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 November 10, 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 Defendants’ motion to compel discovery from Opt-In Plaintiffs [63] 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 also brings a putative Rule 23 class action asserting claims under the Illinois Minimum Wage Law (“IMWL”), 820 Ill. Comp. Stat. § 105/1 et seq., and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 Ill. Comp. Stat. § 115/1, et seq. Plaintiff alleges that her employer, Defendant Greatland Home Health Services, Inc. (“Greatland”), denied her and her peers overtime wages to which they were entitled under the FLSA and the IMWL, and further failed to reimburse them for expenses as required by the IWPCA. Defendants now move to compel FLSA Opt-In Plaintiffs to respond to written discovery served May 29, 2020. I take each of Defendants’ requests in turn. I. First, eleven of the Opt-In Plaintiffs[1] have not yet responded to the written discovery at all, and their responses are now months overdue. Defendants request that these Opt-In Plaintiffs be dismissed with prejudice as a discovery sanction under Federal Rule of Civil Procedure 37(d)(3), or, alternatively, that they be compelled to respond. ECF No. 63 ¶ 6. “[I]t is well settled in this circuit that the ultimate sanction of dismissal should be involved “ ‘only in extreme situations, where there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.’ ” ” Rice v. City of Chicago, 333 F.3d 780, 785–86 (7th Cir. 2003) (citations omitted). Moreover, “[c]ourts customarily give a warning before dismissing a plaintiff as a discovery sanction.” Tamas v. Family Video Movie Club, Inc., No. 11 C 1024, 2015 WL 13676738, at *3 (N.D. Ill. Apr. 13, 2015) (collecting cases); see also Vennet v. Am. Intercontinental Univ. Online, No. 05 C 4889, 2007 WL 4442321, at *7 (N.D. Ill. Dec. 13, 2007) (“[T]he sanction of dismissal generally will not be imposed unless the plaintiff ... repeatedly fails to comply with discovery.”). Accordingly, dismissal is too extreme a sanction to impose at this time. I do grant, however, Defendants’ motion to compel the eleven Opt-In Plaintiffs to respond to the written discovery. The responses will be due not later than 14 days after issuance of this order. I also warn the Opt-In Plaintiffs that a failure to observe this deadline could result in dismissal as a discovery sanction in the future. II. Defendants also move to compel all Opt-In Plaintiffs to fully respond to Interrogatory 1: “During the period of your employment with Greatland, identify each workweek that you claim you worked more than 40 hours for Defendant(s), identify the specific dates you worked for Defendant(s), the number of hours worked on each such date, the specific activities you engaged in on each such date, and all documents relating to your activities on each such date.” Defendants complain that the Opt-In Plaintiffs who responded to this interrogatory provided only “average” hours worked per week, rather than providing a detailed date-by-date accounting of their time as Defendants requested. *2 Opt-In Plaintiffs argue that they are not required to respond with the detail Defendants seek. They point out that where, as here, employees allege that an employer fails to maintain accurate time records as required under the FLSA, the employee has the burden to show only “the amount and extent of th[e] work [performed] as a matter of just and reasonable inference.” See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds, 29 U.S.C. § 254(a), as recognized in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 32–33 (2014). Opt-In Plaintiffs, however, confuse their burden of proof with their discovery obligations. They seem to be arguing that the information requested is not required for their case, so it is not relevant. But as the Mt. Clemens case they cite makes clear, if an employee meets its initial burden regarding the time worked, “[t]he burden then shifts to the employer to come forward with evidence ... to negative the reasonableness of the inference to be drawn from the employee's evidence.” 