Opinion
No. CIV 19-629 KG/JFR
01-12-2022
Dania PRUESS, Mary Bateman, Linda Vargas Martinez, and David Gallegos on behalf of Themselves and all others similarly Situated, Plaintiffs, v. PRESBYTERIAN HEALTH PLAN, INC., and Fluent Health LLC, Defendants.
Douglas Werman, Pro Hac Vice, Sarah Arendt, Maureen Salas, Werman Salas P.C., Chicago, IL, Stacy Wisner Thomsen, Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, Travis Hedgpeth, The Hedgpeth Law Firm, PC, Houston, TX, for Plaintiff Dania Pruess. Stacy Wisner Thomsen, Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, Douglas Werman, Werman Salas P.C., Chicago, IL, for Plaintiff Mary Bateman. Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, for Plaintiffs Linda Vargas Martinez, David Gallegos. Douglas Lynn, Ogletree Deakins Nash Smoak & Stewart, PC, Phoenix, AZ, Tibor Nagy, Jr., Ogletree Deakins Nash Smoak & Stewart P.C., Tucson, AZ, for Defendants.
Douglas Werman, Pro Hac Vice, Sarah Arendt, Maureen Salas, Werman Salas P.C., Chicago, IL, Stacy Wisner Thomsen, Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, Travis Hedgpeth, The Hedgpeth Law Firm, PC, Houston, TX, for Plaintiff Dania Pruess.
Stacy Wisner Thomsen, Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, Douglas Werman, Werman Salas P.C., Chicago, IL, for Plaintiff Mary Bateman.
Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, for Plaintiffs Linda Vargas Martinez, David Gallegos.
Douglas Lynn, Ogletree Deakins Nash Smoak & Stewart, PC, Phoenix, AZ, Tibor Nagy, Jr., Ogletree Deakins Nash Smoak & Stewart P.C., Tucson, AZ, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL AND ORDER FOR COSTS
JOHN F. ROBBENHAAR, United States Magistrate Judge Before the Court is Plaintiffs’ Motion to Compel Discovery. Doc. 116. The motion is fully briefed, see Docs. 125; 127, and the Court conducted two hearings related to this motion. First, on September 30, 2021, the Court presided over an informal discovery conference where some but not all of the issues presented here were addressed. See Doc. 109 (Clerk's Minutes). Because the disputes were not resolved at the informal conference, Plaintiffs filed their Motion to Compel and, on January 6, 2022, the Court heard argument on the instant motion. Doc. 137 (Clerk's Minutes); also see Liberty Court Player (ABQ-Zoom_19cv629_JFR_DiscoveryHearing.dcr) (hereafter "Liberty"). Having fully considered the matter, and as explained below, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion, and orders Plaintiffs’ costs in bringing this motion to be paid by Defendants.
Plaintiffs bring claims pursuant to Fair Labor Standards Act ("FLSA") and the New Mexico Minimum Wage Act ("NMMWA"), on behalf of themselves and others similarly situated, alleging that Defendants misclassified Plaintiffs as exempt from state and federal overtime laws and caused Plaintiffs to not be paid for time they worked in excess of forty (40) hours. Doc. 83, ¶¶ 7, 8, 10 (Second Amended Complaint, or "SAC"). The Court previously issued case management deadlines to reflect phased discovery, with the first phase limited to conditional certification of a Plaintiff class, and the second phase going toward the merits of the case and/or decertifying. Doc. 19, fn. 1. District Judge Kenneth J. Gonzales granted Plaintiffs’ motion for step-one Notice to be sent to putative class members, Doc. 47, and this Court subsequently issued and extended case management deadlines for Phase Two discovery. Docs. 82, 119.
In discovery, Plaintiffs seek information to substantiate their allegations that they have been misclassified and denied protection under federal and state laws regarding the payment of overtime wages. As noted, the parties have resolved some of the matters previously considered, but in this Motion to Compel, six disputes remain. The Court will address each in turn.
A seventh matter was raised by the Plaintiffs at hearing, concerning the production of electronically stored information, and, particularly, emails. Liberty at 1:13:06 et seq. This matter will also be addressed herein.
LEGAL STANDARD
The FLSA requires covered employers to pay a minimum wage, and to pay their nonexempt employees overtime pay for hours worked in excess of forty in a work week. See 29 U.S.C. §§ 206 - 207. FLSA § 7 requires employers to pay covered employees who, in a given workweek, work more than forty hours "at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a)(1).
