The opinion of the court was delivered by: Magistrate Judge Bissoon
Consistent with the discussions below: Plaintiffs' Motion to Compel Discovery (Doc. 358) will be granted in part, and denied in part; Plaintiffs' Motion for Sanctions (Doc. 365) will be denied; Defendants' Motion for Involuntary Dismissal of certain putative collective action members (Doc. 363) will be granted, as described herein; and Defendants' Motion to Compel Discovery (Doc. 370) will be granted, consistent with this Order.
A. Plaintiffs' Motion to Compel (Doc. 358)
The bases for Plaintiffs' Motion are detailed in the Affirmation of one of their lawyers. See Doc. 360. Defendants' Opposition Brief (Doc. 368) responds to the Affirmation by category of Plaintiffs' discovery requests. The Court will follow Defendants' framework.
1. "Documents or Communications that Defendants May Use to Support Their Claim that the Case Should Not Be Certified"
Defendants' objection based on work-product privilege, see Defs.' Opp'n Br. at 3-4, is overruled. In Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), relied upon Defense counsel, "[t]he documents [in question] already [had] been turned over," "any relevant facts contained [therein] had already been discovered," and the only benefit that could be obtained by reviewing the selection of documents "was an insight into [counsel's] legal strategy." Directory Dividends, Inc. v. SBC Commc'ns, Inc., 2003 WL 23208804, *2 (E.D. Pa. Dec. 31, 2003) (analyzing Sporck). Here, Plaintiffs have reason to question whether all documents upon which Defendants will rely have been produced, see discussion immediately infra regarding initial disclosures, and the Court concludes that production is appropriate under the circumstances.
See Directory Dividends (ordering similar production, and collecting cases holding same).
Along the same lines, certain documents withheld by Defendants are subject to disclosure under the initial disclosure requirements of Federal Rule of Civil Procedure 26(a)(1)(A)(ii). That Rule requires the production of "a copy -- or a description by category and location -- of all documents . . . that the disclosing party . . . may use to support its claims or defenses." Id.
The "sample pay stub" offered by Defense counsel at named-Plaintiff Lori Shaffer's deposition, for example, is a document that Defendants "may," and indeed have, "use[d in] support [of their] . . . defenses." See discussion infra regarding Pls.' Mot. for Sanctions (addressing Ms. Shaffer's deposition). Plainly, such documents must be disclosed to Plaintiffs' counsel as soon as it becomes evident that they may be used in support of Defendants' defenses. To reveal such documents for the first time during the course of a deposition plainly rubs against the spirit of Rule 26's disclosure requirements.
At least with respect to documents, Plaintiffs' discovery requests in large part encompass the same materials Defendants are required to disclose under Federal Rule 26(a)(1). The Court is unsatisfied that further productions will reveal Defense counsel's mental impressions.*fn1
Moreover, to the extent that Defendants refuse production of specific documents under the work-product doctrine, their counsel must, within ten calendar days of this Order, produce to Plaintiffs' counsel a privilege log identifying those materials and the bases for withholding production.
Finally, Plaintiffs take issue with Defendants' production of documents that "concern, support or contradict Defendant[s'] contention that any Hourly Employee is subject to an individualized defense." See generally Defs.' Opp'n Br. at 4. Plaintiffs clarify that they seek "any . . . documents," other than those reciting the FLSA laws generally, regarding the 75 collective action members chosen by the parties for the purposes of limited discovery.
See Pls.' Counsel's Aff. at ¶ 11; Defs.' Opp'n Br. at 4-5 & n.6.
Prior misunderstandings and failed attempts to meet and confer notwithstanding, Defendants shall produce responsive documents, as contemplated in this Section, regarding the opt-ins currently agreed upon by the parties within ten calendar days of this Order.
See discussions supra (addressing Defendants' production obligations regarding both discovery and initial disclosures).
