Summary
holding information on similarly situated employees relevant for variety of reasons prior to conditional certification
Summary of this case from Sjoblom v. Charter Commc'ns, LLCOpinion
Case No. 05-80077-CIV-MARRA/SELTZER.
July 20, 2005
ORDER
THIS CAUSE is before the Court on Plaintiff's Motion to Compel Better Response to Interrogatory Nos. 6, 13, and 15 of Plaintiff's First Set of Interrogatories and Incorporated Memorandum of Law (DE 23) and was referred to the undersigned pursuant to 28 U.S.C. § 636. The Court having carefully reviewed the papers in support of and in opposition to said Motion and being otherwise sufficiently advised in the premises, it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART, as set forth below.
1. BACKGROUND
Plaintiff — on behalf of himself and all others similarly situated — commenced this Fair Labor Standards Act ("FLSA") action on January 31, 2005. Plaintiff alleges that Defendant violated the FLSA by failing to pay overtime compensation to "telemarketers/cold callers" (like him) who worked more than forty hours per week. See Complaint ¶¶ 5-8 (DE 1). Defendant filed an Answer to the Complaint (DE 10) on March 7, 2005. In its Answer, Defendant denied Plaintiff 's claims and asserted several affirmative defenses, including that Plaintiff was exempt from the overtime requirements of the FLSA. See Answer ¶ 34 (DE 10). On March 30, 2005, Plaintiff filed a Motion seeking Court supervised notice to Defendant's current and former employees of their right to opt in to this action. See Motion (DE 13). That Motion has been fully briefed and remains pending before the District Court.
To date, a total of four individuals (besides Plaintiff) have "opted in" to this action.
On April 15, 2005, Plaintiff served Defendant with his First Set of Interrogatories. Defendant responded to the Interrogatories on or about May 25, 2005. Plaintiff now seeks an Order compelling Defendant to provide better answers to three of his Interrogatories.
II. DISCUSSION
A. Interrogatory No. 6
Plaintiff first challenges Defendant's response to Interrogatory No. 6. That Interrogatory states:
If you claim that Plaintiff is or was exempt from the provisions of the Fair Labor Standards Act, please state the specific exemption upon which you rely, and indicate as part of your answer the factual basis for claiming such exemption and describe the records and documents upon which you rely in responding to this interrogatory.
Defendant responded to this Interrogatory as follows: "Plaintiff was classified as an exempt administrative employee throughout his employment." Motion at 2 (DE 23). According to Defendant, its answer is sufficient because Interrogatory No. 6 is a "contention interrogatory" and such interrogatories are inappropriate at an early stage in litigation "before substantial discovery is completed." Opposition at 4 (DE 33) (citing Fischer Porter Co. v. Tolson, 143 F.R.D. 93, 95-96 (E.D. Pa. 1992)). The Court does not agree.
In its responses to Plaintiff's Interrogatories, Defendant did not assert that Plaintiff had asked Interrogatory No. 6 prematurely. Any objections not asserted in response to an interrogatory are waived. See Fed.R.Civ.P. 33(b)(4);Cliffstar Corp. v. Sunsweet Growers, Inc., 218 F.R.D. 65, 69 (W.D.N.Y. 2003). Nevertheless, the Court addresses Defendant's argument because Plaintiff did not argue in his Motion that Defendant had waived this objection by failing to assert the objection in its responses.
Defendant's lone complaint about this Interrogatory is that it is premature; yet, Defendant is authorized to (and, indeed, must) supplement its discovery responses as information becomes available to it. See Fed.R.Civ.P. 26(e)(2). Therefore, Defendant should have responded to the Interrogatory by informing Plaintiff of the exemptions (and the facts supporting those exemptions) on which it currently intends to rely and then seasonably supplementing its response at a later date, rather than simply refusing to provide a substantive answer to the Interrogatory. In the Court's view, a response with later supplementation is the preferred course of action. See In re One Bancorp Secs. Litig., 134 F.R.D. 4, 7-8 (D. Me. 1991) (ordering immediate response to contention interrogatories served at early stage of litigation, followed by supplementation of responses under Rule 26(e)); see also 8A Wright, Miller Marcus, Federal Practice Procedure: Civil 2d § 2167 (2d ed. 1994) (noting that no per se rule exists prohibiting contention interrogatories at early stage in case and that court's discretion to defer ruling on such interrogatories should be exercised only in "appropriate cases").
B. Interrogatory No. 13
Plaintiff next challenges Defendant's response to Interrogatory No. 13. That Interrogatory states:
Please identify all employees of Defendant (including former employees) whose duties were similar to those performed by Plaintiff for Defendant, and who were compensated in a manner similar to Plaintiff, and who were employed by Defendant within the three years of the filing of this lawsuit.
Defendant responded to this Interrogatory as follows:
Although Plaintiff has filed his lawsuit as a § 216(b) collective action, the Court has not authorized class notice, nor has it ruled that collective treatment of Plaintiff's claims is appropriate. Plaintiff is therefore not entitled to class discovery. Therefore, insofar as Interrogatory No. 13 seeks information regarding "similarly situated" individuals, Defendants [ sic] object on the grounds that it is premature, overly broad, unduly burdensome, harassing, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence.
