Jefferson v. Walgreen Co.
Jefferson v. Walgreen Co.
2010 WL 11629287 (M.D. Fla. 2010)
December 30, 2010
Porcelli, Anthony E., United States Magistrate Judge
Summary
The court did not address any ESI as it was not relevant to the discovery requests. The court granted in part and denied in part the discovery requests, and denied the Plaintiffs' request for an in camera review of allegedly withheld documents. The court also addressed two interrogatories posed by the Plaintiffs.
RONALD JEFFERSON, SR., et al., Plaintiffs,
v.
WALGREEN CO., Defendant
v.
WALGREEN CO., Defendant
Case No.: 8:10-CV-1211-T-27AEP
United States District Court, M.D. Florida
Filed December 30, 2010
Porcelli, Anthony E., United States Magistrate Judge
ORDER
*1 THIS MATTER is before the Court on:
1) Defendant’s Omnibus Motion to Compel (Dkt. No. 55);
2) Defendant’s Motion for Protective Order Regarding Depositions Improperly Noticed by Plaintiffs and Request for Expedited Consideration (Dkt. No. 57);
3) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ First Request for Production, to Strike Defendant’s Objections, for an In-Camera Inspection of Privileged Documents, and for Attorneys’ Fees and Costs (Dkt. No. 59);
4) Defendant’s Motion for Protective Order Regarding Improper Subject Matter Designation in Plaintiffs’ Re-Notices of Taking Corporate Deposition (Dkt. No. 64);
5) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Second Request for Production, to Strike Defendant’s Objections and for Attorneys’ Fees and Costs (Dkt. No. 76);
6) Plaintiffs’ Motion to Compel Depositions of Corporate Representatives, Overrule Objections, and for Sanctions (Dkt. No. 82);
7) Plaintiffs’ Motion to Compel Defendant to Provide Better Responses to Plaintiffs’ Second Set of Interrogatories, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 85);
8) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 101); and
9) Plaintiffs’ Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102).
The Court held a hearing on these Motions[1] on December 20, 2010. For the reasons stated herein, Defendant’s Omnibus Motion to Compel (Dkt. No. 55) is GRANTED IN PART AND DENIED IN PART; Defendant’s Motion for Protective Order Regarding Depositions Improperly Noticed by Plaintiffs and Request for Expedited Consideration (Dkt. No. 57) is GRANTED IN PART AND DENIED IN PART; Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ First Request for Production, to Strike Defendant’s Objections, for an In-Camera Inspection of Privileged Documents, and for Attorneys’ Fees and Costs (Dkt. No. 59) is DENIED; Defendant’s Motion for Protective Order Regarding Improper Subject Matter Designation in Plaintiffs’ Re-Notices of Taking Corporate Deposition (Dkt. No. 64) is GRANTED; Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Second Request for Production, to Strike Defendant’s Objections and for Attorneys’ Fees and Costs (Dkt. No. 76) is GRANTED IN PART AND DENIED IN PART; Plaintiffs’ Motion to Compel Depositions of Corporate Representatives, Overrule Objections, and for Sanctions (Dkt. No. 82) is DENIED; Plaintiffs’ Motion to Compel Defendant to Provide Better Responses to Plaintiffs’ Second Set of Interrogatories, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 85) is GRANTED; Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 101) is GRANTED IN PART AND DENIED IN PART; and Plaintiffs’ Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102) is GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
*2 Plaintiff, Ronald Jefferson, Sr., filed this action on May 26, 2010, on behalf of himself and all others similarly situated, pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. (See Dkt. No. 1.) Plaintiff alleges that he worked for Defendant Walgreens Co. (“Walgreens”) from July 2004 until April 2010, first as an Assistant Manager and then as an Executive Assistant Manager (“EXA”). He further alleges that he worked in excess of forty (40) hours per week as an EXA and that Defendant violated the FLSA by not paying the overtime pay to which he was entitled. (Id. ¶¶ 17-20.) Since Plaintiff filed his original complaint, four other former EXAs have joined this action. (Dkt. Nos. 12, 14, 19, 37.)
II. APPLICABLE LEGAL STANDARD
The scope of discovery is governed by Rule 26(b) of the Federal Rules of Civil Procedure. Pursuant to that rule, litigants “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevant information for discovery purposes includes any information “reasonably calculated to lead to the discovery of admissible evidence.” Id. Nevertheless, Rule 26(c) authorizes a court, for good cause, to issue an order limiting the extent of discovery in order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The burden is upon the party seeking a protective order to show good cause. Grams v. Am. Med. Instruments Holdings, No. 3:08-cv-1060-J-12MCR, 2009 WL 2926844, at *5 (M.D. Fla. Sept. 14, 2009). “This burden contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” Id. (internal citations and quotations omitted).
