Velazquez v. McCoy et al

Filing 12

ORDER FOR INITIAL DISCOVERY PROTOCOLS FOR FLSA CASES entered.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FABIAN VELASQUEZ,
Plaintiff,
v.
ROBERT E MCCOY, et al,
Defendants.

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August 11, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1156

INITIAL DISCOVERY PROTOCOLS FOR FAIR LABOR STANDARDS ACT
CASES NOT PLEADED AS COLLECTIVE ACTIONS

PART 1: INTRODUCTION AND DEFINITIONS.
(1) Statement of purpose.
a. These Initial Discovery Protocols apply to FLSA cases not pleaded as collective
actions. The Protocols are designed to be implemented by trial judges throughout
the United States District Courts. The Protocols encourage the parties and their
counsel to exchange information and documents early in the case, help frame the
issues to be resolved, and plan for more efficient and targeted discovery.
b. Participating courts may implement the Initial Discovery Protocols by local rule
or by standing, general, or individual case orders. The Protocols apply to cases
alleging minimum wage and overtime violations under the FLSA (the “FLSA
Claims”). If any party believes that there is good cause why a case should be
exempted, in whole or in part, from the Protocols, that party may raise such
reason with the Court.
c. The Initial Discovery Protocols are not intended to preclude or modify the rights
of any party for discovery as provided by the Federal Rules of Civil Procedure
and other applicable local rules, but they are intended to supersede the parties’
obligations to make initial disclosures under FRCP 26(a)(1) for the FLSA Claims.
d. The Initial Discovery Protocols were prepared by a balanced group of highly
experienced attorneys from across the country who regularly represent plaintiffs
or defendants in FLSA matters. The Protocols require the exchange of
information and documents routinely requested in FLSA cases. They are unlike
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initial disclosures under FRCP 26(a)(1) because they focus on the type of
information most likely to be useful in narrowing the issues for FLSA cases.
(2) Definitions. The following definitions apply to cases proceeding under the Initial
Discovery Protocols.
a. Concerning. The term “concerning” means referring to, describing, evidencing,
or constituting.
b. Document. The terms “document” and “documents” are defined to be
synonymous in meaning and equal in scope to the terms “documents” and
“electronically stored information” as used in F.R.C.P. 34(a).
c. Identify (Documents). When referring to documents, to “identify” means to give,
to the extent known: (i) the type of document; (ii) the general subject matter of the
document; (iii) the date of the document; (iv) the author(s), according to the
document; and (v) the person(s) to whom, according to the document, the
document(or a copy) was to have been sent; or, alternatively, to produce the
document.
d. Identify (Persons). When referring to natural persons, to “identify” means to give
the person’s: (i) full name; (ii) present or last known address and telephone
number; (iii) present or last known place of employment; (iv) present or last
known job title; and (v) relationship, if any, to the plaintiff or defendant. Once a
person has been identified in accordance with this subparagraph, only the name of
that person need be listed in response to subsequent discovery requesting the
identification of that person.
e. Defendant. Any person or entity alleged to be an employer or joint employer of
the plaintiff(s) in the operative Complaint, unless otherwise specified.
f. Plaintiff. Any named individual(s) alleging FLSA Claim(s) in the operative
Complaint.
(3) Instructions.
a. For this Initial Discovery, the relevant time period begins two years before the
date the initial Complaint was filed, or, if willfulness is alleged, three years. If the
Plaintiff alleges a shorter relevant time period, then that is the time period for
Initial Discovery.
b. For this Initial Discovery, the relevant time period continues through the last date
for which the Plaintiff seeks recovery or relief.
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c. This Initial Discovery is not subject to objections except for the reasons under
FRCP 26(b)(2)(B) or on the grounds of privilege or work product. Documents
withheld based on a claim of privilege or work product are subject to the
provisions of FRCP 26(b)(5).
d. If a partial or incomplete answer or production is provided, the responding party
must state the reason that the answer or production is partial or incomplete.
e. This Initial Discovery is subject to FRCP 26(e) on supplementation and FRCP
26(g) on certification of responses.
f. This Initial Discovery is subject to FRCP 34(b)(2)(E) on form of production.
g. This Initial Discovery will be subject to the attached Interim Protective Order
unless the parties agree or the court orders otherwise. The Interim Protective
Order will remain in place only until the parties agree to or the court orders a
different protective order. Absent agreement by the parties, the Interim Protective
Order will not apply to subsequent discovery.
h. Prior to the production of documents by either Party to the other pursuant to the
Initial Discovery Protocols, the Parties will meet and confer regarding the format
(e.g. TIFF/text, searchable .pdf, Excel) for such production. This will not delay
the timeframes for Initial Discovery absent ruling by the court.

