United States District Court, D. Colorado
HECTOR BRACAMONTES, FELIPE CORRALES-GUERRERO, ADRIAN DAVILA, DENNIS GARCIA, JUAN GARCIA, ARTURO GARCIA-MARTINEZ, RUBEN GARCIA-PONCE, CARLOS HERRERA, LUIS MARTINEZ, HECTOR PAREDES-RAMIREZ, AARON PAYAN, EZEQUIEL PEREZ, SAMUEL ROMO, GERARDO SANDOVAL, MANUEL SANDOVAL, and WILIAN VELASQUEZ, individually and on behalf of all others similarly situated, Plaintiffs,
BIMBO BAKERIES U.S.A. Inc., Defendant.
ORDER RE MOTION TO STRIKE DEFENSE
Brooke Jackson, United States District Judge.
order addresses a discovery dispute that has been simmering
for months and has been addressed several times by the Court
in telephone hearings with counsel. Some background is
are truck drivers who deliver defendant's bakery products
to retail grocery stores. They claim that under the Fair
Labor Standards Act they should be receiving compensation for
their overtime hours. The Court has conditionally certified
this case as a collective action on behalf of “Route
Sales Representatives” (defendant's job title for
the plaintiffs) who worked for defendant in Colorado between
January 5, 2015 and the present, and drove qualifying trucks,
and will have completed and returned a “consent to
join” (opt in) form. See Orders of July 19 and
August 3, 2017, ECF Nos. 104 and 108.
defendant has numerous defenses, one of which is an
“outside sales” affirmative defense. Simply
stated, an employee employed in the capacity of an outside
salesman is exempt from the FLSA's minimum wage
requirements. Defendant claims that plaintiffs do more than
deliver goods and stock shelves. They are expected to attempt
to sell additional product to the stores, and hence, they are
covered by the outside sales defense.
maintain that there are specific sales personnel who do the
active selling, and that classifying the drivers as outside
salesmen is a ruse to avoid the minimum wage laws. Naturally,
they want to know what support defendant has for its outside
sales defense, including documents in the defendant's
files. But two roadblocks emerged. First, the defendant
insisted that plaintiffs never submitted formal requests for
the information, leaving only the defendant's Rule
26(a)(1)(A)(ii) obligation to disclose the documents that it
might use to support its defense. As there are no documents
that defendant expected to use to support the outside sales
defense, there was nothing to disclose. But, second, the
defendant consistently maintained that it had no documents
concerning drivers' sales activities other than
voluminous records of drivers' daily deliveries that do
not distinguish any product that the driver might have sold
on his own.
Court mooted the procedural issue by ordering that any
documents in the defendant's possession, custody or
control that are relevant to the outside sales defense be
produced. Nevertheless, counsel informed the Court and the
plaintiffs that they had been assured by their client that
the defendant had nothing to produce. See
Transcripts of telephone discovery conferences held on April
3 and May 15, 2017. ECF Nos. 74 and 87.
plaintiffs, however, were not convinced. They questioned
defendant's representatives in depositions about
documents that might relate to the defense, and they believed
they struck gold. During the May 15, 2017 telephone discovery
conference plaintiffs advised the Court in general terms of
potentially relevant documents they believed the defendant
does possess based on deposition testimony. See
Transcript, ECF No. 87, at 3-5. Defense counsel disputed
plaintiffs' characterization of the deposition testimony.
Id. at 6-7.
bottom line was that still nothing had been produced as of
the May 15, 2017 hearing. The Court ordered that defendant
produce any training videos, training seminar materials,
training brochures, training documents of any kind that
touched on training drivers to be salespeople, and employee
handbooks. Id. at 8. The Court repeated that
“if that's going to be a defense in this case, then
you've got to produce what your client has that shows
that these people are deemed and considered and trained to be
salespeople. And if there are no such materials, I will
assume that they're not salespeople.” Id.
gist of the pending motion is that when defendant finally
produced documents on June 14, 2017, it gave lie to the
repeated assurances that no relevant documents existed. Thus,
plaintiffs want the Court either to strike the defense as a
sanction or to issue an order to show cause as to why
defendant failed to produce the documents earlier. ECF No.
100 at 2.
now reviewed the documents, which have been attached as
exhibits to plaintiff's motion, I find that they are a
bit of an anticlimax. There are snippets here and there that
could be construed as indicative of a promotional or sales
role by the drivers. For example, item 23 in a list of 28
items in Bimbo Bakeries' “Sales Policies”
vaguely states, “It is the responsibility of the RSR to
sell promotions at the store level. Displays must have proper
P.O.P. and price signs.” ECF No. 100-3 at 2. Mr.
Meza's “Sales Seminar” is obviously
sales-oriented, although it is unclear whether it was created
for drivers or used to train drivers to be salesmen as
opposed, for example, to emphasizing the importance of
promoting the company's products and providing good
customer service. See ECF No. 100-5 at 8-40, ECF No.
100-5 at 1-39, ECF No. 100-7 at 1-20. In any event, counsel
represents that Mr. Meza “has not conducted this
training for RSRs in Colorado since before 2010 and has not
located a version that was used in Colorado. ECF No. 100-2 at
Indeed, counsel represents that the documents produced on
June 14, 2017 were used in Colorado during the January 15,
2015 to present period. Id. at 2.
these documents have been produced earlier in the case? Yes.
They were within the scope of the Court's orders to
produce, regardless whether they were in fact used in
Colorado in the time period that has subsequently been
determined by the Court to be the relevant time period for
collective action purposes. The documents bear on whether
defendant ever had written policies supportive of its outside
sales defense and, if so, what those policies were. Moreover,
one cannot dismiss the relevance of the documents for what
they do not show, i.e., there appears to be relatively little
emphasis in the company's written policies and procedures
on drivers' acting as outside salesmen. It should not
have been like “pulling teeth” to obtain these
sanction, the Court awards reasonable attorney's fees for
the time necessarily spent by plaintiffs' counsel in
obtaining the documents after defense counsel first informed
them that defendant had no documents to produce. In addition,
the Court precludes the defendant from using or referring to
any of the documents produced on June 14, 2017 during the
trial unless they are first used by the plaintiffs. However,
I find that that the requested sanction of striking the
defense would be excessive in the circumstances. It is
conceivable in the circumstances that defendant's
personnel and counsel genuinely, though mistakenly, failed to
appreciate the possible relevance of the documents and,
therefore, that they failed to recognize their discovery
obligation with respect to them.
motion to strike defendant's outside sales defense, etc.,
ECF No. 100, is GRANTED in PART and DENIED in PART,
consistent with the ...