United States District Court, W.D. Kentucky, Owensboro Division
BRITTANY ROGERS, on Behalf of Herself and All Others Similarly-situated PLAINTIFF
THE WEBSTAURANT STORE, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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).
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.
Argument for Production
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
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
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).