Brenda KNUTSON, on behalf of herself and other individuals similarly situated, Plaintiff, v. BLUE CROSS AND BLUE SHIELD OF MINNESOTA, Defendant Civil No. 08-584 (RHK/JSM) United States District Court, D. Minnesota Signed November 03, 2008 Counsel Charles V. Firth, Clayton D. Halunen, Halunen & Associates, Minneapolis, MN, for Plaintiff. Andrew J. Voss, Jeffrey A. Timmerman, Marko J. Mrkonich, Littler Mendelson, Minneapolis, MN, for Andrew J. Voss, Jeffrey A. Timmerman, Marko J. Mrkonich, Littler Mendelson, Minneapolis, MN, for Defendant Mayerson, Janie S., United States Magistrate Judge ORDER *1 The above matter came before the undersigned on October 22, 2008 upon plaintiff’s Motion to Compel [Docket No. 42]. Charles V. Firth, Esq. appeared on behalf of plaintiff; and Andrew J. Voss, Esq. on behalf of defendant. The Court, being duly advised in the premises, upon all of the files, records, proceedings herein, and for the reasons stated forth on the record at the underlying hearing and the Memorandum below, now makes and enters the following Order. IT IS HEREBY ORDERED: Plaintiff’s Motion to Compel [Docket No. 42] is GRANTED in part and DENIED as moot in part as follows: 1. Plaintiff’s Motion to Compel is DENIED as moot as it relates to Interrogatory Nos. 3-9 and Document Request Nos. 2, 3, 5, 6, 10, 15, 17, 19, 22-25, 28, and 30-32 based on the representations of the parties at the hearing that they have resolved their disputes as it relates to these discovery requests. Defendant shall have until October 31, 2008 to provide supplemental responses to these interrogatories and document requests. 2. Plaintiff’s Motion to Compel is GRANTED as it relates to Document Request Nos. 9, 12, 13. This Order does not preclude defendant from seeking protection from electronic discovery it believes in good faith to be too burdensome and costly. To this end, the parties shall meet and confer by November 7, 2008, regarding the scope of the electronic discovery defendant should be required to produce in response to Request Nos. 9, 12 and 13. 3. For the reasons set forth in the Memorandum below, plaintiff’s Motion to Compel is GRANTED as it relates to the contact information sought by Document Request No. 1 from February 29, 2005 through the present. Defendant shall not be required to produce at this time the salaries, bonuses and other compensation of those individuals identified. In addition, the contact information produced pursuant to this Order shall be used for this litigation only and shall be reviewed only by plaintiff’s counsel. Plaintiff may seek to modify these limitations after the issue of conditional class certification has been decided by the Court, or for good cause. MEMORANDUM Plaintiff seeks she seeks to bring a collective action on behalf similarly situated individuals in connection with her claim that defendant failed to pay her for work she performed in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). See First Amended Collective and Class Action Complaint [Docket No. 3]. Plaintiff also asserted state claims, including a claim for unjust enrichment for the failure of defendant to pay her for services rendered, and seeks to certify a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Id. Defendant brought a motion for partial dismissal of plaintiff’s claims. The only claims surviving this motion were plaintiff’s overtime FLSA claim and her claim for unjust enrichment. See LePage v. Blue Cross and Blue Shield of Minnesota, 2008 WL 2570815 (D. Minn. June 25, 2008). On August 5, 2008, plaintiff moved to conditionally certify the class. District Judge Richard H. Kyle denied plaintiff’s motion for conditionally certifying the case as a collective action under the FLSA without prejudice because plaintiff had not shown that similarly situated customer-service representatives desired to opt into the case. See Knutson v. Blue Cross and Blue Shield of Minnesota, 2008 WL 4371382 at *3 (D. Minn. Sep. 23, 2008). In response to plaintiff’s argument that defendant prevented her from locating other customer-service representatives because it had refused to respond to discovery seeking their identity and contact information, Judge Kyle indicated that plaintiff could have filed a motion to compel the contact information of other customer service individuals and requested deferral of the decision for conditional class certification. Id. at *4. *2 In order to address defendant’s refusal to provide plaintiff with complete contact information, plaintiff