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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-CV-23074-BLOOM/OTAZO-REYES

OCTAVIO COLLADO,

For himself and all others

similarly situated,

Plaintiff,

vs.

450 NORTH RIVER DRIVE, LLC,

D/B/A KIKI ON THE RIVER, 

RJ RIVER, LLC, AND ROMAN JONES,

Defendants.

______________________________/

PLAINTIFF’S OBJECTION TO AND APPEAL OF ORDER

Plaintiff, Octavio Collado, through undersigned counsel, and pursuant to 28 U.S.C. § 

636(b)(1)(A) and S.D. Fla. Local Magistrate Judge Rule 4, objects to and appeals the Order entered 

by United States Magistrate Judge Alicia M. Otazo-Reyes at ECF No. 203 (the “Order”) and states 

as follows:

I. INTRODUCTION

Magistrate Judge Otazo-Reyes conducted a discovery hearing to entertain oral argument 

on Plaintiff’s Notice of Discovery Hearing related to the Interrogatories served by Defendant, 450 

North River Drive, LLC, and issued a written ruling thereon the same day. [ECF Nos. 200, 203.] 

Mr. Collado objects to and appeals to this Court the discovery Order as clearly erroneous and/or 

contrary to the law. (a) Mr. Collado requests that this Court reverse those portions of the Order 

requiring every person who joined this collective action lawsuit pursuant to 29 U.S.C. §216(b) as 

an Opt-In Plaintiff to provide verified Answers to Interrogatories, as explained below. (b) Mr. 

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Collado further requests for the Court to require Defendant, 450 North River Drive, LLC, to 

direct its currently employed personnel to produce the WhatsApp Chat information responsive to 

Requests Nos. 15 and 16.

II. LEGAL STANDARD

Mr. Collado seeks this Court’s review of the Order entered on September 6, 2023 [ECF 

No. 203] pursuant to 28 U.S.C. § 636(B)(1)(A) and S.D. Fla. L. Mag. R. 4(A). Under Local Rule 

4(a)(1), any party may appeal from a Magistrate Judge’s order determining a motion or matter 

under subsection 1(c) within fourteen (14) days after being served with the Magistrate Judge’s order. 

To appeal and/or object, the party must file with the Clerk of the Court and serve on all parties 

written objections that specifically set forth the order, or part thereof, appealed from; a concise 

statement of the alleged error in the Magistrate Judge’s ruling; and statutory, rule, or case authority, 

in support of the moving party’s position. Id.

Pursuant to this District's Local Magistrate Judge Rules, a district judge may overrule a 

magistrate judge's discovery ruling upon finding that it is “clearly erroneous or contrary to 

law.” S.D. Fla. L. Mag. R. 4(a)(1); see Fed. R. Civ. P. 72(a) (district judge “shall modify or 

set aside any portion of the magistrate's order found to be clearly erroneous or contrary to 

law”); Wausau Underwriters Ins. Co. v. Danfoss, LLC, 310 F.R.D. 689, 690 (S.D. Fla. 2015). A 

finding is clearly erroneous “ ‘when although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm conviction that a mistake has 

been committed.’ ” Malvaes v. Constellation Brands, Inc., No. 14-21302-civ, 2015 WL 

3863639, at *1 (S.D. Fla. June 22, 2015) (quoting Holton v. City of Thomasville Sch. Dist., 425 

F.3d 1325, 1350 (11th Cir. 2005)). “ ‘In the absence of a legal error, a district court may 

reverse only if there was an ‘abuse of discretion’ by the magistrate judge.’ ” Wausau 

Underwriters Ins. Co., 310 F.R.D. at 690 (quoting S.E.C. v. Merkin, 283 F.R.D. 699, 700 (S.D. 

Fla. 2012)).

Gonzalez Ramos v. U.S. Dep't of Agric., 2022 WL 15640187, at *2 (S.D. Fla. Oct. 28, 2022). 

