Free Response - District Court of Arizona - Arizona

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Lydia A. Jones - 017178 ROGERS & THEOBALD LLP The Camelback Esplanade, Suite 850 2425 East Camelback Road Phoenix, Arizona 85016 Telephone: (602) 852-5582 [email protected] Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA KAYE HUTTON, as an individual and representative of a class consisting of others similarly situated, Plaintiffs, vs. BANK OF AMERICA, N.A., Defendant. On February 23, 2005, defendant served 40 interrogatories and 13 document requests directed to the plaintiff and each of the individual opt-ins. On April 1, 2005, plaintiff served detailed responses to defendant's discovery. Plaintiff's objections and responses were on behalf of herself, as well as the individual opt-ins. Defendant argues that it is entitled to individual responses from each opt-in as to each of the interrogatories and each of the document requests. Plaintiff objects to this individual discovery on several grounds, including that it is inconsistent with the spirit and policy of a representative action such as an FLSA collective action, that the discovery is unreasonable and unduly duplicative, that the discovery is overbroad and No. CIV-03-2262-PHX-ROS PLAINTIFF'S RESPONSE TO DEFENDANT'S OPENING MEMORANDUM RE: INDIVIDUAL DISCOVERY RESPONSES FROM EACH OPT-IN

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unduly burdensome, and that the discovery amounts to annoyance and harassment -especially with respect to the opt-ins who are still employed by the defendant Bank. On May 19, 2005, the Court ruled that it would allow discovery on questions that are reasonable for the purpose of the defense in determining whether each and every person in the class is similarly situated. [See Minute Entry dated May 19, 2005.] Thereafter, the defendant would not limit its discovery requests, nor provide explanation as to the connection between the discovery and the similarity of situation topic. Instead, the defendant insisted that all interrogatories and all document

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requests must be answered by each opt-in. Objections notwithstanding, plaintiff served individual responses to all of the discovery propounded from the three opt-ins that defendant chose to depose. Thereafter, defendant narrowed the scope of the individualized discovery requests, and now requests that the remaining 33 opt-ins respond to Interrogatories 4, 6, 17-20, and 21-24 and to Document Requests 1, 3, 4, 6, 9, and 11.1 The Court's May 19, 2005 ruling allows discovery on the topic of similarly situatedness, yet the parties do not agree that the interrogatories and document requests identified by defendant are reasonably related to that topic.

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Defendant's Opening Memorandum states that their discovery was propounded to Ms. Hutton and each of the other 36 opt-ins. To clarify, there are 38 opt-ins, including Ms. Hutton. One of the opt-ins is deceased. As stated earlier, 3 of the opt-ins provided objections and responses to all of the discovery. Consequently, plaintiff understands defendant to be seeking objections and responses to the specific itemized discovery and from the remaining 33 opt-ins.

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Consequently, the sole issue before this Court is whether the interrogatories and document requests identified by defendant are consistent with the Court's May 19, 2005 Order. In other words, are the interrogatories and document requests reasonable for the purpose of the defense in determining whether each and every person in the class is similarly situated? Interpretation of "Similarly Situated" under the FLSA Under the United States District Court for the District of Arizona case of Wertheim v. State of Arizona, 1993 U.S. Dist. LEXIS 21292, the Court elaborated that "similarly situated" means that there is some identifiable factual legal nexus that

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binds together the various claims in a way that hearing the claims together promotes judicial effeciency and comports with the broad remedial policies underlying the FLSA." See Wertheim, at *3. Courts have held that the following factors are relevant to the identification of similarly situated employees with particularity: 1) time period in which the employees worked; 2) whether the employees were hired by the defendant; 3) for what position were the employees hired; 4) whether the employees held the same job titles; and

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5) whether the employees received the same form of compensation. See e.g., Leyva v. Buley, 125 F.R.D. 512, 513 (USDC Wash. 1989).

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Under these standards, which are binding authority on this Court, plaintiff submits that the defendant's document requests are not reasonably related to whether the class members are similarly situated to the named plaintiff, and even if they were, the, requests are otherwise objectionable. For purposes of ease, these are summarized in box format as follows: Document Request Not reasonably related to Practicality and other the issue of similarly Objections situated Resumes contain personal and other information unrelated to the claims and defenses in this action. Ms. Hutton answering on behalf of the collective has provided to defendant all the resumes that are in the possession of the opt-ins. Accordingly, ordering the opt-ins to individually respond to this document request would be unduly burdensome and futile. Non-Bank matters and As stated in her responses, activities of each of the the type of requested opt-ins are not reasonably documents were left at the related to whether they are Bank by the former similarly situated to the employees at the named plaintiff. instruction of their supervisors and/or many In addition, these materials of the type of requested may contain confidential, documents (especially private, and financial those from the earlier part information of persons not of the applicable period) connected to this action. are not kept in the ordinary course of business.