Motion at 3 (DE 23). Defendant argues that this Interrogatory "puts the cart before the horse, because unless the Court grants Plaintiff's [Motion to treat this action as a collective action], . . . Plaintiff would not be entitled to the vast array of company-wide information that he is seeking in Interrogatory No. 13." Opposition at 6 (DE 33).
Defendant's argument is unpersuasive. While the identities of "similarly situated" employees may no longer be relevant in helping Plaintiff to define a proposed plaintiff "class" (insofar as that issue has already been fully briefed by the parties), the identities of persons performing the same job as Plaintiff may be useful — or, stated differently, could lead to the discovery of admissible evidence, see Fed.R.Civ.P. 26(b)(1) — for a different reason: with those identities, Plaintiff could attempt to ascertain whether Defendant had previously paid overtime to any of those "similarly situated" individuals. If an employee performing the same job as Plaintiff previously had been paid overtime by Defendant, then Defendant (by virtue of those payments) would have implicitly admitted that such employees were not exempt from the overtime provisions of the FLSA. Such information would be highly relevant to the claims in this case. "Similarly situated" employees also would be likely to have relevant information regarding the job duties of telemarketers/cold callers, the number of weekly hours typically worked, and the compensation structure. Such information would be relevant to Plaintiff's claim that telemarketers/cold callers were subject to the overtime provisions of the FLSA or instead, as Defendant argues, came within the Act's exemptions. Defendant's objections to this Interrogatory are, therefore, overruled.
In its response to Interrogatory No. 13, Defendant also asserted that the Interrogatory was "overly broad, unduly burdensome, [and] harassing," but Defendant did not renew those objections in its Opposition to Plaintiff's Motion. Regardless, these objections appear to have been based on Defendant's (now rejected) contention that company-wide discovery was improper because collective-action status has not yet been approved by the District Court. And, even assuming arguendo that these objections had been asserted independent of Defendant's argument concerning collective-action status, the Court would reject them. The Court does not believe that Interrogatory No. 13 is overly broad or unduly burdensome, especially given that Defendant employs — in total — only 175 employees. See Opposition to Motion for Court Supervised Notice at 2 (DE 17). The number of "telemarketers/cold callers" employed by Defendant over the past 3 years, therefore, is likely to be small. Nor does the Court discern any basis on which to conclude that the Interrogatory is "harassing."
C. Interrogatory No. 15
Plaintiff's last challenge is to Defendant's response to Interrogatory No. 15. That Interrogatory states:
With respect to each and every affirmative defense raised by Defendant in its Answer, state separately for each such defense any and all legal support for such defense, the factual basis for such defense, and identify all witnesses who have knowledge of the facts which support such defense.
Defendant responded to this Interrogatory as follows:
Discovery is ongoing, and Defendant is in the process of investigating the allegations and will supplement this answer as appropriate.
Motion at 6 (DE 23).
As with Interrogatory No. 6, Defendant argues that Interrogatory No. 15 is improper because it is a contention interrogatory served early in this litigation. See Opposition at 4-5 (DE 33). And, as with Defendant's response to Interrogatory No. 6, the Court concludes that Defendant's response to Interrogatory No. 15 is legally inadequate. That this case is at an early stage does not grant Defendant license to decline to answer the Interrogatory altogether. Rather, Defendant should have responded to the Interrogatory by informing Plaintiff of the basis for its asserted affirmative defenses, and then seasonably supplementing its response at a later date. See Fed.R.Civ.P. 26(e)(2).
Indeed, had Defendant lacked a factual basis for each of its defenses at the time it first raised them, Defendant would have violated Federal Rule of Civil Procedure 11.
D. Attorneys' fees
Plaintiff requests $1,620 in attorneys' fees incurred in preparing his Motion and his Reply in support of his Motion (5.4 hours expended at $300 per hour). See Reply at 4-5 (DE 34). Rule 37(a)(4)(A) of the Federal Rules of Civil Procedure provides that when a motion to compel is granted
the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to [resolve the issue], or that the opposing party's [actions were] substantially justified, or that other circumstances make an award of expenses unjust.
While the Court believes that Defendant's responses to the Interrogatories were not legally adequate, they were nevertheless supported by existing (though distinguishable and/or non-binding) case law. Accordingly, the Court concludes that Defendant had a "substantial justification" for its actions, making an award of attorneys' fees inappropriate.
III. CONCLUSION
For the reasons set forth above, Plaintiff's Motion to Compel Better Response to Interrogatory Nos. 6, 13, and 15 of Plaintiff's First Set of Interrogatories and Incorporated Memorandum of Law (DE 23) is GRANTED IN PART and DENIED IN PART. To the extent Plaintiffs Motion seeks to compel better answers to Interrogatory Nos. 6, 13, and 15, the Motion is GRANTED. Defendant shall fully and completely answer Interrogatory Nos. 6, 13, and 15 within 10 days of the date of this Order. To the extent Plaintiff's Motion seeks attorneys' fees, Plaintiff's Motion is DENIED.
DONE AND ORDERED.