Halleen v. BELK, INC.

RESPONSE to Motion re Amended MOTION to Request A Status Conference

E.D. Tex.September 12, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION Hope Halleen and Donna Maner, individually and on behalf of all other similarly situated, Plaintiffs, v. BELK, INC., Defendant. Civil Action No. 4:16-cv-00055-ALM DEFENDANT’S RESPONSE TO PLAINTIFF’S SUR-REPLY TO DEFENDANT’S MOTION TO REQUEST A STATUS CONFERENCE Defendant, Belk, Inc. (“Defendant” or “Belk”), by and through its undersigned counsel respectfully submits this Response to Plaintiff’s Sur-Reply to Defendant’s Motion to Request a Status Conference. In support thereof, Defendant states as follows: 1. Defendant received Plaintiff’s sur-reply just now at 12:30 p.m. and Defendant has reasonable explanations for each of the issues raised by Plaintiffs. 2. Plaintiffs first raise the issue of the documents produced in advance of Discovery Opt-In Plaintiff Saundra Morris’ deposition. Defendant produced Opt-In Plaintiff Saundra Morris’ full e-mail box, as requested by Plaintiffs in their Request for Production No. 37, immediately upon its collection on August 28, 2018. Defendant provided Plaintiff with the documents it intended on using at Saundra Morris’ deposition. Plaintiffs stated that Defendant’s production was late, but pursuant to Dkt. No. 94, Defendants are to provide all materials to Plaintiffs at least 24 hours before a discovery Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 1 of 6 PageID #: 2273 2 opt-in deposition. That provision was created to address the rolling identification of discovery opt-ins’ and the need to confirm their commitment to be deposed before undertaking the labor and expense of locating and pulling responsive documents. Thus, Defendant is not engaging in the sharp practice that Plaintiffs allege. 3. Next, Plaintiffs allege that Defendant produced thousands of unresponsive and blank documents in an attempt to inflate the production numbers by Belk. Such allegation is wholly without merit. Plaintiffs’ Request for Production Nos. 37 and 38 request all emails to and from the discovery opt-in plaintiffs and named plaintiffs. Logos, signatures, disclaimers and blank pages are actually part of the email family and are responsive to RFP Nos. 37 and 38. The parties specifically discussed families during their August 22, 2018 meet and confer regarding the Court’s August 6, 2018 Order. The inclusion of families as part of the production of documents was memorialized in Defendant’s August 31, 2018 letter to Plaintiffs. Had Defendant removed such documents from the production, Plaintiffs would have noticed that attachments were missing and then questioned why Defendant removed them. Defendant has repeatedly recommended to Plaintiffs that they work with their ESI vendor to remove these pages, if they do not want to review them. 4. Along those same lines, Plaintiffs allege that Defendant produced tens of thousands of pages that consist of single words on a page in a vertical line or small columns of words in the center of pages. As we explained to Plaintiffs during our meet and confer on August 31, 2018 and in a letter to Plaintiffs yesterday, which is attached hereto as Exhibit 1, this is due to the sheer number of “reply to all” email chains, which are within the scope of your RFP Nos. 37 and 38, which seek all emails to and from the discovery opt-ins and emails to and from the general email addresses or regional email groups including the Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 2 of 6 PageID #: 2274 3 locations in which the discovery opt-ins worked. Because the discovery opt-ins are included on these email chains, they receive these emails. Every time someone “replies to all” in an email, the prior emails in the chain are moved further to the right. A production in a TIFF format, as ordered by this Court, cannot handle such a mass amount of replies, so we are left with a strip of letters such as in the exhibits attached to your email. 5. Plaintiffs then allege that Defendant still has not produced relevant data, custodians, and additional documents relating to the FLSA study that Defendant conducted. First, Plaintiffs have repeatedly contradicted themselves as it relates to the many custodians that were involved in this FLSA study. Plaintiffs first stated that the wanted “hit reports” from each custodian that was identified in this study, yet, most recently, on September 10, 2018 now stated that they did not want Defendant to send “hit reports” for each custodian. Instead, Plaintiffs now request that we contact them prior to producing any ESI relating to this study. Additionally, Defendant recently identified a SharePoint team site entitled “FLSA Core Team” which contains approximately 550 documents. Defendant is currently reviewing these documents and will produce them shortly. 