United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiffs' petition for
expenses (ECF No. 72), pursuant to Federal Rule of Civil
Procedure 37(a)(5), relating to their successful motion to
compel discovery (ECF No. 50). They seek $11, 805.00 in fees
and $192.60 in costs. Defendants object generally to the
award of expenses, as well as to the amount sought by
plaintiffs. (ECF No. 80).
before the Court is the issue of sanctions for
defendants' violation of the Court's August 4, 2017,
compulsion order (ECF No. 66). The Court conducted an
evidentiary hearing on November 21, 2017 (Minutes, ECF No.
124), and found that defendants had violated that order
(see Hrg. Tr. at 54-55, ECF No. 126,
PageID.4367-68). The Court held in abeyance the issue of the
reasons stated herein, plaintiffs' petition for expenses
will be granted in part and denied in part. The Court will
sanction defendants for their violations of the discovery
order by awarding plaintiffs their reasonable expenses
incurred in pursuing their show-cause motion, as well as
their second motion to compel.
and Factual Background
an action brought by migrant and seasonal agricultural
workers who harvested blueberries for defendants between 2011
and 2013. Plaintiffs filed suit on June 3, 2016. (Complaint,
ECF No. 1). They allege that defendants employed
approximately 140 workers each season to pick blueberries on
defendants' 460-acre fields. The Court has certified this
as a class action, defining the class as follows: “All
migrant and seasonal agricultural workers employed at Blue
Star Farms to harvest blueberries in 2011, 2012, and
2013.” (Order on Mtn Class Cert. at 2, ECF No. 148,
pending complaint (Second Amended Complaint), plaintiffs
claim, on behalf of the class, that defendants violated the
Migrant and Seasonal Agricultural Worker Protection Act
(AWPA), 29 U.S.C. § 1854(a), by requiring workers to
wait for the blueberry fields to dry without compensation; by
failing to make, keep, and preserve accurate time-keeping
records; by failing to provide workers with pay stubs showing
the hours worked; and providing false or misleading
information to the workers regarding their hours worked.
(Count II, ECF No. 97, PageID.3014-15). Plaintiffs Martinez
and Garrido claim that defendants violated the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 216(b), during the
three years preceding the filing of the complaint, by failing
to pay the federally-mandated minimum wage and in failing to
maintain the requisite records. (Count I, PageID.3013-14).
Plaintiff Garrido claims that defendants violated the AWPA by
failing to follow certain labor protection standards. (Count
original Case Management Order (CMO) set an April 1, 2017,
deadline for filing both the conditional certification of a
collective action under the FLSA (court-supervised notice to
potential opt-in plaintiffs) and the motion for class
certification regarding the AWPA claim. (ECF No. 13,
PageID.71). The CMO set a September 30, 2017, deadline for
completing discovery, and an October 31, 2017, deadline for
filing dispositive motions. (Id., PageID.72).
filed their First Amended Complaint on October 7, 2016 (ECF
No. 14), and defendants answered on October 21, 2016 (ECF No.
19). The Court declined to exercise supplemental jurisdiction
over the plaintiffs' state law claim under the Michigan
Minimum Wage Law, Mich. Comp. Laws § 408.381, et
seq. (Count II of the amended complaint), and dismissed
that claim without prejudice. (Oct. 17, 2016, Order, ECF No.
March 5, 2017, the Court granted the parties stipulation to
extend the deadline for filing plaintiffs' motion for
class certification to May 31, 2017. (ECF No. 26). This
extension was necessitated by defendants' request for
additional time to respond to plaintiffs' discovery.
(See id., PageID.146). The Court granted a second
stipulated extension of that deadline on May 30, 2017. (ECF
No. 47). Among other things, the parties indicated in the
proposed stipulation that defendants had produced
“their largest production of documents to Plaintiffs on
May 1, 2017, ” and that plaintiffs were
“continu[ing] to analyze that production, which
include[d] a large volume of material relevant to both class
certification issues and damages.” (Id.,
April 1, 2017, plaintiffs filed their motion for the issuance
of court-supervised FLSA notice to potential opt-in
plaintiffs. (ECF No. 34). The Court denied that motion on
June 23, 2017. (ECF No. 49).
