Arends v. Family Solutions of Ohio, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Jamal Stephenson, et al., Case No. 1:18cv2017

On behalf of himself and

All others similarly situated,

Plaintiffs, JUDGE PAMELA A. BARKER

-vs-

Family Solutions of Ohio, Inc., MEMORANDUM OPINION AND

et al., ORDER

Defendants

Currently pending is Defendants Family Solutions of Ohio, Inc., Prostar Management, Inc.,

John Hopkins, and Dawn Smith’s Motion to Compel. (Doc. No. 174.) Plaintiffs filed a Brief in

Opposition on February 9, 2022, to which Defendants replied on February 11, 2022. (Doc. Nos. 176,

177.) For the following reasons, Defendants’ Motion (Doc. No. 174) is DENIED.

I. Relevant Background1

A. Initial Pleadings and Conditional Certification of FLSA Collective Action

On September 4, 2018, Plaintiff Alicia Arends filed a Complaint in this Court on behalf of

herself and all others similarly situated against Defendants Family Solutions of Ohio, Inc., Prostar

Management, Inc., John Hopkins, and Dawn Smith (hereinafter “Defendants”). (Doc. No. 1.)

Therein, Plaintiff asserted that she and the putative class members were employed by Defendants as

Qualified Mental Health Specialists (“QMHS”) and that Defendants had failed to pay them for time

1 The Court has set forth the factual and procedural background on this matter in several lengthy Memorandum Opinions

& Orders. See Doc. Nos. 137, 143, 172, 175. The Court presumes familiarity with these Opinions.

worked that was not billable to Medicaid or other health insurance. (Id.) Plaintiff alleged the

following six claims for relief: (1) violations of the minimum wage and overtime provisions of the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) (Count One); (2) violations of the Ohio Fair

Minimum Wage Amendment (“OFMWA”), Ohio Constitution, Art. II, § 34a (Count Two); (3)

violations of Ohio’s overtime compensation statute, Ohio Rev. Code § 4111.03 (Count Three); (4)

violations of the OFMWA’s record-keeping requirement (Count Four); (5) breach of contract (Count

Five); and (6) unjust enrichment (Count Six). (Id.) Plaintiff sought conditional certification as a

FLSA collective action; certification of the state law claims under Fed. R. Civ. P. 23; compensatory

and punitive damages; and attorney fees and costs. (Id.) On March 4, 2019, Jamal Stephenson filed

an Opt-In and Consent Form. (Doc. No. 12-1.)

Meanwhile, on February 28, 2019, Plaintiffs filed a Motion for Conditional Certification and

Court-Authorized Notice with respect to their FLSA claims. (Doc. No. 11.) Therein, Plaintiffs

argued that Defendants violated the overtime provisions of the FLSA by failing to pay potential class

members for necessary services such as documentation time, intra-day travel between clients, and

time spent for client appointments and no-shows. (Id.) Plaintiffs sought conditional certification

with respect to “all hourly employees who worked as providers for Family Solutions of Ohio during

the three years preceding the commencement of this action to the present.” (Id.)

On September 16, 2019, the Court issued a Memorandum Opinion & Order granting

Plaintiffs’ Motion for Conditional Certification with respect to all current and former employees who

worked as QMHSs between September 16, 2016 and September 16, 2019. (Doc. No. 20.)

B. Discovery

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A Case Management Conference (“CMC”) was conducted on October 7, 2019, at which time

the Court approved the parties’ proposed Notice and set various case management deadlines,

including the following: fact discovery due by July 6, 2020; dispositive motions due by August 6,

2020; initial expert report due by August 6, 2020; responsive expert report due by September 7, 2020;

and all expert discovery to be completed by November 9, 2020. (Doc. No. 25.) The docket reflects

that FLSA consent forms were filed by twenty-four (24) opt-in plaintiffs between October and

December 2019.2 See Doc. Nos. 26 through 36.

On July 7, 2020, upon motion of the parties, the Court extended the fact discovery deadline

to August 14, 2020. During the course of fact discovery, Defendants took the depositions of

representative Plaintiffs Jamal Stephenson and Melanie Vilk Baron. (Doc. Nos. 113-1, 115-1.)

Defendants did not take the depositions of any of the other opt-in Plaintiffs. Nor did Defendants seek

discovery relating to any employees or former employees who had not opted into the instant action.

After the close of fact discovery, Plaintiffs produced the report of their expert, Shane

Thompson, Ph.D., to Defendants. (Doc. No. 154-1 at PageID#s 6767-6777.) Therein, Dr. Thompson

concluded that, between September 4, 2015 through September 29, 2019, Plaintiffs accrued a total of

16,965 hours of unpaid work derived from the following three activities: “(1) documentation time in

clients’ electronic health records, (2) travel time intraday from client to client, and (3) time spent on

no-show appointments.” (Id. at PageID# 6768.) On October 7, 2020, Dr. Thompson supplemented

his Expert Report based on newly submitted information relating to several Opt-Ins. (Id. at PageID#s

2 On May 5, 2020, Plaintiffs filed an Amended Class and Collective Action Complaint, designating Plaintiffs Stephenson

and Melanie Vilk Baron as the representative plaintiffs. (Doc. No. 50.) The Amended Complaint raises the same factual

and class allegations and asserts the same six grounds for relief set forth in the original Complaint. (Id.)

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6764-6766.) Dr. Thompson’s Supplemental Report includes two Revised Tables, which indicate that

Dr. Thompson revised his Opinion to find that Plaintiffs had a total of 18,055.6 hours of unpaid work

derived from these same three activities. (Id.) Plaintiffs’ counsel produced Dr. Thompson’s “expert

file” to Defendants on November 23, 2020.

