Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

Case 2:03-cv-02262-ROS

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EXHIBIT L

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EXHIBIT M

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EXHIBIT N

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Lydia A. Jones - 017178 ROGERS & THEOBALD LLP
The Camelback Esplanade, Suite 850 Telephone: (602) 852-5582 [email protected]

2425 East Camelback Road 3 Phoenix, Arizona 85016
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Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE HUTTON, as an individual and as representative of a class consisting of others similarly situated, Plaintiffs,
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No. CIV-03-2262-PHX-ROS PLAINTIFF'S OBJECTIONS AND RESPONSES TO DEFENDANT'S INTERROGATORIES and REQUESTS FOR THE PRODUCTION OF DOCUMENTS

vs. BANK OF AMERICA, N.A., Defendant.

Plaintiff Kaye Hutton on behalf of herself and on behalf of the Opt-In plaintiffs by and through her counsel and pursuant to Rules 26, 33, and 34 of the Federal Rules of Civil Procedure, hereby respond to Defendant's Interrogatories and Requests for the Production of Documents dated April 17, 2006 as follows: General Objections to the Interrogatories and Request for the Production of Documents Plaintiff, on behalf of herself and on behalf of the Opt-In plaintiffs, makes the following General Objections, whether or not separately set forth in response to each and every request propounded by defendant. The assertion of the same, similar, or additional objections or partial responses to defendant's individual Interrogatories and
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Requests to Produce Documents does not waive any of Plaintiff's General Objections. 1. Plaintiff objects to the Interrogatories and the Requests to Produce

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Documents to the extent that they seek information which is not relevant to the subject matter of this action in that it is neither admissible in evidence nor reasonably calculated to lead to the discovery of admissible evidence related to a claim or defense in this action. 2. Plaintiff objects to the Interrogatories and the Requests to Produce

Documents to the extent they seek information that is protected by the attorney-client privilege or prepared in anticipation of litigation or for trial, or that is otherwise subject to the attorney work product doctrine. Any such information is defined to be "privileged." Any inadvertent disclosure of privileged information shall not be

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deemed to be a waiver by Plaintiff of any applicable privileges or doctrines. 3. Plaintiff objects to the Interrogatories and the Requests to Produce

Document to the extent that they attempt to impose on Plaintiff any obligations or requirements that exceed, enlarge and/or alter those imposed by the Federal Rules of Civil Procedure. 4. Plaintiff objects to the Interrogatories and the Requests to Produce

Documents to the extent that they are vague, ambiguous, misleading, uncertain, unintelligible, overly broad, fail to specifically describe the information sought, are

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not defined, seek information outside the scope of the instant lawsuit, and/or would require Plaintiff to speculate as to the nature and scope of the information sought. 5. Plaintiff objects to the Interrogatories and the Requests to Produce

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Documents to the extent that they are unduly burdensome, compound and/or duplicative. 6. Plaintiff objects to the Interrogatories and the Requests to Produce

Documents to the extent that they purport to impose on Plaintiff the burden of ascertaining information that is not in Plaintiff's (including the Opt-In plaintiff's) possession, custody or control, and/or that cannot be found in the course of a reasonable search. 7. Plaintiff objects to the Interrogatories and the Requests to Produce

Documents to the extent the definition of "identify" purports to impose on Plaintiff
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any obligations or requirements that exceed, enlarge and/or alter those imposed by the Federal Rules of Civil Procedure and to the extent the definition of "document" purports to require Plaintiff to compile information stored in electronic form that does not already exist on the grounds that it would subject Plaintiff to undue burden and expense. 8. Plaintiff states the foregoing Objections without waiving or intending

to waive, but on the contrary preserving and intending to preserve: (a) all objections to the competency, relevancy, materiality, privilege, and admissibility as evidence for any purpose of the responses to the Interrogatories and the Requests to Produce

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Documents or the subject matter thereof, in any subsequent proceeding in, or the trial of, this or any other action; (b) the right to object on any grounds to the use of any response, or the subject matter thereof, in any subsequent proceeding in, or the trial

