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Villareal v. El Chile

March 1, 2010


The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown


At a hearing, Plaintiffs' Motion to Compel Defendants to Supplement Written Discovery, and to Answer Plaintiffs' Second Set of Interrogatories Nos. 1 and 3 ("Pls.' Mot. Compel") [dkt 148] was granted in part and denied in part, and Plaintiffs' Emergency Motion for Protective Order and for An Award of Attorneys' Fees and Costs ("Pls.' Prot. Order Mot.") [dkt 150] was granted in substantive part.*fn1 [Dkt. 159.] Because defendants' responses to the motions raised issues regarding the relationship between Rules 26(e) and 33(b) of the Federal Rules of Civil Procedure, and regarding the discoverability of plaintiffs' immigration status in this Fair Labor Standards Act case, this opinion is issued to set out the basis for those rulings.


This case involves a class claim for overtime pay under the Illinois Minimum Wage Law ("IMWL"), and individual claims for minimum wage pay under the IMWL and overtime pay under the federal Fair Labor Standards Act ("FLSA"). (Third Am. Compl.) [Dkt. 43.] Discovery has proceeded over two years and is drawing to a close. After unsuccessful efforts pursuant to Northern District of Illinois Local Rule 37.2 to resolve disputes regarding defendants' responses to Plaintiffs' Second Set of Interrogatories, plaintiffs moved to compel defendants' responses to two of the interrogatories.*fn2 (Pls.' Mot. Compel.) Plaintiffs also moved for a protective order barring defendants from taking any discovery about plaintiffs' immigration status. (Pls.' Prot. Order Mot.) Defendants responded to both motions. [Dkt 153, 155.] Plaintiffs replied [dkt 154, 156], oral argument on the motions was heard, and rulings were made in open court. This opinion sets out the reasons for those rulings.


I. Plaintiffs' Motion to Compel

Plaintiffs' Interrogatory No. 1 asked the defendants:

1. Do you contend that during the three years prior to the Complaint being filed in this case to the present, each of the following Defendants:

a. El Chile, Inc.,

b. Caleta, Inc.,

c. Caletilla, Inc.,

d. and Roqueta Inc.

maintained timekeeping records that complied with the Fair Labor Standards Act and the Illinois Minimum Wage Law. See 29 C.F.R. § 516.2 and 56 Ill. Admin. Code 210.700(f), respectively. If the answer to this interrogatory is yes, identify all such documents and state the time period that such compliant documents for each Defendant. [sic] (Pls.' Mot. Compel, Ex. B at 1.) Subject to their objections, defendants responded to the interrogatory as follows:

Defendants aver that such records were maintained at Roqueta, Inc. headquarters located at 2908 West 59th Street, Chicago, Illinois. These records were maintained by Rosa Camarena and Adela Salazar in the basement of that building and the basement of 2917 West 59th Street, both of which flooded in early 2004. Records maintained since the flood are in the possession of prior defense counsel. Defendants are unable to further identify the documents as prior defense counsel continues to withhold his file. Defendants have previously produced numerous timecards, books and other timekeeping records. (Id. at 1-2.)

Plaintiffs complained that defendants' answer failed to state whether defendants contend that records were kept in compliance with the FLSA and IMWL. Plaintiffs also complained that defendants' failure to identify any documents amounted to a non-response. (Pls.' Mot. Compel at 2, 7.) In the pre-motion communication between the parties' counsel, defendants' attorney responded to plaintiffs' complaints with an e-mail, stating in pertinent part, "Based upon the information available to my corporate clients and our law firm, defendants do contend that they maintained documents in accordance with the recordkeeping requirements of the FLSA and the IMWL . . . ." (Defs.' Resp. Mot. Compel, Ex. 1.) Plaintiffs again requested a further response. (Pls.' Mot. Compel, Ex. D.) Defendants' counsel then sent another e-mail, stating in pertinent part:

The only payroll records pursuant to statute were the notebook (the original of which will be brought today to the deposition, and copies of which were previously produced) and the time cards already produced. My client will swear to that today and, if you want, we can put that in a written form. By the way it is one of your deposition topics." (Defs.' Resp. Mot. Compel, Ex. 2.)

Plaintiffs argue on their motion that they are entitled to an interrogatory response specifically stating defendants' contention and identifying which documents defendants assert were kept in compliance with the statutes. (Pls.' Mot. Compel at 7-8.) Defendants, on the other hand, assert that their counsel's e-mails properly supplemented their response to Interrogatory No. 1 and that no further supplementation is necessary. (Defs.' Resp. Mot. Compel at 2.)

In their Second Set of Interrogatories, plaintiffs also sought to explore defendants' answer to Plaintiffs' Third Amended Complaint, in which defendants admitted, "The corporate Defendants, respectively, admit that certain of the Plaintiffs, respectively, were not paid by certain of the corporate Defendants, respectively, overtime pay at the rate of one and one half times their regular rate of pay for work in excess of 40 hours per week." (Answer to Third Am. Compl. ΒΆ 38.) [Dkt 69.] That answer was essentially repeated in defendants' response to Paragraph 41 of the ...

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