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Kerry Ann LOOMIS, individually and on behalf of others similarly situated, Plaintiff, v. UNUM GROUP CORPORATION, Defendant.
MEMORANDUM & ORDER
Before the Court is Plaintiff Kerry Ann Loomis's motion for a protective order. (Doc. 73.) Defendant Unum Group Corporation (“Unum”) has filed a response in opposition. (Doc. 75.) Plaintiff has filed a reply. (Doc. 82.)
I. BACKGROUND
On September 1, 2020, Plaintiff filed a complaint, individually and on behalf of others similarly situated, asserting Defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., by classifying its Disability Benefits Specialists as exempt employees, as well as other claims. (Doc. 1.) Plaintiff brought her FLSA claim as a putative collective action (id. at 5–6) and moved for conditional certification on November 21, 2020 (Doc. 51). In support, Plaintiff provided declarations of eight Unum Disability Benefits Specialists, including Plaintiff and three putative class members. (Docs. 53, 54.)
On November 24, 2020, counsel for Defendant notified Plaintiff's counsel it intended to take limited discovery regarding conditional certification, particularly the depositions of four declarants. (Doc. 74 at 2.) Counsel for Plaintiff opposed any pre-certification discovery based on the standard for conditional certification being low. (Id.)
On December 2, 2020, Defendant served twenty-five requests for production and deposition notices on Plaintiff and three other declarants. (Id. at 3–4.) Defendant's counsel later offered to narrow the discovery requests to “include only the document requests that involved plaintiffs’ job duties and their relationship with other employees (Requests 1–7 and 9–11).” (Id. at 4.) However, Plaintiff's counsel still objected to these requests. (Id. at 5.)
On December 3, 2020, the Court held a scheduling conference, during which the Parties raised the issue of pre-certification discovery. (Doc. 70.) The Court advised Plaintiff to file a motion for a protective order so the Court would have complete briefing before deciding the issue. On December 8, 2020, Plaintiff filed a motion for a protective order, seeking to stay all discovery until the Court decides Plaintiff's motion for conditional certification (Doc. 51). (Doc. 73.)
Plaintiff puts forth three arguments for the issuance of a protective order. First, Plaintiff asserts the standard for conditional certification is very lenient, and discovery on the issue is therefore unnecessary. (Doc. 74 at 7.) Plaintiff cites several cases indicating courts neither consider the merits of FLSA claims nor resolve factual disputes in deciding conditional certification, which, in turn, means discovery serves no purpose. (Id.) Second, Plaintiff argues Defendant has conceded conditional certification, citing several admissions in Defendant's Answer. (Id. at 9 (citing Doc. 32 ¶¶ 46, 28).) Third, Plaintiff argues Defendant possesses, or easily can obtain, sufficient evidence to oppose conditional certification, such that discovery would be unduly burdensome, a waste of resources, and inefficient. (Id. at 10–11.)
Defendant has responded to Plaintiff's motion and opposes the issuance of a protective order for three reasons. (Doc. 75.) First, Defendant proposes a higher burden of proof is required when a party proposes a bar on all discovery, a burden Plaintiff fails to meet. (Id. at 7–8.) Second, Defendant contends limited discovery is necessary to explore whether the declarants actually have the personal knowledge claimed and other issues related to conditional certification, as the declarations are “cookie-cutter” copies of each other. (Id. at 6, 9–10.) Third, Defendant contends Plaintiff will suffer no prejudice if limited discovery proceeds. (Id. at 12.) Defendant notes Plaintiff cannot claim prejudice either based on the statute of limitations, as Defendant agreed to toll it until its response to conditional certification is due, or based on a delay in certification, since the certification motion has been pending only a few months. (Id. at 12–13.)
Plaintiff has filed a reply to Defendant's response. (Doc. 82.) Plaintiff again contends “[p]re-certification discovery is not the norm,” citing several cases in support. (Id. at 10.) Even so, Plaintiff argues Defendant has failed to show it needs pre-certification discovery while she has demonstrated several harms, namely duplicative discovery requests and expenses. (Id. at 5–6, 10.) Plaintiff also suggests a delay in sending notice to putative class members would present a harm, particularly in light of the COVID-19 pandemic. (Id. at 3–4.)
