Redus v. CSPH Inc

Filing 63

MEMORANDUM OPINION AND ORDER: The Court GRANTS Plaintiff's Motion for Reconsideration of 2/28/2017, Order [Dkt. No. 53 ] and Defendant CSPH, Inc.'s Motion for Leave to File Supplemental Evidence in Support of its Motion for Protective Orde r [Dkt. No. 57 ]; VACATES the Court's 2/28/2017 Amended Memorandum Opinion and Order [Dkt. No. 50 ]; DENIES Defendant CSPH, Inc.'s Motion for Protective Order [Dkt. No. 32 ]; and ORDERS that, considering all of the circumstances here and the Court's ruling above, the parties will bear their own expenses, including attorneys' fees. (Ordered by Magistrate Judge David L. Horan on 5/15/2017) (sss)

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

§
§
§
Plaintiff,
§
§
V.
§
§
CSPH, INC., doing business as Domino’s §
Pizza,
§
§
Defendant.
§

No. 3:15-cv-2364-M

MEMORANDUM OPINION AND ORDER1
Defendant CSPH, Inc., d/b/a Domino’s Pizza, 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.
In a February 28, 2017 Memorandum Opinion and Order, the Court granted in
part and denied in part the MPO and ordered “– consistent with the limitations 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

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issues presented in this case, and not for publication in an official reporter, and should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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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.” Dkt. 50 at 6-7.
The Court explained that,
[a]s amended effective December 1, 2015, Rule 26(c)(1) authorizes a
protective 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
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
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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, 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
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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 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 merits-based 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 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
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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.
Id. at 1-6.
Redus filed an Unopposed Motion for Extension of Time to File Rule 72(a)
Objections, see Dkt. No. 51, which Judge Lynn granted, ordering that “Plaintiff (or
Defendant if necessary) shall have until 14 days after the Court rules on Plaintiff’s
Motion for Reconsideration of the Court’s February 28, 2017, Order to file Objections
to the Order pursuant to Federal Rule of Procedure 72(a)” and “that Plaintiff shall file
his Motion for Reconsideration by March 17, 2017.” Dkt. No. 52 at 1. Redus then filed
his Motion for Reconsideration of February 28, 2017, Order, see Dkt. No. 53 (the
“Motion for Reconsideration”), which is now before the undersigned for determination.
In the Motion for Reconsideration, Redus contends that
[t]his Court should reconsider its February 28, 2017, Order (“Order”)
because it based on a misapplication of Judge Lynn’s Scheduling Order
and a gross misinterpretation of the Federal Rules of Civil Procedure
(“FRCP”). The Order imposes a one-way gag order on Plaintiff’s ability to
communicate with potential witnesses or prepare his case for trial. The
result is an unconstitutional prior restraint on Plaintiff’s First
Amendment rights, without any “specific findings” based on a “clear
record,” as required by the Supreme Court. Additionally, the Order is not
based on any finding under Rule 26(c) that such a limit is needed to
protect a party or person from “annoyance, embarrassment, oppression,
or undue burden or expense….” ....
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Rather than address the applicable standards and make the
requisite findings, the Court elected to side-step these issues and use the
Court’s December 31, 2015, Scheduling Order (Dkt. 12) (“Scheduling
Order”) as the basis of the gag order. This is clear and reversible error
and the Court should reconsider, withdraw the Order, and deny the
Motion for Protective Order. Plaintiff requests oral argument on this
issue so it can be fully discussed with the Court because of the
importance of the issue.
Id. at 1-2 (footnote omitted). CSPH filed a response in opposition to the Motion for
Reconsideration, see Dkt. No. 58, and Redus filed a reply, see Dkt. No. 59.
CSPH also filed a Motion for Leave to File Supplemental Evidence in Support
of its Motion for Protective Order, see Dkt. No. 57, explaining that
[i]n the event the Court reconsiders its Order, CSPH requests leave to file
supplemental evidence in support of its Motion for Protective Order. In
its Motion for Protection, CSPH sought protection from this Court to
prevent Plaintiff from improperly communicating with and soliciting
CSPH employees and putative class members until the Court ruled on
Plaintiff’s Motion for Notice to Potential Plaintiffs and for Conditional
Certification filed on November 30, 2016. CSPH argued that the Plaintiff
and its counsel improperly contacted a current CSPH employee and
putative class member by email solicitation, in violation of the Federal
Rules, the Court’s orders and the Texas Disciplinary Rules of Professional
Conduct Rules governing prospective client communication.
7.
Although the Court declined to rule on whether the email
solicitation was improper communications by opposing counsel and
granted the Motion for Protection on other grounds, CSPH requests leave
to submit evidence that the email solicitation at issue was direct
communication to a CSPH Manager without the consent of CSPH’s
counsel, which is also a violation of Section 4.02 of the Texas Disciplinary
Rules of Professional Conduct Rules. Section 4.02 specifically prohibits a
lawyer from communicating about the subject matter of the
representation with a person the lawyer knows to be represented by
another lawyer regarding that subject. Under Section 4.02, “organization”
includes those persons presently having a managerial responsibility with
an organization or those persons presently employed by such organization
or entity and whose act or omission in connection with the subject of
representation may make the organization or entity of government
vicariously liable for such act or omission.
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8.
Should the Court reconsider its Order dated February 28,
2017, CSPH requests leave to submit the Declaration of Joy Wilson
attached hereto as Exhibit A, which demonstrates that the email at issue
was sent from Plaintiff’s counsel to Megan Glass, a current employee and
one of CSPH’s General Managers at one of its locations.
Id. at 1-3 (footnote omitted). Redus opposes, arguing that
Defendant’s latest (and new) argument is that Plaintiff’s communications
about the case must be stopped because a management employee was
inadvertently contacted. Plaintiff never intended to contact any CSPH
management-level employee. The first Plaintiff heard about that issue
was approximately eight days ago when CSPH mentioned it for the first
time. Plaintiff immediately responded that he would not contact the
individual further, had no idea she was a member of management, and
that he was under an ethical obligation to refrain from such contact even
without a protective order. (Reply Exh. A). For such an allegedly
important issue, it seems disingenuous for Defendant to alert Plaintiff to
this issue after the Motion for Protective Order was adjudicated. This is
the kind of issue Plaintiff should have been informed about before now
and it appears as though Defendant sandbagged Plaintiff in an effort to
get him to breach his ethical duties in not contacting management
employees. The Court should see through Defendant’s arguments and
reconsider the February 28, 2017, Order.
Dkt. No. 59 at 3.
The Court heard oral argument on Plaintiff’s Motion for Reconsideration of
February 28, 2017, Order [Dkt. No. 53] and Defendant CSPH, Inc.’s Motion for Leave
to File Supplemental Evidence in Support of its Motion for Protective Order [Dkt. No.
57] on April 24, 2017. See Dkt. No. 60.
The Court is now persuaded that its analysis in February 28, 2017 Amended
Memorandum Opinion and Order [Dkt. No. 50] rested on a faulty premise. There is
limited case law on the question of whether, under the Federal Rules of Civil
Procedure, “discovery” includes informal fact investigation and witness interviews. And
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many of the decisions focus on a defendant’s efforts to interview a plaintiff’s treating
health care providers – which raises additional issues not implicated here. And, as
Redus points out, a prior version of Federal Rule of Civil Procedure 26(a)(5) set forth
the methods to discover additional information which were governed by the Federal
Rules, but “[t]he omission of this section after 2007 was not an effort to expand the
scope of the Rules to include witness interviews or other informal information
gathering techniques, but was an effort to eliminate redundancy.” Dkt. No. 53 at 4.
The Court is persuaded by Redus’s analysis of the question:
The linchpin predicate for the Court’s Order is that Plaintiff’s
efforts to informally contact witnesses to investigate the case “was a form
of fact discovery” under Rule 26 and “the Court has limited discovery to
a first phase pending a decision on conditional certification and the period
for that limited discovery has closed.” Order, p. 6. A party’s efforts to
informally interview witnesses or obtain information from willing
participants is not governed by the FRCP.
The FRCP contain six main forms of discovery: depositions,
interrogatories, requests to produce, requests to admit, non-party
production subpoenas, independent medical examinations, site visits and
product testing. What all of these have in common is that they impose a
court-imposed requirement that they be responded to under penalty of
contempt.
....
The FRCP do not address the ability of a party to contact witnesses
and potential witnesses through informal means. Unlike the limits placed
on the number of depositions or the number of Interrogatories, the Rules
contain no limit whatsoever on informal contacts with potential
witnesses. There is no limit on how many potential witnesses can be
contacted, by whom, when they can be contacted, what can be obtained
from them, etc. ....
The fact that informal interviews are not considered “discovery”
