Devries v. Morgan Stanley & Co. LLC
United States District Court for the Southern District of Florida
March 2, 2015, Decided; March 2, 2015, Entered on Docket
Case No. 12-81223-CIV-MARRA/MATTHEWMAN
Reporter
2015 U.S. Dist. LEXIS 27293
Jesse Adventure Bean, Peter John Beattie, Trevor Sloan
Prior History: Devries v. Morgan Stanley & Co. LLC, 2013 U.S. Campbell, Michael Thomas Casey, Morgan Carter, Jeffrey Alan
Dist. LEXIS 89714 (S.D. Fla., June 26, 2013)
Chase, Travis W Conlon, Shaun Michael Dalton, Alah Daoudi,
Ryan K Dix, Michael A Duke, David W Edwards, Eric Daniel
Counsel: [*1] For Fred Devries, individually and on behalf of all Eisenberg, Amil Esmailpour, Adam M Foldes, April Elizabeth
others similarly situated, Ruby Teich Plaintiffs: Fran L. Rudich, Acuna, Daniel Lee Adams-Arman, Tunc Akin, Scott David
Michael John Palitz, Rachel Aghassi, Seth R. Lesser, LEAD Allore, Kristin Altimari, Vladimir Babiuc, Scott Robert Belshaw,
ATTORNEYS, PRO HAC VICE, Klafter, Olsen & Lesser, LLP, Diana Michelle Bowar, Michael Burns, Mark Allen Cady, Ken
Rye Brook, NY; Gregg I. Shavitz, LEAD ATTORNEY, Shavitz Calhoun, Kathleen Anne Canape-Fatta, George Nicholas
Law Group, Boca Raton, FL; Susan Hilary Stern, LEAD Carranza, Colin D Cissne, Andrea Elizabeth Coladarci, John Eric
ATTORNEY, Paolo Chagas Meireles, Shavitz Law Group, P.A., Dewey, Karine El Boustany, Cynthia Gardner, Robert Boris
Boca Raton, FL.
Geller, Catherine
Marie Greenspan, [*3] Paul Robert Gross, Aaron William
For Michael Aversano, Scott Belshaw, Plaintiffs: Fran L. Rudich, Hollister, William Kendric Jenne II, Ashley Nicole Knight, Jason
Michael John Palitz, Rachel Aghassi, Seth R. Lesser, LEAD Kramer, Timothy Lewis Lambour, Christopher C Lamela, Emilio
ATTORNEYS, PRO HAC VICE, Klafter, Olsen & Lesser, LLP, Joseph LaPietra, Ronald Raymond Litton, Lewis Joseph
Rye Brook, NY; Gregg I. Shavitz, LEAD ATTORNEY, Shavitz Lucarine, Phillip Keven Maloncon, William John McFadden, Jim
Law Group, Boca Raton, FL.
Murtaza, Frank C Napolitano, Matthew Patrick Palumbo, Kelvin
John Pettaway, Gerard Martin Renk, Robert Scott Schwartzberg,
For Kimberly Munsell, Plaintiff: Fran L. Rudich, Michael John Steven Schwendiman, James Ryan Selvius, Robert Scott Stone
Palitz, Rachel Aghassi, Seth R. Lesser, LEAD ATTORNEYS, III, Jaimie Lynn Thor, Jacob Tometich, Vincent Vollono Jr, Hai
PRO HAC VICE, Klafter, Olsen & Lesser, LLP, Rye Brook, NY; Xai Wang, Heather Laurel Wendell, David J Whitlach, Gabriel
Gregg I. Shavitz, LEAD ATTORNEY, Shavitz Law Group, Boca Dean Winter, Robert Russell Word, Larry Wayne Zimmerman,
Raton, FL; Susan Hilary Stern, LEAD ATTORNEY, Shavitz Richard L Goldner, Daniel Hunt, Jeffrey John Gray, Kenneth
Law Group, P.A., Boca Raton, FL.
