Scott v. Mobilelink Louisiana, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

COREY D. SCOTT, et al. CIVIL ACTION

VERSUS NO. 20-826-SDD-SDJ

MOBILELINK

LOUISIANA, LLC, et al.

ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL

Before the Court is Plaintiffs’ Motion to Compel (R. Doc. 74) complete discovery

responses from Defendant Mobilelink Louisiana, LLC, filed on June 8, 2022. Defendant filed an

Opposition (R. Doc. 78) in response to the Motion, to which Plaintiffs filed a Reply (R. Doc. 81).

In this collective action, Plaintiffs allege that Mobilelink violated the Fair Labor Standards

Act, 29 U.S.C. § 216(b), by failing to include earned commissions in their overtime pay, as well

as the overtime pay of similarly situated employees. (R. Doc. 2 at 3) (“Defendant failed to include

in the overtime wages for Plaintiffs and the members of the putative collective action class their

earned commissions during a work-week.”); (R. Doc. 72 at 1) (“Plaintiffs claim that Defendant

Mobilelink Louisiana, LLC failed to pay Plaintiffs the correct overtime compensation by not

including the commissions earned with the hourly wage for determining the proper overtime

premium.”).

Following the Court’s Authorization of Notice (R. Doc. 30) to potential members of the

collective action, the Court entered a Scheduling Order establishing July 1, 2022, as the deadline

for completing fact discovery. Less than a month before the close of discovery, Plaintiffs filed the

instant Motion to Compel (R. Doc. 74). Plaintiffs additionally request a 60-day extension to

complete fact discovery (R. Doc. 74 at 2), which Defendant does not oppose (R. Doc. 78 at 1). For

the reasons given below, Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED.

I. APPLICABLE LAW

Unless otherwise restricted by the Court, Rule 26(b)(1) generally limits the scope of

discovery to “any nonprivileged matter that is relevant to any party's claim or defense and

proportional to the needs of the case . . . .” Relevant here, a party “resisting discovery” propounded

under Rules 33 and 34 “must show specifically how each discovery request is not relevant or

otherwise objectionable.” Gondola USMD PPM, LLC, 2016 WL 3031852 at *2 (N.D. Tex. May

17, 2016) (citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th

Cir. 1990)).

In response to a request for production under Rule 34, “[f]or each item or category, the

response must either state that inspection and related activities will be permitted as requested or

state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ.

P. 34(b)(2)(B). Similarly, a party responding to interrogatories under Rule 33 must answer each

interrogatory “separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). In addition, the

“grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated

in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ.

P. 33(b)(4); see also White v. Graceland Coll. Ctr. for Pro. Dev. & Lifelong Learning, Inc., 586 F.

Supp. 2d 1250, 1256-57 (D. Kan. 2008) (“Objections that are not initially raised in the answer or

response to the discovery are deemed waived.”).

Motions to compel discovery responses are governed by Rule 37(a) of the Federal Rules

of Civil Procedure. “Rule 37(a)(3)(B) provides that a party seeking discovery may move for an

order compelling production or answers against another party when the latter has failed to produce

documents requested under Federal Rule of Civil Procedure 34 or to answer interrogatories under

Federal Rule of Civil Procedure 33.” Gondola v. USMD PPM, LLC, 2016 WL 3031852, at *2

(N.D. Tex. May 27, 2016) (citing Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv)).

II. DISCUSSION

The Motion to Compel concerns Plaintiffs’ Interrogatory Nos. 5 and 10-13 and Request for

Production Nos. 5 and 12-15, which they served on December 8, 2021. (R. Doc. 74-2). Mobilelink

initially responded on February 7, 2022 (R. Doc. 74-3), and later provided Supplemental

Responses (but only to Plaintiffs’ Requests for Production) on March 15, 2022 (R. Doc. 74-4).

The Court will first resolve the Interrogatories at issue before turning to the Requests for

Production.

