Rossman v. EN Eng'g, LLC

467 F.Supp.3d 586

Kevin ROSSMAN, Individually and for Others Similarly Situated, Plaintiffs,

v.EN ENGINEERING, LLC, Defendant.

No. 19 C 5768

United States District Court, N.D. Illinois, Eastern Division.

Signed June 16, 2020

Andrew Dunlap, Taylor A. Jones, Pro Hac Vice, Carl A. Fitz, Pro Hac Vice, Michael A. Josephson, Josephson Dunlap LLP, Houston, TX, Maureen Ann Salas, Douglas M. Werman, Werman Salas P.C., Chicago, IL, for Plaintiffs.

Gerald L. Maatman, Jr., Alex W. Karasik, Matthew James Gagnon, Seyfarth Shaw LLP, Chicago, IL, Renee L. Koehler, Stephanie Melissa Gomberg Dinkel, Koehler Dinkel LLC, Woodridge, IL, for Defendant EN Engineering, LLC.

Phillip Michael Schreiber, Jennifer Joy Froehlich, Raseq Moizuddin, Holland & Knight LLC, Chicago, IL, for Defendant Ameren Illinois Company.

David Edward Kawala, Timothy A. Renfro, Jr., Catherine Basque Weiler, Swanson, Martin & Bell, LLP, Chicago, IL, for Defendant Koehler Dinkel LLC.

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

The plaintiff, who worked for defendant as an oil and gas project consultant/inspector, has filed a motion to compel compliance with a subpoena plaintiff issued to a non-party, Ameren [Dkt. #72], which was one of the companies defendant provided with project consultant/inspectors. In this Fair Labor Standards Act case, the dispute between plaintiff and the defendant is often a simple matter of whether plaintiff was entitled to overtime pay, and, if so, whether defendant paid him the right amount. Things are a bit more complicated by the fact that defendant farmed these project consultant/inspectors out to various gas and oil companies, and by the fact that plaintiff and counsel want to pursue this litigation as a class action. But, perhaps not surprisingly given the unfortunate course of modern discovery,¹ discovery in this relatively young case has become quickly complicated. The subpoena motion is but one that the parties have recently filed. For the following reasons, the plaintiff's motion [Dkt. # 72] is denied.

ARGUMENT

Plaintiff served the subpoena at issue on January 3, 2020, setting January 22, 2020 as the date for compliance. While that is just a bit more than the benchmark fourteen days, see, e.g., Rutherford v. Jarm , 2018 WL 4236376, at *2 (N.D. Ill. 2018) ; Elliot v. Mission Tr. Servs., LLC , 2015 WL 1567901, at *4 (N.D. Ill. 2015) (collecting cases), the subpoena – again, to a non-party – was rather broad. It demanded production of nearly a dozen categories of documents:

1. The DOCUMENTS which contain information regarding ENE's alleged violations of the FLSA for failing to pay overtime to Project Consultants/Inspectors.

2. The DOCUMENTS reflecting communications between YOU and ENE regarding the LAWSUIT.

3. The DOCUMENTS that describe or specify the work that ENE performed for YOU in any capacity during the RELEVANT TIME PERIOD.

4. The DOCUMENTS reflecting any agreement(s), including but not limited to the Master Service Agreement, for ENE to provide workers and services to YOU during the RELEVANT TIME PERIOD.

5. The DOCUMENTS reflecting any payments made to ENE by YOU for services or workers received from ENE during the RELEVANT TIME PERIOD.

6. The DOCUMENTS reflecting the locations, project number, and project name where YOU paid for the services of Project Consultants/Inspectors supplied by ENE during the RELEVANT TIME PERIOD.

7. Any DOCUMENTS YOU supplied to ENE's Project Consultants/Inspectors during the RELEVANT TIME PERIOD containing any of YOUR practices, procedures, job requirements, or guidelines.

8. The DOCUMENTS evidencing any steps YOU took to ensure that the Project Consultants/Inspectors supplied by ENE to YOU were paid overtime compensation in accordance with the FLSA.

9. All DOCUMENTS exchanged between YOU and any PUTATIVE CLASS MEMBER related to assignments to YOUR projects, including but not limited to communications concerning job duties, responsibilities, benefits, pay, emails, reports, handbooks, and policies.

10. All DOCUMENTS describing the job duties for the Project Consultants/Inspectors supplied by ENE to YOU, including the PUTATIVE CLASS MEMBERS, during the RELEVANT TIME PERIOD.

11. All DOCUMENTS evidencing communications between YOU and any PUTATIVE CLASS MEMBER during the RELEVANT TIME PERIOD, including all emails sent to, from, or about any PUTATIVE CLASS MEMBER.

[Dkt. #72-1](Capitalization in original).

Initially, it strikes even an impartial observer that plaintiff ought to be getting a lot of this discovery – categories 1-6, for example – from the party he sued, instead of subpoenaing a non-party. As it turns out, there was a prologue to plaintiff's nonparty subpoena. On November 12, 2019, plaintiff issued discovery requests to defendant, including Requests to Produce the following categories of documents:

5. Produce all DOCUMENTS showing the locations where services were rendered by PLAINTIFF and PUTATIVE CLASS MEMBERS during the FLSA LIMITATIONS PERIOD.