moved for an order compelling defendant to produce information responsive to Request No. 1 from her Request for Production of Documents. Document Request No. 1 and defendant’s response were as follows: REQUEST NO. 1: Compilations sufficient to show the names, dates of employment, and last known address and phone numbers, salaries, bonuses and other compensation, of current and former Representatives at Defendant’s call centers located in Eagan, Minnesota and Virginia, Minnesota (“call centers”) who were employed by Defendant at any time from February 29, 2002 to the present. RESPONSE: BCBSM objects to Request No. 1 to the extent it calls for information protected from discovery by the work product rule and/or Fed. R. Civ. P. 26(b). BCBSM further objects to Request No. 1 because it is vague, ambiguous, overly broad, unduly burdensome, in whole or in part not relevant and not reasonably calculated to lead to the discovery of admissible evidence, and on grounds that it seeks confidential personnel information regarding third parties. Subject to and without waiving its objections, BCBSM responds further as follows: To the extent BCBSM has documents in its possession, custody, or control regarding Plaintiffs and other Representatives who report(ed) to the same direct supervisor(s) as Plaintiffs that are responsive to Request No. 1 and that are not protected from discovery by the work product rule and/or Fed. R. Civ. P. 26(b), BCBSM will produce such documents for inspection and copying at a time and place mutually agreed upon by the parties’ attorneys. Discovery and investigation are continuing, and BCBSM reserves the right to supplement its Response to Request No. 1. Affidavit of Charles V. Firth, Ex. A, p. 2. By this request, plaintiff sought the contact information of all customer service representative persons similarly situated to herself dating back six years; defendant’s position was that plaintiffs in collective action lawsuits are not entitled to discovery relating to prospective members of the proposed collective class where, as here, the sole purpose of such discovery is to facilitate informal notice to potential opt-in plaintiffs. At the hearing, the Court ruled that plaintiff was entitled to the contact information sought by Request No. 1 based in the following analysis. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Relevant information need not be admissible at the trial if the discovery sought appears reasonably calculated to lead to the discovery of admissible evidence at trial. See Fed. R. Civ. P. 26(b)(1) (“parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.”); see also Minnesota Specialty Crops, Inc. v. Minnesota Wild, 210 F.R.D. 673, 675 (D. Minn. 2002) (“Generally, discovery may inquire into all information, not otherwise privileged, that is relevant to the subject matter of the action, provided that it is reasonably calculated to lead to the discovery of admissible evidence.”); Walker v. Northwest Airlines Corp., No. Civ. 00-2604 MJD/JGL, 2002 WL 32539635 at *1 (D. Minn. Oct. 28, 2002) (“In the context of discovery, ‘relevant’ has been defined as encompassing ‘any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.’ ”) (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)). *3 Defendant cited to Severtson v. Phillips Beverage Co., 137 F.R.D. 264 (D. Minn. 1991) and West v. Border Foods, Inc., 2006 WL 1892527 (D. Minn., July 10, 2006) in support of its position. Both cases are inapposite. It is true that in Severtson and West the courts refused to order the disclosure of contact information. However, the procedural postures in both cases was different from the present case in that in those cases, the courts had already concluded that the plaintiffs’ claims were inappropriate for collective action and notice. SeeSevertson, 137 F.R.D. at 267; West, 2006 WL 1892527 at *9 n. 6. In this case, as noted above, Judge Kyle denied plaintiff’s motion to conditionally certify the case as a collective action under the FLSA without prejudice, noting that plaintiff could have filed a motion to compel the contact information of other customer-service representatives and requested deferral of the decision for conditional class certification. Having left the door open for plaintiff to revisit a motion for conditional class certification, this Court concludes that the identity of defendant’s employees is reasonably likely to yield support for plaintiff’s class allegations with regards to her assertion that