Shaffer v. Leasing Enterprises, Ltd.

Filing 113

ORDER DENYING 107 Motion to Compel; DENYING 108 Motion to Compel Signed by Judge Elizabeth S. Chestney. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARK SHAFFER, ET AL.,
Plaintiffs,
vs.
PERRY’S RESTAURANTS, LTD., F/K/A
LEASING ENTERPRISES, LTD.;
Defendant.

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SA-16-CV-01193-FB

ORDER
Before the Court in the above-styled cause of action are Defendant’s Motion to Compel
Deposition Testimony [#107] and Defendant’s Motion to Compel Responses to Requests for
Production of Documents [#108]. This case was referred to the undersigned for all pretrial
proceedings pursuant to Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United
States District Court for the Western District of Texas. In reviewing the motions, the Court has
also considered Plaintiffs’ Response in Opposition to Defendants’ Motion to Compel Angela
Bannworth’s Deposition [#110]. The Court held a hearing on the motions on October 11, 2018,
at which all parties were present as represented by counsel. After considering the motions and
response, the record in this case, and the arguments of counsel at the hearing, the Court issued
certain oral rulings, which it will now memorialize and supplement with this written Order.
In this collective action, Plaintiffs sue Defendant Perry’s Restaurants, Ltd. f/k/a Leasing
Enterprises, Ltd. (―Perry’s) for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (―FLSA‖). Plaintiffs are a class of current and former tipped servers employed by Perry’s
from November 22, 2013 to the present, who allege that Perry’s violated the tip-credit
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requirements of Section 203(m) of the FLSA. (Class Cert. Order [#49] at 17.) After certification,
Plaintiffs amended their Complaint to add a new allegation that Perry’s violated the 20% rule,
alleging that Perry’s tipped employees spend more than 20% of their workweek on non-tipped
tasks and therefore were not paid the required minimum wage. (Third Am. Compl. [#63] at 14.)
The Court thereafter certified a sub-class comprised all current and former nonexempt employees
paid $2.13 an hour for performing dual jobs between September 8, 2014 and September 8, 2017.
(Class Cert. Order [#77] at 7.)
Perry’s moved to dismiss Plaintiffs’ claims as to Perry’s tip-fee policy for lack of
evidence of any willful violation, resulting in the claims being time-barred under the two-year
statute of limitations. The undersigned issued a report and recommendation on August 22, 2013,
recommending that the motion be granted. The report and recommendation remains pending.
Plaintiffs continue to prosecute their claims under the 20% rule.
Perry’s motions to compel concern the deposition of Angela Bannworth, Plaintiffs’
designated representative, and related requests for production. Perry’s deposed Ms. Bannworth
on August 20, 2018. Before conducting the deposition, Perry’s served a request for production
on Plaintiffs as to each Plaintiff named in the collective action concerning their 20% rule claims.
Plaintiffs issued a global response to the requests that they had no responsive documents in their
possession other than a ―Point of Sale system‖ recording Plaintiff’s clock-in times, a document
already in Perry’s possession. (Pls.’ Resp. [#108-1] at 4–5.)
At Ms. Bannworth’s deposition, it became clear that she was not aware of, and had never
seen, the requests for production served on Plaintiffs. (Bannworth Dep. [#108-2] at 14:3–16;
17:5–8.) Perry’s Motion to Compel Production of Documents [#108] therefore seeks to compel
each named Plaintiff to review the document requests and respond individually to each request,

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identifying and producing any responsive documents.

At the Court’s hearing on Perry’s

motions, Plaintiffs represented on the record that each Plaintiff will be instructed to produce
anything in their possession and control that is responsive to Perry’s document requests.
Accordingly, the Court will grant this motion and order Plaintiffs to issue a supplemental
response to Perry’s requests on or before October 26, 2018.
By its Motion to Compel Deposition Testimony [#107], Perry’s asks the Court to reopen
the deposition of Ms. Bannworth and compel her to answer certain questions about what
documents, if any, she reviewed in order to refresh her recollection in preparation for her
deposition. During Ms. Bannworth’s deposition, counsel for Perry’s asked her repeatedly if she
―look[ed] at any documents to help [her] remember things in connection with getting ready for
th[e] deposition.‖ (Bannworth Dep. [#107-1] at 19:21–23; see also id. at 20:9–10; 21:23–25;
23:1–3.) Each time Ms. Bannworth was presented with such a question during her deposition,
Plaintiffs’ counsel objected on grounds of attorney-client and work-product privileges and
instructed Ms. Bannworth not to answer. (Id. at 19:24–20:2; 20:11–12; 22:1–3; 23:4–10.)
Notably, the question was not who showed her the documents, just what documents, if any, were
reviewed.
When a witness uses a writing to refresh her memory, Rule 612 of the Federal Rules of
Evidence entitles the adverse party ―to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion that relates to the
witness’s testimony.‖ Fed. R. Evid. 612(a), (b). This rule applies to materials used both while
testifying and before testifying. Id. at 612(a). If the material is used before testifying, a court
must also find that ―justice requires‖ granting an opponent access to Rule 612’s mechanisms. Id.
at 612(a)(2). ―If the producing party claims that the writing includes unrelated matter, the court

