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Thompson v. Real Estate Mortgage Network, Inc.

United States District Court, D. New Jersey

March 28, 2017



          KEVIN MCNULTY. U.S.D.J.

         This matter comes before the Court on the objection of defendants to Magistrate Judge Hammer's October 21, 2016 Order (ECF Nos. 161, 162) ("Discovery Order") requiring them to produce to plaintiff, Thompson, "for the time period of March 16, 2008 to the present, the name, address, home telephone number, email address, job title[s], dates of employment, company name, and work location, of any and all underwriters, closers, and HUD reviewers in Georgia and New Jersey." The Discovery Order-routine in collective action cases brought under the Fair Labor Standards Act ("FLSA") 29 U.S. §§ 201-19-is manifestly appropriate. The appeal is DENIED.

         I. BACKGROUND

         I write for the parties and so assume familiarity with the various opinions and orders that have been issued in this case. (See, e.g., ECF Nos. 23-24, 44, 106, 152) I highlight here the facts and procedural history that are pertinent to the resolution of this appeal.

         This action, filed in March 2011, has a stop-and-start history. There have been two motions to dismiss (ECF. nos. 23, 24), a trip to the Third Circuit, Thompson v. Real Estate Mortgage Network, 748 F.3d 142 (3d Cir. 2014) (ECF No. 44), and two motions for judgment on pleadings (ECF Nos. 52, 127).

         Thompson, a former underwriter employed at Security Atlantic Mortgage Company, Inc., ("SAMC") and Real Estate Mortgage Network, Inc. ("REMC"), claims that SAMC and REMC have failed to compensate her for overtime work. Under the FLSA, Thompson may bring a collective action on behalf of "employees similarly situated." 29 U.S.C. § 216(b). To determine whether the members of the collective action are similarly situated to Thompson, a court will employ a two-stage certification process. Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013). The first step of that process, a motion for conditional certification, has yet to be filed.

         The issue presented here is this: Must the defendants turn over contact information about potential opt-ins in advance of conditional certification of the putative class? Following an oral argument held on October 21, 2016, Judge Hammer ruled that they must. See (ECF No. 160) To certify (or not) a proposed class, the Court will eventually have to decide "whether all the employees worked in the same department and location[, ]" "whether their claims are similar[, ]" and "whether the relief that they seek is similar." Judge Hammer therefore concluded that the requested information "easily fits within the ambit of discovery under Rule 26, " Fed.R.Civ.P. (Hrg. Tr. 31:6-13; 34:16-19).

         Defendants timely appealed the Discovery Order on November 4, 2016.


         The District Court will reverse a Magistrate Judge's decision on a non-dispositive motion only if it is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1)(A). This Court has frequently spoken of the discretion granted to the Magistrate Judge in non-dispositive matters. Where, as here, the appeal seeks review of a discovery dispute, an abuse of discretion standard is appropriate. See Cooper Hospital/Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998J; Deluccia v. City of Paterson, No. 09-703, 2012 WL 909548, at *1 (D.N.J. March 15, 2012). Abuse of discretion review, of course, may get us to much the same place: as a practical matter it incorporates clear-error review of factual issues and plenary review of legal questions. See Koon v. United States, 518 U.S. 81, 100 (1996).

         Defendants assert that the Order is clearly erroneous for five primary reasons: (1) the circumstances of this case are distinguishable from the facts presented in Capitani v. McDonald's Corp., C.A. No. 08-448, 2010 U.S. Dist. LEXIS 57873 (D. Del. June 11, 2010) and Stillman v. Staples, Inc., Civil Action No. 07-849, 2007 U.S. Dist. LEXIS 58873 (D.N.J. July 30, 2007), on which the Discovery Order relied; (2) Thompson has no need for the information; (3) equitable tolling issues do not require the information to be disclosed; (4) disclosure would violate the privacy rights of third parties; and (5) the Discovery Order is overbroad. I consider these reasons, but reject them.

         A. Capitani and Stillman Capitani and Stillman both stand for the proposition that pre-conditional certification disclosure of the "names, address, position, and title of employees with the same or similar job duties as the plaintiff" is permissible under the liberal relevancy standard of Rule 26. Stillman, at *4; Capitani, at * 10-11. As then-Magistrate Judge Patty Shwartz reasoned, "there is no basis to delay [disclosure of this information] until after a ruling on the collective action motion" because the information goes to "whether or not employees were impacted by a common policy" and allows the plaintiff to identify which employees are similarly situated. Stillman, *2-4. Citing to Stillman, Judge Farnan in Capitani likewise concluded that "a list containing the names and contact information of potential class members" is relevant to whether the defendant "engages in a policy of wrongly classifying" employees, and ordered the defendant to produce such information prior to conditional certification. Id. at*9-10.

         Defendants do not argue that Stillman or Capitani are contrary to some other controlling precedent.[1]Defendants instead stress that Stillman and Capitani courts ordered the production of only a "narrow" range of information for individuals with the same job title who suffered the same injury as the plaintiff.[2] That argument, however, begs a fundamental question: Are the members of the proposed class similarly situated to Thompson? Defendants are saying in effect that discovery is inappropriate now because (after discovery, presumably?) they will defeat a motion to certify a class later. Perhaps so, or perhaps not. Either way, I will not give what amounts to a preliminary, or even preemptive, ruling on the certification motions.[3]

         B. The Discovery is Superfluous Defendants next argue that Thompson doesn't need the names and other identifying information of potential opt-ins. Defendants say they have already produced other information that Thompson might use to determine whether potential opt-ins are similarly situated. But strict necessity is not the applicable legal standard.[4] In light of certification issues-e.g., "whether all the employees worked in the same department and location[, ]" "whether their claims are similar[, ]" and "whether the relief that they seek is similar"-Judge Hammer correctly ruled that the information requested was relevant, and indeed "classic document discovery" under Rule 26. (Hrg. Tr. 31:9-30; 33:14-15; 34:16-19) To resist turning over the information, defendants needed to show lack of relevancy or undue burden. See, e.g.; EEOC v. Princeton Healthcare Sys., Civ. Action No. 10-4126 2012 U.S. Dist. LEXIS 65115, at *54-55 (D.N.J. May ...

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