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of, this or any other action; (c) the right to object on any grounds at any time to a demand for further response to these or any other discovery procedures involving or related to the subject matter of the Interrogatories and the Requests to Produce Documents directed to Plaintiff; and (d) the right to object on any grounds to any other or future discovery Interrogatories and the Requests to Produce Documents. Subject to and without waiving the General Objections and qualifications above, Plaintiff further objects and responds as follows:

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Objections & Responses To Interrogatories

Answer Interrogatory No. 1
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Plaintiff objections to Interrogatory No. 1 because it assumes facts, including that the opt-ins were aware of, or told that, they were allowed to request from their market managers permission to work over 40 hours, not established. Further objecting, this Interrogatory assumes that if a request were made, that the market manager would have or did provide a response. Notwithstanding these objections, Plaintiff states that each of the opt-ins who worked for the Bank after March 1, 2002 attended meetings led by their market managers in which the budgetary limits on the amount of hours that could be recorded was discussed. Each of these opt-ins (and in the case of opt-ins Mohney and Leal, their representatives) have indicated that during these meetings, client managers talked with their market managers regarding whether they could work more than 40 hours. Market managers responded that the client managers needed to meet the sales goals set by the Bank and that they needed to do "do what takes" to meet those goals, but that there were budgetary limits on the amount of overtime that could be recorded. In particular, many opt-ins (including but not limited to Griffiths, Kelly,

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Reilly, Mohney, Larkin, Lyftogg, and Bogdanus) have indicated that their market managers (including but not limited to Lynn Searles) told them that they must do whatever it takes and work as long as it takes to get their jobs done and meet the Bank' sales goals, but that at the same time, they cannot work more than 40 hours. More specifically, Ms. Searles told client managers that she would not approve overtime. One opt-in also indicated that Ms. Searles stated "you have to hit your numbers, but there is no money in the budget for overtime pay."
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Similarly opt-ins who worked for market manager Vickie Sandve (including but not limited to Rojas, Simms, Peterson and Roggenbuck) indicated that they were told the same thing ­ you have to work as many hours as it takes to meet the Bank's sales goals, but you have to get the job done in 40 hours because there is no money to pay for overtime. Opt-in Peterson has also indicated that Ms. Sandve's assistant, "Sandi," told her not to report overtime hours that she works during lunch. Opt-in Peterson also worked for market manager Carlos Machado, and she indicated that Mr. Machado indicated to her that if she were producing and meeting her sales goals, then she would not have a problem having her overtime approved; if however sales were an issue, so would recording her hours worked. Other opt-ins (including but not limited to Jones, Clark, Dawson, McClintic, McGrory and Weaver) were told by their market managers, including Debbie Chandler and Grace Duval, that their (the market manager's) budgets would restrict the number of hours that could be reported as overtime. One opt-in even recalls Ms. Chandler telling the client managers that she knows the job cannot be performed in

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40 hours, but that she simply did not have an adequate overtime budget to compensate them for all the hours she needed them to work to meet the Bank's sales goals. Finally other opt-ins (including but not limited to Bradbury, Burns, Davis, Flamm, Halopoff, Krebsbach, Lines, Madison, Marquadt, Parsell, Staggs, Massignani, Webster, West) have indicated they were told similar messages by their respective market managers, and in any event, most, if not all, of the opt-ins were led to believe that requesting overtime hours would be futile, since they were told there were insufficient budgets. In addition, some thought that requesting overtime could be an impediment to job advancement, since approaching the market manager for such a request may be perceived as being non-compliant with the market manager's expectations.
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Finally, very few opt-ins (perhaps 1 or 2) have indicated that when they were working overtime at night or on weekends, that their market managers were not in the office to receive a request to work overtime hours. And these opt-ins also indicated that if they asked to work overtime hours, the response from the market managers was that they had to get their jobs done, they had to sell the Bank's products to meet the Bank's sales goals, and that this notwithstanding, they could not record more than 3-5 hours of overtime during the week in which the hours were requested. Answer Interrogatory No. 2 Responding to Interrogatory Number 2, plaintiff states that the primary reasons indicated by all of the opt-ins for not recording all hours worked were: they did not think their market managers wanted them to; they thought that there was insufficient money in their market managers' budgets, so if they did record all hours worked, they would be perceived as "not a team player;" and they were told by their market managers to take comp time in lieu of submitting for overtime compensation for all of their hours actually worked. In addition, opt-in Mohney indicated that he was

