MARTINEZ SOLAIS V. DABBUSCO, ET AL.
Filing
51
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/16/2015, that Defendants' Motion to Compel (Docket Entry 27 ) and Supplemental Motion (Docket Entry 39 ) are GRANTED IN PART and DENIED IN PART as se t out herein. FURTHER that Plaintiffs' purported Responsive Motion (Docket Entry 46 ) is DENIED. FURTHER that Plaintiffs' Motion to Quash (Docket Entry 29 ) is GRANTED insofar as it seeks to quash the August 7t h nonparty subpoenas. By October 23, 2015, Defendants must file a Notice certifying that they have returned or destroyed all materials received pursuant to the subpoenas.FURTHER that Defendants shall have until October 30, 2015, to respond t o "Plaintiff's Motion for Conditional Certification Pursuant to the Fair Labor Standards Act" (Docket Entry 14 ). FURTHER that the parties shall negotiate in good faith in a meaningful attempt to resolve any other discovery disputes that may arise and to develop a consent protective order as to any materials entitled to protection under Rule 26(c)(1).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MIRIAM MARTINEZ SOLAIS,
on behalf of herself and all
others similarly situated,
Plaintiff,
v.
VESUVIO’S II PIZZA & GRILL, INC.
and GIOVANNI SCOTTI D’ABBUSCO,
Defendants.
)
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)
)
)
)
)
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)
1:15CV227
MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Defendants’ Motion to
Compel and for Extension of Deadlines to Complete Discovery and
Respond to Plaintiffs’ Motion to Certify” (Docket Entry 27) (the
“Motion to Compel”); “Plaintiffs’ Motion to Quash Subpoenas to NonParties, or, in the Alternative, Motion for Protective Order”
(Docket Entry 29) (the “Motion to Quash”); “Defendants’ Amended
Motion to Compel” (Docket Entry 39) (the “Supplemental Motion”);
and “Plaintiff’s Supplemental Response in Opposition to Defendants’
Motion
to
Compel
and
for
Extension
of
Deadlines
(Dkt.
27);
‘Amended’ Motion to Compel (Dkt. 39), or in the Alternative, Motion
for Protective Order” (Docket Entry 46) (the “Responsive Motion”).
For the reasons that follow, the Court will grant in part and deny
in part the Motion to Compel and the Supplemental Motion, will deny
the Responsive Motion, and will grant the Motion to Quash.
BACKGROUND
On March 13, 2015, Plaintiff Miriam Martinez Solais (the
“named Plaintiff”) initiated a putative collective action under the
Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., (the “FLSA”)
and a putative class action under the North Carolina Wage and Hour
Act, N.C. Gen. Stat. §§ 95-25.1 et seq., on behalf of certain
kitchen workers at Vesuvio’s II Pizza & Grill, Inc. (“Vesuvio’s
II”). (Docket Entry 1.) According to named Plaintiff’s Complaint,
Giovanni
Vesuvio’s
Scotti
II
D’Abbusco
(collectively
(the
“Individual
with
Defendant”)
and
Defendant,
the
Individual
“Defendants”) failed to pay named Plaintiff and other kitchen
workers minimum wages and overtime, as mandated by law.
e.g., id., ¶¶ 2-4, 14, 17-18, 30, 34.)
(See,
On June 19, 2015, named
Plaintiff filed a Consent to Join Suit as Party Plaintiff on behalf
of
Mateo
San
Agustin
Alvarado
(the
“opt-in
Plaintiff,”
collectively with named Plaintiff, the “Plaintiffs”).
and
(Docket
Entries 12, 12-1.)
Three
days
later,
named
Plaintiff
filed
a
motion
for
conditional certification of the collective action under the FLSA
(Docket Entry 14), in connection with which motion Defendants
sought discovery (see Docket Entry 13 at 2-3).1
In particular,
1
Citations herein to Docket Entry pages utilize the
document’s internal pagination if unified internal pagination
exists. In the absence of such pagination, the Docket Entry page
citations utilize the CM/ECF footer’s pagination.
2
Defendants requested “a forty-five (45) day period to complete
initial discovery on the manner and means of recruitment by [named]
Plaintiff or her counsel.”
(Id. at 3.)
After hearing argument of
counsel regarding the requested discovery (see generally Docket
Entry 21), the Court “authoriz[ed] a 45-day period (through [August
14,] 2015) for limited discovery pertaining to the named Plaintiff
and the opt-in Plaintiff on the subject of factual issues raised by
[named Plaintiff’s] Motion for Conditional Certification (but not
any equitable defenses related to alleged recruitment of potential
plaintiffs as proposed by Defendant[s] in [Defendants’] Rule 26f
Report)” (Text Order dated June 30, 2015 (the “Text Order”)).
On July 2, 2015, Defendants served their First Set of Requests
for Production of Documents (the “Requests”) on Plaintiffs (Docket
Entry 27 at 2), to which Plaintiffs responded on August 3, 2015
(id. at 3).
Meanwhile, on July 22, 2015, Defendants’ counsel
proposed depositions of Plaintiffs “on August 12, 13 or 17 in Wake
County.”
(Docket Entry 27-1 at 1-2.)
Plaintiffs’ counsel did not
respond to this proposal until she received Defendants’ deposition
notices on July 28, 2015.
(See id. at 1; Docket Entry 27-2.)
The
notices set the depositions of opt-in Plaintiff at 9:30 a.m. and
named Plaintiff at 2:00 p.m. on Wednesday, August 12, 2015, in
Raleigh, North Carolina.
(Docket Entry 27-2 at 2, 5.)
In response
to the deposition notices, Plaintiffs’ counsel indicated, “I think
August 12 should be fine for named plaintiff Martinez, and I will
3
check back with you on opt-in plaintiff Alvarado.”
(Docket Entry
27-1 at 1.)
The parties apparently had no further communication about
these depositions until 5:09 p.m. on Friday, August 7, 2015, when
Plaintiffs’ counsel sent an email to Defendants’ counsel stating,
For next week’s depositions of plaintiffs Plaintiff
[sic] Martinez and San Agustin Alvarado, while plaintiff
Martinez will be physically present for her deposition,
opt-in Plaintiff, Alvarado, will not be physically
present because he now resides in Ohio. As you recall,
I advised you that while I was confident that Plaintiff
Martinez could sit for an August 12 deposition, I was not
so sure about opt-in plaintiff Alvarado. Because he now
lives in Ohio, the deposition will have to be taken
telephonically; unless you would prefer to travel to Ohio
to take his deposition.
(Docket Entry 27-4 at 2; see id. at 1.)
Defendants’ counsel
objected
opt-in
to
the
unavailability
late
for
an
notification
in-person
of
deposition
in
Raleigh,2
declined to take his deposition telephonically.
Ultimately,
the
parties
agreed
to
take
Plaintiff’s
opt-in
and
(Id. at 1.)
Plaintiff’s
deposition via videoconference from Ohio on August 18, 2015,3 but
they failed to agree on who should bear the expense associated with
this videoconference deposition.
(See Docket Entry 27-5.)
2 Defendants’ counsel was especially perturbed “to learn of
[opt-in Plaintiff] Alvarado’s unavailability after 5 pm on a day
when [Defendants’ counsel] ha[d] spent the entire day in deposition
with [Plaintiffs’ counsel].” (Docket Entry 27-4 at 1.)
3 The parties also agreed to seek an extension of the August
14th discovery deadline to accommodate an August 18th deposition.
(See Docket Entry 27-5 at 1-3.)
4
On
August
Plaintiff.
12,
2015,
Defendants’
(Docket Entry 36-1 at 1.)
counsel
deposed
named
During this deposition,
Plaintiffs’ counsel objected to, and instructed named Plaintiff not
to answer, certain questions as “outside the scope of the June
[30]th, 2015 Order limiting discovery to plaintiff’s motion for
conditional certification.
questions.”
(Id. at 12.)
Questions are only limited to factual
On August 13, 2015, Defendants’ counsel
sent a letter to Plaintiffs’ counsel regarding the depositions and
Plaintiffs’ responses to the Requests, asserting that “by this
letter [Defendants’ counsel was] attempting to confer in good faith
to reach a resolution” of the parties’ “significant disagreements
about the conduct of discovery.”
Although
Defendants’
counsel
did
(Docket Entry 32-1 at 5.)
not
send
the
letter
until
9:37 a.m., she “request[ed] [Plaintiffs’] response by 4:00 p.m.
today” lest Defendants “be forced to raise the[se issues] in a
motion
to
compel.”
(Id.)
Plaintiffs’
counsel
responded
to
Defendants’ letter that same day, articulating Plaintiffs’ position
on the identified issues and observing that, “unfortunately, the
parties will not be able to reach any agreement on the issues
outlined in [Defendants’] letter.”
