Harper et al v. FirstKey Homes LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TAKI HARPER, et al., 	§
Plaintiffs, 	§
§
v. 	§ 	No. 3:25-CV-642-L-BW
§
FIRSTKEY HOMES, LLC, 	§
Defendant. 	§ 	Referred to U.S. Magistrate Judge1
MEMORANDUM OPINION AND ORDER
Defendant FirstKey Homes, LLC filed a Motion to Compel Discovery from
Plaintiffs and a supporting appendix on December 15, 2025. (Dkt. No. 59 (“Mot.”),
60 (“App.”).)2 Plaintiff filed a response on January 2, 2026 (Dkt. No. 64 (“Resp.”)),
and Defendant filed a reply on January 6, 2026 (Dkt. No. 65 (“Reply”)). After
considering the briefs and applicable law, the Court grants the motion in part.
I. BACKGROUND
This collective action has been brought by move-in coordinators alleging that
FirstKey willfully failed to pay them at an overtime rate for hours worked more than
1 United States District Judge Sam A. Lindsay has referred this action to the
undersigned magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b).
(Dkt. No. 32.)
2 Defendant’s motion does not comply with court briefing rules. First, it does not
contain a table of contents and table of authorities despite exceeding ten pages. See N.D.
Tex. L. Civ. R. 7.2(d). Additionally, although Defendant complied with the requirement to
prepare a sequentially paginated appendix, the parties did not use that pagination and
instead cited its appendix by exhibit number. See N.D. Tex. L. Civ. R. 7.2(e). Going
forward, the parties are encouraged to comply with local rules regarding briefs because they
are intended to—and do—assist the Court in its efficient consideration and resolution of
motions.
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 1 of 10 PageID <pageID>

2
40 hours per week and failing to maintain accurate records. (See Dkt. No. 1 at ¶¶ 6.2-
6.10.) The parties are engaged in pre-notice discovery in contemplation of a motion
authorizing notice to similarly situated move-in coordinators, as provided in Swales v.
KLLM Transport Services, L.L.C., 985 F.3d 430 (5th Cir. 2021).
By its motion, Defendant requests that the Court order Plaintiffs to respond to
several discovery items:
Interrogatory No. 1: Identify and describe in detail each instance that
you contend you performed overtime work for FirstKey and were not
properly paid overtime compensation, including the date, the specific
hours worked, and the amount of compensation you believe you are
owed.
Interrogatory No. 3: Identify all communications (whether written or
verbal) you had with any current or former employee of FirstKey
regarding FirstKey’s alleged failure to properly compensate you for
overtime or regarding alleged off-the-clock claims against FirstKey.
Interrogatory No. 4: Identify and describe in detail all complaints you
made to any person or entity regarding your compensation at FirstKey.
Interrogatory No. 5: Identify any person who instructed or encouraged
you to inaccurately log or record your hours worked at FirstKey or who
revised or modified your timekeeping record to inaccurately reflect your
hours worked at FirstKey.
Interrogatory No. 6: Identify and describe in detail all positions
(including jobs, employment, contracts, consulting roles, internships, or
fellowships) for which you were paid compensation by any employer,
person or entity other than FirstKey while you were employed by
FirstKey, including the employer, person or entity compensated that
compensated you and the dates during which you held the position.
Interrogatory No. 7: Identify each mobile telephone number you had or
used at any point during your employment with FirstKey. For each,
specify the mobile telephone number, the mobile service provider (e.g.,
Verizon, AT&T, T-Mobile, etc.), and the dates you used each number.
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 2 of 10 PageID <pageID>

