United States District Court, D. Colorado
ORDER CONCERNING MOTION FOR CONTEMPT, SANCTIONS, AND OTHER RELIEF
Robert E. Blackburn United States District Judge.
This matter is before me on the Plaintiffs’ Motion for Contempt, Sanctions, and Relief From Dates in Order Granting Motion for Conditional Certification [#115] filed April 3, 2015. The defendants filed a response [#128], and the plaintiffs filed a reply [#138]. I grant the motion in part and deny it in part.
I. STANDARD OF REVIEW
Under Fed.R.Civ.P. 37(b)(2), a district court may impose sanctions on a party for failure to obey a court order to provide or permit discovery. A district court also has the inherent power to enforce its orders through civil contempt. Shillitani v. United States, 384 U.S. 364, 370 (1966). A finding of civil contempt is proper when (1) a valid court order existed; (2) the subject of the order had knowledge of the order; and (3) the subject of the order disobeyed the order. FTC v. Kuykendall, 371 F.3d 745, 756-57 (10th Cir. 2004) (citing Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1315 (10th Cir. 1998)). See also 18 U.S.C. § 401(3).
This case has been conditionally certified as a collective action under the Fair Labor Standards Act (FLSA). In my Order Granting Motion for Conditional Certification [#110], I ordered the defendants to provide to the plaintiffs “the names, addresses, telephone numbers, and e-mail addresses of all current and former Chief Instructors employed by any of the defendants on or after March 10, 2011, whether designated as an employee or as an independent contractor. “ Id., p. 6.
The defendants provided a list to the plaintiffs, but, as the plaintiffs note in their motion, the list did not include all current or former Chief Instructors. In addition, the list did not include complete addresses, telephone numbers, and other information for all of the Chief Instructors shown on the list. Exhibit A to the motion [#115-1] is a chart showing the 119 names on the list provided by the defendants to the plaintiffs. The chart shows the absent or incomplete information provided by the defendants when they produced their list.
According to the defendants, some of the Chief Instructors on the list “elected not to provide their personal email and telephone numbers.” Response [#128], p. 1. However, it is undisputed that the defendants were required to maintain name and address records for each employee and independent contractor, for the purpose of filing or delivering relevant tax forms for these employees and independent contractors. In many cases, as shown on Exhibit A [#115-1], the defendants failed to provide home address information the defendants were required to maintain for purposes of tax compliance. In their response [#128], the defendants provide additional information about some Chief Instructors, a demonstration that the defendants likely had access to this information, but did not produce it, when they produced their list, as required by my order [#110]. The defendants note also that additional information and more complete information has been provided to the plaintiffs in subsequent discovery. This circumstance also shows that the defendants likely had access to this information, but did not produce it, when they produced their list, as required by my order [#110]. In addition, I note, there are a large number of defendant entities in this case. The record keeping of these entities is not, in many cases, centralized or coordinated. To some extent, this fact likely played a role in creating some of the flaws on the list provided by the defendants to the plaintiffs. In discovery, the plaintiffs have sought and obtained a large amount of information, including additional information about Chief Instructors who have worked for the defendant entities.
The plaintiffs contend that the lack of timely information from the defendants has prevented the plaintiffs from providing to certain potential opt-in plaintiffs notice of the Fair Labor Standards Act claims in this case. The plaintiffs note that at least 49 of the Chief Instructors shown on the list produced by the defendants have not received notice of the FLSA claims at any address provided by the defendants, despite the efforts of the plaintiffs to send mail to those addresses. Reply [#138], p. 9.
Recently, the plaintiffs filed Plaintiffs’ Motion for Class Action Certification, Appointment of Class Counsel, and Notice Approval [#224] filed March 4, 2016. They seek to pursue their claims of fraud, negligent misrepresentation, and civil conspiracy as a class action under Fed.R.Civ.P. 23. The key factual and legal issues underlying those claims are largely the same as the key factual and legal issues underlying the FLSA claims. Those issues include: (1) were instructors used by the defendants properly classified as independent contractors rather than employees?; and (2) if the instructors properly should have been classified as employees, were those employees properly paid for the hours they worked? If the motion to certify a class action is granted, another round of notice to potential plaintiffs will be required.
There is no question that my order [#110] requiring the defendants to provide information about past and current Chief Instructors is a valid court order. There is no question that the defendants had knowledge of the order. The defendants argue that, in producing their list, they were in substantial compliance with the order. They argue also that the more complete information later provided to the plaintiffs also mitigates their initial lack of complete compliance with the order [#110].
I find and conclude that the defendants were not in substantial compliance with my order [#110]. In their response [#128], the defendants provided some additional information about certain Chief Instructors which was not included on the list of Chief Instructors provided to the plaintiffs less than one month before the response [#128] was filed. In discovery, the defendants provided additional and more complete information about certain Chief Instructors. The defendants are required to maintain tax records with home address information of their employees and independent contractors, but, in many cases, the defendants failed to provide this information to the plaintiffs. These circumstances demonstrate that the defendants likely had access to this additional information, but did not produce it as required by my order [#110] when they produced their list.
Given the circumstances of this case, I conclude that the sanction described below is the best remedy for the partial non-compliance of the defendants with my order [#110]. I impose this sanction under Fed.R.Civ.P. 37(b)(2) as a sanction ...