Charles Gantman, John P Gibson, Andrey Ilyasov, Shannon
Blake Harris, Nicole Marie Gill, Michael Hugh Greene, JonPaul
For Craig Segelke, Plaintiff: Gregg I. Shavitz, LEAD Holland, John Andrew Lange, Scott Masson, Joseph Walter
ATTORNEY, Shavitz Law Group, Boca Raton, FL; Rachel Lasota, Andrew S Jacobson, Thomas Jenks, Barbara A Maurer,
Aghassi, LEAD ATTORNEYS, PRO HAC VICE, Klafter,
Richard Woodrow Joseph, Trae James Lewis, Natalya
Olsen & Lesser, LLP, Rye Brook, NY; Susan Hilary Stern, [*2] Andreyevna Marusich, Matthew Allen Melver, Ian Matthew
LEAD ATTORNEY, Shavitz Law Group, P.A., Boca Raton, FL. Owens, Benjamin J Meyers, James Doyle May Jr., Evan Patrick
McIntosh, Rachel Lynn Owens, James Vincent Muscarnera,
For Kent Jasperse, Plaintiff: Gregg I. Shavitz, LEAD James Robert Mellendick, Sara Motiey, Brendan
ATTORNEY, Shavitz Law Group, Boca Raton, FL; Rachel John Osweiler, [*4] William Edward Roe, Vincent Thomas
Aghassi, LEAD ATTORNEYS, PRO HAC VICE, Klafter, Olsen Polce, Richard Gerald Paolino II, Todd Alan Richardson, Alan
& Lesser, LLP, Rye Brook, NY; Susan Hilary Stern, Shavitz Law Laurin Pershing, Trusha Patel, David Cordell Rollins, Samir
Group, P.A., Boca Raton, FL.
Ahmed Qureshi, Lauren Kate Perry, Daniel Colgan Riley,
Shavkat Safaev, Timothy Donald Rose, Scott Schneidman,
For Andrew Keller, Luis Lara, Bernard Dzata, Peter Hannah, George Howard Rumberger III, Keith L Rowe, Derrek Schwartz,
Anthony Petruzzi, Ali Rahman, George D. Peterson, Steven M. Faiza Said, Jorge Ruiz, Roy Andrew Schoenfeld, Barbara
Sorkin, Jessica Mireya Amparo, Peter John Babbles, Peter Woodford Stapleton, Jake Shuman, Leslee Schwartz, Dustin
Baldeo, Michael Banjany, James Michael Barrons,
Corey Smith, Martha Virginia
2015 U.S. Dist. LEXIS 27293, *5
Shelton, Richard Edward Scott, Lauren Elizabeth Taney, Apoorve
Singhal, Andrew Charles Scott, Alan Lane Speck, Jason Zajonc,
Jason R Wilburn, Monica S Tew, Samuel Kane Wilson, Vincent
Matthew White, Jamie Lee Vernhes, Gordon John Zobel,
DeMarcus Williams, Anthony Wentzell, David Jon Wilson,
Amanda Celia Rhee, Kevin Lawe, Daniela Apostol, Richard
Wolinsky, Rosemarie Young, Paul Andrew Noceti, Mitchell Jay
Gaylord, Carrie Marie Fleetwood, Nicolas Samuel Baytler, Eric
Christopher Wright, Steven Marc Stillwater, Christopher Michael
Kneale, Dallas Hutchinson, James Patrick McGuinness,
Maximillion Booker, Mitchell D Orapello, George Jarrett, Brian
Charles Fahey, Terry David Bright, Jonathan Daniel Sesso,
Abigail
Soto, Daniel E Green, [*5] Richard Tillies II, Lisa M Dieter,
William Charamut, Alexander Solonin, Warren F Myers, Carson
Weinand, Kathleen Mary Wehrfritz, Christine Buschmann
Fulton, Thomas Francis Craig, John Walter Indermaur, Geoffrey
Allen Hellman, Phaethon Bolton, Thomas Wayne Stein, Cortino
Rito Garcia, Muhammad Ali Chaudry, Samuel Peter Paolini,
Jason Richard Ebel, Dimitre C Andonov, Brady Harker Ririe,
Luke Anderson, Penny Ozella Andrews, Aaron Christophe
Augustis, Lawrence David Berberian Jr., Carl B Bible III, Joseph
Bruno, Adamo Stephen Calistri, Kathleen Michelle Cunningham,
Amir A Dadabhoy, Joseph Richard Devery, Sarah Drilling,
Matthew A Feehan, Joseph Felice, Plaintiffs: Susan Hilary Stern,
Shavitz Law Group, P.A., Boca Raton, FL.
