Roberts v. Integrated Mail Industries Inc

Filing 27

ORDER signed by Judge Pamela Pepper on 1/14/2019. Plaintiff to turn over unredacted telephone records to defendant. See order for details. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSEPH ROBERTS, Individually, and
on behalf of those similarly situated,
Plaintiffs,
Case No. 18-cv-699-pp
v.
INTEGRATED MAIL INDUSTRIES, INC.,
Defendant.
______________________________________________________________________________
ORDER REQUIRING PLAINTIFF TO PROVIDE
UNREDACTED TELEPHONE RECORDS
______________________________________________________________________________
I. BACKGROUND
The plaintiffs’ original complaint in this putative class action suit alleged
illegal rounding, improper deduction of meal breaks and unpaid interruption of
meal breaks, in violation of the Fair Labor Standards Act (29 U.S.C. §201, et
seq.) and Wis. Stat. §109.03. Dkt. No. 1. After the court denied the defendant’s
motion to dismiss, dkt. no. 18, and over a month after the defendant had
answered the original complaint, dkt. no. 20, the plaintiffs (timely, by the
deadline the court had set) amended the complaint, dkt. no. 23. The amended
complaint alleges (in addition to the claims raised in the original complaint),
that the defendant also “sometimes adjusted the Plaintiffs’ time clock punches
because it believed the Plaintiffs were not working for short periods of time
during their scheduled work hours.” Dkt. No. 23 at ¶17. The plaintiffs assert
that the defendant “has never either prohibited its employees from taking short
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breaks during their scheduled shift times, nor ever informed its employees that
they could be disciplined for taking unauthorized short breaks during their
shift times.” Id. at ¶18. The plaintiffs concluded this allegation by asserting
that “between the times when they punched in and punched out, the Plaintiffs
would either walk between the time clock and their work stations or engaged in
other work activities for the primary benefit of [the defendant].” Id. at ¶19.
These allegations necessarily call into question what the plaintiffs were doing
between the punch-in and punch-out times—whether they were, in fact, either
walking to/from work stations or engaging in “other work activities for the
primary benefit” of the defendant.
On January 11, 2019, the parties contacted the court and indicated that
they had a disagreement about a discovery issue. The court was available for a
phone hearing when they called. During the hearing, defense counsel informed
the court that the defense had made a discovery demand for the named
plaintiff’s phone records—calls, texts and mobile usage—on November 8, 2018.
The named plaintiff had objected unless the parties could hammer out a
limited authorization. The parties met and conferred on January 2, but the
authorization that resulted did not provide for cell tower site data or data as to
the amount of mobile usage. Defense counsel asserted that the authorization
also did not provide for the phone records for all the hours that the named
plaintiff worked. Finally, the authorization indicated that the service provider
would give the records to counsel for the plaintiff first. Defense counsel
expressed concern that, with the named plaintiff’s deposition scheduled for
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January 18, 2019, the defense was not going to have the records it needed to
be able to depose the plaintiff.
Plaintiff’s counsel told the court that the plaintiff did not have access to
his records. His service provider is Verizon. Counsel said he was going to have
to subpoena the records from Verizon. Defense counsel questioned this
assertion, arguing that someone he knew had Verizon as a provider, and that
that person could access his mobile records by going to Verizon’s web site and
entering his user name and password. Nonetheless, the plaintiff’s attorney
asserted that the plaintiff did not have these records. Counsel stated that the
plaintiff was willing to include in the subpoena request a request for cell tower
site data and a request for non-data usage record. As for working hours, the
plaintiff’s counsel said that he was requesting records for usage between the
hours of 6:30 a.m. and 8:30 p.m., because the plaintiff would not have been
working outside of those hours.
Defense counsel interjected that the defendant’s records showed some
occasions when the plaintiff had clocked in as early as 5:15 a.m., and times
when he’d clocked out as late as 10:00 p.m. Plaintiff’s counsel responded that
that had been in 2016, and that the plaintiff wasn’t seeking damages for that
year. Defense counsel responded that the complaint sought damages back to
May of 2016. The court interrupted counsels’ argument with each other and
asked plaintiff’s counsel to address the issue of why he was asking to have the
documents sent to him first, rather than asking for simultaneous disclosure.