(Id. at 10.)
Defendants filed their Motion to Compel.
The next day,
(Docket Entry 27 at 10.)
There is no indication that the parties made any further
attempts
to
resolve
their
disagreements
regarding
permissible
deposition questions prior to opt-in Plaintiff’s deposition on
5
August 18, 2015. At that deposition, Plaintiffs’ counsel similarly
objected to, and instructed opt-in Plaintiff not to answer, certain
questions.
(See, e.g., Docket Entry 39-1 at 12 (“Objection.
going to instruct the witness not to answer.
I’m
This is outside of
the Court’s June 30th, 2015 Order limiting discovery to the named
Plaintiff and opt-in Plaintiff as it relates to Plaintiff’s Motion
for
Conditional
Certification
and
Notice
and
the
factual
allegations raised in that motion.”).)
Following that deposition,
Defendants
Motion,
filed
their
Supplemental
which
focuses
on
Plaintiffs’ counsel’s objections and instructions during opt-in
Plaintiff’s deposition.
(See generally Docket Entry 39.)
Through
the Responsive Motion, Plaintiffs timely responded in opposition to
the Supplemental Motion and, additionally, sought entry of a
protective order regarding permissible discovery in this matter.
(See generally Docket Entry 46.)
Meanwhile, on August 7, 2015, Defendants served subpoenas on
two nonparties, seeking in one subpoena “[a]ny documents relating
[to] Mateo San Augustin [sic] Alvarado” and in the other two
subpoenas “[a]ll documents relating to Miriam Martinez Solais.”
(Docket Entry 29-1 at 2, 5, 8.)
The subpoenas demanded production
by 10:00 a.m. on August 18, 2015.
(Id.)4
Defendants did not
4
This production date fell outside the Text Order’s
discovery deadline. The record does not establish whether these
subpoenas issued before or after Plaintiffs’ counsel contacted
Defendants’ counsel about the upcoming depositions, but Defendants’
(continued...)
6
provide prior notice of these subpoenas to Plaintiffs. (See Docket
Entry 29-2 at 1.)
Upon learning of these subpoenas a few days
after their issuance, Plaintiffs sent a letter to Defendants
outlining various objections to, and requesting withdrawal of, the
subpoenas.
(Docket Entry 29-2.)
Defendants failed to respond to
this letter (Docket Entry 47 at 4 n.3), prompting Plaintiffs’
Motion to Quash.
DISCUSSION
I.
Legal Framework
A.
FLSA Standards
Under the FLSA, an employee can pursue an action for unpaid
overtime and minimum wages on “behalf of himself . . . and other
employees similarly situated.”
29 U.S.C. § 216(b).
For FLSA
purposes, “[p]utative class members are similarly situated . . . if
they raise a similar legal issue as to coverage, exemption, or
nonpayment o[f] minimum wages or overtime arising from at least a
manageably similar factual setting with respect to their job
requirements and pay provisions.”
McLaurin v. Prestage Foods,
Inc., 271 F.R.D. 465, 469 (E.D.N.C. 2010) (internal quotation marks
4(...continued)
counsel failed to disclose these subpoenas in any of the
correspondence between the parties in the record. Any undisclosed
discovery outside the discovery period would raise substantial
questions. See Black v. Youngue, Civil Action No. 14-505, 2014 WL
7335030, at *3-4 (W.D. Pa. Dec. 19, 2014) (concluding that party
acted in bad faith in issuing nonparty subpoena without notice to
opposing party after close of discovery).
7
omitted).5
To become a party plaintiff, each “similarly situated”
employee must “give[] his consent in writing to become such a party
and such consent [must be] filed in the court in which such action
is
brought.”
29
U.S.C.
§
216(b).
Because
the
statute
of
limitations does not stop running until an employee affirmatively
opts into the lawsuit, courts employ a two-stage certification
procedure for FLSA collective actions.
Houston v. URS Corp., 591
F. Supp. 2d 827, 831 (E.D. Va. 2008).
At the first stage, known as conditional certification, “the
court determines whether the putative class members’ claims are
sufficiently similar to merit sending notice of the action to
possible members of the class.”
Inc.,
F. Supp. 3d
,
Adams v. Citicorp Credit Servs.,
, 2015 WL 1279544, at *9 (M.D.N.C.
Mar. 20, 2015) (internal quotation marks omitted).6
Although not
a “rubber-stamp approach,” the conditional certification standard
is “fairly lenient[:]”
the plaintiff “need only make a relatively
modest factual showing that a common policy, scheme or plan that
5
FLSA collective actions lack the “requirements of
numerosity, commonality, typicality and adequacy” associated with
Rule 23 class actions. Robinson v. Empire Equity Grp., Inc., Civ.
Action No. 09-1603, 2009 WL 4018560, at *1 n.8 (D. Md. Nov. 18,
2009).
6 The second stage, known as decertification, only occurs if
conditional certification is granted and a defendant, “usually
after discovery is virtually complete[,]” moves to decertify the
class. Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 299 (W.D.N.C.
2013). At that stage, “courts apply a heightened fact specific
standard to the similarly situated analysis.” Id.
8
violated the law exists.”
Id. at *9-10 (internal quotation marks
and alterations omitted).
Moreover, when evaluating conditional
certification, “the Court does not resolve factual disputes, decide
substantive
issues
determinations.”
These
conditional
on
the
merits,
or
make
credibility
Id. at *10 (internal quotation marks omitted).
certification
standards
guide
the
Court’s
analysis of the instant motions.
B.
Discovery Standards and Obligations
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26
advisory
committee’s
notes,
1983
Amendment.
Fed. R. Civ. P.
Accordingly,
“[u]nless otherwise limited by court order, the scope of discovery
is
as
follows:
Parties
may
obtain
discovery
regarding
any
nonprivileged matter that is relevant to any party’s claim or
defense . . . .”
Fed. R. Civ. P. 26(b).
Relevancy “essentially
involves a determination of how substantively the information
requested bears on the issues to be tried.”
Mills v. East Gulf
Coal Preparation Co., LLC, 259 F.R.D. 118, 131 (S.D. W. Va. 2009)
(internal quotation marks omitted); see also Cook v. Howard, 484 F.
App’x 805, 812 (4th Cir. 2012) (“Relevance is thus the foundation
for any request for production, regardless of the individual to
whom a request is made.”).
Moreover, “[e]ven assuming that th[e]
information is relevant (in the broadest sense), the simple fact
that requested information is discoverable . . . does not mean that
9
discovery must be had.
On its own initiative or in response to a
motion for protective order under Rule 26(c), a district court may
limit [discovery] . . . .”
Nicholas v. Wyndham Int’l, Inc., 373
F.3d 537, 543 (4th Cir. 2004).
As such, “[d]istrict courts enjoy
nearly unfettered discretion to control the timing and scope of
discovery and [to] impose sanctions for failures to comply with
[their] discovery orders.”
Hinkle v. City of Clarksburg, W. Va.,
81 F.3d 416, 426 (4th Cir. 1996); accord Cook, 484 F. App’x at 812
(“District courts are afforded broad discretion with respect to
discovery
generally,
and
motions
to
quash
subpoenas
specifically.”).
To
minimize
the
necessity
of
judicial
intervention
in
discovery disputes, counsel have certain obligations in conducting
discovery. See Fed. R. Civ. P. 26 advisory committee’s notes, 1983
Amendment
Subdivision
(g)
(“If
primary
responsibility
for
conducting discovery is to continue to rest with the litigants,
they must be obliged to act responsibly and avoid abuse.”).
To
begin with, this Court’s Local Rules mandate that counsel “conduct
discovery in good faith and . . . cooperate and be courteous with
each other in all phases of the discovery process.”
26.1(b)(1).
M.D.N.C. LR
Furthermore, pursuant to Rule 26 of the Federal Rules
of Civil Procedure (the “Rules”), counsel bear “an affirmative
obligation to engage in pretrial discovery in a responsible manner
that is consistent with the spirit and purposes of Rules 26 through
10
37.”
Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 242
(M.D.N.C. 2010) (emphasis in original) (quoting Fed. R. Civ. P. 26
advisory committee’s
notes,
1983
Amendment,
Subdivision
(g)).
“[T]he spirit of the [R]ules is violated when advocates attempt to
use discovery tools as tactical weapons rather than to expose the
facts and illuminate the issues . . . .”
Fed. R. Civ. P. 26
advisory committee’s notes, 1983 Amendment; see also Mills, 259
F.R.D. at 130 (“The civil discovery process is to be engaged in
cooperatively.”); Wagner v. St. Paul Fire & Marine Ins. Co., 238
F.R.D. 418, 422 (N.D. W. Va. 2006) (observing that “[g]amesmanship”
in discovery “is not allowed”).