This matter was conditionally certified as a collective action under the FLSA, and thus Plaintiffs must demonstrate that the complaining employees are "similarly situated." 29 U.S.C. § 216(b). The burden at the initial conditional certification stage is relaxed, usually requiring "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Thiessen v. General Electric Capital Corp. , 267 F.3d 1095, 1102 (10th Cir. 2001). A plaintiff "need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist." Schwed v. Gen. Elec. Co. , 159 F.R.D. 373, 375-76 (N.D. N.Y. 1995). At the conclusion of discovery, after all potential plaintiffs have opted into the action, the court will apply a stricter standard of "similarly situated" and evaluate several factors to determine whether the case can proceed, including (i) individual plaintiffs’ "disparate factual and employment settings"; (ii) the defendants’ various defenses "which appear to be individual to each plaintiff"; and (iii) fairness and procedural considerations. Thiessen , 267 F.3d at 1102-03.
Fed. R. Civ. P. 26(b)(1) provides that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Relevant information need not be admissible at trial so long as it is reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Discovery's scope under Rule 26 is broad. See Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1520 (10th Cir. 1995) ; Sanchez v. Matta , 229 F.R.D. 649, 654 (D.N.M. 2004) (Browning, J.) ("The federal courts have held that the scope of discovery should be broadly and liberally construed to achieve the full disclosure of all potentially relevant information."). The federal discovery rules reflect the courts’ and Congress's recognition that "mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor , 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). If a party does not respond to an interrogatory or to a request for production, the party requesting the discovery may move the Court to compel the opposing party to respond. See Fed. R. Civ. P. 37(a)(2)(B). "[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
The party seeking to avoid discovery bears the burden of showing why that discovery should not be permitted. Blankenship v. Hearst Corp. , 519 F.2d 418, 429 (9th Cir. 1975) ; see also Carr v. State Farm Mut. Auto. Ins. Co. , 312 F.R.D. 459, 469 (N.D. Tex. 2015) (addressing burdens following 2015 amendments to discovery rules). The party resisting discovery must specifically detail the reasons why each request is irrelevant or otherwise objectionable, and may not rely on boilerplate, generalized, conclusory, or speculative arguments. F.T.C. v. AMG Servs., Inc. , 291 F.R.D. 544, 553 (D. Nev. 2013). Arguments against discovery must be supported by "specific examples and articulated reasoning." U.S. E.E.O.C. v. Caesars Ent. , 237 F.R.D. 428, 432 (D. Nev. 2006).
Discovery that is relevant to Plaintiffs’ FLSA claims is information that tends to prove that it is more probable that Plaintiffs are owed overtime pay by Defendants. See Fed. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."). Not only must Plaintiffs identify the potential class—a task conditionally completed but pending final approval by the district judge—but Plaintiffs must also demonstrate that the class actually worked compensable overtime (i.e., generally 40+ hours per work week). Compensable time starts with the "first principal activity" and ends with the last. IBP, Inc. v. Alvarez , 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005).
DISCUSSION
1. Named-Plaintiffs’ RFP No. 5 ("Supervisor Employment and Contact Information"):
In their Request for Production No. 5, Named-Plaintiffs request documents and records identifying the "(1) names, (2) employment dates, (3) job titles/positions (and corresponding dates with each), (4) employment locations and worksites, and (5) professional nursing licenses status (e.g. , RN, LPN, LVN, none)" for all employees who managed or supervised the Named Plaintiffs or Opt-in Plaintiffs during the relevant time period. Doc. 116 at 3 ("supervisor employment information"). RFP 5 also seeks documents and records identifying "the names, home addresses, personal phone numbers, and personal email addresses of all persons employed by Defendants who managed or supervised the Named-Plaintiffs and Potential Class Members during the relevant time period." Doc. 116 at 4 ("supervisor contact information").
Plaintiffs claim the supervisors are potential witnesses and the requested information will aid Plaintiffs’ counsel in determining who may have information related to class certification and which individuals to depose. Doc. 116 at 4; also see Liberty at 5:02-42 (Plaintiff's counsel explaining relevance and need of requested information). At the hearing on the motion, Plaintiffs’ counsel noted that Defendants have identified 95 individuals who qualify as supervisors, but that Defendants have not fully responded as to 63 of those 95 persons, omitting their employment dates, titles/positions, employment locations and worksites, or professional license status. Liberty at 2:50-3:07. Plaintiffs acknowledge that Defendants have produced basic contact information (i.e., names, telephones numbers, addresses) of the 63 individuals, but they lack information on whom these individuals supervised. Liberty at 7:28-57.