Plaintiff's motion for a protective order (Doc. 73) is now ripe.
II. STANDARD OF REVIEW
The scope of discovery traditionally is quite broad. See Fed. R. Civ. P. 26(b)(1). Under Rule 26, parties may obtain discovery regarding any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case, “considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). However, a court may limit discovery otherwise allowed by the Rules, as it is “well-established that the scope of discovery is within the sound discretion of the trial court.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994) (internal quotations omitted) (quoting United States v. Guy, 978 F.2d 934, 938 (6th Cir. 1992)).
First, discovery may be limited pursuant to Rule 26(b)(2), which authorizes the Court, “[o]n motion or on its own ․ [to] limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) 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; ․ or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
Second, discovery may be limited pursuant to Rule 26(c), under which a court may issue a protective order that “forbid[s] the discovery or disclosure” a party seeks. Fed. R. Civ. P. 26(c)(1). The party moving for a protective order must show “good cause” that such discovery or disclosure will result in one of four enumerated harms, which are “annoyance, embarrassment, oppression, or undue burden or expense.” Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001); see also Fed. R. Civ. P. 26(c)(1). To meet this burden, the movant must provide “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (quoting Serrano v. Cintas Corp., 699 F.3d 884, 899–900 (6th Cir. 2012)).1 These particular and specific demonstrations of fact must demonstrate a “clearly defined and serious injury.” Nix, 11 F. App'x at 500.
III. DISCUSSION
Plaintiff's motion presents two issues for the Court: whether a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure is warranted, or in the alternative, whether the Court should quash Defendant's discovery requests pursuant to Rule 26(b) of the Federal Rules.
A. Protective Order under Rule 26(c)
“[O]ne of the harms listed in Rule 26(c)(1)(A) must be specified in order to warrant a protective order.” Serrano, 699 F.3d at 901. The question therefore is whether Plaintiff provided “a particular and specific demonstration of fact” of any enumerated harm. See Ohio Execution, 845 F.3d at 236 (quoting Serrano, 699 F.3d at 899–900). Plaintiff argues Defendant's pre-certification discovery requests will result in “undue burden and expense,” based primarily on three contentions (see Docs. 74, 82), while Defendant argues Plaintiff fails to meet her burden to demonstrate such harm (Doc. 75 at 8, 12). The Court addresses each of Plaintiff's asserted harms in turn.
First, Plaintiff argues she and the declarants will be subjected to two rounds of discovery, one at the conditional certification stage and one after certification, which subjects them to inefficient and duplicative discovery requests, preparation, and costs. (Doc. 74 at 5, 10; Doc. 82 at 3–5.) General assertions that compliance with discovery “would present a substantial burden” do not meet the Rule 26(c) standard. See Conti v. Am. Axle & Mfg., Inc., 326 F. App'x 900, 907 (6th Cir. 2009); Friends of Tims Ford v. Tenn. Valley Auth., No. 4:06-cv-66, 2007 WL 9723138, at *2 (E.D. Tenn. Dec. 28, 2007) (citing Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir. 2004)) (denying protective order because moving party had “not explained why responding to these interrogatories and document requests would be particularly burdensome, lengthy, or difficult”). Instead, the moving party must provide some evidence, typically in the form of affidavits or declarations, which demonstrate the specific harm. See, e.g., Nix, 11 F. App'x at 500 (affirming grant of protective order as moving party “submitted an affidavit stating that it would be difficult for him to schedule a deposition[ ] because of his legislative duties,” among other specific reasons); Maxchief Invs. Ltd. v. Plastic Dev. Grp., LLC, No. 3:16-cv-63, 2017 WL 710956, at *3 (E.D. Tenn. Feb. 22, 2017) (denying protective order, in part, because the parties’ joint motion was “unaccompanied by affidavits or declarations”); Sweet v. Lockheed Martin Energy Sys., Inc., No. 3:97-cv-603, 1998 WL 479448, at *4 (E.D. Tenn. June 23, 1998) (internal quotations omitted) (noting moving party “did not support its motion for protective order with any affidavits or other evidence that might provide support for” some harm). Lacking in Plaintiff's motion is any demonstration of the harms alleged. Plaintiff provides an affidavit from her counsel, but it addresses only the communications with Defendant's counsel on the pre-certification discovery issue, not the harm imposed by such discovery. (See Doc. 74-1 at 1–4.)
