DeKeyser v. Thyssenkrupp Waupaca, Inc.
DeKeyser v. Thyssenkrupp Waupaca, Inc.
2015 WL 10937559 (E.D. Wis. 2015)
April 10, 2015
Griesbach, William C., United States District Judge
Summary
The court granted Plaintiffs' motion to compel Defendant Waupaca to produce an electronic database of material safety data sheets (MSDSs) in a format that would allow Plaintiffs to use the information more easily and in a manner more akin to how Waupaca is able to use it. Waupaca must now produce all data and information maintained in its databases relating to the MSDSs in an electronic, organized and usable format, subject to the protective order previously entered in this case.
Ryan Dekeyser, Thomas Cooper, Harley Granius, and Carlos Lopez, on behalf of themselves and others similarly situated, Plaintiffs,
v.
Thyssenkrupp Waupaca, Inc., d/b/a Waupaca Foundry, Inc., Defendant
v.
Thyssenkrupp Waupaca, Inc., d/b/a Waupaca Foundry, Inc., Defendant
Case No. 08-C-0488
Signed April 10, 2015
Counsel
John Gordon Rudd, Jr., Anne T. Regan, Zimmerman Reed PLLP, Minneapolis, MN, Kelly A. Lelo, T. Joseph Snodgrass, Shawn M. Raiter, Larson King LLP, St. Paul, MN, Patricia Agnes Bloodgood, Zwerling Schachter & Zwerling LLP, New York, NY, for Plaintiffs.Joseph Louis Olson, Paul E. Benson, Mitchell W. Quick, Michael Best & Friedrich LLP, Milwaukee, WI, for Defendant.
Griesbach, William C., United States District Judge
DECISION AND ORDER GRANTING MOTION TO COMPEL
*1 Plaintiffs Ryan DeKeyser, Thomas Cooper, Harley Granius, and Carlo Lantz have moved to compel an electronic database of material safety data sheets (MSDSs) maintained by Defendant ThyssenKrupp Waupaca, Inc. (Waupaca). Although Waupaca has already produced the MSDSs themselves, Plaintiffs essentially request that Waupaca reproduce the MSDSs, as well as other information contained in the database, in a format that would allow Plaintiffs to use the information more easily and in a manner more akin to how Waupaca is able to use it. Waupaca opposes the motion on the grounds that the information sought is not relevant, that Plaintiffs' request exceeds what is permitted under the Federal Rules of Civil Procedure, and that the request places an undue burden on Waupaca. As explained below, however, I find Waupaca's arguments unpersuasive and Plaintiffs' motion to compel will be granted.
I. BACKGROUND
Federal regulations require chemical manufacturers provide material safety data sheets to downstream manufacturers like Waupaca. The MSDSs are required to list the physical characteristics and hazards of the chemicals, the symptoms caused by overexposure, and any preexisting medical conditions aggravated by exposure. In addition, the data sheets must recommend safety precautions and first aid and emergency procedures and provide a source for additional information. Both chemical manufacturers and downstream manufacturers are required to make the data sheets available to their employees and to provide training on the dangers of the particular hazardous chemicals found at each workplace.
Waupaca maintains a database of MSDSs consisting of a part containing information about chemicals currently in use at its plants and one part with information about chemicals that are no longer in use at the plants. The database is kept in Lotus Notes version 8.5 and is accessible to production employees on company computers on the floors of Waupaca's plants. When new products or chemicals are used in the plant production processes, Waupaca safety personnel evaluate and review the literature that accompanies the product or chemical and input several pieces of information into the database, including a generic description for the chemical's use in operations, a hazard rating relating to the health, flammability and reactivity hazards of the chemical, and “target organs” identifying which parts of the human body may be adversely affected by exposure to the chemical. (Pls.' Mem. at 2, ECF No. 514) (citing letter from Waupaca). Waupaca personnel also input some additional data about the chemicals, such as what workers use the chemicals, what version of the MSDS is most current, when the product started to be used in the plant, when the MSDS information was entered into the database, and when the product was removed from the plant and its MSDS archived. (Id. 2–3.)
