United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
Tacita Fair moves to compel production of the names, dates of
service, and contact information of Technicians that
Defendants employed as independent contractors. [No. 46].
Three of four Defendants-C.U. Employment, Inc.,
Communications Unlimited Contracting Services, Inc., and
Martin Rocha- take the position that they do not employ any
independent contractors. Rather, they argue that any
independent contractors are employed by subcontractors. They
further argue that Fair's request for information on
non-party subcontractors' employees is not relevant or
proportional to the needs of her case. Defendant
Communications Unlimited Alabama (CUA) has not responded to
the motion to compel, but it has provided limited contact
information for 107 persons employed as 1099 independent
contractors. Because Fair's effort to obtain contact
information for Defendants'-and their
subcontractors'-1099 independent contractors is relevant
and proportional to the needs of her claims, I will grant her
motion to compel.
alleges that the Defendants improperly classified her, and a
purported class of other “Technicians, ” as
independent contractors. She claims that Defendants therefore
failed to pay her and the other Technicians for overtime
hours, in violation of the Fair Labor Standards ACT (FLSA),
29 U.S.C. § 201 et seq, and the Missouri
Minimum Wage Law (MMWL) § 290 RSMo. et seq.
Within days of filing her complaint, Fair moved to
conditionally certify a class of Technicians. Fair defined
“Technicians” in her complaint as cable
installers employed by Defendants “to install digital
cable, telephone, and high-speed data services . . . on
behalf of cable companies and high-speed data service
providers.” [No. 1]. I equitably tolled the claims of
these potential opt-in Technicians until such time as
Defendants provide those individuals' contact information
to Fair. [No. 43]. I also ordered Defendants to provide to
Fair the “full names, phone numbers, email addresses,
and dates of service” for their Technicians.
[Id.]. Finally, I ordered the parties to submit
supplemental briefs on the issue of class certification, once
Defendants had provided that contact information.
now argues that Defendants are withholding the same contact
information. She moves to compel production of the contact
information for any and all of the remaining Technicians
employed by Defendants. Only Defendant CUA has provided Fair
with any names or contact information. On March 8, 2018, CUA
sent a letter with a list of 107 individuals and sixteen (16)
corporations that received 1099s for work performed between
September 11, 2014 and September 11, 2017. [No. 51-2]. The
list does not include any email addresses or dates of service
for the 1099 recipients. The list provides phone numbers for
only seven (7) individuals on the list. [Id.]. Fair
argues that Defendants should have email addresses for the
other listed Technicians. In a prior case, the same
Defendants produced emails from CUA's owner to its
Technicians. See Lonnie Spells v. Communications
Unlimited, Inc., et al., No. 4:15-CV-00747-ERW; [No.
51-5]. Fair also argues that these Defendants collected the
Technicians' contact information through paperwork at the
beginning of their employment. [No. 1 at Par. 38].
Defendants except CUA respond that they employ no 1099
independent contractors and possess no information regarding
any Technicians as defined in the complaint. [No. 57 at 2].
These Defendants argue that Fair is seeking information on
persons employed by their subcontractors. Defendants object
that disclosure of such information is not “relevant to
[Fair's] claim . . . and proportional to the needs of the
case, ” as required by Federal Rule of Civil Procedure
26(b)(1). [No. 57 at 6]. According to these Defendants, Fair
did not make any claims or allegations concerning the
employees of any subcontractors. [No. 57 at 5].
to Federal Rule of Civil Procedure 26(b)(1) “[p]arties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case . . . .” When
evaluating these criteria, courts should consider such
factors as “the importance of the issues at stake in
the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Id.
As applied by federal courts, Rule 26(b) is “liberal in
scope and interpretation.” Hofer v. Mack Trucks,
Inc., 981 F.2d 377, 380 (8th Cir. 1992). The party
seeking discovery, however, must still make “[s]ome
threshold showing of relevance.” Id.
resolve this dispute, I must determine whether the names and
contact information of subcontractors' employees are
relevant and proportional to the needs of Fair's case.
Fed.R.Civ.P. 26(b)(1). With respect to relevance, Fair's
case concerns whether individuals who installed cable on
behalf of Defendants should have been classified as W-2
employees, instead of 1099 independent contractors.
“The test of employment under the FLSA is one of
economic reality.” Karlson v. Action Process Serv.
& Private Investigations, LLC, 860 F.3d 1089, 1092
(8th Cir. 2017) (quoting Tony & Susan Alamo Found. v.
Sec'y of Labor, 471 U.S. 290, 301, (1985)). In
determining economic reality, courts often consider
“degrees of control, opportunities for profit or loss,
investment in facilities, permanency of relation and skill
required in the claimed independent operation.”
alleges that Defendants employ Technicians within the meaning
of the FLSA, including by installing tracking applications on
employees' smartphones. [No. 1 at 7-11]. Fair does not
explicitly mention the word “subcontractors” in
her complaint. It is clear, however, that the complaint
purports to cover all persons that installed cable on behalf
of Defendants, regardless of their specific contractual
relationship. [Id. at 6-7]. To the extent that
Defendants use subcontractors to perform cable installation
for their clients, those subcontractors' 1099 employees
would be included in plaintiff's definition of
Technicians if their relationship to Defendants satisfies the
“economic reality” test. Fair's request is
therefore relevant to the needs of her case.
request is also proportional to the needs of her case, as
judged by the factors listed in Rule 26(b)(1). These factors
include the “importance of the issues, ”
“relative access to relevant information, ”
“the parties' resources, ” and “whether
the burden or expense of the proposed discovery outweighs its
likely benefit.” Id. With respect to the
“importance of the issues” factor, Fair's
access to the requested information is important to
parties' arguments for class certification. I ordered
Defendants to provide Technicians' contact information
for this reason, allowing the parties to submit supplemental
briefs on this issue. [No. 43]. With respect to the
“access to information” factor, Fair provides
evidence that Defendants have reasonable access to the
information of at least some of their 1099 workers.
Specifically, Fair provides emails between CUA and
Technicians produced in other FLSA suits. [No. 51-5]. Fair
also convincingly alleges that Defendants collected CUA
Technicians' email addresses when they started their
employment with CUA. [No. 1 at Par. 38]. Finally, with
respect to the “burden or expense” factor,
Defendants do not present evidence that collecting contact
information for CUA's 1099 workers or any
subcontractor's 1099 workers would be especially
burdensome or expensive. See Fed.R.Civ.P. Rule
26(b)(1). As a result, I find that Fair's request is
proportional to the needs of her case.
IT IS HEREBY ORDERED that Fair's motion
to compel, [No. 50], is GRANTED. Defendant
CUA shall provide, by June 14,
2018, the phone numbers, email addresses, and
dates of service for the Technicians identified in their
March 8, 2018 letter to Fair and any other Technicians as
defined in Fair's complaint. All Defendants shall
likewise provide, by June 14, 2018,
the names, phone numbers, email addresses, and dates of
service of 1099 independent ...