments, however. Instead, its brief expounds at length on its contention that plaintiffs’
counsel knew long before discovery concluded about the Old Bethpage facility, that plaintiffs’
assertions otherwise are “patently false,” Def. Mem. at 11, and that plaintiffs made a “tactical
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decision” to keep silent about their knowledge of the facility so they would have a basis for
claiming NY Paving acted improperly, id. at 1; accord id. at 2 (plaintiffs’ motion “is nothing
more than an attempt to present this Court with a contrived story to secure a windfall of
certification of a class/collective for the Old Bethpage Location”).
In response to this argument (which plaintiffs anticipated in their moving brief),
plaintiffs’ counsel, Steven Wittels, filed a declaration affirming the following: 1) Plaintiffs “were
not made aware of the Old Bethpage facility . . . at any point during discovery in this matter by
Defendant prior to Plaintiffs’ counsel fortuitously independently learning of the Old Bethpage
facility when reviewing transcripts of NY Paving-related actions before the [NLRB] when
preparing for depositions in this action earlier this year,” Wittels Decl. ¶ 4; 2) his firm
“conducted numerous online searches related to NY Paving” during discovery and “did not
uncover the existence of the NY Paving Old Bethpage facility in any of those online search
results” prior to the review of the NLRB testimony, id. ¶ 5; 3) the “New York Corporation and
Business Entity Database . . . makes no mention of NY Paving’s Old Bethpage facility,” id. ¶ 6;
and 4) plaintiffs “still have incomplete information about the NY Paving Old Bethpage facility,
including for example, how long it has been in operation and how many total pavers worked out
of that location during the relevant periods,” id. ¶ 9. Plaintiffs’ counsel submitted a second
sworn statement with their reply memorandum, in which Wittels affirmed that “[u]ntil earlier this
year, our office was completely unaware of Defendant’s operations in Old Bethpage,” and that
plaintiffs’ counsel was “blindsided by the claims in Defendant’s opposition that our office knew
of Old Bethpage and chose to sit on that information for three years.” Wittels Aff. ¶¶ 4, 8.
We begin by addressing the argument regarding plaintiffs’ knowledge before addressing
the substance of the Rule 37 motion.
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A. Whether Plaintiffs’ Counsel Knew About the Old Bethpage Facility Before 2021
To start, we reject NY Paving’s contention that plaintiffs or their counsel acted
improperly with respect to the Old Bethpage location. NY Paving provides only the wispiest of
speculation and the weakest of inferences to support its assertion that plaintiffs’ counsel realized
before March or February of 2021 that pavers were employed at the Old Bethpage location.
None of the material proffered by defendant allows a finding in NY Paving’s favor on this
question. Furthermore, the essentially non-existent evidence relied on by NY Paving is plainly
outweighed by the sworn statement provided by plaintiffs’ counsel to the contrary. See Wittels
Aff. ¶¶ 4-8. NY Paving’s theory of plaintiffs’ conduct also flies in the face of common sense. If
plaintiffs’ counsel actually knew about the Old Bethpage facility before suit was filed or during
discovery, it would have been foolish to hope that some future motion for sanctions based on a
false premise would be more likely to result in the inclusion of the Old Bethpage pavers as
plaintiffs than would efforts made directly through discovery or investigation. Nothing about the
conduct of plaintiffs’ counsel in this case has ever hinted at such a lack of judgment.
The keystone of NY Paving’s presentation is a six-page letter dated April 24, 2018, sent
by defense counsel to an attorney who does not represent plaintiffs, and which mentions the Old
Bethpage facility in passing without any clear statement that pavers worked at that facility. See
Letter from Jonathan Farrell, dated April 24, 2018, annexed as Exh. B to Hampton Decl., at 4.
Defendants contend that plaintiffs must have been aware of Old Bethpage because plaintiffs’
counsel referenced the April 24, 2018, letter in correspondence sent a month later to NY Paving
in which plaintiffs sought to ward off potential retaliation by NY Paving for their planned
lawsuit. See Def. Mem. at 3; Hampton Decl., Exh. C, at 3-6 (reproducing letter from plaintiffs’
counsel). This provides virtually no basis for concluding that plaintiffs’ counsel was aware that
pavers worked at the facility.
