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Lawson v. Love's Travel Stops & Country Stores, Inc.

United States District Court, M.D. Pennsylvania

January 9, 2020

KRISTOPHER LAWSON, et al., Plaintiffs,

          Conner Chief Judge


          Martin C. Carlson United States Magistrate Judge

         I. Factual and Procedural Background

         This case is a Fair Labor Standards Act (FLSA) collective action brought on behalf of current and former Operations Managers (OMs) employed at various Love's Travel Stops. (Doc. 1). The plaintiffs allege that they were misclassified as exempt managerial employees under the FLSA, 29 U.S.C. § 201, et seq., and accordingly were not paid overtime as required by federal law. (Id.)

         The parties are engaged in discovery in this case and have been embroiled in a No. of discovery disputes which have required the court's intervention. (Docs. 167-231). In order to provide focus, clarity, and finality to this process, on November 25, 2019, we entered an order directing the parties to provide us with a comprehensive and complete list of their discovery disputes by December 9, 2019. (Doc. 218). The parties have complied with this direction, providing us with correspondence outlining the remaining discovery disputes that divide these litigants. (Docs. 219-223).

         Included among these remaining discovery disputes is a disagreement between the parties regarding the plaintiffs' demands that the defendant should provide discovery of text messages that pertain to the issues in this litigation that Love's supervisors possess on company-owned cell phones. This specific demand for discovery of defense cellphone text messages follows a disagreement between Love's and the plaintiffs regarding the adequacy of the plaintiffs' ESI searches, which included searches of the stored emails and text messages on the phones of the various Opt-In plaintiffs. In response to this prior dispute, we denied Love's request that we order the plaintiffs to undertake the burden and expense of a wholesale forensic review of the Opt-Ins cellphones. Instead, we only granted Love's limited relief in the form of an order directing some further, tailored ESI searches by the Opt-In plaintiffs for ESI, including relevant cellphone text messages. (Doc. 210). We entered this order, in part, because we were satisfied that Love's discovery demands, which specifically referenced text messages, had previously placed the plaintiffs on notice that this information was being sought by the defense. (Doc. 223 at 9).

         The plaintiffs, in turn, now seek ESI discovery of the content of text messages found on the company-owned cellphones of Love's supervisors, a request that Love's opposes on several grounds. First, Love's contends that the plaintiffs are delinquent in making this request, having waited until near the close of discovery before specifically demanding production of cellphone text messages. The plaintiffs have responded to this timeliness objection by arguing that this text message information was sought by them in their July 2018 requests for production of documents. We are not entirely persuaded by this argument, since our reading of these requests for production does not lead us to conclude that the requests clearly placed Love's on notice that the plaintiffs were seeking text messages.

         Aside from these timeliness issues, Love's raises concerns regarding the relevance, scope, cost and proportionality of this requested discovery. At the outset, Love's contends that the plaintiffs' requests, which are framed in terms of all text messages from company owned phones, are not bound or defined by any considerations of factual relevance to the issues in this litigation. We agree that no party would be entitled to all text messages contained on an opposing party's cellphones. Only those messages that were relevant to the issues in this litigation would be subject to discovery and disclosure.

         Further, Love's notes that the scope of this request is quite broad. According to Love's, only senior management at the District Director or Division Manager level possess company-owned cellphones. However, the No. of such company-owned devices is significant and may include 100 devices. In fact, some 18 Division Directors or District Managers oversee the work of the discovery Opt-In plaintiffs. Thus, wholesale disclosure of text messages from all of these devices could be a significant undertaking.

         Beyond the scope of this enterprise, Love's identifies considerable expenses associated with just the initial effort to capture the extant text messages on these devices. Love's contends that this data capture expense would be approximately $1, 500 per cellphone. Thus, the cost of simply capturing and retaining this data would be $150, 000 for all company-owned cell phones for the 100 senior officials who possess such phones, and up to $27, 000 for the 18 officials who actually oversee the discovery Opt-In plaintiffs. Moreover, this projected cost relates solely to capturing this data. There would be additional expenses associated with any data searches of these devices.

         Further, Love's argues that the plaintiffs have not made a sufficient showing of relevance to secure this discovery. In particular, Love's notes that the senior managers who possess company-issued cellphones are several rungs above Operations Managers in the corporate hierarchy. Therefore, they would have little reason to communicate with or about the daily duties of Operations Managers through text messages. Love's bolsters its relevance argument by observing that one Opt-In plaintiff who was deposed, Mr. Lawson, produced no relevant text messages from his cellphone describing his duties or other matters relating to this case. If the actual Operations Managers possessed nothing on their cellphones in terms of relevant text messages concerning their duties and job classification, Love's reasons that it is highly unlikely that a body of relevant text messages exist on the phones of corporate officials who are far removed from OM work or direct supervision of OMs.

         Finally, given the substantial expense associated with the collection of this data, the limited showing of relevance made here, and the tardiness of the specific request, Love's contends that this discovery demand does not satisfy the proportionality principles embodied in Rule 26.

         We add one other consideration to these concerns identified by Love's, a factor which previously led us to deny many aspects of Love's request for cellphone data from the Opt-In plaintiffs and caused us to narrowly circumscribe Love's demands for ESI from the plaintiffs. Cellphones and cellphone technology are now a ubiquitous part of our lives. For many, the most personal and intimate facts of their lives are carried and saved in their personal electronic devices. Therefore, requests for wide-ranging discovery of cellphone contents often implicate important privacy interests, interests which must be weighed against the need for such disclosure.

         With the issues which divide the parties framed in this fashion, we turn to the ...

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