To make the database useful, the database permits the worker to quickly review the hazard ratings and other information inputted by Waupaca. The database permits the worker to then pull up the actual MSDS provided by the vendor for the chemical or product under review. The current portion of the database contains about 2,500 chemical products and the archive portion of the database contains over 6,800 chemical products.
*2 In 2009, in response to Plaintiffs' document request, Waupaca produced electronic copies of the MSDSs in “TIFF” and “Text” files. According to Plaintiffs' attorney, review of Waupaca's MSDS production proved “extremely difficult” due to the large quantity of duplicate data sheets, the absence of any organization, and small font-size. (Snodgrass Aff. ¶ 5, ECF No. 515.) In order to organize the documents, in 2011, Plaintiffs reproduced the MSDS documents in hard-copy, which resulted in approximately eleven bankers boxes of MSDS documents. Plaintiffs also maintain that Waupaca's MSDS production did not include all of the data fields inputted by Waupaca safety personnel described above.
Despite their difficulties reviewing the data, Plaintiffs categorized many MSDSs as instructing individuals to change contaminated work clothing and shower on-site at Waupaca's foundries. At the heart of this case is whether the time Plaintiffs spent changing clothes and showering in on-site facilities Waupaca provided at its plants is compensable time under the Fair Labor Standards Act (FLSA). Plaintiffs relied on many of the MSDSs Waupaca produced in a motion for summary judgment filed in 2012. Waupaca argued in opposition to Plaintiffs' motion, relying on the declaration of its Environmental Coordinator, that many of the MSDSs Plaintiffs cited related to chemicals that are no longer used by Waupaca, were used only infrequently, were used only in defined areas of Waupaca's plants by specialized personnel, and related to exposure circumstances that did not typically exist at Waupaca's plants. (Plaintiffs' motion was denied and Waupaca's cross-motion was granted, a decision that was itself reversed and remanded, as explained below.) Plaintiffs subsequently requested the documents the Environmental Coordinator relied upon in formulating his declaration. Plaintiff was interested in whether Waupaca has documents or information that would indicate what products and chemicals are used in the specific departments within each plant. (ECF No. 515-2 at 2.) On July 16, 2014, Waupaca's counsel responded:
Waupaca does not have a system whereby it can exactly match the chemicals/products to specific departments. We do have two inexact methods for roughly tracing how chemical/products are ordered by department. One method is based upon SAP ordering queries ... and the other is based upon materials that appear on warehouse lists, which are grouped together loosely by department.
(Id. at 3.) The latter method involves using the MSDS database. Although he answered Plaintiffs' questions, Waupaca's counsel stated that “Waupaca [was] in no way agreeing to produce any of these materials[ ]” because he “fail[ed] to see how another widespread production of MSDSs can lead to information that is relevant to any issue in this case.” (Id.)
On September 16, 2014, counsel for Plaintiffs sent a letter to counsel for Waupaca that set forth a very detailed proposal regarding the production of the MSDS database. Plaintiffs' letter provided instructions for how to produce the electronically stored information (ESI) subject to the request: Plaintiffs requested a “flat file or structured export” of the data within the database in a format that would be searchable and loaded into an electronic Microsoft Excel file. The letter further described the manner in which the Excel spreadsheet would be organized—essentially, with a list of the products or chemicals and corresponding cells containing the fields of data Waupaca safety personnel had inputted in the database (e.g. “description,” “target organ,” etc.) as well as a cell containing an electronic link to a PDF of the actual MSDS. The letter also stated that the MSDS documents should also be produced in native, electronic format, and that all of the foregoing should be produced on an encrypted hard drive. (ECF No. 525-7 at 2–3.)
*3 In response, Waupaca indicated Plaintiffs' proposal was inappropriate under the Federal Rules of Civil Procedure and the parties' agreed upon discovery protocol. Waupaca also argued the information sought was irrelevant and indicated compliance would be unduly burdensome. Specifically, Waupaca claimed that it would take “several weeks, and possibly months, to rename/link all these MSDSs into the format that you suggest. Your request would essentially require Waupaca to completely overhaul and reformat its own data before producing it to Plaintiffs.” (Def.'s Br. 4–5, ECF No. 524) (citing letter).