2. Records of Employee Compensation
Defendants have agreed to produce compensation records dating back to April 1, 2006, i.e., three years prior to the initiation of this lawsuit. See Defs.' Opp'n Br. at 5-6 (maximum period of recovery under FLSA is three years). For the purposes of limited discovery, the Court agrees that this is an appropriate time frame.
("[a] party must [either] produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request").
Defendants' objection to producing employees' W-2s, 1099s, FICA, FUTA and tax records, see Defs.' Opp'n Br at 6, is overruled. See generally Leeds v. Axis Gloucester City Storage, 2009 WL 1706547, *2 (E.D. Pa. Jun. 16, 2009) ("[r]elevancy is construed . . . liberally in discovery").*fn2
Finally, Defendants shall, within five calendar days of this Order, provide to Plaintiffs written explanations of the columns identified in their payroll records (i.e., "Comp Rate Used," "Rate Used on Paycheck Data," "Other Hrs" and "Other Earns"). See Pls.' Counsel's Aff. at ¶ 15.
3. Documents Regarding Defendants' Corporate Structure
Among other things, Defendants have objected to the aforementioned discovery requests based on relevancy and the limited scope of current discovery. See Defs.' Opp'n Br. at 7-8. Defendants have declined, however, to stipulate to the "irrelevancy" of corporate structure matters at this stage in the proceedings. See id.
The Court is inclined to agree with Defendants that Plaintiffs' requests regarding corporate structure are beyond the scope of limited discovery. See CMO dated Nov. 20, 2009 (Doc. 334) at ¶ 4 (discovery is now "limited to collective action certification issues on the claims conditionally certified in this FLSA collective action"). At this point, the Court has little reason to believe that matters of corporate identity/structure will form bases for Defendants' decertification request. Compare generally Order dated Aug. 3, 2009 (Doc. 206) at 2 (highlighting affidavit of Charles Donina, "Senior Director[ of] Compensation, HRIS and Payroll for UPMC," stating that Kronos meal break system was utilized by all "entities that are named as [D]efendants in this case") with Kuznyetsov v. West Penn Allegh. Health Sys., Inc., 2009 WL 1515175, *1-2 (W.D. Pa. Jun. 1, 2009) (Ambrose, J.) (at decertification stage, focus remains on similar situation of collective action members) (citations omitted). If Defendants will not rely on issues involving corporate identity/structure in any decertification request, Defendants need only so respond and state that Plaintiffs' requests go beyond the scope of limited discovery.
If, however, Defendants do intend to advance matters of corporate structure/identity for the purposes of decertification, they must promptly advise Plaintiffs' counsel so that the parties may meet and confer to discuss the proper scope of Plaintiffs' discovery requests and Defendants' corresponding productions.
Defendants shall either respond to or notify Plaintiffs' counsel, as specified above, within five calendar days of this Order.
4. Defendants' Policies and Practices
Defendants have agreed to produce compensation policies dating back to 2004. See Defs.' Opp'n Br. at 8-9. This will suffice. Cf. generally discussion supra (limiting production of compensation records to those dating back to April 1, 2006).
As for "iterations or drafts" of documents Defendants already have agreed to produce, Defense counsel has represented, subject to the mandates of Federal Rule 11(b), that no such documents exist. See Defs.' Opp'n Br. at 9. If the documents do not exist, they do not exist, and there is little more the Court can do to address Plaintiffs' asserted grievance.*fn3
Plaintiffs next assert that Defendants "have not produced any collective bargaining agreements, employee handbooks, or handwritten time sheets" for the "vast majority" of the 79 collective action members addressed in discovery (i.e., the four named Plaintiffs, plus the parties' 75 agreed upon opt-ins). See Pls.' Counsel's Aff. at ¶ 19. Defense counsel responds that they have been supplementing productions "as [additional documents are] located." See Defs.' Opp'n Br. at 10-11 ("Defendants need to locate and produce documents for 79 different employees in hundreds of different departments and tens of different locations[; i]t takes time to undertake such a large endeavor").
