Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 215

ORDER granting 196 Motion to Compel. Defendant BACE is ORDERED to provide Plaintiffs with a list of its members within 14 DAYS OF THE DATE OF THIS ODER. Defendant BACE is further ORDERED to respond to discovery requests from Plaintiffs concerning BACEs members' activities (Discovery due by 5/10/2019). Signed by Magistrate Judge Elizabeth Preston Deavers on April 26, 2019. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JESSICA HOGAN, et al.,
Plaintiffs,
Civil Action 2:15-cv-02883
Judge Algenon L. Marbley
Chief Magistrate Judge Elizabeth P. Deavers

v.

CLEVELAND AVE
RESTAURANT, INC., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiffs’ Motion to Compel Against
Defendant BACE Pursuant to Fed. R. Civ. P. 37(a) (ECF No. 196), Defendant Buckeye
Association of Club Executives’ Response in Opposition (ECF No. 202), and Plaintiffs’ Reply
(ECF No. 206). For the reasons that follow, Plaintiffs’ Motion to Compel (ECF No. 196) is
GRANTED.
I. PROCEDURAL BACKGROUND
Plaintiffs filed their original Complaint on October 6, 2015 against Defendant Cleveland
Avenue Restaurant, Inc., d/b/a “Sirens,” as well as management and owners (“Sirens
Defendants”). (ECF No. 1.) Plaintiffs filed an Amended Complaint on May 19, 2017, adding
Buckeye Association of Club Executives and the Owner’s Coalition as Defendants. (ECF No.
74.) Defendant Buckeye Association of Club Executives (“BACE”), the only Defendant
involved in the instant motion, filed an Answer to the Amended Complaint on April 15, 2018.

(ECF No. 129.) On December 10, 2018, Plaintiffs filed the instant Motion to Compel against
BACE. (ECF no. 196.) Plaintiffs request, pursuant to Federal Rule of Civil Procedure 37(a), an
order compelling BACE to identify its members and respond to further discovery concerning the
members’ activities and BACE’s activities in concert with them. (Id.) Plaintiffs filed deposition
transcript excerpts related to their Motion to Compel on January 7, 2019. (ECF No. 201.)
BACE filed its Response in Opposition on January 7, 2019. (ECF No. 202.) Plaintiffs filed their
Reply on January 18, 2019. (ECF No. 206.)
II. FACTS
This case originated as a wage lawsuit under the Fair Labor Standards Act (“FLSA”)
against the Sirens Defendants related to work performed in various roles at a Columbus-area
adult entertainment club. (See ECF No. 1.) Plaintiffs learned that Sirens was a member of
BACE, an association of adult entertainment club owners, and attempted to gather more
information about BACE by serving a subpoena for deposition and documents upon BACE.
(ECF No. 46, Ex. 1.) In the subpoena, Plaintiffs primarily sought testimony and documents
related to the so-called “Entertainer Tenant” system allegedly used by BACE’s memberbusinesses to structure compensation agreements. (ECF No. 46, Exhibit 1.) BACE filed a
Motion to Quash the Subpoena. (ECF No. 46.) On December 28, 2016, the Court granted
BACE’s Motion, finding that the factors weighed in favor of quashing the subpoena as unduly
burdensome primarily because the lease agreements were not relevant to Plaintiffs’ claims under
the FLSA against her employer.1 (ECF No. 59.) The Court noted that at the time it issued its
Opinion and Order, the “lawsuit [was] about one club and its pay practices with respect to its

The Court did not, as counsel for BACE seems to suggest, quash the subpoena based on
its argument that the matters were privileged under the First Amendment to the Constitution.
(See Depo. Trans. Excerpt at pp. 4-5 and passim, ECF No. 201-1.)
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dancers and/or bartenders and not a conspiracy between business associations and its members.”
(Id. at pg. 5–6, n.1.)
On May 1, 2017, however, Plaintiffs moved to amend their complaint to add, among
other things, claims of conspiracy against BACE. (ECF No. 74.) After the Court granted the
Motion, Defendant BACE moved to dismiss the First Amended Complaint and filed a Motion
for a Protective Order/Stay. (ECF Nos. 93 & 98.) The Court denied both Motions. (ECF Nos.
113 & 125.) Plaintiffs assert that despite these rulings Defendant BACE “has continued to resist
discovery regarding its members based on a purported First Amendment privilege.” (ECF No.
196, at pg. 3.) Specifically, Plaintiffs maintain that Defendant BACE has failed to respond to
this discovery request in its response to Plaintiffs’ written discovery. (ECF No. 196, Exhibit 1 at
pg. 8, ¶ 5.) Furthermore, Plaintiffs specifically assert that at the Rule 30(b)(6) deposition,
Defendant BACE’s counsel instructed BACE’s designated representative, Gregory Flaig, not to
answer questions related to the names of BACE’s members. (ECF No. 201, Exhibit 1.)
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 37 authorizes a party to file a motion for an order
compelling discovery if another party fails to respond to discovery requests if the party moving
for an order compelling disclosure or discovery “include[s] 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.” Fed. R. Civ. P. 37(a); see also S.D. Ohio
Civ. R. 37.1 (“[M]otions . . . relating to discovery shall not be filed in this Court . . . unless
counsel have first exhausted among themselves all extrajudicial means for resolving the
differences.”). Here, Plaintiffs attach a certification, averring that counsel has conferred in good
faith with Defendant BACE’s counsel but the parties were not able to agree on a resolution.