Consequently, the Rules “oblige[]
each attorney to stop and think about the legitimacy of a discovery
request, a response thereto, or an objection” before making such
request, response, or objection.
committee’s
notes,
1983
Fed. R. Civ. P. 26 advisory
Amendment,
Subdivision
(g)
(emphasis
added); accord id. (explaining that the Rules “require[] the lawyer
to pause and consider the reasonableness of his request, response,
or objection”).
Notwithstanding these obligations, “hardball discovery is
still a problem in some cases.”
Kinetic, 268 F.R.D. at 243
(internal quotation marks and alterations omitted). The Rules thus
authorize litigants to bring unresolved discovery disputes before
a court through either a motion to compel discovery or a motion for
protective order. See id.
Each of these motions requires the
11
moving
party
to
certify
“that
the
movant
has
in
good
faith
conferred or attempted to confer with other affected parties in an
effort to resolve the dispute without court action.”
Fed. R. Civ.
P. 26(c)(1); accord Fed. R. Civ. P. 37(a)(1) (“The motion must
include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court
action.”).
As our Local Rules indicate, this Court takes the
parties’ good-faith conferral obligations seriously:
The Court will not consider motions and objections
relating to discovery unless moving counsel files a
certificate that after personal consultation and diligent
attempts to resolve differences the parties are unable to
reach an accord. The certificate shall set forth the
date of the conference, the names of the participating
attorneys, and the specific results achieved. It shall
be the responsibility of counsel for the movant to
arrange for the conference and, in the absence of an
agreement to the contrary, the conference shall be held
in the office of the attorney nearest the court location
where the initial pretrial conference was convened or, in
the
absence
thereof,
nearest
to
Greensboro.
Alternatively, at any party’s request, the conference may
be held by telephone.
M.D.N.C. LR 37.1(a).
Finally, as with other written motions, any
motion to compel or motion for protective order must “be set out in
a separate pleading” and, unless resolved under the expedited
procedures of Local Rule 37.1(b), must “be accompanied by a brief.”
M.D.N.C. LR 7.3(a).
In addition to these general discovery precepts, the Rules
impose specific additional obligations in circumstances where the
12
“power of the lawyer as officer of the court” engenders “increased
responsibility and liability for the misuse of this power.”
R.
Civ.
P.
45
Subdivision (a).
advisory
committee’s
notes,
1991
Fed.
Amendment,
In that regard, before serving a subpoena duces
tecum on a nonparty, counsel must serve “a notice and a copy of the
subpoena . . . on each party.”
Fed. R. Civ. P. 45(a)(4).
This
notification requirement exists, in part, to allow a party to
object to both the substance of the subpoena and its service on the
nonparty.
See Burch v. P.J. Cheese, Inc., No. 2:09-CV-1640, 2010
WL 9081738, at *2 n.2 (N.D. Ala. Aug. 20, 2010).
Failure to comply
with the Rule 45 notice requirement provides grounds for quashing
a subpoena. See F.D.I.C. v. Kaplan, No. 8:14-CV-2484-T-27JSS, 2015
WL 4744361, at *2 (M.D. Fla. Aug. 10, 2015) (citing Firefighter’s
Inst. for Racial Equal. ex rel. Anderson v. City of St. Louis, 220
F.3d 898, 903 (8th Cir. 2000)); see also, e.g., Murphy v. Board of
Educ.
of
Rochester
City
Sch.
Dist.,
196
F.R.D.
220,
221-22
(W.D.N.Y. 2000) (explaining that, in response to issuance of
subpoenas without notice, “the [c]ourt quashed all of the twelve
offending subpoenas”).
II.
Defendants’ Motions to Compel
Any evaluation of Defendants’ motions to compel must begin
with
the
class
named
Plaintiff
seeks
to
certify.
Per
the
Complaint, the putative collective action class consists of “[a]ll
current and/or former kitchen employees of Defendants who were
13
hourly or salaried employees whose primary duties were non-exempt
work, who were not compensated for all of their hours worked,
including minimum wage and/or time and one-half for hours worked
above forty (40) per week.”
(Docket Entry 1, ¶ 37; see also Docket
Entry 15 at 2 (defining the class as “[a]ll current and/or former
employees of Defendants . . . who were hourly or non-fixed salaried
kitchen employees from March 2012 through the present whose primary
duty was non-exempt work, and who were not compensated minimum wage
for all hours worked and/or time and one-half for hours worked
above forty (40) per week”).)
The Court’s June 30, 2015 Order
provided for limited discovery on factual issues related to named
Plaintiff’s attempt to certify this class.
A.
Conferral Obligations
Before addressing the merits of the motions to compel, the
Court will consider the Rule 37 prerequisite that the parties
engage in a good-faith attempt to resolve this dispute without
judicial intervention.
In conducting this analysis, the Court
begins with Plaintiffs’ Responsive Motion, which, as discussed
below, contends that Defendants failed this prerequisite.
1.
Motion Papers
Plaintiffs present the Responsive Motion as a “Supplemental
Response in Opposition to Defendants’ Motion to Compel . . . [and]
‘Amended’ Motion to Compel.”
(Docket Entry 46 at 1.)
Plaintiffs’
approach likely stems from the intertwined nature of Defendants’
14
two motions to compel.
For instance, Defendants’ Supplemental
Motion “incorporate[s] by reference” portions of their original
Motion to Compel.
(See, e.g., Docket Entry 39 at 2.)
Likewise,
Defendants’ memorandum of support for the Supplemental Motion
purports to “incorporate here by reference [Defendants’] Memorandum
in Support of Defendants’ Motion to Compel . . . in its entirety.”
(Docket Entry 40 at 1.)
In addition, the Supplemental Motion asserts that Defendants
satisfied their Local Rule 37.1(a) obligations for the Supplemental
Motion through the original Motion to Compel.
(Docket Entry 39 at
5 (“In connection with the First Motion to Compel, Defendants
complied with Local Rule 37.1 and attempted to confer in good faith
with Plaintiff[s’] counsel in an effort to secure the requested
information
and
appropriate
objections
in
the
depositions.
Unfortunately, that effort was not successful and Plaintiffs’
counsel
did
not
alter
the
Plaintiff’s] deposition.”).)
pattern
of
objections
in
[opt-in
Moreover, the Supplemental Motion
seeks an order, inter alia, “requiring Plaintiff to pay Defendants’
expenses incurred in filing their First and Amended Motion to
Compel.”
(Id. at 6.)
Finally, Defendants seek relief on the
Amended Motion to Compel as follows:
“Based on the reasoning and
legal authority set forth in the Memorandum in Support of the First
Motion to Compel (Doc. 28), Defendants request the Court to enter
15
an order granting both the First Motion to Compel and the Amended
Motion to Compel.”
2.
(Docket Entry 40 at 2.)
Certification Requirements
In the Responsive Motion, Plaintiffs oppose the Motion to
Compel and the Supplemental Motion on the grounds that Defendants
neither (i) provided Local Rule 37.1(a)’s good-faith conferral
certification in either motion nor (ii) engaged in a good-faith
attempt to resolve these disputes before moving to compel. (Docket
Entry 45 at 3-6.)
Defendants’
By contrast, Plaintiffs’ initial response to
Motion
certification
to
Compel
contention
and
lacks
raises
the
Local
Rule
Defendants’
conferral obligations at best obliquely.
37.1
good-faith
(See Docket Entry 32 at
18 (requesting an award of attorney’s fees because “it can hardly
be said that Defendants made a good faith attempt to resolve the
discovery dispute before filing their motion”).)
Defendants
did
fail
to
include
a
separate
Rule
37
certification in their motions to compel. Nevertheless, Defendants
assert in each motion that they attempted to confer with Plaintiffs
before filing their motions to compel.
Docket Entry 39 at 5.)
(See Docket Entry 27 at 8;
Pursuant to Rule 11, Defendants’ counsel’s
signature on, and submission to the Court of, these motions is a
representation that these good-faith conferral “factual contentions
have evidentiary support.”
Fed. R. Civ. P. 11(b)(3).
In light of
Rule 11 and the fact that Plaintiffs “could and should have made
16
[the certification argument] in their response to the [Motion to
Compel],” Kinetic, 268 F.R.D. at 249 n.33, the Court will exercise
its discretion and decline to sanction Defendants for failure to
comply with the specific certification details of Local Rule
37.1(a). See M.D.N.C. LR 83.4(b) (“The imposition of sanctions for
violation of a local rule is discretionary with the Court.”).
The
Court, however, cautions both parties to strictly adhere to Local
Rule 37.1(a) for any other discovery motions in this case.7
3.
Substantive Conferral Requirements
Having disposed of the certification particulars, the Court
turns to the substantive issue of whether Defendants adequately
conferred with Plaintiffs prior to bringing the Motion to Compel
and Supplemental Motion.
