Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 380-2

Filed 03/29/2006

Page 1 of 4

EXHIBIT A

Case 1:03-cv-02485-MSK-PAC

Document 380-2

Filed 03/29/2006

Page 2 of 4 4 Page 2 of

Not Reported in F.Supp.2d
1112

Page 1

Not Reported in F.Supp.2d, 2002 WL 246753 (D.Minn.), 145 Lab.Cas. P 34,481, 7 Wage & Hour Cas.2d (BNA)

(Cite as: Not Reported in F.Supp.2d)

H Briefs and Other Related Documents

FNl. The Magistrate Judge ruled on other
motions in Part A of the order but they have not been appealed here. This appeal

United States District Court, D. Minnesota. David CASAS, Troy D. Clark, Patrick Hogan, Linda L. Souder, Wiliam M. Soule and Sheila A. Sampson, Wilis J. Guyot, Matthew A. McDevitt,
James P. Brandt on behalf of

focuses on the Magistrate Judge's rulings
in Part B of

the September 25,2001 order.

The standard of review of a Magistrate Judge's

themselves and other

order on nondispositive pretral matters is highly
deferentiaL. The distrct court wil reverse an order

past and present employees similarly situated, Plaintiffs,
v.

of a Magistrate Judge only if the order is clearly
erroneous or contrary to law. 28 U.S.c. §

CONSECO FINANCE CORP., Conseco Finance Servicing Corp., Conseco Finance Credit Corp., Conseco Finance Corp.-Alabaman, Conseco Finance Consumer Discount Company, and ABC Corporations 1- 10, Defendants. No. CIV 00-1512 (JRT/SRN.
Feb. 15,2002.

636(b)(I)(A); Fed.R.Civ.P. 72(a); D. Min. LR
72. 1

and the files, records and proceedings, the Cour
affrms the order of the Magistrate Judge.
BACKGROUND

(b)(2). Upon review of the parties' submissions

Plaintiffs are current or former employees in loan
originator positions in three of defendants' business

Donald H. Nichols, Paul 1. Lukas, and Michele R.
Fisher, Nichols, Kaster & Anderson, PLLP,

units. Plaintiffs contend that under the federal and state Fair Labor Standards Acts ("FLSA"), they are
entitled to overtime compensation. Defendants

Minneapolis, for plaintiffs.

Richard G. Mark, Ann Huntrods, and Scott G.
Bowman, Briggs and Morgan, Minneapolis, for
defendants.

argue that plaintiffs' job positions are exempt from the FLSA's overtme requirements. Approximately
2,900 individuals have joined the lawsuit in an

ORDER AFFIRMING ORDER OF THE

effort to recover these unpaid wages in a collective action.

MAGISTRATE JUGE DATED SEPTEMBER
25, 2001

During February and March 2001, defendants
served plaintiffs with interrogatories, document
requests, and requests for admissions. Defendants

TUHEIM, District 1.
*1 This matter is before the Court on defendants'

received 1,302 executed answers and 1,530

appeal from a portion of an order FNI of United

unexecuted answers to interrogatories. In June,
defendants informed the Magistrate Judge that they needed between 150 and 300 depositions and
proposed that it be supplemented by written

States Magistrate Judge Susan Richard Nelson dated September 25, 2001 denying defendants'
motion for an order adopting defendants' proposed

discovery plan, defendants' motion for an order that

a questionnaire be mailed to each plaintiff,
defendants' motion to amend the scheduling order,
and defendants' renewed motion to compeL.

discovery and a questionnaire completed by all plaintiffs. On August 6, 2001, the Magistrate Judge

ordered the development of a factual record
concernng the appropriateness of collective action
status and the determation of a representative

(Q 2006 Thomson/est. No Claim to Orig. U.S. Govt. Works.

http://print. westlaw .com! delivery .htrnl? dest=atp&format= HTMLE&dataid=B0055 800000... 3/29/2006

Case 1:03-cv-02485-MSK-PAC

Document 380-2

Filed 03/29/2006

Page 3 of34 4 Page of

Not Reported in F.Supp.2d
1112

Page 2

Not Reported in F.Supp.2d, 2002 WL 246753 (D.Minn.), 145 Lab.Cas. P 34,481, 7 Wage & Hour Cas.2d (BNA)

(Cite as: Not Reported in F.Supp.2d)
sample of plaintiffs. She also stated that a "carefully crafted questionnaire" mailed to all plaintiffs would be the most effcient and effective way in terms of
time and cost for defendants to obtain information.

find that these objections satisfy the clearly

erroneous or contrary to law standard for
overtrning the Magistrate Judge.