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Plaintiff’s counsel told the court that originally the plaintiff had agreed
that all his phone records could be released to both parties. Four or five days
earlier, however, the plaintiff had expressed to his lawyer concerns about his
privacy rights. First, counsel said, the plaintiff did not believe that the
defendant was entitled to see records of data relating to communications or
activities that did not take place during his work hours. Second, the plaintiff
had told his counsel that he’d like the chance to see for himself whether any of
the communications or activities that had taken place during work hours had
been personal; if so, he would concede that they were personal, but he wanted
to redact them so that the defendant would not be able to determine the
identity of people with whom he’d been communicating, or the nature of what
he’d been doing.
The court wondered why, if what the subpoena requested was raw data
such as numbers called, numbers calling in, and minutes of data usage, the
plaintiff believed that the defendant could find out the identities of people with
whom he’d been communicating, or what he’d been doing. Counsel responded
that the defendant could conduct reverse look-ups on numbers or conduct
other investigations of the raw data.
The court expressed concern that having the records go to the plaintiff
for redaction before the defendant could see them would open a can of worms,
in which the defendant would (justifiably) question whether the redactions were
warranted, and whether the plaintiff may have redacted discoverable
information. After some further back and forth, the court told the parties that it
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would take the issue under advisement but would get them a decision shortly
(given the proximity of the plaintiff’s deposition).
II. ANALYSIS
The scope of federal discovery is broad. Federal Rule of Civil Procedure
26(b)(1) allows parties to obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the
needs of the case, considering the importance of the
issues at stake, the amount in controversy, the parties’
relative access to relevant information, the parties’
resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Rule 26(b)(2)(C) allows the court to limit the extent of discovery only if it is (a)
cumulative or duplicative, (b) can be obtained from some other source that is
more convenient, less burdensome or less expensive, (c) the party asking for
the discovery has had ample opportunity to obtain the information in other
ways through discovery, or (d) the discovery is outside the (broad) scope of Rule
26(b)(1).
The defendant’s request for the phone records falls well within the scope
of Rule 26(b)(1). The phone records are not privileged. They are relevant to the
plaintiff’s claim that the defendant docked him for personal activity when, in
fact, he was either walking to and from his work station or performing work
that was “primarily” for the defendant’s benefit. The plaintiff already should
have access to this information; the defendant does not. (Plaintiff’s counsel
never explained why the plaintiff could not obtain his own phone records from
his own provider through his own account. The court understands that a
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customer might not be able to get cell tower location data by accessing his
online account, but it is not clear why one could not get the list of outgoing and
incoming calls by accessing one’s account online.) Information about what the
plaintiff was doing on his phone during work hours is important in resolving
the question of whether, as he has asserted, he was working (or walking to or
from his work station) during all work hours. The court cannot see that the
phone data is cumulative or duplicative. The least burdensome and expensive
way to get the data is to get it from either the plaintiff’s own account or from
the service provider.
So—the defendant is entitled to the records. The only question is whether
the plaintiff should get the records first and be able to redact them before
forwarding them to the defendant. The plaintiff has provided only one rationale
for departing from the usual simultaneous disclosure practice. The plaintiff has
asserted that he has a privacy right in data usage that didn’t take place during
work hours, and that if he was conducting personal activities on the phone
during work hours, he has a right to keep the nature of that activity private.
This argument ignores the fact that it is the plaintiff who has put his
activities at issue. The plaintiff added these allegations to the amended
complaint. It is he who has disputed the defendant’s (alleged) belief that the
plaintiffs were engaging in personal activities during work hours. The plaintiff
cannot have it both ways. He cannot argue that he was not engaging in
personal activity during work hours, but demand to be the sole source for
determining what activity was personal, and whether it took place during work
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hours. In fact, during the hearing on January 11, plaintiff’s counsel implicitly
conceded that the plaintiff may have been conducting personal activity during
work hours, by indicating that if the plaintiff reviewed the record and saw
personal activities during work hours, he would admit it, but wanted to redact
the nature of the activity.
The plaintiff has the right to decide what claims he wishes to put at
issue. Once at issue, however, the defense has the right to see what the
plaintiff sees in determining whether there are facts to support the plaintiff’s
claims. The court will not allow the plaintiff to receive and redact the records
prior to providing them to the defense. The defense is entitled to the records it
has requested, and the plaintiff must turn them over unredacted.
Regarding time frame (whether records from 6:30 a.m. to 8:30 p.m.
would cover all hours the plaintiff had worked): In the portion of the December
13, 2018 amended complaint that defines the parties, the plaintiffs are defined
as people who were employed by the defendant as hourly employees “during
the time period on or after May 4, 2015.” Dkt. No. 23 at ¶6. Under the class
allegations, the amended complaint defines the putative Rule 23 class as “[a]ll
persons who worked as hourly employees for [the defendant] during the time
period on or after May 4, 2016.” Dkt. No. 23 at ¶31. The court does not know
whether one of these dates is a typo—whether the plaintiffs meant May 2015 or
May 2016. Either way, the complaint says nothing about limiting damages to
2017 and later. Nor does the complaint explain the significance of the May 4
date or explain when the named plaintiff began working for the defendant.
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So—the amended complaint puts at issue phone records for either May
4, 2015 and later, or May 4, 2016 and later. Either way, if in 2015 or 2016
(whichever is the relevant year), the plaintiff clocked in before 6:30 a.m. or after
8:30 p.m., the defendant is entitled to phone records for the entire range of
times the plaintiff worked.
As noted above, the parties informed the court that the named plaintiff’s
deposition was scheduled for this Friday, January 18, 2019. The defendant
wishes to have these records available to use during the deposition. The court
leaves it to the parties to work together in a professional manner to determine
whether the deposition should be rescheduled.
The court ORDERS that the plaintiff shall turn over to the defendant his
telephone records—including call information, text information, mobile usage,
cell tower site data and non-data usage—without redaction. The subpoena (or
any other mechanism used to request the data from the service provider) shall
call for the information to be provided to both sides simultaneously. The
plaintiff shall provide the information for the entire period referenced in the
complaint, and for the full range of hours worked from the earliest clock-in
time during the relevant period to the latest clock-out time.
Dated in Milwaukee, Wisconsin this 14th day of January, 2019.
BY THE COURT:
_______________________________________
HON. PAMELA PEPPER
United States District Judge

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