A. Interrogatory No. 5

Interrogatory No. 5 requests the following information related to each Plaintiffs’ working

hours and compensation:

For each and every week that you compensated Plaintiffs for their labor, identify

the week by its sta[rt] and end date and state for each week the number of hours

that each Plaintiff worked during the week, their rate of pay for such work, and

their gross pay for the week.

(R. Doc. 74-2 at 5). Mobilelink provided the following Answer to Interrogatory No. 5 on February

7, 2022:

Mobilelink reserves the right to supplement its response to this interrogatory as

discovery continues and Mobilelink reviews Plaintiffs’ records.

(R. Doc. 74-3 at 5). It appears that Mobilelink never supplemented this Answer, and the Court

agrees with Plaintiff that the Answer provided is tantamount to no response.

In its Opposition, Mobilelink directs the Court to its Supplemental Response to Request

for Production No. 1, in which it represents that it changed its contract with its payroll provider

and that the provider is trying but may not be able to access the records for 2018. (R. Doc. 74-4 at

4). This Supplemental Response was made in mid-March, but the Opposition was filed in mid-

June. Mobilelink should have made more progress by now, and its Opposition, along with its

discovery responses, indicates a lack of diligence.

Mobilelink also suggests that Plaintiff may have already obtained some of this information

directly from Mobilelink’s payroll provider, ADP. For that reason, it asks that the Court order

Plaintiffs to first provide a detailed listing of the information and/or records that are needed to

provide a complete picture of weeks worked, number of hours worked, rate of pay, and gross pay.”

(R. Doc. 78 at 4).

This discussion should have happened between the parties before this Motion to Compel

was filed. Both parties are vague as to what occurred during their Rule 37 conference and have left

the Court guessing. The only thing that is clear is that Defendant’s Answer in no way responds to

Interrogatory No. 5, and the fact that Plaintiffs may have received documents from ADP in no way

negates Defendant’s obligation to respond to discovery requests. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to

Interrogatory No. 5, and Defendant must supplement its Answer to Interrogatory No. 5 within

14 days of this Order.

B. Interrogatory Nos. 10 - 13

This Court and countless others have recognized that an “interrogatory may reasonably ask

for the material or principal facts which support a contention, including those asserted in

affirmative defenses.” Barnett v. Magellan Health, Inc., 2018 WL 2470727, at *4 (M.D. La. June

1, 2018). A contention interrogatory, however, “may be overly broad where it seeks ‘each and

every’ single fact upon which a party bases its case. Id. at *4 (citing IBP, Inc. v. Mercantile Bank

of Topeka, 179 F.R.D. 316, 321 (D. Kan. 1998)). Courts have “tended toward a middle ground,

requiring parties to explain the factual bases for their contentions by providing the material facts

upon which they will rely, but not a detailed and exhaustive listing of all of the evidence that will

be offered.” Firefighters' Ret. Sys. v. Citco Grp. Ltd., 2018 WL 3954144, at *4 (M.D. La. Aug. 17,

2018).

Here, Interrogatory Nos. 10, 11, 12, and 13 ask Defendant to “identify each and every fact

that [Defendant] allege[s] forms the basis for asserting” Defendant’s Third, Fifth, Twelfth, and

Thirteenth Defenses, respectively. (R. Doc. 74-1 at 3-4). Defendant provided the following

objection to each contention interrogatory:

Mobilelink objects . . . on the grounds that it is premature, insofar as it requests the

marshalling of evidence at this early stage and discovery has just begun in this

matter. Mobilelink reserves the right to supplement its response to this interrogatory

as discovery continues. Mobilelink further objects on the basis of attorney work

product.

(R. Doc. 74-1 at 3-4).

To begin, “[i]t is within the scope of discovery for Plaintiff to request that Defendant

identify the facts that support its [] defenses”—i.e., the information requested in Interrogatory Nos.