328 U.S. at 687–88. Defendants need to know what evidence they are expected to negate. See Folger v. Medicalodges, Inc., No. 13-1203-MLB, 2013 WL 6244155, at *2 (D. Kan. Dec. 3, 2013) (granting motion to compel discovery of Plaintiff's telephone records in part because of their relevance to Defendants in the context of the burden-shifting framework laid out by Mt. Clemens). Opt-In Plaintiffs argue that some of the information requested in Interrogatory 1 resides in Defendants’ “HomeCare Homebase” and “Netsmart” electronic medical records systems, which Defendants have either produced or are in the process of producing. I will not require Opt-In Plaintiffs to provide information that would duplicate what has already been produced. However, Opt-In Plaintiffs claim that they worked more hours than are reflected in Defendants’ databases. See ECF No. 66 at 4. Defendants are rightly concerned that Opt-In Plaintiffs may have more detailed information regarding these alleged additional hours, and Opt-In Plaintiffs could surprise Defendants with the information later, denying Defendants “the opportunity to either corroborate or contradict their claims.” ECF No. 67 at 4. Accordingly, Opt-In Plaintiffs must either fully answer the interrogatory as to all days they claim to have worked longer than reflected in Defendants’ databases, or state that they do not have the information sought. See Arenas v. Unified Sch. Dist. No. 223, No. 15-CV-9359-JWL-TJJ, 2016 WL 5122872, at *4 (D. Kan. Sept. 21, 2016) (requiring FLSA Plaintiff to respond to interrogatory regarding hours worked to the extent those hours were not reflected in Defendants’ records). For the foregoing reasons, Defendants’ motion to compel Opt-In Plaintiffs to fully respond to Interrogatory 1 is granted to the extent the interrogatory is modified to require a response only as to information not reflected in Defendants’ databases. III. Next, Defendants move to compel Opt-In Plaintiffs Kevin Dolan, Amjad Karim, and Elizabeth Johnston to fully respond to Interrogatory 3, which sought detailed week-by-week information regarding any other professional or employment activities Opt-In Plaintiffs engaged in during the period of their employment with Greatland. Again, Defendants complain that the information Opt-In Plaintiffs provided was too general. Defendants also move to compel these Opt-In Plaintiffs to respond to a related document request and produce the following documents pertaining to Opt-In Plaintiffs’ other employment activities: “a) dates and times of such activities; b) communications relating to their availability; and c) communications with third parties about their work for Greatland.” ECF No. 63 ¶ 9. I decline to grant the motion to compel with respect to Opt-In Plaintiff Dolan. Mr. Dolan provided, in his initial response to Interrogatory 3, that he “may have picked up a part-time position with another company while he was also working part-time for Defendants, however he is not asserting a claim for unpaid overtime during that time period.” ECF No. 66-3 at 5. Accordingly, I cannot see how the time Mr. Dolan worked for the other company could be relevant to his unpaid overtime claim. *3 I do grant the motion to compel with respect to Opt-In Plaintiffs Karim and Johnston. Opt-In Plaintiffs complain that Defendants have already subpoenaed and received documents from Karim and Johnston's other place of employment, Heroes Home Health, such that Defendants’ requests are duplicative. Again, Opt-In Plaintiffs need not re-produce material that has already been produced in this litigation. However, to the extent Opt-In Plaintiffs have additional documentation or information responsive to Defendants’ requests, it should be produced. Notably, Opt-In Plaintiff Karim provided in his response to Defendants’ document requests that he was “withholding records relating to his compensation received from Heroes Home Health.” ECF No. 63-5 at 4. I have previously held that Opt-In Plaintiffs’ compensation arrangements with Heroes Home Health are not “independently relevant.” ECF No. 68-1 at 4. However, to the extent compensation records provide non-duplicative information regarding the hours Opt-In Plaintiffs worked for Heroes Home Health, they are relevant for that reason and should be produced. IV. Defendants also seek to compel Opt-In Plaintiff Karim to respond to Document Request 4,[2] which sought documents related to Mr. Karim's “significant activities”—i.e., activities that took more than two hours—on days for which he asserts an unpaid overtime claim. Opt-In Plaintiff Karim objects to disclosing his “sensitive private information,” ECF No. 66 at 9, but such information is protected by the Confidentiality Order in place for this case. See ECF No. 20. Nor am I convinced that production of this information would be unduly burdensome for Mr. Karim, particularly given that his period employment with Greatland was “brief.” ECF No. 66 at 9. Accordingly, I grant Defendants’ motion to compel Mr. Karim to respond to Document Request 4.