10, 2017, plaintiffs filed a motion to compel discovery,
seeking “complete records in response to requests for
production 6 and 24, including hard copy personnel files for
Plaintiffs and putative Class members[, ] and Microsoft Excel
spreadsheets with time and pay information.” (ECF No.
50, PageID.482). Document request 6 sought “[c]omplete
records and files relating to each Plaintiff and Class member
including but not limited to” the following:
(a) scale receipts and other records of piece rate units;
(b) time cards and any other time records;
(c) pay documents including paystubs, paychecks, and
electronic pay records;
(d) other records and ESI that show the hours worked, basis
for payment of wages, and/or gross and net wages paid;
(e) any other record of amounts paid to each Plaintiff and
Class member; and
(f) employment contracts.
(Pltfs First Req. Prod. Docs, Req. No. 6, ECF No. 51-1,
PageID.493-94). The request noted that it was limited to the
“Class Period.” (Id., PageID.494).
Document request 24 sought “[a]ll payroll records and
pay stubs made, kept, and preserved in accordance with 29
U.S.C. § 1821(d)(1) and (2) [the AWPA pay-related
recordkeeping provisions] regarding each Plaintiff and Class
member, during or related to the Class Period.”
(Id. Req. No. 24, ECF No. 51-1, PageID.496). The
“Class Period” for each of these document
requests was defined as “the 2011 through the 2016
blueberry seasons.” (Id., Definitions,
noted that they had served their discovery requests on
January 13, 2017, and that defendants requested several
extensions of time to produce the responsive documents and
data. (Pltfs Br. at 2, ECF No. 51, PageID.484). Defendants
had begun production of the responsive documents on Monday,
March 13, 2017, and defense counsel promised production of
“responsive documents related to FLSA conditional
certification by the end of [that] week, including time and
pay records.” (Brion Doyle Email to Marni Willenson,
March 13, 2017, ECF No. 51-2, PageID.500). On March 20, 2017,
defendants served written responses to plaintiffs'
discovery “but did not produce employee personnel
files, pay stubs, or complete payroll data.” (Pltfs Br.
at 2, ECF No. 51, PageID.484).
noted that defendants “[had] asserted no meaningful
objection to production and, to the contrary, [had] promised
production of this material - repeatedly.”
(Id. at 3, PageID.485). Plaintiffs' counsel
noted that she had repeated plaintiffs' demand for the
responsive documents on June 27, 2017, “warning that
Plaintiffs would file a motion to compel if they were not
received by the following business day.”
(Id.). On July 5, 2017, defense counsel advised
plaintiffs' counsel that defendants had sent him
“copies of the personnel file and flash drive, ”
promising to “get them out” to plaintiffs'
counsel. (Brion Doyle Email to Marni Willenson, July 5, 2017,
ECF No. 51-4, PageID.510). Defense counsel advised
plaintiffs' counsel on July 10, 2017, that he was sending
that day copies of the personnel files and the flash drive
that were promised July 5. (Brion Doyle Email to Marni
Willenson, July 10, 2017, ECF No. 51-5, PageID.512).
Nevertheless, plaintiffs filed the motion to compel, noting
that plaintiffs had been waiting almost six months for
defendants to serve these responsive files, and that,
“[a]lthough counsel for Defendants has stated that he
would be ‘mailing' them, such promises have been
made to Plaintiffs repeatedly in the past and the documents
never received.” (Pltfs Br. at 3, ECF No. 51,
also cited to the June 26, 2017, deposition testimony of
Karen King, who was responsible for defendants'
bookkeeping and payroll. (Id. at 2, PageID.484). Ms.
King testified that she maintained Microsoft Excel files of
employee hours, production, and payroll information. (Karen
King Dep. at 11, ECF No. 51-3, PageID.504). She also
testified that she had already provided hard copies of the
2013 employees' personnel files to defendant Tony Marr,
the President of Blue Star Farms, for production to
plaintiffs, and that it would take about fifteen to twenty
minutes of her time to copy these files to a flash drive.