PART 2: PRODUCTION BY THE PLAINTIFF.
(1) Timing.
The Plaintiff’s Initial Discovery must be provided within 30 days after the Defendant has
submitted a responsive pleading or motion, unless the court rules otherwise.
(2) Documents that the Plaintiff must produce to the Defendant.
a. Documents created or maintained by the Plaintiff recording time worked.
b. Documents created or maintained by the Plaintiff recording wages or other
compensation paid or unpaid by the Defendant.1
c. If the Plaintiff reported or complained internally to the Defendant (including but
not limited to supervisors or administrative departments, such as human

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This Initial Disclosure does not include personal tax returns or tax informational documents.

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resources, payroll, timekeeping or benefits) about the FLSA Claim(s), the
report(s) or complaint(s) and any response that the Defendant provided to the
Plaintiff.
d. Any offer letters, employment agreements, or compensation agreements for the
Plaintiff.
e. Any sworn statements from individuals with information relevant to the FLSA
Claim(s).
f. Documents that the Plaintiff relies on to support a claim of willful violation.
g. All other documents that the Plaintiff relies on to support the Plaintiff’s FLSA
Claim(s).
(3) Information that the Plaintiff must produce to the Defendant.
a. Identify persons the Plaintiff believes to have knowledge of the facts concerning
the FLSA Claim(s) or defenses, and a brief description of that knowledge.
b. Identify the start and end dates for the FLSA Claim(s);
c. The Plaintiff’s title or position and a brief description of the Plaintiff’s job duties
for the relevant time period.
d. Describe the basis for the FLSA Claim(s).
e. A computation of each category of damages claimed by the Plaintiff, including a)
applicable dates, b) amounts of claimed unpaid wages, and c) the method used for
computation (including applicable rates and hours).
f. The names of the Plaintiff’s supervisors during the relevant time period.
g. If the Plaintiff reported or complained about the FLSA Claim(s) to any
government agency, the identity of each such agency, the date(s) or such reports
or complaints, and the outcome or status of each report or complaint.
h. If the Plaintiff reported or complained to the Defendant (including but not limited
to supervisors or administrative departments such as human resources, payroll,
timekeeping or benefits) about the any FLSA Claim(s), state whether the report or
complaint was written or oral, when the report or complaint(s) was made, to
whom any report or complaint(s) were made, and any response provided by the
Defendant.
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PART 3: PRODUCTION BY THE DEFENDANT.
(1) Timing.
The Defendant’s Initial Discovery must be provided within 30 days after the Defendant
has submitted a responsive pleading or motion, unless the court rules otherwise.
(2) Documents that the Defendant must produce to the Plaintiff.
a. Time and pay records created or maintained by the Defendant for the Plaintiff.
b. If the Plaintiff reported or complained internally to the Defendant (including but
not limited to supervisors or administrative departments, such as human
resources, payroll, timekeeping or benefits) about the FLSA Claim(s), the
report(s) or complaint(s) and any response that the Defendant provided to the
Plaintiff.
c. Any sworn statements from individuals with information relevant to the FLSA
Claim(s).
d. Documents that the Defendant relies on to support a claim that any alleged
violation was in good faith.
e. Any offer letters, employment agreements, or compensation agreements for the
Plaintiff.
f. Collective bargaining agreement(s) applicable to the Plaintiff.
g. The job description for the position(s) the Plaintiff held during the relevant time
period(s), if the job duties are at issue in the FLSA Claim(s).
h. The Defendant’s policies, procedures, or guidelines for compensation that are
relevant to the FLSA Claim(s).
i. The cover page, table of contents, and index of any employee handbook, code of
conduct, or employment policies and procedures manual pertaining to
compensation or time worked.
j. Any other documents the Defendant relies on to support the defenses, affirmative
defenses, and counterclaims to the FLSA Claim(s).
k. Any insurance agreement under which an insurance business may be liable to
satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
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(3) Information that the Defendant must produce to the Plaintiff.
a. Provide the following information related to the Plaintiff :
1. Start and end dates for work performed;
2. Work location(s);
3. Job title(s);
4. Employee or contractor identification number;
5. In cases alleging the misclassification of the Plaintiff, the classification
status of the Plaintiff (i.e., exempt or non-exempt);
6. Immediate supervisor(s) and/or manager(s).
b. If the Defendant does not have a job description for the Plaintiff, a brief
description of the Plaintiff’s job duties for the relevant time period(s), if the job
duties are at issue in the FLSA Claim(s).
c. Identify persons the Defendant believes to have knowledge of the facts
concerning the FLSA Claim(s) or defenses, and a brief description of that
knowledge.
d. If the Plaintiff reported or complained to the Defendant about the FLSA Claim(s),
whether the report(s) or complaint(s) were written or oral, when the report(s) or
complaint(s) were made, to whom any report(s) or complaint(s) were made, and
any response(s) provided by the Defendant.

SIGNED on August 11, 2017, at Houston, Texas.

_______________________________________
Lee H. Rosenthal
Chief United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
___________________________,
Plaintiff(s),
v.
___________________________,
Defendant(s).

