Stephanie R. Green, et al., Plaintiffs, v. Harbor Freight Tools USA, Inc., Defendant Case No. 09-2380-JAR Signed August 24, 2011 O'Hara, James P., United States Magistrate Judge ORDER *1 Plaintiffs, who are current and former employees of defendant Harbor Freight Tools USA, Inc., bring this collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), alleging defendant misclassified them as exempt from the FLSA's overtime requirements and owes them overtime compensation for work performed in defendant's retail hardware stores. Currently before the undersigned U.S. Magistrate Judge, James P. O'Hara, is plaintiffs' motion to compel discovery (doc. 264). Plaintiffs ask the court to overrule defendant's objections and compel defendant to fully respond to fourteen requests for production of documents and thirteen interrogatories.[1]For the reasons discussed below, the motion is granted in part and denied in part. The Federal Rules of Civil Procedure recognize a presumption in favor of disclosure of information in civil lawsuits. Rule 26(b)(1) specifies that discovery may be obtained “regarding any non-privileged matter that is relevant to any party's claim or defense.” “A party does not have to prove a prima facie case to justify a request which appears reasonably calculated to lead to the discovery of admissible evidence.”[2] The question of relevancy “is to be more loosely construed at the discovery stage than at the trial.”[3] At least as a general proposition, then, “[a] request for discovery should be allowed unless it is clear that the information sought can have no possible bearing on the claim or defense of a party.”[4] As earlier indicated, plaintiffs' FLSA claim in this case is that defendant improperly treated them as exempt from the overtime-pay provisions of the FLSA. The general rule under the FLSA is that an employee who works more than forty hours in a workweek must be paid overtime compensation.[5] Employers need not pay overtime, however, if the employee is “employed in a bona fide executive, administrative, or professional capacity” as defined by the regulations promulgated by the Secretary of Labor (the “executive exemption”).[6] Plaintiffs assert that even though defendant gave them the title “Store Manager,” they were managers in name only and spent the majority of their time performing non-managerial, manual labor. Plaintiffs seek overtime compensation for work performed from approximately July 2006 to the present. Plaintiffs also seek punitive damages, arguing that defendant's conduct was “willful.”[7] *2 In defense of plaintiffs' claim, defendant asserts that plaintiffs are subject to the executive exemption and are therefore owed no overtime compensation. Under the Department of Labor regulations, an employee qualifies for the executive exemption if the employee: (1) is paid a salary not less than $455 per week; (2) has a primary duty of management; (3) “customarily directs the work of two or more other employees;” and (4) has “authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight.”[8] These claims and defenses will help guide the court's analysis about the proper scope of discovery. I. Document Request Nos. 1, 9, 15, 31, and 32: Electronically Stored Information Plaintiffs first move to compel defendant to produce electronically stored information (“ESI”) responsive to Document Request Nos. 1, 9, 15, 31, and 32. Defendant objects that responding to the document requests as written would be unduly burdensome. Defendant notes that the parties have entered into a Joint ESI Protocol (doc. 25) that required plaintiffs to “provide a preliminary list of keyword search terms” and contemplated the parties meeting to reach an agreement on search terms when emails or other ESI were sought in discovery. After receiving plaintiffs' document requests, defendant proposed an initial, “smaller-scale search of the named Plaintiffs' e-mails in order to better gauge (i) what potentially responsive documents may exist; and (ii) the time/cost/burden associated with this (or a larger-scale) data pull.”[9] Plaintiffs refused the proposal and have not provided a list of keyword search terms.[10] In preparation for responding to this motion to compel, defendant nonetheless undertook a “test” search of one email file for each of the five named plaintiffs. Defendant contracted an ESI vendor, Legal Source, to run a search of 29 keywords (comprising defendant's guesses as to words plaintiffs might propose) in these five files. The test search resulted in the identification of approximately 12,000 unique documents at a cost of $2,404. In her affidavit, defense counsel estimates that it would take 300 attorney hours to review these documents and cost $77,400 in attorneys' fees.[11] Extrapolating this data to encompass the entire realm of ESI potentially responsive to plaintiffs' discovery requests, defendant suggests that a review of 164 email accounts would cost $73,408 in fees to Legal Source, produce 393,600 documents, and take 9,840 attorney hours to review at a cost of $2,538,720 in attorneys' fees. In their reply brief, plaintiffs complain that defendant's test search is not a reliable indicator of cost because it is “based on 29 keyword search terms created by Defendant, not Plaintiffs.”