Pending before the Court are Defendants’ Motion for Leave to File Sur-Reply to Plaintiff’s Motion for a Protective Order, ECF 133, and Plaintiffs’ Motion for Protective Order. ECF 130.

Defendants seek to propound discovery on approximately 800 opt-in class members and to depose 166 of them regarding the details of their vehicle cost histories. Plaintiffs seek an Order that will define and limit what discovery is proper in this case. In their response, Defendants request that the Court compel Plaintiffs to respond to Defendants’ discovery requests directed to Plaintiffs and the Opt-In Plaintiffs. ECF 131, PageID 2180.

On November 5, 2019, the Court issued a summary judgment decision concerning the legal standard that governs this case’s claims and defenses: employers must “either (1) track and pay delivery drivers’ actual expenses or (2) pay the mileage reimbursement rate set by the Internal Revenue Service.” ECF 124, PageID 1947. This ruling means that Plaintiffs may prove their case through Defendants’ records.

Defendants seek discovery from over 800 opt-in class members. See Amended Rule 26(f) Report, PageID 2002–05. Specifically, Defendants seek to propound “questionnaires” on all of the 800 opt-ins. Id. Defendants’ proposed “questionnaires” seek detailed information regarding each driver’s history of vehicle-related expenses. Id. at PageID 2004. Defendants also “seek to depose the six named Plaintiffs in addition to a representative sample of at least 20% of the opt-in Plaintiffs,” presumably to ask about the details of the same history of their vehicle costs incurred. Id.

Defendants’ position is that the Court’s order did not address the threshold issue of whether Plaintiffs actually incurred costs. Plaintiffs must prove that they actually incurred costs to establish liability. The fact that the parties agree that motor vehicles were used to deliver the pizzas suffices to prove that costs were incurred in their delivery. The pizzas were not walked to homes and we are not dealing with bicycle delivery. The parties agree that cars were used. The Court thus dispenses with Defendants’ position that “If Plaintiffs did not actually incur costs, they cannot have been ‘under-reimbursed.’ ” ECF 131, PageID 2183.

On November 5, 2019, this Court entered an Order which provides that: “the proper measure of minimum wage compliance for pizza delivery drivers is to either (1) track and pay delivery drivers’ actual expenses or (2) pay the mileage reimbursement rate set by the Internal Revenue Service.” (ECF 124 at 1947). Defendants chose not to track and pay actual expenses to comply with the Fair Labor Standards Act; Plaintiffs are now entitled to show damages by means of the mileage reimbursement rate set by the Internal Revenue Service.

Under Federal Rule of Civil Procedure 26(b)(1):

*2 Plaintiffs challenge whether the proposed discovery is relevant to a claim or defense, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

In this case, Plaintiffs claim: that Defendants employ Plaintiffs as pizza delivery drivers; that Defendants pay the drivers at, or close to, minimum wage; that Defendants require the drivers to provide their own vehicles to deliver food; that the vehicles cost money to operate and maintain; that Defendants did not track or reimburse Plaintiffs’ actual vehicle costs; and that Defendants reimbursed Plaintiffs’ vehicle costs at less than the IRS rate. See Order, Doc 124, PageID 1933–34.

When a worker is paid at, or close to, minimum wage, any expense that an employer forces the employee to incur will necessarily violate the FLSA’s “anti-kickback” regulation, 29 C.F.R. § 531.35. Id. at PageID 1941. To avoid this result and ensure that wages are paid “free and clear,” an employer must reimburse the employee for the employee’s expenses.

In the delivery driver context, “the proper measure of minimum wage compliance for pizza delivery drivers is to either (1) track and pay the delivery drivers’ actual expenses or (2) pay the mileage reimbursement rate set by the Internal Revenue Service.” Id. at PageID 1947. As this Court held on summary judgment:

Id. at 1944.

An employer’s own records will answer the question of whether the employer complied with minimum wage laws. Thus, the case can be resolved “at relatively low litigation cost” by examining those records. Doc 124, PageID 1944. The first question is whether Defendants tracked and reimbursed the delivery drivers’ actual expenses. Only Defendants can answer this question. If Defendants did track and reimburse the drivers’ actual expenses, then Defendants will have records to demonstrate their compliance. If Defendants did not track and reimburse actual vehicle expenses, then Defendants’ records will show whether Defendants reimbursed the drivers at the IRS standard business mileage rate. To determine this, Plaintiffs can seek from Defendants records of any reimbursements Defendants paid; and delivery records, which will show, or can be used to determine, the miles the drivers drove.

With this information, one can calculate how much Plaintiffs should have been reimbursed (miles driven × IRS Rate), how much Plaintiffs were actually reimbursed per mile (reimbursements paid ÷ miles driven), and whether the difference dropped Plaintiffs below minimum wage in any specific week ((wages paid each week – under-reimbursement each week) ÷ hours worked each week) = net hourly wage). There is no information that an opt-in plaintiff can provide that will bear on these issues. All necessary information is in Defendants’ possession.

*3 Discovery in this case should be a straightforward process, focused mainly on the records Defendants are required to keep under the FLSA and Ohio law. Defendants, however, claim “Defendants are entitled to discovery relating to the actual costs that the drivers incurred to prove that reimbursements paid by Defendants covered the drivers’ actual costs incurred...” ECF 126, PageID 2004.

Defendants seek: (1) depositions of a representative sample of the Opt-In Plaintiffs; (2) interrogatory and document requests to the six-named Plaintiffs; (3) depositions of the six named-Plaintiffs; and (4) an eight-question questionnaire to be completed by the Opt-In Plaintiffs. (Parker Cert., Ex. 1, Questionnaire).