3
Request for Production No. 1: All documents relating to your
employment with FirstKey, including any onboarding and offboarding
documents, performance reviews, complaints or disciplinary records,
and your federal and state tax returns and W-2s for each year that you
were employed by FirstKey.
Request for Production No. 5: Complete phone records, including but
not limited to call and text message logs, for every mobile phone
number you identified in response to Interrogatory No. 6 during the
time you were employed by FirstKey.
Request for Production No. 9: All documents relating to your allegation
that “Defendant’s policy and/or practice was to not pay Plaintiffs and
all others similarly situated overtime compensation for all hours worked
over 40 in a week as required by the FLSA,” as alleged in Paragraph 4.7
of your Complaint.
Request for Production No. 10: All documents relating to your
allegation that “Defendant knowingly failed to pay overtime and/or
minimum wages to Plaintiffs and all others similarly situated in
violation of the FLSA,” as alleged in Paragraph . . . 4.11 of your
Complaint.
II. LEGAL STANDARDS
Rule 26 provides for the discovery of “any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case,
considering the 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 in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.
Civ. P. 26(b)(1). A party may, under Rule 34, request documents and electronically
stored information. See Fed. R. Civ. P. 34(a)(1). And, if a party responding to such
request “fails to produce documents or fails to respond that inspection will be
permitted . . . as requested under Rule 34,” Rule 37 authorizes the requesting party
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 3 of 10 PageID <pageID>

4
to file a motion seeking an order compelling the withholding party to produce the
requested discovery. See Fed. R. Civ. P. 37(a)(3)(B)(iv).
In Swales, the Fifth Circuit addressed proper procedures for FLSA collective
actions. In addressing the scope of preliminary discovery, it instructed that
a district court should identify, at the outset of the case, what facts and
legal considerations will be material to determining whether a group of
“employees” is “similarly situated.” And then it should authorize
preliminary discovery accordingly. The amount of discovery necessary
to make that determination will vary case by case, but the initial
determination must be made, and as early as possible. In other words,
the district court . . . should dictate the amount of discovery needed to
determine if and when to send notice to potential opt-in plaintiffs.
Swales, 985 F.3d at 441. District courts have considerable discretion in this regard.
See id. at 443. The burden is on plaintiffs to show that members of the putative
collective action are similarly situated. Id. at 443 n.65. “To determine whether a
plaintiff has met her burden of showing that the putative collective-action members
are similarly situated, courts consider three factors: (1) the disparate factual and
employment settings of the proposed plaintiffs; (2) the various defenses available to
the defendant which appear to be individual to each proposed plaintiff; and
(3) fairness and procedural considerations.” Torres v. Chambers Protective Servs., Inc.,
No. 5:20-CV-212-H, 2021 WL 3419705, at *3 (N.D. Tex. Aug. 5, 2021) (footnote
omitted).
III. DISCUSSION
The crux of the dispute between the parties in the instant discovery motion
concerns whether the requested discovery is appropriate during this pre-notice phase
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 4 of 10 PageID <pageID>

5
of the case. Plaintiffs argue that each one of the discovery requests is unsuitable for
pre-notice discovery under Swales and posits that some of them are objectionable for
other reasons too. (See Resp. at 6.) The Court first addresses Plaintiffs’ assertion that
Defendant’s discovery oversteps the bounds articulated by Swales.
As the parties acknowledge, the Court must draw a border around the facts
and legal considerations relevant to determining whether a group of employees is
“similarly situated” and then authorize preliminary discovery of those issues. See
Swales, 985 F.3d at 441. That line is not static—it varies based on the particular facts
of a case. See id.
Plaintiffs’ current request that the Court draw a narrow boundary around pre-
notice discovery stands in stark contrast to their prior position advocating for an
order compelling Defendant to respond to their discovery. (See Dkt. No. 39.) When
pressed about Plaintiffs’ own requests that Defendant provide every email, instant
message, and record of app usage, Plaintiffs assured the Court that the information
was more than merely appropriate or relevant—they described the discovery sought
as “essential” (Dkt. No. 46 at 14) and “critical” (see Dkt. No. 54 (Rec. at 9:05:55-60))
at this stage of the proceedings. Even if Swales were to justify a tighter circle than
what the Court has previously authorized in this case, the breadth has been set on
Plaintiffs’ request, and their attempt to now severely curtail pre-notification discovery
is not well received.
In the first category of information sought by the motion, Defendant asserts
that Plaintiffs should be required to fully answer Interrogatory No. 1 requesting the
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 5 of 10 PageID <pageID>

