The opinion of the court was delivered by: Michael T. Mason United States Magistrate Judge
Mag. Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Before the Court is plaintiffs' motion to suspend defendants' pursuit of discovery or, in the alternative, to restrict defendants' communications with putative class members . Plaintiffs initially filed the motion on an emergency basis. However, in order to allow the parties time to fully brief the issue, defendants voluntarily suspended the employee interviews that form the basis of plaintiffs' request for emergency relief pending a ruling by this Court . For the reasons stated below, plaintiffs' motion is granted in part and denied in part and defendants are granted leave to continue interviewing the employees subject to the conditions set forth below.
Plaintiffs filed the underlying case on January 11, 2007, alleging that defendants unfairly and unlawfully deducted amounts from their employees' wages for meal breaks. Along with the initial complaint, plaintiffs filed a motion for class certification without a supporting brief. On August 29, 2007, the district court denied plaintiffs' motion for class certification without prejudice. On December 12, 2008, plaintiffs filed an amended motion for class certification, and requested that the district court enter and continue the motion generally.
In the present motion to suspend discovery, plaintiffs allege that defendants own 198 stores, each of which employs between 40 and 60 employees. Accordingly, defendants employ more than 9,900 people (collectively the "Guitar Center Employees"). The Guitar Center Employees are putative class members. On October 27, 2008, plaintiffs' counsel learned "from plaintiffs and clients" that defense counsel had begun interviewing the Guitar Center Employees. Plaintiffs allege that the interviews are improper ex parte communications and ask this Court to prohibit defendants from interviewing the employees.
Defendants claim that the purpose of the interviews is to investigate the facts alleged in plaintiffs' complaint in preparation for mediation. It is undisputed that a primary issue in this case is whether the Guitar Center Employees took breaks or worked during breaks. Defendants allege that the facts related to this issue cannot be discerned from time or payroll records, but only through anecdotal information received from the employees. Defendants further claim that the information is needed to evaluate the potential settlement value of this case.
Based on the present record, this Court cannot determine how many Guitar Center Employees defendants' counsel spoke with before voluntarily suspending the interviews on October 29, 2008. The affidavits from the attorneys who conducted the interviews (the "Attorney Affidavits"), attached as an exhibit to defendants' response, aver that the interviews took place on October 27 and/or 28, 2008. Defendants rely on the Attorney Affidavits to show that the interviews took place on a voluntary basis, and only outside counsel and the employee were present during each interview.
The Attorney Affidavits state that before beginning an interview, the attorneys read a statement titled "Who We Are and the Purpose of the Interview" (the "Statement"). The Statement informs Guitar Center Employees that the attorney conducting the interview represents the defendants in a lawsuit filed by three former employees that is "framed as a potential class action." It states that the attorney is conducting the interview in order to gather information regarding "the meal break habits of hourly employees." As set forth in the Statement, the attorney asks each employee if they are "currently represented by an attorney in this litigation? If so, [the attorney] will end the interview at this time.... If not, [he/she] will proceed."
The Statement then informs Guitar Center Employees that the "purpose of the interview is to gather as much information as possible to help Guitar Center evaluate and defend this case" and the information provided "may be used in connection with this litigation, but [the] responses will not be used for performance evaluation purposes." The Statement also informs employees that the attorney "may prepare a written statement, called a'declaration'... [and] ask [the employee] to sign the declaration." Finally, the Statement informs the Guitar Center Employees of a potential conflict of interest:
Before we proceed, we want to make sure that you understand that we represent Guitar Center, Inc., who is the defendant in this lawsuit and we do not represent you individually. You are a potential member of this class, and [as] such, your interests could be adverse to Guitar Center's interests. You have the right to retain your own attorney before deciding whether to continue.
We also want to make sure you understand that your participation in this interview is completely voluntary. There is no benefit to you for participating and no action will be taken against you if you decline to participate.
The Attorney Affidavits state that the attorneys read the entire Statement aloud to each Guitar Center Employee before ...