Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 410

OPINION & ORDER: Plaintiffs' Motion to Compel 371 is GRANTED IN PART AND DENIED IN PART. Defendants' Motion for Protective Order 373 is DENIED WITHOUT PREJUDICE. The Motion to Permit Filing in Excess of Page Limits 379 is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/20/2023. (vb) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification).

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 1 of 16 PAGEID #: 5143

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN, et al.,
Plaintiffs,
Case No. 2:15-cv-2883
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

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

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiffs’ Motion to Compel and for
Sanctions Against the Cheeks Defendants, the Private Dancer Defendants, the Fantasyland West
Defendants, the House of Babes Defendants, and Defendant Greg Flaig (ECF No. 371 (the
“Motion to Compel”)), the Motion for Protective Order Regarding Personally Identifiable
Information with Incorporated Memorandum in Support (ECF No. 373 (the “Motion for
Protective Order”)), and the Motion to Permit Filing in Excess of Page Limits (ECF No. 379).
For the reasons stated herein, the Motion to Compel (ECF No. 371) is GRANTED IN PART
AND DENIED IN PART, the Motion for Protective Order (ECF No. 373) is DENIED
WITHOUT PREJUDICE, and the Motion to Permit Filing in Excess of Page Limits (ECF No.
379) is GRANTED.
I.
On June 13, 2022 – nearly seven years after initiating this action – Plaintiffs filed the
Motion to Compel, asking the Court to compel the production of (i) complete and unredacted
copies of all signed Lease Agreements that were executed by any dancer who performed at

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 2 of 16 PAGEID #: 5144

Cheeks, Private Dancer, Fantasyland West, and House of Babes from May 20, 20214 to the
present; and (ii) complete and unredacted copies of “end-of-night sheets,” which are sheets, slips,
or other documents on which were recorded the identities of the dancers who performed at these
clubs from May 20, 2014 to the present, and other related information. (ECF No. 371 at
PAGEID ## 3810-3811.) Plaintiffs also seek entry onto the Cheeks, House of Babes, and Private
Dancer properties for inspection. (Id. at PAGEID # 3811.) Plaintiffs also move for various
sanctions, including attorney fees associated with the subject Motion and an entry of default
against any Defendants who have destroyed evidence. (Id. at PAGEID ## 3811-3812.)
On July 1, 2022, the Cheeks Defendants, Fantasyland West Defendants, House of Babes
Defendants, and Top Hat Defendants filed the subject Motion for Protective Order, asking the
Court to enter a protective order1 to protect the Personally Identifiable Information (“PII”) of the
entertainers who have worked at Defendants’ clubs. (See ECF No. 373.) Defendants submit that
they have offered to produce the documents which are at the heart of Plaintiffs’ Motion to
Compel, but that because the documents contain PII, Defendants asked Plaintiff “for either a
proposed agreed protective order as to use of this information, or in the alternative, to redact the
most highly sensitive and confidential PII to prevent Plaintiffs from using it unfairly and to the
likely detriment of the Entertainers.” (Id. at PAGEID # 4157 (emphasis in original).) Plaintiffs
refused Defendants’ offer, and the subject briefing ensued.
First, on July 14, 2022, the Cheeks Defendants, the Fantasyland West Defendants, the
House of Babes Defendants, and Defendant Greg Flaig filed a Response in Opposition to

1

As set forth in the Motion for Protective Order, although only certain Defendants move for a
protective order, the Moving Defendants “respectfully submit[] . . . that the [proposed] Protective
Order should apply to all club Defendants.” (ECF No. 373 at PAGEID # 4156 n.1.)
2

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 3 of 16 PAGEID #: 5145

Plaintiffs’ Motion to Compel and for Sanctions. (ECF No. 380 (the “Cheeks Opposition”).)2 On
July 18, 2022, Defendants LL Entertainment, LLC and John Mathews filed the Responses of
Defendants LL Entertainment, LLC d/b/a Private Dancer, and John Mathews to Plaintiffs’
Motion to Compel and for Sanctions. (ECF No. 382 (the “Private Dancer Opposition”).) Then,
on July 28, 2022, Plaintiffs filed separate Reply briefs to the Cheeks Opposition and the Private
Dancer Opposition. (ECF Nos. 390, 391.)
Meanwhile, with regard to the Motion for Protective Order, on July 22, 2022, Plaintiffs
filed their Memorandum in Opposition to Motion for Protective Order Filed by the Cheeks
Defendants, the Fantasyland West Defendants, the House of Babes Defendants, and the Top Hat
Defendants. (ECF No. 386.) Then, on August 5, 2022, the Moving Defendants filed a Reply
brief in further support of the Motion for Protective Order. (ECF No. 393.) Accordingly, both
the Motion to Compel and the Motion for Protective Order are fully briefed and ripe for judicial
review.
II.
Plaintiffs move to compel discovery under Federal Rule of Civil Procedure 37, which
permits a party to file such a motion if another party fails to respond to discovery requests,
provided that the motion to compel includes a certification that the movant has, in good faith,
2

