JAMES C. FRANCIS, IV, Magistrate Judge.
This case involves the alleged misclassification of the plaintiff and other similarly situated employees as independent contractors. Discovery has not gone smoothly, as the motions now before the Court attest. The plaintiff has made an omnibus motion to compel discovery responses, while the defendants have cross-moved to compel the production of tax returns by the plaintiff and other persons who opt-in to the litigation. For the reasons discussed below, the plaintiff's motion is granted in part and denied in part, and the defendants' motion is denied.
Eva Agerbrink, the plaintiff, is a "fit model," that is, she works with the apparel industry "to check the fit, drape, and visual appearance of a design on a real human being." (Second Amended Complaint ("SAC"), ¶ 1). From March 2013 through June 2014, she worked for the corporate defendant, Model Service LLC, doing business as MSA Models ("MSA"). (SAC, ¶¶ 25, 91). While MSA classified her as an independent contractor, Ms. Agerbrink contends that she should have been deemed an employee and compensated accordingly. (SAC, ¶¶ 25-26, 31). She has brought this action alleging violations of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201
This case has been conditionally certified pursuant to 29 U.S.C. § 216(b) as a collective action on behalf of all fit models who have worked for MSA at any time after September 2011, three years before the action was filed (the "Fit Model Collective").
The Honorable J. Paul Oetken, U.S.D.J., has granted partial summary judgment in favor of the plaintiff on her unjust enrichment claim, finding that the liquidated damages provision in the employment contract constituted an unenforceable penalty.
In the course of discovery, the plaintiff propounded interrogatories and document requests, and the defendants responded. In part, that response consisted of identifying fifteen "exemplar" models with respect to whom the defendants collected more detailed information. I will discuss the specifics of the parties' discovery disputes in connection with the analysis of their motions.
Generally speaking, the plaintiff's complaints about the defendants' discovery responses fall into three broad categories: database discovery, email, and contracts. (Tr. at 2).
(Plaintiff's First Request for Production of Documents ("Pl. First Doc. Req."), attached as Exh. C to Declaration of Cyrus E. Dugger dated Nov. 4, 2016 ("Dugger 11/4/16 Decl."), Request No. 13 (emphasis omitted)), and "all documents concerning or referring to the working conditions or schedules of any or all MSA Fit Model(s)" (Pl. First Doc. Req., Request No. 69 (emphasis omitted)). Yet, with respect to these demands, the defendants
The document demands in this category that the defendants objected to and did not agree to comply with request the following:
(Pl. First Doc. Req., Request No. 5 (emphasis omitted)); "all documents concerning or referring to the terms or conditions of any or all MSA Fit Model(s) provision of fit modeling services (or potential provision of fit modeling services) to any or all apparel industry client(s)" (Pl. First Doc. Req., Request No. 18 (emphasis omitted)); and "all rosters, lists, or contact information (including machine-readable electronic documents) concerning all or any MSA Fit Model(s)" (Pl. First Doc. Req., Request No. 76 (emphasis omitted)). The defendants' objections were well-taken. Courts have long held that requests for "any and all" documents are generally improper.
The defendants' approach to discovery has been equally unhelpful. They have produced relatively complete information with respect to Ms. Agerbrink and fifteen exemplar models, and they have offered to produce similar information for perhaps fifteen more models, to be chosen by the plaintiff. (Memorandum of Law in Opposition to Plaintiff's Omnibus Motion ("Def. Memo.") at 5; Tr. at 32; Declaration of Evan Spelfogel dated Dec. 7, 2016, ¶¶ 3-4). The problem is that the defendants adamantly decline to accept any sample as representative. (Tr. at 32-33). But the defendants cannot have it both ways: they cannot refuse discovery that is necessary to demonstrate prerequisites for class certification such as commonality and typicality and at the same time argue (as they do) that the uniqueness of each model's situation precludes certification.
There is a solution to this problem that does not involve the plaintiff redrafting her discovery demands (or my doing it for her): the defendants shall produce for all exclusive fit models the same information they have produced for the fifteen exemplars. The defendants' objection to this approach is one of burden; they have represented that an employee spent approximately 1.5 hours assembling the information for the plaintiff and each of the fifteen exemplar models, for a total of about 23 hours. (Declaration of William Ivers dated Dec. 7, 2016 ("Ivers Decl."), ¶ 21). Such an expenditure of time, however, would not be disproportionate.
Rule 26(b) (1) allows discovery of
Fed. R. Civ. P. 26(b) (1). These factors support discovery with respect to all fit models parallel to that provided for the exemplars.
First, the issues at stake in this case are of substantial public importance. The FLSA reflects "the public's interest in ensuring that workers receive `[a] fair day's pay for a fair day's work.'"
Next, the amount in controversy is not insignificant. According to the complaint, Ms. Agerbrink is seeking approximately $2,400.00 for minimum wage and overtime violations.
The factor of relative access to relevant information likewise favors the additional discovery. The Advisory Committee's note to the 2015 amendments to Rule 26 states:
(Fed. R. Civ. P. Rule 26 advisory committee's note to 2015 amendments). This is such a case. The greater burden will necessarily fall on MSA because it possesses by far the greater amount of relevant information.
To be sure, MSA's resources are not unlimited. William Ivers, its Chief Operating Officer, has described the wide range of duties that he performs within the 35-employee company; he will no doubt be diverted from those responsibilities to the extent that he must respond to discovery requests. (Ivers Decl., ¶¶ 1, 5-6).
The discovery at issue is nevertheless central to the claims in the case. The defendants recognized this when they provided the same discovery with respect to Ms. Agerbrink and the exemplar models. And it is crucial to demonstrating or contesting the appropriateness of class certification.