7. Produce any Master Services Agreements, along with any addendums thereto, between ENE and the client(s) identified in Request for Production No. 4 for whom PLAINTIFF and/or PUTATIVE CLASS MEMBERS rendered services and/or performed work during the FLSA LIMITATIONS PERIOD.

8. Produce any Master Services Agreement, along with any addendums thereto, between ENE and each third party for which any PLAINTIFF and/or PUTATIVE CLASS MEMBER performed work on ENE's behalf during the FLSA LIMITATIONS PERIOD.

9. Produce any contracts or agreements, along with any addendums thereto, between ENE and each third party for which any PLAINTIFF and/or PUTATIVE CLASS MEMBER performed work on ENE's behalf during the FLSA LIMITATIONS PERIOD.

21. Produce invoices from any third party to ENE for any work performed by a

PLAINTIFF or PUTATIVE CLASS MEMBER during the FLSA LIMITATIONS PERIOD.

[Dkt. #79-1](Capitalization in original). There was obviously significant overlap between the documents plaintiff could get from his opponent in this litigation and the documents he subpoenaed from a third party some two months later.

We may assume that in the two months that passed from the time the request was made to the defendant, counsel were involved in the usual back and forth about whether the requests were "burdensome" and "overbroad," etc. The Federal Rules of Civil Procedure, including Rule 45, demand more than unamplified and unexplained conclusions. Such generalized and unamplified objections, which have become commonplace, are all but meaningless, and thus are in themselves deemed to be meritless. See, e.g., Wimo Labs LLC v. Polyconcept N.A, Inc. , 358 F. Supp. 3d 761, 763 n.2 (N.D. Ill. 2019) (collecting cases); Boyer v. Gildea , 2008 WL 4911267 (N.D. Ind. 2008) ; U.S., ex rel. Roberts v. QHG of Indiana, Inc. , 1998 WL 1756728 at 9 (N.D. Ind. 1998). These kinds of unilluminating objections violate the oft repeated warning that "saying so doesn't make it so." United States v. 5443 Suffield Terrace, Skokie, Ill. , 607 F.3d 504, 510 (7th Cir. 2010). Nor does saying it repeatedly make it so. Dennis v. Kellogg Co. , 697 F.3d 858, 867 (9th Cir. 2012).² In any event, we do know that EN's responses were due December 21, 2019, but that it was not until over two months later that plaintiff sought leave from Judge Chang to file a motion to compel. [Dkt. # 52].

It would seem that this was a course of action that should have been taken long before plaintiff sought to supplement whatever EN was producing or not producing by subpoenaing non-parties. Instead, plaintiff went back and forth with Ameren for a month or so. There were a number of issues raised in the emails between counsel for plaintiff and counsel for Ameren. Suffice it to say, exchanges like these only serve to highlight the wisdom of Local Rule 37.2 not allowing exchanges of emails or letters to substitute for a telephonic or in-person conference. See Jackson-El v. City of Markham , 332 F.R.D. 583, 584 (N.D. Ill. 2019) ; BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc. , 343 F. Supp. 3d 742, 744 (N.D. Ill. 2018) (collecting cases).

By the middle of February, the two had gotten to what seemed to be an acceptable arrangement. But then, on the evening of February 14^th – ironically, Valentine's Day – Ameren's counsel wrote to plaintiff's counsel, saying: "Michael, we will agree to disagree. In any event, Ameren has decided to authorize EN to produce all of its invoices and purchase orders subject to the confidentiality order previously entered in this case. With this authorization, there is no need for Ameren to be burdened with the production." [Dkt. #72-3]. Plaintiff's counsel quickly responded, asking: "Thank you Phil. Have you already told EN's lawyers?" [Dkt. #72-4]. And Ameren's counsel assured him they just had. [Dkt. # 72-4].

Unfortunately, that didn't get it done. Two weeks later, on February 26^th, plaintiff's counsel wrote Ameren's counsel to inform them that EN had not produced the documents and that plaintiff would be going ahead with a motion to compel compliance with the subpoena to Ameren. Ameren's counsel expressed surprise and said it would take some time to produce the documents if plaintiff wanted them from Ameren instead. Plaintiff's counsel wasn't having it, and accused Ameren's counsel of game-playing, and told Ameren's counsel that the judge would not appreciate their (claimed) obstruction. [Dkt. #72-4]. And so, here we are; plaintiff wants full compliance with the subpoena, regardless of what is going on in discovery between him and defendant, and he contends that Ameren has waived any objections it might have had. But, we need not get to the waiver issue, because the subpoena to Ameren was improper ab initio.

Moreover, the course plaintiff's counsel pursued after serving the subpoena was somewhat harsh – and needlessly so. Rule 45 of the Federal Rules of Civil Procedure governs subpoenas directed to nonparties to litigation. While the public is entitled to every...