Solis v. El Tequila, LLC et al
Filing
125
OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting in part and denying in part 62 Motion to Compel; granting in part and denying in part 74 Motion to Compel (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
THOMAS E. PEREZ, Secretary of
Labor,
Plaintiff,
v.
EL TEQUILA LLC, and
CARLOS AGUIRRE,
Defendants.
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Case No. 12-CV-588-JED-PJC
OPINION AND ORDER
Before the Court are the Defendants’ Motion to Compel Discovery [Dkt.
No. 62], and Defendants’ Second Motion to Compel [Dkt. No. 74]. Problems with
discovery have required several Court interventions, see Dkt. Nos. 69, 79, 81, 82,
98; nevertheless, the Court has been advised that after additional briefing and
conferences, discovery issues remain unresolved. See Dkt. No. 107.
I
Background
The U. S. Secretary of Labor (“the Secretary”) has brought this action
pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. The
Secretary alleges that Defendants: (1) have failed to pay employees the statutory
minimum wage, [Dkt. No. 24, ¶VI]; (2) have failed to pay employees for hours
worked in excess of 40 hours per week [Id., ¶VII]; and, (3) have failed to maintain
1
required records of employees’ wages and hours [Id., ¶IX].1 The Secretary seeks
Judgment for unpaid wages, an equal sum as liquidated damages and an Order
enjoining Defendants from further withholding payment of unpaid wages.
Defendants moved to dismiss the Secretary’s Second Amended Complaint. [Dkt.
No. 26]. The Court denied Defendants’ motion in July 2013. [Dkt. No. 29].
The essential elements of the Secretary’s claims are (1) that the individuals
at issue were employed by Defendants; (2) that they performed work involving
interstate commerce; and (3) that they performed work for which they were
underpaid. Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012).
II
DISCUSSION
A. General Discovery Principles
The parties to this lawsuit have created a host of needless problems by the
manner in which they have conducted discovery to date. Both sides have failed
to follow the Federal Rules of Civil Procedure, and have not familiarized
themselves with the rulings of this Court as to what is expected of litigants
during the discovery. On August 13, 2014, the Court directed the parties to
review its decision in Howard v. Segway, Inc., 2013 WL 869955 (N.D.Okla. March
7, 2013), in the hope that opinion would provide guidance as to the Court’s
expectations regarding discovery. As guidance in any future discovery matters,
the Court notes the following principles.
Exhibit “A”, attached to the Secretary’s Complaint, lists approximately 175
persons to whom he alleges unpaid minimum wages and overtime pay are due.
1
2
First, omnibus discovery requests seeking “all documents referring to,
concerning, relating to.…” are unlikely to be enforced by this Court. They are
generally too vague and overbroad on their face and do not describe with
“reasonable particularity” what is being sought. Howard, at *2; Aikens v. Deluxe
Financial Svcs., Inc., 217 F.R.D. 533, 538 (D.Kan. 2003) (request or interrogatory is
unduly burdensome on its face if it uses the omnibus terms “relating to,” or
“regarding” with respect to a general category of documents); Mackey v. IBP, Inc.,
167 F.R.D. 186, 197-98 (D.Kan. 1996) (interrogatory seeking identity of all
documents “pertaining to,” was overbroad and unduly burdensome).
Thus, Defendants’ Interrogatory No. 2 and the related Request for
Production No. 1 are objectionable:
With regard to each person identified in your answer to
Interrogatory No. 1 above, answer the following:
A. Separately identify and describe each e-mail report, work
paper, letter, form, note, or other record prepared by
and/or received by each such person which relates to,
pertains to, or involves the claims and defenses in this
case.
[Dkt. No. 63-2, at 7].
Second, when presented with a document request, the responding party
has two options: he or she must either object to the request or state that the
3
request will be granted. Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173, F.R.D. 651,
655 (D.Md. 1997).2 Fed.R.Civ.P. 34 provides:
(B) Responding to Each Item. For each item or category, the response
must either state that inspection and related activities will be
permitted as requested or state an objection to the request,
including the reasons.