The Court begins this evaluation with the dispute regarding
opt-in
Plaintiff’s
deposition
location.
On
July
28,
2015,
Defendants scheduled opt-in Plaintiff’s deposition for the morning
of August 12, 2015, in Raleigh, North Carolina. (Docket Entry 27-2
at 2.)
Ten days later, Plaintiffs’ counsel asserted that opt-in
Plaintiff would not appear in person for this deposition.
(Docket
7
The Court further advises Defendants to refrain from
extensively “rely[ing] on previous filings” and “incorporating by
reference” components of their motions and supporting briefs (see,
e.g., Docket Entry 49 at 2; Docket Entry 24 at 2, 5; Docket Entry
28 at 3; Docket Entry 39 at 2; Docket Entry 40 at 1-2), lest the
Court adopt the practice of counting such incorporated sections
against the applicable page limits. See Dillon v. BMO Harris Bank,
N.A., No. 1:13-cv-897, Docket Entry 148 at 2 (M.D.N.C. June 30,
2015).
17
Entry 27-4 at 2.)8
The parties exchanged a series of emails and
letters over the next week, ultimately agreeing to conduct opt-in
Plaintiff’s deposition remotely, but failing to agree on which
party would bear the associated videoconference expenses.
(See,
e.g., Docket Entry 27-4 at 1-2; Docket Entry 27-5 at 1-6; Docket
Entry 32-1 at 2-7, 10-11.)
Throughout this exchange, Plaintiffs maintained their position
that Defendants would have to pay for an Ohio deposition if they
wished to depose opt-in Plaintiff.
(See, e.g., Docket Entry 27-5
at 1-6; Docket Entry 32-1 at 11.) Plaintiffs’ final reiteration of
that position occurred on August 13, 2015, in response to a letter
detailing Defendants’ concerns regarding the method and schedule of
opt-in Plaintiff’s deposition.
(Docket Entry 32-1 at 5-7, 10-11.)
Per the Text Order, discovery concluded the following day, August
14, 2015.
Defendants filed their Motion to Compel on August 14,
2015, the presumptive deadline for filing any motion to compel
regarding the conditional certification discovery, see ATI Indus.
Automation, Inc. v. Applied Robotics, Inc., No. 1:09CV471, 2014 WL
3729408,
at
*2
n.2
(M.D.N.C.
July
25,
2014).
Under
these
circumstances, Defendants sufficiently conferred regarding opt-in
Plaintiff’s deposition location prior to filing their Motion to
Compel.
See Kinetic, 268 F.R.D. at 245.
8 Plaintiffs’ counsel’s Friday evening notification left only
two business days before opt-in Plaintiff’s scheduled Wednesday
morning deposition.
18
Plaintiffs also contend that Defendants failed to properly
confer before moving to compel answers to various unanswered
questions in Plaintiffs’ depositions.
Specifically, Plaintiffs
maintain that Defendants’ counsel should have agreed to contact the
Court during the depositions to clarify the scope of permissible
discovery.
(See, e.g., Docket Entry 32 at 3, 16-18.)9
The Court
would prefer for counsel to have meaningfully conferred, either
before or during the depositions, about the scope of permissible
9
Plaintiffs state that “there is no justification for
Defendants’ counsel’s adamant refusal to contact the Court to
discuss the parties’ discovery dispute, request clarification of
the Court’s June 30, 2015 Order, and even permit Plaintiff at that
time to seek another motion for protective order, (if Plaintiff[s’]
counsel had misinterpreted the Court’s Order).” (Docket Entry 32
at 17-18 (emphasis in original).)
This statement appears to
reflect a few misconceptions.
First, this Court’s expedited
resolution procedures only encompass disputes that the parties
agree the Court can resolve without briefing through a 30-minute
telephone conference or one-hour hearing. See M.D.N.C. LR 37.1(b).
Although resolution of this discovery dispute could conceivably
have occurred in such an expedited fashion given that it rests on
the parties’ conceptual differences regarding the permissible scope
of discovery, the parties’ copious briefing clearly shows an at
least equally plausible basis to conclude otherwise.
Thus,
Plaintiffs cannot fault Defendants for refusing to seek expedited
resolution of this discovery dispute.
Moreover, the Rules
authorized Defendants to either “complete or adjourn the
[depositions] before moving [to compel]” Plaintiffs’ answers. Fed.
R. Civ. P. 37(a)(3)(C). Plaintiffs’ counsel did not have similar
leeway to instruct her clients to refuse to answer questions with
which she disagreed. See Fed. R. Civ. P. 30(c)(2). Instead, if
Defendants’ counsel persisted in asking objectionable questions,
Plaintiffs’ counsel should have moved for a protective order
regarding the depositions.
Fed. R. Civ. P. 30(d)(3)(A).
Plaintiffs did not need Defendants’ consent to suspend either
deposition to seek such an order. Id.
19
discovery questions under the Text Order.10
Had counsel done so,
perhaps they could have resolved some of their disagreement,
forestalling the need for judicial intervention. See Hernandez v.
Hendrix Produce, Inc., 297 F.R.D. 538, 540 n.3 (S.D. Ga. 2014)
(recognizing that “meaningful consultation can lead to informal
resolution and thus conservation of court resources”).
Had those
negotiations failed, counsel could then have compiled a list of
disputed questions to bring before the Court, either through the
expedited discovery procedures of Local Rule 37.1(b) or regular
motions practice.
Such an approach would have better served all
concerned.
Nevertheless, the Court cannot conclude that Defendants failed
to satisfy their conferral obligations.
During each deposition,
counsel discussed their differing understandings of the permissible
scope of discovery.
(See, e.g., Docket Entry 36-1 at 7-9; Docket
Entry 39-1 at 5-7, 68-70.)
The day after the first deposition,
Defendants’
a
counsel
sent
letter
to
Plaintiffs’
counsel
specifically detailing Defendants’ concerns regarding Plaintiffs’
counsel’s instruction not to answer a litany of questions during
named
Plaintiff’s
deposition.
(Docket
Entry
32-1
at
7-8.)
Plaintiffs’ response to that letter acknowledges that “the parties
10 In particular, given the manner in which named Plaintiff’s
deposition unfolded and the six-day period between that deposition
and opt-in Plaintiff’s deposition, the parties should have
consulted prior to the latter deposition.
20
will not be able to reach any agreement on the issues outlined in
[Defendants’] letter.” (Docket Entry 32-1 at 10.) Defendants then
moved to compel on the presumptive deadline for such motions.
In
these circumstances, the Court finds that Defendants sufficiently
conferred before bringing their motions to compel Plaintiffs’
deposition answers.
See Kidwiler v. Progressive Paloverde Ins.
Co., 192 F.R.D. 193, 197-98 (N.D. W. Va. 2000) (concluding that
party’s
detailed
letter
satisfied
conferral
obligations
and
explaining that further conferral efforts “would not likely have
been successful in resolving this discovery dispute”).
By
contrast,
Defendants
did
not
satisfy
their
conferral
obligations before moving to compel documents responsive to the
Requests.
Defendants’ August 13th letter specifically references
only one Request, Request 11, which demands various financial forms
showing moneys received from Defendants. (Docket Entry 32-1 at 7.)
Although
“both
Plaintiffs
objected
to”
this
request,
named
Plaintiff produced “a series of check stubs for wages paid by
Vesuvio’s II to [named Plaintiff].”
(Id.)
During her deposition,
“however, [named Plaintiff] testified that she deposited both cash
and checks from [Defendants] into a bank account and that she may
have received a W-2 form.”
(Id.)
Defendants complain that
Plaintiffs’ counsel “refused to allow questioning about the bank
[named Plaintiff] uses or any other information about that account,
despite the fact that these documents are relevant to the material
21
inquiry about both the amount and timing of wage payment [named
Plaintiff] received as well as her credibility on this and other
issues.”
should
(Id.)
produce
addressing
any
With no further explanation of why Plaintiffs
“these
of
[unspecified]
Plaintiffs’
documents”
objections
to
—
and
without
production
—
Defendants’ letter demands that Plaintiffs immediately agree to
“produce these documents and other documents as identified in the
Request for Production served on both plaintiffs.”
Detailed
correspondence
outlining
the
(Id. at 5, 7.)
deficiencies
in
discovery responses and the reasons the requesting party needs the
requested information can satisfy a party’s Rule 37(a) conferral
obligations if such correspondence permits sufficient time for the
opposing party to respond.
See Kinetic, 268 F.R.D. at 244-46;
Kidwiler, 192 F.R.D. at 197-98.
this standard.
Defendants’ letter does not meet
First, it demands production of documents in
response to all the Requests, but does not discuss any Request
other than Request 11.
