Callier et al v. Outokumpu Stainless USA, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANCIS CALLIER, et al., 	)
Plaintiffs, 	)
)
v. 	) CIVIL ACTION NO. 1:21-00521-JB-N
)
OUTOKUMPO STAINLESS 	)
USA, LLC, 	)
Defendant. 	)
ORDER
This action is before the Court1 on Plaintiffs’ motion to compel discovery (Doc.
139), Defendant Outokumpo Stainless USA, LLC’s (“OTK”) opposition response (Doc.
145; see Doc. 149), and Plaintiffs’ reply in support. (Doc. 148). Plaintiffs’ motion has
come before the Court for two hearings where oral argument was presented, and two
joint status reports addressing it were filed January 22, 2024 and May 29, 2024,
respectively. (Docs. 178, 180, 187, 188, 189).2 With the benefit of oral argument, upon
consideration and for the reasons stated herein, Plaintiffs’ motion is GRANTED in
part and DENIED in part as set out.
I. 	Background
Plaintiffs’ motion identifies disputes over OTK’s responses to Interrogatories
1 The assigned District Judge has referred this motion to the undersigned Magistrate Judge for
appropriate action under 28 U.S.C. § 636(a)–(b), Federal Rule of Civil Procedure 72, and S.D. Ala.
GenLR 72(a). See S.D. Ala. GenLR 72(b); (9/8/2023 elec. ref.).
2 The most recent hearing was held June 7, 2024 (hereinafter the “June 7 hearing”) and took place
during two sessions on that date. (See Docs. 188, 189). The most recent joint status report filed May
29, 2024 (hereinafter the “May 29 JSR”) was done so at the undersigned’s direction in anticipation of
the June 7 hearing. (Doc. 187; see Doc. 185). The joint status report filed January 22, 2024 (hereinafter
the “January 22 JSR”) was also filed at the undersigned’s direction and is embedded within the parties
“Joint Submission about Proposed Phase III Scheduling Order.” (Doc. 180; see Doc. 179).
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No. 1-8 and RFPs No. 2, 3, 5, 7, 11, 13-17 from their first set of discovery, along with
disputes involving OTK’s supplemental responses to Interrogatories No. 1-2 and
initial responses to RFPs No. 1-4 from their second set of discovery. (Doc. 139). The
parties are familiar with the specifics of their filings and arguments, so the
undersigned will not reiterate them here at length.
Subsequent to the filing of Plaintiffs’ motion to compel, Chief District Judge
Jeffrey U. Beaverstock granted in part and denied in part Plaintiffs’ motion to amend
(Doc. 144), an amended complaint was filed (Doc. 146), and OTK’s partial motion to
dismiss the amended complaint was denied (Doc. 171). Per OTK, “[t]he result of those
rulings has been to remove at least part of the basis for OTK’s objection[s]” as as set
out in briefing on Plaintiffs’ motion. (Doc. 187, PageID.3387). In light of those rulings,
OTK has also made supplemental productions which have effectively resolved some
of the disputed matters put at issue by Plaintiffs’ motion. (See Doc. 187).3
II. 	Legal Standards
The scope of discovery for civil actions in federal court is broad, allowing each
party to “obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case…” Fed. R. Civ. P.
26(b)(1). This broad purpose aims to empower parties “to obtain the fullest possible
knowledge of the issues and facts before trial.” Hickman v. Taylor, 329 U.S. 495, 501
(1947). However, discovery is not without its limits, and the court must weight “the
3 It should be noted OTK has moved for partial summary judgment, which is currently pending before
Chief Judge Beaverstock. (Doc. 166). This order takes no position on any matter raised in that motion,
and to the extent items relevant to that motion are discussed here, it is for contextual purposes only.
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importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery is resolving the issues, and whether the burden on expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Ultimately, the district
court has “broad discretion to compel or deny discovery.” United States v. Cuya, 964
F.3d 969, 970 (11th Cir. 2020).
Parties “may move for an order compelling disclosure or discovery” under Rule
37(a). Relevant here, such a motion is permitted if a party “fails to answer an
interrogatory submitted under Rule 33” or “fails to produce documents… as requested
under Rule 34.” Fed. R. Civ. P. 37(a)(3)(iii)-(iv). Under Rule 37(a)(4), “an evasive or
incomplete, disclosure, answer, or response must be treated as a failure to disclose,
answer 	or 	respond.” 	Moreover, 	parties 	are 	under 	a 	continuing 	obligation 	to
supplement responses to both interrogatories and requests for production “in a timely
manner if the party learns that in some material respect the disclosure or response
is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in
writing” or “as ordered by the court.” Fed. R. Civ. P. 26(e).
III. 	Items Resolved by the Parties
Three items put at issue by Plaintiffs’ motion were resolved by the parties
either before or during the June 7 hearing without any substantive intervention by
the Court. In light of that resolution, the undersigned finds any dispute regarding
these items is moot, such that Plaintiffs’ motion is DENIED as moot as to:
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• 	RFP No. 3 (First Set), due to the parties’ agreement to work toward a
stipulation that would negate the need for the production (see Doc. 189);
• 	RFP No. 5 (First Set), in light of OTK’s supplemental production (Doc. 180,
PageID.3355); and,
• 	RFP No. 17 (First Set), as Plaintiffs’ have withdrawn their motion with
respect to this item (Doc. 148, PageID.2270; see Doc. 189).
IV. 	Partially Resolved Items
The discovery items discussed in this section remain outstanding but are
partially resolved for one reason or another following the June 7 hearing. The
disputes regarding these items are effectively moot for the reasons explained below,
but additional action is needed in order to facilitate a complete resolution.
First, Plaintiffs’ motion is DENIED as to:
• 	RFP No. 14 (First Set), because OTK’s gave a partially responsive (albeit,
hedged) answer, has effectively withdrawn its objections and affirmed
that all responsive documents in OTK’s possession have been produced
(Doc. 139-1, PageID.1355; Doc. 145, PageID.1439; see Doc. 188);
• 	RFP No. 15 (First Set), for the same reasons stated above (Doc. 139-1,
PageID.1355-56; Doc. 145, PageID.1439; see Doc. 188);
• 	RFP No. 16 (First Set), in light of OTK’s supplemental production as
alluded to in the parties’ JSRs (see Doc. 180, PageID.3355; Doc. 187,
PageID.3400), and provision of “the most recent Handbook version” to
Plaintiffs’ counsel in an unrelated matter, (Doc. 187, PageID.3400),
along with OTK’s effective withdrawal of its objections and affirmation
that it has otherwise produced everything in its possession responsive
to this request (Doc. 139-1, PageID.1355-56; Doc. 145, PageID.1439; see
Doc. 188); and,
• 	RFP No. 2 (First Set), as a result of a supplemental production made by
OTK, 	its 	effective 	withdrawal 	of 	objections 	to 	this 	request 	and
affirmation that it has produced all responsive documents and records
in its possession (Doc. 187, PageID.3887, 3889; see Doc. 188).
As agreed, OTK will formally amend and/or supplement its responses to each
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of these four items to affirm that it has produced all responsive documents in its
possession and that it has nothing further to produce. (See Docs. 188, 189). OTK is
ORDERED to serve those formally amended and/or supplemented responses by no
later than July 12, 2024. See S.D. Ala. CivLR 5(b).
Additional items have been partially resolved prior to entry of this order which
require slightly more discussion:
Interrogatory No. 3 (First Set) is partially resolved as a result OTK effectively
withdrawing its initial objections and agreeing to amend and/or supplement its
answer “to reflect a ‘no’ response[.]” (Doc. 145, PageID.1426). While this concession
and agreement to amend renders the dispute involving this item effectively moot,
Plaintiffs’ motion is GRANTED with respect Interrogatory No. 3 (First Set) based
upon OTK’s failure to initially provide a responsive answer. See Fed. R. Civ. P.
