Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 423

ORDER SUSTAINING IN PART AND OVERRULING IN PART 412 Objection (non motion), filed by Dejha Valentine, Jessica Hogan. AFFIRMING IN PART AND REVERSING IN PART 411 Magistrate Judge's Order. Signed by Chief Judge Algenon L. Marbley on 8/2/ 2023. Defendants are ORDERED to provide to Plaintiffs the redacted versions of the documents requested in Plaintiffs Motion to Compel in a manner consistent with this Order within thirty (30) days of this Order. (cw)(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 #: 423 Filed: 08/02/23 Page: 1 of 8 PAGEID #: 5294

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN, et al.,
Plaintiffs,
v.
CLEVELAND AVE RESTAURANT, INC.
d/b/a SIRENS, et al.,
Defendants.

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Case No. 2:15-cv-2883
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

OPINION & ORDER
This matter is before the Court on Plaintiffs’ Objections (ECF No. 412) to the Magistrate
Judge’s March 20, 2023 Order (ECF No. 411) denying part of Plaintiffs’ underlying Motion to
Compel (ECF No. 371). For the reasons set forth herein, Plaintiffs’ Objections are SUSTAINED
IN PART AND OVERRULED IN PART. (ECF No. 412). Accordingly, the Magistrate Judge’s
Order is AFFIRMED IN PART AND REVERSED IN PART. (ECF No. 411).
I.

BACKGROUND

On June 13, 2022, Plaintiffs filed a Motion to Compel, in part asking the Court to order
Defendants to produce the following: (i) complete and unredacted copies of all 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 (ii) complete and
unredacted copies of “end-of-night sheets,” defined as “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 18–19).
In her March 20, 2023 Order (the “Denial Order”), the Magistrate Judge noted that
Defendants already offered to produce the subject documents, so long as the following personally

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identifiable information (“PII”) was omitted: “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. 411 at 7). Plaintiffs were not satisfied, however, by this offer. Instead, Plaintiffs
insisted that the inclusion of the PII was necessary because it would allow them to communicate
with dancers and other personnel who could help unearth more information about Defendants’
employment practices. The Denial Order summarized the dispute aptly in the following passage:
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 . . . 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.” 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.
(Id. at 8).
The Denial Order denied Plaintiffs’ attempt to compel the production of the requested
documents with the PII included “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.” (Id. at 9). Namely, the Magistrate Judge found that Plaintiffs failed to provide
any legal support for the propriety of their document requests or to explain why they were entitled
to the PII given the privacy issues at issue given the nature of the employees’ professions. (Id. at
11–13). Plaintiffs, the Magistrate Judge concluded, were looking merely to use the PII to identify
additional clients. (Id. at 11). Having found that Plaintiffs already possessed all the non-PII

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information from the requested documents, the Magistrate Judge denied this portion of Plaintiffs’
Motion. (Id. at 14).
On April 3, 2023, Plaintiffs filed their Objections to the Denial Order. (ECF No. 412).
Responses in opposition to Plaintiffs’ Objections were filed by two sets of Defendants. The first set
was filed by Defendants Cheeks, Fantasyland West, and House of Babes. (ECF No. 418). The
second set was filed by Defendants LL Entertainment, LLC d/b/a Private Dancer and John
Mathews. Because the second set of responses merely repeats the arguments made in the first set,
this Court considers both responses together.
II.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 72(a), district judges reviewing magistrate judges’
orders on non-dispositive matters “must consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C.
§ 636(b)(1)(A). Indeed, “the clearly erroneous standard applies to factual findings by the magistrate
judge” in light of the considerable deference that Rule 72(a) provides to the determinations of
magistrates. Fed.R.Civ.P. 72(a); Hunter v. Booz Allen Hamilton, Inc., No. 2:19-CV-411, 2021 WL
2410378, at *2 (S.D. Ohio June 14, 2021) (Marbley, J.) (internal quotation marks omitted). A
magistrate judge’s factual finding is “clearly erroneous” only when, after reviewing the evidence,
the court “is left with the definite and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). A court will overturn a magistrate
judge’s legal conclusions only where those conclusions “contradict or ignore applicable precepts
of law, as found in the Constitution, statutes, or case precedent.” Gandee v. Glaser, 785 F.Supp.
684, 686 (S.D. Ohio 1992) aff’d, 19 F.3d 1432 (6th Cir. 1994) (internal quotation marks and citation
omitted). A motion to compel discovery is a non-dispositive motion and is therefore subject to the