On July 14, 2022, the Cheeks Defendants also filed a Motion to Permit Filing in Excess of Page
Limits, seeking to file the Cheeks Opposition in excess of the Court’s twenty-page preference.
(ECF No. 379.) This request is well taken, and the Motion is GRANTED. Accordingly, the
Court’s analysis herein considers all twenty-five (25) pages of the Cheeks Opposition, ECF No.
380. Given the Cheeks Defendants’ briefing in excess of the Court’s twenty-page preference, the
Court will also consider all forty-seven (47) pages of Plaintiffs’ Memorandum in Opposition to
Motion for Protective Order Filed by the Cheeks Defendants, the Fantasyland West Defendants,
the House of Babes Defendants, and the Top Hat Defendants, ECF No. 386. The Court notes,
however, that Plaintiffs did not file a similar motion seeking leave before filing their response
brief – notwithstanding the fact that their response brief was more than double the Court’s
twenty-page preference.
3

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 4 of 16 PAGEID #: 5146

conferred or attempted to confer with the party failing to respond to the requests. Fed. R. Civ. P.
37(a)(1). Here, the Court is satisfied that this prerequisite has been satisfied, as Plaintiffs spent
seventeen (17) out of twenty-one (21) pages in the subject Motion to Compel detailing the
history of this case, the discovery requests at issue, and the parties’ efforts to resolve the
discovery disputes in lieu of the subject briefing. (See ECF No. 371 at PAGEID ## 3793-3810.)
The Moving Defendants move for a protective order under Federal Rule of Civil
Procedure 26(c)(1), which provides in pertinent part: “[t]he Court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense . . . .” Fed. R. Civ. P. 26(c)(1). The burden of establishing good cause for a
protective order rests with the movant. Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001)
(citing General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). To
establish good cause, the movant must articulate “specific facts” showing the risk of a “clearly
defined and serious injury.” Id. (citing Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)).
Mere speculation or unsubstantiated fears of prejudice are insufficient to justify the imposition of
a protective order burdening a party’s trial preparation. Nemir v. Mitsubishi Motors Corp., 381
F.3d 540, 550 (6th Cir. 2004). The decision to issue a protective order is left to “the broad
discretion of the district court in managing the case.” Conti v. Am. Axle & Mfg., Inc., 326 F.
App'x 900, 903–04 (6th Cir. 2009) (quoting Lewelling v. Farmers Ins. of Columbus, Inc., 879
F.2d 212, 218 (6th Cir. 1989)). “To be sure, Rule 26(c) confers broad discretion on the trial
court to decide when a protective order is appropriate and what degree of protection is required .
. . . The trial court is in the best position to weigh fairly the competing needs and interests of the
parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

4

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 5 of 16 PAGEID #: 5147

Determining the scope of discovery is within the Court’s discretion. Bush v. Dictaphone
Corp., 161 F.3d 363, 367 (6th Cir. 1998) (citation omitted). Unless the court orders otherwise,
the scope of discovery is that “[p]arties 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.” Fed.
R. Civ. P. 26(b)(1). The Court can, and indeed must, limit the frequency or extent of discovery
“if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can
be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery
in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).”
Planned Parenthood Sw. Ohio Region v. Hodges, No. 1:15-CV-00568, 2019 WL 13044827, at
*2 (S.D. Ohio Mar. 31, 2019) (citing Fed. R. Civ. P. 26(b)(2)(C)). The Court also has discretion
to limit the scope of discovery by issuing protective orders, for good cause shown, forbidding the
requested discovery “to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed. R. Civ. P. 26(c).
The Federal Rules of Civil Procedure grant parties the right to “obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ.
P. 26(b)(1); see also Siriano v. Goodman Mfg. Co., L.P., No. 2:14-CV-1131, 2015 WL 8259548,
at *5 (S.D. Ohio Dec. 9, 2015). “Relevance is construed very broadly for discovery purposes.”
Doe v. Ohio State Univ., No. 2:16-CV-171, 2018 WL 1373868, at *2 (S.D. Ohio Mar. 19, 2018)
(emphasis in original) (citing Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)).
Despite being construed broadly, the concept of relevance is not unlimited. Averett v. Honda of
Am. Mfg., Inc., No. 2:07-cv-1167, 2009 WL 799638, at *2 (S.D. Ohio March 24, 2009). Indeed,
“[t]o satisfy the discoverability standard, the information sought must have more than minimal

