Ovando v. Mount Aire Farms, Inc.
Ovando v. Mount Aire Farms, Inc.
2024 WL 1815446 (E.D.N.C. 2024)
April 24, 2024
Jones Jr., Robert B., United States Magistrate Judge
Summary
The court addressed issues related to ESI, including the form of document production and the identification of responsive documents by specific Bates numbers. The court found that Defendants must respond to certain interrogatories and requests for production, and that the form of document production complied with the parties' agreement.
Additional Decisions
JACINTO GOMEZ OVANDO, and MARIA DEL CARMEN PERALTA BAEZA, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
MOUNT AIRE FARMS, INC., and MOUNTAIRE FARMS OF NORTH CAROLINA, CORP., Defendants
v.
MOUNT AIRE FARMS, INC., and MOUNTAIRE FARMS OF NORTH CAROLINA, CORP., Defendants
No. 7:23-CV-4-M
United States District Court, E.D. North Carolina
Filed April 24, 2024
Counsel
Amanda M. Whitt-Downs, Hannah B. Simmons, Matthew S. Marlowe, Matthew Donald Wright, Gilda A. Hernandez, The Law Offices of Gilda A. Hernandez, PLLC, Cary, NC, for Plaintiffs.Jerry H. Walters Jr., Littler Mendelson, P.C., Charlotte, NC, Joshua B. Waxman, Kimberly J. Duplechain, Littler Mendelson, PC, Washington, DC, Michael Scott McIntosh, Shaun M. Bennett, Laura Ann Saracina, Littler Mendelson, P.C., Tysons Corner, VA, for Defendants.
Jones Jr., Robert B., United States Magistrate Judge
ORDER
*1 This matter comes before the court on Plaintiffs' motion to compel and for sanctions, [DE-56]; Plaintiffs' motion to modify the scheduling order, [DE-58]; Defendants' motion to strike, [DE-62]; Defendants' motion for protective order, [DE-64]; Defendants' motion for a limited extension of Phase I discovery, [DE-70]; Plaintiffs' motion to strike, [DE-73]; and Defendants' motion to extend Phase I briefing deadlines, [DE-81]. The motions are fully briefed and ripe for decision. For the reasons that follow, the motion to compel and for sanctions and the motion for protective order are allowed in part and denied in part, the motions for extension of the Phase I discovery deadline and motion for extension of the Phase I briefing deadlines are allowed, and the motions to strike are denied.
I. Background
Plaintiffs Ovando and Baeza, who worked on the chicken processing line for Defendant Mountaire Farms, brought this action for alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and the North Carolina Wage and Hour Act, N.C. Gen. Stat. §§ 95-25.6 and 95-25.13, et seq. (“NCWHA”) stemming from unpaid overtime compensation, unpaid wages, and wages unlawfully deducted, including violations related to personal protective equipment (“PPE”). Am. Compl. [DE-22]. Defendants filed a motion for partial dismissal, [DE-25], which resulted in dismissal of any claims in Count Two for unpaid overtime and/or straight time for donning and doffing activities during weeks in which Plaintiffs are found to have worked more than forty hours, but was otherwise denied, [DE-75].
Initially, the parties could not agree on a discovery plan and filed individual competing plans. [DE-30, -31]. After a scheduling conference with the court, the parties filed a joint discovery plan, [DE-42], and the court entered a scheduling order, which provided for an initial Phase I Pre-certification discovery period, after which Plaintiffs would file a motion for conditional and/or class certification, [DE-44]. Multiple discovery and scheduling disputes followed, which resulted in the motions addressed herein.
