Roy v. FedEx Ground Package Sys.

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JORDAN ROY and JUSTIN TRUMBULL, on behalf of themselves and others similarly situated, Plaintiffs, v. FEDEX GROUND PACKAGE SYSTEMS, INC., Defendant.

No. 3:17-cv-30116-KAR

United States District Court, D. Massachusetts

October 27, 2023

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION TO COMPEL FEDEX'S PRODUCTION OF COMPLIANCE INVESTIGATION REPORTS AND ASSOCIATED DOCUMENTS (DKT. NO. 339)

KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE

This Fair Labor Standards Act ("FLSA") collective action is before the court on the motion of plaintiffs Jordan Roy and Justin Turnbull, on behalf of themselves and others similarly situated ("Plaintiffs"), to compel production of Compliance Investigation Reports ("CIRs") and associated documents that were created after June 2019 (Dkt. No. 339). Defendant FedEx Ground Package Systems, Inc. ("FedEx") asserts that the attorney-client privilege and the work product doctrine protect the requested information (Dkt. No. 365). Plaintiffs' motion is DENIED for the reasons that follow.

I. RELEVANT BACKGROUND

In August 2017, Plaintiffs, acting on behalf of themselves and other similarly situated persons claiming they were jointly employed by FedEx and independent service providers ("ISPs"), brought a single claim against FedEx for unpaid overtime pursuant to the FLSA (Dkt. No. 1). See Roy v. FedEx Ground Package Sys., Inc., 353 F.Supp.3d 43, 51-52 (D. Mass. 2018).

The court conditionally certified a collective of similarly situated individuals who delivered FedEx's packages in Massachusetts after February 19, 2015, using vehicles with gross weights of less than 10,001 pounds, who were paid by the ISPs to perform pickup and delivery services on FedEx's behalf, and who were not paid overtime compensation for all hours worked over forty each week. See id. at 72.

FedEx contracts with the ISPs that employ drivers who pick up and deliver FedEx packages (Dkt. No. 339-1; Dkt. No. 339-2 ¶¶ 3, 4). The terms of the contracts between FedEx and the ISPs ("ISP Agreements") include the ISPs' agreement to treat their drivers as employees comply with federal and state laws that address recordkeeping, taxes, and wage and hour requirements, and respond to FedEx's requests for records that permit FedEx to assess the ISPs' compliance with their obligations under their agreements with FedEx (Dkt. No. 339-1 ¶ 6.2; Dkt. No. 339-2 ¶¶ 5, 6, 8; Dkt. No. 345 at 2). Those assessments are conducted by compliance specialists who are members of FedEx's Legal Compliance and Ethics Group ("LCG") within its Legal Division and who report to LCG attorneys (Dkt. No. 339-2 ¶ 2; Dkt. No. 339-4 at 13-14; Dkt. No. 339-6). An ISP may be chosen at random for an assessment or may be assessed because of a complaint (Dkt. No. 339-2 ¶¶ 6, 7). FedEx's Electronic Compliance Assessment Overview instructs the compliance specialists on how to conduct compliance assessments (Dkt. No. 345).

At the conclusion of their investigations, the compliance specialists produce CIRs. The reports follow a standard format: a summary of the reason(s) for the investigation; a summary of the applicable laws; a description of the documentation that the ISP provided for the assessment; an analysis of whether the ISP is complying with the relevant wage and hour laws, maintaining accurate records of employee hours worked, paying overtime to qualified employees, and treating drivers as employees for payroll, tax withholding, insurance and other purposes; whether the ISP provided e-verify documentation; and the compliance specialist's conclusion concerning the ISP's compliance with the laws (Dkt. No. 339-5). The LCG uses a CIR as a basis for producing a notice of opportunity to cure, a notice of compliance concern, or terminating an ISP Agreement (Dkt. No. 339-1 ¶ 15.3; Dkt. No. 345 at 2). The notices inform the ISPs of the results of the compliance assessments, including any failure by the ISP to comply with the laws, recordkeeping requirements, and the terms of the ISP Agreement, and direct the ISP to remedy violations (Dkt. No. 345-2).