Second, it does not sufficiently explain
Defendants’ entitlement to any additional materials in response to
Request 11, and it does not address Plaintiffs’ objections to
Request
11.
Third,
it
provides
an
insufficient
period
for
Plaintiffs to respond to the demand for additional materials:
notwithstanding that Plaintiffs had responded to the Requests 10
days previously, Defendants permitted Plaintiffs only a few hours
to accede to their demand for additional productions. Accordingly,
22
because Defendants failed to confer as mandated by Rule 37(a), the
Court will deny Defendants’ request to compel the production of
documents.
See Ambu, Inc. v. Kohlbrat & Bunz Corp., No. 5:99CV20,
2000 WL 17181, at *2 (W.D.N.C. Jan. 6, 2000) (“[T]he fact that
Defendants did not confer with opposing counsel and attempt to
resolve
this
dispute
before
filing
the
motion
to
compel
is
sufficient reason to deny the motion.”); see also M.D.N.C. LR
83.4.11
B.
Deposition Location
Having resolved the conferral issue, the Court turns to the
merits
of
Defendants’
location dispute.
motions,
beginning
with
the
deposition
In their Motion to Compel, Defendants seek
expenses related to rescheduling opt-in Plaintiff’s deposition as
a videoconference deposition from Ohio.
9.)12
(Docket Entry 27 at 4-5,
Defendants assert that Plaintiffs’ counsel acted improperly
11 Defendants’ request for additional documents also fails on
its merits.
At the certification stage, the Court does not
evaluate credibility, resolve factual disputes, or delve into the
merits of the litigation. Adams, 2015 WL 1279544, at *10. Thus,
to the extent financial documents bear upon named Plaintiff’s
credibility (see Docket Entry 28 at 8) or the question of whether
“Defendants paid [named] Plaintiff the wages due to her” (Docket
Entry 27 at 5), those issues lie outside the limited class
certification discovery authorized by the Text Order. See Butler
v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 570-71 (D. Md. 2012).
12 Defendants’ August 13th letter enumerates these expenses
as “the video conferencing expenses at two sites, [in North
Carolina] and in Ohio, another full day of translator services, as
well as a half day of translator services for August 12, 2015
because of the late notice in cancelling [opt-in Plaintiff’s]
(continued...)
23
by belatedly refusing to produce opt-in Plaintiff for his duly
noticed
deposition
in
North
Carolina,
expense of this deposition.
thereby
increasing
the
(See Docket Entry 28 at 10-13.)
Plaintiffs oppose this request on the theory that courts in FLSA
actions frequently permit remote depositions of opt-in plaintiffs
at defendants’ expense.
(See Docket Entry 32 at 13-15.)
In resolving this dispute, the Court will first address
Plaintiffs’
counsel’s
attempt
to
unilaterally
location for opt-in Plaintiff’s deposition.
establish
the
The Rules generally
permit the party noticing the deposition to pick the deposition
location. See Fed. R. Civ. P. 30(b)(1). Here, Defendants’ counsel
notified Plaintiffs’ counsel on July 22, 2015, that Defendants
intended to depose Plaintiffs in North Carolina. (Docket Entry 271 at 1-2.)
On July 28, 2015, Defendants served notices for
depositions of Plaintiffs in North Carolina on August 12, 2015.
(See Docket Entry 27-2.)
If opt-in Plaintiff could not attend the
deposition as noticed, Plaintiffs’ counsel should have promptly
contacted
opposing
counsel
and
alternative deposition location.13
attempted
to
negotiate
an
Yet Plaintiffs’ counsel waited
12(...continued)
deposition.” (Docket Entry 32-1 at 6.)
13
Had the parties not agreed to a remote deposition on
August 18, 2015 — which necessitated an extension of the discovery
deadline — opt-in Plaintiff’s only recourse against a North
Carolina deposition would have been to seek a protective order.
Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406
(continued...)
24
10 days, until the evening of Friday, August 7, 2015, to indicate
that opt-in Plaintiff would have difficulty attending a North
Carolina deposition because he currently resides in Ohio.
Entry 27-4 at 2.)
that
the
Plaintiffs’ counsel’s tardy notification meant
parties
alternative
deposition
had
only
arrangements
on
(Docket
the
two
before
morning
of
business
August
to
negotiate
Plaintiff’s
opt-in
days
scheduled
12,
2015.
In
these
circumstances, the Court concludes that Plaintiffs’ counsel should
properly bear any expense associated with cancelling the August 12th
deposition and scheduling on an expedited basis the August 18th
deposition.
The
conducting
Court
next
opt-in
considers
Plaintiff’s
the
expense
deposition
via
associated
with
videoconference.
Courts frequently order remote depositions of FLSA plaintiffs at
the expense of FLSA defendants.
See Brasfield v. Source Broadband
Servs., LLC, 255 F.R.D. 447, 450 (W.D. Tenn. 2008); see also, e.g.,
Angamarca v. Da Ciro, Inc., 303 F.R.D. 445, 448 (S.D.N.Y. 2012);
13(...continued)
(E.D.N.C. 2014) (“Put simply and clearly, absent agreement, a party
who for one reason or another does not wish to comply with a notice
of deposition must seek a protective order. Once the deposition
notice is served, the [receiving party] bears the burden of
demonstrating to the court that the notice is objectionable or
insufficient.” (emphasis in original; internal quotation marks and
citation omitted)); see also New England Carpenters Health Benefits
Fund v. First DataBank, Inc., 242 F.R.D. 164, 166 (D. Mass. 2007)
(“What is not proper practice is to refuse to comply with the
notice, put the burden on the party noticing the deposition to file
a motion to compel, and then seek to justify non-compliance in
opposition to the motion to compel.”).
25
Gee v. Suntrust Mortg., Inc., No. 10-CV-01509, 2011 WL 5597124, at
*3 (N.D. Cal. Nov. 15, 2011).
In so ruling, such courts emphasize
the expense-savings rationale behind FLSA collective actions and
the fact that opt-in plaintiffs “did not choose the forum; the
forum was chosen for them.”
Brasfield, 255 F.R.D. at 450.
Courts
do not, however, uniformly mandate that such depositions occur
remotely at the sole expense of defendants.
See Hernandez, 297
F.R.D. at 541 (ordering plaintiffs to contribute $1,000 towards
expense of remote depositions); Shockey v. Huhtamaki, Inc., 280
F.R.D.
598,
603
(D.
Kan.
2012)
(ordering
plaintiffs
to
pay
videoconferencing expenses for remote depositions).
Aside from the mere fact that opt-in Plaintiff currently
resides in Ohio, Plaintiffs have offered little to explain their
objection
to
Nevertheless,
an
from
in-person
the
deposition
parties’
in
North
correspondence
Carolina.
and
opt-in
Plaintiff’s deposition testimony, the Court gleans that opt-in
Plaintiff’s work schedule made it difficult for him to travel to
North Carolina for a deposition.
(See Docket Entry 27-5 at 1-2, 4;
Docket Entry 39-1 at 18.) Similarly, Defendants have not explained
why they deemed a telephonic deposition insufficient for opt-in
Plaintiff’s deposition, particularly given the limited nature of
discovery authorized by the Text Order.
See Brasfield, 255 F.R.D.
at 450 (observing that “the [d]efendants have given no reason why
the subject
matter
to
be
covered
26
in
the
out-of-state
opt-in
plaintiffs’ depositions is so significant that it requires an
in-person oral deposition” and ordering either remote or in-person
depositions
in
each
such
“plaintiff’s
city
of
residence”);
Morangelli v. Chemed Corp., No. 10 CIV 00876, 2011 WL 7475, at *2
(E.D.N.Y. Jan. 1, 2011) (ordering evening or weekend telephonic
deposition of FLSA opt-in plaintiff “who cannot afford to take time
off from work”); see also Stephens v. 1199 SEIU, Civil Action No.
07-0596, 2011 WL 2940490, at *2 (E.D.N.Y. July 19, 2011) (ordering
telephonic deposition and observing that “[d]enying a plaintiff’s
request [for a telephonic deposition] based on such an argument
[about defendant’s inability to see plaintiff’s demeanor and use of
documents during the deposition] would in effect be tantamount to
repealing [Rule] 30(b)(4)” (internal quotation marks and alteration
omitted)).
Given these circumstances and the policy rationales
underlying the FLSA, the Court concludes that the parties should
split
the
videoconferencing
expenses
associated
with
opt-in
Plaintiff’s August 18th deposition.14
C.
Deposition Questions
In
their
motions
to
compel,
Defendants
also
contest
Plaintiffs’ counsel’s objections and instructions to Plaintiffs not
to answer certain questions in their depositions because, in
Defendants’ view, these “improper instructions did not enforce any
14
In so ruling, the Court expresses no opinion on the
propriety of expense-shifting in any future depositions, as each
situation may differ.
