Redus v. CSPH Inc

Filing 50

AMENDED MEMORANDUM OPINION AND ORDER: The Court therefore need not reach the other issues raised by the MPO and will GRANT in part and DENY in part CSPH's Motion for Protective Order [Dkt. No. 32 ] and ORDER consistent with the limitation s set by the Court's First Phase of Scheduling Order Regarding Bifurcated Discovery [Dkt. No. 12 ], as later amended,see Dkt. No. 14 ; Dkt. No. 19 that Plaintiff John Michael Redus and his counsel will not, without further court authorizat ion, communicate with potential class members to investigate or otherwise obtain discovery on the merits on Redus's claims or on the issue of whether this case is appropriate for litigation as a collective action under the Fair Labor Standard s Act, until the Court rules on his Motion for Conditional Certification. And, considering all of the circumstances here and the Court's ruling above, the parties will bear their own expenses, including attorneys' fees, in connection with CSPH's Motion for Protective Order [Dkt. No. 32 ]. (Ordered by Magistrate Judge David L. Horan on 2/28/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHN MICHAEL REDUS, on behalf of
himself and others similarly-situated,

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§
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Plaintiff,
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V.
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CSPH, INC., doing business as Domino’s §
Pizza,
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Defendant.
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No. 3:15-cv-2364-M

AMENDED MEMORANDUM OPINION AND ORDER1
Defendant CSPH, Inc., d/b/a Domino’s Pizza has filed a Motion for Protective
Order under Federal Rule of Civil Procedure 26(c)(1), see Dkt. No. 32 (the “MPO”),
which Chief Judge Barbara M. G. Lynn has referred to the undersigned United States
magistrate judge for hearing, if necessary, and determination pursuant to 28 U.S.C.
§ 636(b), see Dkt. No. 36.
Plaintiff John Michael Redus filed a response, see Dkt. No. 44, and CSPH filed
a reply, see Dkt. No. 48. The Court determines that a hearing is not necessary to
resolve the motion.
As amended effective December 1, 2015, Rule 26(c)(1) authorizes a protective

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written
opinion[] issued by the court” because it “sets forth a reasoned explanation for [the]
court’s decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
1

