Copeland et al v. C.A.A.I.R. et al

Filing 147

OPINION AND ORDER by Magistrate Judge Jodi F Jayne ; setting/resetting deadline(s)/hearing(s): ( Scheduling Conference set for 2/7/2020 at 09:00 AM before Magistrate Judge Jodi F Jayne); denying 132 Motion for Protective Order (Re: 130 Notice (Other), 128 MOTION to Quash , 125 Notice (Other) ) (kah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ARTHUR COPELAND, individually and on
behalf of all others similarly situated; et al.,
Plaintiffs,
v.
C.A.A.I.R., INC., a domestic not for profit
corporation; et al.,
Defendants.

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Case No. 17-CV-564-TCK-JFJ

OPINION AND ORDER
Before the Court are Plaintiffs’ Motion to Modify Discovery Obligations/Motion for
Protective Order (“Motion to Modify”) (ECF No. 132). For reasons explained below, the motion
is denied.
I.

Relevant Procedural History1
At a hearing conducted October 23, 2018, the Court rejected Plaintiffs’ contention that

discovery had been stayed and rejected Plaintiffs’ request to stay discovery. Following a lengthy
meet and confer, the parties resolved several discovery disputes and agreed to a discovery plan,
which is reflected in the Joint Status Report filed November 6, 2018 and agreed Orders. ECF Nos.
90, 93, 94. That plan included agreement on Defendant C.A.A.I.R. Inc.’s (“CAAIR”) request for
production 12 and Defendants Simmons Pet Food, Inc. and Simmons Foods, Inc. (“Simmons”)
request for production 57, both of which requested Plaintiffs’ Facebook archives. ECF No. 90 at
2-3 (“Plaintiffs agree to produce their Facebook archives subject to the following protocol for
searching and producing responsive information . . . .”). The Court resolved the remaining

The district court’s recent Opinion and Order dated sets forth Plaintiffs’ factual allegations and
claims. See Copeland v. C.A.A.I.R., Inc., No. 17-CV-564-TCK-JFJ, 2019 WL 4307125, at *2
(N.D. Okla. Sept. 11, 2019). The Court does not repeat those facts here, and only sets forth the
procedural history relevant to the Motion to Modify.
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discovery disputes by Order dated November 16, 2018, and the parties proceeded with discovery.
ECF No. 97.
On April 10, 2019, Defendants CAAIR and Simmons filed a Joint Motion to Compel and
for Discovery Sanctions (ECF No. 100). During the hearing, the Court denied Defendants’
requested sanction of dismissal of certain noncompliant Plaintiffs. By written Order dated July
15, 2019, the Court denied Defendants’ request for any “final deadline” governing or warning of
dismissal to Plaintiffs in partial or total noncompliance with discovery obligations. The Court
found such deadline or warning premature given the overall status of the litigation. The Court
granted the motion to compel and ordered Plaintiffs to continue working diligently to comply with
discovery requests. ECF No. 114. The Court ordered the parties to file a Joint Status Report and
updates on discovery compliance following the district court’s ruling on the pending motion to
dismiss. Id. Also on July 15, 2019, Plaintiffs expressed concerns to Defendants regarding the
amount of irrelevant data being generated by the Facebook search term list, and the parties began
negotiating revised search terms.
On September 11, 2019, the district court issued an Opinion and Order ruling on Simmons’
Motion to Dismiss (“9/11/19 Order”). The district court denied Simmons’ motion to dismiss the
Fair Labor Standards Act (“FLSA”) and state-law wage claims (Claims 1, 2, 6, 7, 8, 9, 11),
rejecting Simmons’ arguments that Plaintiffs failed to adequately allege “employee” status under
the FLSA. ECF No. 115 at 6-12. The district court also denied Simmons’ motion to dismiss
Plaintiffs’ claims for: unjust enrichment (Claim 10); involuntary servitude, in violation of 18
U.S.C. § 1584 (Claim 13); forced labor, in violation of 18 U.S.C. § 1589 and 21 O.S. §§ 748, 748.2
(Claims 12, 5); racketeering by Wilkerson, in violation of 18 U.S.C. § 1962(c) (Claim 3); and
racketeering by CAAIR and Simmons, in violation of 18 U.S.C. § 1962(d) (Claim 4). The district
court dismissed Plaintiffs’ claims for involuntary servitude and forced labor, in violation of 18

