Drake, Andrew v. Aerotek, Inc.
Filing
37
OPINION AND ORDER granting 33 Motion to Compel. The parties have until 1/6/2015 in which to propose language for a protective order. Defendant Aerotek, Inc. must serve full and complete responses to plaintiff's discovery requests no later than noon on 1/30/2015. Signed by District Judge Barbara B. Crabb on 12/30/14. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANDREW DRAKE,
on behalf of himself and a class of employees
and/or former employees similarly situated,
Plaintiff,
OPINION AND ORDER
14-cv-216-bbc
v.
AEROTEK, INC.,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this proposed class action, plaintiff Andrew Drake alleges that he and other
employees like him have worked overtime for defendant Aerotek, Inc. without appropriate
pay under Wisconsin wage and hour laws. Before the court is plaintiff’s motion to compel
discovery related to putative class members, current and former managers of class members,
current and former office directors and certain documents in defendant’s possession.
Because plaintiff has shown that these requests are reasonably calculated to lead to
information relevant to plaintiff’s arguments for class certification and defendant has not
shown that the requests are unduly burdensome, plaintiff’s motion will be granted.
OPINION
In his interrogatories and requests for documents, plaintiff asked defendant the
identity and contact information for former and current employees in the same or similar
1
position as plaintiff (limited to those employed in Wisconsin between March 21, 2012 and
present), those employees’ time records and related documents (same limitations), the
identity of former and current managers (same limitations) and documents or emails
containing the words “overtime,” “minimum wage,” “FLSA” or “Fair Labor Standards Act”
(limited to those created in the last five years). Defendant objected to these requests and,
after one exchange of letters on the matter, plaintiff filed his motion to compel.
Under Fed. R. Civ. P. 26(b)(1), parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and, for good cause, the
court may order discovery of any matter relevant to the subject matter involved in the
action.
A. Putative Class Member Information
Plaintiff argues that his request for information regarding putative class members is
relevant to his ability to show typicality and commonality, especially because he anticipates
that defendant will take the position that it has no policy permitting overtime work without
proper pay. Defendant contends that information and documents related to prospective
plaintiffs are not relevant before class certification. In support, it cites cases in which district
courts have refused to permit discovery on putative class members’ identities and contact
information before certifying the class action. E.g., Swelnis v. Universal Fidelity, No.
13-cv-104, 2014 U.S. Dist. LEXIS 53058 (N.D. Ind. Apr. 17, 2014) (holding plaintiff not
entitled to names and contact information for potential class members because plaintiff
2
needed information to show numerosity only, for which names and contact information
unnecessary); Charles v. Nationwide Mutual Insurance Co., No. 09-CV-94, 2010 WL
7132173, at *4-5 (E.D.N.Y. May 27, 2010) (acknowledging that pre-certification discovery
is often necessary but denying it in case before it because plaintiff had failed to explain why
it was relevant in his case); Bird Hotel Corp. v. Super 8 Motels, Inc., No. Civ. 06-4073,
2007 WL 404703, at *2-3 (D.S.D. Feb. 1, 2007) (holding that “[a] certain amount of
discovery is essential in order to determine the certification issue and the proper scope of a
class action” but finding no need to contact individual members because all were subject to
the same fee at issue in litigation); Robbins v. NCO Financial Systems, Inc., No. 06-CV-116,
2006 WL 3833352, at *5 (N.D. Ind. Dec. 12, 2006) (denying motion to compel because
plaintiff identified numerosity as only relevant reason for discovery); Dziennik v. Sealift,
Inc., No. 05-CV-4659, 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) (same); Palmer
v. Stassinos, No. 04-CV-3026, 2005 WL 3868003, at *4 (N.D. Cal. May 18, 2005)
(denying motion to compel names and addresses out of privacy concerns and because
defendant gave plaintiff names of number of potential class members, which plaintiff was
seeking).
As these cases show, in some situations access to putative class members’ information
is unnecessary and even intrusive, such as when a plaintiff is seeking information for
numerosity purposes only. In those circumstances, the district court has wide discretion to
limit the scope of discovery. Tracy v. Dean Witter Reynolds, Inc., 185 F.R.D. 303, 304-05
3
(D. Colo. 1998) (“the recognized need for pre-certification discovery is subject to limitations
which may be imposed by the court . . . .”).
However, in cases like this one, some discovery may be necessary before class
certification. In order to show that this case meets the requirements for certification under
Fed. R. Civ. P. 23, and particularly the requirements of typicality and commonality, plaintiff
must contact individual class members. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
363 n.20 (1978) (“There may be instances where this information [(class members’ names
and addresses)] could be relevant to issues that arise under Rule 23, . . . or where a party has
reason to believe that communication with some members of the class could yield
information bearing on these or other issues.”) (internal citation omitted); Sjoblom v.
Charter Communications, LLC, No. 3:07-cv-0451-bbc, 2008 WL 4276928, at *2 (W.D.