5

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 6 of 16 PAGEID #: 5148

relevance to the claims or defenses.” Doe, 2018 WL 1373868 at *2 (citations omitted).
Furthermore, when information is “negligibly relevant [or] minimally important in resolving the
issues” this will not satisfy the standard. Id. (citation omitted).
“[T]he Federal Rules of Civil Procedure instruct district courts to limit discovery where
its ‘burden or expense . . . outweighs its likely benefit, taking into account the needs of the case,
the amount in controversy, the parties’ resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in resolving the issues.’” Surles ex rel.
Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (quoting former Fed. R.
Civ. P. 26(b)(2)(C)(iii)). This Court has previously held that “[t]hese factors are retained in
revised Fed. R. Civ. P. 26(b)(1), reflecting ‘their original place in defining the scope of
discovery’” because “‘restoring proportionality’ is the touchstone of revised Rule 26(b)(1)’s
scope of discovery provisions.” Siriano, 2015 WL 8259548, at *5 (citing Fed. R. Civ. P.
26(b)(1)). In analyzing the extent of the burden on the producing party, the Court of Appeals for
the Sixth Circuit “has held that limiting the scope of discovery is appropriate when compliance
‘would prove unduly burdensome,’ not merely expensive or time-consuming.” Id. (citing Surles,
575 F.3d at 305) (emphasis in original).
III.
Against that background, the Court will analyze the Motion to Compel and the Motion
for Protective Order together, as both motions address Plaintiffs’ pending request for two types
of documents: first, the “signed Lease Agreements that were executed by any dancer who
performed at Cheeks, Private Dancer, Fantasyland West, and House of Babes from May 20, 2014
to the present,” and second, what Plaintiffs refer to as “end-of-night sheets,” which are “the
sheets, slips, or other documents on which were recorded the identities of the dancers who

6

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 7 of 16 PAGEID #: 5149

performed at these clubs from May 20, 2014 to the present, the dates and hours when these
dancers performed, the work performed by these dancers on such dates, the amounts paid by
these dancers on such dates, and the respective amounts received by the clubs and by these
dancers on such dates.” (ECF No. 371 at PAGEID ## 3810-3811.) Plaintiffs also seek entry, for
purposes of inspection, into the Cheeks, House of Babes, and Private Dancer properties. (Id. at
PAGEID # 3811.) The Court will discuss the requests separately.
A.

Plaintiffs’ Document Requests.
Despite the competing nature of the Motion to Compel and the Motion for Protective

Order, Defendants submit that they already have offered to produce the subject documents, so
long as the parties agreed to (or the Court entered) an appropriate protective order to protect
personally identifiable information (“PII”) which Defendants believe the requested documents
contain. (ECF No. 373 at PAGEID ## 4156-4157.) Accordingly, Defendants appear to concede
that the requested documents are relevant,3 and instead merely insist that the PII must be
protected under Federal Rule of Civil Procedure 21.
Specifically, Defendants seek to protect the following information from the requested
Lease Agreements and end-of-night sheets: “names, addresses, phone numbers, social security
numbers, imaged driver's licenses, I9 immigration documents, and any other information
allowing identification, location, contact, and solicitation of” the individuals who have worked at
Defendants’ clubs. (ECF No. 373 at PAGEID # 4160.) Plaintiffs seek this information,
however, because they believe it is necessary to allow Plaintiffs to “communicat[e] with any
dancer mentioned in any such [document],” and they reject Defendants’ proposed protective
order because they believe it would “mak[e] it impossible for plaintiffs to communicate with the

