Allen v. Accredited Home Lenders

251 F.R.D. 304, 2007 U.S. Dist. LEXIS 87259, 2007 WL 5309185
CourtDistrict Court, M.D. Tennessee
DecidedApril 23, 2007
DocketNo. 3-06-0921
StatusPublished

This text of 251 F.R.D. 304 (Allen v. Accredited Home Lenders) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Accredited Home Lenders, 251 F.R.D. 304, 2007 U.S. Dist. LEXIS 87259, 2007 WL 5309185 (M.D. Tenn. 2007).

Opinion

ORDER

JULIET GRIFFIN, United States Magistrate Judge.

The plaintiffs’ motion for admission pro hac vice for Matthew G. Laflin (Docket Entry No. 42) is GRANTED.

The plaintiffs’ motion for permission to reply (Docket Entry No. 41) is GRANTED.

The Clerk is directed to file and docket the plaintiffs’ reply (Docket Entry No. 41-2) submitted with the motion.

[305]*305The plaintiffs’ motion to compel (Docket Entry No. 33) is GRANTED to the extent set forth herein.

In their motion, the plaintiffs seek to compel the defendant to respond to interrogatories 2 and 4, which seek the identity, last known address and last known telephone number of all persons employed by the defendant as loan officers at its Brentwood, Tennessee branch office1 during the period of time the plaintiffs worked as loan officers at that location, and the identity, last known address, last known telephone number, job title and dates of employment of all other persons who were employed by the defendant at the same branch office during the same time period.

The plaintiffs contend that the loan officers and other co-employees who worked with the plaintiffs are likely to have information about whether the plaintiffs worked overtime, whether they were paid for all of the overtime hours they worked, and the defendant’s knowledge, policies and practices regarding the payment of overtime. The plaintiffs contend that the defendant’s policies and procedures applied to all loan officers, that they all worked under the same compensation plan, and that they all used the same software application. Docket Entry No. 35, at 5.

The plaintiffs argue that their requests are narrowly tailored and responding to those requests would not be burdensome because the defendant employed only 8-10 employees at any one time at the Brentwood branch office, see Docket Entry No. 35-7, at 4; Exhibit F to Docket Entry No. 35, and, although the turnover rate for loan officers was over 100%, see Docket Entry No. 35-8, at 3; Exhibit G to Docket Entry No. 35, the time frame for the requested information spans less than two years. What is not as clear is whether the 8-10 employees included only loan officers or included other employees and what other employees, other than loan officers, loan processors, and a branch manager were employed in the Brentwood branch office. However, according to the affidavit of plaintiff Henson, there were 5-7 loan officers and approximately two (2) loan processors employed at any one time. See Docket Entry No. 37. Those figures would suggest that it was unlikely the total number of employees at the Brentwood branch office at any one time exceeded ten (10).

The defendant opposes the plaintiffs’ motion in large part because the defendant believes that the plaintiffs want to obtain the requested information to gather additional consents to proceed as plaintiffs in this FLSA action. The plaintiffs have not requested conditional class certification nor have they requested supervised class notice in this case. Having failed to succeed in their efforts to conditionally certify a national class in the Northern District of Georgia, see Williams v. Accredited Homes Lenders, No. 1-05-01681 (N.D.Ga., July 25, 2006); Docket Entry No. 40-2, the defendant accuses plaintiffs’ counsel of attempting to use individual actions, filed in this and other districts, “to do what they could not do in the nationwide action — provide notice of the claims to potential clients.” Docket Entry No. 40, at 2.

The defendant describes as speculative the plaintiffs’ assertion that their co-workers will have any knowledge of when the plaintiffs worked overtime without pay and whether they were told not to record overtime hours. Id. at 4. The defendant points out that, if the plaintiffs cannot remember the names of their former co-workers, it is unrealistic to think that their former co-workers will remember the plaintiffs or whether they worked overtime. In addition, the defendant argues that the plaintiffs’ requests are overboard and seek personal information. Finally, the defendant asserts that plaintiffs’ counsel have “made no secret that they are seeking current and former Accredited employees as clients” as shown by plaintiffs’ counsel’s website where plaintiffs’ counsel reports on the status of FLSA actions against the defendant and other defendants throughout the country and encourages [306]*306those who believe they were denied overtime compensation to contact their law firm. The defendant thus concludes that the information sought by the plaintiffs is for the purpose of soliciting prospective clients in violation of Rule 7.3 of the Tennessee Rules of Professional Conduct. Id. at 7-8, and Exhibit 2 (Docket Entry No. 40-2).

The Court finds that the information sought by the plaintiffs is relevant to the plaintiffs’ claims in this case under the standards of Rule 26(b)(1) of the Federal Rules of Civil Procedure. Although, like the defendant, the Court finds it at least peculiar that none of the plaintiffs remember any of their former co-workers, if in fact they so assert, the plaintiffs’ lack of memory does not necessarily mean all of their former co-workers will share a similar lack of memory. It is reasonable to conclude that a co-employee may well know and could well remember how long or for what hours a fellow employee works, particularly in an office with ten or fewer employees. It is also reasonable that the co-employees may have relevant information about what the defendant knew about whether employees worked overtime without being paid. The parties have not provided the Court with information to discern whether there is a difference between the knowledge that former loan officers might have and the knowledge of other employees. However, from the information presented to the Court, it appears that a branch office is comprised of loan officers, loan processors, and a branch manager and no other employees.

The Court further finds that the plaintiffs’ request is not overbroad. Had the defendant advised the Court that there were certain employees who would have no knowledge whatsoever of the work schedule of other employees or the defendant’s own knowledge of policies, the Court would exclude any such category of employees. However, the Court has not been provided with such information and thus assumes that there are no other such employees. The time frame is necessarily narrow because of the time frame within which the plaintiffs were employed — from September 2003 to April 2005.

The defendant’s suspicions that plaintiffs’ counsel will solicit the former employees to be their clients and file consents in this case or file their own lawsuits are not sufficient to preclude the plaintiffs from otherwise relevant discovery. To ensure that plaintiffs’ counsel does not engage in any improper solicitation, the defendant suggests that any conversations between plaintiffs’ counsel and co-employees be in the presence of defense counsel. The Court finds that such a restriction is not necessary or appropriate in this case.

The Court agrees with the defendant that any privacy interests of the plaintiffs’ former co-employees should be balanced against the plaintiffs’ interests in discovery. The defendant cites Cook v. Yellow Freight System, 132 F.R.D.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cook v. Yellow Freight System, Inc.
132 F.R.D. 548 (E.D. California, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
251 F.R.D. 304, 2007 U.S. Dist. LEXIS 87259, 2007 WL 5309185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-accredited-home-lenders-tnmd-2007.