10, 11, 12 and 13. Barnett v. Magellan Health, Inc., 2018 WL 2470727, at *4 (M.D. La. June 1,

2018). And although not raised in Defendant’s objection, Plaintiffs’ request for “each and every

fact” is overly broad, and the Court will limit Interrogatory Nos. 10, 11, 12, and 13 to “the material

facts” Defendant may rely on to establish the Third, Fifth, Twelfth, and Thirteenth Defenses

asserted in Defendant’s Answer, respectively. Barnett 2018 WL 2470727, at *4 (applying a similar

limitation).

As for Defendant’s assertion that these contention interrogatories call for work product, the

Court does not read Plaintiffs’ Interrogatory Nos. 10, 11, 12, or 13 to request anything other than

the facts supporting certain defenses asserted by Defendant in the Answer. “Facts are not protected

by the attorney-client privilege or the work-product doctrine. Likewise, the underlying facts are

not privileged strictly because they were provided . . . by counsel.” Barnett v. Magellan Health,

Inc., 2018 WL 2470727, at *4 (M.D. La. June 1, 2018); see also Guenoit-Kornegay v. Blitz U.S.A.,

Inc., 2012 WL 6045558, at *2 (S.D. Miss. Dec. 5, 2012) (“[F]acts are not protected by the attorney-

client privilege or the work-product doctrine.”); Nutmeg Ins. Co. v. Atwell, Vogel & Sterling A

Div. of Equifax Servs., Inc., 120 F.R.D. 504, 509 (W.D. La. 1988) (“courts have consistently held

that the work-product concept furnishes no shield against discovery, by interrogatories or by

deposition, of the facts that the adverse party's lawyer has learned, or the persons from whom he

has learned such facts, or the existence or non-existence of documents, even though the documents

themselves may not be subject to discovery.”).

Defendant’s remaining objection is prematurity. As for the timing of contention

interrogatories: “By or soon after the close of discovery, a defendant should be able to generally

explain the factual basis for each of the denials and affirmative defenses pled in its answer.” In &

Out Welders, Inc. v. H & E Equip. Servs., Inc., 2018 WL 1370600, at *7 (M.D. La. Mar. 16, 2018).

It is within the court's discretion to determine the appropriate response time. See In re Katrina

Canal Breaches, 2007 WL 1852184, at * 3 (E.D. La. June 27, 2007) (“As to contention

interrogatories of this sort, Rule 33(c) provides that the court may order that such an interrogatory

need not be answered until after designated discovery has been completed or until a pre-trial

conference or other later time. This Rule is purely permissive. The court may—but is certainly not

required to—delay a response.”); InternetAd Systems, LLC v. ESPN, Inc., 2004 WL 5181346, at

*2 (N.D. Tex. Oct. 8, 2004) (“Although it is not necessarily objectionable and may even be

advisable, the language of Rule 33(c) and the Advisory Committee note support the conclusion

that it is within a court's discretion to decide when an otherwise-proper interrogatory must be

answered.”).

Here, the original close of discovery was July 1, 2022.1 In their objection, Defendant

claimed that Interrogatory Nos. 10 – 13 were premature as discovery had, at that time, just begun.

It likewise “reserved the right to supplement” its responses “as discovery continues.” Notably,

Defendant’s objection centers around the fact that discovery was in its early stages; it does not

claim that the interrogatories at issue can never be answered. Given the basis for the prematurity

objection, and the fact that the original discovery period closed on July 1, 2022, the Court finds

that Defendant must now respond to Interrogatory Nos. 10, 11, 12, and 13. And so,

Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to Interrogatory Nos. 10, 11,

12, and 13, subject to the following:

 Interrogatory Nos. 10, 11, 12, and 13 are limited to “the material facts” Defendant

may rely on to establish its Third, Fifth, Twelfth, and Thirteenth Defenses,

respectively.

 Defendant must supplement its Answers to Interrogatory Nos. 10, 11, 12, and 13

within 14 days of this Order.