37(a)(4). OTK is ORDERED to formally amend and/or supplement its response to
this interrogatory by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
Interrogatory No. 8 (First Set) is partially resolved as a result of OTK
effectively withdrawing its objections and affirming it has nothing further responsive
to add to its answer beyond its pointing to 26 pages of Melissa Pledger’s testimony4
4 The parties are aware of the Introduction to Civil Discovery Practice in the Southern District of
Alabama, Civil Discovery Subcommittee (2019) report (hereinafter, the “Civil Discovery Practice
Report”), which offers guidance on this Court’s anticipated, and expected, discovery practices and
procedures. (See Doc. 57, PageID.496) (noting said report)). Relevant here, that report explains:
Since a party is entitled to discovery both by deposition and by interrogatories, it is
ordinarily insufficient to answer an interrogatory by general reference to a deposition
or document, such as "see deposition of James Smith"…
In rare circumstances, a corporation or partnership may appropriately answer a
complex interrogatory by saying something such as "Acme Roofing Company adopts as
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from Gibson v. Outokumpo Stainless Steel USA, LLC, 1:21-00103-JB-N (S.D. Ala.).5
(Doc. 139-1, PageID.1345; Doc. 139-7; see Docs. 188, 189). OTK’s opposition response
explains the written or oral communications relevant to this interrogatory are not
kept as records such that producing the associated dates and times with “would not
be plausible.” (Doc. 145, PageID.1432). While the undersigned finds that contention
made in good faith, OTK’s current response is incomplete because it merely “refers”
Plaintiffs to Pledger’s deposition without “adopt[ing]” its contents as its responsive
answer to this interrogatory. See Civil Practice Discovery Report. Accordingly, while
OTK may have nothing further to add, Plaintiffs’ motion is GRANTED as to
Interrogatory No. 8 (First Set). OTK is ORDERED to formally amend and/or
supplement its answer by no later than July 12, 2024 to either state it is incapable
of 	answering 	this 	interrogatory 	as 	phrased 	or 	by 	formally 	adopting 	Pledger’s
deposition testimony as its responsive answer. See S.D. Ala. CivLR 5(b).
RFP No. 13 (First Set) is partially resolved based on the answer OTK provided,
its effective withdrawal of objections, and assertion that it would amend and/or
supplement its response to affirm it is not aware of any responsive documents. (Doc.
its answer to this interrogatory the deposition testimony of James Smith, its Secretary,
shown on pages 127- 145 of the deposition transcript." In the equally rare circumstance
where an individual party has already fully answered an interrogatory in the course
of a prior deposition, the deposition answer may be adopted as the interrogatory
answer. However, this practice must be used carefully and in good faith, since for
purposes of discovery sanctions, "an evasive or incomplete disclosure, answer or
response must be treated as a failure to disclose, answer or respond." Federal Rule
37(a)(4).
See Introduction to Civil Discovery Practice in the Southern District of Alabama at pp. 12-13.
5 Hereinafter referred to simply as “Gibson.”
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139-1, PageID.1355; Doc. 145, PageID.1437-39; see Doc. 189). OTK’s initial response
stated it did “not know of any responsive documents that are non-privileged and have
not been filed in the Hornady [v. Outokumpo Stainless Steel USA, LLC, 1:18-00317-
JB-N (S.D. Ala.)]6 case.” (Doc. 139-1, PageID.1355). This partially responsive answer
hedged on a possible privilege contention, but OTK affirmed during the June 7
hearing that it was not aware of any responsive documents – privileged or otherwise
– beyond those filed in Hornady. (See Doc. 189). Accordingly, Plaintiffs’ motion is
DENIED as to RFP No. 13 (First Set), and OTK is ORDERED to formally amend
and/or supplement its answer to affirm that it is not aware of any documents
responsive to this request (beyond those filed in Hornady)7 by no later than July 12,
2024. See S.D. Ala. CivLR 5(b).
V. 	Unresolved Items
The discovery items discussed in this section remain contested following the
June 7 hearing. They are addressed below in no particular order, though related
items are grouped together.
A. Interrogatory No. 1 (First Set)
This item is related to RFP No. 2 (First Set). (See Doc. 139, PageID. 1311)
(“Interrogatory 1 asks OTK to identify exactly which parts of which documents that
OTK produced show shifts where OTK claims it both authorized and paid Plaintiffs
6 Hereinafter referred to simply as “Hornady.”
7 To the extent OTK intends to incorporate documents filed in Hornady as part of its formal response
to this request, it need produce or identify (if already produced) those documents for purposes of this
action to the extent it has not already done so.
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for amounts of time other than 12.0 hours a shift. RFP asked for the records
themselves.”)).
INTERROGATORY 	NO. 	1: 	Identify 	exactly 	which 	parts 	of 	which
documents (i.e. bates stamp numbers, excel column headers, etc.) OTK
produced that show the shifts OTK claims that it authorized and also
paid Plaintiff for any amount of time other than, 12.0 hours for any shift
worked.
For each Plaintiff, this interrogatory is limited to the time period:
Beginning 6 years before the earliest of (a) the filing of a Complaint
identifying the Plaintiff, of (b) the filing of a Consent to Become a Party
Plaintiff, and
Ending the most recent date of employment with OTK as an hourly
employee.
RESPONSE: In addition to its General Objections, Defendant objects to
this Interrogatory on the grounds that it is not properly limited in time
and scope, not proportional to the needs of the case, overly broad, and
unduly 	burdensome. 	Defendant 	further 	objects 	to 	the 	extent 	this
Interrogatory seeks information about individuals other than the named
Plaintiffs in this action prior to a discovery plan being adopted regarding
class discovery. Without waiving any objections, OTK states that, under
Rule 33(d), the answers to this Interrogatory going back three years
from when this lawsuit was filed can be obtained from the business
records 	that 	OTK 	has 	already 	produced. 	OTK’s 	business 	records
reflecting, among other things, when Named Plaintiffs clocked in and
out have been produced at Bates-stamp pages OTK/Callier 139-140; 202-
203; 297-298. Further, the documents Bates-stamped OTK/Callier 139,
202, and 297 show the “Pay Code” for the “Hours.” OTK will supplement
this 	interrogatory 	response 	with 	a 	list, 	from 	the 	above-referenced
records of shifts that OTK paid the named Plaintiffs for amounts of time
“other than, 12.0 hours.”
By way of example only, OTK states that the above referenced records
reflect that OTK paid Mr. Francis Callier for amounts of time “other
than, 12 hours” for shifts beginning on, among other, the following…
[specific instances omitted]
Additionally, the above referenced records reflect that OTK paid Mr.
Damon Odom for amounts of time “other than, 12 hours” for shifts
beginning on, among other, the following…
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[specific instances omitted]
Additionally, the above referenced records reflect that OTK paid Mr.
Demonica Favors for amounts of time “other than, 12 hours” for shifts
beginning on, among other, the following…
[specific instances omitted]
(Doc. 139-1, PageID.1335-39).
OTK originally objected to this interrogatory on a myriad of grounds before
referring Plaintiffs (by Bates-stamp) to various documents already produced and
responding “by way of example” and identifying instances where it both authorized
and paid for amounts of time other than 12 hours for Plaintiffs Callier, Odom and
Favors. (See Doc. 139-1, PageID.1336-39). OTK’s example did not appear nor claim to
be a complete list of each such instance for these three plaintiffs, but it was a start,
and it was accompanied OTK’s attempt to explain how it compiled that list so
Plaintiffs could apply the methodology. (Id.). The majority of OTK’s objections (see
Docs. 139-1, PageID.1336; Doc. 145, PageID.1424-25) have been withdrawn, or
effectively withdrawn, as a result of an amended complaint being filed and OTK’s
partial motion to dismiss being denied. (See Docs. 187, PageID.3387-90).