For Gregory Ryan Glomb, Deborah Lee Goodale, Jacob Daniel
Greenberg, Kyle Happe, Adam Andrew King, John Robert
Kinkead, Valerie Ann Lee, Linda Jean Lee, Gabriel Elias
Lemons, Michael Lewchuk, Kevin Damian Losch, Karen Elaine
Lupton, Alexander D Malo, Delon Thomas Mansour, Jeffrey
Alan Marsick, Mark Harrison Masters, Douglas George
Meyerhoff, Thomas Whitmire Miller III, Brian Michael Murphy,
Shannon Leigh Murphy, Ryan
William Peters, Christopher Escott Petralli, Frank [*6] Anthony
Pintozzi IV, Cole Jesse Proehl, Ronald Edward Rabinovitz,
Sturgis Grew Robinson, Christian Edward Schonlau, Alan Mark
Segall, Tiffany Jean Shrier, Maria Solanet, Stephen B Stafutti,
Craig Carl Stevens, Robert Allen Strickland, Deborah H Sullivan,
John Mark Sydnor, John Robert Tait, Bora Unal, Julia L
Wollheim Tensfeldt, Athena Elizabeth Yock-Davis, Harris Alan
Zatuchney, Dixin Zheng, Amir Haji Abbasi, Tareq Hani
Anabtawi, Daniel William Barnes, Josef Gerhard Behrens,
Cameron Spencer Browning, Ian January Butler, Cristobal
Caballero, Chad Preston Canfield, Jana A Carlson, Mark Shaffer
Casada, Craig Robert Cavicchia, Dean Colvin, Craig Allen Davis,
Rachel Laura Eck, Aric David Goodman, Krishan Gupta, Ryan V
Hetzer, Ashish Suresh Mardhekar, John Claude Mason, Keith
Edward Maurer, Robert Norman Olson, Scott
Edward O'Malley, Timothy A Rioux, Zachary Harris Salamon,
Wendy J Shannon, Russell Bernal Sheid, Howard Craig Silfen,
Joel William Thorp, Randen Lee Traughber, Douglas Vargas,
Darryl Franklin White, Shivani Chadha, Timothy Conley, Lynne
Murphy, Patrick Edward Patterson, Konstantin Rusin, Aaron
Schmit, Desirae Vickers, Joe
Dominick, LeeAnn Sandberg, Plaintiffs: Susan Hilary Stern, [*7]
Shavitz Law Group, P.A., Boca Raton, FL.
For Rafael Santiago, Mark Malter, Adam Schwartz, Janine Natoli,
Plaintiffs: Fran L. Rudich, Seth R. Lesser, LEAD ATTORNEYS,
PRO HAC VICE, Klafter, Olsen & Lesser, LLP, Rye Brook, NY;
Gregg I. Shavitz, LEAD ATTORNEY, Shavitz Law Group, Boca
Raton, FL; Paolo Chagas Meireles, Susan Hilary Stern, Shavitz
Law Group, P.A., Boca Raton, FL.
For Luke Alfred Carter, Michael Gerard Dietrich, David Harry
Elster, Marcia Garren, Zaq Harrison, Melika Jahangiri, Katelyn
Margaret Kriesel, Alexander S Rowe, Steven Scott Smith, Virgil
Lee Dortch III, Andrew Lerner, Kevin Dean McLenithan, Blair
Neller Jr., Christopher Anthony Paganelli, Tiffany C Saunders,
Daniel Seghi, Vanessa Sergeon, Timothy John Shannon, Garrett
Pierce Smith, Shaan Wadhwani, Gregory Whitehead, Alexander
Kane Assaf, Alexander Steven Carter, Dennis Daniel Crowley,
Alexander Love Hinson Jr, Kent Earl Kopen, Nathan Robert
Logan, Gary Joseph Cwik, Agnes Yadira Aponte, Charles Cole
III, Kine A Corder, Luke Dowd, Mary Ly Gilbert, Zachary Hurd,
James Michael Kahn, Rawad Yasser Kassem, Alejandro Alex
Pulido, Michael Paul Rutledge, Lance C Schmidt, Raymond Sosa,
Bruce Andrew Van Meter, Stuart Martin
Wilson, [*8] Brynn Hugh Dietz, Nicholas Stephen Jewczyn, Irma
Yolanda Kallay, Robert Todd Lincoln, Ritika Malik, Jeremy
Pursch, Richard Nelson Valle, Jonathon C Leib, Bernard Morris
Aller, Gregory DePaul Whelan, Stephen Edward Dilanian, Adam
Pierce Kelly, John B Wilson, Jessica Hawkins, Robert Leonard,
Richard Albert Graney, Bradley Frank Karp, Kevin Kelly, Desi
Pena, Ronni Y Reiburn, Patrick Kilts, Roberto Caudillo, Alison
Nicole Wiener, Michael Gomez, Steven Dwight Baker, Eric
Bardo, Amie Lorraine Cherry, Michael Chong, Alan Theodore
