Plaintiff, Civ. No. 11-1494 (KM) (MAH)

v. OPINION

REAL ESTATE MORTGAGENETWORK, INC., et al.,

Defendants.

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[sj, dates of employment, company

name, and work location, of any and all underwriters, closers, and HUDreviewers in Georgia and New Jersey.” The Discovery Order—routine incollective action cases brought under the Fair Labor Standards Act (“FLSA”) 29U.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.

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overtime work. Under the FLSA, Thompson may bring a collective action onbehalf of “employees similarly situated.” 29 U.S.C. § 2 16(b). To determine

whether the members of the collective action are similarly situated toThompson, 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 conditionalcertification 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 theirclaims are similar[,]” and “whether the relief that they seek is similar.” JudgeHammer therefore concluded that the requested information “easily fits withinthe 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.

II. DISCUSSION

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 thediscretion granted to the Magistrate Judge in non-dispositive matters. Where,as here, the appeal seeks review of a discovery dispute, an abuse of discretion

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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.

LEXI5 57873 (D. Del. June 11, 2010) and Stilirnan 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 Stiliman 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

*jj3.fl As then-Magistrate Judge Patty Shwartz reasoned, “there is no basis to

delay [disclosure of this informationi 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. Stiliman, *2.4. Citing to Stiliman, 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 *910

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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

1 As noted in Stiliman, however, there is non-controlling contrary precedent. See Id. at *3 (citing Crawford v. Dothan City Bd. ofEduc., 214 F.R.D. 694, 695 (M.D. Ala. 2003). But those cases seem to be in the minority. See, e.g., Capitani, 2010 U.S. Dist. LEXIS 57873, at *910; Whitehall v. Wofgang’s Steakhouse, Inc., 09 Civ. 1148, 2010

U.S. Dist. LEXIS 58460, at *5...8 (S.D.N.Y. June 14, 2010) (collecting cases); Sjoblom v. Charter Commc’n, 3:07-cv-0451-bbc, 2008 U.S. Dist. LEXIS 1001, at*56 (W.D. Wisc. Jan. 4, 2008) (collecting cases); Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 553-

54 (N.D. Ill. Feb. 25, 2008) (collecting cases). It was not error for Judge Hammer to rely on Stiliman and Capitani in the absence of controlling legal authority holding otherwise.

2 Neither case involved the “narrowing” of a discovery request.

3 Without citation, defendants relatedly contend that pre-certification discovery “circumvents” the conditional certification step in the two-step certification process. Certainly this is not an accurate description of the lion’s share of case law on this

issue. See n. 1, supra. They also speculate that providing this information will result in unsupervised communications between plaintiff’s counsel and opt-ins. Defendants’

support for this charge is the fact that two plaintiffs have already opted into this lawsuit. But plaintiffs routinely opt into FLSA actions before a class has been

conditionally certified or before such a motion is filed. See, e.g., DePalma v. The Scotts Co., 13-7740, ECF Nos. 3, 21, 26, 29, 36. Should specific instances of improper or misleading communications between plaintiffs and potential opt-ins occur, defendants

may notify the Court. But for now, I decline the invitation to order Thompson or counsel to refrain from contacting potential opt ins—a request which in any event wasnever raised before Judge Hammer.

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Hammer correctly ruled that the information requested was relevant, and

indeed “classic document discovery” under Rule 26. (Hrg. Tr. 3 1:9-30; 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 9, 2012). They made no such argument before Judge Hammer,

(Hrg. Tr. 33:3-4), and they have made no such showing here. I will not reverse

Judge Hammer’s well-reasoned and thorough Discovery Order on this ground.

C. Equitable Tolling Issues

Defendants’ third argument fares no better. Judge Hammer, they

claim, erroneously concluded that concerns over tolling issues required the

Court to grant plaintiff’s discovery request. That is not what Judge Hammer

ruled. It was merely one consideration—a consideration that I noted in denying

Thompson’s cross-motion to equitably toll the claims of potential opt-ins.

“[T]olling issues,” I wrote, would be decided “in the context of all other issues

that are presented by plaintiffs’ anticipated motion for condition certification.”

(ECF No. 152). “Obviously,” reasoned Judge Hammer, “the tolling issue calls

into question when the putative plaintiffs’ claims arose” and “that further

underscores the necessity of the plaintiff having. . . discovery on who the

putative plaintiffs are, when they worked there, where they worked, and the

additional information requested.” (Hrg. Tr. 32:7-11) (emphasis added). Again:

defendants offer no authority suggesting that the consideration of equitable

4 Fed. R. Civ. P. 26(b) generally requires “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case... .“ Defendants have not cited Fed. R. Civ. P. 26 in their papers.

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Defendants

fourth objection is essentially a recasting their first, and

will be rejected for substantially the same reasons. Adopting the reasoning of

Whitehom ii. Wofgarig”s Steakhouse, Judge Hammer ruled that Thompson’s

need for the information outweighed third parties’ privacy rights. 2010 U.S.

Dist. LEXIS 58460, at *84o. Here, too, defendants do not contend that

Whitehom is contrary to controlling precedent, or even contrary to the weight of

authority. Nor do they argue that Judge Hammer abused his discretion in

weighing Thompson’s interest in obtaining the requested information against

third-party privacy interests. They instead contend that Judge Hammer

erroneously relied on Whitehom because the plaintiff in that case sought the

contact information of third parties who were classified and paid in the same

manner and way as the plaintiff. Like defendants’ objections to Capitani and

Stiliman, this is circular. The discovery ordered by Judge Hammer goes to the

issue of whether the opt-ins are similarly situated to Thompson; its relevance

cannot be assumed away. It is indisputably relevant and therefore

discoverable. Surely the parties will vigorously litigate whether the proposed

class of opt-ins is in fact similarly situated to Thompson during the two-step

certification process. But defendants cannot deny their adversary relevant and

discoverable information by declaring victory. 5

E. Overbreadth

Defendants’ final argument concerns the breadth of the discovery

ordered by Judge Hammer. Thompson, they say, is not entitled to telephone

information because she has not shown that email or postal addresses would

The court in Whitehall rejected the argument that plaintiff must make a “prima facie” showing that similarly situated individuals exist to obtain pre-certification discovery. Id. at *46.

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any rate, I note that a number of other courts have ordered the same or

substantially similar discovery in the pre-conditional-certification stage. See,e.g., Whitehall, 2010 U.S. Dist. LEXIS 58460, at *5...8 (names, last known

addresses, last known phone numbers, and job position); Stiliman, 2007 U.s.LEXIS 58873, at *1 (names, addresses, position and title); AcevecZo, 248 F.R.D.at 552-54 (N.D. Iii. Feb. 25, 2008) (names, addresses, telephone numbers,dates of employment, and employee numbers).III. CONCLUSION

Further segmentation of the issues, with issue being joined afresh at

each stage, will delay a decision on the merits of conditional and finalcertification, without any substantial offsetting benefit. For the foregoingreasons, defendants’ appeal of the Discovery Order is DENIED. (ECF No. 160)

Judge Hammer’s well-reasoned Discovery Order (ECF No. 161) is affirmed and

adopted by the Court.Dated: March 28, 2017

KEVIN MCNULTY

j

United States District Judge

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