(Id. at 62, 101; PageID.507-08).
the various factual assertions and arguments in
plaintiff's motion to compel, defendants filed a two-page
response, arguing simply that the motion should be denied
because plaintiffs' counsel had received all the
responsive documents and information by July 11, 2017. (ECF
No. 55, PageID.520-21; Defs Corrected Resp., ECF No. 56,
PageID.522-23). Defendants asserted that “[t]he only
potential open issue is a follow-up inquiry from
Plaintiffs' counsel regarding the existence of additional
Excel spreadsheets.” (Defs Corrected Resp. at 2, ECF
No. 56, PageID.523).
leave of Court, plaintiffs filed a reply brief. (ECF No. 63).
Plaintiffs asserted that their motion to compel had not been
mooted by defendants' late production of documents.
(Id. at 1-2, PageID.1318-19). Plaintiffs pointed out
that defendants still had not produced personnel files or pay
stubs for 2011 and 2012; that, with the exception of 2013,
defendants had not produced Excel payroll files for the
entire class period (2011 through 2016); and that they had
not confirmed that their production was complete.
(Id. at 5-6, PageID.1322-23).
August 4, 2017, the Court conducted a hearing on
plaintiffs' motion to compel. (Minutes, ECF No. 65).
During the hearing, plaintiffs' counsel advised the Court
that, because the class-certification motion was limited to
the years 2011 through 2013, they no longer needed records
for years 2014 through 2016. (Hrg Tr. at 5, ECF No. 73,
PageID.1392). Counsel also advised the Court that defendants
had not provided any records for years 2011 and 2012, and
that defendants had not provided all the Excel data for 2013.
(Id. at 5-6, PageID.1392-93).
the hearing, defense counsel asserted that, because
plaintiffs' motion to compel cited to Ms. King's
deposition testimony concerning 2013 records, the motion
should be construed as limited to records of that year.
(Id. at 10-15, PageID.1397-1402). Counsel also
asserted that the parties' negotiations regarding a
potential modification of the class period “[had]
guided [defendants] towards focusing on 2013.”
(Id. at 17, PageID.1404). Counsel offered nothing to
suggest that defendants had produced any responsive documents
for years 2011 and 2012, and he conceded that defendants were
still unable to confirm whether they had produced all
responsive documents from 2013. (Id. at 19,
PageID.1406). Counsel was unable to advise the Court whether
defendants had made any timely objections to plaintiffs'
discovery requests. (Id. at 11, PageID.1398).
on the lack of any evidence of a timely objection, the Court
found that defendants had waived any putative objection to
the discovery requests at issue (document requests 6 and 24).
(Hrg Tr. at 11-12, 17-18; ECF No. 73; PageID.1398-99,
1404-05). Finding no basis to limit plaintiffs' discovery
requests - or their motion to compel - to 2013, the Court
granted plaintiffs' motion in its entirety, and it
ordered defendants to produce all documents responsive to
requests 6 and 24 for the years 2011 through 2013.
(Id. at 19, PageID.1406; Aug. 4, 2017, Order, ECF
respect to whether the Court should award costs for the
motion, defense counsel discussed the parties'
cooperation in exchanging discovery. (Hrg Tr. at 21-23, ECF
No. 73, PageID.1408-10). But when he was questioned
specifically about which exception to Rule 37(a)(5)'s
mandate to award costs defendants were relying upon, counsel
responded simply: “[s]ubstantial justification.”
(Hrg Tr. at 26, PageID.1413). The Court then ruled that costs
would be awarded, noting:
[D]efendants have provided the Court with nothing in terms of
when they filed their response or served their response to
the document requests, whether there were any objections
asserted, timely or otherwise. That really leaves the Court
with no ability to do anything but find there's a lack of
substantial justification here.
Frankly, I would be hard-pressed to find another situation
where defendants' conduct with respect to their discovery
obligations has been more lackadaisical. I appreciate the
fact that counsel worked together to try to work things out,
and certainly in cases like this agreements are made orally
or in writing, and that's fine and they should be