Jennifer Dennis, Plaintiff, v. Greatland Home Health Services, Inc. and Monsuru Hassan, Defendants No. 19-cv-5427 United States District Court, N.D. Illinois, Eastern Division Signed June 11, 2020 Counsel James B. Zouras, Megan Shannon, Teresa M. Becvar, Stephan Zouras, LLP, Chicago, IL, for Plaintiff. Jeffrey S. Fowler, David A. Moore, Laner, Mutchin, Dombrow, Becker, Levin, and Tominberg, Ltd., Chicago, IL, for Defendants. Bucklo, Elaine E., United States District Judge Order *1 Defendant Greatland Home Health Services, Inc.'s (“Greatland”) motion to compel compliance with its subpoena of non-party Heroes Home Health (“Heroes”) [51] is granted in part and denied in part. This case involves a conditionally certified collective action brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Plaintiff and Opt-In Plaintiffs allege in relevant part that Greatland denied them overtime wages to which they were entitled. Greatland argues in response that the majority of the employees at issue never in fact worked more than forty hours per week. In service of this argument, Greatland subpoenaed Heroes for documents relating to two Opt-In Plaintiffs,[1] Dimitry Husen and Amjad Karim, who either were employed by or sought to be employed by Heroes on a part-time basis while simultaneously maintaining full-time employment with Greatland. Specifically, Greatland seeks documents pertaining to Husen and Karim during the period of their employment by Greatland relating to: “a) dates and times worked for Heroes Home Health; b) communications relating to their availability; c) compensation for their time worked; d) compensation arrangements with Heroes (but redacting dollar amounts for any information deemed confidential from a competitor); and e) communications about their work for Greatland.” R. 51-1 at 11. Heroes objects to the subpoena on two grounds: first, that the documents Greatland seeks are irrelevant to the claims and defenses in the instant action, and second, that discovery related to “absent class members” is generally disfavored. In support of the latter argument, Heroes points to cases discussing the appropriate scope of discovery in the context of Rule 23 class actions. See In re Plasma-Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666, 11 C 1468, 2012 WL 1533221, at *5 (N.D. Ill. Apr. 27, 2012); Rogers v. Baxter Int'l Inc., No. 04 C 6476, 2007 WL 2908829, at *7 (N.D. Ill. Oct. 4, 2007). Husen and Karim, however, are not absent members of a certified class, but rather Opt-In Plaintiffs in an FLSA collective action. Accordingly, the cases cited by Greatland “do not guide this Court's analysis.” Kuhl v. Guitar Center Stores, Inc., No. 07 C 0214, 2008 WL 5244570, at *3 (N.D. Ill. Dec. 16, 2008) (rejecting absent class members argument in FLSA case); see also Oropeza v. AppleIllinois, LLC, No. 06 C 7097, 2010 WL 3034247, at *4 (N.D. Ill. Aug. 3, 2010) (distinguishing general practice of limiting discovery for absent class members in Rule 23 class actions from discovery process in FLSA collective actions, where “the defendants are entitled to information about the opt-in plaintiffs, not only concerning the merits of the claim but also to discover if the proposed class is ‘homogenous’ ... or is ‘hopelessly heterogenous’ ”). *2 Nor am I convinced that all documents sought by Greatland are irrelevant. As noted above, Greatland intends to argue that Opt-In Plaintiffs did not work more than 40 hours per week in Greatland's employ. Indeed, Greatland has already taken that position in its brief opposing conditional certification, R. 22 at 7–9, and it may revisit the issue in a subsequent motion for decertification, or, presumably, in the context of damages. Accordingly, as Greatland explains, documents related “to Husen and Karim's employment activities and their communications about their availability to work” are relevant because “any hours when Husen and Karim worked for [Heroes, they] could not also be working overtime for Greatland,” and “statements about their availability to work” may constitute additional “evidence that th[ey] were not working overtime.” R. 51 ¶ 4. Heroes argues that there is a distinction between availability to work and hours worked in fact. That is true, but the former also may be probative of the latter. Greatland seeks more than information about Husen and Karim's hours worked and availability to work, however. In parts (c) and (d) of its document requests, Greatland asks for Husen and Karim's “compensation for their time worked” and “compensation arrangements with Heroes.” R. 51-1 at 11. Regarding the relevance of these documents, Heartland argues only that compensation records would likely contain information about the Opt-In Plaintiffs' hours worked and/or patients serviced. R. 55 ¶ 4. But if true, that information also would be responsive to Greatland's three other requests regarding time worked and availability. Accordingly, I am not convinced that the compensation information sought is independently relevant. For the forgoing reasons, I grant in part Greatland's motion to compel production of documents responsive to requests (a), (b), and (e) (regarding time worked and availability) and deny the motion with regard to document requests (c) and (d) (regarding compensation information).[2] Footnotes [1] Heroes alludes to a vague “understanding” that “Husen or Karim or both have opted out of the Plaintiff Class,” but provides no support. R. 54 at 6 n.1. In the absence of evidence to the contrary, I will assume that Husen and Karim remain Opt-In Plaintiffs for purposes of this decision. [2] Although the papers raise the issues of contempt and attorneys' fees, Greatland clarifies in its reply that it is not “asking this Court to enter sanctions now.” R. 55 ¶ 7. Because the issue of sanctions is not currently before me, I do not address it here.