Free Reply - District Court of Arizona - Arizona

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RYLEY CARLOCK & APPLEWHITE One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Telephone: 602/258-7701 Telecopier: 602/257-9582 Charles L. Chester ­ 002571 [email protected] John M. Fry ­ 020455 [email protected] Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE K. HUTTON, as an individual and as representative of a collective consisting of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. No. CV2003-2262-PHX-ROS

DEFENDANT'S REPLY BRIEF REGARDING INDIVIDUAL DISCOVERY RESPONSES FROM EACH OPT-IN PLAINTIFF

Plaintiff concedes the Bank has significantly reduced its discovery requests to the individual opt-ins--from forty interrogatories to ten, and from thirteen requests for production to six. Plaintiff also concedes that many of the remaining discovery requests are related to the issue of whether the opt-ins are similarly situated to the named Plaintiff. As discussed below, Plaintiff's Response Brief asking the Court to pare down the Bank's requests even further--for example, by ordering that only some unidentified "subset" of opt-ins be required to respond--goes too far. This is especially true since Plaintiff's Response Brief did nothing to address the significant body of case law discussed by the Bank allowing extensive individualized discovery in collective actions with far more opt-ins than here.
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Plaintiff's Response Brief also clings to an inaccurate and inapplicable definition of "similarly situated." Citing Wertheim v. State of Arizona, 1993 WL 603552 (D. Ariz. Sept. 30, 1993), Plaintiff claims "similarly situated" means only "that there is some identifiable factual legal nexus that binds together the various claims in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA." [Response Brief, pg. 3, lns. 10 ­ 14] Plaintiff does not point out that this is Wertheim's formulation of the "similarly situated" standard at the conditional certification stage--a stage this lawsuit is well beyond. Wertheim, 1993 WL 603552 at *3 ("the question before the court is merely whether to authorize notice"); Id. at *4 ("Again, the only issue before the court is whether notice should issue."). The only other case cited by Plaintiff, Leyva v. Buley, 125 F.R.D. 512 (E.D. Wash. 1989), is not "binding authority on this Court" as Plaintiff asserts. [Response Brief, pg. 4, ln. 1] Regardless, Leyva's brief discussion of "similarly situated" is also at the conditional certification stage. For purposes of withstanding a motion to decertify the standard is much higher, requiring substantial similarity. [See generally Defendant's Opening Brief, pg. 3]

Document Request at Issue Each resume prepared by you during the applicable period. Nowhere does Plaintiff dispute that Defendant's request for resumes prepared by opt-ins is relevant to the issue of substantial similarity among opt-ins. Rather, Plaintiff's only objection to this request is that "resumes contain personal and other information unrelated to the claims and defenses in this action." It is ironic and disingenuous to argue that resumes, which are prepared with the express purpose that third parties review and rely upon them, and contain only the information the drafter wants third parties to know about her or him, should not be discoverable because they contain personal information. The named Plaintiff also claims she already has produced all resumes in the possession of the opt-ins. In reality, Ms. Hutton has produced one resume from one other opt-in. [See Plaintiff Kaye Hutton's Objections and Responses to Defendant's First Request for Production of Documents,
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Document Request at Issue pg. 6, ln. 4] Each diary, calendar and other document used by you during the applicable period to record or track appointments, work schedules, meetings and other commitments requiring your time. Plaintiff does not genuinely dispute that the Bank is entitled to the diaries, calendars, and other documents used by opt-ins to track their time spent on work-related activities, or else she would not state that "Ms. Hutton is in the process of obtaining these documents and will provide them to the Defendant under an appropriate protective order." Doing this, however, does not fulfill Plaintiff's discovery obligations. It is axiomatic that plaintiffs bear the burden of proving their damages. This is no less true in a collective action under the FLSA. Krueger v. New York Telephone Co., 163 F.R.D. 446, 449 (S.D.N.Y. 1995) (granting defendant's request for responses "to interrogatories predominately relating to damages from all members of the [162 member opt-in] class"). With all due respect, the Bank is not required to take Ms. Hutton's word as to which responsive documents do or do not exist. Rather, the Bank is entitled to have each opt-in produce the requested (and admittedly relevant) documents, or state that they possess no responsive documents.1 Further, the "non-Bank matters and activities" that Plaintiff objects might be included in responsive documents are relevant, or reasonably calculated to lead to admissible evidence. Such information may be relevant for impeaching an opt-in's claim regarding the number of hours she or he worked off the clock. Plaintiff's concern that personal information may be reflected in responsive documents is ameliorated by Plaintiff's proposal for a protective order, to which the Bank has no objection. "Plaintiff agrees that this document request may reasonably [sic] related to the issue of similarly situated" (emphasis added). Thus, there is no dispute that the Bank is entitled to responses to this request from each individual opt-in. Then, in response to this rather straightforward document request, Plaintiff proceeds in the third column of her chart to argue the merits of her case against the Bank. In doing so, Plaintiff actually demonstrates why the Bank should be entitled to individual responses from each opt-in. For example, Plaintiff states that she "is aware of a written Memorandum issued to client managers that limited the

