MICHAEL KUTZBACK, individually and on behalf of himself and others similarly situated, Plaintiff, v. LMS INTELLIBOUND, LLC, a foreign Limited Liability Company and CAPSTONE LOGISTICS, LLC, a Domestic Limited Liability Company, Defendants Case No. 2:13-cv-02767-JTF-cgc United States District Court, W.D. Tennessee, Western Division Filed September 01, 2020 Fowlkes Jr., John T., United States District Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL OPT-IN PLAINTIFFS TO RESPOND TO INTERROGATORIES, DOCUMENT REQUESTS, AND NOTICES OF DEPOSITIONS AND TO EXTEND THE DISCOVERY PERIOD *1 Before the Court is Defendant LMC Intellibound, LLC, a foreign Limited Liability Company, and Capstone Logistics, LLC, a Domestic Limited Liability Company's (“Defendants”) Motion to Compel Opt-In Plaintiffs to Respond to Interrogatories, Document Requests, and Notices of Deposition and to Extend the Discovery Period (“Motion to Compel”) filed on March 26, 2019. (ECF No. 404.) Plaintiff Michael Kutzback, individually and on behalf of himself and others similarly situated, filed a Response in Opposition on April 30, 2019. (ECF No. 410.) Defendants filed a Reply on May 28, 2019. (ECF No. 415.) Upon consideration, the Court finds a ruling may be rendered without a hearing. For the following reasons, the Court GRANTS in part and DENIES in part Defendants' Motion to Compel. ANALYSIS To begin the analysis, it is important to briefly summarize the relevant procedural history in this case. On May 31, 2018, the Court entered an Order Denying Defendants' Motion for Partial Summary Judgment on the Claims of the California Opt-In Plaintiffs; Order Denying In Part Defendants' Motion to Decertify the Collective Action; and Order Denying Defendants' Motion for Summary Judgment on the Claims of Plaintiff Michael Kutzback. (ECF No. 357.) On April 13, 2018, the Court held a status conference and set a deadline of April 27, 2018 for the parties to file a Notice with the Court regarding proposed deadlines for damages discovery and further mediation. (ECF Nos. 359 & 360.) That deadline was extended twice. (ECF Nos. 363 & 365.) Defendants filed a Motion for Entry of Defendants' Proposed Scheduling Order for Phase II Damages Discovery (“Defendants' Proposed Scheduling Order”) and Plaintiffs filed a Motion for Entry of Plaintiffs' Proposed Scheduling Order for Phase II Damages Discovery, styled as “Plaintiffs' Memorandum Regarding Additional Damages Discovery” (“Plaintiffs' Proposed Scheduling Order”). (ECF Nos. 366 & 368.) The Court referred those motions to the assigned Magistrate Judge on July 26, 2018 pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 373.) The Magistrate Judge held a motion hearing on October 9, 2018 and entered an Order for Phase II Damages Discovery on October 23, 2018. (ECF Nos. 379 & 380.) Defendants then filed their Objections. (ECF No. 385.) Pending the Court's ruling on Defendants' Objections, other motions were filed, including Defendants' Motion to Compel which is the subject of this Order (ECF No. 404), and five motions for extensions of time to complete discovery. (ECF Nos. 416, 418, 420, 422, & 429.) On March 17, 2020, the Court entered an Order Denying Defendants' Objections to the Magistrate Judge's Order for Phase II Damages Discovery. (ECF No. 431.) The Magistrate Judge's Order for Phase II Damages Discovery established, in part, the following discovery parameters relevant to this Order: B. Written Discovery During Phase II 1. Defendants may serve one interrogatory on each Opt-In Plaintiff subject to discovery in Phase II, which will be answered individually and verified by the Opt-In Plaintiff to whom it is directed. That interrogatory will ask: “For each workweek that you worked for Defendants: (a) state whether you contend that you worked off the clock; and (b) if you contend that you worked off the clock, identify the number of hours for which you contend you were not compensated.” Defendant may serve a document request on each Opt-In Plaintiff subject to discovery in Phase II that seeks documents related to his or her answer. *2 2. Each Opt-In Plaintiff subject to discovery in Phase II may serve one interrogatory on Defendants in Phase II, which will be answered as to the Opt-In Plaintiff subject to discovery in Phase II who served the interrogatory and will be verified by an on-site management employee at the site-level, preferably one with first-hand knowledge. That interrogatory will ask: “For each workweek the Opt-In Plaintiff was employed during the relevant period, state: (a) the number of hours worked by the Opt-In Plaintiff; and (b) the number of hours credited to the Opt-In Plaintiff.” Each Opt-In Plaintiff subject to discovery in Phase II may serve a document request on Defendants that seeks documents related to their answer. 