III. ANALYSIS
1) Defendant’s Omnibus Motion to Compel (Dkt. No. 55)
In its Omnibus Motion to Compel (Dkt. No. 55) filed on November 8, 2010, Defendant requests that Plaintiffs Ronald Jefferson and Mark Fuchs be compelled to produce documents or otherwise comply with the requests contained in Defendant’s First and Second Request for Production (“RFP”). This Motion also requests that Opt-In Plaintiffs Christopher Lindvall, Giovann Miller, and Mark Barnes be compelled to produce documents in response to Defendant’s subpoenas duces tecum (“SDT”). Finally, in this Motion, Defendant claims that Plaintiffs’ privilege logs are “woefully insufficient” in violation of Rule 26(b)(5). The Court will first address each disputed request in turn.
Defendant’s Second RFP Request No. 1/SDT Request No. 25 seeks copies of Plaintiffs’ current resumes and all prior versions of their resumes from January 1, 2009, to the present. In their Response (Dkt. No. 67), Plaintiffs state that the resumes of all Plaintiffs and Opt-In Plaintiffs were provided, with the exception of the resume of Christopher Lindvall, who, according to Plaintiffs, “started his own company after leaving employment with the Defendant, so he does not have a resume to provide that is responsive to this request.” (Dkt. No. 67 at 2-3.) Based on Plaintiffs’ representations, Defendant’s Motion to Compel is denied as moot as to this request.
Defendant’s Second RFP Request No. 2/SDT Request No. 26 seeks all documents relating to Plaintiffs’ efforts to obtain or secure employment, other than with Defendant, subsequent to the commencement of Plaintiffs’ employment with Defendant. The request additionally states that such documents “may include, but are not limited to, resumes, job applications, application forms, notes, advertisements, and correspondence submitted, received, or made in connection with any search for, acceptance of, or rejection of employment.” (Dkt. No. 55 at 5.) In their Response to Defendant’s Motion, Plaintiffs assert that they updated their response to this request by stating that they do no have such documents. (Dkt. No. 67 at 4.) Additionally, Plaintiffs maintain objections to this request on the basis that Plaintiffs’ deposition testimonies “[are] the most accurate method for obtaining such information” and that “[a]nything found through these discovery requests would lack in accuracy, relevance, and would lead to prejudice to Plaintiffs and Opt-In Plaintiffs.” (Id. at 4-5.)
*3 The Court agrees with Defendant that such documents are relevant to Plaintiffs’ beliefs or opinions as to the their duties as EXAs for Walgreens. Nonetheless, the Court finds that Defendant’s request is overly broad and should instead be limited to any documents that Plaintiffs and/or Opt-In Plaintiffs completed or filled out, such as applications, resumes, notes of interviews, that might reflect their beliefs, opinions, or assertions regarding what duties they performed as EXAs for Walgreens as expressed to a subsequent or prospective employer while Plaintiffs were employed by Defendant. Accordingly, Defendant’s Motion as to its Second RFP Request No. 2/SDT Request No. 26 is granted in part.
Defendant’s Second RFP Request No. 14/SDT Request No. 15 seeks Plaintiffs’ telephone records from May 26, 2007, through the present. Defendant’s Second RFP Request No. 15/SDT Request No. 16 seeks Plaintiffs’ credit card statements from May 26, 2007, to May 26, 2010. Defendant states that these records bear directly on the hours that Plaintiffs worked. (Dkt. No. 55 at 6-7.) According to Defendant, Plaintiffs’ telephone records would show whether Plaintiffs “were present at work, working while present at work, or communicating regarding non-work related matters.” (Id.at 6.) Plaintiffs object to these requests on the basis that they are “an unreasonable invasion of privacy” and are “irrelevant and outside the scope of what is reasonably calculated to lead to the discovery of admissible evidence.” (Dkt. No. 67 at 5.) While Plaintiffs’ expectation of privacy concerning these records may not be sufficient to prevent their production, the Court finds that Defendant has not demonstrated that Plaintiffs’ phone records or credit card statements are relevant to this FLSA action. As Plaintiffs argue, cellular phones and credit cards may be used by other members of the family and do not necessarily reflect Plaintiffs’ activities. (Dkt. No. 67 at 5.) Moreover, Plaintiffs state that they have been deposed and none of them testified that they talked on their phones or made purchases during their work hours. (Id.) Given the intrusive method of the proposed discovery, the Court will not permit the perusing of Plaintiffs’ phone records and credit card statements in the absence of a more well-founded showing of relevance. Accordingly, Defendant’s Motion as to this request is denied.