Rule 34(b)(2)(B).
When a party both objects and responds, it creates an ambiguity as to
whether all responsive documents are being produced. Thus, discovery
responses such as the following are improper:
Plaintiff objects to this interrogatory because it is overbroad, unduly
burdensome, vague and ambiguous…. Subject to and without
waiving these objections, Plaintiff responds as follows….
E.g., Plaintiff’s answer to Interrogatory No. 1 [Dkt. No. 63-2 at 3].3
Third, broad boilerplate objections are waived if they are not asserted
with specificity and if no factual basis for the objection is provided.4 See
Howard, supra, at *3. Waiver can also occur when the party asserts a boilerplate
objection, but then – “without waiving such objections” – responds or agrees to
produce documents. Id.; Mancia, 253 F.R.D. at 363-64.
A party may also object in part, but specificity is required. Fed.R.Civ.P.
34(2)(C).
3
Defendants have also been guilty of this sort of response. E.g., Response to
Request No. 2, [Dkt. No. 67-16].
4
One court has noted that making such boilerplate objections may be
prima facie evidence of a Rule 26(g) violation, because if the lawyer had made
the “reasonable inquiry” required by the Rule and discovered facts supporting an
objection, he or she would have disclosed those facts in the objection. Mancia v.
Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D.Md. 2008).
2
4
Fourth, in preparing a discovery request and in responding to such a
request, the attorney must comply with Rule 26(g). This is sometimes referred
to as the “stop and think” rule. It requires “reasonable inquiry” before a lawyer
signs a discovery request or response.
The Rule provides that:
By signing, an attorney or party certifies that to the best of the
person's knowledge, information, and belief formed after a
reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the
time it is made; and
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing
existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
and
(iii) neither unreasonable nor unduly burdensome or expensive,
considering the needs of the case, prior discovery in the case, the
amount in controversy, and the importance of the issues at stake in
the action.
Fed.R.Civ.P. 26(g)(1).
The parties are admonished to follow these guidelines and the Rules of
Civil Procedure in future discovery.
5
(B) The Secretary’s Privilege Claims
In resisting discovery, the Secretary has asserted numerous privileges:
Attorney-Client privilege, Work-Product protection, Government Informer
privilege, and Deliberative Process privilege. These are discussed below.
(1) Government Informer’s Privilege.
Defendants urge the Court to find that (1) the Government Informer’s
privilege is not applicable to this case, or, (2) in the alternative, that even if the
privilege does apply, documents can be produced subject to redaction.
The informer’s privilege is an evidentiary privilege permitting the
Government to withhold the names of persons who provide it with information
about crimes or possible violations of the law. See Roviaro v. U.S., 353 U.S. 53, 59
(1957); Usery v. Local Union 720, Laborers’ Int’l Union of N. Am., AFL-CIO (hereafter,
“Local 720”), 547 F.2d 525, 527 (10th Cir. 1977); Edward J. Imwinkelried, The New
Wigmore: A Treatise on Evidence, Evidentiary Privileges, § 7.3, p. 1263 (Wolters
Kluwer 2d ed.). The privilege is not limited to criminal cases. The Tenth
Circuit has long held the privilege applies in civil cases as well, Brock v.
Gingerbread House, Inc., 907 F.2d 115, 116 (10th Cir. 1990), and may even be
stronger in the civil context “because the constitutional guarantees assured to
criminal defendants are inapplicable.” Matter of Search of 1638 E. 2nd St., Tulsa,
Okla., 993 F.2d 773, 774 (10th Cir. 1993). Tenth Circuit decisions have removed
any doubt about whether the privilege applies in FLSA cases. See Usery, 547 F.2d
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at 531; Brock v. R.J. Auto Parts and Serv., Inc., 864 F.2d 677 (10th Cir. 1988);
Gingerbread House, 907 F.2d at 116-17; U.S. Dept. of Labor v. La Familia Corp., 2012
WL 1715359, *4-*5 (D.Kan. May 15, 2012). The privilege is not absolute. The
discovery rights of the Defendants must be balanced against the privilege. Local
720, 547 F.2d at 527-28. However, “[a]bsent extraordinary circumstances … the
evidentiary rule recognizing a qualified privilege applies in preliminary
proceedings not determinative of the merits of a controversy.” Id. at 528.
