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Acosta v. Austin Electric Services LLC

United States District Court, D. Arizona

October 15, 2018

R Alexander Acosta, Plaintiff,
v.
Austin Electric Services LLC and Toby Thomas, Defendants.

          ORDER

          Honorable Roslyn O. Silver Senior United States District Judge.

         Plaintiff Secretary of Labor (“the Secretary”) alleges Defendants Austin Electric Services LLC and Toby Thomas, Austin Electric's President (collectively, “Defendants”), failed to pay employees overtime compensation and to keep employee records, in violation of the Fair Labor Standards Act (“FLSA”). In anticipation of the limited reopening of discovery, Defendants moved for Rule 37(c) sanctions to exclude 29 of the Secretary's trial witnesses and all damages calculations beyond July 2015. (Doc. 185.) For the foregoing reasons, Defendants' motion will be granted in part and denied in part.

         BACKGROUND

         The Secretary alleges Defendants violated the FLSA by failing to pay employees overtime compensation and failing to keep employee records. The case proceeded to discovery, which, except as discussed below, ended in October 2017. Trial is set to begin on January 15, 2019. (Doc. 172.)

         A key component of the Secretary's case is the testimony of informer witnesses- current and former employees of Defendants who were allegedly denied overtime compensation. Because the identities of these witnesses are protected by the government's informants privilege, the Court allowed the Secretary to withhold the identities of informer trial witnesses until shortly before trial. The Court ordered the Secretary to disclose the identities of its informer witnesses who will testify at trial-as well as any unredacted documents relating to those witnesses-by October 1, 2018. (Docs. 102, 172.)

         Following these disclosures, discovery is scheduled to reopen for 15 days, beginning October 15, 2018 and ending November 2, 2018. During this time, Defendants will have the opportunity to “interview and/or depose the Secretary's informer witnesses and other individuals who may be disclosed in the documents and information the Secretary produces.” (Doc. 172 at 20:14-16.)

         On October 3, 2018, after receiving the Secretary's disclosure of 40 witness names, Defendants filed a motion for Rule 37(c) sanctions. (Doc. 185.) Defendants argue the Secretary failed to disclose required information relating to the Secretary's informer witnesses and ask the Court to exclude 29 of the 40 witnesses. In addition, Defendants argue that damages calculations beyond July 2015 should be excluded due to untimely disclosure.

         The Court granted Defendants' request for expedited briefing, in consideration of depositions scheduled to begin on October 15. (Doc. 188.) The Secretary filed a response to Defendants' motion on October 11, (Doc. 189), and Defendants filed their reply on October 12. (Doc. 191.)

         I. Rule 37(c) Sanctions

         As an initial matter, Defendants' motion for Rule 37(c) sanctions does not violate meet-and-confer requirements regarding discovery disputes. Unlike Rule 37(a), Rule 37(c) does not require a certification that the “the movant has in good faith conferred or attempted to confer.” Fed.R.Civ.P. 37(a)(1). “Any local rule requiring a conference prior to the court's imposition of sanctions under Rule 37(c) would be inconsistent with Rule 37(c) and, therefore, unenforceable.” Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008), as amended (Sept. 16, 2008); see also Dayton Valley Inv'rs., LLC v. Union Pacific R.R. Co., No. 08-cv-00127, 2010 WL 3829219, at *2 (D. Nev. Sept. 24, 2010) (“Ultimately, this is a non-issue as personal consultation is not required prior to a motion for sanctions pursuant to Rule 37(c).”). Accordingly, the Court will not deny Defendants' motion on this basis.[1]

         II. The 29 Witnesses

         Defendants argue the Secretary violated Rule 26(a) and the Court's Orders by failing to disclose required information for all 40 witnesses. However, because the Secretary provided limited disclosures relating to 11 witnesses, [2] Defendants request the exclusion of only 29 of the 40 witnesses.

         According to Defendants, the Secretary failed to disclose the 29 witnesses' contact information and descriptions of the subject matter of each witness's anticipated testimony in violation of Rule 26(a). In addition, the Secretary failed to produce unredacted documents-including interview-related documents and statements from employees- relating to the 29 informer witnesses, as required by this Court's Orders. In support of their argument, Defendants point out the 29 witnesses “do not make a single appearance in the DOL's production of interview-related documents-no employee statements, no interview summaries, no interview notes, no notes of calls made to employees, no notes of calls from employees, and no notes of meetings with employees.” (Doc. 185 at 5:5- 8.) Pursuant to Rule 37(c), Defendants request the Court sanction the Secretary by excluding the 29 witnesses. Fed.R.Civ.P. 37(c) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”). Although Defendants did not cite to Rule 37(b), which allows for sanctions for a failure to comply with a court order, the Court notes it is applicable here. Fed.R.Civ.P. 37(b).

         The Secretary responds that 86 pages of documents that three informer witnesses had provided to the Secretary were produced, as well as an interview statement for one of the three witnesses. (Doc. 189.) For the remaining 26 witnesses, the Secretary states that no responsive documents exist because “[t]hese 26 witnesses did not provide any documents to the Secretary, nor did the Secretary previously redact documents about them solely on the basis of the Government Informants Privilege.” (Doc. 189 at 1:26- 28.) The Secretary explains meetings with many of these witnesses occurred “only recently ...


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