under the FRCP is supported by the implications if the rule was
otherwise. Rule 26(d) says that “A party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f).” Fed.
R. Civ. P. 26(d). If the Court is correct, this would mean that neither side
could investigate its case after the case was filed but before a Rule 26(f)
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conference. This would preclude Defendants from informally talking to
witnesses to be able to file an Answer. It would preclude both sides from
obtaining witness statements early in a case. In [Fair Labor Standards
Act] cases, it would preclude both sides from obtaining declarations which
address a motion for conditional certification filed before the Rule 26(f)
conference. But as this Court well knows, such interviews occur and are
used by the parties to prosecute and defend their cases well before the
26(f) meeting. Holding that informal witness interviews are “discovery”
under the FRCP will preclude all litigants from investigating their cases
until after the Rule 26(f) conference. This cannot be what the Court
intends.
Similarly, if informal witness interviews are “discovery” under the
FRCP, the Court would be telling litigants that they cannot conduct such
interviews after the close of discovery but before trial. In most cases,
courts set discovery deadlines. If the Court’s Order remains in place such
that informal interviews are “discovery” and would be affected by a
discovery deadline, the Court would be creating a heretofore
unannounced rule that unless a witness is interviewed before the
discovery deadline, he cannot be spoken to. This would also impact trial
preparation as attorneys meet with witnesses to prepare them to testify
when they may have had limited contact with them before the discovery
deadline. Would this new “witness interview is the same as formal
discovery” rule prohibit witness preparation altogether or limit such
preparation to only those specific matters discussed during the open
discovery period. Here again, Plaintiff doubts the Court intends such an
implication, but such would be the issue if the Court’s Order stands.
Id. at 3-5.
The Court determines, as Redus has convincingly argued, that the term
“discovery” as it is generally used in Federal Rules of Civil Procedure 26 through 37
does not generally include informally investigating facts and issues by contacting
potential witnesses who are free to ignore the communication if they elect to do so, as
opposed to formal discovery requests that are expressly governed by a Federal Rule
and to which a party is legally required to comply.
And, most importantly, by extension, the Court is persuaded that Judge Lynn’s
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First Phase of Scheduling Order Regarding Bifurcated Discovery [Dkt. No. 12] did not
include informal fact investigation and witness interviews in the “discovery” that the
order governs. Courts generally do not consider – at least implicitly because of the
concerns and unintended consequences to which Redus’s analysis points – a discovery
deadline or cut-off or stay to affect informal fact investigation or witness interviews.
See, e.g., Ford v. Caddo Par. Dist. Attorney’s Office, No. CV 15-0544, 2016 WL 2343903,
at *3 (W.D. La. May 3, 2016) (“Finally, plaintiff argues that a discovery stay will
prejudice her case because witnesses and parties will continue to age and suffer
infirmities. However, plaintiff has not shown that the health of any particular
defendant is precarious. Moreover, she remains free to interview non-party
witnesses.”); Simstad v. Scheub, No. 2:07-CV-407, 2014 WL 360024, at *1 (N.D. Ind.
Feb. 3, 2014) (“Sawochka previously worked for the plaintiffs, but his employment
ended over a decade before the interview occurred. He was not a party to the lawsuit,
and the plaintiffs have presented no authority to show that it was necessary for them
to be present at the interview. Rather, the Federal Rules allow an attorney to conduct
such witness interviews. Furthermore, the plaintiffs have not shown that the fact
discovery deadline terminates a parties’ right to conduct such interviews.”); Hernandez
v. Mario’s Auto Sales, Inc., 617 F. Supp. 2d 488, 497 n.6 (S.D. Tex. 2009) (noting that,
although the court would deny a requested extension of the discovery deadline,
“nothing prevents the parties from continuing, informally, their investigations and
interviews of any fact witnesses”).
Nothing in Judge Lynn’s scheduling order or the parties’ submission, see Dkt.
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No. 11, that led to its entry suggests or supports a conclusion that the order was
intended to reach “discovery” beyond the formal discovery governed by Federal Rules
26 through 37 and 45 – and the Court concludes that it does not.
That takes the Court back to CSPH’s request for a Rule 26(c)(1) protective order.
At oral argument, CSPH’s counsel focused on the timing of the January 3, 2017 email
as the concern that prompted the MPO – and the MPO itself is focused on that. At oral
argument, CSPH’s counsel conceded that CSPH is not resting on an argument that the
conditional certification process and informal solicitation of additional clients are
