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Perez v. KDE Equine LLC

United States District Court, W.D. Kentucky, Louisville Division

January 4, 2017



          Dave Whalin, Magistrate Judge.

         Before the Court is the motion of Plaintiff Thomas E. Perez, Secretary of Labor of the United States Department of Labor (“Secretary”), to compel discovery responses from Defendants KDE Equine, LLC and Steve Asmussen (collectively referred to as “Defendants”). (DN 31). Defendants have filed a response in opposition. (DN 34). The Secretary has objected to Defendant's filing of Attachment 3 to their response. (DN 35). Defendants urge the Court to overrule this objection. (DN 36). The time for the Secretary to file a reply to their motion to compel has expired. These matters are ripe for review.

         I. Background

         The Secretary of Labor brings this action against Defendants KDE Equine and Steve Asmussen, alleging that, since June of 2012, Defendants have violated provisions of the Fair Labor Standards Act (“FLSA”). (DN 1, at p. 4). The Secretary first pleads that, since June of 2012, Defendants have violated Sections 7 and 15(a)(2) of the FLSA by engaging Churchill Downs employees, working as hot walkers and/or grooms, for workweeks longer than 40 hours without compensating said employees for overtime pay at one and one-half times their regular pay rate. (Id. at pp. 4-5). The Secretary also contends Defendants have repeatedly violated Sections 11(c) and 15(a)(5) of the FLSA by failing to “make, keep and preserve adequate and accurate records” of the aforementioned employees and of the wages, hours, and other conditions of employment maintained by Defendants. (Id. at p. 5). Defendants altogether deny these allegations. (DN 10).

         Discovery in this case has been contentious. On December 2, 2015, the Secretary propounded his “First Set of Interrogatories, ” “First Set of Requests for Admission, ” and “First Set of Requests for the Production of Documents” to Defendants. (DN 31-3). Within the 30-day deadline period, Defendants responded to each of the Secretary's three discovery requests. (DN 31-4; DN 31-5; DN 31-6).

         Almost one month later, the parties engaged in mediation before the Court, which was unsuccessful. The Settlement Conference Report ordered the parties to “exchange letter requests for documents” within seven days and “produce the requested documents to each other” within 20 days. (DN 25). Defendants timely responded to the Secretary's letter, submitting 1, 539 pages of documents marked “Privileged and Confidential - Settlement Communication.” (DN 41-1, at p. 2; DN 34, at p. 2).

         The Court held a telephonic status conference on March 29, 2016, ordering Defendants to provide the Secretary with “the requested information regarding ‘hot walkers' and ‘grooms', and support for employees claimed to be exempt” by no later than April 15, 2016. (DN 27). Defendants again timely responded to the Court's order and again marked the responsive documents as “Privileged and Confidential - Settlement Communication.” (DN 31-1, at p. 3; DN 34, at p. 2).

         The parties attended a second mediation before the Court on May 18, 2016; no settlement was reached. (DN 28). On June 22, 2016, the Secretary sent Defendants a nine-page letter setting forth numerous purported deficiencies in the Defendants' discovery responses. (DN 31-7). The Secretary requested Defendants respond by July 11, 2016. (DN 31-7, at p. 9). After Defendants missed that deadline, the Secretary inquired of Defendants when he could expect a response, to which Defendants indicated “soon.” (Id.). The Secretary stated he looked forward to the Defendants' response by August 4, 2016. (Id.).

         One day after the “new” response deadline passed, the Secretary filed the instant motion to compel, stating “[a]s of today's date, defendants still have not responded.” (Id.). Defendants emphatically disagree with this statement, explaining that they responded to the Secretary's June 22, 2016 letter on August 4, 2016. (DN 34, at p. 3). Their response, Defendants clarify, was served by mail on the agreed upon August 4, 2016 date, but, through oversight, the response letter was not transmitted by e-mail to the Secretary until 8:11 a.m. on August 5, 2016. (Id.). Defendants submit that this motion could have been avoided had the Secretary allowed time for Defendants' response to be delivered and given a fair reading to their response. (Id. at p. 4). The Secretary certifies, under Rule 37(a)(1), that he worked in good faith to confer with Defendants to obtain relief without court action, but Defendants were unresponsive. (DN 31, at pp. 2-3).

         II. Motion to Compel

         The Secretary's motion to compel, by incorporating its June 22, 2016 letter, argues Defendants' discovery responses were deficient in three respects.[1] First, Defendants provided evasive or incomplete answers for Interrogatory Nos. 2, 3, 4, 5, 6, 7, 13, 14, 15, and 18. Second, Defendants failed to produce documents or allow for the inspection of documents responsive to Requests for Production Nos. 14 and 19. Third, Defendants answers and objections to Requests for Admission Nos. 1, 4, 5, 7, 8, 9, and 10 are insufficient. The Secretary broadly seeks “full and complete responses” to his written discovery requests. (DN 31-1, at p. 7).

         Trial courts have wide discretion in dealing with discovery matters. See S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008); Chrysler Corp. v. Fedders Corp., 643 F.3d 1229, 1240 (6th Cir. 1981). The “scope of discovery” encompasses “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). In analyzing proportionality, the Court must consider the need for the information sought based upon “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         Federal Rule of Civil Procedure 37 allows a party to move for an order compelling disclosure or discovery when “a party fails to answer an interrogatory submitted under Rule 33” or “fails to produce documents . . . as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(iii), (iv). Under Rule 37, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). The party seeking discovery bears the burden of proving that a discovery response is inadequate. Equal Rights Center v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007).