Defendant also contends that Plaintiffs’ privilege log falls short of what has been required by this Court and Rule 26(b)(5). Rule 26(b)(5)(A) provides:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
This Court has previously held that “[i]f the court chooses to rely on adequate privilege logs, typically the logs will identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.” CSX Transp. Inc. v. Admiral Ins. Co., No. 93-132-CIV-J-10, 1995 WL 855421, at 3 (M.D. Fla. July 20, 1995). Additionally,
[t]he standard for testing the adequacy of the privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed. The focus is on the specific descriptive portion of the log, and not on the conclusory invocations of the privilege or work-product rule, since the burden of the party withholding documents cannot be discharged by mere conclusory or ipse dixit assertions.
*4 Id. (quoting Golden Trade S.r.L. v. Lee Apparel Co., Nos. 90 Civ. 6291 (JMC), 90 Civ. 6292 (JMC) and 92 Civ. 1667 (JMC), 1992 WL 367070, at *5 (S.D.N.Y. Nov. 20, 1992)) (internal quotations omitted). Thus, a proper privilege log should provide: (1) the name and job title or capacity of the author of the document; (2) the name and job title or capacity of each recipient of the document; (3) the date the document was prepared and if different, the date(s) on which it was sent to or shared with persons other than the author(s); (4) the title and description of the document; (5) the subject matter addressed in the document; (6) the purpose(s) for which it was prepared or communicated; and (7) the specific basis for the claim that it is privileged. Bozeman v. Chartis Cas. Co., No. 2:10-cv-102-FtM-36SPC, 2010 WL 4386826, at *3-4 (M.D. Fla. Oct. 29, 2010) (citations omitted).
A review of Plaintiffs’ privilege log attached to Defendant’s Motion demonstrates that it does not comply with the Rule 26(b)(5). Plaintiffs do not expressly make a claim of privilege, nor do they adequately establish each element of the asserted privileges. Plaintiffs merely list the document, the date of the document and a brief generic description, such as “communications with counsel,” “communications with other Plaintiffs,” or “representation agreement.” Conclusory statements as these do not sufficiently establish either an attorney-client communication or attorney work product.[2] Thus, the Court finds that Plaintiffs’ privilege log is inadequate under Rule 26(b)(5). Plaintiffs are directed to produce an amended privilege log that will contain sufficient detail to enable Defendant or the Court to determine if the privilege is properly claimed. Accordingly, Defendant’s Omnibus Motion to Compel (Dkt. No. 55) is granted in part and denied in part as set forth herein.
By its Motion for Protective Order Regarding Depositions Improperly Noticed by Plaintiffs (Dkt. No. 57), Defendant requests that Plaintiffs be precluded from deposing Defendant’s corporate representative pursuant to Rule 30(b)(6), Sherry Albertson, Rashad Sanford, Peter Mancini, Christopher Wheat, and Richard Vila. In support of its Motion, Defendant states that Plaintiffs unilaterally scheduled these depositions and insist on going forward with the depositions despite scheduling disputes. (Dkt. No. 57 at 5.) Additionally, Defendant states that Plaintiffs should not be entitled to depose former Walgreens employees Mancini, Sanford, and Albertson, as this constitutes an improper attempt to obtain pre-certification nationwide discovery. (Id.) According to Defendant, none of these former employees worked in the same area as the named Plaintiffs. Alternatively, Defendant requests that if Plaintiffs are permitted to depose Mancini who resides in Florida and whose case against Defendant was resolved pursuant to a confidential settlement agreement, Plaintiffs should not be allowed to inquire into the terms of this confidential settlement agreement. (Id. at 8.)