The Court conducted a telephonic status conference with lead counsel on January 8, 2021. At

that time, counsel for Plaintiffs specifically asked the Court not to rule on Plaintiffs' Motion for Rule

23 Certification until after a ruling on the pending summary judgment motions. Defendants did not

object. See Non-Document Order dated January 8, 2021. In addition, counsel for both parties sought,

and the Court granted, an indefinite stay of expert discovery. Id.

C. Rulings on Summary Judgment and Rule 23 Motions

In accordance with this Court’s scheduling Order, Plaintiffs filed their Motion for Rule 23

Class Certification on July 31, 2020 and Defendants timely filed Motions for Summary Judgment

with respect to all claims asserted by Ms. Vilk Baron and Mr. Stephenson on September 1, 2020.

(Doc. Nos. 70, 88, 89.)

On March 2, 2021, the Court issued a Memorandum Opinion & Order in which it (1) granted

summary judgment as to Plaintiff Baron’s and Stephenson’s breach of contract claims, and (2) denied

summary judgment with respect to Plaintiffs’ FLSA and state law wage-and-hour claims, as well as

Plaintiffs’ claim for damages. (Doc. No. 137.)

Shortly thereafter, the Court ordered supplemental briefing regarding the impact of Dr.

Thompson’s expert report, if any, on the parties’ arguments relating to Rule 23 certification. (Doc.

No. 139.) The parties submitted their Supplemental Briefing on March 26, 2021. (Doc. Nos. 141,

142.) Therein, Plaintiffs argued that the same evidence supports both the Ohio claims and the FLSA

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claims and that “negligible additional discovery” would therefore be necessary. (Doc. No. 141 at p.

3-4.) Plaintiffs asserted that Dr. Thompson’s expert report already addressed Plaintiffs’ state law

claims as it pertains to both the FLSA Plaintiffs and the potential Rule 23 class members. (Id. at p.

1.) Plaintiffs stated that, at most, Dr. Thompson would need employment dates and wage rates for

the additional Rule 23 class members, as well as a “small sample” of available time and pay records

for between 10 and 20 employees. (Id. at p. 4.) In response, Defendants argued that damages in the

instant case are highly individualized and that Dr. Thompson’s expert report could not be used as a

proxy for the Rule 23 Class Members. (Doc. No. 142.) Defendants maintained that they would need

to serve written discovery on, and take the deposition of, every single FLSA and Rule 23 class

member which could take “several years.” (Id. at p. 10.)

On April 5, 2021, the Court issued a Memorandum Opinion & Order granting in part and

denying in part Plaintiffs’ Motion for Rule 23 Certification of a state law class. (Doc. No. 143.)

Therein, the Court began by denying Plaintiffs’ Motion to the extent the putative class included hourly

Therapists and a class-based breach of contract claim. (Id. at pp. 13-14.) Having thus narrowed the

state law class, the Court proceeded to consider whether to exercise supplemental jurisdiction over

Plaintiffs’ remaining state class claims. After a lengthy analysis, the Court concluded that

“considerations of judicial economy, convenience, and fairness weigh in favor of exercising

supplemental jurisdiction over Plaintiffs’ state law claims.” (Id. at p. 23.) In reaching this conclusion,

the Court rejected Defendants’ argument that Plaintiffs’ state law claims substantially predominated

over the FLSA claim because significant additional discovery would be necessary, explaining as

follows:

The Court is not persuaded that significant additional discovery regarding damages

will necessarily be required. Both the Supreme Court and the Sixth Circuit have found

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that, if admissible and otherwise appropriate under the circumstances, representative

evidence may be used in calculating collective and class action damages, particularly

where (as here) the defendant employer failed to maintain employee time records. See,

e.g., Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1046 (2016) (in FLSA

collective action and Rule 23 class action case, noting that “[i]n many cases, a

representative sample is the only practicable means to collect and present relevant data

establishing a defendant’s liability”); Pierce v. Wyndham Vacation Resorts, Inc., 922

F.3d 741, 747-748 (6th Cir. 2019). As expert discovery is not complete, the Court is

not deciding, at this time, whether Dr. Thompson’s expert report will ultimately be

deemed appropriate and/or admissible in this action. However, in light of the fact that

Plaintiffs have come forward with representative evidence and assert that that

evidence will apply equally to putative Rule 23 class members, the Court is not

persuaded that certification of a Rule 23 class will necessarily require the time-

consuming, years-long, individualized discovery that Defendants direly predict

[footnote omitted].

(Id. at pp. 22-23.) The Court then considered certification of Plaintiffs’ remaining state law claims

under Rule 23. (Id. at pp. 26-45.) The Court found that each of the four Rule 23(a) factors (i.e.,

numerosity, commonality, typicality, and adequate representation) were satisfied and, further, that

Plaintiffs had demonstrated predominance and superiority under Rule 23(b)(3). (Id.) The Court,

therefore, granted Plaintiffs’ Motion and certified the following Rule 23 class: “All employees who

worked in Ohio as QMHSs for Defendant Family Solutions of Ohio during the period three years

preceding the commencement of this action [i.e., September 4, 2015] to the present.” (Id. at p. 46.)

D. Post-Certification Discovery

Shortly after issuing its Rule 23 ruling, the Court ordered the parties to submit Status Reports

addressing, among other things, “any remaining discovery that may reasonably be necessary in light

of the Court’s recent rulings.” See Non-Document Order dated April 8, 2021. The parties submitted

separate Status Reports to Chambers on April 8, 2021. In their Status Report, Plaintiffs indicated that

“limited additional discovery prompted by the Court’s certification ruling can be efficiently

completed” and proposed the following:

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Class Discovery. From the Class Roster, the parties should jointly identify a random

sample of twenty class members for representative discovery. To facilitate contact,

the sample should consist of class members to whom the distribution of the Notice by

First Class mail and email were not returned as undeliverable. Fact discovery as to

such class members will be completed by August 1, 2021.

