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Rogers v. The Webstaurant Store, Inc.

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

December 20, 2018

BRITTANY ROGERS, on Behalf of Herself and All Others Similarly-situated PLAINTIFF
v.
THE WEBSTAURANT STORE, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

         Before the Court is the motion of Plaintiff Brittany Rogers to compel production of an agreement between the Defendant and non-party April Duncan (DN 49). Rogers' motion also seeks an award of attorney's fees in bringing the motion. Defendant The Webstaurant Store, Inc. has filed its response at ¶ 55 and Rogers has replied at ¶ 65.

         Background

         Webstaurant is engaged in the business of selling commercial kitchen equipment through its website. It employs customer support representatives and other employees at several locations, who are paid on a salary basis. Rogers was employed by Webstaurant at the customer support facility in Madisonville, Kentucky from April 13, 2015 to December 19, 2017. Rogers complaint against Webstaurant alleges that it willfully failed to record employees' time for work performed and failed to compensate her and other employees for work in excess of forty hours in a work week in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (DN 1). The Court has granted her motion to conditionally certify this case as a collective action (DN 44).

         April Duncan was also employed by Webstaurant in a customer support capacity from December 1, 2014 to July 26, 2017 (DN 49, p. 4). In her own claim separate from this action she charged Webstaurant with having failed to pay her for overtime. Duncan and Webstaurant negotiated a settlement of her claim, which was memorialized in an agreement. The agreement was submitted to the Hopkins Circuit Court for in camera review, but not made part of the court record (Id., p. 5). Duncan's counsel was the same attorney representing Rogers in this action.

         Rogers sought production of the Duncan settlement agreement from Webstaurant through a request for production of documents. Webstaurant objection to production as follows:

ANSWER: OBJECTION: Upon information and belief, the same Mark N. Foster that is counsel for Plaintiffs in this action was sole counsel for April Duncan was therefore a party to the agreement and has in his possession or has equal access to the Agreement sought, thereby making this Request duplicative and unnecessarily burdensome.

(DN 49-2, p. 10).

         Rogers' counsel notified Webstaurant that he did not believe it would be appropriate for him to share information from a former-client's file with a current client, hence the reason for seeking independent production from Webstaurant. Subsequent communications between the parties and an informal conference with the undersigned culminated in Webstaurant's position that the document is privileged and not subject to production.

         Rogers' Argument for Production

         Webstaurant's objection to the request for production of the settlement agreement was simply that production imposed an unnecessary burden upon it because Rogers' attorney already had it in his possession. Rogers' motion makes an argument for why this objection is not valid, however since Webstaurant did not address it in its response it appears it has abandoned this objection.

         During the informal status conference with the Court, Webstaurant raised privilege as additional ground for not producing the agreement. Rogers asserts that Webstaurant has waived the privilege by not asserting it at or within the time permitted for responding to the request, citing Troutman v. Louisville Metro Dep't of Corr., No. 3:16-CV-742-DJH, 2018 WL 3041079, at *3 (W.D. Ky. June 19, 2018).

         As to whether any privilege exists, Rogers anticipates an argument by Webstaurant premised on Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 979 (6th Cir. 2003) and the doctrine of “settlement privilege, ” which relates to protection of communications and documents made or created in furtherance of settlement negotiations. Rogers argues that the privilege does not apply to finalized settlement agreements and is limited to predicate communications and documents which are in furtherance of settlement discussions. She cites Westlake Vinyls, Inc. v. Goodrich Corp., No. 5:03-CV-00240-R, 2007 WL 1959168, at *3-4 (W.D. Ky. June 29, 2007).

         Webstaurant's ...


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