she is similarly situated to other employees of defendant. See Sjoblom v. Charter Communications, LLC, 2008 WL 4276928 at *2 (W.D. Wis. Jan. 04, 2008) (collecting cases); see also Bailey v. Ameriquest Mortgage Company, 2002 WL 100388 at *2 (D. Minn. Jan. 23, 2002) (finding that the Supreme Court in Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) required that the production of employee names and contact information was required before a “similarly situated” analysis could take place in a FLSA case). As such, this Court ordered defendant to produce to plaintiff the names, dates of employment, last known address and phone numbers of current and former customer-service representatives at defendant’s call centers located in Eagan, Minnesota and Virginia, Minnesota who were employed by defendant. However, until the issue of conditional class certification is resolved, defendants will not be required to produce the salaries, bonuses and other compensation of those individuals identified. In order to mitigate privacy concerns raised by defendant, this Court also ordered that the contact information be produced to plaintiff’s attorney for use in this ligation alone and may not be disclosed to plaintiff. See Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 554-55 (N.D. Ill. 2008) (finding that collective actions under FLSA require a broader scope of discovery in order to identify similarly situated employees who may wish to opt-in to the suit and that a protective order making the contact information “attorney’s eyes only” sufficiently mitigated any privacy concerns regarding those employees). In the event that the class is conditionally certified, or plaintiff has some other good cause basis for discovering the identity of prospective class members, plaintiff can move this Court to modify the limitations placed on this information. The only issue remaining for the Court to decide is whether to require that the production of the contact information for putative class members range in time from February 29, 2002 to the present[1] or from February 29, 2005 to the present February 29, 2008. The resolution of this issue is dependent upon the applicable statute of limitations of plaintiff’s unjust enrichment claim.[2] Plaintiff asserts that the applicable statute of limitations for an unjust enrichment claim under Minnesota law is six years; defendant contends that the maximum statute of limitations for an unjust enrichment claim arising out of an employment relationship is three years. At the Court’s request, the parties provided it with supplemental letter briefs on this issue. In her Amended Complaint, plaintiff alleged that defendant: (1) required employees to perform unpaid work before and after the end of each work shift; and (2) failed to provide compensation to employees for attending mandatory meetings which cut into their statutorily required rest periods. See Amended Complaint, ¶¶ 11-15. Plaintiff’s claim for unjust enrichment alleged that these work activities by employees provided a benefit to defendant that it knew about and that defendant was not entitled to retain this benefit without paying the employees for it. Id., ¶¶ 74-76. Therefore, plaintiff asserted that class members were entitled to recover the reasonable value of the benefit conveyed to defendant for the performance of this work. Id., ¶ 77. *4 Plaintiff contended that the six-year statute of limitations applied to her unjust enrichment claim pursuant to Minn. Stat. § 541.05, subd. 1(1), which provides that “[e]xcept where the Uniform Commercial Code otherwise prescribes, the following actions shall be commenced within six years: (1) upon a contract or other obligation, express or implied, as to which no other limitation is expressly prescribed; ...” However, plaintiff ignores Minn. Stat. § 541.07(5), which provides in relevant part: Except where the Uniform Commercial Code, this section, section 148A.06, 541.05, 541.073, or 541.076 otherwise prescribes, the following actions shall be commenced within two years: * * * (5) for the recovery of wages or overtime or damages, fees, or penalties accruing under any federal or state law respecting the payment of wages or overtime or damages, fees, or penalties except, that if the employer fails to submit payroll records by a specified date upon request of the Department of Labor and Industry or if the nonpayment is willful and not the result of mistake or inadvertence, the limitation is three years. (The term “wages” means