Specifics of Class Discovery. Plaintiffs’ limited need for class discovery was outlined

in the recent briefing. Plaintiffs’ Supplemental Memorandum, ECF #141, at page 4.

Plaintiffs will request employment dates and wage rates for all class members. For

the sample group of twenty class members, Plaintiffs will request only timekeeping

and payroll records, audit trails, and progress notes with protected health information

redacted.

Dr. Shane Thompson’s Supplemental Report and Deposition. Based on the class

discovery, Plaintiffs will provide any supplemental expert report from their forensic

economist, Dr. Shane Thompson, by September 1, 2021. Defendants will take Dr.

Thompson’s deposition by October 1, 2021.

(Doc. No. 176-1 at PageID# 7001.) In Defendants’ Status Report, Defendants did not indicate that

they wanted or needed to conduct written discovery and/or depositions of absent Rule 23 class

members. (Doc. No. 176-1 at PageID#s 7003-7005.) Rather, Defendants stated only that they needed

to take the deposition of Dr. Thompson in order to determine “what information was actually relied

upon in rendering [his] opinion” and “whether any additional motions need to be filed.” (Id.)

The Court conducted a status conference with lead counsel on April 14, 2021. At no time

during this conference did either party seek leave to conduct discovery of the Rule 23 class members,

either in the form of written discovery requests and/or depositions. Based on its discussions with

counsel and the information contained in the parties’ Status Reports, the Court set the following

deadlines and parameters for discovery relating to the Rule 23 class members:

Fact Discovery relating to class members shall be completed by August 1, 2021, as

follows. From the [Rule 23] Class Roster, the parties should jointly identify a random

sample of twenty (20) class members for representative discovery. To facilitate

contact, the sample should consist of class members to whom the distribution of the

Notice by First Class mail and email were not returned as undeliverable. Plaintiffs

may request employment dates and wage rates for all class members. For the sample

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group of twenty class members, Plaintiffs may only request timekeeping and payroll

records, audit trails, and progress notes with protected health information redacted.

Plaintiffs shall provide any supplemental expert report from their forensic economist,

Dr. Shane Thompson, by September 1, 2021. Defendants shall take Dr. Thompson’s

deposition by October 1, 2021.

(Doc. No. 145.) Lastly, the Court stated that motions based on the above fact and expert discovery

(including motions to decertify the current class and a renewed summary judgment motion) shall be

filed by no later than November 1, 2021. 3 (Id.)

The Court subsequently conducted a status conference with counsel on December 15, 2021,

at which time the parties jointly requested that the case schedule be extended by another sixty (60)

days. Once again, neither party sought leave to conduct written or deposition discovery of the absent

class members. The Court granted the parties’ request and set a Final Pretrial for November 21, 2022

and a Trial date of December 5, 2022. (Doc. No. 171.)

D. Motion to Compel

At some point after this Court’s Rule 23 ruling (but without first seeking leave), Defendants

served written discovery requests (including requests for admissions, interrogatories, and documents

requests) on each of the twenty, randomly selected absent class members. (Doc. No. 174 at p. 5.)

Counsel for Plaintiffs did not object and apparently provided a joint response to Defendants’ requests

for admission on behalf of the absent class members. See Defendants’ January 27, 2022 Position

3 Shortly thereafter, on April 19, 2021, Defendants filed a Notice of Interlocutory Appeal to the Sixth Circuit from this

Court’s decision granting in part and denying in part Plaintiffs’ Motion for Rule 23 Certification. (Doc. No. 147.) The

following month, Defendants filed a Motion for Sanctions. (Doc. No. 153.) Several months later, on July 13, 2021,

Defendants filed a Motion for Certification to File Interlocutory Appeal in this Court pursuant to 28 U.S.C. § 1292(b).

(Doc. No. 159.) The Court denied Defendants’ Motions for Sanctions and for Certification to File Interlocutory Appeal

in Memorandum Opinion & Orders dated January 31, 2022 (Doc. No. 172) and February 9, 2022 (Doc. No. 175),

respectively.

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Paper at p. 3. Counsel for Plaintiffs also apparently provided interrogatory and document responses

on behalf of two of the twenty randomly selected absent class members.4 Id.

On January 24, 2022, Plaintiffs submitted a position paper to the Court in which they stated

that “for the first time in this litigation, Defendants insist on taking previously unnoticed depositions

of every unnamed class member in the sample group.” See Plaintiffs’ January 24, 2022 Position

Paper. Plaintiffs asserted that Defendants’ request for depositions of absent class members is “far

beyond the scope of the discovery permitted by the Court’s April 15, 2021 Order.” Id. Plaintiffs

cited district court cases from this Circuit for the proposition that discovery of absent class members

is “rarely permitted” and a “party seeking discovery from an unnamed class member must first show

a particularized need for said discovery and first seek permission from the court.” Id. (citing Garden

City Employees Ret. Sys. v Psychiatric Solutions, 2012 WL 4829802 at * 2 (M.D. Tenn. October 10,

2012); In re Skelaxin Antitrust Litig., 292 F.R.D. 544 (E.D. Tenn. June 10, 2013)).

Defendants submitted a response to Chambers on January 27, 2022, in which they stated that

they “never agreed to limited discovery regarding the Rule 23 class.” See Defendants’ January 27,

2022 Position Paper. Defendants asserted that Plaintiffs’ counsel previously agreed to allow short

depositions of each of the twenty randomly selected absent class members but that “Plaintiffs’ counsel

now object.” Id. Without citing any legal authority, Defendants argued that they “have the right to

conduct discovery” of the absent class members and that such discovery is “consistent with the Rules

of Civil Procedure and their rights under Rule 23.” Id. Defendants requested that, if the Court was

not inclined to permit depositions, they be permitted to submit “briefing” on the issue. Id.