C. Request for Production No. 5

Request for Production No. 5 sought the production of “Computer-readable data showing

the transactions for each Plaintiff that formed the basis of any commissions or other compensation

1 The Court will, however, be extending the deadline based on the parties’ request and the outstanding discovery at

issue in this Motion to Compel.

paid to them in addition to any hourly wages.” (R. Doc. 74-1 at 5). In their Opposition, Defendant

makes the following representations:

Mobilelink is in the process of gathering documents responsive to [Request for

Production No. 5]. Mobilelink asks that the Court issue an order providing

Mobilelink with 30 days from the date of the order to produce any responsive

documents in its possession.

(R. Doc. 78 at 5). It has now been more than 30 days since the Opposition was filed, and Defendant

should have produced this information when it was first requested. Moreover, the Federal Rules

of Civil Procedure require a responding party to produce all information within its possession,

custody, or control – not just information within its possession. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to

Request for Production No. 5, and Defendant must provide all responsive documents in its

possession, custody, or control within 14 days of this Order.

D. Request for Production Nos. 12 and 13

Request for Production Nos. 12 and 13 asked Defendant to produce the following

information related to the calculation of wages.

Request for Production No. 12:

All documents relating to any communication to or from your payroll department(s)

(or any individual therein) regarding how pay for Plaintiffs, and/or sales personnel

that were paid on an hourly rate with additional commission based upon their sales,

was to be calculated.

Request for Production No. 13:

All documents related to any communication to or from you with Automatic Data

Processing, Inc. (“ADP”) (or any individual therein) regarding how to pay for

Plaintiffs, and/or sales personnel that were paid on an hourly rate with additional

commission based upon their sales, was to be calculated.

(R. Doc. 74-2 at 13). Defendant then provided substantively identical Responses and Supplemental

Responses to both Request for Production Nos. 12 and 13:

Response to Request for Production Nos. 12 and 13:

Mobilelink objects . . . based on the following specific grounds and reasons: it is

vague and overbroad. Mobilelink further objects on the grounds that the phrases

"all documents" and "any communication" are undefined and ambiguous, as the

phrase fails to describe what information, if any, is sought and improperly requires

Mobilelink to guess Plaintiffs' intended meaning. Subject to and without waiving

the foregoing objections, Mobilelink reserves the right to supplement its response

to this request as discovery continues and Mobilelink reviews Plaintiffs' records.

Supplemental Response to Request for Production Nos. 12 and 13:

Mobilelink objects . . . based on the following specific grounds and reasons: it is

substantially and temporally vague and overbroad. Mobilelink further objects to

this request because with no relevant time period provided, it is temporally

overbroad. Mobilelink further objects on the grounds that the phrases “all

documents” and “relating to any communication” are undefined and ambiguous, as

the phrases fail to describe what information, if any, is sought and improperly

require Mobilelink to guess Plaintiffs’ intended meaning. Further, Plaintiffs have

essentially request electronically stored information “ESI” but have not provided a

suggested ESI protocol, which would require, at a minimum, a proposed relevant

time period, custodians and search terms. This request is so overbroad that it

provides no workable parameters within which Mobilelink could even begin to

perform an ESI search. Mobilelink reserves the right to supplement its response to

this request as discovery continues.

(R. Doc. 74-4 at 10-11). The Court however finds Defendant’s objections to either be without merit

or waived.

To begin, the only objection raised in the original Responses claims the Requests are vague

as “the phrases ‘all documents’ and ‘any communication’ are undefined and ambiguous phrases.”

(R. Doc. 74-4 at 10-11). However, both key terms in these phrases — “documents” and

“communications” — are actually defined in the “Definitions” section of Plaintiffs’ Requests for

Production. (R. Doc. 74-2 at 10-11). Because Defendant objected based solely on its erroneous

assumption that these terms were not defined — as opposed to objecting to how Plaintiffs defined

either term — the Court will not entertain this baseless objection any further.

