Price et al v. Public Service Company of Oklahoma
Filing
89
OPINION AND ORDER by Chief Judge Gregory K Frizzell Defendant objection is overruled ; rejecting 81 Objection to Magistrate Judge's Order (hbo, Dpty Clk) Modified on 8/12/2014 (hbo, Dpty Clk)to correct type of order.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STEVE A. PRICE, et al.,
on behalf of themselves and others
similarly situated as a collective action
under the Fair Labor Standards Act,
Plaintiffs,
v.
PUBLIC SERVICE COMPANY
OF OKLAHOMA, an Oklahoma
corporation,
Defendant.
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Case No. 13-CV-514-GKF-FHM
OPINION AND ORDER
Before the court are the Amended Objections to July 8, 2014 Opinion and Order [Dkt.
#81], filed by defendant Public Service Company of Oklahoma (“PSO”). PSO objects to the
Opinion and Order of Magistrate Judge Frank H. McCarthy [Dkt. #77] denying its Motion for
Protective Order as to Subpoena Duces Tecum Served Upon IBEW Local 2001. [Dkt. #60].
The court applies a “clearly erroneous or contrary to law” standard in its review of nondispositive orders by Magistrate Judges. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a).
Plaintiffs, current PSO employees, sued PSO alleging its mandatory on-call program in
the Tulsa territory violates the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207. [Dkt. #11,
Amended Complaint]. They contend they are entitled to overtime compensation for all time they
are on-call, because restrictions placed on them during that time impose a substantial burden on
them and interfere with their personal pursuits, rendering the on-call time primarily for the
benefit of PSO. [ Id., ¶¶16-31]. Plaintiffs allege “PSO’s failure to pay overtime wages . . . was
willful,” in that “PSO knew or should have known that it was required to pay overtime wages”
[Dkt. #11, Amended Complaint, ¶¶33-34]. Plaintiffs seek damages pursuant to the FLSA, 29
U.S.C. §216.1 The court has conditionally certified a § 216(b) class for notice purposes. [Dkt.
#42].
IBEW, Local 1002 (“IBEW”) represents employees working for PSO throughout
Oklahoma. Plaintiffs issued a subpoena to IBEW seeking communications between PSO and
IBEW, draft on-call policies or procedures sent to IBEW or drafted by IBEW, documents
regarding grievances filed by IBEW involving PSO’s on-call policies or procedures and written
communications from IBEW to its members involving PSO’s on-call policies and procedures.
PSO asserts the subpoena is overbroad to the extent it seeks production of documents
related to areas other than the Tulsa Metro area. After complying with LCvR 37.1, PSO filed a
Motion for Protective Order pursuant to Fed. R. Civ. P. 26(c)(1)(A) and (D), asserting
information relating to areas outside the Tulsa Metro area can have no tendency to prove any
element of the plaintiffs’ claim. [Dkt. #60 at 5].
Plaintiffs objected to the motion, arguing (1) PSO lacks standing to object to the
subpoena, which was issued to a non-party and (2) the requested documents meet the relevancy
requirements of Rule 26(c)(1)(A) and (D). [Dkt. #64]. Plaintiffs asserted that prior to 2008, all
of PSO’s territories in Oklahoma used a voluntary on-call system to cover power failures outside
of normal business hours, and the mandatory on-call system has been implemented only in the
Tulsa Metro area. [Id.]. They argued that since IBEW is the same business agent for all
employees for all geographic areas requested, it was reasonable to believe it would have in its
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The FLSA generally imposes a two-year statute of limitations unless the defendant’s violations are shown to be
willful, in which case a three-year period applies. See 29 U.S.C. § 216(a).
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possession communications, draft policies and other documents relevant to how Tulsa Metro
employees were treated as compared to PSO’s other territories and how they pay should reflect
those differences. PSO, in its reply, asserted “the lone issue in the case” was “whether certain
time is compensable under the policy in place within the Tulsa Metro area,” and information
about call out policies in other areas “has no tendency to prove that the time in question is
compensable ‘work.’” [Dkt. #71 at 2-3].