4 Neither party has provided this Court with copies of Defendants’ written discovery requests or any of the responses

provided by Plaintiffs’ counsel.

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On January 31, 2022, the Court issued an Order, providing that “prior to conducting any

discovery of the absent Rule 23 class members in this action, Defendants must first file a Motion to

Compel that is properly supported by legal authority.” (Doc. No. 173.) Defendants timely filed the

instant Motion to Compel on February 4, 2022, to which Plaintiffs responded on February 9, 2022.

(Doc. Nos 174, 176.) Defendants filed their Reply on February 11, 2022. (Doc. No. 177.)

II. Legal Standard

“Discovery of absent class members is not warranted as a matter of course.” Groth v. Robert

Bosch Corp., 2008 WL 2704709 at * 1 (W.D. Mich. July 9, 2008) (citing Brennan v. Midwestern Life

Ins. Co., 450 F.2d 999, 1005 (7th Cir. 1971)). As the Supreme Court has explained, this is because:

Unlike a defendant in a normal civil suit, an absent class action plaintiff is not required

to do anything. He may sit back and allow the litigation to run its course, content in

knowing that there are safeguards provided for his protection. In most class actions an

absent plaintiff is provided at least with an opportunity to “opt out” of the class, and

if he takes advantage of that opportunity he is removed from the litigation entirely.

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985). As a result, courts have exercised caution

in permitting discovery of absent class members, reasoning that “’[r]equiring absent class members

to respond to discovery threatens to turn a class suit into an ‘opt in’ procedure rather than an opt-out

mechanism, an approach the Supreme Court has squarely rejected.’” Rosenbohm v. Cellco

Partnership, 2019 WL 2141901 at * 4 (S.D. Ohio May 16, 2019) (quoting 3 Newberg on Class

Actions, § 9.11 (5th ed.)) See also Groth, 2008 WL 2704709 at * 1 (“The court must keep in mind

that one of the principal advantages ‘would be lost if all class members were routinely subject to

discovery’”) (quoting Manual for Complex Litigation § 21.141 (4th ed. 2004)); On the House

Syndication, Inc. v. Federal Express Corp., 203 F.R.D. 452, 456 (S.D. Cal. 2001) (“[A]llowing

defendants to subject absent class members to discovery may defeat the purpose of certifying the

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class in the first place.”); In re Carbon Dioxide Industry Antitrust Litigation, 155 F.R.D. 209, 212

(M.D. Fla. 1993) (“The efficiencies of a class action would be thwarted if routine discovery of absent

class members is permitted, particularly on the issue of liability.”)

In balancing a defendant’s need to conduct discovery against the goals of a class suit, most

courts have found that “discovery from absent class members is not forbidden but rather is

disfavored.” 3 Newberg on Class Actions, § 9.11 (5th ed.) See, e.g., Garden City Employees’

Retirement System v. Psychiatric Solutions, Inc., 2012 WL 4829802 at * 2 (M.D. Tenn. Oct. 10, 2012)

(noting that “courts have ruled that discovery of absent class members, while not forbidden, is rarely

permitted”); Hurt v. Commerce Energy, Inc., 2014 WL 3615807 at * 5 (N.D. Ohio July 21, 2014)

(“Generally, absent class members in a Rule 23 class action are not subject to discovery”); J.B.D.L.

Corp. v. Wyeth-Ayerst Labs., Inc., 2004 WL 7081790 at * 4 (S.D. Ohio June 7, 2004) (noting that

“discovery from absent members of a class should be sharply limited and allowed only on a strong

showing of justification”).

Thus, courts have found that the party seeking discovery of absent class members must first

obtain leave of court. See Groth, 2008 WL 2704709 at * 1 (“A defendant must receive leave of court

to conduct discovery of absent class members”); In re Skelaxin Antitrust Litig., 292 F.R.D. 544, 550

(E.D. Tenn. 2013) (finding that “in a class action, even a putative class action, the party seeking

discovery from an unnamed class member must . . . first seek permission from the court”); In re Behr

Dayton Therman Products, LLC, 2013 WL 12177803 at * 2 (S.D. Ohio March 29, 2013) (noting that

“a defendant must receive leave of court to conduct discovery of absentee class members.”); Baldwin

& Flynn v. National Safety Associates, 149 F.R.D. 598, 600 (N.D. Cal. 1993) (“Defendants must have

leave of court to take depositions of members of a putative class, other than the named class

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members.”) Moreover, the party seeking such discovery bears the burden of demonstrating that it is

appropriate and warranted under the circumstances. Groth, 2008 WL 2704709 at * 1. See also Clark

v Universal Builders, Inc, 501 F.2d 324, 341 (7th Cir. 1974) (“The party seeking discovery [of absent

class members] has the burden of demonstrating its merits.”); In re Behr Dayton Therman Products,

LLC, 2013 WL 12177803 at * 2 (same); 3 Newberg on Class Actions, § 9.13 (5th ed.) (noting that

courts have found that “the burden is on the defendant to demonstrate that a discovery request [to an

absent class member] is appropriate”)

“Although some showing of need is uniformly required before permitting discovery of absent

class members, the courts in the Sixth Circuit have yet to arrive at a consensus as to what showing

[the party seeking discovery] must make.” Rosenbohm, 2019 WL 2141901 at * 4. Some courts have

held that, “discovery is only permitted where a strong showing is made that the information sought

(1) is not sought with the purpose or effect of harassment or altering membership of the class; (2) is

directly relevant to common questions and unavailable from the representative parties; and (3) is

necessary at trial of issues common to the class.” Garden City Employees’ Ret. Sys., 2012 WL

4829802 at * 2. Other courts have found that discovery of absent class members should only be

allowed “upon a showing of ‘particularized need,’ which generally requires a demonstration that the

discovery is addressed to common issues (as opposed to individual issues), that it is not designed to

force class members to opt out, and that it would not impose an undue burden or require the deponent

to seek legal or technical assistance to respond.” Groth, 2008 WL 2704709 at * 1. See also In re

Polyurethane Foam Antitrust Litig., 2014 WL 764617 at *2 (N.D. Ohio Feb. 26, 2014) (endorsing

the Manual for Complex Litigation's “particularized need” rule); Rosenbohm, 2019 WL 2141901 at

* 4 (same); Khaliel v. Norton Healthcare, Inc. Retirement Plan, 2012 WL 6554714 at * 1 (W.D. Ky.