*5 Subsequently, Defendant filed a Notice of Partial Resolution of its Motion (Dkt. No. 68), stating that the parties agreed not to go forward with the deposition of Christopher Wheat. In a subsequently filed motion, Defendant represented that Plaintiffs will not go forward with Albertson’s deposition, which Plaintiffs confirmed at the December 20, 2010 hearing. (Dkt. No. 91 at 3-4.) Additionally, at the December 20, 2010 hearing, Plaintiffs stated that they do not require Sanford’s deposition and will not go forward with it. Also at the hearing, Defendant stated that Vila’s deposition has already been taken. And as to Mancini, Defendant stated that it has no objection to Plaintiffs deposing him as long as they do not inquire into the terms of the settlement agreement, to which Plaintiffs agreed. Accordingly, Defendant’s Motion is denied as moot as to Sherry Albertson, Rashad Sanford, Peter Mancini, Christopher Wheat, and Richard Vila.
With respect to the deposition of Defendant’s corporate representative pursuant to Rule 30(b)(6), the parties shall agree on a mutually convenient time and date within thirty days of the date of this Order within which to take this deposition. In the absence of an agreement, the deposition shall take place on January 31, 2011, at 9:00 A.M. The parties are also advised that the subject matter designations of the corporate deposition shall be limited as set forth below. Accordingly, Defendant’s Motion for Protective Order Regarding Depositions Improperly Noticed by Plaintiffs and Request for Expedited Consideration (Dkt. No. 57) is granted in part and denied in part as set forth herein.
In their Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ First Request for Production (Dkt. No. 59), Plaintiffs state that Defendant’s responses to their initial discovery requests are inadequate and that Defendant’s objections “are simply being asserted as a means to block the Plaintiffs from obtaining the discovery they seek.” (Dkt. No. 59 at 3.) Additionally, Plaintiffs request that the Court conduct an in camera inspection of the documents claimed as privileged by Defendant and that they be awarded fees and costs in bringing the instant Motion.
Broadly stated, Plaintiffs’ requests seek information related to investigations as to the EXA position or EXA employees’ entitlement to overtime wages (Request No. 5), claims or cases filed against Defendant by EXAs (Request No. 6), overtime wages paid by Defendant to current or former EXAs and documents discussing those overtime wages and policies (Request Nos. 7 and 11), documents supporting Defendant’s denial of overtime wages for EXAs (Request No. 8), documents describing the hierarchy of control and management and the uniformity and similarity of Defendant’s stores, and Defendant’s goals and intentions of uniformity and similarity of each of its stores (Request Nos. 10, 13, 15), documents showing a good faith basis for refusing to pay overtime wages to EXAs (Request No. 12), and records discussing the decision to limit overtime hours for assistant managers (Request No. 14). Most requests seek information from 2004 or 2005 to the present.
Defendant objected to these requests on the basis that they are irrelevant, vague, ambiguous, overly broad, unduly burdensome, and seek privileged and confidential information. In its Response (Dkt. No. 84), Defendant argues that each of these requests seek information “well beyond the parameters of this case” as “this Court has neither conditionally certified the putative class nor made any decision regarding the authorization of notice to other potential plaintiffs.” (Dkt. No. 84 at 4.) According to Defendant, the above requests improperly seek nationwide discovery prior to conditional certification of the FLSA action. (Id. at 5-8.) Additionally, Defendant contends that these requests improperly seek evidence beyond the relevant geographic area, which Defendant argues is limited to the Tampa/Land O’Lakes/Sarasota/Brandon area where all named Plaintiffs worked, and are outside the relevant temporal period, which should be limited to information from 2007 until the present based on the FLSA’s three-year maximum liability period. (Id. at 8.)
*6 Section 216(b) of the FLSA provides that an action to recover unpaid overtime compensation may be maintained against an employer by any one or more employees “for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). To determine whether employees are “similarly situated,” the Eleventh Circuit suggested that district courts use a two-tiered approach. See Hipp v. Liberty Nat’l Life Insurance Co., 252 F.3d 1208, 1217-19 (11th Cir. 2001). At the first stage, referred to as the “notice stage,” “the district court makes a decision - usually based only on the pleadings and any affidavits which have been submitted - whether notice of the action should be given to potential members.” Cameron-Grant v. Maxim Healthcare Serv., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003). This determination uses “a fairly lenient standard” and “typically results in ‘conditional certification’ of a representative class.” Id. Upon conditional certification, the action proceeds as a representative action throughout discovery. At the second stage, the court makes the determination of whether the case should continue to be certified as a collective action for trial, which is “typically precipitated by a motion for ‘decertification’ by the defendant usually filed after discovery is largely complete and the matter is ready for trial.” Id.