[12] Plaintiffs further contend that a search need only encompass 35 email accounts, not 164. Finally, plaintiffs argue that defendant's estimates of attorney cost and review time are excessive. In the court's view, plaintiffs are complaining about a situation that they are responsible for creating. Plaintiffs unreasonably—and in contravention of the parties' Joint ESI Protocol—failed to provide defendant a list of keyword search terms. Nor did plaintiffs suggest during the parties' conference on this matter a limit on the number of email accounts for defendant to search; instead, plaintiffs waited until their briefing on the instant motion to suggest such a limit. And while plaintiffs offer plenty of criticism of defendant's search and cost estimates, they offer no suggested alternatives or affidavits that would support different estimates. This is clearly unreasonable. *3 Because plaintiffs have failed to adequately confer with defendant about the scope of ESI discovery, and instead prematurely dumped their problem in the court's lap,[13] the court denies plaintiffs' motion with respect to the ESI discovery sought in Document Request Nos. 1, 9, 15, 31, and 32. Should plaintiffs continue to seek this discovery, they are ordered to confer with defense counsel in person by September 6, 2011, and to truly make a good-faith effort to reach an agreement on a reasonable, cost-effective ESI search. In the hopefully unlikely event that the parties cannot reach an agreement as to the scope of ESI discovery, plaintiffs may file a targeted motion to compel (clearly setting out the parties' points of disagreement and each party's position on the same) by September 16, 2011. II. Interrogatory Nos. 1, 15, 19, 21, and 23: Discovery that Defendant Purports to Have Provided Interrogatory No. 1 asked defendant to identify persons who had managerial or supervisory control over plaintiffs during their employment. Defendant states that it has identified every district and regional manager who either (i) supervises a plaintiff currently or (ii) supervised a plaintiff at the time the plaintiff's employment with defendant ended, and that it does not maintain other data regarding every manager who might have supervised a plaintiff during the course of employment. Plaintiffs assert that defendant has not denied that it has control over this additional information, such as in its tax records. The identity of persons who managed plaintiffs during the course of plaintiffs' employment is clearly relevant to the issues in this case and could lead to the discovery of admissible evidence. Thus, to the extent defendant has possession, custody, or control over such information, defendant is ordered to produce it. If defendant does not have possession, custody, or control over this information, defendant must so verify. Interrogatory No. 15 asked defendant to identify all persons who performed ESI searches for information responsive to plaintiffs' discovery requests. Although defendant initially objected to this interrogatory on the basis that it seeks privileged information (an objection that appears to be without merit), defendant “nonetheless provided the requested information in response to Plaintiffs' Motion to Compel” by providing the name of the third-party vendor who performed the test search.[14] Based on the court's above-stated ruling regarding ESI discovery, it is likely that additional persons may be asked to perform ESI searches. Defendant must supplement its answer to Interrogatory No. 15 if this occurs. With respect to Interrogatory No. 19, plaintiffs state in their reply brief that “any conflicts over Interrogatory No. 19 have been resolved by Defendant's Supplemental Answers except Defendant has not provided a verification for its answer.”[15] Plaintiffs further state that defendant has answered Interrogatory No. 21, but not under oath. Fed. R. Civ. P. 33(b)(3) requires interrogatories to be answered under oath, and subsection (b)(5) requires the person answering to sign them. If defendant has not already done so, it shall verify its answers to Interrogatory Nos. 19 and 21 under oath and identify the person answering. *4 Interrogatory No. 23 asked defendant to identify all persons answering the interrogatories, including persons who provided information to answer or who reviewed the answers. Defendant responded that the interrogatories were prepared, with counsel's assistance, and reviewed by Peter Roberts, defendant's Vice President of Operations. The court finds that defendant has answered Interrogatory No. 23, and the court will not order defendant to confirm its response as plaintiffs request. The motion to compel is denied as to Interrogatory No. 23. Of course, should defendant learn that its response was incomplete or incorrect, Fed. R. Civ. P. 26(e)(1)(A) requires it to supplement or correct its response in a timely manner. III. Interrogatory Nos. 2, 4, and 18, and Request Nos. 4, 21, and 38: Discovery that Defendant has Agreed to Provide Defendant has agreed to fully respond to Interrogatory No. 2, but had not yet done so as of the filing of plaintiffs' reply brief. To the extent that defendant's response is still outstanding, defendant shall respond. In response to Interrogatory No. 18, defendant agreed during the meet-and-confer process to identify its store managers, district managers, regional managers, and upper-level retail managers who are subject to separation-related or termination-related confidentiality agreements. As of the filing of plaintiffs' reply brief, this information had not been produced. Defendant shall produce this information. Defendant states that it has agreed to completely respond to Interrogatory No. 4 and related Request Nos. 4, 21, and 38, despite