The Defendants claim that the information sought is not relevant or proportional to the Plaintiffs’ case, and is burdensome to locate as it must be extracted on "an individual basis." Liberty at 11:17. Regarding "supervisor employment information," Defendants claim that they have produced this information on the 32 individuals, because "those were the 32 who directly supervised the plaintiffs, Named Plaintiffs or the Opt-in Plaintiffs in the case." Liberty at 11:22-31. Defendants admit that they didn't produce information of supervisors who may have supervised potential class members, since no class has been certified and those potential plaintiffs are not yet part of a class. Liberty at 11:48-12:03. In their response and after supplementation, Defendants claim to have produced a spreadsheet with the names/addresses/phone numbers for 95 individuals, and have produced contact information of 89 of those 95 persons. Doc. 125 at 3. Defendants object to having to provide personal contact information for management-level employees who are involved in "care coordination and/or utilization review." Doc. 125 at 4. Finally, in addition to the 32 direct supervisors, Defendants claim that 6 indirect supervisors are exempt from disclosure because they are management-level employees whose communications and actions can bind their employer, and who are in close contact with counsel. Doc. 125-2 ("Falance Decl."), ¶¶ 5, 6; also see Liberty at 12:56-13:14.
Plaintiffs reiterate in their reply that the spreadsheet produced by Defendants contains employment information for 32 (of 95) supervisors. Doc. 127 at 2. "Thus, Defendants have not produced Supervisor Employment Information for 63 of 95 total supervisors." Id. Regarding those who "directly supervised Named-Plaintiffs and Opt-in Ps," Plaintiffs still lack the dates, titles, locations and licensure information (Liberty at 16:17-50), which is information that Plaintiffs can't obtain on their own. Plaintiffs want Defendants to produce all licensing information "for the missing 63 supervisors ...," and contact information for the six supervisors claimed to be upper-level management personnel. Doc. 127 at 2. Furthermore, Plaintiffs claim that the Defendants do not show that these six indirect supervisors actually confer with counsel or have authority to obligate Defendants with respect to this legal matter. Doc. 116 at 5.
The Court finds that the material sought by Plaintiffs is relevant and proportional to their case, and constitutes appropriate discovery under Rule 26(b). While Plaintiffs’ class has been conditionally certified, Plaintiffs must still identify potential class members, but to do so they require information and data from the Defendants. The contact information of employees of the Defendants who directly worked with and supervised potential plaintiffs is certainly information that is reasonably calculated to lead to the discovery of admissible evidence, as those supervisory employees could likely shed light on their supervisee's duties and hours worked, as well as compensation policies that applied. Only by speaking to these supervisors will Plaintiffs be able to identify others who might qualify for the class. Plaintiffs are unable to obtain this information on their own.
Regarding the six indirect supervisors whose contact information Defendants have withheld, the Court will sustain Defendants’ objection as to these individuals. By declaration, Defendants have established that these six indirect supervisors can legally bind their employer through their actions and/or words, and are represented by counsel. Accordingly, counsel for the Plaintiffs must go through defense counsel should they wish to contact these persons.
Thus, the Court will GRANT IN PART Plaintiffs’ motion and order that Defendants must produce the information sought in RFP 5, but not as to the six indirect supervisors identified by Defendants.
2. Named-Plaintiffs’ RFP No. 8 (Payroll Software Information):
The second issue in dispute concerns documents and records reflecting compensation paid per week to the Named-Plaintiffs and Potential Class Members during the Relevant Time Period. Plaintiffs specify that information should be produced in "electronic, delimited, and importable format, if available." Doc. 116-1 at 10-11. Plaintiffs seek the payroll information in order to verify that they worked overtime hours during their employment with Defendants. Plaintiffs move the Court to compel Defendants to produce information regarding their payroll software (brand and version) used during the relevant period. Doc. 116 at 6.
Defendants state that they have produced the requested data, but the documents they produced are in .pdf format even though Plaintiffs want the data in .csv format. Doc. 116 at 5-6. Defendants claim that they have produced the data as it is kept in the ordinary course of business, Doc. 125-2 ("Falance Decl."), ¶ 7, and whenever they request payroll data, it comes to them in .pdf format. Doc. 125-2, ¶ 9. Defendants maintain that it would be unduly burdensome for them to produce the data in .csv format. Docs. 125 at 6; 125-2, ¶¶ 7, 8.
"Comma separated value". A .csv file is a delimited text file that uses a comma to separate values. Each line of the file is a data record. Each record consists of one or more fields, separated by commas. The use of the comma as a field separator is the source of the name for this file format. A .csv file typically stores tabular data (numbers and text) in plain text, in which case each line will have the same number of fields. A .csv file is readable by programs such as Microsoft Excel.