Plaintiffs argue OTK should be compelled to identify “where on the documents
it produced it contends the accurate shift-specific time that was both authorized and
paid can be located,” which they explain will ultimately be relevant to their damages
calculations. (Doc. 139, PageID.1311-12; Doc. 148, PageID.2260-61; see Docs. 187,
188). At this stage, OTK’s primary objection is that requiring a full response to this
interrogatory will impose an undue burden in terms of time and expense because
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there are hundreds (if not thousands) of such instances that would need to be
identified. (Doc. 139-1, PageID.1336; see Doc. 188). Moreover, it contends it should
not be subjected to that burden because Plaintiffs have all the information needed,
and an explanation of OTK’s methodology, such that OTK need not identify or list out
each instance for Plaintiffs because they can do so themselves. (Id.). Plaintiffs do not
dispute they might be able to identify the relevant instances on their own but explain
undertaking that endeavor is no simple task – it requires a complex method of cross-
references 	various 	worksheets, 	and 	its 	complexity 	is 	compounded 	by 	various
“inconsistencies” that exist within the pay records. (See Doc. 188).
Compiling the information responsive to this interrogatory will be a heavy lift
for either party; however, OTK has better familiarity with its own records and has
already demonstrated an ability to implement a responsive methodology for the sub-
group of Callier, Odom, and Favors.8 Plaintiffs, on the other hand, would largely be
working from scratch – using only OTK’s explanation of its own documents as a guide.
On balance, the undersigned finds this burden should be OTK’s to shoulder.
Accordingly, its objections are OVERRULED, and Plaintiffs’ motion is GRANTED
as to Interrogatory No. 1 (First Set). OTK is ORDERED to amend and/or supplement
its answer accordingly by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
B. Interrogatories No. 4 & No. 5 (First Set)
These interrogatories are related.
8 The undersigned notes the plaintiff-by-plaintiff approach employed by OTK in formatting its
“example” for the Plaintiff sub-group arguably provides more information that what this interrogatory
actually seeks, which is a list identifying "which parts of which documents (i.e., bates stamp numbers,
excel column headers, etc.)… show the shifts…” (Doc. 139-1, PageID.1335; see Doc. 139, PageID.1312).
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INTERROGATORY NO. 4: Identify (name, contact information, job
title(s), period(s) of employment) each person from November 1, 2018 -
present with any responsibilities for ensuring OTK’s compliance with
the FLSA and the related federal regulation, including but not limited
to anti-retaliation provisions.
RESPONSE: In addition to its General Objections, Defendant objects to
this Interrogatory on the grounds that it is overly broad, unduly
burdensome, and not limited to the claims of the named Plaintiffs before
the parties have established a discovery plan. Without waiving any
previously stated objections, pursuant to Rule 33(d) of the Federal Rules
of Civil Procedure, OTK refers Plaintiffs to pages 124 through 126 and
140 to 142 of the deposition of David Scheid in the Gibson case and pages
116 through 117 of the deposition of Marva Rodrigues in the Gibson
case, and responds that David Scheid, Carlos Villacreces, Melissa
Pledger 	and 	all 	of 	its 	supervisory 	employees 	have 	responsive
responsibilities.
…
INTERROGATORY NO. 5: Describe what any OTK employee with
responsibilities for ensuring OTK’s compliance with the FLSA actually
did at any time November 1, 2018 - present to determine what the FLSA
and its related federal regulations, including but not limited to ant[i]-
retaliation provisions, requires, permits, and / or does not permit.
RESPONSE: In addition to its General Objections, Defendant objects to
this Interrogatory on the grounds that it is overly broad, unduly
burdensome, and not proportional to the needs of the case. Defendant
further objects that the requests appear to seek information protected
by the attorney-client privilege and the attorney work product doctrine.
Without waiving these objections, pursuant to Rule 33(d) of the Federal
Rules of Civil Procedure, OTK will provide documents containing non-
privileged responsive information, to the extent it exists.
(Doc. 139-1, PageID.1342).
Plaintiffs 	describe 	Interrogatory 	No. 	4 	as 	seeking 	for 	OTK 	to 	identify
employees with “responsibilities for ensuring OTK’s compliance,” while Interrogatory
No. 5 then seeks for OTK to describe what those persons “actually did,” during the
subject time frame. (Doc. 139, PageID.1315-16; see Doc. 139-1, PageID.1342). Thus,
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OTK’s response to Interrogatory No. 4 will dictate the applicable scope of its response
to Interrogatory No. 5.
Because of their correlation, the undersigned begins with Interrogatory No. 4.
OTK raised several objections and then gave a partially responsive answer by
identifying David Scheid, Carlos Villacreces, and Pledger, but then goes on to state
“all of its supervisory employees have responsive responsibilities.” (Doc. 139-1,
PageID.1342). OTK also pointed to eight pages of deposition testimony in Gibson from
Scheid and Marva Rodrigues, both of which include partially responsive information.
OTK’s objections to Interrogatory No. 4 are driven by an exaggerated reading
of it, conflating employees who have compliance responsibilities with employees
responsible 	for 	ensuring 	that 	compliance. 	(Doc. 	139-1, 	PageID.1342; 	Doc. 	145,
PageID.1426-28). Accordingly, its characterization of this item as implicating nearly
every employee at the company is misplaced. For example, an employee who clocks-
in and out, ensures payments are made or supervises others in an effort to comply
with OTK’s policies surely have some level of compliance responsibility, but they are
not responsible for ensuring that compliance company-wide. In any event, the
undersigned finds OTK has made a semi-good faith effort by identifying Scheid,
Villacreces 	and 	Pledger, 	who 	it 	later 	describes 	as 	“upper 	management 	level
employees who are primarily responsible for OTK’s FLSA compliance.” (See Doc. 145,
PageID.1428).
That said, however, OTK’s response to Interrogatory No. 4 is incomplete for
two reasons. First, it is certainly plausible that other upper management level
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employees exist who have responsibilities for ensuring OTK’s compliance with federal
labor regulations. Second, OTK again merely “refers” to the deposition testimony
from Scheid and Rodrigues without formally adopting it as part of its responsive
answer. Accordingly, Plaintiffs’ motion is GRANTED as it relates to Interrogatory
No. 4 (First Set). OTK is ORDERED to formally amend and/or supplement its
answer by either (1) identifying additional employees who fit within the stated
category of employees or affirmatively state it has identified all such employees
and/or (2) if it intends for Scheid and Rodrigues’s deposition testimony to serve as
part of its responsive answer, to formally adopt the same. See Civil Practice Discovery
Report. OTK shall do so by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
OTK’s objections to Interrogatory No. 5 are largely tied to its objections to
Interrogatory No. 4 and based on the conflated reading discussed above. As an initial
point on Interrogatory No. 5, despite identifying Scheid, Villacreces and Pledger, OTK
gives 	no 	response 	for 	what 	those 	employees 	“actually 	did.” 	(See 	Doc. 	139-1,
PageID.1342). While OTK opines in its opposition response that the information
sought by this interrogatory might be better obtained via depositions, even if true,
OTK cannot avoid a response simply by suggesting an alternative method of discovery
might be more convenient.
Because 	OTK 	identified 	Scheid, 	Villacreces 	and 	Pledger 	in 	response 	to
Interrogatory No. 4, it must provide a response describing what they “actually did”
during the subject time frame for purposes Interrogatory No. 5. Thus, Plaintiffs’
motion is GRANTED as it relates to Interrogatory No. 5 (First Set), and OTK is
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ORDERED to formally amend and/or supplement its response accordingly. In the
event OTK’s amended and/or supplemented response to Interrogatory No. 4 identifies
employees beyond Scheid, Villacreces and Pledger, Interrogatory No. 5 must be
further supplemented to account for those employees “actually did” as well. OTK shall
do so by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
C. Interrogatory No. 6 (First Set)
INTERROGATORY NO. 6: For the period November 1, 2018 - present
describe exactly the formula(s) by which overtime rates for pay to OTK’s
hourly employees was calculated using “RROP” and (if applicable) how
those formulas differed in two week pay periods during which hourly
employees worked step-up rates for less than all shifts worked.