Wis. Jan. 4, 2008) (“The identity of defendant’s employees and employment practices
related to those employees are reasonably likely to yield support for plaintiff’s class
allegations.”); Swelnis, 2014 WL 1571323, at *3 (“This information [(the names and
addresses of potential class members)] may be discoverable, however, if it is relevant for
Federal Rule of Civil Procedure 23 purposes or where there is good reason to think that
communication with class members might yield information bearing on those Rule 23
issues.”); Johnson v. Bankers Life & Casualty Co., No. 13-cv-144-wmc, 2013 WL 5442374,
at *2 (W.D. Wis. Sept. 30, 2013) (“plaintiff argues . . . that discovery from [defendant’s]
customers who have purchased the annuity with the rider at issue would assist plaintiff in
showing commonality and typicality as required for class certification under Rule 23. The
4
court agrees.”) (footnote omitted); Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 554
(N.D. Ill. 2008) (“Because Plaintiffs are entitled to structure their suit to proceed as a class
under Section 216(b), and because they may proceed with limited discovery prior to
provisional certification, Defendants must comply with Plaintiffs’ Interrogatories and
Requests for Production of Documents pertaining to the addresses and phone numbers of
similarly situated employees.”).
Defendant argues that even if plaintiff is entitled to contact putative class members
for the purpose of preparing for class certification, he does not need all their names and
contact information because plaintiff “surely knows a number of current and former Aerotek
recruiters, and he is free to contact them . . . ” Dft.’s Br, dkt. #35, at 7. Although I agree
that plaintiff may be able to find some of the information he seeks by contacting fewer than
all of the putative class members, Swelnis, 2014 WL 1571323, at *3, defendant’s suggestion
that plaintiff is able to contact some class members without their names and contact
information is mere speculation. Further, defendant makes no suggestion regarding an
appropriate subset of putative class members that plaintiff might contact. Therefore, I
conclude that plaintiff is entitled to discovery of names and contact information of all
putative class members.
Finally, defendant states that it is unduly burdensome to produce time and call
records for the approximately 270 class members because, it says, the information is
irrelevant at this stage of the proceedings and inappropriate for class actions. However, I
conclude that the information sought by plaintiff is relevant to class certification. Plaintiff
5
has stated his intention to allege that he and others like him worked overtime without proper
pay; the time and call records of employees like plaintiff are clearly relevant for determining
the scope of the class and whether or when other employees worked overtime without proper
pay. Defendant does not explain why production of these materials would be unduly
burdensome for any other reason and I see none.
Accordingly, with one important caveat, I will grant plaintiff’s motion as to his
interrogatory no. 1 and requests no. 1, 11 and 15, in which plaintiff requests the identity,
contact information and time and call records for putative class members. Defendant raises
valid concerns about the privacy of the putative class members and the need to take
precautions to prevent improper use of the class members’ information, so I will enter a
protective order that limits plaintiff’s use of the contact information to the purposes of this
litigation. Acevedo, 248 F.R.D. at 554 (granting plaintiff’s motion to compel discovery of
potential class members’ addresses and phone numbers over privacy objections but imposing
protective order). The parties have until January 6, 2015 in which to propose language for
the protective order.
B. Managers and Directors
Plaintiff argues that his request for the identities of managers and directors is relevant
at this stage of the litigation because any evidence that the managers and directors engaged
in policies or practices requiring their employees to work overtime without proper pay is
evidence that plaintiff’s experience was typical of the class and that the litigation would
6
involve questions common to all class members. Although defendant is correct that plaintiff
cannot contact the managers directly (he must work through their corporate counsel),
plaintiff needs the managers’ and directors’ names in order to notice them for depositions.
Accordingly, plaintiff’s motion will be granted with respect to plaintiff’s interrogatories 2 and
3 as well.
C. Documents
Plaintiff has requested documents created by defendant within the last five years that
contain the terms “overtime,” “minimum wage,” “FLSA” or “Fair Labor Standards Act.”
Documents with these words may be evidence of a company policy or practice related to
overtime work. Defendant says plaintiff’s request would entail a search of the emails for
thousands of employees from over the past five years, and thus the request is overly broad
and unduly burdensome. With today’s technology, it is difficult to perceive why conducting
an electronic search for four phrases is unduly burdensome even if the search includes a
significant number of documents. Without more explanation from defendant as to why such
a search would impose an inordinate burden, I cannot conclude that plaintiff’s request is too
broad. Accordingly, plaintiff’s motion will be granted with respect to request no. 24.
D. Other Matters
Defendant argues that plaintiff ignored his obligation to make a good faith attempt
to resolve the discovery dispute before bringing the motion to compel. After defendant
7
failed to produce the requested discovery, plaintiff sent defendant a deficiency letter.
Defendant responded by again refusing to provide the discovery sought but saying that it
would be amenable to holding a telephone conference on the subject. Defendant argues that
plaintiff never attempted to call defendant to resolve the issue and thus failed to make a
good faith attempt at resolution. In effect, defendant is suggesting that it may avoid all
motions to compel by ending its letters with offers to speak by telephone. Plaintiff sent a
letter to resolve defendant’s objections and defendant responded that it would continue to
object. Nothing in the Federal Rules of Civil Procedure or this court’s preliminary pretrial
conference order required plaintiff to do anything more.
Further, I note that defendant suggests in a footnote that plaintiff should bear some
of the costs of discovery. Perhaps so, but more than a suggestion in a footnote is required
to order an opposing party to bear costs. Because defendant does not explain this argument,
it has forfeited it. To the extent defendant raised arguments in footnotes and I have not
otherwise addressed them in this opinion, I deem them forfeited for defendant’s failure to
properly raise and develop them.
ORDER
IT IS ORDERED that plaintiff Andrew Drake’s motion to compel discovery, dkt.
#33, is GRANTED. The parties have until January 6, 2015 in which to propose language
for a protective order. Defendant Aerotek, Inc. must serve full and complete responses to
8
plaintiff’s discovery requests no later than noon on January 30, 2015.
Entered this 30th day of December, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?