Each resume prepared by 10 you during the applicable period.
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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.

Ms. Hutton will, however, supplement her responses
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on behalf of the collective to state that since responding to the document request, she became aware of only one client manager who may possess some calendar sheets. Ms. Hutton is in the process of obtaining these documents and will provide them to the defendant under an appropriate protective order. Accordingly, ordering the opt-ins to individually respond to this document request would be unduly burdensome and futile. Plaintiff agrees that this document request may reasonably related to the issue of similarly situated; however for the Objections and Responses set forth herein, plaintiff should be redrafted to address the Objections set forth by plaintiff. In addition, given the response already provided by Ms. Hutton, plaintiff submits that believes that it would be ineffecient and futile for each individual opt-in to have to respond to this request. Accordingly, plaintiff respectfully requests that the Court order a subset of
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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.

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 the market managers and their supervisors were aware of, and in fact encouraged, the client managers to do what ever it takes to meet the
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the opt-ins to respond to this request to maximize the effeciencies of discovery through a representative group.

bank's sales goals, but not to report the hours they worked in excess of 40 because there was insufficient money in the budget. Plaintiff is aware of a written Memorandum issued to client managers that limited the amount of overtime hours due to budgetary constraints. Plaintiff is informed and believes that such Memorandum was distributed by market manager Grace Duvall. Plaintiff does not possess a copy of this Memorandum. In any event, the budgetary pressure not to record the overtime hours worked was known to the bank as evidenced by the agenda document 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." Finally, the information sought by this Request would have been the subject of meetings between client managers and market managers, including in performance
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evaluations. Accordingly since market managers would be required to report the information sought by this Request, the bank is already in possession of additional documents responsive to this Request.

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.

Plaintiff submits that this request is not reasonably related to whether the optins are similarly situated to Ms. Hutton.

Each document reviewed or relied upon by you to completely and accurately 20 respond to interrogatories 21 served upon you in this action by Bank of 22 America.
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In addition to the objections listed in her response, plaintiff would further object to this request since it is invasive of the opt-ins attorneyclient privilege and it would be harassing for existing employees to submit the requested documents that may have been submitted to "any third party." For these reasons, the request should not be made of each individual opt-in. Plaintiff submits that this Plaintiff objects to this request is not reasonably request since it seeks related to whether the opt- information that is ins are similarly situated to protected by the attorneyMs. Hutton. client privilege or a work product privilege.

Each document which memorializes all or any 25 part of any communication 26 from or to you, and any communication which was
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Plaintiff agrees that this document request is reasonably related to the issue of similarly situated; however for the 7Filed 12/16/2005
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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.

Objections and Responses set forth by plaintiff should be redrafted to address the Objections set forth by plaintiff. In addition, plaintiff submits that believes that it would be ineffecient and futile for each individual opt-in to have to respond to this request. Accordingly, plaintiff respectfully requests that the Court order a subset of the opt-ins to respond to this request to maximize the effeciencies of discovery through a representative group.

Interrogatories As an initial matter, since the Bank did not institute overtime compensation until March 15, 2002, the date restriction of March 1, 2002 in the requested interrogatories is incorrect. As to Interrogatory 4, plaintiff submits that since the Bank has admitted that it has failed to maintain all electronic communications between the market managers

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and the client managers, it would be highly in appropriate to demand from the opt-ins documents that they can no longer retrieve from their email program at the Bank.

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As to Interrogatory 6, 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. Finally, as to Interrogatories 17-20, plaintiff submits that only Interrogatories 17-20 are reasonably related to the issue of similar situatedness. Further, it would be unduly burdensome for each opt-in to answer each of the Interrogatories, 17-24. The policy underlying a collective action is to promote effeciency and economies. Accordingly, plaintiff requests that a sub-set of the opt-ins be asked to answer only Interrogatories 17-20.

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DATED this 16st day of December 2005. ROGERS & THEOBALD LLP
By /s/ Lydia A. Jones

Lydia A. Jones The Camelback Esplanade 2425 East Camelback Road Phoenix, Arizona 85016 Attorneys for Plaintiff

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I hereby certify that on this 16th day of December, 2005, I electronically transmitted to the clerk's office using the CM/ECF system for filing and transmittal of a notice of 2 electronic filing to the following CM/ECF registrants:
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Charles L. Chester, Esq. John M. Fry, Esq. 4 Ryley Carlock & Applewhite 5 One North Central Avenue, Suite 1200 Phoenix, AZ 85004-4417 6 Attorneys for Defendant Bank of America, N.A.
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And a courtesy copy hand-delivered to:

Honorable Roslyn O. Silver United States District Court 10 Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 11 Phoenix, AZ 85003-2158
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By /s/ Lydia A. Jones

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