III. RULINGS AT ISSUE

A. The Court required that each Opt-In Plaintiff (to include everyone who joins this case 

until the expiration of the Opt-In Period) to “FULLY RESPOND to Interrogatories Nos. 1, 5, and 

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6.” The Court further required, “As to Interrogatories Nos. 2, 3, and 4, the Opt-In Plaintiffs may 

answer those common interrogatories on a representative basis....” [ECF No. 203 at 2.]

A. The Court also refused to require that Defendant, 450 North River Drive, LLC, to 

produce WhatsApp Chats relating to materials relevant to the issues in this case. 

A. The Interrogatories To The Opt-In Plaintiffs

1. Requiring every Opt-In Plaintiff to answer interrogatories is erroneous.

The United States Supreme Court approved using representative testimony in FLSA 

collective actions. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,688 (1946).1 The Supreme 

Court noted that an employee who brings suit under the FLSA "has the burden of proving that he 

performed work for which he was not properly compensated. The remedial nature of this statute 

and the great public policy which it embodies, however, militate against making that burden an 

impossible burden for the employee." Id. at 687 (emphasis added). Therefore, "an employee has 

carried out his burden if he proves that he has in fact performed work for which he was improperly 

compensated and if he produces sufficient evidence to show the amount and extent of that work as 

a matter of just and reasonable inference. Id. at 686-687.

Since Mt. Clemens, federal courts have consistently granted back wages to non-testifying 

employees on the basis of representative testimony of other employees. See, Donovan v. New Floridian 

Hotel, Inc., 676 F.2d 468, 472 (11th Cir. 1982) (holding in an off-the-clock FLSA case that “it is 

clear that each employee need not testify in order to make out a prima facie case of the number of 

hours worked as a matter of ‘just and reasonable inference’ ”); Brennan v. General Motors Acceptance 

1 Superseded by Statute on other grounds, Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513 

(2014). 

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Corp., 482 F.2d 825, 829 (5th Cir. 1973); Brennan v. City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 

1973); Donovan v. Burger King Corp. 672 F.2d 221 (1st Cir. 1962). See also, e.g. (Grochowski v. Phoenix 

Construction, 318 F.3d 80, 88 (2d Cir.2003) (although “not all employees need testify in order to 

prove FLSA violations or recoup back-wages, the plaintiffs must present sufficient evidence for the 

jury to make a reasonable inference as to the number of hours worked by non-testifying 

employees.”); Reich v. Southern New England Telecomm. Corp., 121 F.3d 58, 67 (2d. Cir.1997) (“it is 

well-established that the Secretary may present the testimony of a representative sample of 

employees as part of his proof of the prima facie case under the FLSA.”). Romero v. Fla. Power & 

Light Co., 2012 WL 1970125, at *5 (M.D. Fla. June 1, 2012). There is no basis to require each and 

every opt-in Plaintiff to respond to discovery, as doing so undermines the collective action process.

2. Representative answers from a sampling are proper.

The fundamental principle underlying representative testimony is that all meaningful 

differences among class members can be addressed through a representative group. Nelson v. 

American Standards, Inc., 2009 WL 4730166, *3 (E.D.Tex.2009) (approving representative discovery 

in an FLSA class action, stating “there is no reason that all defenses and alleged differences among 

class members cannot be ascertained and articulated based on [representative discovery]”). Romero

at *5 (citation omitted).

In the instant case, there are more than 65 Op-In Plaintiffs, and there will likely be more 

as the opt-in period is still open for a few more days. A significant burden2 would be imposed upon 

2 Adding to this burden, Plaintiffs’ counsel will be required to provide the response to 

Interrogatory No. 4 to each individual Opt-In Plaintiff because it directly relates to and is based 

upon the response to Interrogatory No. 5 which may be responded to on a representative basis. 

Plaintiff also seeks clarification from the Court so as not to create confusion amongst the individual 

Opt-In Plaintiffs who may be required to respond as outlined above. 

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Plaintiffs’ counsel to have each of the nearly 70 Opt-In Plaintiffs respond to the three 

interrogatories. Even estimating on the lower end of requiring a total of two hours per response, 

which includes the time taken to send the discovery to each Opt-In Plaintiff, meet with each 

Plaintiff to explain and review the information requested, and obtain responsive information, it 

would take over approximately 135 hours to provide the requested Answers. Moreover, this task 

cannot be feasibly completed within 30 or even 60 days. 