its objections to each. This discovery seeks the identity and contact information of plaintiffs' supervisors and coworkers. As of the filing of plaintiffs' reply brief, defendant had only disclosed the identity of district and regional managers. Thus, to the extent it has not yet been produced, defendant is ordered to produce the contact information for plaintiffs' supervisors, and the identity and contact information for plaintiffs' co-workers. IV. Interrogatory Nos. 5 and 20: Identity of Persons with Responsibility for Performing Payroll Functions Interrogatory Nos. 5 and 20, as subsequently limited by plaintiffs, seek the names of persons who make payroll determinations and who handle the administrative duties associated with compensating plaintiffs. Defendant states that, after a meet-and-confer session, it provided “certain key job titles within [defendant's] Payroll Department who had responsibility for various duties with respect to Plaintiffs' compensation.”[16] It appears, however, that plaintiffs are seeking the names of the persons in these roles. Although defendant originally asserted objections in its responses to these interrogatories, none of those objections are applicable to the limited information that is now sought. Information regarding the persons who made payroll determinations and performed payroll functions related to plaintiffs' compensation is obviously relevant in this FLSA action. Accordingly, defendant shall provide this information. V. Interrogatory Nos. 8, 9, and 14, and Request Nos. 17, 27, 35, and 36: Discovery Over Which Defendant Asserts a Privilege Interrogatory Nos. 8, 9, and 14, and Request Nos. 17, 27, 35, and 36, seek information about defendant's investigation into the claims alleged by plaintiffs and advice given to defendant about the requirements of the FLSA and/or the propriety of defendant's payment methods and decisions. Defendant objected to these discovery requests on the basis that they seek “information protected by the attorney-client and/or work product privileges.”[17]Defendant asserts that “counsel's actions in ‘investigating’ and responding to Plaintiffs' lawsuit” is privileged.[18]Defendant also asserts that Interrogatory No. 14, and Request Nos. 27 and 35, are overly broad because they seek information about defendant's general obligations under the FLSA and the propriety of defendant's payment decisions, rather than only information related to the individuals or claims at issue in this lawsuit. *5 Defendant's objections are largely overruled for the following reasons. First, these discovery requests are not limited to investigations conducted by or advice given by attorneys. Thus, to the extent discovery exists regarding investigations or advice not by attorneys, it is not privileged and must be produced. Second, the mere fact that an attorney undertook an investigation or gave legal advice clearly is not privileged and thus must be revealed.[19] Third, although the court agrees Request No. 35—seeking documents concerning advice regarding any or all of defendant's obligations under the FLSA—is facially over broad, a party typically has a duty to respond to a discovery request to the extent the request can be narrowed in scope to not be objectionable.[20] Here, this request will be narrowed to (non-privileged) documents containing advice concerning defendant's obligations under the executive exemption to the FLSA. Fourth, with respect to Interrogatory No. 14 and Request No. 27—seeking information concerning advice or investigations pertaining to the “propriety” of defendant's non-payment of time-and-a-half overtime compensation and other “pay methods”—the court disagrees with defendant's unsupported assertion that this discovery is overly broad. Under the presumption in favor of disclosure, the court finds the information sought in these requests relevant to the claims and defenses in this case. However, defendant implies that it has no non-privileged information responsive to these requests. Defendant is ordered to supplement its responses to these requests—either with responsive documents or a certified statement that it has no responsive documents. The court will sustain defendant's objections to the above-referenced discovery requests, however, to the extent that they seek documents written by attorneys to their clients that contain legal advice. Such documents are generally protected by the attorney-client privilege, and plaintiffs have made no attempt to show an exception to or a waiver of this privilege,[21] even though defendant has produced a privilege log listing the documents it is withholding; plaintiffs have not raised any issues with respect to the adequacy of the privilege log. Finally, with respect to Request No. 36, plaintiffs seek documents regarding a complaint filed with the California Department of Labor by a former store manager against defendant. Although defendant states that it has produced these documents, plaintiffs assert that the documents are “incomplete in that the correspondence references certain attachments that were not produced.”[22] Defendant is therefore ordered to either supplement this discovery or, to the extent that it has not already done so, indicate on its privilege log the documents it is withholding. VI. Request Nos. 43 and 49, and Interrogatory No. 22: No Responsive Discovery Request No. 43 seeks documents relating to “computations of cost of labor for a single retail store of [defendant].” Defendant asserts that it has no responsive documents, at least “as [defendant] understands this request.”