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(ECF No. 196, at pg. 8.) Thus, the Court concludes that Plaintiffs have satisfied the prerequisites
of Rule 37(a).
Determining the scope of discovery is within this Court’s discretion. Meredith v. United
Collection Bureau, Inc., No. 1:16-cv-1102, 2018 WL 2441789, at *3 (N.D. Ohio, May 31, 2018).
Federal Rule of Civil Procedure 26(b) identifies the acceptable scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 33(a)(2) (“An interrogatory may relate to any
matter that may be inquired into under Rule 26(b).”), 34(a) (“A party may serve on any other
party a request within the scope of Rule 26(b)[.]”). “In considering the scope of discovery, the
Court may balance Plaintiff’s right to discovery with the need to prevent fishing expeditions.”
Askin v. Ocwen Loan Servicing, LLC, No. 2:16-cv-325, 2017 WL 4404487, at *2 (S.D. Ohio Oct.
4, 2017) (internal quotations and citations omitted).
“The proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” O’Malley v. NaphCare, Inc., 311 F.R.D. 461, 463 (S.D.
Ohio 2015) (internal quotations and citation omitted). If the movant makes this showing, “then
the burden shifts to the non-movant to show that to produce the information would be unduly
burdensome.” Prado v. Thomas, No. 3:16-cv-306, 2017 WL 5151377, at *1 (S.D. Ohio Oct. 19,
2017) (citing O’Malley, 311 F.R.D. at 463); see also Fed. R. Civ. P. 26(b)(1) advisory
committee’s note to 2015 amendment (stating that a party claiming undue burden or expense
“ordinarily has far better information—perhaps the only information—with respect to that part of
the determination” and that a “party claiming that a request is important to resolve the issues
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should be able to explain the ways in which the underlying information bears on the issues as
that party understands them.”).
IV. ANALYSIS
Defendant BACE argues that it has a constitutionally recognized privilege which shields
them from disclosing information regarding its members. (See ECF No. 202.) BACE claims
that it is “a not for profit entity committed to the positive promotion and preservation of
gentlemen’s clubs in Ohio through lobbying and education that supports the First Amendment
rights upon which the industry is firmly rooted.” (Id. pp. 1-2.) In support of this supposition,
BACE cites NAACP v. Alabama, 357 U.S. 449 (1958). (Id. at pg. 2.) In that case, the Supreme
Court of the United States held that NAACP membership lists were immune from state scrutiny
under the Fourteenth Amendment because of the members’ right to pursue their lawful private
interests privately and to associate freely with others. NAACP, 357 U.S. at 466. More
specifically, the Court found that protecting organizations’ anonymous members was justified by
their constitutional right to freely associate with others pursuing their lawful interests privately.
Id. (emphasis added).
Defendant BACE analogizes its members to those of the NAACP in NAACP v. Alabama,
arguing that “disclosure of the identities of those that are, or have been, members of BACE will
subject those supporters to reprisal, including but not limited to, by means of a subpoena or
lawsuit.” (ECF No. 202, at pg. 2.) Defendant further insists that the “forced disclosure of the
identities of BACE’s members and supporters will adversely affect BACE’s business, through
membership withdrawal, the loss of new members, as well as the loss of other revenue
generating activities.” (Id.)