27
actual limitation set by the Court.”
(Docket Entry 28 at 7.)
Accordingly, Defendants ask the Court to order “Plaintiff[s’]
Counsel to comply in reconvened depositions of Plaintiff[s] with
this Court’s local rules regarding objections and instructions not
to respond to questions propounded by Counsel for Defendants.”
(Docket Entry 27 at 8; Docket Entry 39 at 6.)
In response,
Plaintiffs defend these instructions on the ground that “the
information sought in [Plaintiffs’] deposition[s] had absolutely no
relevance
to
questions
related
conditional certification.”
original).)
to
Plaintiff’s
motion
for
(Docket Entry 32 at 6 (emphasis in
Plaintiffs further assert that, in any event, the
Court should deny the motions to compel because the requested
information “falls outside the scope of discovery” and/or “the
circumstances
render
compelling
otherwise unnecessary.”
omitted).)
behavior
an
answer
to
the
question[s]
(Id. at 4 (internal quotation marks
Although the Court does not condone either party’s
regarding
these
depositions,
the
Court
will
deny
Defendants’ request for reconvened depositions in this conditional
class certification phase.
Before delving into the disputed questions, a few observations
about the depositions are necessary.
First, named Plaintiff’s
deposition lasted for more than four and a half hours (see Docket
Entry 36-1 at 1, 141) and opt-in Plaintiff’s deposition lasted
approximately
five
hours
(see
Docket
28
Entry
39-1
at
1, 101).
Moreover, in their respective depositions, Plaintiffs testified
extensively about their duties at Vesuvio’s II, their employment
history with Defendants, other Vesuvio’s II kitchen workers, and
Defendants’ pay practices. (See, e.g., Docket Entry 36-1 at 15-24,
41-42, 47-49, 52-55, 59-64, 69-104, 110-14, 131-35, 138-40; Docket
Entry 39-1 at 14-17, 19-58, 63-67, 71-72, 74-75, 81-94, 98-99.)15
This context informs the Court’s analysis of whether it should
compel answers to the contested deposition questions.
Turning to the parties’ specific arguments about the contested
questions, Defendants first seek answers to “standard questions
related to background and credibility.”
Defendants’
questions
“general
related
background
to
(Docket Entry 45 at 7.)
question[]”
Plaintiffs’
family
category
and
marital
includes
status,
birthplaces, employment and educational histories, and “whether
[opt-in Plaintiff] decided to join the lawsuit.”
at
2-3;
Docket
Entry
45
at
7-9.)
(Docket Entry 39
Meanwhile,
Defendants’
“credibility” category includes Plaintiffs’ criminal histories
(Docket Entry 45 at 7-8) and presumably also encompasses whether
named Plaintiff “has told the truth to Defendants” or made “prior
claims related to wages” (Docket Entry 27 at 7).
At the conditional certification stage, “the Court does not
. . . make credibility determinations.” Adams, 2015 WL 1279544, at
15
Named Plaintiff also testified extensively about her
report to the Department of Labor regarding Defendants. (Docket
Entry 36-1 at 25-41.)
29
*11
(internal
quotation
marks
omitted);
see
also
Butler
v.
DirectSAT USA, LLC, 876 F. Supp. 2d 560, 570-71 (D. Md. 2012)
(rejecting credibility-based challenge to conditional certification
premised on evidence “contradict[ing p]laintiffs’ assertions”).
Furthermore, none of these questions are relevant to the issue
before the Court at the conditional certification stage, namely,
whether named Plaintiff has presented at least some modest evidence
that there may be additional kitchen employees with similar legal
claims against Defendants for unpaid minimum wages and overtime.
See Enkhbayar Choimbol v. Fairfield Resorts, Inc., 475 F. Supp. 2d
557, 564 (E.D. Va. 2006).
The Court therefore finds that the
burden and expense of obtaining the requested discovery outweigh
its usefulness, “especially in light of the time already spent on
discovery and the expense and inconvenience that would be created
by
resuming
the
depositions,”
Banks
v.
Office
of
Senate
Sergeant-at-Arms and Doorkeeper, 233 F.R.D. 1, 7 (D.D.C. 2005).
Pursuant to Rule 26(b)(2)(C), the Court will not compel Plaintiffs
to answer these questions at this time.
See id.
Defendants also maintain that Plaintiffs’ counsel improperly
instructed named Plaintiff not to answer questions about a time
sheet allegedly signed by named Plaintiff (see Docket Entry 27 at
6; Docket Entry 45 at 4-5), which she denies signing (Docket Entry
36-1 at 108). Plaintiffs’ counsel did not, in fact, instruct named
Plaintiff to refuse to answer questions about this document.
30
(See
id. at 108-16.)
Plaintiffs’ counsel did, however, object to
questions about the validity of named Plaintiff’s signature on
certain checks.
(Id. at 115-16.)
Defendants contend that the
Court should compel named Plaintiff to answer their questions about
the validity of the signatures on these “checks and other documents
purportedly
signed
by
her,”
including
Defendants’
Rules
and
Regulations Contract — which named Plaintiff also denies signing
(id. at 44-46) — and a social security card and permanent residence
card bearing her name.
(Docket Entry 45 at 5-6.)
Defendants rest
this demand on the theory that they “should be entitled to inquire
whether the documents which bear [named Plaintiff’s] signature are
genuine and legitimate comparators for documents she now claims to
have been forged.”
(Id. at 6.)
Even assuming the general relevance of this contested line of
inquiry, the Court cannot resolve factual disputes at this stage of
the litigation.
876
F.
Supp.
Adams, 2015 WL 1279544, at *11; see also Butler,
2d
at
571
(observing
that
“[t]he
fact
that
[Plaintiffs’] allegations are disputed by . . . [D]efendants does
not mean that [P]laintiffs have failed to establish a colorable
basis for their claim that a class of similarly situated plaintiffs
exist[s]”
omitted)).
(alterations
in
original;
internal
quotation
marks
Defendants themselves acknowledge that named Plaintiff
denies signing the disputed documents (including a purported loan
agreement with Individual Defendant).
31
(See Docket Entry 45 at 5.)
As the Court cannot resolve the validity of these documents at the
conditional certification stage, the burden and expense of the
proposed discovery presently outweigh its potential benefits.
Banks, 233 F.R.D. at 7.
See
Pursuant to Rule 26(b)(C), the Court
denies Defendants’ request to compel this discovery.
See id.
On a related note, Defendants maintain that the Court should
require Plaintiffs to answer “follow-up questions” on three topics
to which Plaintiffs allegedly “opened the door” during their
depositions (Docket Entry 39 at 4-5), including whether named
Plaintiff has brought charges against Defendants for fraud (Docket
Entry 45 at 9). The three instances of “door open[ing]” Defendants
identify
are
determination.
irrelevant
to
the
conditional
certification
(See Docket Entry 39 at 4-5; Docket Entry 45 at 9.)
Therefore, regardless of what “door[s]” Plaintiffs may or may not
have opened, the burden and expense of compelling answers to these
“follow-up questions” outweigh any conceivable benefit at this
stage of the litigation, such that the Court will decline to compel
answers to these “follow-up questions.”
See Banks, 233 F.R.D. at
7.
Defendants further assert an entitlement to answers about the
alleged loan with Individual Defendant.
Docket Entry 45 at 4.)16
(Docket Entry 27 at 6, 7;
Defendants insist that named Plaintiff’s
16 Named Plaintiff disputes the existence of this loan. (See
Docket Entry 36-1 at 121-23.)
32
purported “financial and other obligations to Defendants present
conflicts of interest that make her dissimilar to other putative
plaintiffs and an inappropriate representative for any collective
action.”
(Docket Entry 45 at 4.)
Under this same theory,
Defendants also pursue answers regarding named Plaintiff’s alleged
request for Individual Defendant “to act as the guardian for
[named] Plaintiff’s daughter.”
(Docket Entry 27 at 5-7.)
FLSA collective actions do not have the same adequacy of
representation requirements as Rule 23 class actions.
Robinson v.
Empire Equity Grp., Inc., Civ. Action No. 09-1603, 2009 WL 4018560,
at *1 n.8 (D. Md. Nov. 18, 2009); see also Holmes v. Charleston
Ret. Inv’rs, LLC,
F. Supp. 3d
,
, No. 2:13-cv-1713, 2014
WL 10122868, at *5 (D.S.C. Feb. 25, 2014) (rejecting claim that
purported
conflict
between
classes
precluded
conditional
certification); Essame v. SSC Laurel Operating Co. LLC, 847 F.
Supp. 2d 821, 828 (D. Md. 2012) (“Because of the special policy
considerations that the FLSA comprehends, Rule 23 standards are
generally inapplicable to FLSA collective actions.”).