Although, as mentioned above, at the notice stage, the burden on plaintiffs to meet the similarly situated requirement is not heavy, “[p]laintiffs must demonstrate that a reasonable basis exists for their assertions that similarly aggrieved individuals exist in the proposed class.” Franco v. Bank of Am. Corp., 691 F. Supp. 2d 1324, 1326 (M.D. Fla. 2010) (citations omitted). Thus, in making the similarly situated determination, the court should consider appropriate factors including: “1) whether the plaintiffs all held the same job title; 2) whether they worked in the same geographic location; 3) whether the alleged violations occurred during the same time period; 4) whether the plaintiffs were subjected to the same policies and practices, and whether these policies and practices were established in the same manner and by the same decision maker; and 5) the extent to which the actions which constitute the violations claimed by plaintiffs are similar.” Id.(citation omitted).
Against this backdrop, the Court must decide the scope of the discovery prior to the conditional certification of this case. While some courts have denied discovery sought prior to conditional certification,[3] most courts appear to agree that “some discovery is necessary prior to a determination of class certification” in an FLSA collective action. Tracy v. Dean Witter Reynolds, Inc., 185 F.R.D. 303, 304 (D. Colo. 1998); see also Titre v. S.W. Bach & Co., No. 05-80077-CIV-MARRA/SELTZER, 2005 WL 1692508, at *2 (S.D. Fla. July 20, 2005) (allowing discovery as to the identity of similarly situated employees after notice motion was fully briefed, but before it was ruled upon, noting that while this information “may no longer be relevant in helping Plaintiff to define a proposed plaintiff ‘class,’ ” it was discoverable because plaintiff could seek to learn whether defendant had previously paid overtime to any potential class members); Smith v. Tradesmen Int’l, Inc., 289 F. Supp. 2d 1369, 1372 (S.D. Fla. 2003) (allowing discovery as to the names and addresses of potential class members to permit plaintiffs to collect evidence sufficient to meet their burden of proof on authorizing nationwide notice); Tucker v. Labor Leasing, Inc., 155 F.R.D. 687, 689 (M.D. Fla. 1994) (finding that interrogatories requesting the names and addresses of employees denied overtime compensation were proper for the purpose of facilitating Court-supervised notice to potential plaintiffs); Dupervil v. Asplundh Constr., Corp., No. 04-81106-CIV, 2005 WL 6516654 (S.D. Fla. Apr. 29, 2005) (allowing discovery as to the identity of similarly situated employees, noting that “[s]uch an approach seems logically sound and not otherwise undiscoverable” prior to conditional certification); Franco, 691 F. Supp. 2d at 1326 (allowing pre-certification discovery as to the identity of similarly situated employees, noting that without such discovery neither “the parties nor the Court can determine if there are other similarly situated plaintiffs”).
*7 In accord with these latter line of cases, this Court finds that Plaintiffs are entitled to a certain amount of discovery in order to enable them to adequately brief the issue of whether similarly situated employees exist. Otherwise, Plaintiffs cannot make a showing as to the above factors considered in making the similarly situated determination. See Planner v. Bennett Auto Supply, Inc., No. 05-80982-CIV, 2006 WL 4937608, at *2 (S.D. Fla. Feb. 27, 2006) (noting that “[a] plaintiff cannot make a showing as to these factors absent adequate discovery”); Franco, 691 F. Supp. 2d at 1326(same). Accordingly, the Court will allow Plaintiffs to obtain discovery, but only as to the identity and contact information of other EXAs. Additionally, Plaintiffs are entitled to nationwide discovery as to the names and addresses of other EXAs. See Sedtal v. Genuine Parts Co., No. 1:08-CV-413-TH, 2009 WL 2216593, at *5 (E.D. Tex. July 23, 2009) (noting that “[b]ecause geographic commonality is not a ‘similarly situated’ requirement, imposing geographic restrictions on discovery would be somewhat arbitrary and could obscure relevant information”).
As to the temporal scope of the discovery, because the FLSA has a three (3) year limitations period, and because Plaintiffs have alleged that Defendant willfully violated the FLSA, Plaintiffs are permitted to obtain discovery as to the names and addresses of other EXAs for a period of three years prior to the commencement of this action. See 29 U.S.C. § 255(providing a three year limit for claims involving willful violations of the law).