Dehesa, Daniel Gordon Edmondson, Justin Thomas Ghiglia,
Scott Bradley Janzen, Denise Shafer, Steven Douglas Woodlock,
Thomas Zubrycki, Bethany E Bristow, Julie Anne Davis, Joseph
James Smick, Robert Thomas Kennedy, Jeffrey Michael Whitt,
Fauzia Kurjee, Gregory Wayne Beverly, Jeffrey SC Butler, Gian
Frederick Giusti, Torrance Christian Holton, Gordon Stuart
Rhoads, Colleen Anika Rhodd, Tawnya Christine Schwartz,
David V Sokolovsky, Joanne Wagner, Rachel Louise Carlsen,
James Henderson, David E Do, Shuvam Bhaumik, Phillip
Womack Davis,
2015 U.S. Dist. LEXIS 27293, *8
Denise Marinacci, Ricardo C Vinagre, Raymond K. Jew, Colin
Peter Figueroa, Robert Chase Lee, Mauricio Aimo,
Manuel A. Quinones, Francisco [*9] Edward Acevedo, Caren
Yvonne Bryant, Kevin J. Flynn, Gregg Winter, John Vandenberg,
Jeryne Peterson, Lynda G. Schultz, Kate Becker, Cameron Blair,
David Robbins Mack, Chance Kenneth Vogel, David Dexter
Oxley, George Kritis, Robert Formisano, Robert Joseph Duffy III,
Louay Antoine Elhadj, Corey David Loxen, Landon J. Weeks,
Dina R Floyd, Tamara Stein, William Thomas Harper, Camilo
Ramirez, Amy Gac, Kyle Kenji Yoneshige, Jeffrey Jordan
Bouchard, Melissa Beth Thacker, Philip Alan Wilson, Denanne
Michelle Heil, Sarah Leners, William Chung Liu Jr., Marc
Ciccarelli, Hung Tran, Thaddeus Malcolm Brown, Marc Frank,
Andrew Joseph Iadeluca, Travis Brandon Lancaster, Diane Renee
Turnbull, Jeffrey Kenneth Corey, Whan Soo Rim, Barbara
Langford Davis, Douglas Clifton Stewart, Mark Sterling Howe,
Margaret Kathryn Acosta, Anthony Nicholas Picozzi, Jason Ellis,
Keisha Diane Johnson, Rafik Daniel Fouad, Lori Ann Shizuko
Hamano, Joshua J Caltrider, Roland C Salmi, David Bernard
Reed, Emanuele Umberto Buonamici, Dino Mazzarelli, Patrick
John Wymes, Robert Q Buckles, Andrea Tony Guarascio, Vera
Lui, Abbe Frances Rice, Paul Hoshko, Steven James Freed,
Teresa A Hill, Dustin LeRoy,
Brian Jon Wiest, Gayle Goodwin, [*10] Daniel Conner, David
Cummins, Jonathan Bach, Dominique Richards, Riley Clark,
Plaintiffs: Paolo Chagas Meireles, Shavitz Law Group, P.A., Boca
Raton, FL.
ORDER
THIS CAUSE is before the Court upon the following:
1. Plaintiffs' Motion to Compel Defendants to Produce a
Corporate Representative to Testify on Topic 12 and
Topic 17 of Plaintiff's Notice of Deposition Pursuant to
Fed. R. Civ. P. 30(b)(6) [DE 179], and Defendants'
Response [DE 190];
2. Plaintiffs' and Discovery Opt-ins' Motion to
Compel Responses to Their Respective First [*11]
Requests for Production [DE 182], and Defendants'
Response [DE 189];
3. Defendants' Motion to Compel [DE 183], and
Plaintiffs' Response [DE 193]; and
4. Defendants' Motion to Compel Rule 23 Class
Plaintiffs to Supplement Responses and Produce
Responsive Documents [DE 196], and Plaintiffs'
Response [DE 209].
These matters were referred to the undersigned by United States
District Judge Kenneth A. Marra [DE 43]. The Court held a
hearing on all four of these motions on January 29, 2015, and took
the matters under advisement. They are now ripe for review.
This is an FLSA action for unpaid overtime wages. Plaintiffs are
For Stephan Michael Bernarsky, Plaintiff: Gregg I. Shavitz, current and former pre-production Financial Analyst Assistants
("FAAs"), who assert that Defendants failed to pay them for all of
Shavitz Law Group, Boca Raton, FL; Paolo Chagas Meireles,
their hours worked, including overtime hours.