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NY Paving’s other evidence is even weaker, if that is possible. It points out that “Wittels
held investigatory meetings with Local 175 members, including some of the first Opt-in
Plaintiffs in this matter,” along with “officers of Local 175,” and speculates that Wittels must
have “learned more about the Old Bethpage facility during” those meetings. Def. Mem. at 3-4.
But the mere fact that plaintiffs’ counsel attended meetings with his own clients and the union
representing those clients does not suggest that counsel would likely have learned about the Old
Bethpage location at those meetings. If anything, it is far more likely that they discussed the
location that plaintiffs worked at and that counsel knew existed at the time, the Long Island City
location. Similarly, NY Paving contends that plaintiffs’ counsel must have learned of the Old
Bethpage location because seven plaintiffs testified at an NLRB hearing involving NY Paving,
and one of them “directly observed the testimony of Peter Miceli relating to the Old Bethpage
Location.” Def. Mem. at 4 (referring to testimony by one of defendant’s officers). But there is
no indication from the cited transcripts that all seven plaintiffs who testified were present during
Miceli’s testimony on September 21, 2018. Thus, the mere fact that these plaintiffs testified
almost a month later — on October 16-18, 2018 — does not suggest their awareness of Old
Bethpage. See id. at 4 n.9. And while one plaintiff does appear to have been present during
Miceli’s testimony, see id. at 4 n.10, there is no reason to assume that this single plaintiff (or
even others if they were there) would have thought to report the existence of Old Bethpage to
plaintiffs’ counsel.
In light of plaintiffs’ uncontradicted, sworn assertion of a lack of knowledge concerning
NY Paving’s Old Bethpage location, combined with the lack of any reason why counsel would
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fail to act on any such knowledge, the Court finds that plaintiffs were in fact unaware of the Old
Bethpage location before February or March 2021. 3
B. Whether Defendant Breached Its Discovery Obligations
We now consider whether NY Paving breached its discovery obligations by failing to
disclose any information related to the Old Bethpage location to plaintiffs such that sanctions are
warranted under Fed. R. Civ. P. 37(c). Rule 37(c) is breached when “a party fails to provide
information or identify a witness as required by Rule 26(a) or (e).” Fed. R. Civ. P. 37(c)(1). We
discuss each subsection next.
1. Rule 26(a)
Rule 26(a) requires, among other things, disclosure of “the name and, if known, the
address and telephone number of each individual likely to have discoverable information . . . that
the disclosing party may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). It
also requires disclosure of “all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(ii). It is undisputed that defendant did not list
any witnesses or information relating to the Old Bethpage facility in its initial disclosures. But
the defendant’s disclosures did not violate Rule 26(a) inasmuch as there is no evidence that, at
the time of its disclosures, NY Paving intended to use witnesses relating specifically to the Old
Bethpage facility to support its defenses. As already noted, the complaint contains specific
3
The precise date of discovery is unclear from plaintiffs’ papers. Plaintiffs’ counsel
states only that they “confronted NY Paving with their discovery of the Old Bethpage facility in
March 2021,” Wittels Decl. ¶ 7, but does not give a date as to when that discovery occurred,
other than that it happened “when preparing for depositions in this action earlier this year.” Id.
¶ 4. NY Paving asserts that Wittels claims to have made the discovery in February 2021.
Hampton Decl., Exh. A, at 4. For purposes of this decision, the exact date — whether in
February or March — does not affect the Court’s conclusions.
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allegations exclusively regarding NY Paving’s Long Island City facility. See, e.g., Complaint
¶¶ 20-25, 28-29, 31-32. Defendant could reasonably have assumed that the claims it had to
defend against were limited to those involving Long Island City pavers and thus that it was not
required to produce witnesses or documents relating to the allegations about pavers at Old
Bethpage. Therefore, NY Paving did not violate Rule 26(a).
2. Rule 26(e)
Rule 26(e), in relevant part, requires a party “who has responded to an interrogatory,
request for production, or request for admission” to “supplement or correct its disclosure or
response . . . in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.”