3. Defendants may serve two additional interrogatories and two additional requests for production of documents regarding Opt-In Plaintiffs subject to discovery during Phase II, and Plaintiff may serve two additional interrogatories and two additional requests for production of documents regarding Opt-In Plaintiffs subject to discovery during Phase II, which may be answered on a representative basis. C. Depositions 1. The limitation on the number of depositions set forth in Federal Rule 30(a)(2) shall not apply to this matter, and the parties may depose, in addition to any party's retained expert, the individuals described below. 2. Defendants may take up to 50 depositions of Opt-In Plaintiffs subject to discovery in Phase II. All depositions of Opt-In Plaintiffs will take place in the jurisdiction in which the deposed party resides, unless otherwise agreed. 3. Plaintiff may depose the same number of facility-level managers (i.e. supervisors, managers, etc.) as Defendants depose Opt-In Plaintiffs. In other words, if Defendants take depositions of 50 Opt-In Plaintiffs, Plaintiff may depose 50 facility-level managers or supervisors. ... 7. If an Opt-In Plaintiff or facility-level manager fails to appear for deposition, for any reason, the party noticing the deposition may select another Opt-In Plaintiff or facility-level manager, and the deposition of the Opt-In Plaintiff or facility-level manager who did not appear will not count toward the noticing party's 50-deposition limit. (ECF No. 380.) In their Motion to Compel, Defendants set forth the following arguments. First, Defendants served one interrogatory on each of the 929 Opt-In Plaintiffs subject to Phase II Damages Discovery, but only 138 Phase II Opt-In Plaintiffs have responded. (ECF No. 405, 1–2.) Relatedly, of the 138 Phase II Opt-In Plaintiffs who did respond to Defendants' interrogatories, none provided a response that answered the question asked. (Id. at 2.) Second, Defendants served a document request on 929 Opt-In Plaintiffs, but only 2 Opt-In Plaintiffs have responded. (Id.) Third, only 35 of the 148 Opt-In Plaintiffs noticed for depositions have appeared. (Id.) According to Defendants, this failure to participate in discovery has prejudiced Defendants and impeded their ability to “learn the basic facts that purportedly support any claim for damages from any supposed ‘off the clock’ work that the Opt-Ins might claim.” (Id.) The Court will address each concern. Before reaching the specific concerns surrounding the interrogatories, document requests, and depositions, it is first necessary for the Court to set forth who is subject to Phase II damages discovery. The Magistrate Judge, in the Order for Phase II Damages Discovery, explicitly stated that fifteen percent (15%) of Opt-In Plaintiffs will be subject to Phase II damages discovery. To the Court's knowledge, there are 3,381 Opt-In Plaintiffs. (See ECF No. 405, 3.) Thus, 507 Opt-In Plaintiffs are subject to Phase II damages discovery. The 507 Opt-In Plaintiffs subject to Phase II damages discovery will consist of “[t]he 421 Opt-In Plaintiffs who were subject to discovery during Phase I who did not file notices of withdrawal.” (ECF No. 380, 1.) To select the remaining 86 Opt-In Plaintiffs subject to Phase II damages discovery, “the parties will use the same list they used to select the Opt-In Plaintiffs subject to discovery during Phase I. The Parties will remove the Opt-Ins subject to discovery during Phase I, as well as the 16 Opt-In Plaintiffs who filed notices of withdrawal, and then select every 34th name until they reach 86 additional Opt-In Plaintiffs.” (Id. at 2.) If, for any reason, any Opt-In Plaintiff subject to Phase II damages discovery fails to participate, a replacement Opt-In Plaintiff subject to discovery may be selected through the same method by which the non-participating Opt-In Plaintiff was selected. (Id.) With that background in mind as to who is subject to Phase II damages discovery, the Court turns to Defendants' specific concerns. Interrogatories *3 The Magistrate Judge allowed Defendants to serve one (1) interrogatory on each of the 507 Opt-In Plaintiffs subject to Phase II damages discovery (hereinafter referred to as “Phase II Opt-In Plaintiffs”). (ECF No. 380, 3.) Defendants state that they served one interrogatory, consisting of the Court-approved language, on each of the 507 Phase II Opt-In Plaintiffs on October 12, 2018 and October 26, 2018. (ECF No. 405, 4.) After two 30-day extensions of time to respond to the interrogatories, Defendants received responses from 70 of the 507 Phase II Opt-In Plaintiffs. (Id.) On January 25, 2019, Defendants selected 437 replacement Phase II Opt-In Plaintiffs and served one interrogatory, again in conformity with the Court-approved language, on each of those 437 individuals. (Id.) During a third 30-day extension of time to respond to the interrogatories, an additional 15 Phase II Opt-In Plaintiffs responded to their individual