3

See Footnote 4, infra.
7

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 8 of 16 PAGEID #: 5150

very [] dancers whom plaintiffs seek to represent.” (ECF No. 371 at PAGEID ## 3798-3799
(emphasis added).) In response, the Moving Defendants generally argue that the proposed
protective order does not “deny Plaintiffs’ counsel access to the PII, but only . . . ensure[s] that it
is used properly.” (ECF No. 393 at PAGEID # 4696.) Defendants further argue that Plaintiffs
have failed to develop their own case, and that it would be inappropriate to permit Plaintiffs to
use discovery to seek PII for the purposes of soliciting new clients before certification takes
place. (Id. at PAGEID ## 4699-4707.)
Defendants’ arguments are well taken. As a preliminary matter, the Court cannot ignore
the fact that this case has been pending for nearly seven-and-a-half years. Yet it is against this
background that Plaintiffs now seek to use discovery to communicate with potentially hundreds
of individuals “whom plaintiffs seek to represent,” notwithstanding that they have had the past
several years to identify such individuals. (ECF No. 371 at PAGEID ## 3798-3799.) In making
this request, Plaintiffs do not challenge Defendants’ representation that preserving the PII “is
essential to [the individuals’] jobs, economic security, professional autonomy, and personal
lives.” (ECF No. 380 at PAGEID ## 4224-4225.) Instead, Plaintiffs merely argue that they are
entitled to unfettered access to the PII because they believe Defendants failed to timely object to
their request and because they believe Defendants’ belated document production remains
incomplete. (See ECF No. 390.)
But the Court will not countenance Plaintiffs’ attempt to strictly impose discovery rules
on Defendants to the significant expense of so many non-parties. To be clear, Plaintiffs would
not necessarily be entitled to the documents they seek even if the Court agreed that Defendants
had failed to timely object to the subject document requests. While Plaintiffs are generally
correct that failure to timely object results in waiver, “this is not a bright-line rule” and “courts

8

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 9 of 16 PAGEID #: 5151

will examine the circumstances of each case, including the reason for tardy compliance,
prejudice to the opposing party, and the facial propriety of the discovery requests, to determine
whether enforcement of the waiver is equitable.” Palombaro v. Emery Fed. Credit Union, No.
1:15-CV-792, 2017 WL 213071, at *3 (S.D. Ohio Jan. 17, 2017) (citing Napier v. Cnty. of
Washtenaw, No. 11-CV-13057, 2013 WL 1395870, at *4 (E.D. Mich. Apr. 5, 2013) (quoting
Carfagno v. Jackson Nat’l Life Ins. Co., No. 99-118, 2001 WL 34059032, at *1 (W.D. Mich.
Feb. 13, 2001))).
Here, the Court exercises its discretion and disregards any potential untimeliness
regarding Defendants’ objections given the clear prejudice to Defendants (and potentially
hundreds of non-parties), the facial impropriety of Plaintiffs’ requests, and the sheer inadequacy
of Plaintiff’s Motion to Compel. To this end, the Court must note that in their twenty-one (21)
page Motion to Compel, Plaintiffs failed to provide any legal support for the propriety of their
document requests. (ECF No. 371.) Instead, after a seventeen (17) page discussion of the
timeline of communications between the parties, Plaintiffs included a conclusory three (3) page
argument which only set forth that Plaintiffs are asking the Court to compel production of the
requested documents under Rule 37. (Id. at PAGEID ## 3810-3812.) This is wholly
insufficient.4

4

Despite having the affirmative burden of showing that the information sought is relevant,
Plaintiffs are silent to this end. Prado v. Thomas, No. 3:16-CV-306, 2017 WL 5151377, at *1
(S.D. Ohio Oct. 19, 2017) (“In a motion to compel, the movant bears the initial burden of
showing that the information is sought is relevant.”) (citing Gruenbaum v. Werner, 270 F.R.D.
298, 302 (S.D. Ohio 2010)). This is a low bar, but Plaintiffs must still meet it and under other
circumstances the Court would have the authority to deny Plaintiffs’ Motion to Compel on this
basis alone. See Smigelski v. Cluley, No. 2:20-CV-4812, 2022 WL 1158457, at *1 (S.D. Ohio
Mar. 17, 2022) (“Showing relevance is a low bar, but Plaintiff's discovery requests must still
meet it.”). That said, given the overlapping nature of the subject Motions and Defendants’
apparent concession that the requested documents are relevant, the Court declines to exercise its
discretion to deny Plaintiffs’ Motion on this basis alone.
9