Fed. R. Civ. P. 26(e)(1)-(e)(1)(A). Here, of course, the claim is that NY Paving knew at the
moment it made responses to certain interrogatories and requests for production that its
responses were incomplete or incorrect by not providing information on the Old Bethpage
facility. But notwithstanding this circumstance, we have no doubt that sanctions under Rule
37(c) are available if there is an intentional failure to disclose ab initio. See Fed. R. Civ. P. 26,
Advisory Committee Notes to 2007 Amendment (“parties recognize the duty to supplement or
correct by providing information that was not originally provided although it was available at the
time of the initial disclosure or response”).
Plaintiffs identify the following discovery requests as obliging defendant to produce Old
Bethpage information: requests for production (“RFPs”) 1, 3, 4, 13-14, 27-33, 36, 44, 49, 53, 55,
56, and 57, and interrogatories 2 and 26. See Pl. Mem. at 7, 9. Defendant contends that its
objections “informed [plaintiffs] that it was limiting disclosure for all requests which sought data
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for non-Opt-in putative class members to only providing disclosures for ‘Named Plaintiff and
Opt-In Plaintiffs as of the date of this response.’” Def. Mem. at 7 (quoting Defendant’s
Response and Objections, dated December 21, 2018, annexed as Exh. K to Hampton Decl.).
As to RFP 1, plaintiffs asked for production of all “paystubs, wage statements, wage
notices, and/or related documents provided or made available to Plaintiff and each Class
Member.” Defendant’s Responses and Objections to Plaintiff’s First Request for the Production
of Documents, annexed as Exh. F. to Wittels Decl. (“Def. Response”), at 4. The term “Class
Member” was defined as “all individuals who are members of the proposed class(es) and/or
collective(s) defined in the Complaint.” Wittels Decl., Exh. C, at 2. The Complaint, in turn,
defined the class as “[a]ll persons who were employed by NY Paving as pavers who, at any time
within six years prior to the date of the filing of this action and thereafter, did not receive full
compensation for all overtime and straight hours worked.” Complaint ¶ 46. NY Paving objected
to RFP 1 as “disproportionate to the needs of this case,” as “overbroad as to scope and time as
the Request is not limited to a specific time period and/or it seeks information outside the
relevant statute of limitations period,” as vague and ambiguous, as assuming facts not admitted,
as “improper as this matter has not been certified as a class action,” and as seeking “information
not calculated to lead to the discovery of admissible evidence.” Def. Response at 4. More to the
point, NY Paving stated that it was “construing this Document Request as seeking information
relating to the number of hours worked, and/or pay received for said hours worked, for Plaintiff
and/or any individual who has ‘opted-in’ to this matter,” and agreed to “provide documents
and/or materials responsive to this request” as construed by defendant. Id. In other words, it
construed the request to require information only concerning the Long Island City worksite.
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The remaining requests follow a similar pattern. For instance, RFP 3 asked for
production of all “documents providing, reflecting or setting forth payroll data for Plaintiff and
each Class Member,” id. at 6, and defendant raised nearly identical objections, while adding that
the request was “unduly burdensome,” and again construed the Request as seeking information
only as to plaintiff and other opt-in plaintiffs, agreeing to provide documents limited to those
individuals. Id. The defendant made a similar response to RFP 4 (id. at 7), 13 (see id. at 16), 27
(id. at 27-28), 28 (id. at 28-29), 29 (id. at 29-30), 30 (id. at 30-31), 31 (id. at 31), 32 (id. at 32),
33 (id. at 33), 44 (id. at 43-44), 53 (id. at 49), 55 (id. at 51), 56 (id. at 52), and 57 (id. at 53). For
three of the RFPs — 14 (seeking “manuals, procedures, policies, texts, emails, memos,
correspondence or other documents relating to pay for teamsters or other employees who drove
trucks or other vehicles containing material used for paving work”), 36 (seeking “documents that
constitute or reflect the management structure of NY Paving and any affiliate companies or
entities”), and 49 (seeking “codes of business practices or corporate integrity statements”) — NY
Paving raised similar objections as to the other RFPs but did not agree to produce any
documents. See id. at 17, 35, 46.
