United States District Court, D. Colorado
JOHANA PAOLA BELTRAN, LUSAPHO HLATSHANENI, BEAUDETTE DEETLEFS, ALEXANDRA IVETTE GONZALEZ, JULIANE HARNING, NICOLE MAPLEDORAM, LAURA MEJIA JIMENEZ, SARAH CAROLINE AZUELA RASCON, CAMILA GABRIELA PEREZ REYES, CATHY CARAMELO, and LINDA ELIZABETH, Plaintiffs,
INTEREXCHANGE, INC., USAUPAIR, INC., GREATAUPAIR, LLC, EXPERT GROUP INTERNATIONAL INC., d/b/a Expert AuPair, EURAUPAIR INTERCULTURAL CHILD CARE PROGRAMS, CULTURAL HOMESTAY INTERNATIONAL, CULTURAL CARE, INC., d/b/a Cultural Care Au Pair, AUPAIRCARE INC., AU PAIR INTERNATIONAL, INC., APF GLOBAL EXCHANGE, NFP, d/b/a/ Aupair Foundation, AMERICAN INSTITUTE FOR FOREIGN STUDY, d/b/a Au Pair in America, AMERICAN CULTURAL EXCHANGE, LLC, d/b/a GoAuPair, AGENT AU PAIR, A.P.E.X. AMERICAN PROFESSIONAL EXCHANGE, LLC, d/b/a ProAuPair, 20/20 CARE EXCHANGE, INC., d/b/a The International Au Pair Exchange, ASSOCIATES IN CULTURAL EXCHANGE, d/b/a GoAuPair, and GOAUPAIR OPERATIONS, LLC, d/b/a GoAuPair, Defendants.
ORDER DENYING CERTAIN DEFENDANTS' MOTIONS TO
COMPEL DISCOVERY AND RELATED MOTIONS FOR A FORTHWITH
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court on certain Defendants' Motions
to Compel Discovery and related Motions for a Forthwith
Hearing, in which moving Defendants request that the Court
compel discovery from FLSA opt-in class members:
1. Defendant InterExchange Inc.'s (“Defendant
InterExchange”) Motion to Compel Discovery (Doc. # 970)
and its Motion for a Forthwith Hearing on the Motion to
Compel Discovery (Doc. # 971);
2. Defendants Cultural Care, Inc.'s (“Defendant
Cultural Care”), American Cultural Exchange, LLC's,
and GoAuPair Operations, LLC's (collectively,
“Defendant GoAuPair”) Joint Motion to Compel
Discovery (Doc. # 973) and their Motion for Forthwith Hearing
on their Joint Motion to Compel Discovery (Doc. # 974); and
3. Defendant Expert Group International, Inc.'s
(“Defendant Expert AuPair”) Motion to Compel
Discovery (Doc. # 978.)
Court denies all of these motions for the following reasons.
BACKGROUND AND PROCEDURAL HISTORY
factual and procedural background of this case has been
extensively detailed in the Court's previous orders and
the Magistrate Judge's recommendations. See,
e.g., (Doc. ## 240, 569, 828.) Additional information is
included here only to the extent necessary to address the
discovery disputes now before the Court.
Court conditionally certified eleven classes and subclasses
of opt-in Plaintiffs pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 216(b), on March 31,
2017. (Doc. # 525.) The deadline for completion of discovery
pertaining to these opt-in FLSA Plaintiffs was April 9, 2018.
(Doc. # 763 at 13); see (Doc. # 747 at 4.)
March 2018, Defendant Cultural Care and Plaintiffs filed
competing motions regarding the scope of Defendant Cultural
Care's depositions of opt-in FLSA Plaintiffs it had
previously sponsored. (Doc. ## 924, 953.) On April 4, 2018,
the Court issued its Order on Depositions of FLSA Opt-In
Class Members and defined the permissible breadth of
Defendant Cultural Care's inquiries. (Doc. # 969.)