mutually exclusive. And the Court does not believe that Redus’s counsel engaging in
communications like the January 3, 2017 email would usurp the 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 or circumvents the judicial
process in place to obtain conditional certification by disseminating email solicitations
to prospective clients prematurely.
The Court further stands by its finding that the January 3, 2017 email at issue
does not clearly solicit additional clients but rather is aimed at investigating Redus’s
claims, even though it does not mention Redus or this case by name. For that matter,
CSPH has not shown that the email is improper even if it was a solicitation, and
CSPH’s counsel made clear at oral argument that they do not contend that Redus’s
counsel has engaged in unethical conduct in sending the email, even as it – without
Redus’s counsel’s knowledge at the time – went to a manager.
The Court finds, on this record, no need for an order limiting Redus’s counsel’s
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ability to communicate with any absent class members to avoid communications that
have been or are likely or threatened to be, for example, misleading, coercive, an
attempt to undermine the collective action process, or otherwise abusive and a threat
to the proper functioning of this litigation. See, e.g., Vogt v. Tex. Instruments Inc., No.
3:05-cv-2244-L, 2006 WL 4660133, at *2-*3 (N.D. Tex. Aug. 8, 2006); see also Jaso v.
Bulldog Connection Specialists LLC, No. 2:15-cv-269, 2015 WL 11144603, at *6-*7
(S.D. Tex. Oct. 15, 2015); Garcia v. TWC Admin., LLC, No. SA:14-cv-985-DAE, 2015
WL 1737932, at *4 (W.D. Tex. Apr. 16, 2015). The January 3, 2017 email did not
supplant or preempt any notice that the Court may order where, as Redus points out,
it “did not inform individuals about their individual right to pursue overtime claims”
and “[t]he recipients were not told how to join the litigation, even if they wanted to do
so.” Dkt. No. 59 at 2-3.
The Court has considered the supplemental evidence in support of the MPO but
determines that it does not change the outcome. Even where the January 3, 2017 email
was inadvertently sent to a manager, CSPH has not met its burden to establish good
cause for a Rule 26(c)(1) protective order based on a specific need to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense.
And a protective order is not warranted by CSPH’s contention that the Motion
for Reconsideration “is yet another attempt to distract the Court from the focal issue
before the Court: his claims fail as a matter of law.” Dkt. No. 58 at 1. The Court does
not generally decide formal discovery matters – much less informal fact investigation
matters – based on another party’s “‘strong belief in the merits of [the party’s]
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litigation positions.’” Heller v. City of Dallas, 303 F.R.D. 466, 489 (N.D. Tex. 2014)
(quoting Third Pentacle, LLC v. Interactive Life Forms, LLC, No. 3:10cv00238, 2012
WL 27473, at *3 (S.D. Ohio Jan. 5, 2012)). Put another way in this particular context,
a Rule 26(c)(1) protective order cannot properly be granted based on CSPH’s belief that
Judge Lynn will deny conditional certification and will conclude that Redus’s claim
fails as a matter of law, on CSPH’s preference to enjoy the benefit of that expected
victory without the complication of another plaintiff with a better claim coming on
board, or on CSPH’s speculation that Redus’s counsel is “searching for additional
putative class members and/or replacement class representatives who can better
sustain the current allegations against CSPH.” Dkt. No. 58 at 1; cf. Jaso, 2015 WL
11144603, at *7 (“Because the Court must make specific findings based on a clear
record that a particular form of communication has occurred or is threatened to occur,
speculation does not, without more, entitle an FLSA plaintiff to a protective order
restricting an employer’s communications with members of the potential opt-in class.”).
Without the violation of Judge Lynn’s scheduling order that the Court previously
believed had occurred, CSPH has not met its burden to establish the propriety of or
need for the order that its seeks. Accordingly, the Court GRANTS Plaintiff’s Motion for
Reconsideration of February 28, 2017, Order [Dkt. No. 53] and Defendant CSPH, Inc.’s
Motion for Leave to File Supplemental Evidence in Support of its Motion for Protective
Order [Dkt. No. 57]; VACATES the Court’s February 28, 2017 Amended Memorandum
Opinion and Order [Dkt. No. 50]; DENIES Defendant CSPH, Inc.’s Motion for
Protective Order [Dkt. No. 32]; and ORDERS that, considering all of the circumstances
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here and the Court’s ruling above, the parties will bear their own expenses, including
attorneys’ fees, in connection with Defendant CSPH, Inc.’s Motion for Protective Order
[Dkt. No. 32], Plaintiff’s Motion for Reconsideration of February 28, 2017, Order [Dkt.
No. 53], and Defendant CSPH, Inc.’s Motion for Leave to File Supplemental Evidence
in Support of its Motion for Protective Order [Dkt. No. 57]
SO ORDERED.
DATED: May 15, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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