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Nov. 20, 2012) (same). The Court observes that, while phrased differently, each of the above tests

require, at a minimum, a showing that the discovery sought is necessary, addressed to common

issues/questions, and not designed to harass or unduly burden absent class members.

Regardless of which test is employed, courts agree that “more burdensome forms of discovery

of absent class – typically depositions – require a showing of greater necessity than less intensive

discovery techniques.” 3 Newberg on Class Actions § 9.14 (5th ed.). See, e.g., J.B.D.L. Corp., 2004

WL 7081790 at * 7 (“Seeking deposition testimony from absent class members is not justified and is

subject to an even heavier burden.”); Garden City Employees’ Retirement Sys., 2012 WL 4829802 at

* 3 (“Attempts to depose class members should require greater justification than interrogatories.”);

Boynton v. Headwaters, Inc., 2009 WL 3103161 at * 1 (W.D. Tenn. Jan. 30, 2009) (“The burden is

heavy to justify asking questions by interrogatories, even heavier to justify depositions.”); Groth,

2008 WL 2704709 at * 1 (“Because of the intrusive nature of depositions, ‘the burden confronting

the party seeking deposition testimony should be more severe than that imposed on the party

requesting permission to use interrogatories.’”) (quoting Clark, 501 F.2d at 341.)

III. Analysis

In their Motion, Defendants ask the Court to order Plaintiffs to respond to Defendants’

interrogatory requests, document requests, and notices of deposition. (Doc. No. 174.) Defendants

argue that discovery of the absent class members is necessary because the Rule 23 class is broader

than the FLSA class in several important respects, including the nature of the claims, the number of

class members, and the length of the class period. (Id.) Defendants further assert that the requested

discovery is necessary because “it is now evident that Plaintiffs’ expert has relied on subjective

opinions of class members in providing the expert opinion.” (Id. at p. 5.) Defendants next argue that

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the discovery sought is “directly relevant to common questions” relating to the Rule 23 class claims

“and whether a class action is appropriate for Rule 23 class.” (Id. at p. 7, 9.) Finally, Defendants

maintain that “the information sought is for a legitimate purpose” and is not unduly burdensome. (Id.

at p. 9.)

Plaintiffs argue that Defendants’ own conduct shows that the requested discovery is not

necessary. (Doc. No. 176.) Plaintiffs note that, during the lengthy fact discovery period in this case,

Defendants chose not to depose any of the FLSA opt-in Plaintiffs in this case or any of Family

Solution’s current or former employees that are now part of the Rule 23 class. (Id.) Plaintiffs

emphasize that Defendants did not indicate a need for discovery of absent class members in their

April 2021 Status Report or during the December 2021 status conference with the Court. (Id.)

Finally, counsel for Plaintiffs vehemently assert that they never agreed to allow depositions of the

absent class members. (Id. at pp. 7-8.) See also Doc. No. 176-3.

Although not directly addressed by either party, the Court first considers which test to apply

in evaluating Defendants’ Motion, i.e., the “strong showing” test set forth in Garden City, supra or

the “particularized need” test set forth in Groth, supra. Defendants apply the “strong showing” test.

(Doc. No. 174 at pp. 6-7.) Plaintiffs do not object and, indeed, reference the “strong showing” test

in both their Brief in Opposition and January 24, 2022 Position Paper. The Court will, therefore,

assume for purposes of the instant Motion that the “strong showing” test applies to Defendants’

requests to take written and deposition discovery of the twenty, randomly selected absent class

members at issue herein.

Under this test, “discovery is only permitted where a strong showing is made that the

information sought (1) is not sought with the purpose or effect of harassment or altering membership

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of the class; (2) is directly relevant to common questions and unavailable from the representative

parties; and (3) is necessary at trial of issues common to the class.” Garden City Employees’ Ret.

Sys., 2012 WL 4829802 at * 2. For the following reasons, the Court finds that Defendants have failed

to make a strong showing that the requested written discovery and depositions of the twenty absent

class members is warranted under the circumstances presented.

A. Whether the Requested Discovery is Directly Relevant to Common Questions

and Unavailable from the Representative Parties

The Court will first consider whether the requested discovery is “directly relevant to common

questions or unavailable from the representative parties.” Garden City Employees’ Ret. Sys., 2012

WL 4829802 at * 2. The Court addresses the issues of commonality and availability separately,

below.

The Court finds that Defendants have failed to carry their burden of demonstrating that the

requested discovery is directly relevant to common questions. Defendants have not provided this

Court with their interrogatory or document requests nor have they otherwise provided any

information to this Court regarding the number or nature of the interrogatories and/or documents

requested. Thus, the Court has no way of determining whether Defendants’ written discovery

requests are directly relevant to common questions. Accordingly, the Court finds that Defendants

have failed to carry their burden of showing that their written discovery requests satisfy this factor.5

5 The fact that counsel for Plaintiffs agreed to provide responses to Defendants’ written discovery requests to absent class

members is not relevant. A party is not permitted to obtain discovery from absent class members without first obtaining

leave of Court. See Groth, 2008 WL 2704709 at * 1 (“A defendant must receive leave of court to conduct discovery of

absent class members”); In re Skelaxin Antitrust Litig., 292 F.R.D. at 550 (finding that “in a class action, even a putative

class action, the party seeking discovery from an unnamed class member must . . . first seek permission from the court”).