Defendants rely heavily on E.E.O.C. v. Los Alamos Constructors, Inc., 382
F.Supp. 1373 (D.N.M. 1974), but that case does not support Defendants’ argument
that the privilege should not be applied. The court in Los Alamos found that the
informer’s privilege did protect the identities of “informers” to the EEOC. Id. at
1386. The Court ordered the Plaintiff to provide the names of persons with
knowledge of the asserted claims, but held that the names of informers did not
have to be specifically noted. Id. at 1385.
Defendants also rely on Kelly v. City of San Jose, 114 F.R.D. 653 (N.D.Cal.
1987), but the Court finds that case unpersuasive. First, it is not a decision of a
court within the Tenth Circuit. Second, Kelly pre-dates decisions by the Tenth
Circuit Court of Appeals such as Gingerbread House,, 907 F.2d 115. Gingerbread
House makes clear that during the discovery stage of litigation, in order to
obtain the requested discovery, Defendants must show a “substantial need for the
information.” Id. at 116.
7
Defendants further assert that the Department of Labor must initially
submit an affidavit supporting its claim of privilege. [Dkt. No. 100, at 4].
Defendants contend that “No affidavit has been submitted by the Department of
Labor.” [Id.]. Defendants are wrong. Plaintiff has submitted the affidavit of
David Weil, administrator of the Wage and Hour Division of the U.S.
Department of Labor. [Dkt. No. 85-5]. This affidavit provides the necessary
foundation for the privilege claim.
Defendants next claim that the privilege has been waived by El Tequila
employees. Defendants have submitted 90 pages of forms from individuals
purporting to waive all privileges “concerning information from me or about me
in the above-listed case.” [Dkt. No. 100-1]. There are multiple problems with
Defendants’ waiver argument. First, and most importantly, the privilege is not
the employees’ to waive. The privilege belongs to the government, not the
employees. Roviaro, 353 U.S. at 59; Sanders v. Canal Ins. Co., 924 F.Supp. 107, 110
(D.Or. 1996) (only the government may claim the privilege). Defendants
contend that Local 720 states employees who have given information to the
government may waive the Government Informers’ privilege. Defendants have
badly misread this case. Local 720 does not stand for the proposition
Defendants claim.
Local 720 was an action brought by the Secretary of Labor under the FLSA.
In gathering information for the case, the Secretary had promised informers
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confidentiality. When confronted with discovery requests seeking the identities
of employee-informants, the Secretary objected. Local 720, 547 F.2d at 530.
After the Court overruled the objections, the Secretary sent a letter to each
person who had provided information asking whether he or she would release
him from the promise of confidentiality. The Secretary stated that “he would
waive privilege as to consenting informants.” Id. (emphasis added). Thus, it is
clear that the statement cited by Defendants is not a holding of the case. It is
nothing more than a recitation of a fact in the case. Furthermore, the language
cited by Defendants does not support their position. The statement says that
the Government would waive the privilege as to consenting witnesses.
Defendants have offered no legal authority for the proposition that an informer
can unilaterally waive the Governmental privilege.5
Finally, Defendants contend that a balancing of interests favors disclosure
of the informers’ names and information. “At the discovery stage of litigation,
the party attempting to overcome the privilege must show a ‘substantial need for
the requested breach of confidentiality’ to tip the scales in favor of disclosure.”
La Familia, 2012 WL 1715359, at *4 (citing Local 720, 547 F.2d at 528).
Defendants have the burden of showing a “specific need for discovery which
Furthermore, the waiver forms submitted by Defendants have little
evidentiary weight. They are not authenticated in any way, and Defendants
have offered no explanation of the circumstances under which the forms were
executed.
5
9
supersedes the need for an informer’s privilege.” Martin v. Albany Business
Journal, 780 F.Supp. 927, 937 (N.D.N.Y. 1992).