As for the two interrogatories identified, Interrogatory 2 sought various contact
information and other information about “each individual who worked at NY Paving on an
hourly basis at any time from January 1, 2012 to the present.” Defendant’s Response and
Objections to Plaintiff’s First Set of Interrogatories to Defendant, annexed as Exh. F to Wittels
Decl., at 6. Defendant raised similar objections to this interrogatory as those raised in the
document requests responses, and additionally objected to providing this information because it
was not directed by the FLSA Approval Decision and because it allegedly sought “information
outside the scope of Local Rule of the United States District Court for the Southern District of
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New York 33.3.” Id. Importantly, defendant construed “this Request as seeking the names of
witnesses who may [sic] information relevant to Plaintiff’s claims and/or to Defendant’s
defenses,” and referred back to its response to Interrogatory No. 1. Id. at 7. Defendant similarly
objected to Interrogatory 26 (which asked Defendant to “describe any system used to track data
about” various categories of information, including “payroll” and “human resources”) as outside
the scope of Local Rule 33.3, while raising similar objections to those previously made in
response to the requests discussed above, as well as objecting that this interrogatory was beyond
the presumptive limit of 25 interrogatories. Id. at 25-26.
In its supplemental responses, see Defendant’s Fourth Supplemental Responses and
Objections to Plaintiff’s First Request for the Production of Documents, annexed as Exh. G to
Wittels Decl., defendant reiterated its prior objections and stance of “construing” various
document requests as seeking only information about the named plaintiff and the opt-ins, id. at 5
(in response to RFP 1), 7 (RFP 3), 8 (RFP 4), 15-16 (RFP 13), 26-32 (RFPs 27-33), 46-47 (RFP
53), 48-51 (RFPs 55-57). Defendant also stated whether or not it was withholding any
documents on the basis of these objections and indicated that it was withholding documents as to
RFP 1, see id. at 6, RFP 3, id. at 8, RFP 4, id. at 9, and RFP 36, id. at 34. For some of the other
requests that encompassed Old Bethpage documents, however, NY Paving affirmatively stated
that it was not withholding any documents at this point. See, e.g., id. at 16 (RFP 13: “Defendant
affirmatively avers it is currently not withholding any materials responsive to this request on the
basis of any objection noted above.”). It did so, however, immediately after reiterating that it
had “constru[ed]” the Request as seeking only information related to the named plaintiff and optins. Id. We thus view its response — that Defendant is “not in possession of documents
responsive to this request” and “currently not withholding any materials responsive” — as
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modified by the provision in the previous line that identified its “construction” of the RFP as
limited to the plaintiffs. Id. Defendant repeated the same pattern in its responses to RFPs 27-33,
53, and 55-57. See id. at 27-32, 46-47, 48-51. For RFPs 14 (seeking all “manuals, procedures,
policies, texts, emails, memos, correspondence or other documents relating to pay for teamsters
or other employees who drove trucks or other vehicles containing material used for paving
work”), 44 (all “documents concerning Defendant’s human resource and payroll systems”), and
49 (all “codes of business practices or corporate integrity statements”), defendant stated it was
“currently not withholding any materials responsive to this request on the basis of any objection
noted above.” Id. at 17, 40, 44.
While the Court finds defendant’s responses to some of these requests to be awkwardly
written, the responses reflect a passable effort to indicate that whatever documents were being
provided were limited to the claims of the plaintiffs and the opt-in plaintiffs — all of whom
worked at the Long Island City facility. Whether or not defendant should have made this
limitation, it at least did so explicitly. Thus, plaintiffs could have challenged the defendant’s
“construction” of their RFP. On the other hand, we understand why plaintiffs did not do so as it
undoubtedly did not occur to them that there were pavers who worked anywhere other than the
location where the plaintiffs and opt-ins worked.
As just noted, the placement in the responses to the RFPs of its statement that defendant
was “not withholding” documents understandably might have generated confusion on plaintiffs’
part. In the end, however, a sanction for this conduct would not be appropriate because
defendant was “substantially justified” in taking the position that the limiting language it placed
in its responses relieved it of any obligation to provide Old Bethpage documents. See Fed. R.