all remuneration for services or employment, including commissions and bonuses and the cash value of all remuneration in any medium other than cash, where the relationship of master and servant exists and the term “damages” means single, double, or treble damages, accorded by any statutory cause of action whatsoever and whether or not the relationship of master and servant exists);... Minn. Stat. § 541.07(5) (emphasis added). The Minnesota Supreme Court has held that given the broad definition of wages in § 541.07(5), a claim to recover unpaid commissions based upon the theory of quantum meritum or unjust enrichment is governed by the two year statute of limitations prescribed by § 541.07(5). See Roaderick v. Lull Engineering Company, Inc., 296 Minn. 385, 386-88, 208 N.W.2d 761, 763 (1973). Indeed, Minnesota courts have consistently held that “[a]ll damages arising out of the employment relationship are subject to the two-year statute of limitations set forth in Minn. Stat. § 541.07(5).” Stowman v. Carlson Cos., 430 N.W.2d 490, 493 (Minn. Ct. App. 1988), rev. denied (Minn. Jan. 13, 1989) (citing Portlance v. Golden Valley State Bank, 405 N.W.2d 240, 243 (Minn. 1987)); see also Botten v. Shorma, 440 F.3d 979, 980 (8th Cir. 2006) (“ ‘Minnesota courts consistently hold that all damages arising out of the employment relationship are subject to § 541.07(5).’ ”) (quoting Kulinski v. Medtronic Bio-Medicus, Inc., 112 F.3d 368, 371 (8th Cir. 1997)); Idearc Information Service, LLC v. Mangan, 2007 WL 4179395 at *2 (D. Minn. Nov. 20, 2007) (“Mangan asserts that Idearc was unjustly enriched when it did not pay him commissions he was due. Because the underlying basis for this claim is for unpaid wages and commissions, the statute of limitations applicable to wage claims applies.”) (citation omitted); Rich v. Roth, 1994 WL 149408 at *1 (Minn. Ct. App. April 19, 1994) (“All damages arising out of the employment relationship are subject to the two-year statute of limitations set forth in Minn. Stat. § 541.07(5).”) (citation and marks omitted).[3] *5 In this case, the gravamen of the plaintiff’s unjust enrichment claim is that defendant did not pay its employees for work performed, making the claim essentially one for wages arising out of the employment relationship. Therefore, this Court finds that plaintiff’s unjust enrichment claim is subject to the statute of limitations set forth in § 541.07(5).[4] Given that the maximum statute of limitations set forth in § 541.07(5) is three years and the maximum statute of limitations for claims under the FLSA is three years, defendants shall be required to produce contact information for putative class members who worked during the period of February 29, 2005 to the present. Footnotes [1] This Court notes that the present action was commenced on February 29, 2008. See Docket No. 1. [2] The parties do not dispute that the maximum applicable statute of limitations for FLSA claims is three years. See LePage v. Blue Cross and Blue Shield of Minnesota, 2008 WL 2570815 at *2 (D. Minn. June 25, 2008) (noting that claims for willful violations of the FLSA are subject to a three year statute of limitations). [3] This Court notes that one unpublished decision out of the Minnesota Court of Appeals, Evenson v. Henson, 2003 WL 22293649 (Minn. Ct. App. Oct. 07, 2003), held that the six-year statute of limitations under Minn. Stat. § 541.05, subd. 1(1)applied to an unjust enrichment claim in a case dealing with unpaid commissions where the Court found that there was no legal obligation by the defendant to pay the commissions and therefore, the unjust enrichment count was not a claim for lost wages or commissions as required for Minn. Stat. § 541.07(5) to apply. [4] This Court notes that plaintiff argued in opposition to defendant’s motion to dismiss that she should be allowed to simultaneously pursue her common law unjust enrichment claim and statutory wage claims, in part, because the applicable statute of limitations for an unjust enrichment claim (6 years) was longer than that for a FLSA claim (three years). See Named Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Partial Dismissal [Docket No. 18] at pp. 45-46. However, Judge Kyle made no ruling as to the statute of limitations regarding the unjust enrichment claim; he only held that while plaintiff could not receive double recovery, she was free to pursue relief under both the FLSA as well as an unjust enrichment claim. See LePage, 2008 WL 2570815 at *8.