Plaintiffs reply that, in order to create a damages model with the data in .pdf format, Plaintiffs would have to manually input each data point for each individual, workweek by workweek, which Plaintiffs’ counsel states would constitute a "monumental task" to manually input the data. Liberty at 27:35-52. After learning that Infor Lawson is Defendants’ payroll provider, Plaintiffs’ counsel provided information to the defense on how to extract information from Infor Lawson into Microsoft Excel. Doc. 125 at 3. Plaintiffs want this Court to compel Defendants "to confer with Infor Lawson about producing the payroll data in Excel format, and that either (1) Plaintiffs’ counsel be permitted to participate in Defendants’ conferrals with Infor Lawson regarding the feasibility of .csv production; or (2) the Court order Defendants to confirm by affidavit the identity of the Infor Lawson representative(s) with whom Defendants conferred and detail Infor Lawson's response regarding the feasibility of production." Doc. 127 at 4; also see Liberty at 26:32-27:35.
Infor Lawson is the third-party vendor that maintains Defendants’ payroll data.
The Court finds that Plaintiffs’ request for payroll data is relevant and proportional to their case, and that Plaintiffs appropriately and reasonably requested that the information be produced in .csv format, if possible. First, the Court tends to agree with counsel for Plaintiffs that, in this wage and hour case, there is likely no information more important than the payroll data. Liberty at 32:32-38. For without such, how do Plaintiffs prove their FLSA claims that they and the class they represent were underpaid if they can't show the number of overtime hours worked? The information sought by Plaintiffs is central to their ability to prove their claim, and with the additional information they have learned, it does not appear unduly burdensome for the defense to contact the payroll software engineer, Infor Lawson, and inquire about extracting the data in .csv or Excel format. Second, and perhaps more to the point, Rule 34 requires the producing party to produce the material in a form in which it is ordinarily maintained, "if a request does not specify a form for producing electronically stored information ..." Fed. R. Civ. P. 34(b)(2)(E)(ii). Here, Plaintiffs specifically requested that the material be produced in an "importable format," i.e. , .csv format, so Defendants should endeavor to produce such material in that format. Defendants argue that producing material in .csv format could introduce errors into the data, but that is an argument that goes toward the introduction of such evidence at trial, or perhaps the weight to be given such evidence, but not toward its production during discovery. In the event that, after working with the payroll software engineer, Defendants are still unable to produce the data in the requested format, then counsel for Defendants can submit an appropriate affidavit attesting to the same. With respect to Named-Plaintiffs’ RFP 8, then, the Court will GRANT this request with the limitations outlined herein.
3. Named-Plaintiffs’ RFP 4 (Named-Ps’ and Opt-in Ps’ Licensure Information):
Named-Plaintiffs’ RFP No. 4 seeks production of documents and records identifying all persons, including the Named-Plaintiffs, whom Defendants employed as care coordination employees ("CCE") during the relevant time period, including their: "(1) names, (2) employee identification numbers, (3) employment dates, (4) job titles/positions (and dates corresponding with each), (5) employment location(s) and worksite(s), (6) professional nursing license status (e.g., RN, LPN, LVN, none), (7) compensation structures, (8) home address, (9) personal telephone numbers, and (10) personal email addresses." Doc. 116 at 6. Plaintiffs complain that, even after they agreed to produce the requested information, Defendants have produced data that is incomplete and that lacks information for the Named-Plaintiffs and "most of" the Opt-In Plaintiffs. Doc. 116 at 7. At the hearing, Plaintiffs noted that at their meet-and-confer discussions, since October 2021, Defendants have responded that that they will "get back to you" after conferring with their clients, but never do. Liberty at 34:48-56.
Defendants responded that they have produced "a majority of this information," Doc. 125 at 7, and are "in the process of compiling the information for the remaining named Plaintiffs and opt-in Plaintiffs." Doc. 125 at 7. Defendants state that the Plaintiffs already have this information elsewhere in discovery so the Defendants shouldn't be forced to produce something Plaintiffs already have. Doc. 125 at 8; also see Liberty at 38:06-14. Defendants complain that it will be burdensome to extract the requested data from various databases. Liberty at 38:27-37.
Plaintiffs reply that, even after supplementation, Defendants have still not produced the data despite their agreement to do so. Doc. 127 at 5. Plaintiffs claim that have conducted a thorough review of the materials and have been unable to locate certain information, and disagree that they have ready access to all the requested information. Liberty at 38:55-39:40. In particular, Plaintiffs still need four data fields, including credentials, credentialling source, work assignment location, and direct/indirect supervisor. Liberty at 35:54-36:26. Plaintiffs request that the Court impose a deadline on Defendants to produce the requested information, since they need to move discovery along and can't keep waiting for Defendants. Liberty at 35:10-29.