II. Discussion
A. Plaintiffs' Motion to Compel and for Sanctions [DE-56]
Plaintiffs ask the court to compel Defendants to (1) respond to Plaintiffs' First Set of Interrogatories, Nos. 10–15; (2) amend and/or supplement their responses to Plaintiffs' First Set of Requests for Production of Documents in their entirety with specific Bates numbers responsive to each request, including providing payroll information responsive to RFP No. 2 in Excel or native format, and to respond to RFP Nos. 1–15; (3) cooperate and designate corporate officials to sit for a 30(b)(6) deposition; and (4) cooperate and work with Plaintiffs in scheduling dates for Plaintiffs' time study expert to conduct a time study, including engaging in a preliminary site visit. Pls.' Mot. [DE-56] at 1-2. Plaintiffs also seek sanctions against Defendants for willfully resisting the discovery process. Id. at 2. Defendants contend that Plaintiffs' Interrogatories and RFPs exceeded the allowable number in violation of the scheduling order, Defendants produced documents in conformity with the scheduling order and Federal Rules, Plaintiffs' 30(b)(6) deposition notices were not properly served and the topics exceeded the scope of Phase I discovery, Plaintiffs' request for an expert site visit for a time study is premature, Plaintiffs failed to meaningfully engage in the meet and confer process, and the court should award Defendants their attorney's fees and costs in defending a baseless and premature motion. Defs.' Mem. [DE-60] at 6-14.
*2 Rule 26 provides the general rule regarding the scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “Relevancy under this rule has been broadly construed to encompass any possibility that the information sought may be relevant to the claim or defense of any party.” Equal Emp't Opportunity Comm'n v. Sheffield Fin. LLC, No. 1:06-CV-889, 2007 WL 1726560, at *3 (M.D.N.C. June 13, 2007); Prasad v. Nallapati, 597 F. Supp. 3d 842, 846 (E.D.N.C. 2022); Mainstreet Collection, Inc. v. Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) (“During discovery, relevance is broadly construed ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ”) (quoting Oppenheimer Fund., Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
“A party seeking discovery may move for an order compelling an answer, designation, production, or inspection” if a party fails to answer an interrogatory or to produce or make available for inspection requested documents. Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). However, the Federal Rules also provide that
the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C). “Additionally, the court has ‘substantial discretion’ to grant or deny motions to compel discovery.” English v. Johns, No. 5:11-CT-3206-D, 2014 WL 555661, at *4 (E.D.N.C. Feb. 11, 2014) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995)). Finally, the party seeking the court's protection from responding to discovery “must make a particularized showing of why discovery should be denied, and conclusory or generalized statements fail to satisfy this burden as a matter of law.” Prasad, 597 F. Supp. 3d at 846 (quoting Mainstreet Collection, 270 F.R.D. at 240).
As an initial matter, it appears the meet and confer efforts, required by Local Civ. R. 7.1(c)(2), were cut short by the filing of the motion to compel. The good faith communication requirement is not merely technical but promotes the orderly resolution of discovery disputes, Lloyd v. New Hanover Reg'l Med. Ctr., No. 7:06-CV-130-D, 2009 WL 674394, at *1 (E.D.N.C. Mar. 11, 2009), and the court expects counsel to fully exhaust efforts to resolve such disputes where they are able prior to filing discovery motions. However, given the case posture, the court in its discretion turns to the merits.
1. Interrogatories and RFPs
*3 Plaintiffs take issue with Defendants' failure to respond to Interrogatory Nos. 10–15 and RFP Nos. 11–14, Pls.' Mem. [DE-57] at 8-9, which Defendants contend exceeded the permissible number allowed in the scheduling order due to the inclusion of compound interrogatories and RFPs that did not account for discrete subparts, Defs.' Resp. [DE-60] at 6–8.
The scheduling order adopted “not inconsistent” provisions of the parties' discovery plan, [DE-44] at 3, which included a limit of fifteen interrogatories and fifteen RFPs per side during Phase I discovery, [DE-42] at 18–19. “When a party is confronted with what it believes to be an excessive number of interrogatories, the appropriate course of action is to either move for a protective order before answering any interrogatories or answer up to the numerical limit and object to the remainder without answering.” Mondragon v. Scott Farms, Inc., 329 F.R.D. 533, 541 (E.D.N.C. 2019) (citations omitted), objections overruled, 2019 WL 489117 (E.D.N.C. Feb. 7, 2019). This court has applied the following test to determine whether multiple questions in a discovery request are each a discrete subpart:
if a subpart of an interrogatory is “logically or factually subsumed and necessarily related to the primary question,” it does not count as a discrete subpart. “Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question?”