Following the court's May 22, 2023 order on Plaintiffs' motion to compel, see Roy v. FedEx Ground Package Sys., Inc., Case No. 3:17-cv-30116-KAR, 2023 WL 3587305, at *7 (D. Mass. May 22, 2023), FedEx produced CIRs that were issued before June 2019, the wage and hour records the ISPs provided to FedEx for the compliance assessments before and after that date, emails with the ISPs concerning compliance assessments, and the notices of opportunity to cure and notices of compliance concern that were issued before and after June 2019 (Dkt. No. 365 at 3, 4, 14). FedEx withheld the CIRs and related back-up working analyses that were created after June 2019 on the basis that they were protected by the attorney-client privilege and the work product doctrine and listed the documents on a privilege log (Dkt. No. 339-6).^[1]According to the declaration of Joseph P. McHugh, lead counsel in FedEx's in-house Litigation Group, in June 2019, the Litigation Group directed the LCG to gather facts concerning ISPs' potential wage and hour and labor law violations to assist the Litigation Group and outside litigation counsel (collectively, "Litigation Counsel") in defending against the Plaintiffs' claims (Dkt. No. 365-1 ¶ 10). The Litigation Group further directed the LCG to treat the post-June 2019 Massachusetts CIRs as privileged and confidential (Dkt. No. 365-1 ¶ 10). As a result of the Litigation Group's request for information, the LCG increased the number of compliance assessments that it conducted in Massachusetts after June 2019 (Dkt. No. 365-1 ¶ 10). Mr. McHugh states that although the title and format of the CIRs remained the same after June 2019, the notices of opportunity to cure and notices of compliance concern that were issued to Massachusetts ISPs after June 2019 did not include the "legal advice, legal analyses, opinions, and mental impressions" related to Plaintiffs' claims that were included in the pre-June 2019 notices to ISPs (Dkt. No. 365-1 ¶¶ 12, 13, 14).

II. LEGAL STANDARDS

Fed. R. Civ. P. 26(b)(1) provides:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). "On a motion to compel, '[t]he party seeking information in discovery over an adversary's objection has the burden of showing its relevance.'" Controlled Kinematics, Inc. v. Novanta Corp., Civil Action No. 17-cv-11029-ADB, 2019 WL 3082354, at *2 (D. Mass. July 15, 2019) (alteration in original) (quoting Johansen v. Liberty Mut. Grp., Inc., Civil Action No. 15-cv-12920-ADB, 2017 WL 6045419, at *1 (D. Mass. Dec. 6, 2017)). "At the discovery stage, relevance should be 'broadly construed,' and information should be deemed 'discoverable if there is any possibility it might be relevant to the subject matter of the action.'" Nosalek v. MLS Prop. Info. Network, Inc., CIVIL ACTION NO. 20-12244-PBS, 2022 WL 4815961, at *4 (D. Mass. Oct. 3, 2022) (quoting Cherkaoui v. City of Quincy, Civil Action No. 14-cv-10571-LTS, 2015 WL 4504937, at *1 (D. Mass. July 23, 2015)). "'[B]ecause discovery itself is designed to help define and clarify the issues, the limits set forth in Rule 26 must be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.'" Green v. Cosby, 152 F.Supp.3d 31, 34 (D. Mass. 2015), modified on reconsideration, 160 F.Supp.3d 431 (D. Mass. 2016) (citation omitted).

Federal common law governs the claims of privilege and protection in this case. See Davine v. Golub Corp., Civil Case No. 3:14-30136-MGM, 2017 WL 517749, at *2 (D. Mass. Feb. 8, 2017) ("Where, as here, jurisdiction is premised on a federal question and the disputed documents constitute evidence related to the federal FLSA claims . . . federal common law, 'as interpreted by United States courts in the light of reason and experience' governs a claim of privilege.") (quoting Fed.R.Evid. 501). FedEx, as the party claiming privilege or protection, "bears the burden of establishing that it applies to the communications at issue and that it has not been waived." In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). "Once a party claiming privilege has carried its initial burden of establishing grounds for asserting the privilege and that the privilege has not been waived, the burden shifts to the opposing party to establish any exceptions to the privilege." Doe v. Lahey Health Sys., Inc., Civil Action No. 19-cv-11014-PBS, 2020 WL 13561720, at *2 (D. Mass. Aug. 12, 2020). See United States v. Breton, 740 F.3d 1, 9 (1st Cir. 2014).

III. ANALYSIS

Two courts - this court, and a session of the United States District Court for the District of Western Pennsylvania, where mirror litigation is pending - have already ruled that the CIRs are relevant as relevance is defined for purposes of discovery and there is no reason to revisit this issue. See Roy, 2023 WL 3587305, at *7 (citing Claiborne v. FedEx Ground Package Sys., Inc., 2:18-cv-01698-RJC, 2022 WL 4537003, at *10 (W.D. Pa. Sept. 28, 2022)). Accordingly, the court moves to FedEx's claims of work product protection and attorney-client privilege.

A. The Attorney Work Product Doctrine...