Defendants also seek expert discovery asserting, “Defendants are entitled to present expert testimony that their reimbursement practices reasonably and adequately reimbursed drivers’ costs and did not reduce the drivers’ wages below the minimum wage.” ECF 126, PageID 2002. This is the same standard that Defendants argued for in their Motion for Partial Summary Judgment. See Defendants’ Motion, ECF 117. The Court has previously rejected this standard. Defendants may use whatever records they maintained to assist their expert in showing that they complied with the minimum wage statute.

Defendants seek discovery from every opt-in delivery driver in an attempt to show that Defendants’ reimbursement amount matched the expenses for which a particular driver still has an accurate memory and/or receipts. This is not the legal standard for this type of lawsuit. Order, ECF 124, PageID 1947. Defendants’ proposed “questionnaire” contains eight sections. See ECF 131-1, pp. 4–9. For example, Defendants count as only “one question” a request for the “Year/Make/Model” of each vehicle driven for Defendants, “date of purchase” of each vehicle, “date you otherwise first possessed the automobile,” “name of person(s) who paid for automobile,” “purchase price,” “value when you first began using it for pizza delivery,” “value when you last used it for pizza delivery,” whether miles per gallon were tracked,” “average miles per gallon during time used for pizza delivery,” “approximate date first used for pizza delivery,” “approximate date last used for pizza delivery,” “odometer reading when first used for pizza delivery,” “odometer reading when last used for pizza delivery,” “average number of miles driven for any reason per week,” a request for any documents related to each of those answers, a question about “itemized tax deductions for unreimbursed business expenses related to your vehicle,” and a request for production of tax filings. Id. As another example of the breadth of that questionnaire, Defendants count as only “one question” their request for a comprehensive listing of the dates, descriptions, service providers, cost and payor of every vehicle service and repair purchased since April 27, 2014. Id. Plaintiffs thus moved for a protective order. ECF 130.

The Court already explained Defendants’ options:

*4 ECF 124, PageID 1941-42.

Defendants will not be permitted to put Plaintiffs through the trouble, effort, and expense required by demanding that drivers produce information the drivers likely no longer have and had no reason or duty to keep. If Defendants claim they paid the drivers’ actual expenses, then Defendants must produce evidence that they “tracked and paid” those expenses. “[A] reasonably diligent employer must in some manner maintain records of vehicle costs, even if the FLSA and Regulations did not already require the employee to do so.” ECF 124, PageID 1946.

Because Defendants have not tracked and paid the drivers’ actual expenses, the drivers’ individual vehicle expenses (if maintained at all by the drivers) are irrelevant. Defendants may measure their minimum wage compliance against the IRS mileage rate. ECF 124, PageID 1947.

Finally, even if opt-in discovery was proper, Defendants’ proposed plan exceeds the proportionality requirement of Rule 26(b)(1). It is not proper to impose an extreme discovery burden on minimum wage workers. See Fed. R. Civ. P. 26(b)(1) (taking into account the parties’ relative resources and the discovery’s burden and expense). To hold otherwise negates the very efficiencies gained by the collective action mechanism and “would undermine the purpose and utility of both class and collective actions.” Smith v. Lowe’s Home Centers, Inc., 236 F.R.D. 354, 356 (S.D. Ohio May 5, 2006); see also Gentrup v. Renovo Servs., LLC, No. 1:07-cv-430, 2010 WL 6766418, *7 (S.D. Ohio Aug. 17, 12 2010) (While “[d]efendants have legitimate interests in obtaining sufficient discovery to support their defenses,... these rights must be balanced against other important policy considerations, including imposing such burdens on the class as to make collective actions impractical.”).

Representative discovery is appropriate in food delivery cases. Brandenburg v. Cousin Vinny’s Pizza, LLC, No. 3:16-cv-516, ECF 151 (S.D. Ohio)(Rice, J.). Plaintiffs’ motion will be granted, Defendants will be prohibited from propounding discovery related to the delivery drivers’ individual vehicle expenses or whether Defendants’ “reasonably approximated” those expenses.

Defendants’ Motion for Leave to File Sur-Reply to Plaintiff’s Motion for a Protective Order, ECF 133, seeks permission to file a sur-reply, but has not attached a proposed sur-reply for the Court’s consideration. While Local Rule allows sur-replies with leave of Court upon a showing of good cause, see L.R. 7.2(a)(2), the Court cannot determine good cause without a tendered document. This alone is grounds to deny the motion. See John J. Fuertes v. Ford Motor Co.., 2009 WL 10492299 n.1 (W.D. Ky. 2009); Barnwell v. Corr. Corp. of Am., No. 08-CV-2151, 2008 WL 4809887, at *2 (D. Kan. Oct. 31, 2008).

Thus, Defendants’ Motion for Leave to File Sur-Reply to Plaintiff’s Motion for a Protective Order, ECF 133, is DENIED, and Plaintiffs’ Motion for Protective Order, ECF 130, is GRANTED. Defendants are prohibited from propounding discovery related to the delivery drivers’ individual vehicle expenses or whether Defendants’ “reasonably approximated” those expenses. The Court is setting a preliminary pretrial conference for April 14, 2020, at 10:00 AM. The parties are ORDERED within 14 days to file an updated Fed. R. Civ. P. 26(f) report with proposed deadlines for completing discovery and for filing a motion to certify a class, and a proposed date for class action determination.

*5 DONE and ORDERED in Dayton, Ohio, this Friday, March 6, 2020.