DIRECTV, Inc. v. Knowles, No. 7:03-CV-163-F(1), 2005 WL 8159565, at *2 (E.D.N.C. Jan. 21, 2005) (internal citation omitted) (quoting Kendall v. GES Exposition Serv., Inc., 174 F.R.D. 684, 685 (D. Nev. 1997)).
The court has reviewed the interrogatories and RFPs and finds that, while some could have been drafted more artfully, what Defendants characterize as subparts are for the most part sufficiently related to the primary question such that they do not constitute distinct subparts that must be counted toward the limit of fifteen. Furthermore, to the extent the requests did exceed the limit, the court would find good cause to allow the additional requests. See Fed. R. Civ. P. 16(b)(4), 26(b)(2)(A); Banks v. N.C. Dep't of Corr., No. 5:03-CV-772-BO(3), 2005 WL 8159269, at * 1 (E.D.N.C. Apr. 15, 2005) (finding defendant waived its objection to the excess interrogatories by responding to the first seven but “in addition, and in any event” that good cause existed for the interrogatories, including all of their subparts); DIRECTV, Inc., 2005 WL 8159565, at *3 (declining to engage in counting subparts, finding that most if not all of the alleged discrete subparts were subsumed and related to the primary questions, that defendant waived the argument, and additionally that there was good cause for the interrogatories, including subparts). Accordingly, Defendants shall respond to Interrogatory Nos. 10–15 and RFP Nos. 11–14.
2. Defendants' Document Production
Plaintiffs assert that Defendants produced some documents in non-native format in contravention of the parties' ESI agreement and failed to identify responsive documents by specific Bates numbers. Pls.' Mem. [DE-57] at 9-10. Defendants contend that the form of the document production complied with the parties' agreement but that they reproduced the documents in the form requested by Plaintiffs, they produced documents in response to the RFPs as they were kept in the ordinary course of business so they were not required to identify the responsive documents by Bates number, and they supplemented their interrogatory responses to provide clarification regarding the referenced documents. Defs.' Resp. [DE-60] at 8–10.
*4 The issues of the documents produced in non-native vs. native format and the allegedly deficient interrogatory responses have been remedied by Defendants and are now moot.
Pursuant to Fed. R. Civ. P. 34(b)(2)(E)(i), when producing documents or ESI, a party must either (1) produce them as they are kept in the usual course of business, or (2) organize and label them to correspond to the categories in the request. “If, as here, a party claims to have produced documents as they were kept in the usual course of business, that party bears the burden of demonstrating that the documents were kept in the same manner that they were produced.” TJF Servs., Inc. v. Transportation Media, Inc., No. 5:17-CV-626-RN, 2019 WL 7599942, at *4 (E.D.N.C. Jan. 22, 2019) (citing Stillwagon v. Innsbrook Golf & Marina, LLC, No. 2:13-CV-18-D, 2014 WL 1652562, at *4 (E.D.N.C. Apr. 23, 2014)). This burden may be met by providing information “about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or multiple sources or files.” Id. (quoting Spilker v. Medtronic, Inc., No. 4:13-CV-76-H, 2015 WL 1643258, at *4–5 (E.D.N.C. Apr. 13, 2015)). Defendants informed Plaintiffs that the documents were “organized by custodian and by the location/container in which the relevant custodians maintained them.” Pls.' Ex. 9 [DE-57-10] at 5. The court finds this information sufficient to demonstrate that the documents were produced in the usual course of business and nothing more is required.
