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Luna v. Kellogg Company

October 14, 2011


Name of Assigned Judge or Magistrate Judge Jeffrey T. Gilbert

Sitting Judge if Other than Assigned Judge



Plaintiff's Motion to Compel [28] is granted in part and denied in part for the reasons stated on the record during the hearing held on 10/13/11. (See details in Statement below.) Please note that the Court has reconsidered one aspect of its oral ruling concerning the disclosure of contact information for the individuals from whom Defendant has obtained written statements or declarations as disclosed on its privilege log. To the extent Plaintiff wants contact information for those people, he can include them in the list of up to 50 people Plaintiff will be allowed to designate from the list of all non-union, hourly production employees at Defendant's 31st Street Facility that Defendant will produce in response to Plaintiff's Interrogatory No. 7, as discussed more fully in the accompanying Statement. (To be clear, the written declarations or statements still do not have to be produced by Defendant at this time.) In all other respects, the Court's oral ruling on the record is consistent with this Order and the accompanying Statement. In light of the foregoing, the Court extends phase one discovery an additional two weeks to 12/14/11. Plaintiff shall file his motion for certification of a collective and/or class action on or before 1/20/12. (If the parties do not believe this is enough time either to complete phase one discovery or for the filing of a motion for certification of a collective and/or class action, they should jointly contact the Court's Courtroom Deputy and suggest a different date or dates.)

O[ For further details see text below.] Notices mailed by Judicial staff.



Plaintiff has moved to compel Defendant to produce a list of all hourly employees who work or worked at Defendant's 31st Street Facility, who were required to wear any work clothes or safety equipment while working, and/or whose time was subject to the Company's rounding policy(ies), as requested in Plaintiff's Interrogatory No. 7. Plaintiff also moved to compel Defendant to produce the written statements or declarations Defendant obtained from 19 of its employees. Defendant listed those documents on its privilege log as protected by the attorney-client and/or work product privilege. Plaintiff requested the statements in its Request For Production No. 21.

Employee List

Defendant contends that disclosure of employee contact information is premature, irrelevant and unduly burdensome in this initial stage of discovery leading up to Plaintiff's anticipated motion to certify a conditional collective action under Section 216(b) of the Fair Labor Standards Act and a class action for Plaintiff's state law claims under Rule 23 of the Federal Rules of Civil Procedure. Plaintiff contends that he is entitled to attempt to contact Defendant's current and former employees to develop information he may use in response to Defendant's anticipated arguments against certification. Although Plaintiff was employed at Defendant's 31st Street Facility for 13 years, he no longer works for Defendant. Plaintiff says he does not know the last names of many of the employees with whom he worked and is thus hampered in his ability to contact these employees without the contact list he seeks from Defendant.

As discussed during the hearing on October 13, 2011, the Court must balance Plaintiff's need for the employee contact information he is requesting during this initial stage of discovery in this collective and class action, the relevance of that information to the issues that will be presented in the motion for conditional certification of a 216(b) collective action and a Rule 23 class action, the privacy concerns of non-party current and former employees of Defendant, and the burden (however modest) on Defendant in gathering, reviewing and providing this information to Plaintiff before any class has been certified. The Court also must consider Plaintiff's request in the specific context of this case -- that is, a single plaintiff case with no opt-ins (as of yet) brought by Plaintiff, who worked as a mechanic at Defendant's 31st Street Facility, on his own behalf and on behalf of all other hourly, non-union production employees of Defendant when, among other things, Defendant already pays these employees for 15 minutes of donning and doffing time (albeit perhaps without distinction among individual employee circumstances or work spaces) and Defendant's rounding policy does not, at least at first blush, appear to distinguish between individual employees or classes of employees.

Balancing all of these concerns, the Court finds that Plaintiff has established that the employee contact information he seeks is relevant as it may lead to the discovery of evidence admissible on the issue of certification of a collective or class action. It appears from Defendant's answers to Interrogatories (and based upon defense counsel's statements at oral argument) that Defendant will argue in opposition to certification, among other things, that Plaintiff's claims do not arise from a common policy or question applicable to the entire proposed class and that Plaintiff's claims are not typical of the claims of potential class members. There does not appear to be any way for Plaintiff to obtain information that he needs to contact potential class members and potentially develop facts that could rebut Defendant's arguments against certification other than from employee contact information in Defendant's exclusive possession, custody and control.

By the same token, however, the Court needs to be cognizant that no class has yet been certified and that disclosure of what Defendant characterizes as "essentially a class list" to Plaintiff's counsel at this point could lead to inappropriate dissemination of a truncated and uncontrolled "class notice" before the Court has determined that class treatment is appropriate. Defendant also argues with some force that requiring Defendant to turn-over contact information for potential class members who are "similarly situated" to Plaintiff basically assumes that the Court has made ...

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