Each document received or reviewed by you which directly or indirectly approves the practice of failing to record all hours worked during the applicable period on behalf of Bank of America.

Indeed, this evidence should have been voluntarily produced pursuant to Rule 26(a)(1)(C), Fed.R.Civ.P. -3Case 2:03-cv-02262-ROS Document 211 Filed 12/29/2005 Page 3 of 8

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Document Request at Issue amount of overtime hours due to budgetary constraints," but that "Plaintiff does not possess a copy of this Memorandum." The Bank is entitled to find out if any other opt-in received this document. This also demonstrates why Plaintiff's request that the Court order only a "subset of the opt-ins" to respond is inappropriate. As set forth in Defendant's Opening Brief, the number of opt-ins in this lawsuit is miniscule compared to other cases where individualized discovery responses have been ordered. Further, with the relatively small "universe" of opt-ins here, the risk that relevant and "anecdotal" evidence would go undetected is even greater. Rosen v. Reckitt & Coleman, Inc., 1994 WL 652534, *4 (S.D.N.Y. 1994). Each complaint, charge, request, inquiry and other document submitted by you during the applicable period to the Bank of America or any third party, including without limitation any governmental agency, claiming that you have not been paid for all hours worked by you for Bank of America. Each document reviewed or relied upon by you to completely and accurately respond to interrogatories served upon you in this action by Bank of America. In large part, Plaintiff has based her claim that the Bank acted willfully­justifying a three-year statute of limitations instead of two­upon the allegation that previous complaints had been lodged against the Bank with the Department of Labor,2 and that the Department found violations in the past. Clearly, Plaintiff believes past involvement of government agencies is relevant to the issue of willfulness. Whether these particular opt-ins did, or did not, file charges or complaints against the Bank is relevant and reasonably calculated to lead to the discovery of admissible evidence on the issue of willfulness.3

As discussed below, Plaintiff actually concedes that certain of the Bank's interrogatories "are reasonably related to the issue of similar situatedness." [Plaintiff's Response, pg. 9, lns. 4-5] Yet here, Plaintiff curiously suggests that any documents opt-ins may rely upon to formulate their responses to those admittedly appropriate interrogatories are not discoverable.

The Bank vigorously disputes these allegations, but Plaintiff's reliance upon them is evident in Plaintiff's Motion to Expand Conditional Certification of the Collective Action and, more recently, Plaintiff's First Set of Interrogatories and Fourth Request for Production of Documents to the Bank, served December 19, 2005. Plaintiff's recent discovery requests seek information relating to every Labor Department inquiry ever made into the Bank's activities, as well as inquiries by the labor authorities of all fifty states. 3 See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132-133 ("a standard that merely requires that an employer knew that the FSLA `was in the picture' virtually obliterates any distinction between willful and non-willful violations.").
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Document Request at Issue Each document which memorializes all or any part of any communication from or to you, and any communication which was reviewed by you, regarding recording or declining to record hours which you worked during the applicable period for Bank of America in Arizona as a client manager. Interrogatory 4 As to each work week since March 1, 2002, in which you worked more than 40 hours, please [ ] identify each communication by you requesting to work more than 40 hours and identify each responsive communication to you. Plaintiff nowhere disputes that this interrogatory is related to the issue of substantial similarity among opt-ins. Rather, Plaintiff claims that "since the Bank has admitted that it has failed to maintain all electronic communications between the market managers and the client managers," the opt-ins should be relieved of their obligation to provide information responsive to this request.5 First, the request is not limited to electronic communications. Second, the request does not ask opt-ins to produce communications,6 it asks them to identify, or describe, them (under oath). Since Plaintiff's entire case for the March 2002 - June 2005 timeframe rests upon allegations "Plaintiff agrees that this document request is reasonably related to the issue of similarly situated" (emphasis added). Thus, there is no dispute that the Bank is entitled to 4 responses to this request from each individual opt-in. Even though documents memorializing communications "from (emphasis added) or to you" clearly could vary with each individual opt-in (and despite agreeing this request goes to similarity of situation), Plaintiff requests that only some subset of opt-ins be required to respond. For the reasons set forth supra, the Bank objects to this proposal as likely to result in relevant evidence going altogether undiscovered.