[3] V. Finally, Defendants move to compel all Opt-In Plaintiffs to respond more specifically to Interrogatory 5, which asks each Opt-In Plaintiff to “[i]dentify and describe in detail all of the business expenses [he or she] incurred relating to [his or her] employment with Greatland” and provide details regarding approval and reimbursement of those expenses. In contrast with the requests discussed above, Interrogatory 5 is relevant not to Plaintiff's FLSA claim for unpaid overtime, but to her putative class action reimbursement claim under the IWPCA. Discovery from absent class members is not warranted “as a matter of course.” Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971). Generally, “an absent class member is given a ‘free ride’ under Rule 23 and has no duty to actively engage in the prosecution of the action.” Id. Discovery from absent class members may be “allowed ... in appropriate circumstances,” Rogers v. Baxter Int'l Inc., No. 04 C 6476, 2007 WL 2908829, at *1 (N.D. Ill. Oct. 4, 2007), objections overruled, No. 04 C 6476, 2008 WL 11517166 (N.D. Ill. May 29, 2008), but “[d]iscovery from absent members of the putative class is not the norm,” 1 McLaughlin on Class Actions § 3:9 (17th ed. 2020) (emphasis added), and such discovery generally “requires a demonstration of need,” Manual for Complex Litigation § 21.14 (4th ed. 2020); see also Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634, 636 (D. Kan. 2012) (declining to order discovery of individual putative class members’ compensation information in action under state wage and hour law, and noting that “[g]enerally, pre-certification discovery should pertain to the requirements of Rule 23 ...”). *4 Here, Defendants have not demonstrated a clear need for the detailed pre-certification discovery of absent class members they seek. Accordingly, I decline to grant Defendants’ motion to compel Opt-In Plaintiffs to provide a more detailed response to Interrogatory 5. Defendants also seek to compel a response to an additional interrogatory subsequently served on Opt-In Plaintiffs regarding the basis for Opt-In Plaintiffs’ claimed “understanding” that Greatland did not allow employees to submit expense reimbursements. I decline to compel a response for the same reasons I denied the motion regarding Interrogatory 5. I also note that Opt-In Plaintiffs’ counsel has already represented to Defendants that the basis for each Opt-In Plaintiff's understanding was that “Plaintiffs were not told expenses could be reimbursed.” ECF No. 63 ¶ 8. Moreover, Defendants will have the opportunity to explore the basis for this understanding when they depose a subset of the Opt-In Plaintiffs. VI. There is one additional matter that requires my attention. The parties agree that in light of the issues discussed above, the current discovery deadline is unrealistic. Accordingly, I amend the schedule set in the order entered May 22, 2020 [48] as follows: Fact discovery is ordered closed by January 29, 2021. Plaintiff's expert reports are due March 5, 2021. Defendants’ expert reports are due April 5, 2021. Dispositive motions with supporting memoranda are due April 1, 2021. Footnotes [1] These Opt-In Plaintiffs are: Jezza Bonilla, John Michael Cuenca, Jeanette Gregory, Jocelyn Griffin, Nakia James, Johanne Johnson, Larry Powell, Tiwanna Wallace-Abgenyegah, Sir George Washington, Marie Wilczak, and Kristina Wong. [2] Defendants appear to have mistakenly referred to this request as “Document Request No. 10” in their motion. See ECF No. 63-5 at 4; ECF No. 66 at 9 n.2. [3] Defendants did not move to compel Mr. Karim to respond to Interrogatory 4, which also sought information regarding Mr. Karim's “significant activities.” Accordingly, I do not address that interrogatory here.