6
identification and details of any instances of unpaid overtime work. (Mot. at 7.)
Plaintiffs’ did not respond to the interrogatory and stated instead that each one
“routinely worked off-the-clock for FirstKey and was not properly compensated for
work she performed before clocking in, after clocking out, during uncompensated
meal periods, and on scheduled days off.” (Resp. at 6.) Plaintiffs assert that their
response is sufficient at this stage, as they are not required to provide a full
accounting of their unpaid overtime hours and any variation among them concerning
the number of hours is simply a difference in damages that is irrelevant to
“certification” of the collective action. (See id. at 6-10.) Whether Plaintiffs engaged
in unpaid overtime work at all is relevant to the question of similarity, and their
general response that they did so “routinely” is insufficient. Plaintiffs are ordered to
fully respond to Interrogatory No. 1.
Defendant seeks an order compelling Plaintiffs to fully respond to
interrogatories seeking information about Plaintiffs’ discussions with FirstKey
employees concerning unpaid work performed or compensation. One opt-in Plaintiff
responded to Interrogatory No. 4 by identifying a FirstKey employee to whom she
complained regarding unpaid off-the-clock work performed. All others stated in
response to Interrogatory Nos. 3 and 4 that they have “not discussed this lawsuit”
with any FirstKey employee outside the presence of Plaintiff’s counsel. (Resp. at
11.) With the one exception noted, Plaintiffs’ answers are not responsive to the
questions posed. Regardless whether the Court ultimately determines that
differences between Plaintiffs with respect to notification of their claims against
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 6 of 10 PageID <pageID>

7
FirstKey is relevant to assessment of similarity, the Court concludes that the
requested discovery is appropriate at this stage of this case. Plaintiffs are ordered to
fully respond to Interrogatory Nos. 3 and 4.
Defendant next seeks an order compelling Plaintiffs to fully respond to
Interrogatory No. 5, which seeks the identity of FirstKey employees who instructed
or encouraged them to keep inaccurate time records or modified time records to
make them inaccurate. Plaintiffs responded that it was “general knowledge
throughout the company” that the company required move-in coordinators to work
unpaid overtime. (Resp. at 14.) Plaintiffs’ answer is not responsive to the
interrogatory, but they assert that the requested discovery is irrelevant to the question
of similarity. The Court disagrees, particularly in light of the discovery allowed in
this case, and orders Plaintiffs to fully respond to Interrogatory No. 5.
Defendant next asks the Court to require Plaintiffs to provide responses to
discovery seeking information about other jobs held while employed at FirstKey.
Interrogatory No. 6 seeks information about each job held during employment at
FirstKey. And included within Request for Production No. 1 is a solicitation for all
federal and state tax returns and W-2s for the years in which a plaintiff was
employed by FirstKey. FirstKey reasons that such information is relevant because
performing work for other employers makes it less likely that a plaintiff would be
also performing unpaid overtime work for FirstKey. (Mot. at 7-8.) Plaintiffs assert
that the information sought is not appropriate pre-notice and, additionally, that the
production of tax returns is generally irrelevant or not supported by a compelling
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 7 of 10 PageID <pageID>