Here, Defendants failed to seek leave of Court before serving their written discovery requests. This was inappropriate

and is not excused by the fact that counsel for Plaintiffs subsequently provided partial responses and/or failed to object.

See, e.g., Garden City Employees Retirement Sys., 2012 WL 4829802 at * 4 (finding that “Defendants’ undisputed

commencement of discovery of absent class members . . . without prior Court approval, is disturbing.”); Groth, 2008 WL

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With regard to Defendants’ requested depositions, the Court likewise finds that Defendants

have failed to sufficiently demonstrate that these depositions will be limited to information that is

directly relevant to common questions. Defendants provide little detail regarding the topics that they

intend to address during these depositions, stating only that they seek “to take short depositions on

the claims and employment histories relating to the claims of the twenty randomly selected class

members.” (Doc. No. 174 at p. 2.) At another point in the Motion, Defendants state that they “will

agree to only address the Rule 23 claims and the facts relating to whether a class action is appropriate

for the Rule 23 class.” (Id. at p. 7.) The Court finds that these generalized descriptions are unhelpful

and far too vague to satisfy Defendants’ heavy burden of showing that the depositions of absent class

members will be geared towards “information that is directly relevant to common questions.” See,

e.g., J.B.D.L. Corp., 2004 WL 7081790 at * 7 (“Seeking deposition testimony from absent class

members is not justified and is subject to an even heavier burden.”); Garden City Employees’

Retirement Sys., 2012 WL 4829802 at * 3 (“Attempts to depose class members should require greater

justification than interrogatories.”); Boynton, 2009 WL 3103161 at * 1 (“The burden is heavy to

justify asking questions by interrogatories, even heavier to justify depositions.”)

The Court is particularly hesitant to find this factor met given the fact that Defendants’ Motion

also states that Defendants “seek short depositions in order to get individualized factual information

relating to the Rule 23 claims.” (Doc. No. 174 at p. 5.) This runs directly contrary to the requirement

that discovery of absent class members involve common (as opposed to individualized) issues. See

Groth, 2008 WL 2704709 at * 1 (requiring “a demonstration that the discovery is addressed to

2704709 at * 1 (admonishing defendants for failing to first seek leave of court before “beginning its campaign to depose

numerous putative class members”).

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common issues (as opposed to individualized issues)”); 3 Newberg on Class Actions § 9:16 (“A

defendant seeking discovery from absent class members bears the burden of demonstrating that the

discovery concerns common, rather than individualized issues.”).

Accordingly, the Court finds that Defendants have failed to show that either their written

discovery requests or depositions would be limited to information that is directly relevant to common

issues.

The Court further finds that Defendants have failed to carry their burden of demonstrating

that the requested discovery is unavailable from other sources, such as the representative Plaintiffs

and/or FLSA opt-ins. Defendants have failed to sufficiently explain why they could not have obtained

discovery regarding Rule 23 class claims during the eighteen-month fact discovery period in this

case. Plaintiffs’ Complaint and Amended Complaint clearly plead Rule 23 class claims and both

parties contemplated that Rule 23 class certification briefing would occur after an extended period of

fact discovery. Indeed, in its April 5, 2021 Memorandum Opinion & Order, the Court noted as

follows:

[R]esolution of Plaintiffs’ Rule 23 Motion requires a ‘rigorous analysis’ of the

evidence regarding the Rule 23(a) and (b)(3) factors. See e.g., Comcast Corp. v.

Behrend, 569 U.S. 27, 33 (2013). For this reason, the parties jointly proposed, at

various times during this litigation, that any deadline for Rule 23 briefing occur

after a nine-month period of discovery. Specifically, in their Parties’ Planning

Reports submitted on February 11, 2019 and October 1, 2019, the parties ‘proposed a

period of nine months after the [CMC] . . . for non-expert discovery on merit issues

and Rule 23 class-certification requirements.’ (Doc. No. 10 at p. 2; Doc. No. 23 at p.

2.) Indeed, Defendants themselves argued that “any motion for [Rule 23] certification

should come after the deposition of the named Plaintiff.’ (Doc. No. 54 at p. 4.).”

(Doc. No. 143 at p. 16) (emphasis added). The record reflects that Plaintiffs did, in fact, engage in

discovery regarding Rule 23 class claims during the fact discovery period. See Plaintiffs 30(b)(6)

Amended Deposition Notice (Doc. No. 176-2 at pp. 7-8) (stating that “Plaintiffs will question

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Defendant’s representatives about factual matters relating to . . . class certification undern Fed. R.

Civ. P. 23(a) and (b)(3)). Defendants offer no explanation as to why they could not have likewise

undertaken discovery regarding Rule 23 class claims during fact discovery. Thus, Defendants’

unsupported assertion that the Rule 23 class involves “new claims” that were not “subject to discovery

in the FLSA class action” (Doc. No. 174 at p. 4) is without merit and rejected.

The Court also rejects Defendants’ argument that discovery of absent class members is now

necessary because the Rule 23 class members “worked for Family Solutions on dates that are prior

to or after the range of employees subject to discovery in the FLSA opt-in class” and had “vastly

different” experiences in terms of the alleged hours worked, amounts paid to the class members,

training on time reporting, and time sheets. (Doc. No. 174 at pp. 2, 4, 7.) Defendants could have

deposed any of the FLSA opt-in plaintiffs during fact discovery. Plaintiffs assert (and Defendants do

not contest) that several of the FLSA opt-in plaintiffs worked at Family Solutions during the extended

Rule 23 class period6 and many worked at different office locations and under different supervisors.

Defendants failed to depose any of the FLSA opt-ins, other than representative Plaintiffs Stephenson

and Vilk-Baron. Moreover, Defendants do not explain why they could not have sought discovery of

6 The FLSA class conditionally certified by this Court included “all current and former employees who worked as

Qualified Mental Health Specialists for Family Solutions of Ohio during the period three years prior to the date of this

Memorandum Opinion & Order,” i.e., from September 16, 2016 through September 16, 2019. (Doc. No. 20.) The

Rule 23 class certified by this Court on April 5, 2021 consists of “[a]ll employees who worked in Ohio as QMHSs for

Defendant Family Solutions of Ohio during the period three years preceding the commencement of this action to the

present.” (Doc. No. 143 at p. 46.) As the instant action was filed on September 4, 2018, the Rule 23 class includes

QMHSs who worked at Family Solutions during the period September 4, 2015 to the present. Plaintiffs assert (and

Defendants do not contest) that at least two of the FLSA opt-in plaintiffs (Sharon Burns and Natalia Varias) worked at

Family Solutions as QMHSs beginning in 2014. Specifically, Defendants’ Roster indicates that (1) Ms. Burns worked at

Family Solutions from November 10, 2014 through March 30, 2017; and (2) Ms. Varias worked at Family Solutions from

August 26, 2014 through the filing of the Roster in July 2020. (Doc. No. 66-1 at p. 1.)

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their own current or former employees who had elected not to opt-in to the FLSA class and were

potential Rule 23 class members.

Under these circumstances, the Court finds that Defendants have failed to carry their burden

of showing that the information now sought from absent class members was unavailable from either

the FLSA opt-ins and/or through discovery of Defendants’ current or former employees. See, e.g., 3

Newberg on Class Actions § 9.14 (noting that “in demonstrating need, the defendant is required to

show that other sources—particularly the class representatives—cannot provide the information

requested of absent class members”); Redmond v. Moody’s Investor Service, 1995 WL 276150 at * 2

(S.D. N.Y. 1995) (requiring defendants to show that information requested in discovery “is not

available from the representative parties”).

The Court does, however, note the following. In their Motion, Defendants argue that

discovery of the absent class members is warranted because “it is now evident that Plaintiffs’ expert

has relied on subjective opinions of class members in providing the expert opinion.” (Doc. No. 174

at p. 5.) Defendants argue that, if they are not permitted to depose Rule 23 class members, “this Court

should order that Plaintiffs’ expert not be permitted to gather these subjective opinions from the Rule

23 class members.” (Doc. No. 177 at p. 3-4.) Plaintiffs do not respond to this argument.

The Court is inclined to agree that, if Plaintiffs have obtained “subjective information or

opinions” from Rule 23 class members (who are not also FLSA opt-ins and which have not been

previously produced), such information would arguably not be available from other sources and

Defendants may have the right to depose any such absent class members. However, it is not clear to

this Court that counsel for Plaintiffs has, in fact, sought or obtained any “subjective information or

opinions” from such absent class members. Plaintiffs are certainly aware that leave of Court is

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required to conduct discovery of absent class members and, indeed, sought and obtained leave in

April 2021 to obtain certain documentation from Defendants relating to the Rule 23 class members,

i.e., (1) employment dates and wage rates for all absent class members, and (2) timekeeping and

payroll records, audit trails, and progress notes for the twenty randomly selected absent class

members. At no time have Plaintiffs advised the Court that they need or want to obtain “subjective

information or opinions” from absent class members regarding their employment at Family Solutions,

nor have they sought leave to do so.

In light of the above, the Court assumes that Plaintiffs have not obtained any “subjective

information or opinions” from any of the absent class members (who are not also FLSA opt-ins and

which have not been previously produced). If this is not the case, counsel for Plaintiffs shall, by no

later than March 7, 2022, do the following: (1) notify the Court and Defendants that they have

undertaken such discovery; and (2) provide the name(s) of each absent class member from whom

they have sought and/or obtained “subjective information or opinions” about their employment at

Family Solutions.

If Plaintiffs wish to obtain “subjective information or opinions” from the absent class

members in the future, they must file a motion with this Court seeking leave to do so. At that time,

the Court will allow Defendants to oppose the motion and/or to file a motion seeking leave to obtain

written discovery and/or depositions of any absent class members from whom Plaintiffs are permitted

to obtain discovery regarding “subjective information” relating to their employment as QMHSs at

Family Solutions.

B. Whether the Requested Discovery is Sought with the Purpose or Effect of

Harassment or Altering Membership of the Class

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The Court next considers whether the requested discovery is sought “with the purpose or

effect of harassment or altering membership of the class.” Garden City Employees’ Ret. Sys., 2012

WL 4829802 at * 2. This necessarily includes a determination of whether the requested discovery is

unduly burdensome. See 3 Newberg on Class Actions § 9:15 (noting that “an unduly burdensome

request can be suggestive of a motive to cull class members rather than discovery necessary

information.”) As one commentator has explained:

[C]ourts ordinarily analyze burdensomeness by assessing both the type and quantity

of discovery sought. The more demanding the type of discovery—for example,

required attendance at an in-person deposition as opposed to filling out an optional

questionnaire—the more likely the court is to find the requested discovery unduly

burdensome. Similarly, the greater number of absent class members from whom

discovery is sought, the more likely the court is to find the requested discovery overly

burdensome. ***

[I]n analyzing the proportionality of the type and quantity of the discovery, courts

often attempt to answer whether the proposed discovery would be harassing to absent

class members, would create a de facto opt-in class action, or would require

consultation with a legal professional to respond adequately. The last factor—whether

professional assistance would be required to respond to the requested discovery—is

sometimes listed as a separate factor, but it is more appropriately viewed as a good

proxy for the onerousness of the discovery request.