Relatedly, Plaintiff's allegation that she and the declarants will be subjected to multiple rounds of discovery is speculative. If the collective action is conditionally certified, discovery will occur, but some conditionally certified FLSA cases do not involve individualized discovery. See Kutzback v. LMS Intellibound, LLC, No. 2:13-cv-02767-JTF-cgc, 2020 WL 1317345, at *9 (W.D. Tenn. Mar. 17, 2020) (footnotes and quotations omitted) (“Some federal courts have held that defendants can seek individualized discovery as to each opt-in plaintiff, while other courts have limited discovery to a representative sample. In general, as the size of the class increases, the cases allowing individual discovery grow fewer and farther between.”); see also Monroe v. FTS USA, LLC, 860 F.3d 389, 408 (6th Cir. 2017) (“In FLSA cases, the use of representative testimony to establish class-wide liability has long been accepted.”). Although Defendant's counsel requested permission to conduct another round of discovery as to Plaintiff and the three declarants, those requests may not be made or may not be permitted. Plaintiff has not provided a specific and particular demonstration of fact that she and the other declarants will be subjected to several rounds of discovery. Thus, the harms alleged from duplicative discovery are nothing more than “stereotyped and conclusory statements,” which do not satisfy Plaintiff's burden. See Ohio Execution, 845 F.3d at 236 (quoting Serrano, 699 F.3d at 899–900).
Second, Plaintiff asserts Defendant's discovery requests will delay notice to putative class members. Plaintiff argues this delay is a significant harm, as the COVID-19 pandemic has led to increasing evictions across the country and Defendant's contact information for putative class members risks becoming stale. (Doc. 82 at 4.) Plaintiff's assertion lacks support. General statistics about increasing evictions do not demonstrate “specific prejudice or harm,” and Plaintiff fails to present any evidence suggesting any putative class member has been evicted, currently faces eviction, or will face eviction. Plaintiff's “concerns, then, are speculative, and mere speculation is insufficient to warrant such stringent limits on pretrial investigation.” Nemir, 381 F.3d at 550.
Third, Plaintiff asserts Defendant's discovery requests undermine the two-step approach for FLSA cases. (Doc. 74 at 7–9; Doc. 82 at 10–12.) This approach separates FLSA cases into two stages: (1) “the notice stage” requires the plaintiff to show “only that [her] position is similar, not identical, to the positions held by putative class members,” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546–47 (6th Cir. 2006) (internal quotations omitted); and (2) “[a]t the second stage, following discovery, trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated,” id. at 547. Plaintiff therefore argues discovery should not occur before the first stage is complete. (Doc. 74 at 7–9.) Defendant, on the other hand, contends courts within the Sixth Circuit regularly permit pre-certification discovery. (Doc. 75 at 8–10.) The cases cited by Plaintiff and Defendant do not answer this question, but rather illustrate an important principle: “[d]istrict courts have broad discretion under the rules of civil procedure to manage the discovery process.” Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014); see also Steffen v. Contract Swepers & Equip. Co., No. 2:17-cv-579, 2017 WL 5054569, at *2 (S.D. Ohio Oct. 18, 2017) (“Ultimately, however, whether to stay briefing and allow discovery in any particular case is committed to the broad discretion of the court.”). Based on Defendant's cited cases, pre-certification discovery does not appear to be contrary to the FLSA. In fact, other circuits have explicitly called for pre-certification discovery, which lends support that doing so would not be contrary to the FLSA. See Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 441 (5th Cir. 2021) (“[A] district court should identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees’ is ‘similarly situated.’ And then it should authorize preliminary discovery accordingly.”). Thus, some FLSA cases may warrant pre-certification discovery, and such circumstances do not undermine the two-step approach of FLSA cases in the Sixth Circuit.
