United States District Court, D. Colorado
Michael J. Watanabe United States Magistrate Judge
ORDER ON NON-PARTY CINDA DAGGETT’S MOTION TO QUASH OR MODIFY SUBPOENA TO TESTIFY AT A DEPOSITION (Docket No. 1)
and ORDER ON INTERESTED PARTY CHIPOTLE MEXICAN GRILL, INC.’S and CHIPOTLE SERVICES, LLC’S MOTION TO QUASH SUBPOENA AND DEPOSITION OF CINDA DAGGETT (Docket No. 3)
ORDER ON RESPONDENTS’ MOTION TO TRANSFER THE SUBPOENA MOTIONS TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (Docket No. 11)
In the Southern District of New York, a collective and class action is pending against Chipotle Mexican Grill, Inc. and Chipotle Services, LLC (“Chipotle”). The lawsuit is a conditionally certified collective action under the Fair Labor Standards Act (“FLSA”), with pendant state-law claims that the plaintiffs hope to certify as class actions. Generally, the lawsuit alleges that employees with the job title “Apprentices” (or similar titles) were inappropriately treated as management positions exempt from overtime pay. Pending before this Court are three motions related to a Rule 45 deposition subpoena.
The Court has reviewed the parties’ filings (Docket Nos. 1, 3, 4, 5, 11, 12, 13, 14, 18, 19, 20, 21, & 22), taken judicial notice of the Court’s entire file in this matter, and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court:
Grants in part and denies in part Movant’s motion to quash (Docket No. 1);
Denies as moot Chipotle’s motion to quash (Docket No. 3); and
Denies Plaintiffs’ motion to transfer (Docket No. 11).
The underlying lawsuit was filed in late 2012. (Docket No. 4, p.1.) But in 2011, sensing a trend in wage-and-hour litigation, Chipotle had sought out legal opinions on its treatment of Apprentices. (Id. at 2-3.) One of the law firms rendering an opinion hired a human resources consultant, Cinda Daggett, to observe the day-to-day work of Apprentices and prepare a written report for the law firm’s use. (Id.) Several discovery disputes before the Southern District of New York, and now the Rule 45 motions pending in this Court, concern Ms. Daggett and her report.
The Plaintiffs in the underlying lawsuit (Respondents here) sought Ms. Daggett’s records in discovery. Chipotle asserted attorney-client privilege. The Southern District of New York ruled against Chipotle on the privilege question-finding both that Chipotle had waived privilege by placing good faith and reliance on counsel at issue, Scott v. Chipotle Mexican Grill, Inc.___, F.Supp. 3d ___, 2014 WL 7236907 (S.D. N.Y. Dec. 18, 2014), and that Ms. Daggett’s report was not privileged in the first place, Scott v. Chipotle Mexican Grill, Inc.___, F.Supp. 3d ___, 2015 WL 1424009 (S.D. N.Y. Mar. 27, 2015), motion for reconsideration denied, 2015 WL 2182674 (May 7, 2015). Plaintiffs then served a document subpoena on Ms. Daggett. (Docket No. 1-1.) She responded by providing a copy of her report; she did not produce her work-file or any related documents, claiming that such documents were lost in a computer crash. (Docket No. 12, pp. 3–4.)
Plaintiffs then served a deposition subpoena on Ms. Daggett. (Docket No. 1-2.) She has moved to quash the subpoena, claiming status as an unretained expert under Federal Rule of Civil Procedure 45(d)(3)(B)(ii). (Docket No. 1.) Chipotle filed a motion seeking the same relief. (Docket No. 3.) Plaintiffs oppose such relief, and they argue in the alternative that the matter should be transferred to the Southern District of New York to be handled by U.S. ...