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U.S.C. § 1590 (Claim 14) against Simmons; and involuntary servitude, in violation of the
Thirteenth Amendment (Claim 15) against all Defendants. Accordingly, the lawsuit is proceeding
against Defendants as to virtually all of Plaintiffs’ theories of liability.
On September 20, 2019, Defendants accepted many of Plaintiffs’ proposed revisions to the
Facebook archives search term list and offered alternatives for others.

Plaintiffs have not

responded to the proposed compromise and are now taking the position that, in light of the
reasoning in the 9/11/19 Order, the Facebook archives are irrelevant and not proportional to the
needs of the case.
In October of 2019, the parties filed their Joint Status Report (ECF No. 122) and statements
regarding status of discovery compliance (ECF Nos. 123, 125, 130). Plaintiffs stated that the
district court’s rulings “render much of Defendants’ discovery requests” irrelevant and/or not
proportional to the needs of the case and that they would be filing a motion to modify discovery
obligations. ECF No. 122 at 7. The Court ordered any such motion to be filed by a date certain
and delayed entering a schedule or ruling on discovery compliance issues until the Court could
consider Plaintiffs’ arguments.
As ordered by the Court, Plaintiffs filed the pending Motion to Modify, which relates
exclusively to discovery of Plaintiffs’ Facebook archives. Defendants Simmons and CAAIR filed
responses (ECF Nos. 142, 144), and Plaintiffs failed to file a reply by the required deadline of
January 3, 2020.
II.

Analysis
Plaintiffs’ Motion to Modify is denied, because: (1) Plaintiffs entered into an agreement to

provide the Facebook archives; and (2) Plaintiffs failed to show cause for modification of such