Defendant’s remaining objections are that Request for Production Nos. 12 and 13 (a) are

“temporally overbroad” as they include “no relevant time period,” and (b) “essentially request

electronically stored information ‘ESI’ but [fail] [to] provide[] a suggested ESI protocol.”2 (R.

Doc. 74-4 at 10-11). However, both objections were not raised until Mobilelink’s Supplemental

Responses to Request for Production Nos. 12 and 13 on March 15, 2022. (R. Doc. 74-4 at 10-11).

“[A]s a general rule, when a party fails to object timely to interrogatories, [or] production

requests . . . objections thereto are waived,” In re U.S., 864 F.2d 1153, 1156 (5th Cir. 1989), unless

the responding party shows “good cause to excuse its later-raised objections,” James Lee Constr.,

Inc. v. Gov't Emps. Ins. Co., 339 F.R.D. 562, 573 (D. Mont. 2021). See also Fed. R. Civ. P. 33(b)(4)

(“Any ground not stated in a timely objection is waived unless the court, for good cause, excuses

the failure.”); Fed. R. Civ. P. 34(b) advisory committee’s notes (1970) (“The procedure provided

in Rule 34 is essentially the same as that in Rule 33 . . . .”); Bank of Mongolia v. M & P Glob. Fin.

2 The Court would still overrule Mobilelink’s objection regarding the lack of ESI protocol, even if it were timely

raised. To begin, ESI is very often responsive to requests for production. This fact alone does not negate Defendant’s

obligation to respond to discovery. Moreover, a party resisting discovery of ESI based on undue burden, must make a

specific showing that “the information is not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P.

26(b)(2)(B). Defendant’s conclusory objection falls woefully short. And finally, its position that Plaintiff should

unilaterally come up with an ESI protocol for Defendant to search its own ESI is contrary to the weight of authority

on this issue:

“A producing party generally has an obligation to collect and review ESI pursuant to its own search

protocol . . . and to provide the requesting party with the names of custodians whose ESI was

searched, date ranges for the searches, and any search terms applied. Such information is properly

included in written responses to document requests pursuant to Rule 34's specificity requirements. .

. . A producing party is usually in the best position to know where to find relevant documents. . . .

If problems are found with the search, a requesting party can raise them afterwards.”

Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 646 n.5 (S.D.N.Y. 2019); see also The Sedona Conference, The

Sedona Principles, Third Edition, 19 Sedona Conf. J. 1, 52 (2018) (“[r]esponding parties are best situated to evaluate

the procedures, methodologies, and technologies appropriate for . . . producing their own electronically stored

information.”); AIDS Healthcare Found., Inc. v. City of Baton Rouge, 2018 WL 5259465, at *5 n.4 (M.D. La. Oct.

22, 2018) (“District courts within the Fifth Circuit have acknowledged that the “Sedona Principles and related Sedona

commentaries are the leading authorities on electronic document retrieval and production.”); Winfield v. City of New

York, 2017 WL 5664852, at *9 (S.D.N.Y. Nov. 27, 2017) (“the producing party is better equipped than the court to

identify and utilize the best process for producing their own ESI consistent with their obligations under the Federal

Rules of Civil Procedure. . . . [And] perfection in ESI discovery is not required; rather, a producing party must take

reasonable steps to identify and produce relevant documents”); Firefighters' Ret. Sys. v. Citco Grp. Ltd., 2018 WL

276941, at *4 (M.D. La. Jan. 3, 2018) (“A responding party is generally entitled to select the custodians most likely

to possess responsive information.”). To be clear, the lack of an ESI protocol does not wholly negate Defendant’s

obligation to respond to a valid discovery request, even if electronically stored information might be responsive.