Based on the foregoing, in this instance, nationwide discovery is permitted as to the identity and contact information of EXAs from 2007 to the present. A review of Plaintiffs’ requests, however, demonstrates that Plaintiffs seek much broader information than simply the identity and contact information of potential class members and for a period of time extending beyond 2007. While such discovery may be permitted as to the named Plaintiffs, it is improper as to potential opt-in plaintiffs prior to the conditional certification of the proposed class. Accordingly, Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ First Request for Production, to Strike Defendant’s Objections, for an In-Camera Inspection of Privileged Documents, and for Attorneys’ Fees and Costs (Dkt. No. 59) is denied.[4] Plaintiffs may re-formulate their requests to limit them to the named Plaintiffs only. As to potential class members, as previously stated, Plaintiffs may seek discovery only as to their names and addresses.
In its Motion for Protective Order Regarding Improper Subject Matter Designation (Dkt. No. 64), Defendant seeks an order quashing Plaintiffs’ corporate deposition re-notices and the designated subject matters attached to Plaintiffs’ re-notices. Alternatively, Defendant requests that Plaintiffs be directed to amend the designated subject matters set forth in their re-notices. In support of its Motion, Defendant states that the subject matters improperly seek pre-certification nationwide discovery, are overbroad geographically and temporally, are not designated with reasonable particularity pursuant to Rule 30(b)(6), and improperly elicit legal conclusions or testimony protected by work product and/or attorney-client privilege.
The Court finds that Plaintiffs’ designated subject matters are indeed overly broad and request information not permitted at this pre-certification stage of the lawsuit. While Plaintiffs may seek the designation of the corporate representative with most knowledge about EXAs, Plaintiffs may not seek information beyond the names and contact information of putative class members prior to a determination of whether notice should be approved to the putative class. Additionally, Plaintiffs’ subject matters must be limited to the last three years, the applicable statute of limitations. Accordingly, Defendant’s Motion for Protective Order Regarding Improper Subject Matter Designation in Plaintiffs’ Re-Notices of Taking Corporate Deposition (Dkt. No. 64) is granted. Plaintiffs’ may re-formulate their notices to limit them to the named Plaintiffs only and/or to the identity and contact information of other EXAs. Plaintiffs may pursue any additional appropriate topics once the class has been conditionally certified.
*8 In their Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Second Request for Production (Dkt. No. 76), Plaintiffs request that Defendant provide better responses to their requests for production, that Defendant’s objections be stricken as improper, and that the Court review in camera documents withheld by Defendant as privileged. Upon reviewing the disputed requests for production, the Court concludes that, with the exception of Request Nos. 12, 18, and 20,[5] all other requests seek discovery that is premature at this pre-certification stage of the lawsuit. As previously discussed, the Court allows pre-certification discovery only as to the names and contact information of putative class members. Additionally, the Court finds that Request No. 18 should be limited to the 2007 through the present time frame. Accordingly, Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Second Request for Production, to Strike Defendant’s Objections and for Attorneys’ Fees and Costs (Dkt. No. 76) is granted in part as to Request Nos. 12, 18, and 20, and denied in part as to the remaining requests.[6]
In their Motion to Compel Depositions of Corporate Representatives (Dkt. No. 82), Plaintiffs assert that Defendant has not met the standard of good cause for entry of a protective order by this Court in its Motion for Protective Order (Dkt. No. 64), and accordingly, the depositions of Defendant’s corporate representatives should be compelled and Defendant’s objections overruled. (See Dkt. No. 82.) As discussed above, the Court concludes that Plaintiffs’ designated subject matters are overly broad and request information not discoverable at this pre-certification stage of the lawsuit. Accordingly, Plaintiffs’ Motion to Compel Depositions of Corporate Representatives, Overrule Objections, and for Sanctions (Dkt. No. 82) is denied.
In their Motion to Compel Defendant to Provide Better Responses to Plaintiffs’ Second Set of Interrogatories (Dkt. No. 85), Plaintiff request that Defendant be compelled to answer their Second Set of Interrogatories, which consists of a single interrogatory, namely: “[p]lease list the names, last known addresses, and telephone numbers of any and all former EXA employees during the years 2007 to the present.” (Dkt. No. 85 at 1-2.) As previously discussed, the Court finds that such information is discoverable prior to a determination of whether notice should be approved to the putative class. Accordingly, Defendant’s objections to this Interrogatory are overruled and Plaintiffs’ Motion to Compel Defendant to Provide Better Responses to Plaintiffs’ Second Set of Interrogatories (Dkt. No. 85) is granted.