8
need. (Resp. at 16-20.) The Court disagrees that the information sought is irrelevant
to the claims asserted, see Areizaga v. ADW Corp., 314 F.R.D. 428, 438 (N.D. Tex.
2016), and concludes that the requested discovery may be appropriate at this stage of
proceedings in this case. As to federal and state tax returns, however, the Court
concludes that the requested information might reveal the value of any work
performed for other employers but would not be highly probative of the volume of
work performed. Cf. Roytlender v. D. Malek Realty, LLC, No. 21-CV-52 (MKB)
(JMW), 2022 WL 5245584, at *6 (E.D.N.Y. Oct. 6, 2022) (“Defendants argue that
Plaintiff’s tax returns are relevant because if Plaintiff performed substantial work for
S&N and M&F while employed for Defendants such evidence would make
Plaintiff’s claim that she worked numerous overtime hours for Defendants less
probable. The Court does not agree. The information contained in Plaintiffs’ tax
returns will not show the amount of hours she allegedly worked for either company.”
(citation omitted)). Plaintiffs are ordered to respond fully to Interrogatory No. 6, but
Defendant’s motion is denied as to Request for Production No. 1 seeking tax returns
without prejudice to reconsidering it on full merits discovery.
Defendant seeks through Interrogatory No. 7 and Request for Production No.
5 information about Plaintiffs’ cell phones used while employed at FirstKey and
“[c]omplete” records for those phones. Plaintiffs objected to the interrogatory on the
basis that it is “harassing” and irrelevant, violates the plaintiff’s privacy, constitutes a
“fishing expedition,” overbreadth, and request information equally available to
Defendant. (See, e.g., App. 33.) They objected to the request for production to the
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 8 of 10 PageID <pageID>

9
extent it sought privileged information and on the basis that it sought private
information, undue burden, and overbreadth. (See id. 363-64.)
Defendant contends that this information is relevant to the extent call and text
activity would disprove that a plaintiff was engaged in uncompensated overtime
work for FirstKey. Plaintiffs contend that the information is not discoverable even in
“full-blown” merits discovery because it invades their privacy. (Resp. at 21.)
Defendant’s cited authority, Radford v. Pevator Companies, Ltd., No. H-17-3381, 2018
WL 11662360 (S.D. Tex. Aug. 13, 2018), and the cases relied upon therein are
helpful in this context. There, Judge Rosenthal required plaintiffs asserting similar
claims to provide three months of phone records (selected by the defendant) from
each year in which the plaintiffs asserted they worked unpaid overtime. Id. at *3.
Based on the reasoning of Radford, the Court orders Plaintiffs to fully respond to
Interrogatory No. 7 and, in response to Request for Production No. 5, produce three
months of records showing the time, date, and duration of calls and text messages for
each phone number identified for each year in which the plaintiff asserts a claim of
unpaid overtime or off-the-clock work performed. Defendant may select the months.
Finally, Defendant requests that Plaintiffs be ordered to fully respond to
Request for Production Nos. 9 and 10, which respectively seek documents
concerning a FirstKey policy to not pay for overtime worked in violation of the
FLSA and about its awareness that it did so. Plaintiffs asserted boilerplate objections
to these requests on the basis of privilege, irrelevance, undue burden, overbreadth,
and equal availability to the Defendant. (App. 366.) In their response to the motion
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 9 of 10 PageID <pageID>

10
to compel, however, Plaintiffs have not addressed Defendant’s motion as to these
requests and, therefore, have waived grounds for opposition. See Samsung Elecs.
America, Inc. v. Yang Kun Chung, 321 F.R.D. 250, 284 (N.D. Tex. 2017) (“A party
who has objected to a discovery request then must, in response to a Rule 37(a)
motion to compel, urge and argue in support of its objection to an interrogatory or
request, and, if it does not, it waives the objection.”). Plaintiffs are ordered to fully
respond to Request for Production Nos. 9 and 10.
IV. CONCLUSION
Defendant’s motion to compel (Dkt. No. 59) is GRANTED in part. No later
than 21 days from this date, Plaintiffs must fully respond to Interrogatories Nos. 1, 3,
4, 5, 6, and 7 and Requests for Production Nos. 5 (as limited herein), 9, and 10.
Defendant’s motion is DENIED in all other respects.
SO ORDERED on January 15, 2026.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
Case 3:25-cv-00642-L-BW Document 66 Filed 01/15/26 Page 10 of 10 PageID <pageID>