United States District Court, W.D. Kentucky, Louisville Division
THOMAS E. PEREZ PLAINTIFF
KDE EQUINE, LLC and STEVE ASMUSSEM DEFENDANTS
MEMORANDUM, OPINION, AND ORDER
Whalin, Magistrate Judge.
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.
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).
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;
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).
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).
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.).
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
Motion to Compel
Secretary's motion to compel, by incorporating its June
22, 2016 letter, argues Defendants' discovery responses
were deficient in three respects. 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).
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).
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
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. 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.
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).
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).
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)).
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.
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:
each person that was listed in Exhibit B, please state the
(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.
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 ...