Susan Hilary Stern, Shavitz Law Group, P.A., Boca Raton, FL.
For Jason L. Kitchen, Plaintiff Paolo Chagas Meireles, LEAD
ATTORNEY, Shavitz Law Group, P.A., Boca Raton, FL.
For Morgan Stanley & Co. LLC, formerly known as Morgan
Stanley & Co. Incorporated, Morgan Stanley Smith Barney LLC,
Morgan Stanley, Defendants: Thomas Anton Linthorst, LEAD
ATTORNEY, PRO HAC VICE, Morgan, Lewis & Bockius,
LLP, Princeton, NJ; Mark Edward Zelek, Morgan Lewis &
Bockius, Miami, FL; Voula EllenAlexopoulo Liroff, Miami, FL.
Judges: WILLIAM MATTHEWMAN, UNITED STATES
MAGISTRATE JUDGE.
Opinion by: WILLIAM MATTHEWMAN
Opinion
I. General Discovery Principles
"It is well established that the Federal Rules of Civil Procedure
'strongly favor full discovery whenever possible.'" Adelman v.
Boy Scouts of Am., 276 F.R.D. 681, 688 (S.D. Fla. 2011) (quoting
Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th
Cir. 1985)). "Rule 26(b) therefore permits a party to obtain
discovery of 'any matter, not privileged, that is relevant to the
claim or defense of any party.'" Id. (quoting Fed. R. Civ. P. 26(b)).
"The Courts have long held that relevance for discovery purposes
is much
broader than relevance for [*12] trial purposes." Dunkin' Donuts,
Inc. v. Mary's Donuts, Inc., No. 01-0393, 2001 U.S. Dist. LEXIS
25204, 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001).
"Discovery should ordinarily be allowed under the concept of
relevancy unless it is clear that the
2015 U.S. Dist. LEXIS 27293, *12
information sought has no possible bearing on the subject matter what steps, if any, were taken at the corporate level to enforce
of the action." Id.
compliance with written policies concerning compensation for
overtime. In accordance with Palma, Plaintiffs may not depose
II. Plaintiff's Motion to Compel Defendants to Produce a the corporate representative about legal theories—Plaintiffs
Corporate Representative to Testify on Topic 12 and Topic 17 inquiries must be limited to facts relied upon by Defendants in
of Plaintiff's Notice of Deposition Pursuant to Fed. R. Civ. P. asserting their affirmative defenses. The Court finds that
30(b)(6) [DE 179]
Defendants did not waive their right to assert the attorney-client or
work product privilege, and Defendants may assert such
Plaintiffs seek an order compelling Defendants to offer a privileges if Plaintiffs seek to inquire about legal theories or other
corporate representative to submit to a deposition, so that matters that would violate such privileges. Further, in light of the
Plaintiffs may ask about two of Defendants' affirmative defenses: fact that Plaintiffs have already deposed two of Defendants'
(1) the good faith defense and (2) Defendants' claim that corporate representatives in this case, and to avoid a waste of
Plaintiffs' case cannot properly proceed as a class action. In attorney time and prevent placing an undue burden on
opposition, Defendants maintain that a corporate representative Defendants, the deposition shall be limited to three hours.
has already offered factual testimony on these two topics, and that
Plaintiffs have already deposed two corporate representatives in III. Plaintiffs' and Discovery Opt-ins' Motion to Compel
this case. Furthermore, Defendants maintain that, if a corporate Responses to Their Respective First Requests for Production
representative were to testify on these matters, it would require [DE 182]
the deponent to divulge information subject to the attomey-client
During the January 29, 2015 hearing, the parties explained
and work product privileges.
that [*15] they were in the process of meeting and conferring, and
"There is a heightened risk of indirect disclosure of
narrowing the issues. As stated on the record during the January
information protected by the attorney work [*13] product doctrine 29, 2015 hearing, this Motion is DENIED AS MOOT, without
when inquiring into affirmative defenses." Palma v. Metro PCS prejudice to re-file at a later date, if Plaintiffs believe that
Wireless, Inc., 2014 U.S. Dist. LEXIS 68034, 2014 WL 1900102, Defendants have not provided all of the information sought.