Civ P. 37(c)(1). “Substantial justification may be demonstrated where there is justification to a
15
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degree that could satisfy a reasonable person that parties could differ as to whether the party was
required to comply with the disclosure request, or if there exists a genuine dispute concerning
compliance.” Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280
F.R.D. 147, 159 (S.D.N.Y. 2012) (punctuation omitted). It was arguably proper for defendant to
have understood its obligations under Rule 26 as extending only to production of information
relating to the allegations about pavers at the Long Island City facility (as long as it made clear
that it was placing that limitation) and defendant adequately conveyed that it was producing only
that information.
The defendant’s actions were also “harmless.” Fed. R. Civ. P. 37(c)(1). The duty to
respond to discovery requests, as well as the duty to supplement under Rule 26(e), is defined by
the scope of discovery set forth in Rule 26(b). Thus, a party may “serve on any other party a
request within the scope of Rule 26(b).” Fed. R. Civ. P. 34(a). Similarly, interrogatories “may
relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). And
Rule 26(b) limits discovery to matters that are “relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1). Here, the entirety of plaintiffs’ specific factual allegations in the Complaint
related to the Long Island City location. Plaintiffs worked only at that facility, and the
allegations of the complaint, notwithstanding many generic allegations of claims by “pavers,”
addressed violations of law only at that specific facility. See generally Complaint ¶¶ 20
(“Defendant requires its pavers . . . to arrive at Defendant’s central yard in Long Island City”),
21 (referencing Diaz’s arrival “at the yard”), 22-25 (describing work done at the Long Island
City yard and travel from it), 28 (“After completing the final paving assignment, pavers are
required to reload the company truck, ride with or drive the tools and materials back to
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Defendant’s yard in Long Island City”), 32 (describing Diaz’s driving from paving sites and
“back to the yard from the last paving site”).
Plaintiffs protest that the fact that their complaint only addresses the Long Island City
location was “due to Defendant’s misconduct at issue in this motion.” Pl. Reply at 17. But it is
hardly clear that this is so. Having made specific claims regarding the Long Island City location
that satisfied the requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), it is not clear that
plaintiffs would have been entitled to discovery as to any other worksites. This is because “[t]he
purpose of discovery is to find out additional facts about a well-pleaded claim, not to find out
whether such a claim exists.” Jones v. Capital Cities/ABC Inc., 168 F.R.D. 477, 480 (S.D.N.Y.
1996) (punctuation omitted); accord Am. Comm. v. Ret. Plan, 488 F. Supp. 479, 484 (S.D.N.Y.
1980) (“The discovery rules are designed to support a properly pleaded cause of action and to
prepare defenses to charges made not to discover whether a claim exists.”).
Our conclusion that a sanction is not appropriate under Rule 37 is strengthened by
considering what would be required to place the plaintiffs in “the position [plaintiffs’] would
have occupied but for the breach of discovery obligations,” In re Sept. 11th Liab. Ins. Coverage
Cases, 243 F.R.D. 114, 132 (S.D.N.Y. 2007), which is one of the primary purposes of a Rule 37
sanction, id. Had NY Paving disclosed the existence of the Old Bethpage location at the
beginning of the case, plaintiffs would not necessarily have obtained any discovery about
activities in that location, for the reasons just described. 4
The same chain of events would have likely ensued had defendant’s attorneys sought to
circumscribe the Court’s ruling requiring that a notice should be sent to “all NY Paving pavers”
by explicitly arguing that the notice would improperly sweep in the Old Bethpage pavers. FLSA
Approval Decision at 17. This is because the plaintiffs would not have been entitled to send
notice to the Old Bethpage pavers based on the record they presented to the Court inasmuch as
they presented no evidence that pavers other than those who worked at Long Island City were
“similarly situated” to the pavers who did work at Long Island City. See 29 U.S.C. § 216(b). In
4
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Notwithstanding these circumstances, plaintiffs essentially ask this Court to presume that,
had defendant disclosed the Old Bethpage location initially, plaintiffs would have investigated
that location and would have found conditions of employment similar to those alleged at the
Long Island City location. See Pl. Reply at 13 (“If Plaintiffs had known of NY Paving’s Old