The Secretary’s interest in maintaining the informers’ privilege is the
public interest in enforcement of the FLSA. As the Court noted in Martin,
Congress provided few enforcement mechanisms in the Act, relying instead on
information brought by employees seeking to vindicate their rights under the
Act. Id. at 937-38. To secure such information, the Secretary often gives
assurances of confidentiality to informers to encourage their assistance. The
Secretary also seeks to prevent retaliation against informers, whether they are
present or past employees. See, Rutherford v. Am. Bank of Commerce, 565 F.2d
1162, 1166 (10th Cir. 1977) (citing Hodgson v. Charles Martin Inspectors of
Petroleum, Inc., 459 F.2d 303, 306 (2d Cir. 1972)).
On its side, Defendants have offered little to show substantial need. They
assert that this is a case of “revenge and retaliation” [Dkt. No. 63, at 3], a “witch
hunt” [id. at 6], and that it is “literally a life or death matter” for El Tequila [Dkt.
No. 72 at 1]. None of these conclusory statements assist the Court’s
determination. Defendants also assert that they “must be able to prove that the
investigation conducted by the Defendant (sic) was shoddy and below acceptable
standards.” [Dkt. No. 63, at 6]. However, the burden is on the Secretary to
establish that Defendants have violated the terms of the FLSA. As the Court
pointed out in Local 720, the issues in cases such as this are simple: Did
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employer maintain the required records and do those records establish that its
employees were properly paid a minimum wage and any required overtime?
The records related to those issues are in the possession of the Defendants and
the “facts pertaining to each are within the knowledge” of the Defendants. Local
720, 547 F.2d at 528. Defendants have the list of persons for whom the
Secretary is making a claim. Defendants have the time and payroll records for
each of those persons and the facts concerning those employees are within the
Defendants’ knowledge and possession.
Tenth Circuit decisions hold that the proper time for release of
informer/witnesses’ names is at pre-trial. Id. at 528; Gingerbread House, 907 F.2d
at 117 (“the pre-trial conference is the appropriate occasion generally for
identification of witnesses”).6
Here, as in Local 720, Defendants’ “failure to show a substantial need for
the requested breach of confidentiality at the discovery stage tips the scales in
favor of the government.” 547 F.2d at 528. Accordingly, the Motion to Compel
witness/informers’ names is DENIED.
This holding is consistent with authority cited by the Defendants in their
Reply brief [Dkt. No. 72, at 4]. Wirtz v. Hooper-Holmes Bureau, Inc., 327 F.2d 939
(5th Cir. 1964). (Defendants miscite the case as White v. Hooper Holmes). In
Wirtz, the trial court dismissed an action by the Secretary of Labor for failure to
disclose witness names at the pre-trial conference. The dismissal was affirmed
by the Court of Appeals.
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11
(2) Attorney-Client Privilege
The attorney-client privilege is a rule of evidence that protects the
confidentiality of communications between an attorney and his client when
certain conditions are satisfied. Its purpose is to encourage “full and frank
communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice.”
In re Qwest Communications Int’l Inc., 450 F.3d 1179, 1185 (10th Cir. 2006)
(quoting Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)).
The privilege applies only if (1) the asserted holder of the privilege is or
sought to become a client; (2) the person to whom the communication was made
(a) is a member of the bar of a court, or his subordinate and (b) in connection
with this communication is acting as a lawyer; (3) the communication relates to
a fact of which the attorney was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding,
and not (d) for the purpose of committing a crime or tort; and (4) the privilege
has been (a) claimed and (b) not waived by the client. U.S. v. United Shoe
Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass. 1950).
12
In a case such as this, federal common law governs issues relating to the
privilege.7 The privilege protects communications between the attorney and his
or her client. It does not, however, protect the information contained within the
attorney-client communication. Paul R. Rice, Attorney-Client Privilege in the
United States, § 5.1 [West 2011]. The privilege can be waived through disclosure
to a third party.