Servs., Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (Untimely Rule 34 objections are subject to

waiver unless good cause is shown.). “Any other result would completely frustrate the time limits

contained in the Federal rules and give license to litigants to ignore the time limits for discovery

without any adverse consequences.” Enron Corp. Sav. Plan v. Hewitt Assocs., L.L.C., 258 F.R.D.

149, 156 (S.D. Tex. 2009).

Each objection first raised in its Supplemental Responses was available to Mobilelink at

the time of its initial3 Responses on February 7, 2022, and should have been raised then. Mobilelink

has not explained why they failed to raise these objections in their original Responses, or otherwise

attempted to show good cause for this failure. As such, the objections first raised by Mobilelink in

their Supplemental Responses are waived. See Talley v. Spillar, 2017 WL 9288622, at *3 n.1

(W.D. Tex. Mar. 31, 2017) (“Talley served supplemental responses . . . . According to Defendants,

these supplements . . . interpose new objections. These supplemental responses were served two

months late, and, as such, any new objections raised therein are waived.”); Ayers v. Cont'l Cas.

Co., 240 F.R.D. 216, 222 (N.D.W. Va. 2007) (“The Court concludes Plaintiffs have waived their

right to object to Defendant's interrogatories . . . . Defendant served their interrogatories on Plaintiff

on January 11, 2006. A joint agreement of the parties allowed Plaintiffs until July 14, 2006, to

respond. Plaintiffs timely responded on that date. In their answers, Plaintiffs made no objections

whatsoever.”); Ecolab Inc. v. Int'l Chem. Corp., 2020 WL 109693, at *4 (M.D. Fla. Jan. 8, 2020)

(finding that objections raised in supplemental responses were waived and noting this approach

“is consistent with [Rule] 33(b)(4)’s mandate that any ground not stated in a timely objection is

3 The record indicates that the parties agreed to an extension of Mobilelink’s response time until February 7, 2022. (R.

Doc. 78 at 1). Mobilelink’s initial Responses were therefore timely, despite being served more than 30 days after the

requests were propounded on December 8, 2021. Fed. R. Civ. P. 34(b)(2)(A) (“A shorter or longer time may be

stipulated to under Rule 29 . . . .”); Fed. R. Civ. P. 29(b) (allowing parties to modify discovery procedures by

agreement, with exceptions).

waived unless the court, for good cause, excuses the failure.”); Safeco Ins. Co. of Am. v. Rawstrom,

183 F.R.D. 668, 671 (C.D. Cal. 1998) (“Both the language of Rule 33 and its promulgation history

suggest that grounds for objection must be stated in a response filed within the period allowed for

response, and that objections sought to be interposed later” through supplemental responses “are

waived unless the waiver is excused for good cause. Nothing suggests that objections may be

interposed after the period allowed for response as long as some sort of response was served during

the period allowed for response.”).

Nonetheless, the Court will, on its own, temporally limit both Request for Production Nos.

12 and 13 to the relevant period at issue.4 Because the potential group of plaintiffs has been limited

to individuals employed by Mobilelink within 3 years of the Conditional Certification Order (R.

Doc. 30) (entered on July 28, 2021) up until the present (R. Doc. 26-5) (Notice Form), the Court

will temporally limit Request for Production Nos. 12 and 13 to the following period: July 28,

2017, to the present. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to

Request for Production Nos. 12 and 13, subject to the following:

• Request for Production Nos. 12 and 13 are temporally limited to documents and

communications within the following period: July 28, 2017, to the present.

• Defendant must produce responsive documents and otherwise supplement its

written Response to Request for Production Nos. 12 and 13 within 14 days of this

Order.

4 The Court would impose this limitation regardless of any objection raised by Defendant.

E. Request for Production No. 14

Request for Production No. 14 asked Mobilelink for “All contracts or agreements between

you and Automatic Data Process, Inc. for the years 2018, 2019, 2020, and 2021.” (R. Doc. 74-1 at

9). In their original Response, Mobilelink stated:

Response to Request for Production No. 14:

Mobilelink reserves the right to supplement its response to this request as discovery

continues and Mobilelink reviews Plaintiffs' records.