3. Defendants' Rule 30(b)(6) Deposition
Plaintiffs assert that Defendants refused to consent to a Rule 30(b)(6) deposition because Plaintiffs would not adopt Defendants' proposed revisions to the noticed topics even though the noticed topics were within the parties' agreed-to scope of discovery, and Defendants have improperly denied Plaintiffs' right to enter Defendants' premises to conduct a time study. Pls.' Mem. [DE-57] at 10–11. Defendants contend that Plaintiffs failed to properly serve a deposition notice prior filing their motion to compel, Defendants worked to resolve the parties' dispute regarding deposition topics, and Defendants request a protective order directed at Defendants' perceived deficiencies in Plaintiffs' purported 30(b)(6) notice. Defs.' Resp. [DE-60] at 8–10.
With regard to deposition topics, the court finds that further meet and confer efforts should obviate the need for court involvement. It appears from counsels' correspondence that they were making progress on this issue before Plaintiffs reversed course, cutting short those efforts with the filing of the instant motion. See, e.g., Pls.' Ex. 9 [DE-57-10] at 16. Further, it appears the foremost impediment to agreement was the parties' differing views on the appropriate scope of discovery. In further discussions, the parties should adhere to the agreed scope of discovery for Phase I, which is found at [DE-42] at 2–4, rather than the broader scope for Phase II merits discovery found at [DE-42] at 13-17, for which Plaintiffs advocate, Pls.' Mem. [DE-57] at 10. The court expects that the deposition notice will be properly served and comply with the parties' agreed-to limits on Phase I discovery.
*5 As for the request to enter Defendants' premises to conduct a time study, the court agrees with Defendants that this is premature. The parties' agreed-to discovery plan contemplates that Plaintiffs may disclose a time study expert in Phase I but that expert discovery would occur in Phase II:
... a time study expert, whom Plaintiffs may retain for purposes of conducting a time study of pre-and post-shift donning/doffing activities and working lunch breaks, to determine the amount of uncompensated time spent on such activities. Nevertheless, should such experts be identified during Phase I, expert reports may be produced after the expiration of Phase I discovery, but no later than Phase II, and depositions of such experts, if any, shall be conducted during Phase II discovery. The Parties agree that Plaintiffs shall not rely upon the opinions of any expert for whom a report has not been produced, and with respect to whom discovery has not been taken, in support of their anticipated motion for conditional certification under the FLSA pursuant to 29 U.S.C. § 216(b), and/or motion for class certification on their state claims under the NCWHA, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
[DE-42] at 23-24 (internal footnote omitted). While this provision could be clearer, it is most reasonably construed as contemplating any time study be conducted in Phase II.
4. Sanctions
The court finds that sanctions are not warranted and the parties should bear their own costs where Defendants did not unjustifiably resist discovery, there was no bad faith on the part of Defendants, the meet and confer process was cut short, the parties' positions were not baseless, and an award of attorney's fees and expenses would be unjust. Fed. R. Civ. P. 37(a)(5)(A).
B. Defendants' Motion for Protective Order [DE-64]
Defendants seek a protective order regarding the noticed depositions of Beth Pryor and Rodrigo Lozano that (1) relieves Defendants of producing those witnesses pending resolution of the disputed issues, (2) directs Plaintiffs to comply with the provision of the court's scheduling order requiring that depositions be scheduled on an alternating basis and to coordinate the individual and 30(b)(6) depositions so that each deponent will testify only once, (3) directs Plaintiffs to meaningfully confer with Defendants regarding such scheduling to avoid undue burden on the witnesses and parties, and (4) precludes Plaintiffs from including and/or enforcing any requests for the production of documents at depositions that do not comport with the time requirements set forth in Fed. R. Civ. P. 34(b)(2)(A) and/or which exceed the limits on the number of document requests set by the court's scheduling order. Defs.' Mot. [DE-64] at 1. Plaintiffs contend that the alternating deposition schedule is no longer necessary, Defendants have shown no good cause for maintaining it, and Plaintiffs are not required to conduct a 30(b)(6) and individual capacity deposition of the same deponent on the same date. Pls.' Resp. [DE-69] at 7–10.