For each Plaintiff, this interrogatory is limited to the time period:
Beginning 3 years before the earliest of (a) the filing of a Complaint
identifying the Plaintiff, or (b) the filing of a Consent to Become a Party
Plaintiff, and
Ending the most recent date of employment with OTK as an hourly
employee.
RESPONSE: In addition to its General Objections, Defendant objects to
this Interrogatory on the grounds that it is overly broad, unduly
burdensome, and not properly limited in time and scope. Defendant
further objects to the extent this Interrogatory seeks information about
individuals other than the named Plaintiffs in this action prior to a
discovery plan being adopted regarding class discovery, and to the
extent this information is not within its custody or control. Subject to
and without waiving its objections to this Interrogatory, Defendant,
pursuant to Federal Rule of Civil Procedure 33(d), the hourly rates used
in determining the amount of overtime pay (including “Shift OT Hrs”)
the named Plaintiffs received in workweeks in which they worked over
40 hours can be calculated using the formulas contained in the Excel
spreadsheet that OTK has produced as Bates-stamped OTK/Callier
1157. Further, OTK refers Plaintiffs to pages 129 to 133 of the Rule
30(b)(6) deposition of ADP taken in the Gibson case. The “actual
formulas” are embedded in ADP’s proprietary software. OTK states that
is has been able to re-create (and therefore duplicate) ADP’s formulas as
set forth in ADP’s deposition testimony, but OTK does not have access
to the “actual formulas” embedded in the ADP software.
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(Doc. 139-1, PageID.1343)
This 	interrogatory 	requires 	some 	context. 	Both 	parties 	describe 	the
information sought by Interrogatory No. 6 as highly technical and proprietary (as to
non-party ADP, Inc.). (See Docs. 139, 145, 148). It should be noted there are two
different sets of ADP-proprietary formulas at issue within this request – those used
pre-September/October 	2022 	(the 	“old” 	formulas) 	and 	those 	used 	post-
September/October 2022 (the “new formulas”). (See Docs. 139, 145). Plaintiffs seek a
description of both “old” and “new” along with a description of both showing “step-up”
rates. (Id.). Thus, the undersigned construes Interrogatory No. 6 as really seeking
four items: (1) a description of the “old” pre-September/October 2022 formulas, (2) a
description of the “old” pre-September/October 2022 incorporating step-up rates, (3)
a 	description 	of 	the 	“new” 	post-September/October 	2022 	formulas, 	and 	(4) 	a
description of the “new” post-September/October 2022 incorporating step-up rates.
The old formulas allegedly resulted in inconsistent application of overtime pay
rates and were, at least in part, an impetus for this and other related litigation
against OTK. As ADP proprietary information, the formulas themselves were not
accessible by OTK. During the Gibson litigation, OTK employee Villacreces was able
to 	reverse 	engineer 	(as 	an 	Excel 	spreadsheet) 	the 	process 	by 	which 	the 	pre-
September/October 2022 were calculated and “re-create” the old formulas. (Docs. 139,
145, 148). That spreadsheet has previously been provided to Plaintiffs, but does not
and cannot incorporate “step-up” rates. (Id.).
In light of this and other litigation, the old formulas used to calculate overtime
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pay rates were changed by ADP in September or October 2022 at OTK’s request.
While the “new” formulas, according to Plaintiffs, “still lead[] to underpayments,”
they essentially argue that because OTK made a change, it must at least know what
the old formulas were because it could only change them if it knew a change was
needed. (Doc. 139). In support of that argument, Plaintiffs point to communications
between Pledger and ADP from September 2022, wherein Pledger appears to ask
ADP to make a change, ADP describes that change in technical terms, and then
confirms with Pledger whether the change it made is what she requested. (Doc. 139;
see Doc. 139-4). These communications do not indicate what the formulas are
themselves, do not describe them, do not establish whether Pledger knows what the
formulas are, or even indicate whether Pledger has the technical knowledge to be able
to describe them. (Doc. 139-4).
OTK raised various objections to this interrogatory, including overbreadth,
undue burden, not limited in time or scope, and that the information sought is not
within its custody or control. (Doc. 139-1, PageID.1343). Some of them apply to each
of the four subparts of this interrogatory, as construed and enumerated above, while
others are specific to certain subparts of it. In OTK’s opposition response, it also
argues that it has given a responsive answer – pointing primarily to the Villacreces-
created Excel spreadsheet. (See Doc. 145, PageID.1429-30). OTK further protests
Plaintiffs’ implication that Pledger knows at least the old formulas. (Id.).
To the extent Interrogatory No. 6 seeks the actual formulas (old or new), OTK’s
objections are SUSTAINED. Everyone appears to be on the same page that OTK
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does not have them and never has – only ADP does. Moreover, to the extent the
formulas themselves is what this item appeared to be after, Plaintiffs’ motion makes
clear that it is “not asking for ADP’s computer algorithms.” (Doc. 139, PageID.1317).
On its face, this interrogatory asks for OTK to “describe” the formulas, yet no one has
made clear how OTK would do that without the formulas themselves. Even Plaintiffs’
counsel struggled to clarify how OTK would do so during the June 7 hearing. (See
Doc. 188). As best the undersigned can ascertain, the bottom line is this: Villacreces
was able to reverse engineer the former process to re-create the old formulas.
Plaintiffs have that information, and it appears this is the best description of those
formulas that OTK can provide. The allegation that Pledger, or anyone at OTK, “must
know now how [the “old”] rates [were] calculated because… it directed ADP to change
the 	calculations[,]” 	is 	speculative 	at 	best. 	(See 	Doc. 	139, 	PageID.1317). 	The
communications pointed to by Plaintiffs do not support that contention, at least not
without more context or hearing from Pledger directly. It is just as likely that OTK
said to ADP “fix it,” and ADP took it from there. Thus, to the extent Interrogatory No.
6 seeks a description of the pre-September/October 2022 formulas, the undersigned
finds that OTK has given a responsive answer by way of pointing to the Villacreces
spreadsheet, such that Plaintiffs’ motion is DENIED in part as to Interrogatory No.
6 (First Set).
With respect to the interrogatory’s request for a description of the “new” post-
September/October 2022 formulas, however, OTK’s objections are OVERRULED
and Plaintiffs’ motion is GRANTED in part as to Interrogatory No. 6 (First Set).
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The 	undersigned 	notes 	OTK 	did 	not 	provide 	an 	answer 	to 	this 	part 	of 	the
interrogatory, because it observed – as do Plaintiffs – that Villacreces’s spreadsheet
for the old formulas is not helpful for the new formulas. However, if Villacreces was
able to reverse engineer and re-create the old formulas, the undersigned sees no
reason why he (or someone else at OTK), would not be able to do the same for the new
formulas. Indeed, OTK affirmed during the June 7 hearing that this was at least
possible. (See Doc. 189). At this stage, the undersigned sees no other way to move the
ball forward. To avoid any confusion by way of an inartful directive, the undersigned
leaves it at this: OTK is ORDERED to undertake the same process previously done
that resulted in the Villacreces spreadsheet (for the “old” formulas) with respect to
the “new” formulas, which shall then be provided to Plaintiffs in lieu of any other
“description” sought by this interrogatory. OTK shall do so by no later than July 12,
2024. See S.D. Ala. CivLR 5(b).
The remaining two subparts of this interrogatory deal with Plaintiffs’ requests
for a description of both the old and new formulas incorporating “step-up” rates. (Doc.