Although Plaintiff contends Defendant's need for discovery is minimal, that alone does not absolve Plaintiff from complying with the evidentiary standard imposed by Rule 26(c). See Serrano, 699 F.3d at 901 (“[W]hile we have sometimes considered the need for the [discovery] ․ reviewing the grant or denial of a protective order, we have not abandoned the requirement that one of the harms listed in Rule 26(c)(1)(A) must be specified in order to warrant a protective order.”). Plaintiff failed to meet her burden to present evidence of the harms she alleges in her motion. As a result, the Court DENIES her motion for a protective order (Doc. 73). See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (“To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”). This decision, however, does not conclude the Court's inquiry.
B. Limits on Discovery Pursuant to Rule 26(b)(2)
Although Plaintiff fails to establish a protective order is warranted under Rule 26(c), Rule 26(b)(2) may provide grounds on which the Court should limit Defendant's discovery requests. Two grounds in particular are relevant.
First, Rule 26(b)(2)(C)(iii) requires the Court to limit discovery requests that fall outside of the permitted scope of discovery. The permitted scope depends, in part, on whether the discovery is important to resolving an issue in the case and whether the discovery's costs outweigh its likely benefit. Fed. R. Civ. P. 26(b)(1). Two arguments by the parties are relevant to the analysis: whether Defendant has conceded conditional certification is appropriate, and if and how the Court would consider any evidence obtained from the limited discovery in deciding conditional certification.
Regarding concession, Plaintiff asserts discovery serves no purpose, as Defendant essentially admitted putative class members were “similarly situated” in its Answer. (Doc. 74 at 9, 11; Doc. 82 at 1–2.) Plaintiff's assertion is misguided. Paragraph 45 of the Complaint alleges other employees are similarly situated to Plaintiff. (Doc. 1 ¶ 45.) Defendant did not admit this allegation, instead answering it was unable to respond and therefore denied it. (Doc. 32 ¶ 45.) Defendant does admit in the next paragraphs that it employed at least one hundred individuals in the same role as Plaintiff with similar job duties and that these individuals were classified as exempt. (Id. ¶ 46, 48.) These admissions, while certainly relevant to conditional certification, do not concede the issue entirely. For example, Defendant does not admit any of these employees regularly worked over forty hours per week, any of these employees had management responsibilities, or any of these employees had little discretion in how they performed their jobs. See Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 770–71 (N.D. Ohio 2015). Thus, these admissions do not make Defendant's discovery requests futile.
Regarding the Court's use of evidence obtained from the discovery, Defendant asserts limited discovery is necessary to “probe” the declarations and will inform its opposition to conditional certification, while Plaintiff asserts the Court will consider only the evidence she presented in the motion.
Defendant's more limited discovery requests essentially investigate one question: whether the factual assertions contained in the declarations are true. (See Doc. 74-1 at 16–17.) The answer to this question, however, is irrelevant to the Court's decision on conditional certification. To begin, the legal standard for conditional certification is “fairly lenient.” Comer, 454 F.3d at 547. As a result, “a district court does not generally consider the merits of claims, resolve factual disputes, or evaluate credibility” in considering conditional certification. Russell v. Grubb & Assocs., Inc., No. 3:18-CV-463, 2019 WL 5872476, at *6 (E.D. Tenn. Aug. 15, 2019) (quoting Waggoner, 110 F. Supp. 3d at 765). For example, in deciding conditional certification, the Southern District of Ohio noted “Defendants have submitted their own declarations which purportedly contradict [the plaintiff's] statements. However, it is not the court's role at the conditional certification stage to resolve factual disputes or evaluate credibility.” Rembert v. A Plus Home Health Care Agency LLC, No. 2:17-CV-287, 2018 WL 2015844, at *2–3 (S.D. Ohio May 1, 2018). Other district courts have held the same.2 Even if Defendant presented evidence that the declarations’ factual assertions were false, such evidence would not be considered. Thus, the discovery sought provides no benefit at this stage, not only to inform Defendant's opposition but also for the Court's decision on conditional certification. Therefore, Defendant's requests are outside the scope of permitted discovery, and it is appropriate for the Court to limit that discovery under Rule 26(b)(2)(C)(iii).