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agreement.2
Plaintiffs concede they agreed to produce the Facebook archives subject to a search
protocol. Specifically, the record demonstrates that Defendants filed motions to compel the
Facebook archives and other discovery; the Court conducted a hearing and was prepared to resolve
disputes; the parties reached agreement regarding the Facebook archives following a lengthy
negotiation process regarding numerous discovery disputes; the parties presented that agreement
to the Court in a written report; Plaintiffs’ counsel made substantial efforts to obtain the
information from their clients; and the parties have engaged in ongoing negotiations regarding
reasonable search terms. Undoubtedly, both parties compromised to reach resolution of global
discovery issues. The Court finds important policy reasons to enforce the discovery agreement
regarding the Facebook archives. See In re Santa Fe Nat. Tobacco Co. Mktg. & Sales Practices
& Prod. Liab. Litig., No. MD 16-2695 JB/LF, 2018 WL 4200315, at *17 (D.N.M. Aug. 31, 2018)
(explaining that parties “need to know that discovery agreements will be honored,” because “[i]f
agreements are not honored, parties are dis-incentivized from entering those agreements - not to
mention cooperation in general - requiring more judicial oversight in discovery”).
Assuming the Court were inclined to modify the discovery agreement pursuant to its
inherent power to control discovery and/or Federal Rule of Civil Procedure 1 or 26(b)(1), as urged
by Plaintiffs, Plaintiffs have failed to demonstrate any cause for modification. Plaintiffs essentially
offer two justifications for modification: (1) the district court’s 9/11/19 Order ruling on the motion
to dismiss; and (2) that obtaining the Facebook archives from Plaintiff “has proven to be a nearly
impossible task.” ECF No. 132 at 1. Neither argument is persuasive.
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The Court expressly permitted Plaintiffs to file the Motion to Modify, and the Court excuses any
failure to meet and confer or untimeliness of the motion. Further, the Court elects to resolve the
Motion to Modify on substantive grounds that apply to both responding Defendants, rather than
waiver. Therefore, the Court rejects Simmons’ first three procedural arguments. See ECF No. 142
at 12-14.
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First, the 9/11/19 Order does not eliminate the original relevance of Plaintiffs’ Facebook
archives. With respect to relevance to Plaintiffs’ federal and state wage and hour claims, the
district judge held that Plaintiffs’ factual allegations were adequate to survive a Rule 12(b)(6)
motion to dismiss. Contrary to Plaintiffs’ arguments, the district judge did not resolve the issue of
whether Plaintiffs are “employees” for purposes of the FLSA. Further, in ruling on the motion to
strike Plaintiffs’ fraud allegations, the district court reasoned:
Moreover, the allegations have a “possible relation or logical connection to the
subject matter of the controversy” as Plaintiffs argue they are relevant to at least
their claims under the FLSA, and they appear relevant to refuting Simmons’s
argument under Strickland that Plaintiffs did not have the subjective expectation of
compensation by Defendants. Though arguments under Strickland were not
sufficient, in light of Plaintiffs’ other allegations, to justify dismissing Plaintiffs’
wage claims pursuant to Rule 12(b)(6), such an argument may be persuasive based
on the more developed factual record of summary judgment.
ECF No. 115 at 28. The Court agrees with Simmons that Plaintiffs’ subjective expectations remain
relevant to the FLSA claims. In addition, as argued by both Defendants, these requests for
production were also aimed at discovering relevant information regarding Plaintiffs’ other claims.3
Nothing in the district court’s order reduces the relevance of the Facebook archives to Plaintiffs’
other claims. Plaintiffs failed to file a reply brief or otherwise respond to Defendants’ arguments
regarding the relevance of the Facebook archives to other claims.
Second, the difficulty of obtaining Plaintiffs’ Facebook archives does not persuade the
Court to modify the discovery agreement. Plaintiffs argue that many Plaintiffs are transient, lack
access to a computer, access Facebook only via their cell phone, and cannot provide the requested
information. Plaintiffs contend their agreement is now proving to be overly burdensome and not
proportional to the needs of the case. However, Plaintiffs’ counsel knew the characteristics of

Simmons attached publicly available Facebook posts, arguing that such posts are relevant to
Plaintiffs’ claims that CAAIR failed to provide rehabilitative treatment. See, e.g., ECF No. 142-1
at 1 (Facebook post by Plaintiff stating that “I was at caair for a year, and it completely changed
my way of thinking and my life”).
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Plaintiffs when these discovery negotiations took place and had reason to contemplate the current
challenges.

While the Court will take all circumstances into account in assessing any

consequences of non-compliance, the Court finds no cause to modify the discovery agreement.
Further, Defendants have proposed reasonable and cost-effective solutions for Plaintiffs who are
cooperative and willing to provide the information but simply lack the ability to do so. These
solutions include providing their Facebook login information to Plaintiffs’ counsel, coming to
Plaintiff’s counsel’s office, or finding a friend or public library with Internet access. Defendants
have also provided the simple instructions for downloading one’s Facebook archive from a
computer, iPhone, or Android phone. ECF No. 142 at 21, n.27.
III.

Conclusion
Plaintiffs’ Motion to Modify Discovery Obligations/Motion for Protective Order (“Motion

to Modify”) (ECF No. 132) is DENIED.
The matter is set for a scheduling conference on Friday, February 7, 2020, at 9:00am. The
following matters are also set for hearing at that time:
1. Defendants’ renewed requests for warnings and/or dismissal sanctions for non-compliance
with discovery (conclusory paragraphs of ECF Nos. 125, 130).
2. CAAIR’s Motion to Quash (ECF No. 128)
SO ORDERED this 31st day of January, 2020.

J D F J Y E MA IT A EJ D E
O I .A N , G S R T U G
U IE S A E D S R C C U T
N T D T T S IT I T O R

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