Plaintiffs' counsel responded that an outside technical consultant advised the production in the requested format would be relatively simple and that the MSDS data must be maintained by Waupaca in a similar manner (i.e., with links from the database to the actual MSDSs) if employees are able to see the information fields and pull up MSDSs. Plaintiffs' counsel further stated, apparently for the first time, that Waupaca's 2009 production of the MSDSs was not undertaken in accordance with the parties' discovery protocol. Plaintiffs' counsel suggested a conference call involving the attorneys and technical personnel from both sides to talk about how the production could be accomplished without much burden. (ECF No. 525-9 at 2.) Waupaca asked how the first production failed to comply with the discovery protocol, Plaintiffs claimed Waupaca did not produce metadata, Waupaca responded that it had, and, according to Waupaca, Plaintiffs abandoned their position regarding the deficiency of the initial production. (Def.'s Br. 5, ECF No. 524.)
In any event, the parties held the telephone conference November 6, 2014. Counsel for Waupaca reiterated that even if the parties were able to work out the issue of burden, Waupaca objected to the request on the grounds of relevance and because the production exceeded what was required under the Rules. According to Waupaca, also during the call, Plaintiffs “largely abandoned” the majority of the requests they made in their first proposal, such that their remaining request was essentially for Waupaca's MSDS database “and some type of load file.” (Id. at 6.)
During the week of either December 8 or 15, 2014, Plaintiffs also requested that their consultant have access to Waupaca's system so that he could just copy all the information in the database and link the actual MSDSs to the line items in the database himself. Due to the intervening holiday and other activity in the case in early January, Waupaca did not respond to Plaintiffs' last request and Plaintiffs filed the instant motion to compel on January 26, 2015.
II. ANALYSIS
A. Relevance
As a threshold matter, Waupaca opposes Plaintiffs' motion to compel on the ground that the information in the MSDS database is not relevant. Relevance is the primary limitation on the scope of discovery under Rule 26(b)(1) but the test for relevance in the discovery context is very broad. “A request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action.” Nalco Chemical Co. v. Hydro Technologies, Inc., 148 F.R.D. 608, 615 (E.D. Wis. 1993) (emphasis in original) (quotations omitted).
Here, there is little doubt that Plaintiffs' request meets this threshold for relevancy. Waupaca's position is essentially based on this court's rationale in denying Plaintiffs' 2012 motion for summary judgment and granting Waupaca's motion. In that decision, despite the MSDSs relied upon by Plaintiffs (some of which included the recommendation that workers exposed to certain materials change clothes and shower), I concluded that changing clothes and showering were not “required” by law, by Waupaca, or by the nature of Plaintiffs' work, and therefore not compensable under the FLSA. According to Waupaca, the court's rejection of Plaintiffs' reliance on the MSDSs then renders them irrelevant now.
*4 The most glaring problem with Waupaca's position on relevance is that this court's summary judgment decision was reversed on appeal. The case was remanded and even though the law of the case remains that neither the law nor Waupaca “required” Plaintiffs to change and shower at work, the remaining issue in the case, as the parties know, is whether these activities are “required by the nature of the work”—i.e., whether “changing clothes and showering at work will significantly reduce the risk to the health of the employee.” (Decision and Order Clarifying Legal Standard at 9, ECF No. 504.) It is thus difficult to see how the MSDSs themselves as well as the other information Waupaca personnel inputted relating to “hazard level” and what chemicals or products are used in various departments of the plants is not germane to the central issue in this case.
The test for relevance is not, of course, whether the information sought will establish Waupaca's liability or even the degree that the information will ultimately be persuasive in that regard. The fact that I concluded in the summary judgment decision that the MSDSs did not establish that changing clothes and showering were “required” does not even mean that the information was not relevant then. And at this point in the case, when Plaintiffs must establish the materials they were exposed to created a significant risk to their health and safety that would be alleviated by changing clothes and showering, the notion that the information is not relevant now is even more untenable.