Instead,
FLSA conditional certification asks whether named Plaintiff and
other putative class members “raise a similar legal issue as to
. . . nonpayment o[f] minimum wages or overtime arising from at
least a manageably similar factual setting with respect to their
job requirements and pay provisions.”
(internal quotation marks omitted).
33
McLaurin, 271 F.R.D. at 469
As these alleged conflicts of
interests
have
no
material
impact
on
the
similarly
situated
analysis for conditional certification, the Court concludes that
the burden and expense of compelling this discovery outweigh its
possible benefits.
See Banks, 233 F.R.D. at 7.
The Court
therefore denies Defendants’ request to compel answers to these
questions.
In
addition,
Defendants
request
that
the
Court
compel
Plaintiffs to disclose both the names of the banks Plaintiffs use
and whether named Plaintiff reported her income to the Internal
Revenue Service.
(Docket Entry 39 at 3; Docket Entry 45 at 2-3.)
Defendants hope to use this information to find documents “that
would
corroborate
(or
not)
Defendants’ pay practices.”
[named
Plaintiff’s]
(Docket Entry 45 at 3.)
claim
about
Defendants
also seek information regarding any other jobs Plaintiffs may have
had while in Defendants’ employ.
(Docket Entry 27 at 6-7; Docket
Entry 39 at 5; Docket Entry 45 at 9.)
Although the motions to
compel do not articulate their reasoning, Defendants presumably
seek this information to “corroborate (or not)” Plaintiffs’ claims
regarding their hours at Vesuvio’s II.
pertain to conditional certification.
These questions do not
See Butler, 876 F. Supp. 2d
at 570 (rejecting considerations that “delve[] too deeply into the
merits of the dispute at this initial notice stage” (internal
quotation marks omitted)).
Accordingly, the Court concludes that
34
the burden and expense of this discovery outweigh its potential
benefits and denies Defendants’ request regarding these questions.
Next, Defendants seek to compel opt-in Plaintiff to testify
about (i) whether named Plaintiff telephoned opt-in Plaintiff
“around
mid
February”
to
tell
him
that
Defendants’
kitchen
employees “were compensated in the same fashion and subject to the
same illegal policies” (Docket Entry 39-1 at 89-90) and (ii) “any
pecuniary gain” offered to him for participating in the lawsuit
(id. at 96-97).
Similarly, notwithstanding that named Plaintiff
testified regarding times when she and opt-in Plaintiff discussed
their
duties,
their
hours,
Defendants’
pay
practices,
and
Defendants’ recordkeeping policies, Defendants demand to know “the
last time [named Plaintiff] talked to [opt-in Plaintiff].” (Docket
Entry 36-1 at 73-76, 78, 83-85.)
These questions contravene the
Text Order’s prohibition on discovery into “any equitable defenses
related to alleged recruitment of potential plaintiffs as proposed
by Defendant[s] in [Defendants’] Rule 26f Report.”
Finally,
Defendants
demand
that
opt-in
Plaintiff
answer
questions about a Department of Labor investigation mentioned in
one of his affidavits.
(Docket Entry 39 at 3; Docket Entry 39-1 at
68-70.) The Supplemental Motion identifies this affidavit as “(Doc
18-7)” (Docket Entry 39 at 3), an attachment to the “Memorandum in
Support of Plaintiff’s Emergency Motion for a Protective Order to
Address Defendants’ Improper Communication with Putative Class
35
Members” (Docket Entry 18).
discovery
pertaining
to
The Text Order permits only “limited
the
named
Plaintiff
and
the
opt-in
Plaintiff on the subject of factual issues raised by [Docket Entry]
14 Motion for Conditional Certification.”
The Court therefore
denies Defendants’ request to compel a further deposition related
to the affidavit in question.
In
sum,
assuming,
arguendo,
that
Plaintiffs’
counsel
improperly instructed her clients not to answer certain questions,
the Court will not permit further questioning of Plaintiffs at this
stage of the case.
III.
Plaintiffs’ Responsive Motion
The Responsive Motion purports to respond to the Motion to
Compel and Supplemental Motion as well as to seek a protective
order regarding the scope of discovery.
In presenting this hybrid
response, Plaintiffs contravene Local Rule 7.3(a), which specifies
that “[a]ll motions, unless made during a hearing or at trial,
shall be in writing and shall be accompanied by a brief . . . .
Each motion shall be set out in a separate pleading.”
Pursuant to
Local Rule 83.4, the Court will deny the Responsive Motion for
failure to comply with Local Rule 7.3(a).
The Court directs the
parties to negotiate in good faith regarding any future discovery
in this action.
counsels’
See Kinetic, 268 F.R.D. at 242-43 (outlining
obligations
in
conducting
37.1(a).
36
discovery);
M.D.N.C.
LR
IV.
Plaintiffs’ Motion to Quash
Through their Motion to Quash, Plaintiffs ask the Court to
quash or, alternatively, issue a protective order regarding three
nonparty subpoenas that seek all documents relating to Plaintiffs
in the possession, custody, or control of their putative former
employers.
(See Docket Entry 29 at 1-2; Docket Entry 47 at 10.)
In response, Defendants maintain that Plaintiffs lack standing to
bring the Motion to Quash.
(Docket Entry 44 at 3-6.)
As reflected
by the very decision Defendants rely on in support of their
standing
argument
(id.
at
2,
4-6),
each
“Plaintiff
has
the
requisite standing. Clearly, [each] Plaintiff has a personal right
or privilege in his employment . . . records, and a corresponding
right to move to quash the subpoena duces tecum seeking those
records.” Kohari v. Jessie, No. 2:13-CV-09072, 2014 WL 1338558, at
*2 (S.D. W. Va. Apr. 3, 2014); see also Singletary v. Sterling
Transp. Co., 289 F.R.D. 237, 239 (E.D. Va. 2012) (collecting cases
finding
records).
standing
to
challenge
subpoenas
seeking
employment
Furthermore, Defendants failure to comply with Rule
45(a)(4)’s notice requirement (see Docket Entry 29-2 at 1; Docket
Entry 47 at 4 n.3) also gives Plaintiffs standing to challenge
these
particular
nonparty
subpoenas,
see,
e.g.,
Spencer
v.
Steinman, No. 2:96-CV-1792, 1999 WL 33957391, at *4 n.1 (E.D. Pa.
Feb. 26, 1999) (“It is clear that this Court has the inherent
authority to insure that a party is not deprived of the protection
37
of receiving notice of the issuance of a subpoena duces tecum to a
non-party . . . .”).
Because Defendants failed to comply with Rule 45(a)(4)’s prior
notice requirement, the Court will quash the nonparty subpoenas.
See, e.g., F.D.I.C., 2015 WL 4744361, at *3 (“Because [p]laintiff
failed to provide prior notice of the Subpoena, as required by Rule
45(a)(4), the Subpoena is void and unenforceable.”); Martinez v.
Target Corp., 278 F.R.D. 452, 453 (D. Minn. 2011) (rejecting
argument that plaintiff was not prejudiced by defendant’s failure
to comply with Rule 45(a)(4), explaining that “[t]he prejudice to
[plaintiff] is anticipated by the existence of Rule 45[(a)(4)].
Therefore, it is proper to quash the subpoena.”); Murphy, 196
F.R.D. at 221-22 (explaining that, because counsel failed to comply
with
Rule
45(a)(4),
“the
[c]ourt
quashed
all
of
the
twelve
offending subpoenas and directed [relevant] counsel to immediately
turn over all of the documents that had been provided in response
to the subpoenas”).17
Accordingly, Defendants must certify to the
Court that they have returned or destroyed all copies of any
17 Defendants defend the subpoenas by pointing to “[t]he fact
that the subpoenas have already been answered without objection” by
the nonparty employers. (Docket Entry 44 at 8.) This contention
ignores a primary concern underlying the notice requirement, i.e.,
that a subpoena target which lacks a protected interest in the
requested materials may produce subpoenaed documents without regard
to the interest of the affected party. See Spencer v. Steinman,
179 F.R.D. 484, 489 (E.D. Pa. 1998), order vacated in part on
reconsideration, No. 2:96-CV-1792 ER, 1999 WL 33957391 (E.D. Pa.
Feb. 26, 1999).
38
materials produced pursuant to the August 7th nonparty subpoenas.
See Burch, 2010 WL 9081738, at *3 (quashing subpoena issued to
plaintiff’s new employer without notice and directing that, “[t]o
the extent [defendant] has already obtained employment records . .