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must examine the writing in camera, delete any unrelated portion, and order that the rest be
delivered to the adverse party.‖ Id. at 612(b). If a writing is not produced or delivered as
ordered, the court may issue an appropriate order compelling production. Id. at 612(c). Rule
612 applies to writings used to refresh a witness’s memory prior to a deposition. Fed. R. Evid.
30(c)(1). The purpose of Rule 612 is ―to promote the search of credibility and memory.‖ Fed.
R. Evid. 612, advisory committee’s notes.
Numerous courts and scholars have recognized the potential for conflict between various
rules of privilege and Rule 612, but the Fifth Circuit has yet to articulate a framework for
analyzing the intersection of Rule 612 and the attorney and work-product privileges. The district
court opinions in this Circuit and across the country on privilege and Rule 612 are far from
uniform as to the rule’s application. Although the Advisory Committee to Rule 612 has stated
that nothing in the Rule should be ―construed as barring the assertion of a privilege‖ with respect
to such writings, numerous federal courts have held that the attorney-client privilege does not
automatically bar an opponent’s access to such a writing. See, e.g., Fisher v. Halliburton, Civ.
A. Nos. 05–1731, 06–1971, 2009 WL 483890, at *1–2 (S.D. Tex. 2009) (declining to extend
work-product privilege to identity of documents reviewed in preparation for deposition on
grounds that ―imbu[ing] every compilation of documents reviewed by a witness before
testifying—at trial or at deposition—with work product privilege protection would all but write
Rule 612 of the Federal Rules of Evidence out of existence‖); Woodward v. Avondale Indus.,
Inc., No. CIV.A. 99-2771, 2000 WL 385513, at *2–3 (E.D. La. Apr. 14, 2000) (―[P]laintiff
waived any attorney-client privilege by relying extensively on the statement to prepare her
EEOC affidavit.‖)

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To the contrary, despite the language in the Advisory Committee Notes, some courts
have even endorsed an automatic waiver approach, holding that any privilege or work-product
protection against disclosure is deemed waived as to those portions reviewed. See Wright &
Gold, Federal Practice & Procedure, Evidence § 6188 (2d ed.) (collecting cases). Whereas still
others have held that the work-product privilege prevents a party from using Rule 612 to compel
a witness to identify all documents shown to him or her by opposing counsel prior to a
deposition. Hanover Ins. Co. v. Plaquemines Parish Gov’t, 304 F.R.D. 494, 500 (E.D. La. 2015)
(―[A]sking a witness to identify all the documents that he was shown by the corporate attorney
prior to the deposition necessarily asks the witness to reveal the thoughts and opinions of the
corporate attorney. Given that opinion work product enjoys a near absolute protection, the Court
has no difficulty holding that the identity of the documents is protected.‖)
Regardless of the resolution of the privilege question, it is clear from the text of Rule 612
that the rule allows a writing to be disclosed to opposing counsel only if the writing actually
refreshed the witness’s memory and, in the case of documents reviewed before testifying, only
after the Court makes a determination that ―justice requires‖ the disclosure. Fed. R. Evid. 612.
Yet the Court is not in the position to be able to evaluate either of these factors due to the
instructions of Plaintiffs’ counsel to Ms. Bannworth that she not answer Perry’s preliminary
questions regarding any documents reviewed. At this juncture, the Court does not know whether
Ms. Bannworth consulted any documents prior to her deposition testimony and, if so, whether
they influenced her testimony. It follows that the Court is unable to evaluate whether any such
documents might raise questions of attorney-client or work-product privilege such that the Court
is able to analyze issues of possible waiver. Nor can the Court determine whether ―justice
requires‖ disclosure of any portion of these documents.

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The Court will therefore order the deposition of Ms. Bannworth to be reopened such that
Perry’s can ask Ms. Bannworth its questions regarding the documents she reviewed in
preparation for her deposition, but the Court will order that these questions be propounded on
Ms. Bannworth as a deposition by written questions. The Court is persuaded by the reasoning of
the Fisher Court, cited supra, that merely identifying the documents, as opposed to disclosing
their contents, as is done in a privilege log, does not in itself violate any attorney-client or workproduct privilege that has attached to the reviewed documents. Fisher, 2009 WL 483890, at *1–
2. But even this contested point can be avoided if counsel for Perry’s refrains from asking
whether the documents were shown to her by her attorney or his staff. That step will ensure that
the witness can answer which materials she recalls reviewing that may have influenced her
testimony, but avoids revealing what counsel for Plaintiff argues is work product, i.e., the list of
materials he compiled for her to review.
After Ms. Bannworth has answered Perry’s questions regarding the documents she
reviewed in preparation for her deposition, the parties will be able to ascertain whether they are
documents that have already been produced in discovery. If there are documents that have not
yet been produced, the parties should confer as to whether they are responsive to pending
discovery requests and whether supplemental production is required. To the extent that Plaintiffs
maintain that the documents are privileged, the parties should confer regarding whether they
must be produced pursuant to Rule 612. If no agreement can be reached, Perry’s can file a
motion with the Court compelling their production. Plaintiffs along with their response should
submit the documents under seal to the Court to an enable an in camera inspection.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Deposition
Testimony [#107] is GRANTED IN PART as follows: Perry’s may serve Ms. Bannworth with

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a deposition by written questions to ask Ms. Bannworth to identify which documents, if any, she
reviewed in preparation for her deposition. Ms. Bannworth is ordered to respond to Perry’s
questions on or before October 26, 2018.
IT IS FURTHER ORDERED that Defendant’s Motion to Compel Responses to
Requests for Production of Documents [#108] is GRANTED as follows:

Plaintiffs are

instructed to produce anything in their possession and control that is responsive to Perry’s
document requests on or before October 26, 2018.
IT IS FURTHER ORDERED that in all other respects the Motions [#107, #108] are
DENIED.
SIGNED this 22nd day of October, 2018.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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