Relevant here, Defendant Cultural Care's questions are to
be limited to the period between when the deponent was
recruited to join an au pair program and when
his/her J-1 visa expired, and Defendant Cultural Care may ask
about relevant issues outside of that time period only if the
questions pertained solely to the deponent's au
pair experience. (Id. at 2.) The Court limited
inquiries about a deponent's personal life, background,
and subjective states of mind. (Id. at 2-3.) It also
ordered that opt-in class members residing in countries that
restrict depositions shall not be required to travel
internationally to be deposed. (Id. at 3.)
April 4, 2018, Defendant InterExchange filed its Motion to
Compel Discovery. (Doc. # 970.) It argues a court order
compelling production of information is necessitated by:
“(i) certain opt-in [P]laintiffs' failure to
respond to [its] discovery requests, (ii) [P]laintiffs'
refusal to respond to [its] Interrogatory Nos. 2, 3, 5, and
6, and (iii) [P]laintiffs' failure to respond to Requests
for Production and failure to disclose the opt-in
[P]laintiffs' survey answers.” (Id. at 5.)
Defendant InterExchange simultaneously moved for a forthwith
hearing on the ground that “the discovery end date
[was] less than a week away, on April 9, 2018.” (Doc. #
971 at 2.) Plaintiffs responded to Defendant
InterExchange's Motion to Compel Discovery on April 25,
2018, asserting that Defendant InterExchange's motion
“is the result of strategic choices [it made] during
opt-in discovery” and that Defendant InterExchange is
not entitled to relief just because it “regrets”
its strategic decisions. (Doc. # 1039 at 3.)
April 6, 2018, Defendants Cultural Care and GoAuPair filed
their Joint Motion to Compel Discovery. (Doc. # 973.) They
ask the Court to compel production of “survey responses
from a survey prepared and sent out by Plaintiffs'
counsel to all opt-in au pairs.” (Id.
at 2.) Defendant Cultural Care also requests that the Court
compel Plaintiffs to produce “six remaining
deponents” and to inform these deponents “that
failing to comply with a court order may warrant
dismissal.” (Id. at 4, 8.) Defendants Cultural
Care and GoAuPair filed a Motion for a Forthwith hearing on
their Joint Motion to Compel Discovery on April 6, 2018.
(Doc. # 974.) Plaintiffs filed a Response in Opposition to
the Joint Motion to Compel Discover on April 18, 2018. (Doc.
# 1017.) Plaintiffs argue Defendants Cultural Care's and
GoAuPair's Joint Motion to Compel Discovery is
“contrary to the FLSA and case law, both of which
envision very limited discovery of opt-ins.”
(Id. at 2.) Defendants Cultural Care and GoAuPair
timely replied in support of their Joint Motion on April 23,
2018. (Doc. # 1020.)
April 9, 2018, Defendant Expert AuPair filed its Motion to
Compel Discovery, asking the Court to enter “an order
compelling Plaintiffs to provide responses to [Expert
AuPair's] discovery requests by the opt-in [P]laintiffs
who have not responded.” (Doc. # 978 at 6.) Plaintiffs
did not respond.
9, 2018, was the close of the discovery period as to opt-in
FLSA Plaintiffs, as the Court previously stated. (Doc. # 763
at 13); see (Doc. # 747 at 4.) The deadline for any
motions to decertify the FLSA classes and subclasses is May
9, 2018. (Id.)
LEGAL STANDARDS FOR DISCOVERY IN FLSA COLLECTIVE
actions are expressly authorized by Section 216(b) of the
FLSA in cases where the complaining employees are
“similarly situated.” 29 U.S.C. § 216(b).
The determination of whether employees are “similarly
situated” is a two-step process. Thiessan v.
General Electric Capital Corp., 267 F.3d 1095, 1105
(10th Cir. 2001); Daugherty v. Encana Oil & Gas
(USA), Inc., 838 F.Supp.2d 1127, 1132-33 (D. Colo.
