Paulino v. Dollar General Corporation et al
Filing
92
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION denying 83 Emergency MOTION for Reconsideration re: 78 MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION 39 TO COMPEL AND AWARDING REASONABLE EXPENSES AND OVERRULING D EFENDANTS' 72 OBJECTIONS. The Court AFFIRMS its April 25, 2013 78 Memorandum Opinion and Order and declines to reconsider its opinion further. Defendants are ordered to produce the names and contact information of former employees within FOURTEEN (14) days of this Order. Signed by District Judge Gina M. Groh on 6/5/2013. (cwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
STEPHANIE N. PAULINO,
Individually and as Class Representative,
Plaintiff,
v.
CIVIL ACTION NO. 3:12-CV-75
(JUDGE GROH)
DOLLAR GENERAL CORPORATION,
a foreign corporation, and DOLGENCORP,
LLC, a foreign corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR RECONSIDERATION
On May 9, 2013, Defendants filed an “Emergency Motion for Partial Reconsideration
of Order Requiring Disclosure of Names and Contact Information.” [ Doc. 83]. On April 25,
2013, the Court issued its Memorandum Opinion and Order granting Plaintiff’s Motion to
Compel, overruling Defendants’ Objections, and awarding reasonable expenses. The
Court’s April 25, 2013 Memorandum Opinion and Order is not a final judgment or order in
this case, but it is an interlocutory ruling. On May 13, 2013, Plaintiff filed her response. On
May 14, 2013, Defendants filed a reply.
The Fourth Circuit Court of Appeals recognized that “[m]otions for reconsideration
of interlocutory orders are not subject to the strict standards applicable to motions for
reconsideration of a final judgment. This is because a district court retains the power to
reconsider and modify its interlocutory judgments, including partial summary judgments,
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at any time prior to final judgment when such is warranted.” Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003) (citations omitted). This power is
discretionary. See Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S.1, 12,
103 S. Ct. 927 (1983) (stating that “every order short of a final decree is subject to
reopening at the discretion of the district judge.”). The Federal Rules of Civil Procedure do
not provide a standard for reconsideration of interlocutory orders, but state that they are
“subject to revision at any time before the entry of judgment.” FED. R. CIV. P. 54(b).
However, “[p]ublic policy favors an end to litigation and recognizes that efficient operation
requires the avoidance of re-arguing questions that have already been decided.” Akeva,
L.L.C. v. Adidas Am., Inc., 385 F. Supp. 2d 559, 565 (M.D.N.C. 2005).
In this case, Defendants “seek the Court’s reconsideration of its Order on the limited
issue that Defendants provide former employee names and contact information . . . .” ([Doc.
83], p. 1). Defendants argue that if they are “required to produce names and contact
information of the former employees, it will work manifest injustice to the Defendants and
former non-party employees due to (1) the irreversible nature of the production of names
and contact information, and (2) the privacy interests of non-party employees.” ([Doc. 83],
p. 2).
Defendants raised similar arguments in their Objections [Doc. 72]. In fact, almost
all of the cases cited in Defendants’ Motion for Partial Reconsideration were also cited in
Defendants’ Objections. Defendants rely on Raddatz v. Standard Register Co., 177
F.R.D. 446, 447-48 (D. Minn. 1997), to argue that even with a protective order, courts must
engage in a balancing test, weighing Plaintiff’s need for former employees’ contact
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information against the invasion of privacy of the nonparties and the potential harm to
Defendants, because the former employee’s personal information will be divulged, even
if not publicized. In Raddatz, Plaintiff sought discovery of the entire personnel file of all
Defendant’s employees who have held the position of a district sales manager for a ten
year period. In that case, the court found that ten years was not a reasonable time period,
and it limited the time period to four years. Id. at 448. The court also noted its concern with
ordering the disclosure of an employee’s entire personnel file, which often includes
“‘addresses, phone numbers, income information, medical histories, employment discipline,
criminal records, and other sensitive personal information having little or no relevancy to
the issues in litigation.’” Id. at 447 (citing Dahdal v. Thorn Americas, Inc., 1997 WL
599614 *1 (D. Kan. Sept. 15, 1997)). Then, the court limited the scope of production by not
requiring the production of the entire personnel file, but requiring disclosure of four
categories of information that were particularly relevant to Plaintiff’s age discrimination
claim, including contact information, ages at time of termination, dates of birth, reasons for
termination, and salaries at time of termination. Id. at 448.
Upon reviewing the Raddatz case for a second time, the Court notes that its April
25, 2013 decision is similar. First, like the Raddatz court, this Court limited the scope of
discovery to a five year period, which is similar to the four year period imposed in Raddatz.
Second, also like the Raddatz court, this Court did not require the production of the entire
personnel file.
Instead, the Court required the production of certain categories of
information including contact information of employees who were voluntarily and
involuntarily terminated as well as termination dates, reasons for termination, date of final
payments, and documentation of personnel action. This information is relevant to Plaintiff’s
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Wage Payment and Collection Act claim. Third, Defendants only contest the Court’s order
requiring the production of former employees’ names and contact information. Like the
Raddatz court that ordered the production of the employees’ names and contact
information, this Court also ordered the production of former employees’ names and
contact information. Accordingly, the Raddatz decision does not persuade this Court to
reconsider its April 25, 2013 Order.