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clearly erroneous and contrary to law standard. 28 U.S.C. § 636(b)(1)(A); Alomari v. Ohio Dep't of
Pub. Safety, No. 2:11-CV-00613, 2014 WL 12651191, at *2 (S.D. Ohio June 19, 2014) (Marbley,
J.).
III.

LAW AND ANALYSIS

Plaintiffs object to the Denial Order on two bases: (1) that the Denial Order disregarded
Plaintiffs’ legitimate reasons for seeking the PII contained in the requested documents, preventing
Plaintiffs from being able to identify potential witnesses and obtain necessary discovery; and (2)
that the Magistrate Judge failed to require the production of even the redacted documents because
of her mistaken belief that Defendants had already given them to Plaintiffs.
Plaintiffs first object to the Denial Order insofar as it denied Plaintiffs’ attempt to compel
the production of the unredacted versions of the subject documents. Much of Plaintiffs’ objection
on this point complains that the Magistrate Judge echoed Defendants’ suspicion that Plaintiffs
desired the PII for the purpose of using Defendants’ labor to help Plaintiffs identify new clients.
Plaintiffs argue that the PII is relevant and necessary to enable them to identify witnesses with
knowledge of Defendants’ employment practices. According to Plaintiffs, the Denial Order merely
serves to further Defendants’ scheme of “wall[ing] off dancers and others as witnesses from
plaintiffs’ counsel.” (ECF No. 412 at 9) (emphasis in original). Plaintiffs characterize the Denial
Order as restricting them from contacting witnesses and argue that “[s]uch a broad ban on contacts
with percipient witnesses” is at odds with the purpose of the Fair Labor Standards Act (“FLSA”)
and this Court’s precedent. Plaintiffs contend that the Denial Order failed to make specific findings
showing that the need to limit Plaintiffs’ communications with potential witnesses was outweighed
by “the potential inference with the rights of parties.” (Id. at 11). Denying Plaintiffs access to the
contact information of the potential witnesses, Plaintiffs contend, prevents them from obtaining the

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discoverable evidence to which they are entitled. This is especially prejudicial in this case, Plaintiffs
argue, because Defendants have kept their employment practices secret and have destroyed
evidence critical to Plaintiffs’ case. Plaintiffs also object to the Magistrate Judge’s refusal to compel
Defendants’ production of even the redacted versions of the requested documents because Plaintiffs
already had them. Instead, Plaintiffs argue, Defendants have not yet provided the redacted
documents. Even if the requested documents must be redacted, the Denial Order should have
required Defendants to produce the requested documents by replacing the PII with pseudonym
numbers.
Defendants respond that Plaintiffs’ first objection can be summarized as a complaint that
the Magistrate Judge believed that Plaintiffs were merely seeking the PII for the purpose of
identifying potential clients. Defendants argue that the objection contains no argument that the
Denial Order was clearly erroneous or contrary to law. Defendants contest Plaintiffs’ claims that
they need the PII to identify witnesses given that Plaintiffs did not respond to the proposed
protection order that Defendants sent them over a year prior. The Denial Order, Defendants
maintain, balanced explicitly Plaintiffs’ need for usable discovery with the significant personal
privacy interests of the individuals whose information is contained in the requested documents.
With respect to Plaintiffs’ second objection, Defendants agree that the Magistrate Judge erred in
stating that Defendants already provided the redacted documents to Plaintiffs. Defendants
nonetheless note their willingness to produce redacted versions of the requested documents in the
manner requested by Plaintiffs in their objections if the Court finds it appropriate.
Federal Rule of Civil Procedure 26(c)(1) provides that “[t]he Court may, for good cause,
issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue

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burden or expense . . . .” Fed. R. Civ. P. 26(c)(1). 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).
Plaintiffs produce scant argument addressing why or how the Magistrate Judge’s denial of
their request to compel Defendants to produce the unredacted documents is clearly erroneous or
contrary to law. Instead, Plaintiffs’ first objection re-argues the merits of their underlying Motion
to Compel: that the requested PII is relevant and should therefore be compelled. In support of their
objection, Plaintiffs cite several cases which are either irrelevant, inapposite, or used for a general
legal proposition of limited utility to their argument. For example, in Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165 (1989), which concerned an action brought under the Age Discrimination
in Employment Act (“ADEA”), the Supreme Court concluded that the district court correctly
permitted discovery of the names and addresses of discharged employees because the discovery
was relevant to the action and there were no grounds to limit the discovery under the facts of the
case. In another instance, Plaintiffs cite to Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), a case in
which the Supreme Court overturned a district court’s order that, absent any factual or legal
justification, restricted the parties’ communications with potential class members in a Rule 23
action. Although Plaintiffs also cite to instances in which various courts provided the plaintiffs with
access to contact information for potential collective action members, those cases fail to show that
the Magistrate Judge was incorrect to determine that Plaintiffs were not entitled to the PII in this
case.
Plaintiffs also mischaracterize the Denial Order as restricting them from communicating
with potential witnesses and collective members. The Denial Order does not do so. The Denial

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Order does not even prevent Plaintiffs from gaining access to the PII through negotiation with
Defendants. Instead, the Denial Order merely denies Plaintiffs’ attempts to compel that information
from Defendants. The Denial Order appropriately balanced Plaintiffs’ supposed need for the PII
against the privacy interests of the individuals whose PII was at stake. Ultimately, the Denial Order
concluded that the privacy interests of those individuals outweighed Plaintiffs’ interests in the
information. Plaintiffs do not deny that the Magistrate Judge balanced these competing interests as
necessary; they argue merely that she balanced these interests incorrectly. This is insufficient to
show that the Denial Order was clearly erroneous or contrary to law. See Hodak v. Madison Capital
Mgmt., LLC, No. 5:07-5-JMH, 2008 WL 2945920, at *2 (E.D. Ky. July 28, 2008) (explaining that,
“[i]f there are two plausible views of the matter, then a decision cannot be ‘clearly erroneous.’”).
As such, Plaintiffs’ Objections are OVERRULED on this basis.
The Denial Order did err, however, in its conclusion that Plaintiffs had already received the
redacted versions of the requested documents. The Magistrate Judge relied upon this erroneous
finding in denying Defendants’ Motion for a Protective Order and as an additional basis for denying
this portion of Plaintiffs’ Motion to Compel. Plaintiffs’ Objections are thus SUSTAINED on that
limited basis.
This Court thus ORDERS Defendants to provide Plaintiffs with the redacted versions of
the following documents: (i) copies of all 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 (ii) copies of all “end-of-night sheets,” defined as “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. 411 at 1–2). The redacted
documents shall replace each individual’s PII with pseudonym numbers.

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IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Objections are SUSTAINED IN PART AND
OVERRULED IN PART. (ECF No. 412). Accordingly, the Magistrate Judge’s March 20, 2023
Order is AFFIRMED IN PART AND REVERSED IN PART. (ECF No. 411). Specifically, the
Denial Order is affirmed in its partial denial of Plaintiffs’ Motion on the basis that Plaintiffs were
not entitled to the unredacted discovery. The Denial Order is reversed, however, concerning its
additional justification that Plaintiffs already had the redacted versions of the documents in their
possession. This Court thus ORDERS Defendants to provide to Plaintiffs the redacted versions of
the documents requested in Plaintiffs’ Motion to Compel in a manner consistent with this Order
within thirty (30) days of this Order.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: August 2, 2023

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