139-1, PageID.1343; see Docs. 139, 148). The Villacreces spreadsheet did not and
could not incorporate those rates, and it is reasonable to presume the result of the
prior directive will run into the same issue. Moreover, neither party has offered a
viable path or described a way by which it is theoretically possible for OTK to produce
or describe the formulas while also incorporating these rates. (See Doc. 189).
Accordingly, OTK’s objections to the “step-up” portions of this interrogatory are
SUSTAINED and Plaintiffs’ motion is DENIED in part as to Interrogatory No. 6
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(First Set). However, OTK is ORDERED to formally amend and/or supplement its
response to affirm it is incapable of responding to these subparts of Interrogatory No.
6 (First Set) as requested by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
D. Interrogatory No. 7 (First Set)
INTERROGATORY NO. 7: If there are any particular dates or times
that OTK contends any Plaintiff was performing activities that were not
integral and indispensable to Plaintiff’s work activities or which did not
constitute 	compensable 	working 	time 	during 	time 	periods 	that 	a
Plaintiff was clocked in but was not paid then state what it is Defendant
contends the Plaintiff was doing and identify who claims to have
personal knowledge of such activities.
For each Plaintiff, this interrogatory is limited to the time period:
Beginning 3 years before the earliest of (a) the filing of a Complaint
identifying the Plaintiff, or (b) the filing of a Consent to Become a Party
Plaintiff, and
Ending the most recent date of employment with OTK as an hourly
employee.
RESPONSE: In addition to its General Objections, Defendant objects to
this Interrogatory on the grounds that it is overly broad, unduly
burdensome, and not properly limited in time and scope. Defendant
further objects to the extent this Interrogatory seeks information about
individuals other than the named Plaintiffs in this action prior to a
discovery 	plan 	being 	adopted 	regarding 	class 	discovery. 	Without
waiving 	its 	objections, 	if 	the 	named 	Plaintiffs 	claim 	they 	were
performing work before their scheduled state time, after their scheduled
end time, or during their paid meal break, such work was not integral
and indispensable to their work activities and was not compensable
time.
(Doc. 139-1, PageID.1344) (emphasis in original).
Rephrased, this interrogatory asks OTK to identify, for each of the 115+
plaintiffs in this action (or at least for those of the 115+ who are shift-based workers
who might possibly “make relief” directly before or after his or her shift begins),9 any
9 It was suggested during the June 7 hearing this applies to approximately 64 plaintiffs but that the
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instances over a period of years where those Plaintiffs were clocked-in but not paid
because they were doing something that OTK did not deem an “integral and
indispensable” work activity. (Doc. 139, PageID.1318-19). For each such instance, this
interrogatory also wants OTK to state what it believes those Plaintiffs were doing,
and to identify any persons who might have personal knowledge of what those
plaintiffs were doing.
OTK objected on several grounds, including undue burden. (Doc. 139-1,
PageID.1344). For the reasons stated below, OTK’s undue burden objection is
SUSTAINED. This interrogatory is unduly burdensome because the instances which
Plaintiffs seek for OTK to identify could potentially number in the thousands, and
OTK does not otherwise keep a list of them or have the requested information on
hand. Further, as described in briefing and during the June 7 hearing, the persons
with “personal knowledge of such activities” are Plaintiffs themselves, and what they
were doing in each such instance is Plaintiff-specific. (See Doc. 189). Thus, the
undersigned agrees with OTK that this interrogatory calls for “a narrative account of
each potential witnesses’ anticipated testimony,” because at this point, OTK has no
way of knowing what each Plaintiff will say he or she was doing during those times,
so any answer given would be pure conjecture. (Doc. 145, PageID.1430-32). Moreover,
the undersigned reasons the information sought by this interrogatory would be better
obtained through other means such as Plaintiff depositions.
Plaintiffs argue that, for any instances where OTK believes they performed
specific amount is not yet known with certainty. (See Doc. 189).
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activities which were not “integral and indispensable,” they are “entitled to know
what OTK contends” Plaintiffs were doing instead before any deposition occurs. (Doc.
148, PageID.2265-66). Pointing to rulings in Gibson, they argue “it is OTK’s burden
to show when Plaintiffs started and stopped compensable activities within the clock
in and clock out times” and that it will need to offer evidence of the same to survive a
potential summary judgment motion. (See Docs. 139, 148, 189). OTK has taken the
position that any such activities were not “integral and indispensable to their work
activities.” (Doc. 139-1; see Doc. 152). That is the relevant contention that Plaintiffs
seek. OTK has not, cannot, nor is it required to at this stage, offer an alternative
explanation for what each specific Plaintiff was doing to justify its position that such
activities were not integral and indispensable. For these reasons, Plaintiffs’ motion
is DENIED with respect to Interrogatory No. 7 (First Set).
E. RFP No. 7 (First Set)
RFP NO. 7: For any person who signed a declaration that has been filed
in this civil action by OTK, produce all documents (prepared November
1, 2021 - April 30, 2022) reflecting or referring to possible, or actual,
promotions, 	demotions, 	transfers 	to 	another 	position, 	employment-
related discipline, and / or pay raises.
RESPONSE: In addition to its General Objections, Defendant objects to
this Request on the grounds that it is overly broad, unduly burdensome,
not proportional to the needs of the case, irrelevant to the parties’ claims
and defenses, and unduly vague and ambiguous with respect to the
phrase “possible” promotions, demotions, transfers to another positions,
employment-related discipline, and/or pay raises.
(Doc. 139, PageID.1350-51).
As an initial point, the undersigned agrees with OTK’s objections in part (as
boilerplate as they may be) insofar as this request appears to seek at least some
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irrelevant information on its face. Briefing and discussion during the June 7 hearing
clarified this request is confined to the “small set” of 20 employees who authored
declarations filed by OTK on February 8, 2022 (Doc. 38; see Docs. 38-1 to 38-20), but
the request itself does not say that, instead asking for responsive documents as to
“any person who signed a declaration that has been filed in this civil action by OTK.”
(Doc. 139-1, PageID.1350) (emphasis supplied). By its plain terms then, this would
include the February 8 declarants (see Doc. 38) as well as Pledger (Doc. 64-4) and
Scheid (Doc. 64-5). Given that clarification, however, the undersigned proceeds with
only the February 8 declarants in mind.
Plaintiffs describe the declarants as persons who “inserted themselves into this
case 	as 	persons 	with 	supposed 	knowledge 	of 	matters 	at 	issue.” 	(Doc. 	139,
PageID.1321). Candidly, Plaintiffs want to know why, and this request is aimed at
discovering an answer to that question.
OTK paints this interrogatory as the classic fishing expedition, and objects on
a myriad of grounds. (Doc. 145, PageID.1437). OTK’s objections on ambiguity and
vagueness grounds – rooted in Plaintiffs’ use of “possible” as a qualifier to the scope
of the request – and its overbreadth and undue burden objections, which are not
substantively supported, are OVERRULED. (Doc. 139-1, PageID.1351). The use of
“possible” does not make this request vague nor ambiguous and, in light of Plaintiffs’
clarification that this request applies only the “small set” of 20 declarants, it is not
overly broad, nor would production of relevant documents impose an undue burden
---
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on OTK.10 With respect to relevance and proportionality, OTK argues the declarants
are “not involved in this litigation” and whether they were promoted, demoted,
transferred, disciplined, or given a raise during the subject timeframe is not relevant
to the claims at issue in this case. (Id.). While fair enough that this action does not
include claims for retaliation, OTK is incorrect when it states these employees are
“uninvolved.” 	(Id.). 	To 	the 	contrary, 	OTK 	involved 	them 	when 	it 	used 	their
declarations in support of its opposition to class certification. (See Doc. 38). At a
minimum, some of these employees could be potential fact witnesses whose credibility
and motivations can fairly be questioned and put at issue. For these reasons, OTK’s
relevance 	and 	proportionality 	objections 	are 	OVERRULED 	in 	part 	and
SUSTAINED in part. The undersigned finds the requested production is not
unreasonable nor irrelevant, but reasons that, based on the purpose for which they
are sought, the scope of any responsive documents should be limited to those prepared
by OTK 30 days before or after February 8, 2022 – the day on which the declarations
were filed with the Court. (See Doc. 38).