The Court finds that the information sought here is relevant and proportional to the Plaintiffs’ claims. Regardless of whether "plaintiffs already have it," Defendants must produce this information in a manner that is accessible, which at present it does not appear to be. The four data fields that Plaintiffs seek would help them identify potential plaintiffs and go directly to the exemption claimed by Defendants. Apparently, Defendants have agreed to supplement their production with the missing data fields, and at the hearing counsel agreed that it is their intent to produce the materials. Liberty at 37:07. And yet, months later, Defendants have still not produced the outstanding information. Defendants did report at the hearing that the data extraction process is more time-consuming and complicated than originally thought (Liberty at 37:10-30), which the Court can understand, but without more the Court has difficulty accepting that this process should drag on for months and months. Accordingly, the Court will GRANT Named-Plaintiffs’ RFP No. 4, and orders the Defendants to produce the following, to the extent it has not already been produced, regarding the Named-Plaintiffs, Opt-In Plaintiffs, and Potential Class Members: (1) credentials; (2) credentialling source; (3) work assignment location; (4) direct leader; and (5) indirect leader. See Doc. 127 at 5 (identifying requested information that is still missing).
4. Named-Plaintiffs’ RFP No. 10 and Opt-in Plaintiffs’ RFP No. 2 ("Timestamp Data"):
The fourth issue in dispute concerns Named-Plaintiffs’ and Opt-In Plaintiffs’ request for documents and records (RFP 10 and RFP 2, respectively) reflecting the times Named-Plaintiffs, Opt-in Plaintiffs, and Potential Class Members performed work-related activities, including but not limited to: "computer sign-in data, badge swipes, case management system data, facsimile logs, telephone logs and reports, time-stamped entries or documents, email meta data, time studies, security logs, invoices, expense reports, bills, work schedules, or other documents." Doc. 116 at 7. Because they were told by counsel that Defendants do not have the data (Doc. 116 at 8), Plaintiffs point out that they looked at two of the programs which show that timestamp data is, in fact, recorded. Doc. 116 at 8. Plaintiffs argue that in this wage and hour case, such data is crucial. Doc. 116 at 8.
Defendants agree that the information sought is relevant (Liberty at 46:02), but respond that they "attempted to recover time stamp data for the named Plaintiffs and opt-in Plaintiffs over the course of several months, but were unable to extract the data internally." Doc. 125-2 at ¶ 11. Then, after consulting with the developers of Jiva, Defendants were able to extract relevant timestamps. Doc. 125-2 at ¶ 12; also see Doc. 125 at 8 ("Defendants produced the Jiva records they were able to extract for the named Plaintiffs and opt-in Plaintiffs on November 12, 2021."). Defendants state that they no longer have control over the information held by the other software developers, as some (or all, other than Jiva) are no longer used by Defendants, but suggest that Plaintiffs have the ability to subpoena the information from the third-parties. Liberty at 46:10-30. Defendants state they were not able to get data from their prior software, CaseTrakker. Doc. 125 at 8.
Jiva is the timestamp/payroll program currently used by Defendants.
By way of their reply and at hearing on this motion, Plaintiffs state that Defendants have demonstrated, by obtaining the information from Jiva, that the information exists. Plaintiffs request that Defendants contact the other program developers and seek the same information from them. Liberty at 41:40-42:50; 43:38-44:09. At hearing, Plaintiffs conceded that they would consider issuing subpoenas to the third-parties whose software is no longer in use by Defendants. Liberty at 48:26-54. Plaintiffs ask that Defendants identify which timestamp programs Defendants still use and contact those program developers to extract relevant timestamp data. Liberty at 49:19-33. Plaintiffs move the Court for the following:
These programs may include Jiva, Netmotion, Facets, HealthRules, CaseManager, and HealthEdge. See Doc. 127-1, ¶¶ 11, 12.
"To the extent Defendants are unable to produce time stamp data from any of these programs or claim that doing so would be unduly burdensome, Plaintiffs also ask the Court to compel Defendants to confirm by affidavit the identity of the
software program representative(s) with whom Defendants conferred and detail each programs’ response regarding the feasibility of production."
Doc. 127 at 6.
The Court finds that the material sought is relevant and proportional to the needs of the case. The Court notes that FLSA § 11 imposes on an employer a duty to "make, keep, and preserve" records of its employees’ wages, hours, and "other conditions and practices of employment" that the employer may maintain. 29 U.S.C. § 211(c). The information sought goes directly to whether Plaintiffs worked more than 40 hours in any given work week and is therefore relevant. The information sought is also proportional to the needs of the case, as the data sought can potentially shed light on matters central to the claims of Named-Plaintiffs and Opt-in Plaintiffs.
The Court will GRANT IN PART Plaintiffs’ request with respect to Named-Plaintiffs RFP No. 10 and Opt-In Plaintiffs RFP No. 2 and order Defendants to produce timestamp data from the programs currently in use by Defendants during the relevant time period. In the event Defendants no longer use one or more of these programs, and assuming Defendants do not possess or have access to the timestamp data associated with those particular programs, then defense counsel must identify those programs and assist Plaintiffs in communicating with those program developers. See Liberty at 51:32-52:11 (Defense counsel agreeing to involve counsel for Plaintiffs in communicating with program developers). Plaintiffs will still be able to issue third-party subpoenas if they wish.