The Magistrate Judge ordered the parties to meet and discuss the remaining discovery issues,
including the contents of the questionnaire and the

The Federal Rules of Civil Procedure grant courts

broad discretion in determing the scope and
method of discovery based upon the circumstances

defendants' outstanding interrogatories and
document requests. During several meetings, the parties failed to reach an agreement with regard to
the means and scope of discovery. Plaintiffs offered unlimted depositions until the end of the year if the
defendants agreed to certain conditions, including that plaintiffs would not be required to individually
respond to defendants' questionnaire. The

of each case. Fed.RCiv.P. 26(b)(2). Specifically, Rule 26(b )(2) permts a cour upon its own initiative to limit "the frequency or extent of use of discovery
methods" if:

(i) the discovery sought is umeasonably cumulative

or duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive; (ii) the part seeking discovery has
had ample opportnity by discovery in the action to

defendants insisted on completed responses to
written requests and questionnaires before

depositions would take place.

obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the

During a September 14, 2001 hearing to resolve
these issues, the Magistrate Judge described
defendants' three-page, single-spaced questionnaire

case, the amount in controversy, the partes'
resources, the importance of the issues at stake in

the litigation, and the importance of the proposed
discovery in revolving the issues.

as "complicated" and "too diffcult." She expressed

concern that the device would not likely achieve the desired end because the class of plaintiffs had so far

While defendants agree that Rule 26(b)(2) applies if

failed to adequately respond to written requests.
The Magistrate Judge concluded that a deposition
settg where the same questions could be asked in

any of the above circumstances are present,
defendants argue that none of these circumstances

exist to support the Magistrate Judge's denial of
defendants' rights of conducting written discovery.

the presence of counsel would be more likely to
produce the desired result of obtaining

The Court disagrees. The Magistrate Judge

representative testimony. Accordingly, by order
dated September 25, 2001, the Magistrate Judge

originally agreed that a questionnaire sent to each plaintiff might provide an effcient and effective

granted a three-month time period for the parties to
conduct such depositions and otherwise denied

means of obtaining necessary information.
However, she later concluded, particularly in light of the defendants' proposed questionnaire, that the
use of a questionnaire would be unsuccessful and

defendants'motions.
ANALYSIS
*2 Defendants argue that the Magistrate Judge's

would pose significant problems. She specifically expressed concern that plaintiffs would be unable to
effectively respond to the detailed questionnaire

order is clearly erroneous and contrary to law in that

without the assistance of counsel and that any such plaintiff should not be penalized from pursuing his

it denies defendants the ability to utilize written
discovery and/or a questionnaire in order to develop
the required factual record and deprives defendants

or her case. The Magistrate Judge determed that
furter deposition testiony was necessary to

establish a representative sample of plaintiffs.

the use of written discovery tools to which they are entitled under Rules 26, 33, 34 and 36 of the
Federal Rules of Civil Procedure. Given the

The Magistrate Judge properly weighed the
circumstances listed in Rule 26(b )(2) in drawing

deferential standard of review, the Court does not

this conclusion. During both the motion hearing and

(Q 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

http://print. westlaw .

com! delivery .htrnl ?dest=atp&format=HTMLE&dataid= B005 5 800000... 3/2912006

Case 1:03-cv-02485-MSK-PAC

Document 380-2

Filed 03/29/2006

Page 4 of44 4 Page of

Not Reported in F.Supp.2d
1112

Page 3

Not Reported in F.Supp.2d, 2002 WL 246753 (D.Min.), 145 Lab.Cas. P 34,481, 7 Wage & Hour Cas.2d (BNA)

(Cite as: Not Reported in F.Supp.2d)
in her written order, the Magistrate Judge alluded to the burdensome nature of the questionnaire by describing it as "onerous," "complicated" and not likely to be successfuL. The Magistrate Judge stated
Cas.2d (BNA) 1112

Briefs and Other Related Documents (Back to top)

that she did not believe that plaintiffs could
effectively respond to the questionnaire without the
assistance of counseL. In addition, the Magistrate

. 0:00cv01512 (Docket) (Jun. 21, 2000)

END OF DOCUMENT

Judge found the questionnaire to be duplicative of questions that would be asked in depositions. These conclusions are consistent with the provision set
forth in Rule 26(b )(2)(i).
*3 The Magistrate Judge also considered whether the burden of the questionnaire outweighed its
likely benefits in light of the circumstances and
issues of the case, an analysis that falls squarely

within the parameters of Rule 26(b)(2)(iii). The
Magistrate Judge concluded that the need for

plaintiffs to provide complete answers while being represented by counsel outweighed any benefits that the questionnaire might provide. Based on the previous plaintiff responses to written requests, the Magistrate Judge determined that a detailed questionnaire would not be a successful means of
obtaining information with regard to obtaining

representative testimony.

Upon review of the partes' submissions, the Cour
is not left "with the defmite and firm conviction that

a mistake has been committed." Chakeles v.
Commissioner of Internal Revenue, 79 F.3d 726, 728 (8th Cir.1996). Accordingly, the Court affrms
the order of the Magistrate Judge as being neither

clearly erroneous nor contrary to law and denies

defendants' appeal of the Magistrate Judge's

September 25, 2001 order.

ORDER

Based on the files, records, and proceedings herein, IT IS HEREBY ORDERED that the Order of the Magistrate Judge (Docket No.3 10) is AFFIRMED.

D.Min.,2002.
Casas v. Conseco Finance Corp.

Not Reported in F.Supp.2d, 2002 WL 246753
(D.Minn.), 145 Lab.Cas. P 34,481, 7 Wage & Hour
(Q 2006 Thomson/est. No Claim to Orig. U.S. Govt. Works.

http://print. westlaw .com! delivery .htrl? dest=atp&format=HTMLE&dataid= B005 5 800000... 3129/2006