While the Court is not entirely unsympathetic to Defendants' situation, there comes a point, even in complex litigation such as this, where the refrain, "don't worry, we'll get it to you" no longer suffices. The deadline for limited discovery in this case was established in November, 2009, and it has been extended multiple times. See Orders filed on Nov. 20, 2009 (Doc. 334), Jan. 7, 2010, and May 4, 2010. Although the parties' discovery efforts have been evolving, contentious, and have required multiple conferences, the Court and parties must observe meaningful boundaries regarding how long the production of all discoverable and responsive materials can wait.
While Defendants have repeatedly trumpeted their production to date of "over 21,000 documents," this seems hardly an overwhelming number given the complexity of this case and the number of parties involved. In their Firm website, Defense counsel emphasize their "broad experience in complex, multifaceted civil litigation," including their use of "computerized document management, an invaluable tool for organizing the massive number of documents generated in complex litigation and helping to reduce the cost of litigation." See web page regarding "Litigation," at www.eckertseamans.com.
To be sure, the nature of this case has required Defense counsel to act fluidly, and the agreed upon productions have, at times, presented a "moving target." See generally, e.g., Defs.' Opp'n Br. at 10 n.8 (noting that "the identities of the [parties'] 75 opt-ins" have changed). The Court has reached a point, however, where Defendants' broad and repeated assertions of their duty/right to supplement responses has begun to wear thin. While it is true that parties have an obligation and right to supplement their productions and initial disclosures, it also is true that productions must be objectively reasonable along the way. See Syncsort Inc. v. Innovative Routines Int'l, Inc., 2008 WL 1925304, *23 (D. N.J. Apr. 30, 2008) (under Rule 26(g), discovery responses and objections include "certif[ication] that[,] to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made") (citation omitted); Leonard v. Univ. of Delaware, 1997 WL 158280, *6 (D. Del. Mar. 20, 1997) ("reasonable inquiry" under Rule 26(g) "is an objective standard," measured "under the circumstances" presented) (citation to quoted source omitted); see also generally Goethe v. California D.M.V., 2009 WL 3568624, *1 (E.D. Cal. Oct. 27, 2009) ("[a] party . . . cannot reserve the right to produce further documents indefinitely"; "[t]he duty to supplement is not a license to unduly delay production or [to] get around to discovery obligations when convenient"). Although the Court does not find Defendants' productions to date insufficient, per se, Defense counsel now are on notice that future invocations of the right/duty to supplement will be viewed with scrutiny under the objective reasonableness standard, based on the specific circumstances in this case.
These circumstances entail highly demanding litigation, the breadth and complexity of which is readily apparent. Defendants believe, and the Court has every confidence, that their counsel possess sufficient knowledge, expertise and resources to timely and efficiently handle this type of case. These expectations inform the Court's view of Defendants' discovery and disclosure efforts hereafter.
Consistent with the foregoing, Defendants shall, within ten calendar days of this Order, produce all documents responsive to Plaintiffs' "terms and conditions of employment" requests regarding the collective action members currently at issue in discovery. Only for good cause shown under the objective reasonableness standard (or by agreement of the parties), may this or any other deadline herein be extended.
The parties next address Plaintiffs' request for "documents concerning policies or practices with respect to recording work time for hourly employees." See Pls.' Counsel's Aff. at ¶¶ 20-21. Defendants have provided to Plaintiffs some clarifications/explanations regarding its productions. See Defs.' Opp'n Br. at 10-11 & n.9. Otherwise, Defendants' burdensomeness and related objections are overruled. Thus, Defendants shall produce any remaining, responsive documents within ten calendar days of this Order.
5. Documents Regarding Training and Instruction for Time Recordation
In this regard, Defendants have identified for Plaintiffs the Bates numbers corresponding to their productions. See Defs.' Opp'n Br. at 11. Defendants' agreement to supplement their responses is governed by the objective reasonableness standard referenced above.
6. Documents Concerning Time Employees Worked During Meals
Defendants again represent that, to the extent that responsive materials exist, they have been produced. ...