interrogatory. (Id. at 5.) After this same 30-day extension of time was over, an additional 12 Phase II Opt-In Plaintiffs responded to their individual interrogatory. (ECF No. 405-1, 2 ¶ 7.) Defendants then withdrew the interrogatories served on 15 of the 437 replacement Phase II Opt-In Plaintiffs. (ECF No. 405, 5.) According to Defendants, only 7 of the 422 remaining replacement Phase II Opt-In Plaintiffs responded to their individual interrogatories within “the timeframe provided by the Rules” and an additional 34 replacement Phase II Opt-In Plaintiffs responded after the deadline. (Id.) In sum, 97 of the 507 Phase II Opt-In Plaintiffs and 41 of the 422 replacement Phase II Opt-In Plaintiffs have responded to their individual interrogatory, equaling a total of 138 Opt-In Plaintiffs who have responded to the interrogatories. (Id.) Defendants ask the Court to “order the remaining Opt-Ins to respond to Defendants' interrogatories within fourteen (14) days.” (Id. at 9.) While Defendants' position is not clearly stated in their Motion to Compel, their Reply to Plaintiff's Response in Opposition is more helpful—Defendants believe they are entitled to responses from all 929 Opt-In Plaintiffs subject to Phase II damages discovery on whom Defendants served interrogatories. (ECF No. 415, 2.) “That only 85 of the original 507 Opt-Ins responded, such that Defendants had to serve written discovery on another 422 Opt-Ins, does not relieve the original 507 of their obligations.” (Id. at 3.) Plaintiff argues, in his Response in Opposition, that Defendants are impermissibly seeking to “enlarge the sample size by compelling damages discovery from a greater number of class members than what the Court permitted ....” (ECF No. 410, 8.) Plaintiff contends Defendants are entitled to discovery from fifteen percent (15%) of Phase II Opt-In Plaintiffs, which equates to 507 individuals, regardless of Defendants serving interrogatories on more than 507 individuals. (Id.) “[T]he Opt-In Plaintiffs who did not respond to interrogatories and were subsequently replaced by other Opt-In Plaintiffs are no longer subject to discovery regarding damages. There is no logical basis to compel damages discovery from the Opt-In Plaintiffs who have been replaced by Defendants, and are no longer subject to damages discovery.” (Id.) *4 The Court has wholly affirmed the Magistrate Judge's Order for Phase II Damages Discovery (see ECF No. 431), and the Court intends to fully enforce that Order as it is written. The Magistrate Judge allowed Defendants to serve one interrogatory on fifteen percent (15%) of Phase II Opt-In Plaintiffs. Fifteen percent of 3,381 equals 507. Thus, Defendants are entitled to take damages discovery from a total of 507 Phase II Opt-In Plaintiffs. If, for any reason, any Phase II Opt-In Plaintiff fails to participate, a replacement Phase II Opt-In Plaintiff may be selected. After Defendants' first attempt at presenting interrogatories to 507 Phase II Opt-In Plaintiffs, only 97 Phase II Opt-In Plaintiffs responded. Defendants then made the decision to utilize the replacement mechanism set forth in the Magistrate Judge's Order and served interrogatories on 437 replacement Phase II Opt-In Plaintiffs. It is illogical to conclude that the 410 Phase II Opt-In Plaintiffs from whom Defendants received no response still owe a response after being replaced. If that were the case, the Magistrate Judge would not have provided a replacement mechanism for unresponsive Phase II Opt-In Plaintiffs. Defendants would simply be “stuck” with the 507 original Phase II Opt-In Plaintiffs. Luckily for Defendants, they are able to replace unresponsive Phase II Opt-In Plaintiffs. However, that does not mean Defendants are entitled to still receive responses from replaced Phase II Opt-In Plaintiffs. To the extent Defendants seek responses from the 410 Phase II Opt-In Plaintiffs that have been replaced, Defendants' Motion to Compel is DENIED. To the extent Defendants seek responses from the 381 replacement Phase II Opt-In Plaintiffs, Defendants' Motion to Compel is GRANTED. To be abundantly clear, Defendants are allowed to receive a total of 507 responses to interrogatories, no more and no less. Plaintiff has sixty (60) days from the entry of this Order to provide responses to Defendants' interrogatories. Adequacy of Interrogatory Responses The Court will now address Defendants' concern that the Phase II Opt-In Plaintiffs who did respond to the interrogatories did not answer the Court-approved question. (ECF No. 405, 5.) The interrogatory, which is to be answered individually and verified by the Opt-In Plaintiff to whom it is directed, asks, “For each workweek that you worked for Defendants: (a) state whether you contend that you worked off the clock; and (b) if you contend that you worked off the clock, identify the number of hours for which you contend you were not