Harris v. Paragon Contractors et al

Filing 122

ORDER Addressing Motions to Enforce Subpeona Against Dale Barlow (Doc. #46 and #103)-granting 103 Motion ; adopting Report and Recommendations re 117 Report and Recommendations. See Order for further details. Signed by Judge David Sam on 9/11/14. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

FILED IN UNITED STATES DISTRICT
COURT, DISTRICT OF UTAH

************************************************SEP~~*2m. *
THOMAS PEREZ, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,

)

)
Plaintiff,

----~D~EP~U=~~C~L~E~RK~----

Case No. 2:13CV00281-DS

)

vs.

D. MARK JON ES, CLERK
BY

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PARAGON CONTRACTORS, CORP., )
et aI.,
)
Defendants.
)

ORDER ADDRESSING
MOTIONS TO ENFORCE SUBPOENA
AGAINST DALE BARLOW (Doc. #46
& #103)

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This matter involves an administrative subpoena enforcement action by
Petitioner as part of its investigation into potential child labor violations involving
children from the Fundamentalist Church of Jesus Christ of Latter Day Saints (the
"FLDS Church") during harvest activities at a pecan ranch in Hurricane, Utah.
Pursuant to subpoena, Dale Barlow appeared on January 31, 2013, to give
testimony related to Petitioner's investigation. Following Mr. Barlow's testimony,
Petitioner filed a Petition to Enforce Administrative Subpoena based on Barlow's refusal
to answer certain questions. Judge Shelby issued an order to show cause which
directed Mr. Barlow to file a written response, and a hearing was for May 21,2013. Mr.
Barlow filed no response and failed to appear at the hearing. Ultimately an order to
enforce subpoena was issued and a bench warrant issued for Mr. Barlow's arrest.
On September 23, 2013, Mr. Barlow voluntarily appeared to provide testimony.

However, he refused to answer certain questions and invoked the Fifth Amendment.
Petitioner sought the court's intervention, and after breifing, Magistrate Judge
Furse issued a Report and Recommendation (Doc. #117) in which she recommends
that this Court compel Mr. Barlow to provide testimony regarding matters he previously
testified about. Mr. Barlow filed a timely objection to the R&R under 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b)(2).
In her R&R, the Magistrate Judge found that "Mr. Barlow waived his right to
assert the Fifth Amendment when he freely provided testimony pursuant to [Petitioner's]
original subpoena on January 31,2013, and recommended that he be compelled to
answer questions related to: "(a) the names and ages of the individuals that worked at
SUPR; (b) the voicemail that was distributed by the 'bishop's office,' (c) the nature and
extent of Paragon and the FLDS church's involvement with the harvest; and (d) all
related follow-up questions". R&R at 3.
Mr. Barlow objects to the Magistrate Judge's finding in the R&R that he
improperly invoked or waived his Fifth Amendment privilege. He asserts that because
waiver is limited to a particular proceeding and because his testimony was concluded,
and not suspended, the January and September hearings are separate proceedings.
He also contends that there can be no blanket waiver of the privildge.
Having carefully reviewed de novo those matters to which Mr. Barlow objects,
the Court agrees with the Magistrate Judge that because a second deposition following
a motion to compel is properly characterized as a continuation of the first deposition
and, therefore, viewed as a single proceeding, Mr. Barlow by not invoking the privilege
at his January 31,2013 depOSition, waived his privilege on the same topics at his

·.

September 27,2013 deposition.
The Court accepts the R&R (Doc. #117) and adopts the findings set forth
therein.

Petitioner's Motions to Enforce Subpoena Against Dale Barlow (Doc. #46 &

#103) are granted.
IT IS THEREFORE ORDERED:
1. Dale Barlow shall give testimony on all subject matters that he previously
testified about on January 31, 2013, including questions related to (a) the names and
ages of the individuals that worked at SUPR; (b) the voicemail that was distributed by
the "bishop's office"; (c) the nature and extent of Paragon and the FLDS Church's
involvement with the harvest; and (d) all related follow-up questions.
2. The running of the applicable statute of limitations under the Fair Labor
Standards Act continues to be tolled from January 31,2013, until Petitioner notifies the
Court that Mr. Barlow has complied with this Order.
DATED this tLtfJay of

J,.r ,2014.
BY THE COURT:

/f.__ ".-i~
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT