Timothy REPASS and William McCandless, individually and on behalf of all others similarly situated, Plaintiffs, v. TNT CRANE AND RIGGING, INC., Defendant MO:18-CV-00107-DC-RCG United States District Court, W.D. Texas, Midland-Odessa Division Signed June 11, 2021 Counsel Aaron Michael Johnson, Fair Labor Law, Austin, TX, Daniel Anthony Verrett, Edmond S. Moreland, Jr., Moreland Verrett, P.C., Wimberley, TX, for Plaintiffs. G. Mark Jodon, Kevin S. Little, Jonathan Andrew Sprague, Littler Mendelson, P.C., Houston, TX, for Defendant. Griffin, Ronald C., United States Magistrate Judge ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR PROTECTIVE ORDER AND GRANTING IN PART DEFENDANT'S MOTION TO COMPEL DEPOSITIONS *1 BEFORE THE COURT is Plaintiffs Timothy Repass and William Scott McCandless's (“Plaintiffs”) Opposed Motion for Protective Order and Representative Discovery (“Motion for Protective Order”) (Doc. 101) and Defendant TNT Crane and Rigging, Inc.'s Motion to Compel Depositions of Plaintiffs (“Motion to Compel”) (Doc. 117). This case is before the undersigned through an Order pursuant to 28 U.S.C. § 636 and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. (Doc. 102). The undersigned held a joint hearing on Plaintiffs' and Defendant's Motions on June 8, 2021. After due consideration of the applicable case law, the parties' briefings and arguments at the hearing, the Court GRANTS IN PART Plaintiffs' Motion for Protective Order (Doc. 101) and GRANTS IN PART Defendant's Motion to Compel (Doc. 117). I. BACKGROUND On June 18, 2018, Plaintiffs filed this case as a collective action alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq. (Doc. 1). Plaintiffs filed their First Amended Complaint on July 11, 2018, adding claims under the New Mexico Minimum Wage Act, NMSA § 50–4–19, et. seq. (Doc. 12). Defendant TNT Crane and Rigging, Inc. (Defendant) is “one of the largest crane [and rigging companies] in the world” and provides lifting services throughout North America. (Doc. 12 at 5). Plaintiffs worked for Defendant as crane operators. Id. at 5. According to Plaintiffs, Defendant operates its business out of yards in Midland, San Antonio, and Houston, Texas. (Doc. 20 at 2). Plaintiffs claim Defendant failed to properly compensate its employees for overtime, including for “drive time” or “off-the-clock” preparatory and concluding time. Id. at 9. On February 6, 2019, the District Court adopted the undersigned's Report and Recommendation, which granted Plaintiffs' Motion for Conditional Certification and conditionally certified the following class: ALL CURRENT AND FORMER CRANE OPERATORS OF DEFENDANT WHO WORKED OUT OF DEFENDANT'S MIDLAND, SAN ANTONIO, OR HOUSTON YARDS AT ANY TIME IN THE LAST THREE YEARS. (Doc. 29 at 2). Plaintiffs originally filed their Motion for Protective Order on July 31, 2020. (Doc. 89). However, the case entered an automatic bankruptcy stay on August 25, 2020. (Doc. 93). This case subsequently reopened on December 3, 2020. (See Docs. 98, 99). Plaintiffs then reurged the instant Motion for Protective Order on December 4, 2020. (Doc. 101). Defendant filed its Response to the Motion for Protective Order on December 11, 2020 and Plaintiffs filed a Reply on December 16, 2020. (Docs. 103, 104). Then on April 27, 2021, Defendant filed the instant Motion to Compel and Plaintiffs filed their Response on June 8, 2021. (Docs. 117, 123). The undersigned U.S. Magistrate Judge conducted a hearing on both Plaintiffs' Motion for Protective Order and Defendant's Motion to Compel on June 8, 2021. II. DISCUSSION In their Motion for Protective Order, Plaintiffs ask the Court to enter a “protective order to define the scope of representative discovery going forward” by: (1) quashing outstanding written discovery propounded on all Plaintiffs'; (2) limiting Defendant to deposing six of the forty-five[1] Plaintiffs and limiting those six depositions to two hours; and (3) limiting Defendant—in motion practice and at trial—to using written discovery responses from those same, previously-selected six Plaintiffs. (Docs. 101, 101-6). *2 Conversely, in its Motion to Compel, Defendant asks the Court to compel Plaintiffs to: (1) allow Defendant to depose nine Plaintiffs from Defendant's Houston yard; (2) allow Defendant to depose eight Plaintiffs from Defendant's Midland yard; (3) allow Defendant to depose seven Plaintiffs from Defendant's San Antonio yard; and (4) provide Defendant at least three weekday dates between 8 a.m.–6 p.m. on which each Plaintiff identified by Defendant as provided above is available to appear for a deposition via teleconference. (Docs. 117, 117-5). During the June 8, 2021 hearing, the parties advised the Court that six Plaintiffs have been deposed to date—the two named Plaintiffs and four opt-in Plaintiffs. Additionally, Plaintiffs stated to the Court that there are currently no outstanding discovery responses. As a result, Plaintiffs' request that the Court quash all outstanding written discovery propounded on Plaintiffs is DENIED AS MOOT. (Doc. 101). The Court now enters the following representative discovery plan: The Court ORDERS that Defendant will be allowed to conduct a total of fifteen depositions of Plaintiffs. However, the six depositions already completed count towards that total—giving Defendant nine remaining depositions. Defendant will be allowed to select the nine Plaintiffs it wishes to depose, from any yard. The Court further ORDERS the nine depositions mentioned above shall last no longer than one and a half hours each and may take place remotely via teleconference unless otherwise agreed upon by the parties. III. CONCLUSION Based on the foregoing discussion, it is ORDERED that Plaintiffs' Motion for Protective Order is GRANTED IN PART as to entry of a representative discovery plan, limiting the number of Plaintiffs Defendant may depose, as well as the length of said depositions. (Doc. 101). Additionally, Defendant's Motion to Compel is GRANTED IN PART to the extent that Defendant may depose additional Plaintiffs as set forth in this Order. (Doc. 117). It is so ORDERED. Footnotes [1] At the time Plaintiffs filed their Motion, there were 33 opt-in Plaintiffs—there are now 43 opt-in Plaintiffs. (Compare Doc. 101 with Doc. 117). The parties also advised the Court at the June 8, 2021 hearing that there are now a total of 45 Plaintiffs in this lawsuit.