* 2 (M.D. Fla. 2014). In Palma, an FLSA case, the Court held
that Plaintiffs could depose Defendant's corporate representative IV. Defendants' Motion to Compel [DE 183]
about the facts relied upon by Defendant in asserting its
affirmative defenses, with the caveat that Plaintiff could not During the January 29, 2015 hearing, the parties explained that
inquire into the legal theories behind those affirmative defenses. they had been conferring in good faith, and that much of
Id.
Defendant's Motion to Compel [DE 183] had been resolved. Only
the following discovery requests remain in dispute, and
During the January 29, 2015 hearing, when asked by the Court Defendants move for attorney's fees incurred in bringing their
about what information they sought to elicit through deposing Motion to Compel [DE 183].
another corporate representative, Plaintiffs stated that they wished
to know specific steps Defendants took at the corporate level to • Request for Production Number 9:
ensure that branch offices complied with the applicable statutes
and written policies which governed wage and hour law. During "All documents relating to any personal or other activities
the hearing, Defendants conceded that these types of questions unrelated to work that you engaged in during your employment as
were proper and could be asked of a corporate representative a pre-production FAA trainee for Defendants, including personal
during a deposition.
telephone calls, texts, preparing, sending, or receiving personal
electronic mail or facsimiles, eating meals, doctor's appointments,
The Court finds that, in light of Palma, Plaintiffs may properly attending classes or other educational activities, or conducting
depose a third corporate representative of Defendants for the personal business or other activities unrelated to work. The
following limited purposes: (1) to find out about what was done at documents sought
the corporate level to ensure that branch offices complied with include notes, emails, phone [*16] logs, cellular phone records,
federal overtime law (2) to
credit card receipts or statements, bank statements, cancelled
inquire as to what steps, if [*14] any, were taken at the corporate checks, photographs, videotapes, or expense forms."
level to ensure that FAAs were compensated for the hours of
overtime they worked; and (3) to inquire as to
2015 U.S. Dist. LEXIS 27293, *16
In their Motion, Defendants represent that Plaintiffs initially
objected to this Request for Production on the grounds that it was
overbroad and irrelevant [DE 183, p. 3]. Defendants maintain that
this Request for Production is proper, as it seeks relevant
information pertaining to Plaintiffs'"time spent on activities
unrelated to work." [DE 183, p. 3]
proper, as it seeks relevant information pertaining to Plaintiffs'
claim that they "worked outside regular branch hours." [DE 183,
p. 3].
The Court denies this request; the Court does not find that this
Request for Production is designed to lead to discoverable
evidence. Furthermore, the Court finds that this request is
invasive, overbroad, and confusing.
The Court denies this request; the Court does not find that this
Request for Production is designed to lead to discoverable • Request for Production Number 19:
evidence. Furthermore, the Court finds that this request is invasive
and overbroad.
"All messages and postings that you, or anyone acting on your
behalf, transmitted or received through social media sites,
• Request for Production Number 10:
including Facebook, Instagram, WhatsApp, Twitter, and
LinkedIn, during your employment with Defendants as a pre"All documents relating to any dates and times that you were not production FAA trainee."
working during your employment with Defendants as a preproduction FAA trainee during hours that the branch or location In their Motion, Defendants represent that Plaintiffs initially
to which you were assigned was open or you were otherwise objected to this Request for Production on the grounds that it was
scheduled to work, including calendars, schedules, daytimers, or overbroad and irrelevant [DE 183, p. 3]. Additionally, Defendants
other evidence showing when you were not at work or not call into question Plaintiffs' representation that they do not possess
working."
any documents that are responsive to this particular Request for
Production. [DE 183, p. 3]. Defendants maintain that this Request
In their Motion, Defendants represent that Plaintiffs initially
for Production is
objected to this Request [*17] for Production on the grounds that proper, as it seeks relevant information [*19] pertaining to
it was overbroad and irrelevant [DE 183, p. 3]. Defendants Plaintiffs' claim that they worked off the clock. [DE 183, p. 3].
maintain that this Request for Production is proper, as it seeks
relevant information pertaining to Plaintiffs'"claim to have The Court denies this request in light of Palma v. Metro PCS
worked off the clock when their branches were open." [DE 183, p. Wireless, Inc., 18 F. Supp. 3d 1346 (M.D. Fla. 2014). In Palma,
3].