Finally, the benefit of the discovery plainly outweighs the burden. Critical issues, including class certification, cannot properly be decided without it. Given what each model has at stake, the investment of one and one-half hours of time per model gathering the information is not disproportionate. Accordingly, the relevant considerations favor proceeding with the additional discovery, and the defendants shall therefore provide for all exclusive fit models, except those with arbitration agreements, the same information they have previously provided with respect to Ms. Agerbrink and the exemplar models. For exclusive fit models who have arbitration agreements with MSA, the defendants shall produce those agreements.
That leaves the three constellations of issues that the plaintiff focused on at oral argument: databases, email, and contracts. With respect to databases, the plaintiff argues that "there are thousands of tables that are available and [] there are at least dozens of reports that weren't produced." (Tr. at 4). So it may be, but, for the most part, the plaintiff has failed to demonstrate the relevance of any particular report. There are two exceptions. First, the plaintiff requests the financial check report, which purportedly shows the rate paid for each visit to a client by an MSA model. (Tr. at 4). That information is pertinent, and the defendants shall produce it for all exclusive fit models, except those with arbitration agreements. Second, MSA allegedly has data showing when models went on unpaid "go-sees," which are apparently initial appointments with clients in which the client determines whether it wishes to utilize the services of that particular model. (Tr. at 6-7). This information is also relevant, and the defendants shall produce it with respect to the same universe of models.
Next, the plaintiff argues that the defendants' search of email has been inadequate. As an illustration, she offers the fact that she came into possession of a relevant policy document that the defendants did not produce, and she notes that rather than searching their entire database for policy documents, the defendants only produced those that they happened to locate while searching the email of the exemplar models. (Tr. at 15-18). This contention fails for two reasons. First, the fact that a party has located a single relevant document that the adversary failed to produce hardly demonstrates that the search was flawed. The standard for evaluating discovery is reasonableness, not perfection.
Finally, the plaintiff seeks copies of contracts, vouchers, and schedule books that apparently exist in hard copy. The defendants do not contest the relevance of the information contained in these documents, but contend that the burden of copying and producing them is substantial. (Ivers Decl., ¶¶ 12-18, 23-24). They need not incur that burden. The responsibility for bearing the costs attendant to copying responsive documents rests upon the requesting party.
The defendants seek to compel Ms. Agerbrink and any opt-in plaintiffs to disclose their personal tax returns. They offer two rationales for this request. First, the defendants contend that the fact that a worker may classify herself as an independent contractor on her tax returns cuts against a claim that she is in fact an employee and therefore entitled to the protections of the FLSA and NYLL. Second, the defendants maintain that if the tax returns reveal that workers performed services for multiple employers, it will undermine the plaintiff's argument that the defendants exercised control over the workers' schedules.
Income tax returns are not inherently privileged. However, "courts are typically reluctant to compel their disclosure because of both `the private nature of the sensitive information contained therein' and `the public interest in encouraging the filing by taxpayers of complete and accurate returns.'"
An "economic realities" test governs whether a worker is an employee or an independent contractor under the FLSA. The relevant factors include:
Similarly, the New York Court of Appeals has articulated five factors relevant to determining control under NYLL: whether the worker (1) worked at her own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer's payroll; and (5) was on a fixed schedule.
In light of this analytical framework, courts have offered divergent views of the relevance of a worker's tax returns. In
2010 WL 4340642, at *3 (quoting
I find the analysis is
Somewhat more persuasive is the defendants' argument that the tax returns are relevant not merely because they reflect the workers' self-identification as independent contractors, but also because they demonstrate the absence of control by MSA. According to the defendants, claims that MSA exercised control over the hours, activities, and working conditions of fitness models would be undermined if tax returns showed that the models in fact were employed by multiple agencies at the same time. (Memorandum of Law in Support of Defendants' Motion to Compel at 4; Reply Memorandum of Law in Support of Defendants' Motion to Compel Tax Returns at 3-4). To be sure, the fact that a worker reports to multiple employers does not definitively prove that she is not an employee of any of them for labor law purposes; a part-time employee may have time to work for other employers without running afoul of requirements indicative of the primary employer's degree of control. Nevertheless, employment by multiple employers would seem to pass the low threshold for relevance.
However, relevance is only the first hurdle for overcoming the quasi-privilege that attaches to tax returns. Here, the defendants cannot demonstrate a compelling need for the returns, as equivalent information is available from other sources. To the extent that it is relevant whether a model filed tax returns as an employee or as an individual contractor, this information may easily be obtained by interrogatory or deposition. Similarly, information about other employment may be gleaned from the models directly as well as from documents such as 1099 and W-2 forms. The defendants simply have not demonstrated that the tax returns — and only the tax returns — contain the potentially relevant information. Accordingly, the defendants' motion to compel their production is denied.
For the reasons discussed above, the plaintiff's motion to compel (Docket no. 148) is granted in part and denied in part. Specifically, within thirty days of the date of this order, the defendants shall (1) produce for all exclusive fit models, except those with arbitration agreements, the same information they have previously provided with respect to Ms. Agerbrink and the exemplar models; for exclusive fit models who have arbitration agreements with MSA, the defendants shall produce those agreements; (2) produce financial check reports and reports on "go-sees" for all exclusive fit models except those with arbitration agreements; and (3) permit plaintiff to inspect and copy, at her expense, the contracts, vouchers, and schedule books. In all other respects, the plaintiff's motion is denied. The defendants' motion to compel disclosure of tax returns (Docket no. 163) is denied.
SO ORDERED.