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reprimanded for working and recording his actual time worked, and that he was told by his market manager Lynn Searles "no more overtime." Other opt-ins, including but not limited to Clark, Massignani, McClintic, Krebsbach, and Dawson, indicated that their market managers told them not to record all of their hours worked. Finally, the opt-ins have indicated, consistent with their declaration testimony and deposition testimony submitted in this case, that market managers explicitly told client managers not to record all hours worked. Answer to Interrogatory Number 3 See Answer to Interrogatory Number 1. Further answering, most of the employment environment that led the client managers to believe that he or she was not to record all hours worked was created during the group meetings, which occurred very frequently in 2002, then monthly in 2003 and 2004, and then
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occasionally in 2005. Sometimes the opt-ins would talk with the market manager in private, but it was unusual, like in the case of opt-ins Mohney and McClintic, when the client manager was being reprimanded for accurately reporting their hours. Answer to Interrogatory Number 4 Plaintiff objects to Interrogatory Number 4 in that it assumes facts, including that the client managers were led to believe that they were to record all of the hours they worked. Notwithstanding this objection, Plaintiff states that none of the opt-ins believed that the client managers wanted them to report their actual hours worked. Additional General Objection to the Request for the Production of Documents As an initial matter, Plaintiff objects to the Requests for the Production of Documents in their entirety as the time by which to issue discovery in the form of the Request for the Production of Documents has past. Although the Court has

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authorized the foregoing Interrogatories pursuant to Court Order dated April 5, 2006 and the Hearing Transcript at page 39, it did not authorize any additional Requests for the Production of Documents. See Hearing Transcript, p. 35-40. Notwithstanding this Objection and without waiving this Objection, Plaintiff provides the following Objections and Responses in an effort to cooperate in good

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faith in the discovery process and with the Defendant Bank in this matter.

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Objections & Responses To Request to Produce Documents Response to Request Number 1 Plaintiff objects to this Request since it seeks information which is not

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relevant to the subject matter of this action in that it is neither admissible in evidence nor reasonably calculated to lead to the discovery of admissible evidence related to a claim or defense in this action. Plaintiff further objects to this Request since it is overly broad, fails to specifically describe the information sought, and seeks information outside the scope of the instant lawsuit. Without waiving any of these objections, plaintiff states that it will produce resumes of former employees prepared during the applicable period. However to date plaintiff is aware of only one former employee who has a resume from the applicable period. That resume was attached to a prior document production by plaintiff as Bates labeled PL00001.

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Since the production of PL00001, plaintiff has inquired to the opt-ins whether the possess copies of a resume from the applicable period. To date, most of the optins have stated that they do not, or that they do not believe that they have any resumes, since they are either now since retired from the Bank or have procured other employment. As to the existing employees of the Bank, those opt-ins have no reason to maintain a resume. These responses notwithstanding, plaintiff shall continue to request resumes from each opt-in and supplement this Response accordingly.

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Response to Request Number 2 Plaintiff objects to this Request since it is overly broad, fails to specifically describe the information sought, and seeks information outside the scope of the

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instant lawsuit. Further, Plaintiff objects to this Request since it seeks confidential or private business information of third-parties, including, without limitation, private financial information and/or competitively sensitive information. Without waiving any of these objections, plaintiff states that many of the requested documents were left at the bank by the former employees at the instruction of their supervisors and/or many of the requested documents (especially those from the earlier part of the applicable period) are not kept in the ordinary course of business. In any event, Plaintiff will produce documents responsive to this Request pursuant to the protective order entered in this action. However, only two opt-ins (McClintic and Lines) have

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indicated that they might, but are not sure, that they may have documents responsive to this requests. If those documents do exist, plaintiff will produce them accordingly. Response to Request Number 3 Plaintiff objects to this Request since it is misleading, lacks foundation, and assumes that the bank provided to client managers its internal executive management memos and other documents concerning the budgetary constraints used to pressure client managers to work but not report their overtime. Without waiving any of these objections, Plaintiff states that all of the time sheets that were signed off by the market managers who pressured the client managers not to record all hours worked

