Opinion
Civil Action No. 09-85J.
June 9, 2010
ORDER
Attached as Appendix 1 hereto is Plaintiffs' facsimile letter dated June 4, 2010, which the Court construes as a Motion to Compel. Defendants' response in opposition, faxed June 8, 2010, is attached as Appendix 2.
Consistent with the Order dated May 24, 2010 (Doc. 382), Plaintiffs' Motion to Compel is DENIED.
See id. at 22-23 and n. 13 (rejecting Plaintiffs' assertion that Defendants should be required to accept questionnaires and depositions obtained outside discovery process, as agreed upon by parties and approved by Court; "[collective action] members who appear ready, willing and eager to participate in discovery have not necessarily reflected a representative sample").
IT IS SO ORDERED.
Appendix 1
Thomas Solomon LLP THE EMPLOYMENT ATTORNEYS
VIA FACSIMILE AND U.S. MAIL
Honorable Cathy Bissoon
United States District Court
Western District of Pennsylvania
U.S. Post Office Courthouse
Seventh Avenue Grant Street
Pittsburgh, PA 15219
Re: Camesi, et al. v. University of Pittsburgh Medical Center, et al. Civil Action No. 09-CV-85
Dear Judge Bissoon:
We write on behalf of plaintiffs to seek the Court's guidance on an issue related to the Court's order dated May 24, 2010.
The parties have conferred and are at an impasse regarding the scope of the relevant population in this action and request this Court assistance.
Defense counsel has stated it will produce discovery only on the 75 opt-ins who it initially designated for discovery. Class Counsel believes defendants' production should also include any opt-in plaintiff who Class Counsel designated for discovery (by submitting their completed questionnaire) as well as the opt-in plaintiffs designated by the defendants. (Class Counsel also believes that particular requests, such as computerized payroll data, may need to come from a larger, or in some cases, smaller group of opt-in plaintiffs. However, Class Counsel seeks to have the "default" population for defendants' discovery production include opt-in plaintiffs who both parties have subjected to discovery.)
Allowing defendants to cherry pick the 75 opt-ins for which they will provide discovery — and refuse to produce discovery for anyone else — will not reflect a representative sample. A representative sample includes those individuals designated by plaintiffs, as well as the defendants.
Plaintiffs have attempted to cooperate in good faith by allowing the defendants to choose all 75 opt-in plaintiffs this Court ordered for discovery. Plaintiffs have actually increased the size of the representative sample by requesting defendants to designate additional opt-ins beyond the original 75 and providing responses for that group — something that the defendants themselves had sought. There is simply no basis for defendants to refuse to produce discovery for the additional opt-in plaintiffs who themselves have provided discovery and are subject to depositions.
Therefore, we request that the "default" discovery population include all opt-in plaintiffs designated by both parties.
Thank you for your courtesies in this matter.
Very truly yours,
Appendix 2
ECKERT SEAMANS
Eckert Seamans Cherin Mellott, LLC TEL 412 566 6000 U.S. Steel Tower FAX 412 566 6099 600 Grant Street, 44th Floor www.eckertseamans.com Pittsburgh, PA 15219 John J. Mycrs 412.566.5900 jmycrs@eckertsearnan.com June 8, 2010By Facsimile 412 208 7467
Honorable Cathy Bissoon
United States Magistrate Judge
U.S. District Court
U.S. Post Office Courthouse
Pittsburgh, PA 15219
Re: Camesi et al v. UPMC et al, Civil Action No. 09-85
Dear Judge Bisoon:
The purpose of this letter is to reply to the matters raised in plaintiffs' counsel's June 4, 2010 letter to the Court, in which plaintiffs have asked the Court to direct the defendants to provide discovery relating to a group of opt in plaintiffs who have been "designated" by counsel for plaintiffs by their having sent unsolicited responses to questionnaires to defense counsel. There are 133 such "designees" as of the date of this letter.
I apologize for the length of this letter, but we regard this as an important matter and to put counsel's request into perspective, defendants believe that some background is necessary.
As the Court has previously been made aware, at a meet and confer on January 12, 2010, defendants agreed that the discovery in the case would be limited to discovery pertaining to the named plaintiffs and a sample of 75 of the more than 3,000 opt ins. Defendants' position bad been that, if a sample were to be used, it had to be at least 300, and that 300 would be randomly picked. However, in exchange for their agreement to limit discovery to 75, plaintiffs agreed that defendants could select a sample that reflected a diverse group of opt ins. Employees of defendants (not counsel) made the selection of 75 opt ins by taking into consideration occupations, locations, current employment status, union or non-union status and whether they were regular, casual, full-time or part-time employees. The objective was to get a diverse sample. Those names were provided to counsel for plaintiffs on January 23, 2010. After email exchanges between counsel about how the selections were made, those 75 persons became the agreed upon sample. That is how the parties arrived at the point at which discovery of opt ins commenced, which was on February 1, 2010, and has been the undisputed basis on which discovery has been conducted since then. Defendants timely provided discovery for all 75 of the sample opt ins.
When plaintiffs failed to provide answers to questionnaires for over half of the initial sample, defendants filed a motion to compel. Plaintiffs were directed either to provide answers to questionnaires or to provide a reason why they could not for each of the opt in sample members.