6. Next Plaintiffs allege that Defendant improperly included thousands of calendar entries and cancelled calendar entries as part of its document production. In response to RFP Nos. 37 and 38 Defendant produced custodian mailboxes as they are kept in the normal course of business. Calendar and meeting entries are part of the mailbox. When the parties spoke on August 22, Plaintiffs were clear that they wanted us to take a random sample of 10% of the mailbox. Defendant can remove calendar and meeting entries from its productions going forward. As for productions already made, Plaintiffs’ ESI vendor can simply remove those documents and easily address this for you. Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 3 of 6 PageID #: 2275 4 7. Finally, Plaintiffs’ allege that Defense counsel is using the discovery order to pressure Plaintiffs into taking court-ordered depositions. As soon as Defendant collected emails for the discovery opt-in Plaintiffs, it immediately produces those documents and emails. Plaintiffs specifically asked Defendant during the parties August 31, 2018 meet and confer to stop producing discovery opt- in emails until running search terms, which Plaintiffs have refused to provide. Plaintiffs have been anything but reliable in attempting to schedule the twenty-five court-ordered depositions of Opt-In Discovery Plaintiffs. For example, when attempting to schedule the deposition of opt-in discovery plaintiff Saundra Morris, Plaintiffs claimed that Ms. Morris was working more than sixty (60) hours that week and would be unable to sit for her deposition, despite having two weeks’ notice. Defendant later found out, through Ms. Morris’ Store Manager, that Ms. Morris was not actually working 60 hours that week and, in fact, was taking multiple days off prior to her deposition. Despite having this knowledge, Defendant agreed to reschedule Ms. Morris’ deposition for September 11, 2018. 8. Defendant’s efforts are a direct result of Plaintiffs discovery requests that they have issued and have refused to modify. Defendant’s compliance with Plaintiffs’ discovery requests and this Court’s August 6, 2018 Order should not preclude it from moving for decertification. Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 4 of 6 PageID #: 2276 5 Dated September 12, 2018 Respectfully submitted, /s/ John A. Ybarra John A. Ybarra Amy Ramsey Kathleen A. Barrett Matthew J. Ruza Admitted Pro Hac Vice LITTLER MENDELSON, P.C. A Professional Corporation 321 N. Clark Street, Suite 1000 Chicago, Illinois 60654 312.372.5520 (Telephone) 312.372.7880 (Telecopier) jybarra@littler.com aramsey@littler.com kabarrett@littler.com mruza@littler.com Kimberly R. Miers Texas State Bar No. 24041482 LITTLER MENDELSON, P.C. A Professional Corporation 100 Congress Avenue, Suite 1400 Austin, Texas 78701 512.982.7250 512.982.7248 (Fax) kmiers@littler.com ATTORNEYS FOR DEFENDANT BELK, INC. Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 5 of 6 PageID #: 2277 6 CERTIFICATE OF SERVICE I, John A. Ybarra, an attorney, certify that, on September 12, 2018, I filed the foregoing document with the clerk of the court for the United States District Court for the Eastern District of Texas, using the electronic case filing system of the court and that I caused a copy of the foregoing to be served upon the attorneys of record listed below via U.S. Mail on August 31, 2018: Marc S. Hepworth Rebecca S. Predovan Charles Gershbaum David A. Roth Hepworth Gershbaum & Roth, PLLC 192 Lexington Avenue, Suite 802 New York, NY 10016 Telephone: 212.545.1199 Facsimile: 212.532.3801 rpredovan@hgrlawyers.com cgershbaum@hgrlawyers.com droth@hgrlawyers.com mhepworth@hgrlawyers.com Attorneys for Plaintiffs Hope Halleen and Donna Maner Gregg I. Shavitz Logan A. Pardell Paolo C. Meireles Alan Luis Quiles Shavitz Law Group, PA 1515 S. Federal Highway, Suite 404 Boca Raton, FL 33432 Telephone: 561.447.8888 Facsimile: 561.447-8831 gshavitz@shavitzlaw.com lpardell@shavitzlaw.com pmeireles@shavitzlaw.com aquiles@shavitzlaw.com Attorneys for Plaintiffs Hope Halleen and Donna Maner /s/ John A. Ybarra John A. Ybarra Firmwide:157005839.1 082885.1012 Case 4:16-cv-00055-ALM Document 164 Filed 09/12/18 Page 6 of 6 PageID #: 2278