Parties may obtain discovery regarding 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. Fed. R. Civ. P. 26 (b)(1) 

(emphasis added). On motion or on its own, the court must limit the frequency or extent of 

discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery 

sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more 

convenient, less burdensome, or less expensive[.] Fed. R. Civ. P. 26 (b)(2)(C) (emphasis added).

Requiring all Opt-In Plaintiffs to respond to Interrogatories 1, 5 and 6 also would be 

cumulative and duplicative of the responses provided on a representative basis. To provide the 

information requested at Interrogatories Nos. 5 and 6, the undersigned requested copies of the slips 

generated by each employee who closed out a register at the end of a shift for four (4) separate 

weeks. Defense counsel responded that providing this information would require 

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copying/scanning approximately 1,000 documents. However, these 1,000 or so documents are 

necessary to formulate a response to Interrogatory Nos. 5 and 6 since these documents would be 

important to perform an accounting of the tips collected during each shift. Then, once a 

discrepancy existed, additional documents would be necessary to identify where the tips went that 

did not go to the traditionally tipped employees. Performing an accounting once for all affected 

employees would be more efficient than responding to the same questions nearly 70 times.

To promote efficiency in the judicial process, Plaintiff proposes a random sampling of 10% 

of the Opt-In Plaintiffs to respond to the requested Interrogatories as a more manageable, costefficient approach to respond to the discovery in this cause.

As previously noted, the Supreme Court found representative discovery permissible in 

FSLA claims. See Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 136 S. Ct. 1036, 1040, 194 L. Ed. 

2d 124 (2016) (Because a representative sample may be the only feasible way to establish liability, 

it cannot be deemed improper merely because the claim is brought on behalf of a class.).Moreover, 

[i]n FLSA cases, each employee “need not testify” in order to make a prima facie case of a violation. 

Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 472 (11th Cir. 1982) (citation and quotation 

omitted). Nor is individualized discovery or testimony of each opt-in plaintiff required. See, e.g., 

Morales-Arcadio v. Shannon Produce Farms, Inc., 2006 WL 2578835, at *3 (S.D. Ga. Aug. 28, 2006). 

Belloso v. Asplundh Tree Expert, Co., 2018 WL 4760671, at *4 (M.D. Fla. Aug. 24, 2018). 

“Individualized discovery ... would undermine the purpose and utility of both class and collective 

actions[,]” and further “would be unreasonably burdensome and wasteful of the parties' and the 

court's resources.” Strauch v. Computer Scis. Corp., 2015 WL 540911, at *1 (D. Conn. Feb. 10, 2015).

This Court already granted conditional certification and found that the Plaintiffs were 

similarly situated. [DE 155]. Once the Court “conditionally certifies” the class, putative class 

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members are given notice and the opportunity to “opt-in.” The action proceeds as a representative 

action throughout discovery. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001). 

 The FLSA envisions a collective action process in which claims of similarly situated 

workers are adjudicated collectively rather than individually. See Lynch v. United Servs. Auto. Ass'n, 

491 F.Supp.2d 357, 367 (S.D.N.Y.2007) (the purpose of the collective action to allow “for efficient 

adjudication of similar claims, so ‘similarly situated’ employees, whose claims are often small and 

not likely to be brought on an individual basis, may join together and pool their resources to 

prosecute their claims”) (citing Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 

L.Ed.2d 480 (1989)). Although there is no “bright line formulation” or “percentage threshold” for 

determining the adequacy of representational evidence, “it is well-established that the [plaintiff] 

may present the testimony of a representative sample of employees as part of his proof of the prima 

facie case under the FLSA.” Reich, 121 F.3d at 67. See also Higueros v. New York State Catholic Health 

Plan, Inc., 2009 WL 3463765, at *2 (E.D.N.Y. Oct. 21, 2009) (denying defendant's request to depose 

all opt-in plaintiffs because “deposing each of the forty-seven plaintiffs would defeat the very 

purpose contemplated by Congress in authorizing these collective actions”); Hinterberger v. Catholic 

Health Sys., Inc., 284 F.R.D. 94, 103 (W.D.N.Y.2012) (noting that the “[u]se of a sample to avoid 

burdensome and even impractical discovery in cases involving numerous parties is of course a wellrecognized technique”). Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 188, 192 (S.D.N.Y. 2014).