Waupaca also argues Plaintiffs' claim that the production would allow them to discover critical information about what chemicals were used in which plants, by whom, and at what time, is untrue because the information sought simply does not provide that type of information. However, Waupaca's argument is belied by the declaration of its own Environmental Coordinator. According to Mr. Esch's declaration, “[t]o the extent Waupaca employees may on occasion input information into the MSDS database that is relevant to the question of what chemicals/products are used in various departments with the plants, that information is inconsistent and sometimes unreliable.” (ECF No. 526, ¶ 6.) The database may not provide Plaintiffs an exact method for determining when and where certain chemicals were or are used, but Mr. Esch's statement shows information bearing on this question exists. As explained above, this information is relevant, and it goes without saying that the consistence or reliability of the information is not a basis for concluding that it is not discoverable.
B. Motion to Compel
Federal Rule of Civil Procedure 34(b)(1)(C) provides that a party requesting production of ESI “may specify the form or forms in which electronically stored information is to be produced.” Fed.R.Civ.P. 34(b)(1)(C). In addition, Rule 34 sets out procedures to be used for producing ESI:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
Fed.R.Civ.P. 34(b)(2)(E)(ii).
Federal Rule of Civil Procedure 26 provides for specific limitations on ESI:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
*5 Fed.R.Civ.P. 26(b)(2)(B).
Here, Plaintiffs provided a detailed proposal for how to produce the MSDS database. Waupaca's opposition is based on the notion that under Rule 34(b)(2)(E) a party has no obligation to produce information in some new format (in this case, a “load file” with an Excel spreadsheet containing links to the MSDSs themselves) when the company already produced the data in a “reasonably usable” form. That Waupaca already produced the data in a reasonably usable form, the company maintains, is evident given that Plaintiffs did use the MSDSs in the 2012 summary judgment briefing.
It is undisputed, however, that Waupaca's initial production did not include all of the information Plaintiffs' request, regardless of the format in which it was provided. Plaintiffs stated in their lead brief that Waupaca's initial production “did not include all of the data fields inputted by Waupaca safety personnel” (ECF No. 514 ¶ 16), and Plaintiffs correctly note in their reply brief that Waupaca did not dispute this fact (ECF No. 531 at 2).
More importantly, according to Plaintiffs, reviewing Waupaca's initial production was extremely difficult due to the massive quantity of duplicates, the absence of any organization and small font-size. In requesting a spreadsheet wherein the information inputted by Waupaca employees is linked to the actual MSDSs, “Plaintiffs seek the ability to determine which information contained in Waupaca's database corresponds to a particular MSDS in the same fashion that the MSDS[s] are accessible to Waupaca and each of its employees using the database.” (Id. at 7) (emphasis in original). “In other words,” Plaintiffs argue, they “ought to have the same ability to efficiently access, search, and display the information contained in the MSDS database as Waupaca—particularly in light of the arguments that Waupaca made in opposition to Plaintiffs' motion for summary judgment, concerning hazardous chemical usage and exposure in its foundries.” (Id.)[1]
I agree with Plaintiffs that, unless there is undue burden, which is discussed below, they should be able to not only use the MSDSs but use and search the database with roughly the same ease and efficiency as can Waupaca and its employees. Although a party generally should not be required to overhaul and reformat its own data, the Committee Notes to Rule 34 cited by both parties make clear that a party also cannot produce information in a manner that degrades searchability:
*6 [T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in litigation. If the responding party ordinarily maintains information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
Adv. Comm. Notes to 2006 amendment to Rule 34(b). There is no discussion in the briefs as to whether Waupaca's production of the database in its existing format—Lotus Notes—is a viable option. If so Waupaca could have proposed this alternative to Plaintiffs' original proposal. See Fed.R.Civ.P. 34(b)(D). In any event, based on the court's understanding of the facts, Waupaca appears to have produced the information in a form that degrades searchability. Therefore, barring undue burden, Plaintiffs' request for another format does go beyond what is contemplated by Rule 34.