*9 In their Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production (Dkt. No. 101), Plaintiffs request that Defendant provide better responses to their propounded discovery requests, that Defendant’s objections be stricken as improper, that the Court review in camera documents withheld by Defendant as privileged, and that Plaintiffs’ be awarded fees and costs incurred in bringing their Motion. The Court has reviewed the disputed discovery requests and finds that Plaintiffs’ requests are overly broad and, in most instances, seek discovery that is premature at this pre-certification stage of the lawsuit. However, the Court finds that Request No. 10[7] which is limited to the named Plaintiffs and/or opt-in Plaintiffs, seeks discoverable information which Defendant is directed to provide to the extent such information is not privileged. Accordingly, Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 101) is granted in part as to Request No. 10 and denied in part as to all other remaining requests.[8]
In their Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102), Plaintiffs state that Defendant’s responses to their First Set of Interrogatories are improper and request that Defendant be compelled to produce appropriate responses and documents. Additionally, Plaintiffs request that Defendant be ordered to pay Plaintiffs’ expenses incurred in bringing this Motion. Upon review of the discovery requests at issue, the Court finds that Plaintiffs’ First Interrogatories Nos. 2 and 12[9]seek discoverable information that is relevant to the named Plaintiffs which should be disclosed by Defendant, to the extent such information is not privileged. As to Plaintiffs’ remaining discovery requests, they are overly broad and seek information that the Court will not allow prior to the conditional certification of the class. Accordingly, Plaintiffs’ Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102) is granted in part as to First Interrogatories Nos. 2 and 12 and denied in part as to all other remaining interrogatories.
IV. CONCLUSION
Accordingly, the Court will allow pre-certification discovery only as to the names and contact information of putative class members. This information shall be limited to three (3) years prior to the commencement of the instant action. Additionally, the Court will not impose any geographic limitations at this time. Thus, Defendants are directed to provide such information responsive to Plaintiffs’ discovery requests, as set forth herein. To the extent that Plaintiffs’ discovery requests seek information as to putative class members beyond their names and contact information, such discovery is improper at this stage of the case. Plaintiffs may, however, re-formulate their requests to limit them to the named Plaintiffs only. Moreover, although the Court allows discovery of the names and contact information of the putative class members, Plaintiffs shall not contact or have any communications with these potential opt-in plaintiffs until the Court rules on Defendant’s pending Motion for Sanctions for Continued Improper Communications (Dkt. No. 91).
*10 Finally, to the extent that both parties request attorneys’ fees and costs incurred in advancing the instant motions, under the circumstances of this case, the undersigned finds that the imposition of costs pursuant to Rule 37 is not justified. Accordingly any request for fees and costs is denied.
It is the Court’s express intent that this Order provide guidance to the parties as to the permissible discovery at this pre-certification stage of the lawsuit, in accord with the two step process adopted by the Eleventh Circuit. See Hipp, 252 F.3d at 1218. Mindful of this guidance, the parties are reminded of their continued obligation to engage in a meaningful meet-and-confer process to attempt to resolve their discovery disputes without court intervention. See Local Rule 3.01(g), Fed. R. Civ. P. 37(a)(1). Based upon the number of motions that have been filed as the parties battle over discovery matters, it is apparent to the Court that the parties are not working cooperatively in the discovery process as contemplated by the rules of this Court and the Federal Rules of Civil Procedure. As such, if the parties continue in this pattern of a lack of cooperation and request that the Court resolve every routine discovery matter, the Court will find it necessary to conduct a hearing and determine why discovery could not be facilitated under the Court’s guidance in this Order and whether sanctions are appropriate under Rule 37 of the Federal Rules of Civil Procedure.
Upon due consideration, it is ORDERED:
1) Defendant’s Omnibus Motion to Compel (Dkt. No. 55) is GRANTED IN PART AND DENIED IN PART;
2) Defendant’s Motion for Protective Order Regarding Depositions Improperly Noticed by Plaintiffs and Request for Expedited Consideration (Dkt. No. 57) is GRANTED IN PART AND DENIED IN PART;
3) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ First Request for Production, to Strike Defendant’s Objections, for an In-Camera Inspection of Privileged Documents, and for Attorneys’ Fees and Costs (Dkt. No. 59) is DENIED;
4) Defendant’s Motion for Protective Order Regarding Improper Subject Matter Designation in Plaintiffs’ Re-Notices of Taking Corporate Deposition (Dkt. No. 64) is GRANTED;
5) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Second Request for Production, to Strike Defendant’s Objections and for Attorneys’ Fees and Costs (Dkt. No. 76) is GRANTED IN PART AND DENIED IN PART;
6) Plaintiffs’ Motion to Compel Depositions of Corporate Representatives, Overrule Objections, and for Sanctions (Dkt. No. 82) is DENIED;
7) Plaintiffs’ Motion to Compel Defendant to Provide Better Responses to Plaintiffs’ Second Set of Interrogatories, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 85) is GRANTED;
8) Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 101) is GRANTED IN PART AND DENIED IN PART; and
9) Plaintiffs’ Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102) is GRANTED IN PART AND DENIED IN PART.