Thus, to promote judicial efficiency and fairness in the discovery process, Plaintiff requests 

that representative discovery be allowed in conjunction with a random sampling of Opt-in Plaintiffs

instead of requiring all Opt-In Plaintiffs to respond to the Interrogatories at issue. 

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B. Sustaining Defendant’s Objections To Producing WhatsApp Chats.

The Defendant, 450 North River Drive, LLC’s managerial/supervisory employees 

communicated with their employees (including Mr. Collado and the Opt-In Plaintiffs) through 

WhatsApp group chats. Defendant, through its managerial/supervisory employees, disseminated 

information and materials regarding schedules, shifts, policies, procedures, and meetings. 

Defendant identified in its discovery responses discovery a limited number of 

managerial/supervisory personnel, and since the chat information would be the same for all 

employees who are members of each chat, obviating the need to have each employee provide the 

same chat materials. The materials could be obtained by having Defendant’s 

managerial/supervisory employees provide the chats – which can be accomplished by 

downloading and exporting through WhatsApp. WhatsApp allows users to export chats into .pdf 

format while also including the media (pictures) in a simple process. (See

https://faq.whatsapp.com/1180414079177245/?cms_platform=android.) The export process 

gives the option to email the export, simplifying the process of having sharing and saving the 

requested discoverable information. Id.

Although the Court’s Order at ECF No. 203 sustained the Defendant’s objections to 

producing these WhatsApp chats, the Court did not consider the propriety of having the 

managerial/supervisory employees who either create, manage, or disseminate information. 

Instead, even in those cases where the court has found that an employer has “control” over 

an employee's personal device,4 courts have only required the employer to ask the employee 

to search and produce the responsive information. See, e.g., ID Ventures, LLC v. Chubb Custom 

Ins. Co., 2018 WL 8807125, at * 2 (E.D. Mich. Oct. 12, 2018) (requiring plaintiff to ask 

relevant employees to search their personal email accounts for responsive documents and 

to provide defendant with an affidavit from each employee attesting that a search was made 

and all relevant documents were provided to plaintiff's counsel); Union Home Mortg. Corp. v. 

Jenkins, 2021 WL 1110440, at *9–10 (N.D. Ohio Mar. 23, 2021) (directing employer to ask 

current employees to search for and provide for production of all relevant emails and text 

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messages in their personal email and cell phone accounts that are responsive and, if no 

documents exist, to certify as much in writing); Bank of Mongolia v. M&P Global Financial 

Services, Inc., 2009 WL 10682131, at *7 (S.D. Fla. Dec. 22, 2009) (directing defendants to 

“make all reasonable efforts to obtain responsive documents” from any officer or individual 

employed by defendants from personal computers); Goolsby v. County of San Diego, 2019 WL 

3891128, at * 4 (S.D. Cal. August 19, 2019) (finding lack of control where plaintiff offered 

only speculation that personal devices were used by the deputies and noting that, regardless, 

county had already asked employees to search for and produce relevant information)

Matter of Skanska USA Civil Se. Inc., 2021 WL 4953239, at *4 (N.D. Fla. Aug. 5, 2021). Mr. Collado 

requests for the Court to overrule the objections to Requests Nos. 15 and 16 by Defendant, 450 

North River Drive, LLC, and to require it to produce the responsive information/materials.

IV. CONCLUSION

Mr. Collado respectfully requests that this Honorable Court sustain his objections to the 

Order, as set forth above.

Respectfully submitted this 20th day of September 2023,

s/Brian H. Pollock, Esq.

Brian H. Pollock, Esq.

Fla. Bar No. 174742

brian@fairlawattorney.com

FAIRLAW FIRM

135 San Lorenzo Avenue

Suite 770

Coral Gables, FL 33146

Tel: 305.230.4884

Counsel for Plaintiff(s

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