Id. (emphasis in original) (footnotes omitted). See, e.g., Clark, 501 F.2d at 341 (demanding a showing

of greater necessity in depositions because “passive litigants are required to appear for questioning

and are subject to often stiff interrogation by opposing counsel with the concomitant need for counsel

of their own”); Groth, 2008 WL 2704709 at *1 (“Even if defendant had attempted to [seek court

permission], it is unlikely that the court would have approved the taking of depositions, as the burden

of justifying this form of discovery is quite high.”); In re Behr Dayton Therman Products, LLC, 2013

WL 12177803 at * 2 (noting that “[r]egarding written discovery, courts have permitted interrogatories

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and document requests to absentee class members when they are ‘tendered in good faith and are not

unduly burdensome’ . . . “) (quoting Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977)).

In the instant case, the parties devote little attention to this factor. Defendants argue,

summarily, that this factor weighs in favor of allowing the requested discovery because they have

agreed to (1) shorten the depositions to two hours in length for each absent class member, and (2)

conduct the depositions via Zoom. (Doc. No. 174 at pp. 2, 7.) Plaintiffs argue generally that

“[b]eleaguering unnamed class members with oral depositions would violate ‘the policy of Federal

Rule 23, i.e., to prevent absent class members from being compelled to actively participate in the

litigation.’” (Doc No. 176 at p. 3) (citing Garden City Employees’ Ret. Sys., 2012 WL 4829802 at *

2.)

For the following reasons, the Court finds that Defendants have failed to carry their burden of

showing that the requested discovery would not be unduly burdensome or otherwise have the effect

of harassing the absent class members. As noted supra, Defendants have failed to provide this Court

with their interrogatory or document requests and they have not otherwise provided any information

to this Court regarding the number or nature of the interrogatories and/or documents requested. Thus,

the Court has no idea how many interrogatories and/or document requests were propounded to each

absent class member, the topics that are covered by these requests, or how complicated or time

consuming it would be for absent class members to respond. In short, the Court has not been provided

with sufficient information to assess whether Defendants’ written discovery requests are unduly

burdensome or would have the effect of harassing the absent class members. Accordingly, the Court

finds that Defendants have failed to carry their burden with regard to this factor.

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The Court likewise finds that Defendants have failed to provide sufficient information to

assess their requests to depose the twenty absent class members. Although Defendants have agreed

to limit the length of the depositions and are willing to conduct them remotely,7 they have not

sufficiently defined, or set any parameters regarding, the nature or scope of the questions they intend

to ask. Thus, again, the Court is unable to assess whether the absent class members would find the

questioning harassing or would feel the need to obtain counsel. See, e.g., Garden City Employees’

Retirement Sys., 2012 WL 4829802 at * 3 (in denying request to depose absent class members, noting

that “although Defendants limit the number of deponents and length of depositions, Defendants do

not define nor attempt to set any limits on the scope of their discovery requests.”) Accordingly, and

given the particularly heavy burden to justify oral depositions, the Court finds that Defendants have

failed to make a strong showing that the requested depositions would not be unduly burdensome or

otherwise have the effect of harassing the absent class members.

C. Whether the Requested Discovery is Necessary at Trial of Issues Common to the

Class

Finally, under the third Garden City factor, the Court considers whether the requested

discovery “is necessary at trial of issues common to the class.” Garden City Employees’ Ret. Sys.,

2012 WL 4829802 at * 2. The Court finds that Defendants have failed to make a strong showing that

this factor is satisfied. As has been discussed at length supra, Defendants have not provided this

Court with sufficient information regarding what discovery they are seeking, with respect to either

7 The Court notes that, even with these limits, absent class members could well find it unduly burdensome to be required

to sit for depositions in this case. It is possible that some or all might need to take time off work to attend the depositions.

Additionally, some might not have the technology or ability to participate remotely and might be uncomfortable attending

in person given continuing Covid concerns. Defendants do not indicate how they would address any such issues if they

arose.

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their written discovery requests or the requested depositions. They have not provided this Court with

copies of their interrogatory or document requests nor have they otherwise provided any information

to this Court regarding the nature of the interrogatories and/or documents requested. Nor have

Defendants provided sufficient information regarding the topics that they intend to address during the

requested depositions. Thus, the Court has no way of determining whether Defendants’ written

discovery requests or the requested depositions are “necessary at trial of issues common to the class.”

Accordingly, the Court finds that Defendants have failed to carry their burden of showing that

this factor weighs in favor of allowing the requested discovery.

D. Conclusion

After carefully weighing all of the above factors, the Court finds that Defendants have failed

to make a strong showing that the information sought (1) is not sought with the purpose or effect of

harassment or altering membership of the class; (2) is directly relevant to common questions and

unavailable from the representative parties; and (3) is necessary at trial of issues common to the class.

Accordingly, the Court is not persuaded that discovery of the absent class members is warranted at

this time. Defendants’ Motion to Compel is, therefore, denied.

IV. Conclusion

Accordingly, and for all the foregoing reasons, Defendants’ Motion to Compel (Doc. No. 174)

is DENIED. However, if Plaintiffs have obtained any “subjective information or opinions” from any

of the absent class members (who are not also FLSA opt-ins and which have not been previously

produced), counsel for Plaintiffs shall, by no later than March 7, 2022, do the following: (1) notify

the Court and Defendants that they have undertaken such discovery; and (2) provide the name(s) of

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each absent class member from whom they have sought and/or obtained “subjective information or

opinions” about their employment at Family Solutions.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: February 28, 2022 U. S. DISTRICT JUDGE

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