Defendants also rely on Artis v. Deere & Co., 276 F.R.D. 348, 350 (N.D. Cal. 2011).
In Artis, Plaintiff sought job applications and other sources of names, addresses, telephone
numbers, and e-mail addresses (“contact information”) of putative class members and
percipient witnesses for her putative class action against Defendants under Title VII of the
1964 Civil Rights Act and the California Fair Employment & Housing Act. Id. The court
noted that “[t]he disclosure of names, addresses, and telephone numbers is a common
practice in the class action context.” Id. at 352 (citations omitted). Indeed, the court
performed a balancing test and ordered that Defendants produce the putative class
members’ contact information. Id. at 353. The court noted that “[w]hile the putative class
members have a legally protected interest in the privacy of their contact information and
a reasonable expectation of privacy the information sought by Plaintiff is not particularly
sensitive.” Id. at 354. The court also stated that “the parties can craft a protective order that
limits the use of any contact information to the parties in this litigation and protects it from
disclosure.” Id.
In this case, unlike in Artis, a protective order is already in place that limits the use
of sensitive information to the parties and their attorneys in this litigation and protects it
from disclosure. Specifically, the protective order notes that “both personal and job-related
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employee information including any documents regarding payroll-related information”
should be designated as “confidential” by the party or attorney. ([Doc. 27], p.2). This
information “should not be disclosed other than in connection with this action and pursuant
to this Protective Order.” ([Doc. 27], p. 2). Even the Artis court noted that the disclosure
of contact information “is not particularly sensitive.” 276 F.R.D. at 354.
Defendants argue that Plaintiff must have a compelling need for the information that
outweighs the important privacy interests involved and the irreparable harm to Defendants
with regard to the potential for expanded and protracted litigation. ([Doc. 83], p. 3).
Disclosure of the names and addresses of putative class members is appropriate in this
context. First, in this case, the analysis of whether common questions of law or fact exist
and whether Plaintiff’s claims are typical of those of putative class members is largely factdriven. Second, the contact information is necessary for Plaintiff to meet the commonality
requirement. Third, the contact information is sufficiently protected through the Agreed
Protective Order. See Doyon v. Rite Aid Corp., 279 F.R.D. 43, 50 (D. Maine 2011)
(ordering production of contact information so long as a protective order is entered
safeguarding class members’ privacy interests); Youngblood v. Family Dollar Stores,
Inc., 2011 WL 1742109, *4, Nos. 09 Civ. 3176 (RMB)(FM), 10 Civ. 7580 (RMB)(FM)
(S.D.N.Y. Jan. 5, 2011) (ordering production of contact information of putative class
members as it was relevant and necessary for Plaintiff to prove the commonality
requirement for class certification); Khalilpour v. CELLCO Partnership, 2010 WL
1267749, *3 (N.D. Cal. Apr. 1, 2010) (stating that “the disclosure of names, addresses, and
telephone numbers is common practice in the class action context because it does not
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involve revelation of personal secrets, intimate activities, or similar private information . .
. .” and ordering disclosure of names, addresses, and telephone numbers). Therefore, the
Court finds that Plaintiff’s needs outweigh Defendants’ concerns. Plaintiff has shown a
legitimate need for the requested information to determine whether common questions of
law or fact exist and whether her claims are typical. Also, Plaintiff seeks the information
of potential plaintiffs rather than disinterested third parties. Thus, as the Court previously
ordered, Defendants must disclose the names and contact information of former
employees, but the protective order in place should sufficiently address any privacy
concerns.
Last, Defendants request that the Court “place parameters around what Plaintiff may
do with the name and contact information in the event the Defendants are successful in
defeating class certification, or there is a final ruling on the issue of class certification or the
merits.” ([Doc. 83], p. 4). First, Defendants may utilize the protections provided in the
Protective Order by marking the documents containing the contact information as
“Confidential.” Id.
Second, the Protective Order states that “[t]he CONFIDENTIAL
materials described above may be used only for purposes of this litigation including
appeals, and not for promotional or competitive or other purposes . . . .” Id. at 2. Therefore,
the terms of the protective order applies to the disclosure of the contact information at
issue. The Court also ORDERS Plaintiff’s counsel to inform each potential putative class
member contacted by Plaintiff that he or she has a right not to talk to counsel and that, if
he or she elects not to talk to counsel, Plaintiff’s counsel will terminate the contact and not
contact them again. The Court FURTHER ORDERS Plaintiff’s counsel to keep a list of all
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individuals contacted, and preserve that list so that it may be filed with the Court along with
Plaintiff’s certification motion.
Accordingly, the Court AFFIRMS its April 25, 2013 Memorandum Opinion and Order
and declines to reconsider its opinion further. Defendants are ordered to produce the
names and contact information of former employees within FOURTEEN (14) days of this
Order.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and/or
pro se parties herein.
DATED: June 5, 2013
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