If Defendants possess or can access the timestamp data associated with programs no longer in use, then Defendants must disclose that data.
5. Named-Plaintiffs’ RFP No. 9 (Contracts):
Fifth, Named-Plaintiffs’ RFP No. 9 seeks the production of Defendants’ third-party contracts with health care providers and/or health insurance plans for the performance of utilization review and/or care coordination. Doc. 116 at 9. Plaintiffs argue that the contracts set forth the minimal educational and licensure requirements of care coordinators, and therefore the contracts go directly to the applicability of the learned professional exemption. Doc. 116 at 9. The information would also reveal the level of independent discretion and judgment exercised by Plaintiffs, Opt-In Plaintiffs and Potential Class Members. Doc. 116 at 9.
In their investigation, Plaintiffs identified the contracts Defendants had with the New Mexico Human Services Department (HSD), and thus Plaintiffs acknowledge that they know the individuals who worked as care coordinators (CCE). At the hearing, Plaintiffs indicated that they have obtained all information from the HSD contracts regarding CCEs, but are still missing information regarding utilization management employees (UME). Plaintiffs state that they need information on UMEs in order to justify class certification and/or to defend against a potential motion for summary judgment. Liberty at 58:22-39.
Defendants respond that Plaintiffs’ discovery request is overbroad, unduly burdensome, and not proportional to the needs of Plaintiffs’ case. Doc. 125 at 9. Defendants state that it would take thousands of hours, perhaps six months to produce the requested information. Id. Defendants claim that Plaintiffs can get information they seek from information they already have, "such as job descriptions, training materials, and testimony from Plaintiffs and individuals who supervised or managed Plaintiffs." Id. Defendants state that "they have already produced documents, such as job descriptions, that contain the minimum educational and licensure requirements that Care Coordinators and UM Nurses are required to possess." Id.
By way of their reply and at hearing on the motion, Plaintiffs suggest a compromise wherein Defendants would produce a sampling of their contracts with third-parties. Doc. 127 at 8; see generally Liberty at 53:05-58:50. Plaintiffs indicate that they have narrowed the issue and confirmed that the HSD contracts contain sufficient relevant information related to job duties and levels of supervision of CCE, but what is still missing is information pertaining to the utilization management employees (UME). Plaintiffs suggest the following:
"Plaintiffs respectfully ask the Court to approve the following compromise: Defendants must identify the fifteen third party entities with whom Defendants have contracted for the performance of utilization management services under which the largest number of Defendants’ utilization review employees work, and must produce a sample of at least one contract for utilization management from each of the fifteen third parties."
Doc. 127 at 8. Plaintiffs claim that this is "evidence that goes directly to the misclassification of utilization review employees as well as class certification, without placing an undue burden on Defendants." Doc. 127 at 9.
Given that the scope of Plaintiffs’ request has narrowed, the Court inquired into the burden that would be imposed on the Defendants. Defense counsel stated that he still needs to discuss the matter with his clients to identify the fifteen third-party entities that employed the greatest number of UMEs, and then produce one contract from each of the fifteen entities, but counsel "thinks" that his clients would "most likely be" agreeable to Plaintiffs’ request. Liberty at 1:00:10-15.
At hearing, in an effort to appear reasonable, defense counsel admitted that the information sought by Plaintiffs’ counsel is relevant and can and should be produced, but that defense counsel will first need to confirm with his clients. Upon hearing this, the Court expressed its frustration and noted that the motion was fully briefed over a month prior to the hearing, and the first question posed by the Court at hearing was whether any of the matters in dispute had been resolved. To that question, counsel answered no. It is now evident to the Court that had defense counsel displayed even a modicum of diligence in striving to meet and confer with his opposing counsel and make a good faith effort to resolve the matters in dispute, the Court is confident that this issue would have been resolved, and the Court would not have been forced to spend hours preparing. The Court admonishes defense counsel to not waste the Court's time in future hearings.
The Court finds that the Plaintiffs’ RFP 9 is relevant and proportional to their claims, and the information sought is reasonably calculated to lead to the discovery of admissible evidence. In their efforts to determine whether Defendants inappropriately applied the learned professional exemption, Plaintiffs indicate that they possess all needed information regarding CCEs, but presently lack necessary information to establish a class with UMEs; their suggested compromise aims to provide them that missing educational and licensure information without posing an undue burden on Defendants. Accordingly, the Court will GRANT Plaintiffs RFP 9 as narrowed by Plaintiffs’ counsel in their Reply and at the hearing. See Doc. 127, p. 8.