Plaintiff goes on to request that "for the Objections and Responses set forth by plaintiff should be redrafted to address the Objections set forth by plaintiff." Since Plaintiff did not include any objections in the section of her chart regarding this production request, it is unclear to what Plaintiff is referring. 5 As a preliminary matter, this objection could only apply to current client managers, as former Bank employees would not have access to their Bank email accounts at all. 6 The Bank's Requests for Production of Documents do ask opt-ins to produce all documents relied upon in responding to the Bank's interrogatories. If the opt-ins possess no responsive documents, they can so state.
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that the opt-ins were verbally coerced to work off the clock, the subject of this interrogatory is central not only to the issue of substantial similarity, but liability. Interrogatory 6 As to each work week since March 1, 2002, in which you worked more than 40 hours, please state the reasons why you did not record hours, if you did not. In response, Plaintiff "submits that construing the personal reasons as to why client managers did not record overtime hours as a factor of similarly situatedness is not within the policies underlying the FLSA." [Response Brief, pg. 9, lns. 1 ­ 3] Plaintiff offers no explanation as to why this is so. That is because, to the contrary, if individual opt-ins decided not to record overtime hours for some reason other than feeling "pressured" to do so by a market manager, he or she is not substantially similar to the named plaintiff, Ms. Hutton. Moreover, if the Bank did not know or have reason to know an opt-in was choosing not to record their time, the Bank is not liable for damages to that opt-in. See, e.g., footnote 4 to the Bank's Opening Brief. Interrogatories 17 ­ 20 Plaintiff now agrees that these interrogatories "are reasonably related to the issue of similar situatedness." [Plaintiff's Response Brief, pg. 9, lns. 4 ­ 6] As such, and for the reasons set forth in the Bank's Opening Brief, the Bank is entitled to individual responses to these questions, under oath, from each of the opt-ins. Interrogatories 21 ­ 24 These interrogatories ask the opt-ins to: "identify each member and representative of management who led you to believe you were to record all hours worked by you since March 1, 2002, and as to each state: a. What was said to, presented to, or otherwise communicated to you. b. When you were told. c. Identify each eye witness. d. Identify each document evidencing, supporting, or rebutting any answer in subparts (a) through (c) or any part thereof of this interrogatory." Plaintiffs only proffered objection to these four questions is that "it would be unduly burdensome for each opt-in to answer" them. [Response Brief, pg. 9, lns. 5 - 6]
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Plaintiff is attempting to deprive the Bank of potentially exculpatory evidence: Plaintiff does not object to the Bank's Interrogatories asking opt-ins to describe communications from management leading them to believe they should not record all hours worked (Interrogatories 17 ­ 20), but Plaintiff claims the Bank's Interrogatories asking opt-ins to describe communications that led them to believe they should record all hours worked are unduly burdensome. Plaintiff's Response Brief confirms that her off-the-clock claim depends upon oral statements and anecdotal evidence of what each opt-in was told or led to believe. The Bank is entitled to confirm, under oath in written interrogatory responses, what each opt-in claiming damages in this lawsuit says they were led to believe about recording the hours they worked. DATED this 29th day of December, 2005. RYLEY CARLOCK & APPLEWHITE

By s/Charles Chester Charles L. Chester John M. Fry One North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4417 Attorneys for Bank of America, N.A.

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CERTIFICATE OF MAILING I hereby certify that on December 29, 2005, I electronically transmitted the attached Defendant's Reply Brief Regarding Individual Discovery Responses From Each Opt-In Plaintiff to the clerk's office using the CM/ECF system for filing and transmittal of a notice of electronic filing to the following CM/ECF registrant: Lydia A. Jones Rogers & Theobald LLP The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, AZ 85016 Attorney for Plaintiff By s/Bree Bellefeuille

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