another FLSA collective action, Defendant served interrogatories
and requests for production on the Plaintiffs which sought "all
The Court denies this request; the Court does not find that this posts to Plaintiffs' social media accounts from 2010 to the present
Request for Production is designed to lead to discoverable that relate to 'any job descriptions or similar statements about this
evidence. Furthermore, the Court finds that this request is invasive case or job duties and responsibilities or hours worked which
and overbroad. This is especially true because many of the Plaintiffs posted on Linkedln, Facebook or other social media
Plaintiffs in this case worked from home and studied from home sites.'" Palma, 18 F. Supp. 3d at 1347. The Court found that these
in their capacities as pre-production FAA trainees.
requests were too broad and not reasonably calculated to lead to
the discovery of admissible evidence. Id. Additionally, the Court
• Request for Production Number 11:
found that these requests were unduly burdensome. Id. The Court
finds that Defendants' request here is even broader than that in
"All documents relating to any dates and times that you were not
Palma; this request is denied.
working during your employment with Defendants as a preproduction FAA trainee during times other than those hours that
• Request for Production Number 20:
the branch or location to which you were assigned was open or
you were otherwise scheduled to work, including calendars, "All documents relating to telephone calls made or received
schedules, daytimers, or other evidence showing when you were (including the times and duration of each such call) and text
not working."
messages, instant messages and e-mail you sent or received
during your employment with Defendants as a pre-production
In their Motion, Defendants represent that Plaintiffs initially
FAA trainee."
objected to this Request for Production on the grounds that
it was [*18] overbroad and irrelevant [DE 183, p. 3]. Defendants In their Motion, Defendants maintain that this Request for
maintain that this Request for Production is
2015 U.S. Dist. LEXIS 27293, *19
Production [*20] is proper, as it seeks relevant information
pertaining to non-work related calls and messages to and from
Plaintiffs. [DE 183, p. 4]. According to Defendants, this
information is relevant because it would tend to show whether
some Plaintiffs were not working at certain times. [DE 183, p. 4].
The Court denies this request; the Court does not find that this
Request for Production is designed to lead to discoverable
evidence. Furthermore, the Court finds that this request is
overbroad and invasive, as discussed previously regarding the
other Requests for Production at issue in this Motion.
• Request for Production Number 33:
"The retainer agreement, engagement letter, and other documents
relating to the fee arrangement between you and your attorneys,
the hourly rate charged by such attorneys, the hours expended by
such attorneys since they were retained, and the amounts you
have paid to such attorneys since they were retained."
Defendants argue that Plaintiffs "must produce attorneys' fee
agreements because they seek attorneys' fees from Defendants."
[DE 183, p. 4].
The Court denies Request for Production 33; during the January
29, 2015 hearing, Plaintiffs represented that the
opt-in Plaintiffs [*21] have no such retainer agreements. Plaintiffs
cannot produce what they do not possess.
• Interrogatory Number 13:
because, [*22] in an FLSA case, "[information about each
weekday in which [Plaintiffs] did not work for Defendant and
each weekday in which [Plaintiffs] did not work for part of the
day is crucial. . . ." [DE 183, p. 5].
The Court denies Interrogatories 13 and 14; the Court finds that
these discovery requests are overbroad, vague, and confusing.
Furthermore, the Court finds that the information sought in
Interrogatories 13 and 14 would be primarily in the custody of
Defendants, anyway.
The Court denies Defendant's request for attorney's fees pursuant
to Federal Rule of Civil Procedure 37(a)(5). Rule 37(a)(5)
provides:
If the motion is granted—or if the disclosure or
requested discovery is provided after the motion was
filed—the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant's reasonable
expenses incurred in making the motion, including
attorney's fees. But the court must not order this
payment if:
(i) the movant filed the motion before attempting in
good faith to obtain the disclosure or discovery without
court action;
(ii) the opposing party's nondisclosure, response,
or objection was substantially justified; [*23] or
"Identify each weekday (by stating the month, date, and year)
(iii) other circumstances make an award of expenses
during Plaintiff's employment with Defendants in or after August
unjust.
2009 (or in or after August 2008, if you worked in New York), in
which Plaintiff did not perform any work duties for the The Court finds that an award of attorney's fees under these
Defendants, including vacation days, sick days, personal days, circumstances would be unjust.
holidays, family or medical leave, other leave of absence,
V. Defendant's Motion to Compel Rule 23 Class Plaintiffs to
disability time off, regular days off, or jury duty."
Supplement Responses and Produce Responsive Documents
IDE 1961
• Interrogatory Number 14:
"Identify each workday (by stating the month, date, and year)
during Plaintiff's employment with Defendants in or after August
2009 (or in or after August 2008, if you worked in New York), in
which Plaintiff did not perform work duties for Defendants for
any part of the work day (including for personal appointments,
personal errands, physical fitness, family activities, or other nonwork time), and identify the amount of such non-work time for
each such weekday."