Accordingly, Plaintiffs’ motion is GRANTED in part and DENIED in part
as to RFP No. 7 (First Set). OTK is ORDERED to produce any documents in its
possession that were prepared between January 9, 2022 and March 10, 2022 which
reflect or refer to any possible (or actual) promotions, demotions, transfers, discipline,
and/or pay raises with respect to the 20 employees whose declarations were filed
10 Notably, Plaintiffs conceded during the June 7 hearing that they are not seeking full personnel files
on these employees by way of this request, and the undersigned will not require OTK to produce full
personnel files in order to be in compliance with this directive. (See Doc. 189).
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February 8, 2022 (see Doc. 38), and shall do so by no later than July 12, 2024. See
S.D. Ala. CivLR 5(b).
F. Interrogatory No. 2 & RFP No. 11 (First Set)
These items are related.
INTERROGATORY NO. 2: If OTK disputes either:
(a) That the applicable statute of limitations period for any Plaintiff’s
claims under the FLSA is at least three years, or
(b) That any Plaintiff is not entitled to recover liquidated damages in an
amount equal to the amount that Plaintiff recovers for either unpaid
minimum wagers, or unpaid overtime compensation under the FLSA
Then:
(a) Describe in detail (who, when, where, what was said) any and all oral
communications, (or written communications which OTK cannot or
will not produce) which OTK claims support any contention that it
acted in good faith, or that it acted with reasonable grounds to believe
it was not violating the FLSA, or that its acts or omissions not “willful”
as that word is used in the Portal-to-Portal Act, and
(b) Describe in detail (who, when, where, what was said) any and all oral
communications, (or written communication which OTK cannot or
will not produce) that any salaried employee of Defendant ever had
with anyone about whether any of its practices did, did not, might,
or might not, comply with the FLSA. This includes but is not limited
to practices such as:
(i) time rounding for pay purposes,
(ii) workweek designation for pay purposes,
(iii) 	considering the amount of time for which overtime pay was
due in a workweek on anything other than a fixed, regularly
receiving period of 168 hours,
(iv) 	inclusion / exclusion of monthly bonuses from rates of pay
for overtime pay calculations,
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(v) payments 	made 	to 	account 	for 	prior 	underpayments 	of
overtime 	pay 	as 	Melissa 	Pledger 	described 	in 	deposition
testimony on March 11, 2020,
(vi) 	overtime payments incorporation “RROP” calculations
(vii) 	calculating rates of pay for overtime for single workweeks
based in any way on any time worked, or pay received, in a
different workweeks,
(viii) 	calculating rates of pay for overtime based on the shift
times ([i.e.] night shift versus day shift) that the employee
worked after 40 hours had been worked in a single workweek.
This 	interrogatory 	encompasses 	all 	responsive
communications from March 12, 2020 until the filing of the
Complaint in this civil action, and all communications with
anyone other than OTK’s counsel since the filing of this civil
action.
With 	regard 	to 	this 	Interrogatory 	and 	its 	subparts,
Defendant does not have to repeat as an interrogatory response
the exact content of documents actually produced.
RESPONSE: In addition to its General Objections, Defendant further
objects that the requests appear to seek information protected by the
attorney-client 	privilege 	and 	attorney 	work 	product 	doctrine 	and
appears to seek information that is not relevant and is not proportional
to the needs of the case. Defendant objects to this Interrogatory on the
grounds 	that 	it 	is 	overly 	broad, 	unduly 	burdensome, 	and 	not
proportional to the needs of the case. Defendant further objects to the
extent this Interrogatory seeks information about individuals other
than the named Plaintiffs in this action prior to a discovery plan being
adopted 	regarding 	class 	discovery. 	Defendant 	also 	objects 	to 	this
Interrogatory because, due to subparts, this Interrogatory contains
numerous requests. Without waiving these objections, pursuant to Rule
33(d) of the Federal Rules of Civil Procedures, OTK refers Plaintiffs to
pages 157 through 206 of the Deposition of David Scheid from the
Hornady 	case 	and 	will 	produce 	documents 	containing 	any 	other
responsive, non-privileged communications to the extent they exist.
(Doc. 139-1, PageID.1339-41)
RFP NO. 11: If OTK dispute either:
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(a) That the applicable statute of limitations period for any Plaintiff’s
claims under the FLSA is less than three years, or
(b) That any Plaintiff is not entitled to recover liquidated damages if
Plaintiff recovers for either unpaid minimum wages, or unpaid
overtime compensation under the FLSA
Then:
(a) Produce all records of communications which OTK claims support
any contention that it acted in good faith, or that it acted with
reasonable grounds to believe it was not violating the FLSA, or that
its acts or omission not “willful” as that word is used in the Portal-
to-Portal Act, and
(b) Produce all records of communications that any salaried employee of
OTK ever had with anyone about whether any of its practices did,
did not, might, or might not, comply with the FLSA. This includes
but is not limited to practices such as:
(i) time rounding for pay purposes,
(ii) workweek designation for pay purposes,
(iii) 	considering the amount of time for which overtime pay was
due in a workweek on anything other than a fixed, regularly
receiving period of 168 hours,
(iv) 	inclusion / exclusion of monthly bonuses from rates of pay
for overtime pay calculations,
(v) payments 	made 	to 	account 	for 	prior 	underpayments 	of
overtime 	pay 	as 	Melissa 	Pledger 	described 	in 	deposition
testimony on March 11, 2020,
(vi) 	overtime payments incorporation “RROP” calculations
(vii) 	calculating rates of pay for overtime for single workweeks
based in any way on any time worked, or pay received, in a
different workweeks,
(viii) 	calculating rates of pay for overtime based on the shift
times ([i.e.] night shift versus day shift) that the employee
worked after 40 hours had been worked in a single workweek.
----
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This request encompasses all responsive communications
from March 12, 2020 until the filing of the Complaint in this civil
action, and all communications with anyone other than OTK’s
counsel since the filing of this civil action.
RESPONSE: In addition to its General Objections, Defendant objects to
this Request on the grounds that it is overly broad, unduly burdensome,
and not proportional to the needs of the case. Defendant further objects
to the extent this Request seeks information or documents protected by
the attorney-client privilege and/or work product doctrine, and to the
extent it seeks information or documents about individuals other than
the named Plaintiffs in this action prior to a discovery plan being
adopted regarding class discovery. Subject to and without waiving its
objections, Defendant will produce non-privileged responsive documents
to the extent they exist.
(Doc. 139-1, PageID.1352-54).
To state the obvious, these two items seek quite a bit of information from OTK.
Plaintiffs’ motion begins discussion here by explaining they are relevant to statute of
limitations and liquidated damages issues which are “near mirror-image” to matters
arising in both Gibson and Hornady. (Doc. 139, PageID.1312). In Gibson, a similar
discovery dispute was resolved when OTK stipulated “that a three year SOL would
be used for the FLSA claim and that liquidated damages would be awarded equal any
compensatory damages award.” (Doc. 139, PageID.1313). In Hornady, OTK produced
responsive documents and provided Rule 30(b)(6) testimony “describing attorney-
client communications.” (Id.).
While these discovery items phrase OTK’s position as hypothetical (i.e., the “if”
statement), its answer to the operative complaint and defenses asserted therein
indicate both the statute of limitations and entitlement to liquidated damages are
contested issues at this stage. (See Doc. 152). OTK’s fifth defense states:
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In the alternative to the Second, Third, and Fourth Defenses, Defendant
avers that any violation of overtime requirements occurred in good faith
and with reasonable grounds to believe it was not violating the FLSA
and was not “willful” under the Portal-to-Portal Act.