2011). At the first step, a court initially determines
whether the employees are “similarly situated”
for purposes of conditional certification, usually requiring
“nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan.” Thiessan, 267 F.3d
at 1102. At the second step- which happens “[a]t the
conclusion of discovery (often prompted by a motion to
decertify), ” id. at 1102-03-“the court
applies a stricter standard of ‘similarly situated,
' including application of at least four factors, to
determine whether the case can proceed as a class action,
” Daugherty, 383 F.Supp.2d at 1132-33. The
FLSA collective action presently before the Court finds
itself in between these first and second steps. Defendants
have been conducting discovery, in preparation of moving to
decertify the FLSA classes and subclasses. See,
e.g., (Doc. # 973 at 8 n.3.)
Rule of Civil Procedure 26(b)(1) provides that parties may
obtain discovery “regarding any nonprivileged manner
that is relevant to any party's claim or defense and is
proportional to the needs of the case” unless
“otherwise limited by court order.” However,
“[o]n motion or on its own, the court must limit the
frequency or extent of discovery otherwise allowed by these
rules or by local rule if it determines that . . . the
discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more
convenient, less burdensome, or less expensive”
pursuant to Rule 26(b)(2)(C)(i). See Garcia v. Tyson
Foods, Inc., 770 F.3d 1300, 1309 (10th Cir. 2014). This
is particularly true in “large or complex litigation,
” in which a court “may limit the scope of
discovery to protect a party from unduly burdensome discovery
requests.” Smith v. Lowe's Home Centers,
Inc., 236 F.R.D. 354, 356 (S.D. Ohio 2006) (citing
Adkins v. Mid-American Growers, Inc., 141 F.R.D. 466
(N.D. Ill. 1992) (in FLSA class action, discovery should be
conducted on a class-wide basis, rather than on an individual
basis, in light of the burden of individualized discovery on
the plaintiffs' counsel)).
context of an FLSA collective action, a court's
“intent is not to authorize a fishing expedition or
discovery that is unduly burdensome;” it aims rather to
“permit the [parties] to conduct
reasonable discovery” to determine
whether the plaintiffs are, in fact, similarly situated.
Daugherty, 838 F.Supp.2d at 1134 (emphasis added).
Once an FLSA collective action is initially certified, the
opt-in plaintiffs may “be subject to
some individualized discovery, following
which they will be required to demonstrate that they are
‘similarly situated' under [the] stricter
standard.” In re American Family Mut. Ins. Co.
Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298 (D.
Colo. 2009) (emphasis added) (citing Thiessen, 267
F.3d at 1102-03)). However, though a defendant is entitled to
discovery from a “certain number of [p]laintiffs,
” a defendant “is not entitled
to individualized discovery from each and every
opt-in [p]laintiff.” In re American
Family Mut. Ins. Co. Overtime Pay Litigation, No.
06-cv-17430-WYD, 2009 WL 1120293, *2 (D. Colo. April 27,
2009) (emphasis added). This is because
[e]vidence concerning each individual plaintiff's job
duties and responsibilities on a week-by-week . . . basis is
not essential. Because the court has already determined the
plaintiffs are “similarly situated, ” individual
depositions and interrogatories are not appropriate.
Individualized discovery is just too onerous. The plaintiffs
should be deposed on a representative basis . . . . Although
interrogatories may be served on a broader scale, they too
should be served generally on a representative basis.
Adkins v. Mid-American Growers, Inc., 143 F.R.D.
171, 174 (N.D. Ill. 1992) (internal citation omitted).
Moreover, to allow individualized discovery from each opt-in
plaintiff would be at odds with the purposes of the
FLSA's collective action provision, which “allows .
. . plaintiffs the advantage of lower individual costs to
vindicate rights by the pooling of resources” and
benefits the judicial system through “efficient
resolution in one proceeding of common issues of law and fact
arising from the same alleged discriminatory activity.”
See Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
170 (1989); Smith v. Family Video Movie Club, Inc.,
No. 11 C 1773, 2012 WL 4464887, *2 (N.D. Ill. Sept. 27, 2012)
(“in FLSA ...