Second, Rule 26(b)(2)(C)(i) provides another ground on which the Court can limit Defendant's discovery requests. Again, Defendant's intent to “probe” the declarations serves no purpose at this stage of litigation. See supra III.A. With that purpose being irrelevant, the information requested by Defendant is already within its possession. For example, Defendant's requests for production of documents ask for information on the declarants’ job duties at Unum, the number of hours they worked, and the total number of employees in this particular position at Unum. (See Doc. 74-1 at 16–17.) Defendant has access to this information within its own records and obtaining the information internally rather than through discovery is far more convenient, less burdensome, and less expensive than through Plaintiff and the declarants.
In conclusion, while Plaintiff's showing was insufficient for purposes of Rule 26(c), it is sufficient for the Court, on its own, to limit Defendant's discovery requests under Rule 26(b)(2)(C). See Anwar v. Dow Chem. Co., 876 F.3d 841, 854 (6th Cir. 2017) (affirming trial court's limits on discovery pursuant to Rule 26(b)(2), as the limits were within its discretion); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (noting “the Advisory Committee amended Rule 26(b) in both 1983 and 1993 to afford district courts greater discretion in restricting the scope of discovery”). Eventually, Defendant will have the opportunity to seek the discovery it has requested here; however, at this stage of the litigation, the burden and expense of such discovery, and its relative unimportance, far outweigh its benefit to deciding conditional certification.
IV. CONCLUSION
For the foregoing reasons, the Court finds Plaintiff failed to meet her burden to show a protective order is warranted. However, the Court finds the discovery should be quashed pursuant to Rule 26(b)(2), in light of its burden, expense, and lack of importance to the issues presented in the case so far.
In sum, the Court ORDERS as follows:
(1) Plaintiff's motion for a protective order (Doc. 73) is DENIED;
(2) Pursuant to Rule 26(b)(2)(C), Defendant's discovery requests are QUASHED; and
(3) Defendant shall respond to Plaintiff's motion for conditional certification (Doc. 51) within seven days of entry of this Order.3 (See Doc. 80.)
SO ORDERED.
FOOTNOTES
1. The Court disagrees with Defendant's assertion that a higher burden applies. Plaintiff does not seek an indefinite bar to all discovery; rather, she seeks a temporary stay of discovery. Cf. In re Nat'l Prescription Opiate Litig., 927 F.3d 919, 937 (6th Cir. 2019) (explaining moving party “faced a high hurdle” as the “ban on disclosure would remain in effect in perpetuity”).
2. See, e.g., Russell, 2019 WL 5872476, at *6 (District court declined to weigh “conflicting declarations regarding the number of hours worked and compensation of travel time.”); Heldman v. King Pharms., Inc., No. 3-10-1001, 2011 WL 465764, at *3 (M.D. Tenn. Feb. 2, 2011) (“Defendant also argues that, contrary to Plaintiff's assertions, hospital representatives and retail representatives have significantly different job duties. As indicated above, at this stage of the certification process, the Court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.”); Waggoner, 110 F. Supp. 3d at 769 (“[T]he weight to be given to any declaration that is contradicted by subsequent deposition testimony is a matter best reserved for the second stage of the proceedings.”); Saddler v. Memphis City Schs., No. 12-CV-2232-JTF-tmp, 2013 WL 12100720, at *5 (W.D. Tenn. Feb. 4, 2013) (“To the extent [the plaintiff's] statements contradict certain portions of her deposition testimony or the countervailing evidence presented by [the defendant], the court should not resolve these witness credibility issues or factual disputes at the conditional certification stage.”).
3. This response time was to be imposed if the Court granted Plaintiff's motion for a protective order and prohibited Defendant's discovery requests. The discovery requests are quashed on different grounds, but the Court finds it appropriate to impose the seven-day response deadline under the circumstances, namely that pre-certification discovery will not occur.
CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE
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Docket No: Case No: 1:20-CV-251
Decided: January 21, 2021
Court: United States District Court, E.D. Tennessee, Southern Division,
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