(Doc. 152, PageID.2355). And it’s seventh provides that “[s]ome or all of the Plaintiffs’
claims are barred by the applicable statute of limitations…” (Doc. 152, PageID.2356).
Based on the contested nature, Plaintiffs correspondingly seek communications and
documents relevant to those defenses by way of these discovery items.
OTK’s raised various objections to these items which ran the gambit. (See Doc.
139-1, PageID.1340-41; 1353-54). For Interrogatory No. 2, it then pointed to Scheid’s
deposition from Hornady and stated it would “produced documents containing any
other responsive, non-privileged communications to the extent they exist,” and for
RFP No. 11, it asserted it would “produce non-privileged documents to the extent they
exist.” (Id.). Briefing and discussion during the June 7 hearing made clear that OTK
has now produced all responsive documents that are non-privileged but maintains its
privilege objections. (Doc. 145, PageID.1426; see Doc. 189). Thus, to the extent these
items seek non-privileged communications and documents, this dispute is effectively
moot in light of OTK’s effective withdrawal of its objections and affirmation that it
subsequently produced all responsive communications and documents. Insofar as
non-privileged communications and documents are concerned, Plaintiffs’ motion is
therefore GRANTED in part and DENIED in part as to Interrogatory No. 2 and
RFP No. 11 (First Set). OTK is ORDERED to formally amend and/or supplement its
responses by no later than July 12, 2024 to either state it is has produced all
potentially non-privileged communications and documents responsive to these items
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and/or by formally adopting Scheid’s deposition testimony as part of its responsive
answer. See S.D. Ala. CivLR 5(b).
With 	respect 	to 	communications 	and 	documents 	potentially 	subject 	to
privilege, the undersigned notes Plaintiffs’ have made a persuasive showing that
whatever privilege may have existed over communications and documents responsive
to these items has been waived and/or no longer applies. (See Doc. 139, PageID.1313-
15; Doc. 148, PageID.2261-63; Docs. 188, 189). In briefing, OTK does not attempt to
respond to those waiver argument(s). (See Doc. 148). While it raised some argument
in opposition to Plaintiffs’ position during the June 7 hearing, it was minimal,
unsupported by authority and generally unpersuasive. (See Doc. 188). However, the
undersigned is not prepared to crack this seal and order disclosure of documents and
communications potentially subject to privilege just yet, at least not without the
benefit of additional briefing on the matter. Accordingly, to the extent Plaintiffs’
motion seeks disclosure of communications and documents which are potentially
subject to privilege assertions, the motion is DENIED in part as to Interrogatory
No. 2 and RFP No. 11 (First Set), without prejudice to Plaintiffs’ ability to re-raise
such matters in a future motion.
G. Interrogatory No. 1 (Second Set)
INTERROGATORY NO. 1: State the amount of overtime paid within
each two-week period:
To each Plaintiff,
For each separate 168 hour period that began Sunday at 6:00 a.m. and
ended Sunday at 5:59 a.m.
The time period of this interrogatory is since November 3, 2018. Except
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that for those Plaintiffs who were also Plaintiffs in the [Hornady] case
this interrogatory is limited to the period beginning November 21, 2021.
(Doc. 139-2, PageID.1367).
The 	undersigned 	will 	not 	reiterate 	OTK’s 	objections 	and 	supplemental
response 	here 	but 	notes 	it 	responded 	in 	a 	manner 	like 	how 	it 	responded 	to
Interrogatory No. 2 (First Set), see Part V(A), supra.: by raising various objections
and argument as to why a fully responsive answer is burdensome or otherwise not
feasible, before providing a responsive answer for a representative group (of 11
Plaintiffs) along with an explanation of how, based on records already produced,
Plaintiffs could ascertain the information sought. (See Doc. 139-3, PageID.1367-71;
Doc. 145, PageID.1440-41).
Plaintiffs acknowledge OTK has produced the records relevant to this request
but argue more is needed for a complete response. (See Doc. 139, PageID.1322-29;
Doc. 148, PageID.2270-73; Doc. 189). In the January 22 JSR, the parties explain the
“remaining issue is whether Defendant has to prepare similar analyses for the other
Plaintiffs” – i.e., for the roughly 105 not included in the analysis it provided for the
sub-group of 11 Plaintiffs. (Doc. 180, PageID.3356; see Doc. 189). This outstanding
point of contention was similarly noted in the May 29 JSR and reiterated during the
June 7 hearing. (Docs. 187, 189).
OTK acknowledges that it can give a fully responsive answer for all Plaintiffs
but argues doing so would impose an undue burden. (Docs. 145, 189). Based on the
parties’ briefing, argument during the June 7 hearing, and in light of the importance
of 	this 	information 	sought 	by 	this 	interrogatory 	to 	the 	ultimate 	damages
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calculation(s), 	the 	undersigned 	GRANTS 	Plaintiffs’ 	motion 	with 	respect 	to
Interrogatory No. 1 (Second Set). 11 Like Interrogatory No. 2 (First Set), a fully
responsive answer to this interrogatory is anything but a simple lift, but OTK’s
relative burden in doing so is substantially lesser than the burden which would be
imposed on upon Plaintiffs, particularly in light of the importance of this information
to the damages issue and OTK’s familiarity with its own document production.
Accordingly, 	OTK 	is 	ORDERED 	to 	undertake 	this 	effort 	and 	amend 	and/or
supplement its response by providing the information sought by Interrogatory No. 1
(Second Set) by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
H. Interrogatory No. 2 (Second Set)
INTERROGATORY NO. 2: For each Plaintiff who was not also Plaintiff
in [Hornady], identify the exact monetary amounts, and related times
and dates (if any) that Defendant contends it is entitled to offset a credit
against amounts due each Plaintiff for overtime pay relating to meal
breaks.
RESPONSE: OTK objects to this request as vague and ambiguous,
unduly burdensome, and as seeking information that is not relevant and
is not proportional to the needs of this case…
OTK further objects to this interrogatory to the extent that, under Rule
33(d), the answer to this Interrogatory can be obtained from the
business 	records 	that 	OTK 	has 	already 	produced, 	including 	the
“DOWNTIME 70” Excel produced at Bates-stamped page 466.
Without 	waiving 	the 	above 	objections, 	OTK 	states 	that 	it 	has
supplemented the “DOWNTIME 70” Excel produced at Bates-stamped
page 466 with another Excel produced at Bates-stamped page 29189.
Therefore, Plaintiff now has records of all “DOWNTIME 70” stoppages
of lines in the Cold Rolling Works from January 1, 205 through June 27,
2023.
11 OTK appeared to begrudgingly concede during the June 7 hearing that it would be willing to
undertake this effort to ensure that it is fully meeting its discovery obligations and to counter
Plaintiffs’ narrative that it was failing to do so. (See Doc. 189).
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(Doc. 139-3, PageID.1371-72).
This item implicates considerations similar to an item previously discussed –
specifically, Interrogatory No. 7 (First Set), see Part V(D), supra. For the reasons
stated below, OTK’s undue burden objection is similarly SUSTAINED and Plaintiffs’
motion is DENIED as to Interrogatory No. 2 (Second Set).