This Response was made on February 7, 2022. (R. Doc. 74-3 at 17). At that time, Defendant had

exactly 2 months to contemplate its Response. It in no way objected to the requested information.

Indeed, Defendant certainly failed to claim that the information was somehow proprietary or

otherwise confidential. However, over a month later Mobilelink supplemented its Response to

Request for Production No. 14 and claimed the following:

Supplemental Response to Request for Production No. 14:

Mobilelink objects to Request for Production No. 14 based on the following

specific grounds and reasons: it is substantively vague, overbroad and seeks

confidential business information protected from disclosure/production.

Mobilelink further objects on the grounds that the phrase "all contracts or

agreements" is undefined and ambiguous, as the phrase fails to describe what

information, if any, is sought and improperly requires Mobilelink to guess

Plaintiffs' intended meaning. Further, Mobilelink objects to this request to the

extent that the requested "contracts or agreements" are proprietary and subject to

confidentiality provisions that prevent their production. Mobilelink reserves the

right to supplement its response to this request as discovery continues.

(R. Doc. 74-4 at 12). Plaintiffs now argue that Defendant has waived all objections in its

Supplemental Response to Request for Production No. 14:

Here, Mobilelink waived any objection, other than one based in a privilege, to the

production of its agreement(s) with ADP. Their newfound objections were

available to them on February 7, 2022 when they first responded to discovery;

however, they failed to object.

(R. Doc. 74-1 at 10). The Court agrees. See In re U.S., 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s

a general rule, when a party fails to object timely to interrogatories, production requests, or other

discovery efforts, objections thereto are waived.”).

In its Opposition, Mobilelink argues that it “did not waive its objections to Request[] for

Production No[]. 14 . . . by reserving its right to supplement its response as discovery continued

and then supplementing with specific objections within the confines of the discovery deadline.”

(R. Doc. 78 at 7). Not only is this contrary to the long-established rule that untimely objections to

discovery are generally waived, reserving one’s right to supplement a discovery response is

pointless, see Heller v. City of Dallas, 303 F.R.D. 466, 484 (N.D. Tex. 2014) ([A]ny statement

reserving the right to supplement discovery responses merely reflects an already existing duty

pursuant to [Rule] 26(e).”), and is tantamount to no response at all. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to

Request for Production No. 14, and Defendant must produce responsive documents or

otherwise supplement its written Response to Request for Production No. 14 within 14 days of

this Order.5

F. Request for Production No. 15

Request for Production No. 15 asked for: “All documents relating to any corrective time

entries for ‘retro’ pay.” (R. Doc. 74-1 at 10). In its original Response, Mobilelink “reserve[d] the

right to supplement its response to this request as discovery continues and Mobilelink reviews

Plaintiffs’ records.” (R. Doc. 74-1 at 10). A month later, it provided the following Supplemental

Response:

Mobilelink objects to Request for Production No. 15 based on the following

specific grounds and reasons: it is substantively and temporally vague and

5 Nothing prevents the parties from agreeing to a proposed protective order and submitting it to the Court for to protect

any confidential or proprietary information exchanged during discovery.

overbroad. Mobilelink further objects to this request because with no relevant time

period provided, it is temporally overbroad. Mobilelink further objects on the

grounds that the phrases “[a]ll documents” and “retro” pay are undefined and

ambiguous, as the phrases fail to describe what information, if any, is sought and

improperly require Mobilelink to guess Plaintiffs’ intended meaning.

Subject to and without waiving the foregoing objections, responsive documents

include, but are not limited to, Mobilelink’s handbooks, produced as

MOBILELINK-000001-263, Mobilelink Payroll Management Policy, produced as

MOBILELINK-000276-277, Mobilelink’s Time Corrections Policy, produced as

MOBILELINK-000279-280, and job descriptions, produced as MOBILELINK-

000362-410. Mobilelink reserves the right to supplement its response to this request

as discovery continues.