In his order denying PSO’s motion, the Magistrate Judge stated that generally, a party
does not have standing to object to a subpoena to a non-party except if the party claims a
personal right or privilege in the information. [Dkt. 77 at 1]. He observed that PSO had not
claimed such an exception, but rather sought to avoid the general rule by basing its motion on
Fed.R.Civ.P. 26(c)(1). [Id.]. He acknowledged that Rule 26(c)(1) permits the court to issue a
protective order upon a showing of good cause to protect a party from annoyance,
embarrassment, oppression, or undue burden or expense, but stated that PSO “has not articulated
how any of these basis for a protective order apply to the subpoena in this case.” [Id. at 2].
Noting plaintiffs’ assertion that prior to the policy change in the Tulsa area, all of the
areas in the state had the same policy, he found that communications and information about the
other areas may lead to admissible evidence concerning the Tulsa area and “[a]ccordingly, to the
extent some showing of relevancy is required, that showing has been made.” [Dkt. #77 at 2].
PSO, in its objection, reiterates is previous arguments. Additionally, it asserts the
Magistrate Judge failed to find “good cause” existed for production of information relating to
areas other than the Tulsa Metro, in violation of Rule 26(b)(1) as amended in 2000. Plaintiffs
argue, in response, that the Magistrate Judge was not required to find “good cause” because he
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determined the documents sought were relevant. Essentially, the parties dispute whether
plaintiffs or PSO bore the burden of proving relevance of the documents.
Challenges to third-party subpoenas are governed by Fed. R. Civ. P. 26. Barton v.
Tomacek, 2012 WL 3730066, *4 (N.D. Okla. Aug. 28, 2012) (citing Rendon Group, Inc. v.
Rigsby, 268 F.R.D. 124, 126 (D.D.C. 2010) (holding that “Rule 26 . . . defines and governs the
scope of discovery for all discovery devices, and, therefore, Rule 45 must be read in light of it.”).
Rule 26(b)(1) provides, in pertinent part:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain any nonprivileged matter that is relevant to any party’s claim
or defense—including the existence, description, nature, custody, condition and
location of any documents or other tangible things. For good cause, the court may
order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). “The term ‘relevant’ is intended to be defined broadly in the context of
the discovery process because discovery itself is designed to help define and clarify the issues,”
and “[a] request for discovery is relevant if there is any possibility that the information sought
may be relevant to the claim or defense of any party.” Barton, 2012 WL 3730066, *4 (citations
omitted).
Which party bears the burden of proving relevance in the discovery context depends on
whether the relevance of the discovery sought is “readily apparent.” Id. “If the relevance of the
request is readily apparent, the burden of proof lies with the party challenging the discovery.
Conversely, when the request is overly broad on its face or when relevancy is not readily
apparent, the party seeking the discovery has the burden to show the relevancy of the request.”
Id.
The Magistrate Judge, in explaining his decision, stated:
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Prior to the policy change in the Tulsa area all of the areas in the state had the
same policy. Communications and information about the other areas may lead to
admissible evidence concerning the Tulsa area. Accordingly, to the extent
some showing of relevancy is required, that showing has been made.
[Dkt. #77 at 2]. It is not entirely clear whether the Magistrate Judge believed the relevance of the
request was readily apparent, or who bore the burden of demonstrating relevance. Nevertheless,
he concluded that, to the extent plaintiffs bore the burden of establishing relevance, they had met
the burden. Thus, his omission of the term “good cause” is of no consequence.
The Magistrate Judge’s decision is neither clearly erroneous nor contrary to law.
Contrary to PSO’s position that the “lone issue in this case is whether certain time is
compensable,” plaintiffs will be required to prove a willful violation in order to extend PSO’s
liability from two years to three years. At a minimum, the requested documents are potentially
relevant to plaintiffs’ claim that the alleged FLSA violation was “willful,” since they could
contain discussions of or challenges to the legality of the new mandatory on-call policy, and why
the policy was implemented in the Tulsa Metro area only.
Therefore, PSO’s Amended Objection to July 8, 2014 Opinion and Order [Dkt. #81] is
overruled.
ENTERED this 12th day of August, 2014.
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