compensated.” (ECF No. 380, 3.) Defendants contend that the Phase II Opt-In Plaintiffs “did not state whether they contend that they worked ‘off the clock’ during each week of their employment; and the Opt-Ins did not identify the number of hours for which Defendants allegedly failed to pay them during each week of their employment.” (ECF No. 405, 6.) Rather, they “provided a single, boiler-plate, attorney-generated statement regarding the ‘average’ number of hours they ‘worked’ for Defendants.” (Id.) The typical response stated, “On average, I worked approximately [number(s)] hours a week. The amount of off-the-clock hours worked can be ascertained by the pay and time records in Defendants' possession, incorporation by reference herein.” (Id. at 7.) Plaintiff argues the answers are adequate and in accordance with case law that allows employees to provide an estimated number of hours worked for purposes of damages discovery in off-the-clock cases where the employer failed to maintain accurate payroll records. (ECF No. 410, 11.) Furthermore, Plaintiff contends the format of the interrogatory responses makes it easy for Defendants to calculate the number of off-the-clock hours worked each workweek. (Id. at 13.) The “simple arithmetic equation” Defendants could use to calculate off-the-clock hours is: “number of hours Plaintiffs allege to have worked in their individual interrogatory responses minus (-) number of hours Plaintiffs were compensated for each workweek as reflected on Defendants' payroll records equals (=) number of hours Plaintiffs allege to have worked off-the-clock each workweek.” (Id.) *5 Contrary to Plaintiff's position, the issue is not whether Opt-In Plaintiffs are allowed to rely upon an estimated number of hours worked. The issue is whether the Phase II Opt-In Plaintiffs failed to answer the Court-approved interrogatory. To reiterate, the Court allowed one interrogatory question to be posed to 507 Phase II Opt-In Plaintiffs, asking “state whether you contend that you worked off the clock; and (b) if you contend that you worked off the clock, identify the number of hours for which you contend you were not compensated.” (ECF No. 380, 3.) The Court does not find the Phase II Opt-In Plaintiffs' responses to be adequate. Their responses fail to answer the most basic part of the interrogatory—whether they contend that they worked off the clock. Moreover, the Phase II Opt-In Plaintiffs did not attempt to identify the hours for which they were allegedly not compensated, but rather identified the number of hours they worked each week. They left it up to Defendants to calculate the number of off-the-clock hours by referring Defendants to Defendants' pay and time records. Because the Phase II Opt-In Plaintiffs made no attempt to answer Defendants' interrogatories, the Court GRANTS Defendants' Motion to Compel to the extent it seeks supplemental responses from the Phase II Opt-In Plaintiffs who did respond to the interrogatories. Those Phase II Opt-In Plaintiffs have sixty (60) days from the entry of this Order to supplement their responses. Document Requests In accordance with the Magistrate Judge's Order on Phase II Damages Discovery, Defendants served one document request on each of the 507 Phase II Opt-In Plaintiffs on whom Defendants had served an interrogatory. The document request stated, “Please provide copies of any and all documents that support your answer, or any part of your answer, to Interrogatory No. 1 in Defendants' Second Set of Interrogatories to [Opt-In Plaintiff].” (ECF No. 410-1, 2.) However, Defendants contend only two of the Phase II Opt-In Plaintiffs have responded to the requests for production. (ECF No. 405, 13.) Plaintiff posits that “the reality of the situation is that most of the Opt-In Plaintiffs do not possess responsive documents from this collective action that stems back to 2010.” (ECF No. 410, 14.) Thus, Plaintiff provided a Response to Defendants' Second Request for Production of Documents on Behalf of All Opt-In Plaintiffs stating (1) that the Opt-In Plaintiffs object to the request being overly broad, ambiguous, and vague, (2) that to the extent an individual Opt-In Plaintiff has not provided any documentation responsive to Defendants' request, that Opt-In Plaintiff does not possess any such documentation, and (3) if such documentation becomes known and in the possession of an Opt-In Plaintiff, the documentation will be produced on a rolling basis. (ECF No. 410-1, 2–3.) First, the Court will address Plaintiff's objection that the document request is overly broad, ambiguous, and vague. A request for production “must describe with reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 34(b)(1)(A). “The test for reasonable particularity is whether the request places the party upon reasonable notice of what is called for and what is not.” Nieves v. Baptist Mem. Med. Grp., Inc., No. 