David M. OATES, on behalf of himself and others similarly situated, Plaintiff, v. KINDER MORGAN ENERGY PARTNERS, L.P., Defendant Case No. CIV-19-1171-SLP United States District Court, W.D. Oklahoma Signed April 20, 2022 Counsel Andrew W. Dunlap, Lindsay Itkin Reimer, Fibich Leebron Copeland Briggs & Josephson, Houston, TX, Michael A. Josephson, Josephson Dunlap Law Firm, Houston, TX, Michael K. Burke, Richard J. Burch, Bruckner Burch PLLC, Houston, TX, Michael Burrage, Reggie N. Whitten, Whitten Burrage, Oklahoma City, OK, for Plaintiff. Christopher S. Thrutchley, Gable & Gotwals, Tulsa, OK, David B. Jordan, G. Mark Jodon, Littler Mendelson, Houston, TX, for Defendant. Palk, Scott L., United States District Judge ORDER *1 Before the Court is Intervenor's Motion to Compel Discovery [Doc. No. 169]. It is at issue. See Def. Kinder Morgan Energy Partners, L.P.’s Opp'n Cleveland Integrity Services, Inc.’s Mot. Compel Disc. [Doc. No. 171]; Reply Supp. Mot. Compel Disc. [Doc. No. 173].[1] I. Background Plaintiff brought this collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., on behalf of day rate inspectors paid according to a pay plan utilized by Defendant Kinder Morgan Energy Partners, L.P. (“Kinder Morgan”). This plan allegedly paid a flat daily rate for hours worked including those in excess of forty in a workweek. See Original Compl. [Doc. No. 1], ¶ 2. Plaintiff alleges that the pay plan violates the FLSA because the day rate inspectors did not receive overtime pay. Id. ¶ 3. On February 10, 2021, the parties filed a notice with the Court that they had partially settled the case. See Joint Notice of Partial Settlement [Doc. No. 87]. Specifically, the parties informed the Court they had settled claims of putative class members who were staffed to Kinder Morgan by eight vendor companies that did not include intervenor Cleveland Integrity Services, Inc. (“CIS”) or Kestrel Field Services, Inc. The parties subsequently informed the Court that they had successfully settled all claims in this action, including the claims of putative plaintiffs who were staffed by CIS and Kestrel. See Am. Joint Notice of Settlement [Doc. No. 102]. Two months later, Plaintiff requested the approval of the parties’ settlement agreement. See Pl.’s Unopposed Mot. Approve FLSA Settlement [Doc. No. 122]. The Court denied that settlement approval motion without prejudice. See Order [Doc. No. 176]. Intervenor CIS has issued one request for production (“RFP”) and one interrogatory to Kinder Morgan that CIS argues bear on the Court's evaluation of the fairness of the settlement between Plaintiff and Kinder Morgan.[2] The RFP requests “[t]he memorandum of understanding or – if none --other writings (including emails) setting out the settlement amount of the initial settlement announced on February 10, 2021 (Dkt. 87) that excluded all CIS employees.” Req. Produc. Docs. [Doc. No. 169-1], at 2. The interrogatory requests Kinder Morgan Identify the total number of inspection companies engaged by Kinder Morgan from December 18, 2016 to present with employees who fall within the definition of the collective action set forth in Paragraph 11 of the Complaint (Dkt. 1), stating also the best approximation of the total number of such collective action members across all such inspection companies. Interrog. [Doc. No. 169-1], at 3-4. Kinder Morgan responded with various objections to both requests. See Def.’s Resps. Intervenor's Req. Produc. Interrog. [Doc. No. 169-2]. II. Discussion *2 Rule 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). As set forth, the Rule continues to expressly provide that information “need not be admissible in evidence to be discoverable.” Id. “[R]elevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party's claim or defense.” United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). “When the discovery sought does not readily appear relevant, the burden rests on the party seeking discovery to show its relevancy.” Henderson v. United States, No. 20-CV-113-J, 2021 WL 2176927, at *2 (D. Wyo. Feb. 5, 2021). The Court finds that CIS has not demonstrated that the RFP seeks relevant information. CIS argues that “[o]ne of the key questions for [settlement] approval ought to be whether the second version eroded the per inspector recovery” which “can only be evaluated when the settlement price of the first settlement is disclosed and compared with the second version[.]” Mot. 3-4 (emphasis omitted). But CIS fails to show the Court how comparing the second settlement figure to the first is relevant to the Court's task in evaluating the fairness of the eventual settlement in this action—especially now that the Court has denied the second version of the settlement. Although CIS cites to In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1124 (7th Cir. 1979) in its reply brief, that case involved a class action and Rule 23(a)(4). Cf. Martinez v. Schlumberger Tech. Corp., No. CV 16-945 JCH/KRS, 2018 WL 1581242, at *3 n.4 (D.N.M. Mar. 28, 2018) (noting that “[t]he requirements of Rule 23 do not apply to FLSA actions” and that a showing of adequacy of representation need not be made to opt into an FLSA collective action).[3] CIS's interrogatory seeking the potential complete universe of day rate inspectors fares no better. CIS ties its interrogatory to the task of defining who is “similarly situated” under 29 U.S.C § 216(b). However, an FLSA collective action does not need to include every potential affected worker because in such an action, individual plaintiffs pursue their own claims. See Logan v. United Am. Sec., LLC, No. 21-CV-00257-NYW, 2021 WL 4990305, at *4 (D. Colo. Oct. 26, 2021); see also Oldershaw v. DaVita Healthcare Partners, Inc., 255 F. Supp. 3d 1110, 1115 (D. Colo. 2017) (“Claims of potential plaintiffs who do not ‘opt-in’ are unaffected by the [FLSA] lawsuit.”). Additionally, CIS argues that “[i]f settlement for absentees is permissible at all, part of the judicial evaluation of the parties’ proposed settlement is necessarily whether all potential members of the putative collective are being treated equitably relative to each other.” Mot. 6 (citing Fed. R. Civ. P. 23(e)(2)(D)). But CIS fails to show that this particular factor applies to potential collective action members or even applies in the FLSA settlement approval context at all. See Geist v. Handke, No. 2:17-CV-02317-HLT, 2018 WL 6204592, at *2 (D. Kan. Nov. 28, 2018) (listing the factors that courts consider when assessing whether an FLSA settlement is fair and equitable to the parties). Thus, CIS fails to show that the information sought by its interrogatory is relevant. III. Conclusion *3 IT IS THEREFORE ORDERED that Intervenor's Motion to Compel Discovery [Doc. No. 169] is DENIED.[4] IT IS SO ORDERED this 20th day of April, 2022. Footnotes [1] The Motion fails to comply with Local Civil Rule 37.1. Cleveland Integrity Services, Inc. is cautioned that failing to comply with the Local Civil Rules of this Court in the future could result in filings being stricken summarily. [2] The Court must approve the parties’ settlement agreement in this FLSA case. Lynn's Food Stores, Inc. v. U.S., 679 F.2d 1350, 1353-55 (11th Cir. 1982); Cazeau v. TPUSA, Inc., No. 218CV00321RJSCMR, 2021 WL 1688540, at *2 (D. Utah Apr. 29, 2021). [3] In its supplemental brief supporting its motion to intervene, CIS argued against invoking Rule 23. See CIS's Suppl. Br. Supp. Mot. Intervene [Doc. No. 124], at 6-8 (questioning the difference between the two settlements “if Rule 23 applies”). [4] The Court declines to order CIS or its counsel to pay the expenses contemplated by Federal Rule of Civil Procedure 37(a)(5)(B) on the grounds that the Motion was substantially justified.