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Beltran, v. Interexchange, Inc.

United States District Court, D. Colorado

May 2, 2018

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,
v.
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 HEARING

          CHRISTINE M. ARGUELLO United States District Judge

         This 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.)

         The Court denies all of these motions for the following reasons.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The 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.

         The 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.)

         In 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.)

         Also on 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.)

         On 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.)

         On 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.

         April 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.)

         II. LEGAL STANDARDS FOR DISCOVERY IN FLSA COLLECTIVE ACTIONS

         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.)

         Federal 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)).

         In the 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 ...


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