(R. Doc. 74-4 at 12-13). The Court agrees with Plaintiffs that the objections raised in Defendant’s

Supplemental Response were “readily available” to Defendant when it first responded to Plaintiffs’

discovery and are therefore waived.

But even if these objections were not waived, they are largely meritless. As the Court has

already explained, the term “document” is actually defined in Plaintiffs’ discovery requests. (R.

Doc. 74-2 at 10-11). And perhaps most important, Plaintiffs have submitted testimony from

Mobilelink’s Rule 30(b)(6) deposition which makes it abundantly clear that Mobilelink

understands the meaning of the term “retro pay.”

Q. What is retro pay? Are you familiar with

that?

A. Retro pay, if I was -- I get paid, and then

I realize I didn't get paid all my hours, like, I've

had a miss punch, like I didn't punch out. Then I

would report that to payroll, and payroll would add

it to the next check as a retro pay.

(R. Doc. 74-5 at 4). Beyond that, the testimony of Mobilelink’s Corporate Representative makes

clear that Defendant maintains documents “relating to any corrective time entries for ‘retro’

pay’—1.e., documents responsive to Request for Production No. 15. (R. Doc. 74-1 at 10).

Q. How does Mobilelink track whether or not

those missed hours would trigger overtime

compensation in the week that they were missed in?

A. So the payroll department, say, I -- they

receive four hours that were missed out of the last

paycheck. They go add it back to the paycheck and

it recalculates and it will give you the overtime

and the regular, and then they subtract from what

was already paid, that difference. So if now I put

them into overtime, they get the overtime

difference, or if it's just regular, they get the

regular difference.

Q. And does Mobilelink keep records of that

transaction process?

A. Yes. The payroll department has -- hada

time corrections portal, and then for every time

payroll runs and they do retro, they have batches on

that data.

(R. Doc. 74-5 at 4). And so, even if Defendant had timely raised these vagueness objections, the

Court would nonetheless find them unfounded.

Although the Court finds Defendant has waived the objections first asserted in its

Supplemental Response, the Court will nonetheless, temporally limit Request for Production No.

15 to the relevant period at issue. Again, because the potential group of plaintiffs has been limited

to individuals employed by Mobilelink within 3 years of the Conditional Certification Order (R.

Doc. 30) (entered on July 28, 2021) up until the present (R. Doc. 26-5) (Notice Form), the Court

will temporally limit Request for Production No. 15 to the following period: July 28, 2017, to the

present. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED as to

Request for Production No. 15, subject to the following:

• Request for Production No. 15 is temporally limited to the following period: July

28, 2017, to the present.

• Defendant must produce responsive documents and otherwise supplement its

written Response to Request for Production No. 15 within 14 days of this Order.

G. Extension of Discovery Deadline

Plaintiffs request a 60-day extension of the discovery deadline to accommodate the

incomplete discovery at issue in their Motion to Compel. (R. Doc. 74 at 2). Defendant does not

oppose the request. Moreover, the Court finds an extension necessary given the amount of

discovery at issue in this Motion, which remains outstanding. However, a 60-day extension would

place the discovery deadline after the deadline for dispositive motions. Therefore,

IT IS ORDERED that Plaintiffs’ Motion to Compel (R. Doc. 74) is GRANTED and the

July 1, 2022 discovery deadline is extended until September 2, 2022.

To accommodate this extension, IT IS ORDERED that the following deadlines set by the

Court’s Scheduling Order (R. Doc. 73) are modified, as well: the August 15, 2022 expert

discovery deadline is extended until September 2, 2022; and the August 31, 2022 deadline to file

dispositive and Daubert motions is extended until September 16, 2022.

Signed in Baton Rouge, Louisiana, on July 28, 2022.

S