Defendants challenge the assertion of attorney-client privilege on the
following documents in Plaintiff’s privilege log: 34-36, 40, 42, 44-46, 48-49, 5254, 56-57, 75, 66-70, 74, 76, 77, 84 and 85.8 Because these documents are often
e-mail strings in which portions of the e-mail may be privileged while another
part may not, the Court will examine these documents in camera. Therefore, the
documents listed above – except for No. 75 – shall be produced to the Court by
October 31, 2014, for in camera inspection.
Defense counsel has misread Lindley v. Life Investors Ins. Co. of America, 267
F.R.D. 382, 388 (N.D.Okla. 2010). Defense counsel stated that Lindley requires
application of state law as to attorney-client privilege in this case. [Dkt. No. 100,
at 9]. That is incorrect. Since this case is premised on federal question
jurisdiction under the Fair Labor Standards Act, Federal common law governs
attorney-client privilege. Fed.R.Evid. 501.
8
Plaintiff did not assert attorney-client privilege on Doc. No. 75 in its
Privilege Log.
7
13
(3)
Work Product
This Court has discussed the parameters of work-product protection in
Oklahoma v. Tyson Foods, Inc., 262 F.R.D. 617, 624-32 (N.D.Okla. 2009). The
work-product doctrine strikes a balance between the benefits of an adversary
system and liberal discovery rules. Anderson v. Hale, 202 F.R.D. 548 (N.D.Ill.
2001). Liberal discovery rules provide parties with the fullest possible
knowledge of the operative facts of the case before trial to reduce surprise and
ensure that cases are decided on the merits. On the other hand, to arrive at the
truth, the adversary system pits attorneys against each other and charges them
with gathering information, sifting through it, and developing strategy. Id. at
553-54 (citations omitted).
Thus, while the work-product doctrine shields the documents and things
prepared by an attorney or party representative, it does not protect the
underlying facts contained in the documents from discovery. Resolution Trust
Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995).
(4) Deliberative Process Privilege.
The purpose of the deliberative process privilege is to protect, in limited
circumstances, communications of the governmental executive, “where disclosure
would harm the lawful exercise of executive authority or adversely affect the
quality of advice the executive received from subordinates.” Chevron U.S.A., Inc.
v. U.S., 80 Fed. Cl. 340, 355 (Fed. Cl. 2008), reconsidered in part, 83 Fed. Cl. 195,
14
195-96 (attorney-client privilege claims). Where applicable, the privilege
protects communications within the federal government, and between the
government and its outside consultants, related to transfer of information in the
deliberative process of the government agency. Paul F. Rothstein & Susan W.
Crump, Federal Testimonial Privileges § 5:3 [2d ed. 2011].
The privilege protects documents such as advisory opinions,
recommendations, and deliberations that would disclose the mental processes of
an agency while making or formulating a policy or decision. The privilege may
include materials generated by agency employees as well as consultants. Stewart
v. U.S. Dept. of Interior, 554 F.3d 1236, 1239 (10th Cir. 2009).
There are two essential elements of the privilege: First, it applies only to
pre-decisional communications. Senate of Puerto Rico v. U.S. Dept. of Justice, 823
F.2d 574, 585 (D.C.Cir. 1987). Second, it applies only to deliberative
communications, such as advisory opinions and recommendations. Zenith Radio
Corp. v. U.S., 764 F.2d 1577, 1580 (Fed. Cir. 1985). See also, Utah Medical Products
v. McClellan, 2004 WL 988877, *2 (D.Utah March 31, 2004).
Defendants argue that the privilege does not apply here because it only
protects deliberations in development of public policy, however, courts have
held to the contrary. Agency deliberations leading to a decision whether or not
to sue may be protected by the privilege. See U.S. v. Novak, 2014 WL 4898072,
*2 (N.D.Ill. Sept. 28, 2014) (citing U.S. v. Zingsheim, 384 F.3d 867 (7th Cir. 2002));
15
Kennedy v. U.S. E.E.O.C., 2014 WL 4908716, *4 (S.D.Ind. Sept. 29, 2014); U.S. v.
Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). If the privilege is established, the
burden shifts to the party requesting disclosure to make a particularized
evidentiary showing of need. Farley, 11 F.3d at 1389-90.
Defendants have not shown a “particularized need” for any specific
document(s) upon which the privilege has been claimed. Because the Court
rejects the Defendants’ broad, general attack on the privilege – i.e., that it does
not apply to litigation decisions – and because Defendants have not established
a particularized need for any specific document, the Motion to Compel in this
regard is DENIED.
DEFENDANTS’ SPECIFIC DISCOVERY ISSUES [Dkt. No. 62]
The Court has reviewed the briefs of counsel and examined the discovery
requests and responses. The issues are addressed below as identified in
Defendants’ brief in support of the Motion to Compel Discovery.
Discovery Dispute No. 1. Int. No. 1. DENIED. Plaintiff has sufficiently
answered the interrogatory. The residential address of Government employees
is not relevant or reasonably calculated to lead to discovery of admissible
evidence.
Discovery Dispute No. 2. Int. No. 2. DENIED. Interrogatory No. 2A is, on
its face, an overly broad “omnibus” discovery request. Plaintiff has sufficiently
responded to 2B and 2C.
16
Discovery Dispute No. 3. RFP No. 1. DENIED. See 2A above.
Discovery Dispute No. 4. Int. No. 3. DENIED as to Interrogatory No. 3AC. (If he has not already done so, Plaintiff shall to provide the names of persons
with knowledge of the issues involved in this case, without revealing who is an
informer or has been interviewed.)
GRANTED IN PART as to Int. 3D. Plaintiff shall offer a factual
summary of the information it has acquired from interviews with potential
witnesses. Information that would reveal the identity of the interviewee may be
redacted, pursuant to Government Informer’s privilege and work product
protection. DENIED as to Int. 4E.
Discovery Dispute No. 5. RFP No. 2. DENIED. Privileged.
Discovery Dispute No. 6. RFP No. 3. GRANTED IN PART DENIED IN
PART. Plaintiff shall certify that all non-privileged, responsive documents have
been produced.
Discovery Dispute No. 7. RFP No. 4. DENIED. Plaintiff has adequately
responded.
Discovery Dispute No. 8. RFP No. 5. GRANTED. Plaintiff shall produce
copies of the Field Operation Handbook(s) in use from 2009 through November
30, 2014.
Discovery Dispute No. 9. Int. No. 4. GRANTED. Plaintiff shall answer
the Interrogatory. Boilerplate objections are deemed waived.
17
Discovery Dispute No. 10. Int. No. 5. GRANTED IN PART AND
DENIED IN PART. GRANTED as to Int. No. 5(A) and (B). DENIED as to 5(C)
and (D). Defendants’ Interrogatory includes an improper omnibus discovery
request seeking all documents “involving” the claims and defenses herein.9
Discovery Dispute No. 11. RFP No. 6. DENIED. See infra.
Discovery Dispute No. 12. RFP No. 7. DENIED. Privileged Government
informers’ privilege, work product.
DEFENDANTS’ SECOND MOTION TO COMPEL [Dkt. No. 74]
Defendants’ Second Motion to Compel seeks to compel answers to
Interrogatory No. 6 and Request for Production No. 7. Defendants contend that
these discovery requests were carefully crafted to avoid infringing on the
Government Informers’ privilege.
Interrogatory No. 6. GRANTED IN PART AND DENIED IN PART.
Plaintiff shall answer Int. 6 Parts A and B. DENIED as to Part C and its subparts.
Request for Production No. 7. DENIED. See infra.
A response to a discovery request seeking every document involving
claims and defenses is problematic, but it is made more difficult where, as here,
the Defendant asserts 18 affirmative defenses, including defenses such as
contributory negligence, injury by fellow servant and laches, that appear to have
nothing to do with the case. [Dkt. No. 34, at 2-3].
9
18
For the reasons set forth above, Defendants” Motion to Compel [Dkt. Nos.
62 &63], and Defendants’ Second Motion to Compel [Dkt. Nos. 74 & 75], are
GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED this 20th day of October 2014.
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