Bethpage operations, and if further discovery was necessary before moving for conditional
certification as to all pavers, Plaintiffs would have conducted litigation accordingly.”). But it is
simply speculative to believe that this would have been the outcome. Thus, this case differs from
those cited by plaintiffs in support of their motion because in those cases the relevance of the
withheld information was clear. See Burrell v. AT&T Corp., 2006 WL 3802224, at *1
(S.D.N.Y. Dec. 21, 2006) (finding that “plaintiff has repeatedly and intentionally concealed
relevant and discoverable information to defendants’ prejudice”) (cited by Pl. Mem. at 15), aff’d,
282 F. App’x 66 (2d Cir. 2008); Nittolo v. Brand, 96 F.R.D. 672, 676 (S.D.N.Y. 1983) (finding
that plaintiff “deliberately engaged in a pattern of conduct designed to conceal facts and to
prevent defendants from discovering and obtaining relevant evidence”) (cited by Pl. Mem. at
15); McMunn v. Mem’l Sloan-Kettering Cancer Ctr., 191 F. Supp. 2d 440, 453 (S.D.N.Y. 2002)
(finding that evidence concealed by plaintiff was “highly relevant to her potential damages in
this suit”) (cited by Pl. Mem. at 15). Here, by contrast, the relevance of information or
documents as to Old Bethpage is unknown.
order to send notice to Old Bethpage pavers, plaintiffs would have had to include affidavits
offering specific facts about the pavers at that location. See, e.g., Contrera v. Langer, 278 F.
Supp. 3d 702, 721 (S.D.N.Y. 2017) (authorizing notice for workers who were supervised from
one location but not workers supervised from other locations operated by defendants). At most,
a disclosure by defendant at that time would have put plaintiffs on notice as to the Old Bethpage
location, and allowed them to investigate conditions at that facility on their own — a situation
that has now prevailed for at least four months and that has not resulted in plaintiffs seeking to
move to amend the complaint.
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The Court’s conclusion that a sanction under Rule 37 should not issue is unfortunately
the best of a number of not fully satisfactory responses to defendant’s conduct. The Court
remains troubled that NY Paving carefully crafted its discovery responses to avoid having
plaintiffs learn about the Old Bethpage worksite. That there was a deliberate effort to keep
plaintiffs in the dark about Old Bethpage is evidenced by the defendant’s response to plaintiffs’
request under 29 U.S.C. § 216(b) for an order notifying “all pavers” employed by defendant of
the collective action. See Notice of Motion for Conditional Certification, filed August 23, 2018
(Docket # 32), at 2. The normal response by a defendant to a request by an FLSA plaintiff for an
overbroad order is to argue during the course of briefing that the definition of the proposed
collective must be narrowed — and to give reasons why the proposed wording improperly
sweeps in worksites where the plaintiffs did not work. Indeed, such arguments are routine in
collective action motions under the FLSA — and would likely have been successful in this case.
Instead, defendant was silent about the scope of the proposed collective and, once the requested
language was adopted by the Court, chose to continue its silence and “interpret” that language in
a manner contrary to its plain terms. Defendant never explains why it failed to oppose plaintiffs’
request that “all pavers” be included in the collective action as opposed to just pavers at Long
Island City. It also fails to explain why it could properly take it upon itself to not follow a court
order that required that notice be sent to and information provided as to “all pavers.” FLSA
Approval Decision at 17.
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That being said, we do not believe a discovery sanction is warranted for the reasons
already stated — and most obviously because we cannot find that the course of this lawsuit
would have altered had defendant forthrightly disclosed the fact that other pavers existed. 5
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for sanctions under Fed. R. Civ. P. 37
(Docket # 210) is denied.
SO ORDERED.
Dated: August 11, 2021
New York, New York
5
This may not be the end of the effort to include Old Bethpage pavers in the lawsuit as
plaintiffs are free to make a motion to amend to include them if they have a basis for doing so
and if they can satisfy the prerequisites of a motion to amend. And in the event there were a
motion to include the Old Bethpage pavers in the collective action, the defendant’s conduct in
failing to seek modification of the Court’s section 216(b) order might also justify equitable
tolling. The Court makes no rulings on these matters at this time, however.
20
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