6. Named-Plaintiffs’ RFP No. 15 (Audits, Communications, Reports, etc. from HSD):
The sixth area in dispute concerns Plaintiffs’ request for information from Contract Managers of the HSD contracts, and Plaintiffs’ request that the Court compel Defendants to search those individuals’ files, records, and communications for the requested documents, both sent to and received from HSD. Specifically, Plaintiffs seek
"[a]ll policies, procedures, guidelines, handbooks, training materials, manuals, workflows, process flows, standards, criteria, bulletins, resources, tools, or other documents reflecting the job duties, job responsibilities, and/or workloads of the Named Plaintiffs and potential Class Members or that the Named Plaintiffs and Potential Class Members used to perform their job duties during the relevant time period."
Doc. 116 at 10-11. Plaintiffs claim that "these documents relate directly to the oversight, training, and job duties of Plaintiffs, Opt-in Plaintiffs, and Potential Class Members." Doc. 127 at 9.
By way of their response, Defendants state that Plaintiffs did not comply with Rule 37(a)(1). Defendants claim they were in process of responding, but Plaintiffs went ahead and filed their motion to compel. Defendants note that Plaintiffs’ original request was made on October 11, 2021, Defendants responded that same day stating they would work on it, but there were no further communications until Plaintiffs filed the instant motion. Defendants conclude that,
In any event, Defendants searched their records for responsive documents, but were unable to locate any records reflecting what documents had been provided to HSD and, therefore, cannot definitively say what documents have been produced to HSD. Exh. B at ¶ 18. Also, the records that would have been produced to HSD would most likely be training documents, which have already been produced to Plaintiffs in this action. Exh. B at ¶ 17. At this point, Defendants have produced the documents in their possession that are responsive to Named Plaintiffs’ Document Request No. 15. Plaintiffs’ Motion to Compel these records should be denied.
Doc. 125 at 12.
Plaintiffs reply by claiming they did meet and confer. Specifically, Plaintiffs point to an email they sent to Defendants’ counsel on October 11, 2021. Defendants responded that evening and said they would contact their client, but never followed up. When the Motion to Compel deadline of October 21, 2021, arrived, Plaintiffs felt they had no choice but to file. (Plaintiffs aver that Defendants still hadn't responded to Plaintiffs until November 4, 2021. Doc. 127 at 9-10.) And the only way Plaintiffs discovered that the information regarding the HSD contract with Defendants existed was from obtaining those contracts on their own, even after Defendants said there was no responsive information in those third-party contracts.
In an overtime case that centers on Plaintiffs’ workload, Plaintiffs’ job duties, and the extent to which Plaintiffs were subjected to oversight or had the discretion to deviate from company and regulatory guidelines and procedures, Defendants’ argument that this type of information is irrelevant is completely without merit.
Doc. 127 at 12. Plaintiffs move the Court to compel Defendants "to (1) identify the individuals who served as Contract Managers under the HSD contracts and (2) search those individuals’ files, records, and communications, including electronic communications, for the requested reports, audits, templates, and communications both sent to and received from HSD." Doc. 127 at 12.
The Court will first find that Plaintiffs met their meet and confer obligation under Rule 37, and with a deadline to file a motion to compel fast approaching, contacted Defendants to inquire about their answers to discovery. Not having heard back from the Defendants, Plaintiffs naturally filed their motion to compel. It cannot be said that Plaintiffs failed to abide by their meet and confer obligations. See Liberty at 1:06:52-1:07:45 (Court finding that Plaintiffs have complied with obligations under Rule 37 ).
At the hearing, Defendants agreed that Plaintiffs’ RFP 15 has "some relevance" to the case (see Liberty at 1:09:00), but claimed that they don't have a record of what has been sent by their clients to HSD; Defendants indicate that they have produced everything that they have that reflects the job duties of the Contract Managers. Liberty at 1:09:26-34. Defendants continue to seek access to a share file (held by HSD) to determine what data has been shared, in an effort to answer Plaintiffs’ request. Liberty at 1:10:02-15.
The Court finds that the information sought here is relevant and proportional to the Plaintiffs’ claims. Defendants must identify the Contract Managers for the HSD contracts, and produce responsive documents from those individuals for the relevant time period. Plaintiffs seek those individuals’ files, records, and communications for the requested documents, both sent to and received from HSD. By doing so, Plaintiffs seek information related to oversight, training and job duties—information that is clearly material to the issue of whether or not certain plaintiffs were properly exempted from the relevant overtime laws. See Liberty at 1:04:15-1:05:54 (explaining materials provided by HSD to the Defendants, as well as information provided to HSD by Defendants). The Court will GRANT Plaintiffs’ RFP 15 and order Defendants to produce the requested information, to the extent it exists, from the HSD contract.