18-2748-JTF, 2020 U.S. Dist. LEXIS 109742, at *13 (W.D. Tenn. June 23, 2020) (internal quotations and citation omitted). The document request to the Phase II Opt-In Plaintiffs is directly tied to the Court-approved interrogatory. That is, the document requests seek any documentation relating to the Phase II Opt-In Plaintiffs' individual answers to Interrogatory No. 1, which again asks about off-the-clock hours. The types of documents that relate to off-the-clock hours and on-the-clock hours are limited. Realistically, time sheets and payroll are the types of documents that would relate to the information sought after in the interrogatories. The Court is satisfied that the document requests posed to the Phase II Opt-In Plaintiffs is reasonably particular, and any objections on the grounds of broadness, vagueness, and ambiguousness are not well-taken. With the understanding that Defendants' document requests are valid, the Court next turns to Plaintiff's response that to the extent an individual Opt-In Plaintiff has not provided any documentation responsive to Defendants' request, that Opt-In Plaintiff does not possess such documentation. If a party indicates that “after a reasonable inquiry, no documents exist that are responsive to the request, then their obligations under the Federal Rules are satisfied and the Court can compel nothing more.” In re Porsche Cars N. Am., Inc., 2012 U.S. Dist. LEXIS 136954, at *9 (S.D. Ohio Sept. 25, 2012). While the Court understands Defendants' frustration of receiving responses from only 2 of 507 document requests, the Phase II Opt-In Plaintiffs are not required to produce documents that do not exist. Based on Plaintiff's response, it appears to the Court that Plaintiff is cognizant of the continuing obligation to provide the requested documents to Defendants if any Phase II Opt-In Plaintiff becomes aware of any such documents. Accordingly, Defendants' Motion to Compel as to the document requests is DENIED. Depositions *6 Defendants have been authorized to take up to 50 depositions of Phase II Opt-In Plaintiffs. (ECF No. 380.) If a Phase II Opt-In Plaintiff fails to appear for deposition, for any reason, Defendants may select a replacement Phase II Opt-In Plaintiff for deposition. (Id.) Defendants contend that they have noticed the depositions of 151 Phase II Opt-In Plaintiffs, and as of the time of filing this Motion to Compel, 148 of those individuals should have appeared on the record. (ECF No. 405, 13.) Only 35 have appeared on the record. (Id.) The remaining 113 Phase II Opt-In Plaintiffs failed to appear for their noticed depositions and did not move for a protective order. (Id. at 15.) Defendants argue that by failing to move for a protective order, those 113 Phase II Opt-In Plaintiffs waived any objection to their depositions. (Id.) Defendants request that the Court compel “the non-appearing Opt-Ins to appear for deposition, including any Opt-Ins scheduled for deposition during the remainder of discovery who fail to appear, directing them to provide specific dates and times on which they will agree to appear within fourteen (14) days ....” (Id.) Plaintiff interprets Defendants' stance as seeking the Court to compel 113 depositions, in addition to the 41 depositions Defendants have already taken. (ECF No. 410, 9.) Plaintiff argues Defendants are allowed up to 50 depositions, and “[i]f they choose to replace an Opt-In Plaintiff for deposition, they cannot also compel a deposition for the Opt-In Plaintiff it has elected to replace.” (Id.) Plaintiff further contends that he has not yet objected to or sought a protective order against Defendants' notices of depositions because Defendants have not yet completed its 50 allotted depositions. (Id. at 10.) Defendants are entitled to take up to 50 depositions of Phase II Opt-In Plaintiffs. The Magistrate Judge's Order cannot logically be interpreted in any other way. Thus, to the extent Defendants seek depositions from the 113 Phase II Opt-In Plaintiffs who have not yet appeared for their depositions, Defendants' request is DENIED. At this time, the Court is unsure of the true number of depositions of Phase II Opt-In Plaintiffs Defendants have taken. However, using the data listed in the most recent filing with the Court—Defendants' Motion to Extend Discovery Deadlines, filed on October 21, 2019 (ECF No. 422)—Defendants state they have noticed 191 depositions and 141 Phase II Opt-In Plaintiffs have not responded. That means Defendants have taken their limit of 50 depositions, and there is nothing further to compel. (ECF No. 422, 2.) To the extent Defendants request the Court to compel the Phase II Opt-In Plaintiffs who have been noticed for depositions, Defendants' Motion to Compel is DENIED. CONCLUSION Based on the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants' Motion to Compel. IT IS SO ORDERED this 1st day of September, 2020.