The undersigned finds this interrogatory to be unduly burdensome because
these instances could potentially number in the hundreds, OTK does not otherwise
keep a list of them (by Plaintiff or by employee) and does not have the requested
information (beyond what has already been produced) on hand. The undersigned is
further persuaded – and Plaintiffs’ motion actually supports – OTK’s position that
this 	interrogatory 	calls 	for 	a 	premature 	narrative 	account 	of 	each 	witnesses
anticipated testimony. Plaintiffs point out this interrogatory relates to OTK’s offset
defense, which states: “Any damages for any alleged unpaid overtime wages that the
Plaintiffs are claim are offset by any pay the Plaintiffs were paid and/or overpaid for
a particular workweek or by any pay that Defendant was not required to pay to the
Plaintiffs 	for 	a 	particular 	workweek.” 	(Doc. 	152, 	PageID.2358; 	see 	Doc. 	139,
PageID.1329). Plaintiffs describe OTK’s position as essentially being: (1) that it pays
its employees for 12 hour shifts whether or not they take a lunch break, so (2) when
employees do take a lunch break, that time might be subject to offsetting. (Doc. 139,
PageID.1329; 	see 	Doc. 	166, 	PageID.3199). 	(See 	also, 	Doc. 	139-3, 	PageID.1371)
(describing OTK’s offset contention)).
OTK’s objection points to Gibson’s namesake, who testified he did not always
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receive a 30-minute uninterrupted lunch break (even though he should have) because
sometimes work-related tasks would come up. (Doc. 139-3, PageID.1371). It uses this
example to make the point that each Plaintiff’s testimony regarding lunch breaks,
and whether they were able to take them uninterrupted, will vary from role to role or
even from plaintiff to plaintiff within the same role. (Id.). While OTK curiously seems
to group certain line-based employees together and implies they will always have the
same 30-minute lunch break, Plaintiffs’ motion shows how this categorization need
be more individualized, since “testimony in other cases is that employees could be re-
assigned from line to line.” (Doc. 139, PageID.1329). In any event, the undersigned
construes OTK’s relevant contention as being that if a lunch break was taken, it is
entitled to offset that. Whether a lunch break was taken, or able to be offset, will turn
on 	whether 	the 	relevant 	Plaintiff 	was 	actually 	taking 	the 	break, 	or 	perhaps
occasionally 	working 	through 	that 	break 	like 	Gibson 	did 	from 	time 	to 	time.
Determining whether breaks were taken (or not), and thus whether they were
properly offset (or not), will turn on when each Plaintiff said they were doing during
the breaks that were offset. Accordingly, the undersigned finds this information
would be better suited for Plaintiff depositions.
I. 	RFP No. 1 (Second Set)
For RFP No. 1 (Second Set), OTK raised several objections before giving a
responsive answer (with Bates-stamped page references) pertaining to Plaintiffs
Callier, Odom, and Favors, and then pointed Plaintiffs to where “[s]imilar data for
the approximately 116 opt-ins” could be located. (Doc. 139-2, PageID.1360-61). Most
of OTK’s objections to this request were boilerplate, lacked merit, and have effectively
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been withdrawn at this stage. In response to Plaintiffs’ motion, OTK states only as
follows with respect to this item:
In response to Request No. 1, OTK states, and will supplement its
response to state, that all responsive documents presently known by
OTK 	have 	been 	produced. 	OTK 	expects 	additional 	information 	to
become available after depositions of Plaintiffs are held.
(Doc. 145, PageID.1443).
The record does not indicate OTK has yet supplemented its response as agreed
to reflect that “all responsive documents presently known by OTK have been
produced.” (Id.). To the extent OTK’s maintains an objection based on the possibility
that information may “become available after depositions of Plaintiffs are held,” that
objection is OVERRULED (to the extent it even viable), as the undersigned agrees
with Plaintiffs’ position that nothing said by any of them during depositions will affect
what documents OTK currently has in its possession that are responsive to this
request. (See Doc. 148, PageID.2274).
Because OTK has effectively withdrawn its relevant objections and affirmed
that it has nothing further responsive to produce, Plaintiffs’ motion is DENIED as to
RFP No. 1 (Second Set). However, OTK is ORDERED to formally amend and/or
supplement its response to reflect that it has produced all documents in its possession
response to this request by no later than July 12, 2024. See S.D. Ala. CivLR 5(b).
J. RFPs No. 2, No. 3 & No. 4 (Second Set)
These items are related.
RFP NO. 2: For each Plaintiff produce the records required to be
maintained by 29 CFR Section 516.2(a)(6) since November 3, 2018
(except that for those Plaintiffs who were also Plaintiffs in the [Hornady]
case this request is limited to the period beginning November 21, 2021)
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RFP NO. 3: For each Plaintiff produce the “total hours worked each
workweek” records required to be maintained by 29 CFR Section
516.2(a)(7), or 516.2 (c) since November 3, 2018 (except that for those
Plaintiffs who were also Plaintiffs in the [Hornady] case this request is
limited to the period beginning November 21, 2021)
RFP NO. 4: For each Plaintiff produce the records required to be
maintained by 29 CFR Section 516.2(10) since November 3, 2018 (except
that for those Plaintiffs who were also Plaintiffs in the [Hornady] case
this request is limited to the period beginning November 21, 2021).
(Doc. 139-2, PageID.1361-64).
OTK’s 	objected 	to 	each 	as 	vague 	and 	ambiguous, 	unduly 	burdensome,
irrelevant and disproportionate (as to the opt-in Plaintiffs and the request for
information 	more 	than 	three 	years 	old), 	and 	“to 	the 	extent 	it 	misstates 	the
requirements of the referenced C.F.R. section[s].” (Id.). For No. 2 & No. 3, OTK also
asserted attorney-client privilege, work-product protection, and on the basis that it
sought “premature disclosure of expert testimony.” (Id.).
Plaintiffs’ motion broadly attacks some of these objections and then addresses
what they contend OTK is required to “maintain and preserve” under 29 C.F.R. §
516.2 but has not produced. (Doc. 139, PageID.1330-31). OTK’s position is that it has
made a fully responsive production with respect to each of these items. (Doc. 145,
PageID.1443; see Doc. 187, PageID.3408). Not only does it affirmatively state in its
opposition response that it “has produced what is in its possession,” but contends its
“records reflect the information required by the cited federal regulations,” and
proffers it is not required to create documents “in response to what Plaintiffs’
incorrectly believe the cited federal regulations require.” (Doc. 145, PageID.1443).
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OTK affirmed the same to the Court during the June 7 hearing. (See Doc. 189).
In relevant part, 29 C.F.R. § 516.2(a) provides that “[e]very employer shall
maintain and preserve payroll or other records containing the following information
and data…” and then proceeds to list the covered information. Plaintiffs’ motion
speaks of OTK’s records – and it’s FLSA obligations – as existing in a specific format.
But the regulations are silent in that respect – to the contrary, 29 C.F.R. § 516.1(a)
provides that “[n]o particular order or form of records is prescribed by the regulations
in this part.” Plaintiffs cite a myriad of cases which stand for the general proposition
that records must be “proper and accurate” in order to comply with the FLSA. E.g.,
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).
Whether “proper and accurate” (or not), OTK has affirmed that it has produced
all records responsive to these requests. (See Docs. 145, 187, 189). Accordingly,
Plaintiffs’ motion is DENIED as to RFPs No. 2-4 on the basis that OTK has affirmed
its 	production 	of 	all 	records 	responsive 	to 	these 	requests. 	However, 	OTK 	is
ORDERED to formally amend and/or supplement its response to reflect that it has
produced all documents in its possession response to this request by no later than
July 12, 2024. See S.D. Ala. CivLR 5(b).
VI. 	Conclusion
Upon consideration and for the reasons stated herein, Plaintiffs’ motion is
GRANTED in part and DENIED in part as set out above.
To the extent any party feels they may be entitled to an award of reasonable
expenses under Fed. R. Civ. P. 37(a)(5) in connection with the disposition of Plaintiffs’
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motion to compel (Doc. 139), that party must file and serve a motion for such
expenses, supported by adequate briefing and evidence showing both entitlement to
such expenses and the reasonableness of the amounts requested by no later than
July 19, 2024. Failure to file such a motion shall be deemed waiver of that party’s
the right to request such expenses in connection with the motion.
DONE and ORDERED this the 20th day of June 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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