7. Additional Issue Raised at Hearing: Electronically Stored Information (ESI)
At the conclusion of the January 6, 2022, hearing, Plaintiffs raised an additional matter that is in dispute, namely Defendants’ failure to turn over electronically stored information (ESI) more specifically identified as emails. See Liberty at 1:13:06 et seq. Apparently, this dispute was ripe prior to the filing of the motion to compel in October 2021, but Plaintiffs explained that because the parties had reached an agreement as to the process to be used in identifying relevant emails, the issue was not included in their motion. Regarding the procedure to be followed, it was agreed that Plaintiffs would provide search terms to the Defendants, and after inputting those terms, Defendants would report to the Plaintiffs the "hit rate," or numbers of emails identified by the particular search terms. If necessary, Plaintiffs would then attempt to refine the search terms in an effort to narrow the scope to ease the burden on Defendants.
With such agreement in effect, Plaintiff provided Defendants various search terms, but Defendants have not responded with any information about the hit rate of potentially-responsive emails. Plaintiffs’ counsel notes that they are now "several months" into the process but are no further along in the production of responsive materials. Liberty at 1:14:55. Plaintiffs also note that depositions which were scheduled were cancelled because of this issue, and therefore ask the Court to impose a deadline for Defendants to respond.
For their part, defense counsel acknowledged the agreed upon procedures and admitted that Defendants received search terms from the Plaintiffs. Defendants also agree that the discovery sought is appropriate and that they intend to comply. Defendants have little explanation for why they have not provided responsive information, other than to say it's "a process" that is taking longer than expected and there's a lot of work to be done. Liberty at 1:16:23-1:18:12.
The Court is not swayed. The motion to compel was filed on October 21, 2021, and fully briefed on December 2, 2021, thus giving the Defendants over two months to respond to the Plaintiffs with the hit rates or, if appropriate, to simply produce the responsive emails. Instead, it appears they have slow-walked their response and have left Plaintiffs hanging. Indeed, Plaintiffs state that depositions scheduled for the following week—January 13 and 14, 2022—will have to be rescheduled because of Defendants’ failure to respond. Defendants’ intransigence in meeting their discovery obligations is directly, and negatively, impacting the progress of this case. The Court will GRANT Plaintiffs’ request for an order compelling Defendants to provide ESI/emails.
THE COURT WILL ORDER COSTS TO BE PAID BY DEFENDANTS
Rule 37 of the Federal Rules of Criminal Procedure require the non-moving party to pay the moving party's reasonable expenses incurred in making the motion, unless the moving party failed to make a good faith effort to obtain the discovery without court action, the nondisclosure or objection was substantially justified, or other circumstances make an award unjust. Fed. R. Civ. P. 37 (a)(5)(A)(i–iii). These costs include the moving party's attorney's fees.
Here, Plaintiffs’ discovery was served as early as July 2021, and while Defendants have produced thousands of pages of documents, it appears that Defendants have stonewalled on certain issues discussed in this order. At the hearing, counsel for Defendants generally acknowledged the Defendants’ obligation and intention to answer many (if not most) of Plaintiffs’ requests, but simply states that "it's a process" or that his clients are "working on it." Defendants have had months to answer the discovery, and provided no convincing explanation as to why they have failed to answer. In fact, regarding RFP 9, defense counsel acknowledged at the hearing that his clients intended to comply and that the issue was basically resolved, and yet the motion had been fully briefed for over a month and the Court, and Plaintiffs, expended considerable time and resources preparing for the hearing itself. As such, the Court sees no exceptions here that make an award of costs to the Plaintiffs.
CONCLUSION
IT IS HEREBY ORDERED:
1. Plaintiffs’ motion to compel answers to RFP 5 is GRANTED IN PART.
2. Plaintiffs’ motion to compel answers to RFP 8 is GRANTED.
3. Plaintiffs’ motion to compel answers to RFP 4 is GRANTED.
4. Plaintiffs’ motion to compel answers to RFP 10 is GRANTED IN PART.
5. Plaintiffs’ motion to compel answers to RFP 9 is GRANTED.
6. Plaintiffs’ motion to compel answers to RFP 15 is GRANTED.
7. Plaintiffs’ request for an order compelling disclosure of ESI/emails is GRANTED.
Defendants are ordered to produce the subject discovery to Plaintiffs within fourteen (14) days of the issuance of this Order. IT IS FURTHER ORDERED that Defendants shall reimburse Plaintiffs of their reasonable costs associated with the bringing of their Motion to Compel. Plaintiffs will submit a cost bill for the reasonable expenses incurred in making this motion no later than fourteen (14) days after issuance of this order, and defendants will file any objections to the reasonableness of plaintiffs’ requested fees within fourteen (14) days thereafter, absent a request showing good cause for an extension.