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Hugler v. Maranto

United States District Court, W.D. Oklahoma

April 17, 2017

EDWARD C. HUGLER, Acting Secretary, United States Department of Labor, Plaintiff,
v.
MARGARET MARANTO, et al ., Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE

          Currently before the Court is Defendants’ First Motion to Compel Discovery [Doc. No. 24], which is fully briefed.[1] The Court heard oral arguments concerning multiple discovery matters on March 7, 2017, and ruled on most issues, but took the instant Motion under advisement. Upon consideration of the parties’ written submissions, the arguments of counsel, the case record, and governing law, the Court issues its decision.

         This case involves claims by the United States Department of Labor that Defendants Meers Store & Restaurant, Inc. and its manager, Margaret Maranto, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., by failing to pay statutory minimum wages to employees, failing to pay overtime compensation, failing to comply with child labor provisions, and failing to maintain required records of wages and hours. Defendants have issued interrogatories and requests for production of documents and, by their Motion, challenge Plaintiff’s objections, answers, or responses to certain items. An overarching issue is Plaintiff’s refusal to identify employees who participated in its investigation and employees who may testify as witnesses based on an informer’s or informant’s privilege. The Court begins by addressing this privilege and then turns to other claims of privilege and specific discovery requests.

         A. Informer’s Privilege

         It is well settled in the Tenth Circuit that the government is entitled to assert an informer’s privilege in a civil FLSA case. See Usery v. Ritter, 547 F.2d 528, 529 (10th Cir. 1977). This evidentiary privilege permits the government “to withhold from disclosure the identities of persons furnishing information of law violations to law enforcement officers.” Usery v. Local Union 720, 547 F.2d 525, 527 (10th Cir. 1977). It is a qualified privilege that requires a balancing of the government’s interest in protecting its sources against the defendant’s need for the information to prepare a defense. See Ritter, 547 F.2d at 531; Local Union 720, 547 F.2d at 528. During the discovery stage of litigation, the party seeking to overcome the privilege must show a substantial need for the identification of informants. See Local Union 720, 547 F.2d at 528; Ritter, 547 F.2d at 531; see also Brock v. Gingerbread House, Inc., 9072d 115, 116 (10th Cir. 1989): Brock v. R.J. Auto Parts & Serv., Inc., 864 F.2d 677, 678 (10th Cir. 1988).

         Employers attempting to discover the identities of cooperating employees “have the burden of showing a specific need for discovery which supersedes the need for an informer’s privilege.” Perez v. El Tequila, LLC, No. 12-CV-588-JED-PJC, 2014 WL 5341766, *5 (N.D. Okla. Oct. 20, 2014) (internal quotation omitted). In this case, Defendants have not articulated any specific need for the identities of employees who were interviewed by Plaintiff’s investigators. Further, Plaintiff’s counsel represents that during the informal conference required by LCvR37.1, the government agreed to produce redacted versions of the employees’ interview statements that omitted identifying information, and that the redacted statements were produced to Defendants’ counsel shortly before the government’s response brief was filed. See Pl.’s Res. Br. [Doc. No. 33] at 2-3. Defendants do not dispute this representation or explain why the redacted statements are insufficient to meet their discovery needs. Accordingly, the Court finds that Defendants have failed to overcome Plaintiff’s claim of privilege regarding the identities of interviewed employees.

         The case law is equally clear, however, that the informer’s privilege does not protect the identities of trial witnesses. At some point, usually at the final pretrial conference or “in connection with a pre-trial order, [the government] must list its witnesses” who will testify in its case in chief. See Local Union 720, 547 F.2d at 528; Gingerbread House, 907 F.2d at 117; R.J. Auto, 864 F.2d at 679. In this district, the identification of witnesses usually takes place during discovery through the disclosure of a final witness list, and a standard scheduling order expressly provides: “Except for good cause shown, no witness will be permitted to testify and no exhibit will be admitted in any party’s case in chief unless such witness or exhibit was included in the party’s filed witness or exhibit list.” See Scheduling Order [Doc. No. 15], at 1. In this case, the parties requested a standard scheduling order. See Joint Status Report & Discovery Plan [Doc. No. 12], ¶ 14. Plaintiff now seems to assert that it need not comply with the Scheduling Order due to the informer’s privilege but may wait and disclose its employee witnesses shortly before trial, presumably in the Final Pretrial Report that will be filed with other trial submissions. Defendants understandably take issue with the government’s decision to deviate from the Scheduling Order without leave of court, and to withhold the identities of its employee witnesses.

         The Court does not condone Plaintiff’s unilateral decision to disregard the Scheduling Order and refuse to disclose potential trial witnesses. By failing to make a timely disclosure, Plaintiff risks a ruling by the Court that employee witnesses will not be permitted to testify in Plaintiff’s case in chief. However, Defendant does not seek this sanction but instead seeks an order compelling Plaintiff to make a disclosure now. Because Plaintiff has not waived its informer’s privilege, the Court declines to issue such an order. The Court does direct that Plaintiff must disclose any potential employee witnesses, at the latest, when identifying its trial witnesses in the Final Pretrial Report. At that time, Defendants may move to depose or conduct discovery regarding any newly disclosed witnesses for whom more information is needed.[2]

         B. Other Privileges

         Defendants also assert that Plaintiff has wrongly refused to provide information and documents by claiming the deliberative process privilege. In response, Plaintiff has submitted copies of supplemental discovery responses provided to Defendants on January 19, 2017, and an amended index and privilege log for produced documents. Pl.’s Resp. Br., Ex. 3 [Doc. No. 33-3]. This submission shows that Plaintiff has withdrawn its deliberative-process objection to some requests and has withheld only a few documents from production based on this privilege. These documents consist of three reports, a transmittal sheet, and a computation summary; an internal memorandum referring the case for litigation was withheld based on this and attorney-client privileges; and a narrative report and addendum have been redacted based on this and other privileges. Defendants do not present any specific issue for decision with respect to these documents. Therefore, the Court cannot make a reasoned decision regarding the applicability of the deliberative process privilege, and declines to address this issue on the present record.[3]

         C. Specific Discovery Requests

         Defendants contend Plaintiff has failed to provide sufficient answers and document production regarding certain requests in Defendants’ Amended First Set of Interrogatories, Request for Admission, and Request for Production of Documents.[4] Defendants’ Motion is governed by Rule 26(b)(1), which authorizes the discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

         1. Document Requests No. 1 and No. 2

         Defendants asked Plaintiff to produce “diary sheets” prepared during the investigation and documents referred to therein. Plaintiff produced responsive documents, including the investigation file and a document containing case diary entries from which information protected by the informer’s privilege had been redacted.[5] Defendants do not articulate any specific reason why this ...


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