*11 DONE AND ORDERED in Tampa, Florida, this 30th day of December, 2010.
At the December 20, 2010 hearing, the Court did not address Plaintiffs’ Motion to Compel Defendant to Provide Documents and Better Responses to Plaintiffs’ Third Request for Production, to Strike Defendant’s Objections, and for Attorneys’ Fees and Costs (Dkt. No. 101) and Plaintiffs’ Omnibus Motion to Compel Better Answers to Plaintiffs’ First Set of Interrogatories (Dkt. No. 102) as these were subsequently filed.
The elements of the attorney-client privilege are: (1) Where legal service advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or by the legal advisor, (8) except the protection may be waived. Universal City Dev. Partners, Ltd. v. Ride & Show Eng’g, Inc., 230 F.R.D. 688, 690 (M.D. Fla. 2005)(quoting Int’l Tel. and Tel. Corp. v. United Tel. Co., 60 F.R.D. 177, 184-85 (M.D. Fla. 1973)).
The work-product privilege “typically applies only to documents prepared principally or exclusively to assist in anticipation or ongoing litigation.” Palmer v. Westfield Ins. Co., No. 5:05-CV-338-OC-10GRJ, 2006 WL 2612168 (M.D. Fla. June 30, 2006). The work product privilege is controlled by Rule 26 of the Federal Rules of Civil Procedure which states in pertinent part that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3).
See Stephens v. Erosion Containment Mgmt., Inc., No. 8:07-CV-1995-T-30MAP, 2008 WL 2157095 (M.D. Fla. May 21, 2008)(holding that a request for information in preparation of notifying class potential class members was premature because no class was conditional certified); Crawford v. Dothan City Bd. of Educ., 214 F.R.D. 694, 695 (M.D. Ala. 2003) (same); Metzger v. Am. Fidelity Assur. Co., No. CIV-05-1387-M, 2006 WL 3097178, at *2 (W.D. Okla. Oct. 31, 2006) (same).
Request No. 12 seeks “[a]ll records demonstrating the last known address and telephone numbers of any former employee of Defendant working at the stores where Mark Barnes, Ronald Jefferson, Mark Fuchs, Chris Lindvall and Giovann Miller were employed during the period of three (3) years preceding the filing of the first complaint in this action through the present.”
Request No. 18 seeks “[a]ny documents showing the last known addresses and telephone numbers of any former employees previously working in the position of EXA or executive assistant managers during the years of 2005 through the present.”
Request No. 20 seeks “[a]ny documents showing the last known address and telephone number of any store manager of a store that any named Plaintiff or Opt-In Plaintiff worked for as an EXA who is no longer employed with the Defendant.”
Request No. 10 seeks “[a]ll e-mails to and from any store manager where any named Plaintiff or opt-in Plaintiff worked or performed services during years 2007 through the present discussing the Plaintiff, their hours, work performed, job performance, schedules, termination, and complaints by or about the Plaintiffs or opt-in Plaintiffs.” (Dkt. No. 101 at 14.)
First Interrogatory No. 2 states: “[p]lease identify and describe the management of the Defendant company in this suit, including who is in charge of HR, payroll, day to day management of the company, who would make the decision as to whether to pay employees overtime wages, and who in the cases of Ronald Jefferson Sr. and Mark Fuchs was involved with the decision to not pay their overtime wages, both at the time they were working such hours in excess of 40 hours and at the time they made requests for payment of the overtime wages owed.”
First Interrogatory No. 12 states: “[p]lease identify and describe what documents you relied upon for answering the complaint or asserting any affirmative defenses, identify and describe and documents you plan to rely upon in this case that you contend support a denial of the overtime wages Plaintiffs claim against you.”