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MCLAUGHLIN v. LUNDE TRUCK SALES

April 14, 1989

ANN McLAUGHLIN, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
LUNDE TRUCK SALES, INC., LUNDE LEASING, INC., corporations, and RICHARD LUNDE, an individual, Defendants



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE.

 This action comes before the court on the defendants LUNDE TRUCK SALES, INC., LUNDE LEASING, INC., and RICHARD LUNDE's motion to quash Attorney Daniel T. Williams, Jr.'s deposition subpoena. In particular, the defendants request that paragraphs 1, 2, 3, and 4 of that portion of the deposition subpoena entitled "Documents to be Produced" be quashed. For reasons set forth below, the court denies the defendant's motion to quash the requested production of documents.

 BACKGROUND

 The court will attempt to quickly review the events leading up to the instant motion. In September of 1986, pursuant to § 17 of the Fair Labor Standards Act, hereinafter referred to as "FLSA" or "Act", the Secretary of Labor brought suit to enjoin and restrain the defendants from violating §§ 6, 7, 11, 15(a)(2) and 15(a)(5) of the Act. Specifically, the plaintiff charges that the defendants have repeatedly violated the provisions of § 7 of the Act by paying employee wages at rates less than $ 3.35 per hour. The plaintiff additionally charges the defendants with violating § 7 and § 15(a)(2) of the Act for failing to pay overtime wages to employees. The plaintiff also asserts that the defendants have failed to keep and preserve adequate and accurate records of employees and their wages and hours and other conditions and practices of employment. Finally, the plaintiffs charge that the defendants, during the period since January 1, 1984, have repeatedly violated and are willfully violating the provisions of the Act; therefore, the defendants have become liable for an equal additional amount of liquidated damages pursuant to § 16(c) of the Act. Each defendant separately answered the plaintiff's charges and included within each answer the following affirmative defense:

 
Defendant . . . has relied in good faith on the opinions of the Department of Labor and its representatives that said . . . wage payment practices were in compliance with the requirements of the Fair Labor Standards Act, as amended, 29 U.S.C. Section 201 et seq. and the plaintiff is estopped, accordingly, from claiming violations of the same.

 (Lunde Truck Sales's Answer, p. 5; Lunde Leasing's Answer, p. 5; Richard Lunde's Answer, p. 5) (emphasis added).

 Subsequent to the plaintiff's motion for summary judgment becoming fully briefed, the defendants asked for and were granted leave to file Attorney Daniel T. Williams's affidavit in opposition to the plaintiff's motion for summary judgment. In turn, the plaintiffs asked for and were granted leave to reopen discovery in order to depose Attorney Williams. The plaintiff subsequently issued a deposition subpoena to Mr. Williams included in which is the request for production of documents that is at issue today.

 DISCUSSION

 Ostensibly to counteract the plaintiff's charge of "willful" violations of the FSLA, the defendants filed Attorney Williams's affidavit. In Attorney Williams's affidavit, Mr. Williams reviews portions of the Department of Labor's ("DOL") investigation of Lunde Truck Sales's employee practices during the years 1975-1976. In particular, Mr. Williams said:

 
That the plaintiff, by and through its auditor, Timothy Tyzver, conducted an investigation of Lunde Truck Sales, Inc. with regard to overtime claims, and Lunde's exemptions under certain provisions of the wage and hour statute.
 
That the Tyzver audit initially alleged over-time (sic) wages due to six employees, irrespective of the location of their actual work place.
 
That the allegations raised by Tyzver concerning four of the six individuals concern the propriety of claiming exemptions for those individuals, based on job description and duties, and whether said individuals were exempt as mechanics.
 
That Lunde Truck Sales conceded that certain individuals were not mechanics within the meaning of that exemption, and paid overtime; Lunde maintained the claim of exemptions for certain management personnel ...

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