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 10 of 16 PAGEID #: 5152

Defendants, on the other hand, filled their Motion for a Protective Order with legal
authority which persuades the Court that Plaintiffs’ requests are inappropriate. Specifically,
Plaintiffs’ concession that they primarily intend to use the requested PII to identify (and then
contact) hundreds of presently-unknown potential class members is impermissible because
“Plaintiffs’ counsel cannot use the Federal Rules of Civil Procedure as a device to force a
defendant to assist them in finding a plaintiff and establishing subject matter jurisdiction so they
can sue defendant.” Gawry v. Countrywide Home Loans, Inc., 395 F. App'x 152, 160 (6th Cir.
2010); see also In re Pella Corp. Architect & Designer Series Windows Mktg., Sales Pracs. &
Prod. Liab. Litig., No. 2:14-MN-00001-DCN, 2014 WL 12622421, at *2 (D.S.C. Nov. 20, 2014)
(“[C]ourts often refuse to allow discovery of class members’ identities at the pre-certification
stage for exactly this reason—out of concern that plaintiffs’ attorneys may be seeking such
information to identify potential clients, rather than to establish the appropriateness of
certification.”) (emphasis added) (citing cases); Flanigan v. Am. Fin. Sys. Of Ga., Inc., 72 F.R.D.
563 (M.D. Ga. 1976) (“Rule 23 should not be used as a device to enable client solicitation.”)
(internal citation omitted); Crabtree v. Hayden, Stone Inc., 43 F.R.D. 281, 283 (S.D.N.Y. 1967)
(“The purpose of the pre-trial discovery rules . . . is to enable the parties to prepare for trial with
respect to their own bona fide existing claims, not to determine whether third parties may have
similar claims.”) (emphasis added).
Instead of addressing this case law5 -- which Defendants provided to Plaintiffs prior to
the subject briefing – Plaintiffs rely on authority to support the principle that “courts afford
plaintiffs’ counsel in FLSA cases even greater latitude to communicate with potential class
members or opt-ins at the pre-certification stage.” (ECF No. 386 at PAGEID ## 4456-4460.)

5

Plaintiffs do not acknowledge Gawry, or attempt to distinguish it.
10

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 11 of 16 PAGEID #: 5153

But this misses the point. Indeed, Defendants have no problem with Plaintiffs’ counsel
communicating with potential clients. (See ECF No. 380 at PAGEID # 4219 (Conceding that
“Defendants[] have no power to limit, let alone make it impossible for plaintiffs to communicate
with anyone whom plaintiffs seek to represent.”) (emphasis added; internal quotation marks and
citation omitted).) For this reason, Plaintiffs’ repeated framing of Defendants’ protective order
as a “communications ban” is improper, as it misconstrues the nature of Defendants’ request.
Rather than seeking to limit Plaintiffs’ ability to communicate with potential clients, Defendants’
primary concern is with Plaintiffs’ counsel using the discovery process to find potential clients.
(See id. at PAGEID # 4233 (“Plaintiffs have already plainly stated . . . that they will misuse
dancers’ PII . . . to identify potential new clients, rather than to establish the appropriateness of
certification.”) (emphasis in original; internal quotation marks omitted); see also ECF No. 373 at
PAGEID # 4167 (“[Plaintiffs] have more than created a record that they will do exactly what the
Sixth Circuit and other courts proscribe. The very fact that Plaintiffs have rejected Defendants’
offer to give Plaintiffs all the signed, unredacted [Lease Agreements] they seek reveals Plaintiffs’
intent and gives up the game.”).)
Indeed, what sets this case apart from Plaintiffs’ relied-upon authority is the fact that
Plaintiffs aren’t merely asking to communicate with potential clients: they are asking
Defendants to find potential clients for them. But as Defendants note, courts routinely decline to
order defendants to identify potential clients for plaintiff’s counsel. See Gawry, 395 F. App’s at
160; see also Mejias v. Goya Foods, Inc., No. 20CV12365BRMJRA, 2022 WL 2666948, at *3
(D.N.J. July 11, 2022) (“[T]he Court declines to impose a burden of production on Goya to allow
Plaintiffs to identify potential new clients.”) (citing Dziennik v. Sealift, Inc., Civ. A. No. 054659, 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) (“Courts have ordinarily refused to