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BACE’s argument is not well taken. The NAACP doctrine does not apply to
organizations whose members and activities have already been publicly identified and disclosed.
BACE has previously publicized information regarding its members, making the privacy interest
“tenuous at best” because BACE has “made public . . . the association they now wish to keep
private.” Uphaus v. Wyman, 360 U.S. 72, 80–81 (1959) (finding the NAACP doctrine did not
apply when the government sought a list of guests who attended a camp and that list was already
a matter of public record). Here, although BACE claims that a screenshot of its website that
identifies 14 strip clubs “does not hold out these clubs as members . . .” (BACE Opp., ECF No.
212 at p.3), BACE’s website did in fact display the logos of various dance clubs under the
heading of “Members” at least as of January 8, 2017.2 (ECF No. 49-2, ECF No. 206, at pg. 2.)3
Furthermore, at least as of August 12, 2013, BACE’s website displayed the names, telephone
numbers, addresses, and building pictures of various dance clubs under the “Members” heading.4
(ECF No. 206, at pg. 3 & Exhibit 1.) Two additional deleted webpages in December 2014 and
February 6, 2015 also publish BACE’s members.5 Moreover, BACE provided its list of members
to law enforcement in August of 2014. (ECF No. 206, Exhibit 2.) At least as of December 17,
2014, the BACE website included a memo from BACE President Lee Hale dated June 25, 2014.
(Id.) In the memo, Mr. Hale indicates that “I have instructed Greg [Flaig] to send to all law

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https://web.archive.org/web/20170108145211/http://www.baceohio.org/members.html

After Plaintiff filed her Memorandum in Opposition to Quash Subpoena which contained the
exhibit identifying BACE’s members on the website and argued that it had publicly identified its
members by doing so, BACE took down that webpage on the advice of an unidentified lawyer.
(Depo. Trans. Excerpts, ECF No. 201-1, at pp. 10-11.)
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https://web.archive.org/web/20130812152124/http://baceohio.org/MEMBERS.html
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https://web.archive.org/web/20141217000226/http://baceohio.org and
https://web.archive.org/web/20150206063113/http://baceohio.org/MEMBERS.html
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enforcement the membership list of BACE AND THE OWNERS COALITION ON AUGUST
3rd, 2014.” (Id.) Defendant BACE has, at best, not kept its membership list private on a
consistent basis. At worst, BACE had never treated its membership as a secret and only sought
to do so when it became expedient for this lawsuit. Accordingly, Defendant cannot hide behind
a privacy privilege.6
Plaintiffs have aptly carried their burden of demonstrating that the information sought is
relevant. O’Malley, 311 F.R.D. at 463. This relevance standard is a low threshold to meet, given
the broad nature of discovery. Hadfield v. Newpage Corp., No. 5:14-cv-00027, 2016 WL
427924, at *3 (W.D. Ky. Feb. 3, 2016). Plaintiffs seek this information to prepare their class
certification motion as to the claims involving BACE. Furthermore, the discovery at issue in the
instant Motion is crucial to Plaintiffs’ allegations involving BACE being part of a conspiracy
with dance clubs to violate wage and hour and antitrust laws. Accordingly, the Court finds that
the information sought by Plaintiffs is relevant.
The burden, therefore, shifts to Defendant BACE to show that to produce the requested
information would be unduly burdensome. Prado, 2017 WL 5151377 at *1 (citation omitted).
BACE has made no argument that producing a membership list would be burdensome. Indeed,
BACE appears to be in possession of this list already, given that it has been posted on BACE’s
website and provided to law enforcement in the past. BACE instead argues that to produce this

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The Court notes that Plaintiffs also assert that that the NAACP doctrine does not shield from
disclosure the activities of organization members that violate the substantive rights of those
members’ employees and that the specific information sought by Plaintiffs’ discovery does not
involve any constitutionally protected advocacy undertaken by BACE as an association or by
its members. Defendant BACE did not address these arguments whatsoever. Because the
Court concludes that the NAACP doctrine does not apply here because BACE has already
publicly identified and disclosed its members, the Court declines to address these arguments at
this juncture.
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information would “result in unjustified legal scrutiny based on Plaintiffs’ speculation” and
cause “grave and unjustifiable harm to the Association and its members.” (ECF No. 202, at pg.
6.) These blanket assertions, without supporting evidence, do not equate to an argument that the
production of the requested information is unduly burdensome. Accordingly, the Court finds
that Defendant BACE has failed to carry its burden to show that production of the requested
information would be unduly burdensome.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Compel (ECF No. 196) is GRANTED.
Defendant BACE is ORDERED to provide Plaintiffs with a list of its members within
FOURTEEN (14) DAYS OF THE DATE OF THIS ODER. Defendant BACE is further
ORDERED to respond to discovery requests from Plaintiffs concerning BACE’s members’
activities.
IT IS SO ORDERED.

Date: April 26, 2019

/s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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