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order, for good cause shown, “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more of the
following: (A) forbidding the disclosure or discovery; (B) specifying terms, including
time and place or allocation of expenses, for the disclosure or discovery; (C) prescribing
a discovery method other than the one selected by the party seeking discovery; (D)
forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery
to certain matters; (E) designating the persons who may be present while the discovery
is conducted; (F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way; and (H)
requiring that the parties simultaneously file specified documents or information in
sealed envelopes, to be opened as the court directs.” FED. R. CIV. P. 26(c)(1).
“[T]he burden is upon [the party seeking the protective order] to show the
necessity of its issuance, which contemplates a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int’l,
134 F.3d 302, 306 (5th Cir. 1998) (citation omitted). A protective order is warranted in
those instances in which the party seeking it demonstrates good cause and a specific
need for protection. See Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir.
1990). And the United States Court of Appeals for the Fifth Circuit recently explained
that “[t]he federal courts have superimposed a somewhat demanding balancing of
interests approach to the Rule. Under the balancing standard, the district judge must
compare the hardship to the party against whom discovery is sought against the
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probative value of the information to the other party. Courts also weigh relevant public
interests in this analysis.” Cazorla v. Koch Foods of Mississippi, L.L.C., 838 F.3d 540,
555 (5th Cir. 2016) (footnotes and internal quotation marks omitted); see also id. at 564
(“Rule 26(d) gives that court wide discretion to craft flexible and nuanced terms of
discovery.” (footnote omitted)).
This Court has broad discretion in determining whether to grant a motion for
a protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).
“The trial court is in the best position to weigh fairly the competing needs and interests
of parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
CSPH seeks a Rule 26(c)(1) protective order “to prevent the Plaintiff from
undermining the Court’s prerogative, as defined by the [Fair Labor Standards Act’s]
legislative proscriptions, to determine whether his November 30, 2016 Motion for
Notice to Potential Plaintiffs and for Certification should be granted, and the form,
method, and means for issuing any such Notice” and “preventing the Plaintiff from
seeking putative class members unless and until the Court makes a ruling on his
November 30, 2016 Motion.” Dkt. No. 32 at 8. CSPH contends that “Plaintiff has
attempted to unilaterally usurp this Court’s power to authorize if, how and when any
notice is given to prospective class members by emailing solicitations to current CSPH
delivery drivers as late as January 3, 2017” and that “Plaintiff should not be allowed
to circumvent the judicial process in place to obtain conditional certification by
disseminating email solicitations to prospective clients prematurely.” Id. at 2.
“Accordingly, CSPH requests that the Court grant its Motion for a Protective Order,
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thereby limiting any communicating with and soliciting to prospective party plaintiffs
unless and until permitted by the Court to do so following a ruling on the merits of his
Motion for Notice to Potential Plaintiffs and for Conditional Certification (‘the Motion’)
filed on November 30, 2016.” Id.
Redus responds that his counsel knows the difference between communications
for case investigation and a solicitation letter and that the MPO “seeks to prohibit
Plaintiff from conducting even the most basic form of case investigation (contacting and
interviewing witnesses) by repeatedly and inexplicably casting Plaintiff’s Investigation
Letter as ‘solicitation.’” Dkt. No. 44 at 3-5. According to Redus, “the express terms of
the [January 3, 2017] communication ... clearly indicate an intent to gather
information and never once suggest the recipient can or should hire Plaintiff’s counsel,”
and “Plaintiff’s communication is not an impermissible solicitation and courts,
including those in this district, have routinely permitted this type of communication.”
Id. at 3.
CSPH replies that Redus’s response “fails to address the actual issues raised by
CSPH in its [MPO], to divert the Court’s attention from the real issue at play: that
Plaintiff’s claims fail as a matter of law.” Dkt. No. 48 at 1. CSPH explains that it “seeks
this Court’s protection to prevent the Plaintiff from prematurely soliciting potential
class members until a ruling on his Motion for Notice to Potential Plaintiffs and for
Conditional Certification” and does so “to safeguard the integrity of the judicial process
and provide a fair and balanced system to prosecute and defend this lawsuit,” where
“Plaintiff should not be permitted to usurp this Court’s authority by preempting its
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decision whether conditional certification should be granted, and the scope thereof,”
or “permitted to violate the Texas Disciplinary Rules of Professional Conduct in a
manner that attempts to give his client an unfair advantage, further limiting CSPH’s
ability to defend his claims against it.” Id. at 1-2.
CSPH makes clear that it is seeking a protective order under Rule 26(c) and
distinguishes other cases on that basis. See id. at 3. CSPH explains that it seeks an
order “to prevent counsel from soliciting putative class members before the Court rules
on the Motion for Conditional Certification”; that “CSPH has not, and does not seek an
overall ban on Plaintiff’s counsel’s communications with anyone”; and that the issue
raised in the MPO “is whether counsel for Plaintiff can solicit putative class members
before the Court’s decision on his own Motion for Conditional Certification, in order to
protect CSPH’s ability to fairly defend itself in this lawsuit.” Id. And, CSPH disputes
Redus’s claim that his counsel’s “January 3, 2017 email is not a solicitation because it
uses the term investigation” and argues that Redus’s counsel cannot be engaged in
merits-based discovery because Redus has previously taken the position that meritsbased discovery has yet to begin. See id. at 4-5. Accordingly, CSPH explains that it
“seeks protection from Plaintiff’s improper and unauthorized solicitation of potential
class members until the Court rules on his Motion for Conditional Certification.” Id.
at 6.
Much of the briefing focuses on whether Redus’s counsel is soliciting additional
potential class members as clients and whether that is acceptable. But the Court is
only considering a request for a Rule 26(c)(1) protective order. Such an order is, as
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CSPH points out, governed by the Federal Rules of Civil Procedure. As to requests for
protective orders, Rule 26(c)(1) “vests in the trial court discretion over litigants’
requests for protection from ‘annoyance, embarrassment, oppression, or undue burden
or expense’ in the discovery process.” Doe v. Stegall, 653 F.2d 180, 184 (5th Cir. 1981).
But a Rule 26(c)(1) order properly controls only information that is requested and
obtained as part of the discovery process in the case pending before the Court. And, as
a general matter, “once an action is filed in federal court, all discovery (including
depositions) is governed by the Federal Rules of Civil Procedure.” PJC Bros., LLC v.
S&S Claims Serv., Inc., 267 F.R.D. 199, 201 (S.D. Tex. 2010).
The January 3, 2017 email at issue does not clearly solicit additional clients. See
Dkt. No. 33-1. But, crediting Redus’s own characterization, it was an effort to engage
in additional case investigation – that is, it was a form of fact discovery focused either
on the merits on Redus’s claims or possibly “the issue of whether this case is
appropriate for litigation as a collective action under the Fair Labor Standards Act.”
Dkt. No. 12 at 1. Regardless of which it is, Judge Lynn’s scheduling order prohibits the
parties from engaging in any discovery at this point, where, as CSPH points out, the
Court has limited discovery to a first phase pending a decision on conditional
certification and the period for that limited discovery has closed. See id. at 1-2; Dkt.
No. 14; Dkt. No. 19.
The Court therefore need not reach the other issues raised by the MPO and will
GRANT in part and DENY in part CSPH’s Motion for Protective Order [Dkt. No. 32]
and ORDER – consistent with the limitations set by the Court’s First Phase of
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Scheduling Order Regarding Bifurcated Discovery [Dkt. No. 12], as later amended,
see Dkt. No. 14; Dkt. No. 19 – that Plaintiff John Michael Redus and his counsel will
not, without further court authorization, communicate with potential class members
to investigate or otherwise obtain discovery on the merits on Redus’s claims or on the
issue of whether this case is appropriate for litigation as a collective action under the
Fair Labor Standards Act, until the Court rules on his Motion for Conditional
Certification.
And, considering all of the circumstances here and the Court’s ruling above, the
parties will bear their own expenses, including attorneys’ fees, in connection with
CSPH’s Motion for Protective Order [Dkt. No. 32].
SO ORDERED.
DATED: February 28, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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