11

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 12 of 16 PAGEID #: 5154

allow discovery of class members’ identities at the pre-certification stage out of concern that
plaintiffs’ attorneys may be seeking such information to identify potential new clients, rather
than to establish the appropriateness of certification.”)); see also 2 McLaughlin on Class Actions
§ 11:1 (19th ed.) (“In order to avoid converting the class action mechanism into a tool to identify
potential new clients, courts ordinarily will not permit putative class counsel to obtain discovery
of class members’ identities at the precertification stage.”) (citations omitted). This Court will
do so again in this instance.
The privacy interests underlying Plaintiffs’ request only solidify the Court’s decision.
First, as Defendants establish in the Motion for Protective Order, Plaintiffs’ request seeks PII that
is recognized by state and federal law as warranting protection. (ECF No. 373 at PAGEID ##
4160-4162.) Defendants also have demonstrated that the subject Lease Agreements contain
numerous protections against the disclosure of such PII. (See id. at PAGEID # 4164 n.6; ECF
No. 380 at PAGEID ## 4224-4225.) And even beyond these somewhat standard privacy
concerns, Defendants correctly note that this case also implicates unique, heightened privacy
interests for those individuals whom Plaintiffs seek to solicit as putative class members:
Plaintiffs’ desired actions pose a clear and present danger of jeopardizing many
aspects of [the potential class members’] lives by disrupting relationships with
boyfriends, spouses, parents, family, friends, other employers, universities, and the
clubs where they work, whom they trusted to have their backs by protecting their
privacy and autonomy as enshrined in their contracts and federal and state law.
And, it is not trivial to point out the real personal safety concerns that women
have in the digital age with hackers, harassers, stalkers and the like, seeking
to exploit weaknesses. Plaintiffs' proposed Court-ordered course of action
increases risks of harm from all of these.
***
It is easy to understand the many reasons dancers seek to avoid having their private
information compromised, as Plaintiffs wish to do by using their contractually and
statutorily-protected personal information to contact and solicit them, without their
prior consent, and seeking to add them to a public federal class action lawsuit. It
increases the risk of disruption of their lives from the irrational stigma that
12

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 13 of 16 PAGEID #: 5155

still almost universally follows any unwanted disclosure to husbands, siblings,
parents, friends, vast social media communities, other employers, future
employers, colleges and universities, and would-be [harassers] and stalkers, to
name just a few.
(ECF No. 373 at PAGEID # 4164 (emphasis added); ECF No. 380 at PAGEID # 4225 (emphasis
added).) Indeed, the Court cannot ignore that it is likely any combination of these potential risks
which very well may have kept many of the potential class members from reaching out to
participate in this lawsuit for the past seven-plus years in the first place.
And yet Plaintiffs – who purport to represent the individuals whose PII is at stake –
overlook these serious privacy risks, curtly dismissing them as “merely a convenient argument
that defendants are using to try and keep plaintiffs’ counsel and the Court out of their business.”
(ECF No. 386 at PAGEID # 4467.) With this response, Plaintiffs’ position is clear: they do not
dispute that the information they seek is subject to protection under federal and state law, that the
subject Lease Agreements also expressly entitle the information to protection, nor that the
disclosure of the requested PII implicates serious personal, professional, and security concerns
for the individuals at issue. Instead, Plaintiffs simply maintain that the PII should be disclosed
because the individuals at issue “underst[ood] that [their] personal information would be subject
to surrender through legal process.” (Id. at PAGEID ## 4438-4439.)
In making this argument, however, Plaintiffs not only misconstrue the language of the
Lease Agreements at issue, but they also appear to assume that they are entitled to the PII simply
because the request arises during the pendency of a legal action. Plaintiffs disregard that the
legal process requires them to demonstrate why they are entitled to the information they seek; the
fact that they seek the information is not enough – especially given the serious privacy issues at
issue in this instance. While Plaintiffs have demonstrated why they want the PII, and why they