In response, plaintiffs advised that 32 of the initial sample had decided to opt out and another had not responded. Defendants, following the same methodology, selected 35 opt ins to replace those who opted out, and provided those names to counsel on April 9 (24 names) and April 16 (11 names). Defendants have now provided full discovery for each of those 35 replacement opt ins, including the information that the Court directed be provided in the Order of May 24, 2010. Plaintiffs have, therefore, been provided discovery responses for 110 opt ins.
Plaintiffs, on the other band, have still not provided answers to questionnaires for eight of the original 40 sample members, and for 18 of the 35 replacement sample members, even though two months have elapsed since the replacement names were provided. Moreover, nine of the answers that have been provided are unsigned. No explanations have been furnished for way answers have not been provided. In summary, of the 110 sample opt ins identified to date, 61 of them have failed to provide any discovery at all, and 70 have failed to provide signed discovery responses. Of those, 34 have opted out without explanation and no explanation has been offered for the failure of the other 36 to provide signed answers to questionnaires.
Defendants have had the same problems getting depositions of opt ins. Since mid-February, defendants have sought to depose six opt ins. Only one has been made available to date. No explanation has been given as to why the five opt ins have not been made available, either on the dates noticed or on any other dates.
When these defaults resulted in defendants' filing of a second Motion to Compel, plaintiffs responded with the argument they make in their June 4 letter, contending that they should now be permitted to decide which opt ins should be the subject of discovery. The Court rejected this argument, stating:
The Court rejects Plaintiffs' suggestion that Defendants be required to accept the questionnaires and depositions of collective action members not agreed upon by the parties. Experience has shown that members who appear ready, willing and eager to participate in discovery have not necessarily reflected a representative sample.
May 24, 2010 Order, Doc. 383, page 22 n. 13.
This background is necessary to address adequately the plaintiffs' request that defendants should be required to provide discovery responses for any opt in that plaintiffs' counsel "designates" by mailing unsolicited and unsigned responses to questionnaires. Defendants have received, as of the date of this letter, 133 such "responses," nearly all of which have arrived unsigned, with some declarations trickling in later.
There are two serious problems with plaintiffs' request.
First, the theoretical justification for having a sample of opt ins to represent the whole group, is that the sample will be representative of the whole group. In other words, that one can reasonably conclude that, if the four named plaintiffs are similarly situated to the opt ins in the sample, then it is reasonable to infer that they are similarly situated to the other 3,000 opt ins. This is why defendants' initial position was that a substantially larger number should be chosen for the sample. However, this assumption is not warranted when the "sample" is hand picked on the basis of their answers to questionnaires, or even their willingness to answer them, as the Court aptly stated in its May 24 Order. Plaintiffs' counsel have not explained how they selected the "designees," nor have they stated how many opt ins were questioned in order to come up with the 133 "designees."
Moreover, the fact that plaintiffs' counsel are completing questionnaires for the members of the sample (and for their own "designees"), and then sending them out for signature, together with the fact that a whopping 65% of the sample has failed to respond, suggests that plaintiffs' counsel may be culling the agreed upon sample to eliminate those opt ins whose answers will tend to demonstrate that the opt in group is diverse and not suited to collective treatment. Thus, not only is the sample selected by defendants being polluted by culling, but the overall sample obtained by adding the plaintiffs' "designees" would result in a "sample" that is selected wholly by plaintiffs' counsel on the basis of their answers to questionnaires. Such a sample would hardly be representative of the 3,000 plus opt in group.
The second problem presented by plaintiffs' request stems from the fact that discovery related to these 133 designees has never been contemplated by the parties until now, and is basically changing the rules with only a month remaining in the discovery period. To date, defendants have received 133 unsolicited (mostly unsigned) responses to questionnaires from plaintiffs' counsel, as noted above. Defendants would not have time to complete discovery for this group, and at the same time to complete the discovery still being undertaken for the initial sample.
Not only the parties, but the Court as well, have proceeded on the assumption that discovery would encompass the sample 75 opt ins and the four named plaintiffs. See, e.g., May 24 Order at 22: "[T]he Court hereby directs defendants to continue supplying to plaintiffs the names of additional, acceptable collective action members until 75 questionnaires have been completed, and ten employees deposed." To date, defendants have done so for 110 opt ins.
Discovery for these new 133 opt ins would require that defendants answer the plaintiffs' interrogatories for each of them. They would also be required to produce the following records for each: Kronos, payroll, payroll deduction, copies of pay stubs, W-2, FICA and FUTA documentation, and personnel files, which must be manually copied. All of this data must be numbered and put on disks. Additionally, inquiries must be made of all of the supervisors for the 133 designees, to determine the procedures for tracking missed meal breaks, to determine if any of the opt ins have made any reports or complaints about missed meal breaks or overtime pay, and to obtain all relevant hard copy or electronic communications to or from the employees. Furthermore, the parties have not yet agreed upon the scope of ESI discovery. They have met and conferred, and defendants have sent to plaintiffs an ESI propesal, to which plaintiffs have not yet replied. Depending upon what ESI discovery will be agreed upon, that alone could entail time consuming and expensive activities even if limited to the sample of 75.
In conclusion, plaintiffs' request should be rejected because it would unfairly taint the sample and contravene the parties' agreement close to the end of the discovery period.