         A. Interrogatories

         Throughout their responses to the Secretary's interrogatories Defendants made repeated objections to the numerosity of the interrogatories and Defendants' claims that they adequately responded through Rule 33(d) productions.[2] The Secretary argues against these objections in his motion to compel. (DN 31-7, at p. 2, 4; DN 31-1, at p. 6). The Court will address these broad objections before evaluating the sufficiency of Defendants' individual interrogatory answers challenged by the Secretary.

         Numerosity of Interrogatories

         In responding to the Secretary's Interrogatory Nos. 2 and 3, and all further interrogatories, the Defendants objected to the numerosity of the subparts, claiming they contain “no fewer than 600 interrogatories, ” far exceeding the number allowed under the Federal Rules. (DN 31-4, at p. 3, 5). This excessiveness of interrogatories, according to Defendants, is “patently disallowed under the Federal Rules” and is also overly broad and unduly burdensome. (Id. at p. 5).

         The Secretary takes issue with Defendant's “numerosity” objections on three bases: (1) the interrogatories as applied to each employee should not be counted separately; (2) Defendants waived their “numerosity objection” by providing a “non-answer” to each interrogatory; and (3) Defendants impermissibly responded by selectively answering interrogatories rather than answering what they contend are the 25 authorized interrogatories. (DN 31-7, at p. 2). Defendants contest these arguments as moot, stating they responded to each and every interrogatory, “albeit not with the responses [the Secretary] might have desired.” (DN 34, at p. 5).

         Rule 33 provides that unless otherwise stipulated and ordered by the court, a party may serve on another party “no more than 25 written interrogatories, including all discrete subparts.” Fed.R.Civ.P. 33(a)(1). Neither Rule 33 nor this Circuit identifies a precise formulation for determining when discrete separate subjects should be treated as multiple interrogatories. See State Farm Mut., Auto Ins. Co. v. Pain & Injury Rehabilitation Clinic, Inc., No. 07-CV-15129, 2008 WL 2605206, at *2 (E.D. Mich. June 30, 2008); see also Nat'l Products, Inc. v. Aqua Box Products, LLC, No. C12-605-RSM, 2013 WL 12114634, at *2 (W.D. Wash. Feb. 22, 2013) (citing Paananen v. Cellco P'ship, No. 08-1042, 2009 WL 3327227, at *2 (W.D. Wash. Oct. 8, 2009) (additional citation omitted)). Generally, however, subparts are counted as one interrogatory if “they are logically or factually subsumed within and necessarily related to the primary question.” Paananen, 2009 WL 3327227, at *2 (quoting Safeco of Am. v. Rawstrom, 181 F.R.D. 441, 445 (C.D. Cal. 1998)). A single question asking for several bits of information relating to the same topic counts as one interrogatory. Singleton v. Hedgepath, No. 1:08-cv-00095, 2011 WL 1806515, at *7 (E.D. Cal, May 10, 2011) (citing Safeco of Am., 181 F.R.D. at 445). On the other hand, when the primary question can be answered fully and completely without answering the second question, the questions will be considered distinct. Paananen, 2009 WL 3327227, at *2 (citing Estate of Manship v. United States, 232 F.R.D. 552, 555 (M.D. La. 2005)).

         Here, the Court agrees with the Secretary that Interrogatories No. 2 and 3 do not create hundreds of separate interrogatories simply by asking for information concerning numerous employees. See Hatfield v. A Nursetemps, Inc., No. 5:11-cv-416-Oc-10TBS, 2012 WL 1326120, at *4 (M.D. Fl. Apr. 17, 2012) (finding interrogatory stating: “[f]or each person identified in your response to the preceding interrogatory, please describe how those individuals were paid . . .” should be counted as a single interrogatory); Morgan v. Ga. Power Co., No. 7:06-cv-50, 2007 WL 1129337, at *2 n. 2 (M.D. Ga. Apr. 16, 2007) (finding interrogatory stating: “[i]dentify each person who you contend has knowledge of the facts and circumstances described in your Complaint and your Initial Disclosures” was a single interrogatory). If the interrogatories for each employee were counted separately, discovery in FLSA cases involving numerous employees would be a fruitless endeavor.

         Even so, the Court must still determine whether each subpart of Interrogatories No. 2 and 3 should be counted separately because if each subpart is considered discrete the Secretary has exceeded the Rule 33 limitation by submitting 31 interrogatories. Interrogatory No. 2 reads:

         For each person that was listed in Exhibit B, please state the following:

(a) The individual's job title and duties;
(b) The date the person began working or performing services for KDE Equine, LLC;
(c) The date the person stopped working or performing services for KDE Equine, LLC;
(d) The amounts paid to each person for each workweek from June 25, 2012 to present;
(e) The hours each individual worked during each workweek from June 25, 2012 to present; and
(f) The individual's rate of pay for each workweek from June 25, 2012 to present.

         (DN 31-4, at p. 3). Interrogatory No. 3 requests the same information as Interrogatory No. 2 but as to “all persons who worked or performed services for KDE Equine, LLC during any workweek from June 25, 2012 to present[, ]” excluding those individuals listed in Exhibit B. (Id. at p. 4). Interrogatory No. 3 ...

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