13

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 14 of 16 PAGEID #: 5156

believe Defendants’ proposed protective order is unreasonable, they have not met their threshold
burden of demonstrating why they are entitled to the PII in the first place.
Because Plaintiffs have failed to establish not only that the PII is relevant, but also that
they are entitled to it, the Court will not compel the production of the PII. But reaching this
conclusion does not also require the Court to grant Defendants’ request for a protection order.
To this end, it is the Court’s understanding that Plaintiff’s already have all of the information
from the subject Lease Agreements and end-of-night sheets that is not PII. (See ECF No. 380 at
PAGEID # 4217 (“Plaintiffs have in fact received complete copies of the applicable Agreements
without the entertainers’ PII.”).) Accordingly, the Court need not issue any additional protective
order regarding outstanding discovery as it relates to the subject Lease Agreements and end-ofnight sheets.6
Instead, notwithstanding the Court’s disapproval of Plaintiffs’ characterization of the
proposed Protective Order as a “communications ban,” the Court believes that the best course of
action is to maintain the status quo given Plaintiffs’ concern. As it stands, Plaintiffs have all of
the non-PII information that the Lease Agreements and end-of-night sheets contain, and
Plaintiffs are still free to communicate with any potential class member without having to worry
about violating any protective order. On the other side, Defendants are not presently obligated to
turn over any Lease Agreements or end-of-night sheets, so it is not clear to the Court that a
protective order is needed.
Accordingly, Defendants’ Motion for Protective Order is DENIED WITHOUT
PREJUDICE. The parties are ADVISED that they may, of course, enter into a stipulated
6

If the Court’s understanding is not accurate, the parties are DIRECTED to meet and confer to
discuss the production of the requested documents in a redacted format consistent with this
Opinion and Order.
14

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 15 of 16 PAGEID #: 5157

protective order if Plaintiffs still desire the PII within the subject Lease Agreements and end-ofnight sheets. But the Court cannot allow Plaintiffs to use the discovery process as a device to
force Defendants to assist them in finding any putative class members, whom Plaintiffs have had
over seven years to identify and contact on their own. Gawry, 395 F. App'x at 160.
B.

Property Inspection Requests.
The Court must also resolve Plaintiffs’ requests to enter, for purposes of inspection, the

Cheeks, House of Babes, and Private Dancer properties. As a preliminary matter, it appears to
the Court that Plaintiffs’ request to enter the Private Dancer property for purposes of inspection
has been resolved. Specifically, in response to the Motion to Compel, the Private Dancer
Defendants state that they “have not and do not object to Plaintiff[s’] entering into the property
of Private Dancer so long as it occurs during non-business hours so as to not interrupt business.”
(ECF No. 382 at PAGEID # 4368.) Accordingly, in the absence of any opposition, the Motion to
Compel is GRANTED IN PART insofar as Plaintiffs shall be provided access to the Private
Dancer property under terms agreed to by the Private Dancer Defendants.
As for the Cheeks and House of Babes properties, in the absence of any agreement
between the parties Plaintiffs’ request is similarly deficient, as Plaintiffs have provided no legal
basis for their inspection request. Indeed, Plaintiffs’ entire “legal argument” in support of this
request reads as follows: “Plaintiffs ask the Court to order these defendants to permit plaintiffs
entry under Rules 34 and 37(a)(3)(B), pursuant to plaintiffs’ November 1 requests.” (ECF No.
371 at PAGEID # 3811.) This is a demand, not a legal argument. In the absence of any
substantive analysis or legal authority to support the demand, Plaintiffs have failed to meet their
burden. Accordingly, the Motion to Compel is DENIED as to Plaintiffs’ requests to enter the
Cheeks and House of Babes properties.

15

Case: 2:15-cv-02883-ALM-EPD Doc #: 410 Filed: 03/20/23 Page: 16 of 16 PAGEID #: 5158

C.

Sanctions.
In their Motion to Compel, Plaintiffs also suggest the potential for sanctions. (See ECF

No. 371 at PAGEID ## 3811-3812.) Plaintiffs once again fail, however, to provide any legal
argument in support of this request. (Id.) Accordingly, Plaintiffs’ request for sanctions is
DENIED WITHOUT PREJUDICE. Plaintiffs are ADVISED that should they seek sanctions
in the future, any such request must be properly supported.
IV.
Accordingly, for the reasons set forth above, Plaintiffs’ Motion to Compel (ECF No. 371)
is GRANTED IN PART AND DENIED IN PART and Defendants’ Motion for Protective
Order (ECF No. 373) is DENIED WITHOUT PREJUDICE. Additionally, the Motion to
Permit Filing in Excess of Page Limits (ECF No. 379) is GRANTED.
IT IS SO ORDERED.
Date: March 20, 2023

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

16