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CIVIL ACTION NO. H-________

INTERIM PROTECTIVE ORDER
The court orders that the following restrictions and procedures will apply to certain
information, documents, and excerpts from documents the parties produce to each other in
response to these initial discovery protocols and other discovery requests:
1.  Counsel for any party may designate any document, information contained in a
document, information revealed in an interrogatory response or information revealed
during a deposition as confidential if counsel determines, in good faith, that such
designation is necessary to protect the interests of the client. Information and
documents designated by a party as confidential will be stamped
“CONFIDENTIAL.” “Confidential” information or documents may be referred to
collectively as “confidential information.”
2.  Unless ordered by the Court, or otherwise provided for herein, the Confidential
Information disclosed will be held and used by the person receiving such information
solely for use in connection with the above-captioned action.
3.  In the event a party challenges another party’s confidential designation, counsel
shall make a good faith effort to resolve the dispute, and in the absence of a
resolution, the challenging party may thereafter seek resolution by the Court.
Nothing in this Protective Order constitutes an admission by any party that
Confidential Information disclosed in this case is relevant or admissible. Each party
specifically reserves the right to object to the use or admissibility of all Confidential
Information disclosed, in accordance with applicable law and Court rules.
4.  Information or documents designated as “confidential” shall not be disclosed to
any person, except:
a.  The requesting party and counsel, including in-house counsel;

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b.  Employees of such counsel assigned to and necessary to assist in the
litigation;
c.  Consultants or experts assisting in the prosecution or defense of the
matter, to the extent deemed necessary by counsel;
d.  Any person from whom testimony is taken or is to be taken in these
actions, except that such a person may only be shown that Confidential
Information during and in preparation for his/her testimony and may not retain
the Confidential Information; and
e.  The Court (including any clerk, stenographer, or other person having
access to any Confidential Information by virtue of his or her position with the
Court) or the jury at trial or as exhibits to motions.
5.  Prior to disclosing or displaying the Confidential Information to any person,
counsel shall:
a.  inform the person of the confidential nature of the information and
documents; and
b.  inform the person that this Court has enjoined the use of the information
or documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of that information or documents to any other person.
6.  The Confidential Information may be displayed to and discussed with the persons
identified in Paragraphs 4(c) and (d) only on the condition that prior to any such
display or discussion, each such person shall be asked to sign an agreement to be
bound by this Order in the form attached hereto as Exhibit A. In the event such
person refuses to sign an agreement in the form attached as Exhibit A, the party
desiring to disclose the Confidential Information may seek appropriate relief from the
Court.
7.  The disclosure of a document or information without designated it as
“confidential” shall not constitute a waiver of the right to designate such document or
information as Confidential Information provided that the material is designated
pursuant to the procedures set forth herein no later than that latter of fourteen (14)
days after the close of discovery or fourteen (14) days after the document or
information’s production. If so designated, the document or information shall
thenceforth be treated as Confidential Information subject to all the terms of this
Stipulation and Order.
8.  All information subject to confidential treatment in accordance with the terms of
this Stipulation and Order that is filed with the Court, and any pleadings, motions or
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other papers filed with the Court disclosing any Confidential Information, shall be
filed under seal to the extent permitted by law (including without limitation any
applicable rules of court) and kept under seal until further order of the Court. To the
extent the Court requires any further act by the parties as a precondition to the filing
of documents under seal (beyond the submission of this Stipulation and Order
Regarding Confidential Information), it shall be the obligation of the producing party
of the documents to be filed with the Court to satisfy any such precondition. Where
possible, only confidential portions of filings with the Court shall be filed under seal.
9.  At the conclusion of litigation, the Confidential Information and any copies
thereof shall be promptly (and in no event later than thirty (30) days after entry of
final judgment no longer subject to further appeal) return to the producing party or
certified as destroyed, except that the parties’ counsel shall be permitted to retain their
working files on the condition that those files will remain confidential.
The foregoing is entirely without prejudice to the right of any party to apply to the Court
for any further Protective Order relating to confidential information; or to object to the
production of documents or information; or to apply to the Court for an order compelling
production of documents or information; or for modification of this Order. This Order may be
enforced by either party and any violation may result in the imposition of sanctions by the Court.
Signed on_______________________, at Houston, Texas.

_____________________________________
Lee H. Rosenthal
Chief United States District Judge

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EXHIBIT A
I have been informed by counsel that certain documents or information to be
disclosed to me in connection with the matter entitled ___________________________ have
been designated as confidential. I have been informed that any such documents or information
labeled “CONFIDENTIAL – PRODUCED PURSUANT TO PROTECTIVE ORDER” are
confidential by Order of the Court.
I hereby agree that I will not disclose any information contained in such
documents to any other person. I further agree not to use any such information for any purpose
other than this litigation.

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Signed in the presence of:

_______________________________________
(Attorney)

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DATED: