Kenneth LINDSAY and Jesse Owens, individually and on behalf of other similarly situated individuals, Plaintiffs, v. CLEAR WIRELESS LLC and Workforce Logic LLC, Defendants Civil No. 13–834 DSD/AJB United States District Court, D. Minnesota Signed January 03, 2014 Counsel Eric D. Satre, Satre Law Firm, St. Paul, MN, Jarvis C. Jones, Jones Satre & Weimer, Bloomington, MN, for Plaintiffs. Brian L. Mosby, Littler Mendelson, P.C., Indianapolis, IN, John H. Lassetter, Kerry L. Middleton, Stephanie M. Laws, Littler Mendelson, PC, Mpls, MN, Niloy Ray, Littler Mendelson, P.C., Chicago, IL, Daniel R. Hall, Mary L. Knoblauch, Anthony Ostlund Baer & Louwagie PA, Mpls, MN, Joyce Ackerbaum Cox, Baker & Hostetler LLP, Orlando, FL, Dean A. LeDoux, Gregory R. Merz Janet C. Evans, Matthew P. Webster, Meghann F. Kantke, Gray Plant Mooty Mooty & Bennett, PA, Mpls, MN, for Defendants. Boylan, Arthur J., United States Magistrate Judge ORDER ON PLAINTIFFS' MOTION TO COMPEL DISCOVERY *1 This matter is before the Court, Chief Magistrate Judge Arthur J. Boylan, on plaintiffs' (“Lindsay”) Motion to Compel Discovery [Docket No. 38]. Hearing was held September 23, 2013, at the U.S. Courthouse, 300 South Fourth Street, Minneapolis, Minnesota 55415. Plaintiffs move for an order compelling production of “similarly situated” discovery and discovery regarding named plaintiffs, as well as emails-in native format and other ESI communications. Plaintiffs also move to shift the costs of electronic discovery to the defendants, seek to amend the pretrial scheduling order to allow time to complete conditional class certification discovery, and request attorneys' fees for this motion. Jarvis C. Jones, Esq., and Eric D Satre, Esq., appeared on behalf of the plaintiffs; Jeffrey A. Timmerman, Esq., Niloy Ray, Esq., and Kerry L. Middleton, Esq., appeared for defendant Clear Wireless LLC; and Joyce Ackerbaum Cox, Esq., and Mary L. Knoblauch, Esq., appeared for defendant Workforce Logic LLC. The present motion to compel discovery was served and filed on September 10, 2013, and Motion for Judicial Notice to Putative Class Members [Docket No. 53] was filed shortly thereafter on September 13, 2013. A Motion for Conditional Certification [Docket No. 76], also including a motion for judicial notice was filed on October 2, 2013. The motions for conditional certification and judicial notice are addressed by separate Order issued contemporaneous to this Order on discovery. An initial Pretrial Scheduling Order [Docket No. 29] was issued on July 1, 2013. The court therein expressly noted the parties' disagreement as to permissible early discovery and implicitly limited discovery prior to conditional certification, stating that full discovery could proceed after issuance of an order on class certification. Meanwhile, on a request from the parties seeking clarification of the Pretrial Scheduling Order, the court simply advised the parties that the scope of discovery was not strictly limited to similarly situated discovery [Docket No. 30]. The parties have taken substantially differing views as to permissible discovery under the initial Pretrial Scheduling Order, and this motion is the result. It is the court's determination that much of plaintiffs' requested discovery was premature for purposes of conditional class certification, but that in light of the contemporaneous order on conditional certification, some additional discovery on class certification is now appropriate. However, the court further concludes that such discovery is properly subject to a second pretrial scheduling order to address the next stage of the litigation and discovery should also be subject to the meet and confer requirements to the extent disputes remain as to individual interrogatories and document requests. To the extent the present motion puts forth issues that are ripe for consideration under the current posture of the case, and in consideration of the file, memorandums, affidavits, exhibits, and arguments of counsel, the court makes the following: ORDER *2 1. Plaintiffs' Motion to Compel Discovery [Docket No. 38] is denied in part and granted in part as further provided herein. 2. Plaintiffs' motion to compel disclosure of witnesses and documents that may be used by defendants to support affirmative defenses that putative plaintiffs are not similarly situated, pursuant to the initial disclosure requirement of Fed. R. Civ. P. 26(a)(1)(A), is denied. Defendants assert that required initial disclosures of witnesses and documents were made and that supplemental disclosures will be provided in the event it is determined that additional witnesses and documents will be used to support claims or defenses. In essence, plaintiffs assert their definition of “similarly situated” in a manner that encompasses the entire potential class of employees and seeks initial disclosures relating to each individual employee. The court finds this definition to be over broad for purposes of initial disclosures, as well as for pre-certification discovery, and the motion is therefore denied. Cambria v. Pental Granite and Marble, Inc. 2013 WL 3381033 at *1 (D. Minn., July 8, 2013) (citing Crawford–El v. Britton, 523 U.S. 574, 598 (1998) (court has broad discretion to tailor discovery narrowly)). In addition, discovery issues may be revisited as case circumstances warrant. Id. (citing McGowan v. Gen. Dynamics Corp., 794 F.2d 361, 363 (8th Cir. 1986)). 3. Plaintiffs' motion for further response to Plaintiffs Interrogatory No. 1 (Set I) and Interrogatories Nos. 2 and 3 (Set II) seeking names, addresses, and employment related information for similarly situated putative class members is denied except as provided pursuant to the court's Order on conditional certification and Judicial Notice. The Pretrial Scheduling Order issued July 1, 2013 [Docket No. 29], expressly provides that a motion for conditional class certification in this opt-in class action was contemplated; that initial discovery would be limited in time and scope; and that full discovery could proceed only after the matter of conditional class certification was decided. With respect to the initial phase discovery that is presently before the court the plaintiffs have taken the position that the case has been open to full discovery since issuance of the scheduling order, based upon the docket text only order which stated “[t]he parties are not limited to conducting similarly situated discovery. The Court has limited the period of discovery, but not the scope of discovery.”[1] Though the scope of pre-conditional certification discovery is broader that “similarly situated” discovery, it is something substantially less than full discovery and does not expressly entail non-party discovery. In any event, the court finds that the requested identifying information is not relevant to a present party's claims or defenses and therefore discoverable under Rule 26(b)(1). Knutson v. Blue Cross and Blue Shield of Minnesota, 254 F.R.D. 553, 557 (D. Minn. 2008). Plaintiffs' have not persuasively shown than the information that is requested is discoverable for some purpose other than identifying and facilitating contact with prospective plaintiffs. Id. (citing Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 257 (D. Minn. 1991)). Indeed, it is patently obvious that the objective of Interrogatory No. 1 (Set I) and Interrogatories Nos. 2 and 3 (Set II) is to obtain information that would have little initial usefulness except to solicit additional plaintiffs in support of the motion for conditional certification. The court does not construe this to be permissible “similarly situated” discovery at this stage of the litigation and the motion is therefore denied. Furthermore, though not necessarily dispositive on the issue, the plaintiffs have not shown that they are otherwise wholly unable to obtain contact information for other potential class members. Id. at 558. *3 4. Plaintiffs' motion for an order requiring production of discovery pertaining to named defendants Lindsay and Owens from defendant Clear Wireless LLC (“Clearwire”) is denied without prejudice. Plaintiffs are not herein precluded from re-serving the same or modified interrogatories and document requests and defendant may respond or object as appropriate. Interrogatories and document requests which were subjects of this motion to compel, but were not specifically addressed by the court, shall be counted only once toward the total number of allowed interrogatories and document requests pursuant to a future amended pretrial scheduling order. This Order shall not be construed to relieve defendant Clearwire of its obligation to timely supplement discovery responses that have previously been provided in the event applicable information and documents are generated or discovered. 5. Plaintiffs' motion for an order requiring production of discovery pertaining to named defendants Lindsay and Owens from defendant Workforce Logic LLC (“Workforce”) is denied without prejudice. Plaintiffs are not herein precluded from re-serving the same or modified interrogatories and document requests and defendant may respond or object as appropriate. Interrogatories and document requests which were subjects of this motion to compel, but were not specifically addressed by the court, shall be counted only once toward the total number of allowed interrogatories and document requests pursuant to a future amended pretrial scheduling order. This Order shall not be construed to relieve defendant Workforce of its obligation to timely supplement discovery responses that have previously been provided in the event applicable information and documents are generated or discovered. 6. Plaintiffs' motion for an order requiring production of managers' emails in native format pursuant to Plaintiffs' Document Requests (Set I and II) is denied. Defendants will not be compelled to produce the materials in native format. In the court's Order Regarding Electronic Discovery Protocol, ¶ B.1 and 2, issued on August 7, 2013 [Docket No. 34], it was specifically stated that electronic document were to be produced in a TIFF image format, a party may not seek to compel production of native format files of electronic documents on a wholesale or categorical basis, and a party requesting native format documents must demonstrate a particularized need. The order additionally states that a request for electronically stored information (“ESI”) in native format must be made 45 days after the ESI has already been produced in another format. Plaintiffs are now seeking ESI in native format in the first instance. Under such circumstances it cannot be shown that an non-native format production is somehow insufficient, and the requesting party (plaintiffs) cannot demonstrate a particularized need for a native file production as contemplated under the Order Regarding Electronic Discovery Protocol. 7. Plaintiffs' motion for an order requiring production of managers' Excel “Sales Charts pursuant to Plaintiffs' Document Requests (Set I and II) in native format is denied. Order Regarding Electronic Discovery Protocol, ¶ B.8. There is no showing that the requested materials have previously been produced in a TIFF format and that there is a particularized need for disclosure of the documents in native format. 8. Plaintiffs' motion for an order requiring defendants to bear the costs of producing work-related emails in TIFF format, with metadata, production of managers' emails pursuant to Plaintiffs' Document Requests (Set I and II) in native format is denied. The Order Regarding Electronic Discovery Protocol expressly provides for production of ESI in the TIFF format, and the court finds that shifting the cost of production to the opposing parties because the emails were created on plaintiffs' personal computers is not warranted. *4 9. Plaintiffs' motion for an order requiring defendants to certify their discovery responses is denied. There is no showing whatsoever of bad faith, deception, evasion, or other conduct by defendants to justify such a requirement. Plaintiffs have not persuasively shown that the defendants' have failed to properly investigate and respond to interrogatories or have failed to produce properly requested documents, but rather, they demand assurances by way of certification. In the absence of spoliation or other indications of misconduct, the court finds no justification for certification beyond the usual signing. In any event, the duty to supplement discovery responses and document production is a continuing responsibility. 10. Plaintiffs' motion to amend the scheduling order to provide additional time for requested productions, for review of such productions, and for depositions, is granted. The parties shall confer with the appointed magistrate judge for purposes of scheduling. 11. Plaintiff's motion for attorneys' fees and costs incurred in bringing this motion to compel discovery is denied. Footnotes [1] [Docket No. 30].