First, the parties agreed to an alternating deposition schedule “to help ensure fairness and to avoid gamesmanship in connection with discovery,” [DE-42], at 21 & n.7, and this provision was adopted by the court's scheduling order, which can only be altered for good cause and with the judge's consent, Fed. R. Civ. P. 16(b)(4). If Plaintiffs wanted relief from this provision, they should have sought to modify the scheduling order. The court finds that the stated reasons for including the provision in the first place provide good cause for its continued enforcement to the extent practicable given the necessary depositions remaining. Additionally, the court will extend the discovery deadline, discussed below, which should allow the parties more flexibility to comply with the provision. The parties shall abide by the alternating deposition provision unless they agree otherwise.
*6 Next, Plaintiffs are not required to conduct a 30(b)(6) and individual capacity deposition of the same deponent on the same date, and Rule 30(a)(2)(A)(ii) does not apply. See Caraustar Indus., Inc. v. N. Ga. Converting, Inc., No. 3:04CV187-H, 2006 WL 8456292, at *2 (W.D.N.C. Mar. 22, 2006) (“Plaintiff points out correctly that Rule 30(a)(2)(B)'s prohibition against re-deposing witnesses does not apply to individual depositions of witnesses who had testified previously as a corporate designee under Rule 30(b)(6),” and “although the Defendant expressed its preference that the Plaintiff depose Mr. Mintz individually on the same date that he was deposed on behalf of the Defendant, the Plaintiff was not required to do so.”). The court will not order Plaintiffs to conduct the individual and 30(b)(6) depositions of the same deponent on the same date, but notes that doing so, to the extent possible, would comport with the mandate of Rule 1 that the Federal Rules should be employed by the parties “to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Finally, any requests for the production of documents at depositions must comport with the time requirements set forth in Fed. R. Civ. P. 34(b)(2)(A) and must not exceed the limits on the number of document requests set by the court's scheduling order.
The parties shall work cooperatively to schedule all remaining Phase I depositions.
C. Motions to Strike [DE-62, -73]
Defendants move to strike a “Notice” filed by Plaintiffs in support of the motion to compel, [DE-61], as an improper reply brief. [DE-62]. Plaintiffs move to strike Defendants' reply in support of their motion to strike, [DE-68], as an improper reply brief. [DE-73]. The court did not consider the purported “Notice” in ruling on the motion to compel, nor did it consider the Defendants' reply in ruling on the motion to strike. Accordingly, the court in its discretion declines to strike either filing and the motions are summarily denied.
D. Motions for Extension of Time [DE-58, -70-, 81]
Plaintiffs seek an extension of Phase I deadlines and to permit a time study be conducted outside of Phase I. Pls.' Mot. [DE-58] at 1–3. Defendants seek an extension of Phase I discovery for the purpose of taking the deposition of Plaintiff Maria Del Carmen Peralta Baeza. Defs.' Mot. [DE-70] at 1–4. Defendants also seek an extension of the Phase I briefing deadlines. Defs.' Mot. [DE-81] at 1–2.
The court has ordered additional Phase I discovery be conducted and finds good cause to extend the Phase I discovery deadline to allow the parties to comply with this order, including taking the deposition of Plaintiff Baeza. Furthermore, consistent with the ruling above, any time study may be conducted outside of Phase I. Finally, the additional discovery may impact dispositive and conditional/class certification motions, which merits extension of those deadlines as well. Accordingly, for good cause shown, the Phase I deadlines are extended as follows:
- The parties shall complete all Phase I discovery, as ordered herein, by no later than June 12, 2024; and
- Plaintiffs may file a new conditional and/or class certification motion by no later than July 24, 2024, and any potentially dispositive motion shall be filed no later than July 24, 2024. Responses, including to Plaintiffs' pending motion for conditional and/or class certification should they elect not to file a new motion, shall be due no later than August 23, 2024, and replies shall be due no later than September 13, 2024;
III. Conclusion
For the reasons stated here, the motion to compel and for sanctions and the motion for protective order are allowed in part and denied in part, the motions for extension of the Phase I discovery deadline and motion for extension of the Phase I briefing deadlines are allowed, and the motions to strike are denied.
SO ORDERED, the 24th day of April, 2024.