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are evidence of the Bank's direct approval of the practice not to record overtime hours. In any event, the budgetary pressure not to record the overtime hours worked was known to the bank as evidenced by the agenda document previously produced by

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plaintiffs as Bates labeled PL00006 listing "client mangers continue to express reluctance to sign for OT" and "financial reviews indicate that overtime expenditure is clearly not at plan [and] we remained concerned about client manager adoption and the associate risk to our business" under the heading "what we've learned." Plaintiff further answering states, see Plaintiff's Response to Defendant's Request for the Production of Documents, Request Number 4. Response to Request Number 4 See Plaintiff's Objections and Response to Defendant's Request for the Production of Documents, Request Number 6.

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Further responding, see a) letters from Kaye Hutton to the Bank regarding overtime compensation; b) all Declarations submitted by opt-ins in this action; c) all Opt-In Consent Forms submitted in this action; d) the Client Manager Statements, including those of Opt-Ins Clark, Dawson, McClintic, McGrory, Peterson, Roggenbuck, and Weaver. Further responding, plaintiff is aware but does not have copies of documents submitted to the Bank by opt-in McClintic, in which this opt-in claims to have been retaliated against by the Bank for participating in this lawsuit and putting the Bank on notice that she has not been paid for all hours worked. See also Client Manager Statement of Strkyer; Client Manager Statement of Watkins.

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Response to Request Number 5 Plaintiff objects to this Request in that it is unduly burdensome to "produce," each document reviewed. Plaintiff further objects to this Request since it, as written,

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seeks information that is: (a) protected by the attorney-client privilege or prepared in anticipation of litigation or for trial, or that is otherwise subject to the attorney work product doctrine; and (b) protected by the common interest privilege, or similar privileges. These objections notwithstanding, plaintiff states that she reviewed parts of the discovery file in this matter (of which defendant has copies). Further answering, plaintiff states that she reviewed the Client Manager Statements. Response to Request Number 6 Plaintiff objects to this Request since it is vague, ambiguous, misleading, uncertain, overly broad, fails to specifically describe the information sought, and

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would require Plaintiff to speculate as to the nature and scope of the documents sought. Plaintiff further objects to this request since it lacks foundation and assumes that all such communications were exclusively written ­ which they were not. Plaintiff further objects to this Request since it, as written, seeks information that is: (a) protected by the attorney-client privilege or prepared in anticipation of litigation or for trial, or that is otherwise subject to the attorney work product doctrine; and (b) protected by the common interest privilege, or similar privileges.

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Plaintiff reserves the right to supplement her objections and responses stated herein. DATED this 7th day of June, 2006. ROGERS & THEOBALD, LLP
By /s/ Lydia A. Jones

Lydia A. Jones The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 852-5582 Attorneys for Plaintiffs JENNINGS, STROUSS & SALMON, PLC Michael J. O'Connor The Collier Center, 11th Floor 201 E. Washington Street Phoenix, AZ 85004 Telephone: (602) 262-5889 Attorneys for Plaintiffs

ORIGINAL of the foregoing mailed on June 7, 2006, to:

Charles L. Chester 20 Ryley Carlock & Applewhite One North Central Avenue, Suite 1200 21 Phoenix, AZ 85004-4417 Attorneys for Defendant Bank of America, N.A.
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By: /s/ M. Stephenie Crowley

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VERIFICATION

I, Kaye Hutton, state as follows:

I am over the age of 18 and otherwise competent to make this Verification. I am the named plaintiff in this action, as such, am authorized to sign this Verification. 5 I have read the foregoing Plaintiff's Objections and Responses to Defendant's 6 Interrogatories and Request for Production of Documents and know the contents thereof; and the same is true and correct to the best of my knowledge, information 7 and belief.
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I declare under penalty of perjury that the foregoing is true and correct. EXECUTED this 7th day of June, 2006.

/s/ Kay Hutton
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Kaye Hutton
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EXHIBIT O

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