With respect to burden, on a motion to compel, the Rules plainly require the responding party to show “the information [sought] is not reasonably accessible because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). “Bare assertions are not sufficient, and [the objecting party] must come forward with evidence or affidavits to show the nature and extent of the burden.” Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., No. 05-2164, 2007 WL 950282, at *4 (D. Kan. March 26, 2007).
Upon initial review of Plaintiffs' proposal, Waupaca's counsel responded, based on the advise of technical personnel, it would take several weeks or even months to comply. The affidavits Waupaca has since submitted, however, are vague as to the nature and extent of the burden. Waupaca's Lotus Notes Analyst states that “Waupaca's MSDS database is not ‘small[,]’ at least not as [she] would use that word. Depending upon the scope of any order compelling Waupaca to take action, Waupaca's IT staff will have to devote significant time and resources to producing this information that would otherwise go toward their normal job responsibilities.” (ECF No. 527 ¶ 4.) Waupaca's Environmental Coordinator states that parsing subsets of information from the database, which Plaintiffs proposed in response to Waupaca's initial objection, would take a tremendous amount of time. (ECF No. 526 ¶ 3.) Nevertheless, he does not provide an estimate regarding the nature and extent of the burden if ordered to comply with Plaintiffs' initial request.
Plaintiffs' technical consultant, on the other hand, has provided detail regarding the request. He participated in the meet-and-confer telephone conference in this case. He states that he does not understand Waupaca to contend that the production of the MSDS database in Excel spreadsheets to be burdensome or the separate production of the actual MSDSs in PDF format. Rather, he understands that Waupaca contends “that it would be burdensome to ‘link’ the fields and metadata with the corresponding PDF image of the applicable MSDS such that it [sic] plaintiffs' counsel could easily determine which information contained in the database corresponds to a particular MSDS [.]” (ECF No. 515-5, ¶ 7.) He further states that it would not be burdensome “to produce a load file that would provide the plaintiffs with a usable data link between the electronic information concerning a particular MSDS and an image of the MSDS itself.” (Id. ¶ 8.) Finally, he states that producing such a load file is not uncommon and that his opinion that it would not place an inappropriate burden on Waupaca is based on the meet-and-confer conference, his own review of the metadata in this case, and his knowledge of the export features of Lotus Notes and other applications. (Id. ¶ 9.)
*7 Based on my review of the parties' submissions, I am satisfied that Plaintiffs' request is not unreasonable and that Waupaca has failed to show that compliance would be unduly burdensome. Waupaca does not dispute the facts in Plaintiffs' consultants' declaration. Waupaca does offer to supplement its opposition to the motion to compel with specifics as to what compliance would cost, but that should have already been done. (ECF No. 524 at 5 n.3.) The time to do so has passed. Yet another delay in this case will only prolong what is already an old case, and one that frankly appears to be a relatively long way from resolution. Plaintiffs' motion will therefore be granted.
III. ORDER
For all of these reasons, Plaintiffs' motion to compel is hereby GRANTED. Within 10 days of this order, Waupaca shall produce all data and information maintained in its databases relating to the MSDSs and all data inputted by Waupaca concerning the same, in an electronic, organized and usable format. The foregoing information shall be produced and subject to the protective order previously entered in this case (ECF No. 88).
SO ORDERED this 10th day of April, 2015.
Footnotes
The “load file” is apparently the key linking the inputted data to the MSDSs themselves, which as explained above, is something Waupaca and its employees are able to do. According to one court, “A load file ‘indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends.’ Without load files, there is no way ‘to ensure transfer of accurate and usable images and data.’ ” E.E.O.C. v. SVT, LLC, No. , 2014 WL 1411775, at *3 (N.D. Ind. April 10, 2014) (citation omitted) (quoting The Sedona Conference, The Sedona Conference Glossary, E-Discovery & Digital Information Management 50, 31 (Sherry B. Harris et al eds., 3d ed. 2010)).