[23]Defendant goes on to concede that information does exist regarding cost of labor as a component of a store's “overall store budgeting process,” but because responsive documents do not exist, the “most efficient way to obtain information about cost of labor in the context of store budgeting” is through a deposition.[24] Plaintiffs assert that “information provided to Plaintiff's counsel by Plaintiffs indicates that such documentation exists.”[25] Unfortunately, the court is left with a “he-said/she-said” dispute over whether defendant has possession, custody, or control over documents responsive to Request No. 43. In this situation, “[t]he party seeking production of documents bears the burden of proving that the opposing party has the control required under Fed. R. Civ. P. 34(a).”[26] Plaintiffs have presented no evidence to support their assertion that responsive documents exist, and of course as a practical matter the court cannot compel the production of documents that do not exist.[27] Thus, plaintiffs' motion to compel is denied as to Request No. 43. Defendant would be prudent, however, to reevaluate its position on this request. If it turns out that defendant actually does have possession, custody, or control over the documents sought but through a hyper-technical reading of the request refuses to produce them, defendant will be subject to the sanctions discussed in Fed. R. Civ. P. 37. *6 In its response to Request No. 49 and again in its response to the motion to compel, defendant states that it has no documents responsive to Request No. 49. Plaintiffs have not suggested that this representation is erroneous. Accordingly, plaintiffs' motion to compel is denied as to Request No. 49. Interrogatory No. 22, as subsequently limited by plaintiffs, seeks a description of any method of timekeeping or tracking time worked by store managers. Defendant states in both its response to Interrogatory No. 22 and in its response to the motion to compel that it has no information responsive to this interrogatory. Plaintiffs suggest, however, that even if defendant does not track the time of store managers for compensation purposes, defendant might have other methods that record time worked, such as “alarm records and leave records.”[28] The court finds that defendant has sufficiently answered Interrogatory No. 22, and therefore the court will not order it to “confirm” its response as plaintiffs request. Plaintiffs' motion to compel is therefore denied as to Interrogatory No. 22. Of course, should defendant learn that its response was incomplete or incorrect, Fed. R. Civ. P. 26(e)(1)(A) requires it to supplement or correct its response in a timely manner. In consideration of the foregoing, IT IS HEREBY ORDERED: 1. Plaintiffs' motion to compel defendant to respond to the former's discovery requests (doc. 264) is denied in part and granted in part, as discussed above. 2. To the extent the court has ordered defendant to respond or to produce responsive documents, defendant shall do so by September 6, 2011. 3. To the extent plaintiffs continue to seek ESI discovery, they are ordered to confer with defense counsel, in person, by September 6, 2011, and make a truly good-faith effort to reach an agreement on a reasonable, cost-effective ESI search. If necessary, plaintiffs are given leave to file a targeted motion to compel with respect to ESI discovery by September 16, 2011. Dated August 24, 2011, at Kansas City, Kansas. Footnotes [1] The court will not consider document requests and interrogatories not specifically addressed in plaintiffs' motion. Nor will the court consider Request Nos. 11, 12, 16, 19, 28, 29, or 39, on which the parties have reached an agreement since the filing of plaintiffs' motion. See doc. 298 at 1. [2] Mackey v. IBM, 167 F.R.D. 186, 193 (D. Kan. 1996). [3] 8 Charles Allen Wright & Arthur Miller, Federal Practice and Procedure § 2008, at 99 (2d ed. 1994). [4] Sheldon v. Vermonty, 204 F.R.D. 679, 689–90 (D. Kan. 2001) (internal quotations and citations omitted). [5] 29 U.S.C. § 207(a)(1)(2000). [6] Id. at § 213(a)(1). [7] See id. at § 626(b). [8] 29 C.F.R. § 541.100(a) (2005). [9] Exh. D to doc. 291. [10] See Exh. E to doc. 291. [11] Exh. I to doc. 291. [12] Doc. 298 at 3. [13] D. Kan. Rule 37.2 explicitly requires that the parties (or their counsel) “in good faith converse, confer, compare views, consult and deliberate” before involving the court in a discovery dispute. “Civil litigation, particularly with the advent of expansive e-discovery, has simply become too expensive and too protracted to permit superficial compliance with the ‘meet and confer’ requirement ....” Cartel Asset Mgmt. v. Ocwen Fin. Corp., No. 01-cv-01644, 2010 WL 502721, at * 13 (D. Colo. Feb. 8, 2010). [14] Doc. 291 at 36. [15] Doc. 298 at 9. [16] Doc. 291 at 27, 28. [17] Doc. 291 at 29. [18] Id. [19] See Upjohn Co. v. United States, 449 U.S. 383, 395–96 (1981) (holding that facts, as distinguished from communications, are not privileged). [20] See Moses v. Halstead, 236 F.R.D. 667, 672 (D. Kan. 2006); Fed. R. Civ. P. 34(b). [21] See In re Urethane Antitrust Litig., No. 04-MD-1616, 2011 WL 322675, at *2 (D. Kan. Jan. 31, 2011) (discussing elements of the attorney-client privilege). [22] Doc. 264 at 12. [23] Doc. 291 at 40. [24] Doc. 291 at 41. [25] Doc. 298 at 10. [26] Smith v. Phamm, No. 03-3451, 2008 WL 2944905, at *2(D. Kan. July 28, 2008). [27] See id. [28] Doc. 264 at 16.