. pursuant to the subpoena,” defendant must “return or destroy the
records, and to notify [p]laintiff of the same”); Spencer, 1999 WL
33957391, at *4 n.1 (concluding that federal courts “ha[ve] the
inherent authority to insure that a party is not deprived of the
protection of receiving notice of the issuance of a subpoena duces
tecum to a non-party,” including by making the party violating Rule
45(a)(4) “disgorge[] the fruits of the violation”).
The Court appreciates that Defendants might, at some future
stage in this litigation, seek to issue nonparty subpoenas to
Plaintiffs’
45(a)(4).
alleged
former
employers
in
conformity
with
Rule
Accordingly, in the interests of judicial efficiency,
the Court will address one point raised by Defendants’ opposition
to the Motion to Quash.
In their response, Defendants requested
that the Court confine any relief on the Motion to Quash to (i)
“modify[ing] the subpoenas to limit the scope of the employment
documents Defendants can use to [certain specified documents]” and
(ii) issuing a “protective order . . . limited to confidential
information such as medical or other protected information in the
personnel files.”
(Docket Entry 44 at 10.)
Particularly in light
of Defendants’ avowed willingness to “enter[] into a reasonable
39
consent protective order” with Plaintiffs (Docket Entry 45 at 9
n.1), the parties should attempt in good faith to negotiate a
mutually acceptable protective order. Similarly, Defendants should
consider whether any future subpoenas should demand “all documents
relating to [Plaintiffs].”
See Champion Pro Consulting Grp., Inc.
v. Impact Sports Football, LLC, No. 1:12CV27, 2014 WL 6686727, at
*4-5 (M.D.N.C. Nov. 26, 2014) (analyzing burden and overbreadth
issues regarding “relating to” language in subpoena request).
V.
Expenses
Defendants and Plaintiffs each request expenses, including
attorney’s fees, that they have incurred in bringing and defending
against the Motion to Compel, Supplemental Motion, and Motion to
Quash.
(Docket Entry 27 at 9; Docket Entry 32 at 19; Docket Entry
39 at 6; Docket Entry 47 at 10.)18
The Court will treat the Motion
to Compel and Supplemental Motion as a whole for purposes of
resolving these requests. Rule 37(a)(5)(C) provides that the Court
may apportion expenses when a motion to compel is granted in part
and denied in part, as happened here.
The Court denies expense-
shifting under the circumstances of this case, where the parties
each significantly contributed to the instant discovery dispute.19
18 Plaintiffs included their request for expenses relating to
the Motion to Quash in their opposition to the Motion to Compel
(Docket Entry 32 at 19) and their reply in support of the Motion to
Quash (Docket Entry 47 at 10).
19 Were the Court to treat the Supplemental Motion and Motion
(continued...)
40
The Court similarly declines to allocate expenses for the
Motion to Quash.
Rule 45(d)(1) only authorizes such awards to
protect “a person subject to the subpoena.”
Cf. Fed. R. Civ. P.
45(d)(3) (permitting quashing of a subpoena “[t]o protect a person
subject to or affected by a subpoena” (emphasis added)).
To the
extent the Court possesses inherent authority to impose sanctions,
strict limits apply.
& n.1.
See, e.g., Spencer, 1999 WL 33957391, at *1
In particular, the Court may utilize inherent authority to
impose monetary sanctions only upon a finding of bad faith.
*1 n.1.
Id. at
Here, the record does not warrant such a finding.
Accordingly, the Court will not order any expense-shifting as to
the Motion to Quash.
CONCLUSION
The applicable procedural rules require counsel to cooperate
in all stages of discovery, to carefully evaluate the propriety of
their discovery conduct, and to meaningfully confer before bringing
any motions to compel or for protective orders.
Defendants failed
19(...continued)
to Compel separately for Rule 37(a)(5) purposes, it would reach the
same conclusion. Pursuant to Rule 37(a)(5)(B), the Court cannot
shift expenses if a motion to compel was “substantially justified
or other circumstances make an award of expenses unjust.”
The
Supplemental Motion effectively elaborates on the Motion to Compel.
Defendants filed these motions separately only because opt-in
Plaintiff’s deposition had not occurred prior to the original
August 14th discovery deadline, a situation for which Plaintiffs
largely bear responsibility. Accordingly, in the circumstances of
this case, expense-shifting for the Supplemental Motion remains
inappropriate under Rule 37(a)(5)(B).
41
to confer in good faith before moving to compel further document
production from Plaintiffs, and thus the Court denies Defendants’
request for such relief.
Because, however, Defendants adequately
conferred about the other aspects of their motions, the Court has
addressed those matters on the merits. In regard to the timing and
method
rightly
of
opt-in
bears
any
Plaintiff’s
expenses
deposition,
associated
Plaintiffs’
with
counsel
rescheduling
the
deposition, but the relevant parties shall split the expense of
proceeding
via
videoconference.
Additionally,
the
deposition
testimony Defendants seek to compel lacks sufficient value to the
conditional certification determination to warrant the burden and
expense of such discovery at this juncture.
The Court further
denies Plaintiffs’ purported Responsive Motion for violation of
Local Rule 7.3(a).
Finally, Defendants failed to comply with Rule
45(a)(4) in serving their August 7th nonparty subpoenas, and thus
must disgorge any materials received pursuant to those subpoenas.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel
(Docket Entry 27) and Supplemental Motion (Docket Entry 39) are
GRANTED IN PART and DENIED IN PART as follows:
(i) Plaintiffs’
counsel shall bear any expense related to the late cancellation of
opt-in
Plaintiff’s
August
12th
deposition
and
the
expedited
scheduling of opt-in Plaintiff’s August 18th deposition; (ii) opt-in
Plaintiff and Defendants shall equally divide the videoconferencing
expenses for the August 18th deposition; and (iii) Defendants shall
42
obtain no further deposition or document discovery from Plaintiffs
at this stage of the case.
IT IS FURTHER ORDERED that, on or before October 23, 2015,
Defendants shall serve Plaintiffs with a statement setting out (i)
the expenses, if any, Defendants incurred in cancelling opt-in
Plaintiff’s August 12th deposition and in scheduling on an expedited
basis his August 18th deposition and (ii) the videoconferencing
expenses for the August 18th deposition.
Failure by Defendants to
comply with this Order will result in denial of any related
expense-shifting.
IT IS FURTHER ORDERED that, if Defendants timely serve such a
statement of expenses, Plaintiffs’ counsel and opt-in Plaintiff
shall file, on or before November 6, 2015, either:
indicating
agreement
to
pay
the
claimed
(i) a Notice
expenses;
or
(ii) a
Memorandum of no more than five pages explaining why Plaintiffs’
counsel
or
opt-in
Plaintiff,
as
relevant,
contests
the
reasonableness of the claimed expenses, along with a certification
that the parties have attempted in good faith to resolve any
disagreement over the reasonableness of the claimed expenses.
Failure by Plaintiffs’ counsel or opt-in Plaintiff to comply with
this Order will result in the Court ordering, upon the filing of a
Notice by Defendants of their reasonable expenses as contained in
the statement they served upon Plaintiffs, the payment of such
43
expenses
by
Plaintiffs’
counsel
or
opt-in
Plaintiff,
as
appropriate.
IT IS FURTHER ORDERED that, on or before November 13, 2015,
Defendants shall file a Response of no more than five pages to any
Memorandum timely filed by Plaintiffs’ counsel or opt-in Plaintiff
contesting the reasonableness of the claimed expenses.
Failure by
Defendants to comply with this Order will result in denial of any
expenses contested by Plaintiffs’ counsel or opt-in Plaintiff as
unreasonable.
IT IS FURTHER ORDERED that, on or before November 20, 2015,
Plaintiffs’ counsel or opt-in Plaintiff, as relevant, may file a
Reply of no more than three pages to any Response timely filed by
Defendants regarding the reasonableness of the claimed expenses.
IT IS FURTHER ORDERED that, upon completion of the foregoing
briefing or the time period for such briefing, the Clerk shall
refer this matter back to the undersigned Magistrate Judge for
further action.
IT IS FURTHER ORDERED that Plaintiffs’ purported Responsive
Motion (Docket Entry 46) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Quash (Docket
Entry 29) is GRANTED insofar as it seeks to quash the August 7th
nonparty subpoenas.
Notice
certifying
By October 23, 2015, Defendants must file a
that
they
have
returned
materials received pursuant to the subpoenas.
44
or
destroyed
all
IT IS FURTHER ORDERED that Defendants shall have until October
30,
2015,
to
respond
to
“Plaintiff’s
Motion
for
Conditional
Certification Pursuant to the Fair Labor Standards Act” (Docket
Entry 14).
IT IS FURTHER ORDERED that the parties shall negotiate in good
faith in a meaningful attempt to resolve any other discovery
disputes that may arise and to develop a consent protective order
as to any materials entitled to protection under Rule 26(c)(1).
October 16, 2015
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
45
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