As to Interrogatories 13 and 14, Plaintiffs object on the bases of
overbreadth and undue burden. [DE 183, p. 5]. Defendants argue
that these interrogatories are relevant
During the January 29, 2015 hearing, the parties explained that
they had been conferring in good faith, and that much of
Defendant's Motion to Compel [DE 196] had been resolved. The
same Requests for Production and Interrogatories remain in
dispute as those at issue in Defendant's Motion to Compel [DE
183], addressed above. Defendants move for attorney's fees
incurred in bringing their Motion to Compel [DE 196], The
Requests for
2015 U.S. Dist. LEXIS 27293, *23
Production and Interrogatories at issue in Defendant's Motion to
Compel Rule 23 Class Plaintiffs to Supplement Responses and
Produce Responsive Documents [DE 196] are identical to those at
issue in Defendant's Motion to Compel [DE 183], with the
following exception: Interrogatories 13 and 14 omit the
parenthetical phrase "or in or after August 2008, if you worked in
New York." The Court renders the same rulings on Requests for
Production 9, 10, 11, 19, and 20, and Interrogatories 13 and 14 in
Defendant's [*24] Motion to Compel Rule 23 Class Plaintiffs to
Supplement Responses and Produce Responsive Documents [DE
196] as it did with respect to Defendant's Motion to Compel [DE
183].
Request for Production 33 is denied. Following the January 29,
2015 hearing, Plaintiffs filed a Notice of Filing Supplemental
Authority in Support of Rule 23 Plaintiffs' Response in
Opposition to Defendants' Motion to Compel Rule 23 Plaintiffs to
Supplement Responses and Produce Responsive Documents [DE
218]. Plaintiffs filed Wynder v. Applied Car Sys., Inc., 9:09-cv80004-KAM, Docket Entry 46, 2009 U.S. Dist. LEXIS 133582, ,
Order Denying Defendant's Motion to Compel Production of
Documents. In Wynder, Defendant sought, through a request for
production, Plaintiffs'"retainer agreement, engagement letter, and
other documents relating to the fee arrangement between Plaintiff
and his attorneys, the hourly rate charged by such attorneys, the
hours expended by such attorneys since they were retained, and
the amount Plaintiff has paid to such attorneys since they were
retained." Plaintiffs had agreed to produce this information if or
when Defendant moved for attorney's fees and costs, but not
before. Plaintiffs acknowledged that, in an FLSA case, attorney's
fees and
costs [*25] are recoverable under the FLSA statute if they
prevailed in the litigation. Consequently, Plaintiffs argued that any
information relating to attorney fee agreements would not become
relevant and discoverable until they actually file a motion for
attorney's fees. The Court denied Defendant's request, finding that
Defendant could find the information they needed from other
sources.
In light of Wynder, the Court denies Request for Production 33 at
this stage of the litigation. However, should Plaintiffs prevail in
this FLSA case, then information pertaining to attorney retainer
agreements may be relevant in the event Plaintiffs move for an
award of attorney's fees and costs pursuant to the FLSA statute. If
such a scenario occurs, Defendants may re-assert their request for
the documents listed in Request for Production 33.
The Court denies Defendant's request for attorney's fees pursuant
to Federal Rule of Civil Procedure 37(a)(5). The Court finds that
an award of attorney's fees would be unjust.
In light of the foregoing, it is hereby ORDERED AND
ADJUDGED as follows:
1. Plaintiffs' Motion to Compel Defendants to Produce a
Corporate Representative to Testify on Topic 12 and
Topic 17 of Plaintiff's Notice of
Deposition Pursuant to [*26] Fed. R. Civ. P. 30(b)(6)
[DE 179] is GRANTED.
2. Plaintiffs' and Discovery Opt-ins' Motion to Compel
Responses to Their Respective First Requests for
Production [DE 182] is DENIED AS MOOT.
3. Defendants' Motion to Compel [DE 183] is DENIED.
4. Defendants' Motion to Compel Rule 23 Class
Plaintiffs to Supplement Responses and Produce
Responsive Documents [DE 196] is DENIED.
DONE AND ORDERED in Chambers this 2nd day of March,
2015 at West Palm Beach, in the Southern District of Florida.
/s/ William Matthewman
WILLIAM MATTHEWMAN
UNITED STATES MAGISTRATE JUDGE