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Knutson v. Blue Cross and Blue Shield of Minnesota: US District Court : CIVIL PROCEDURE | DISCOVERY discovery requests not relevant to a claim, only seeking potential other plaintiffs

Brenda Knutson, on behalf of herself and
other individuals similarly situated,
Civ. No. 08-584 (RHK/JSM)
Blue Cross and Blue Shield of Minnesota,
Charles V. Firth, Clayton D. Halunen, Halunen & Associates, Minneapolis, Minnesota,
for Plaintiff.
Jeffrey A. Timmerman, Marko J. Mrkonich, Andrew J. Voss, Littler Mendelson, P.C.,
Minneapolis, Minnesota, for Defendant.
This matter is before the Court on the Objections of Defendant Blue Cross and
Blue Shield of Minnesota (Blue Cross) to Magistrate Judge Mayerons November 3,
2008 Order (Doc. No. 58). For the reasons set forth below, the Court will sustain Blue
Crosss Objections and reverse the relevant portion of the Order.
This is a Fair Labor Standards Act (FLSA) case. The named Plaintiff, Brenda
Knutson, worked for more than seven years as a Blue Cross customer-service
representative. She alleges that she and other customer-service representatives were not
1 This action initially was commenced by Knutson and one other Blue Cross customerservice
representative, but that other individual voluntarily dismissed her claims in July 2008.
2 The conditional certification mechanism used in FLSA cases is discussed in detail in
the Courts prior opinion in this case and elsewhere, see, e.g., Knutson v. Blue Cross & Blue
Shield of Minn., Civ. No. 08-584, 2008 WL 4371382, at *1-3 (D. Minn. Sept. 23, 2008) (Kyle,
J.); Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1163-64 (D. Minn. 2007) (Kyle, J.),
and for brevitys sake will not be repeated here.
3 Request No. 1 sought [c]ompilations sufficient to show the names, dates of
employment, and last known address and phone numbers, salaries, bonuses and other
compensation, of current and former [customer-service] Representatives at Defendants call
centers located in Eagan, Minnesota and Virginia, Minnesota . . . who were employed by
Defendant at any time from February 29, 2002 to the present. Blue Cross objected to the
Request on, inter alia, relevance and undue-burden grounds. (Notably, Blue Cross has
employed over 1,200 customer-service representatives at its Minnesota call centers from 2005 to
paid for work they performed prior to and after their scheduled work shifts, including
time spent booting-up and shutting-down computers, logging on and off telephone
systems, reviewing e-mails, and speaking with Blue Cross customers.1
After the parties had engaged in some discovery, Knutson moved to conditionally
certify this case as a collective action under the FLSA.2 Blue Cross responded that
conditional certification was inappropriate because Knutson had not demonstrated that
other similarly situated customer-service representatives would opt in to this litigation. In
Reply, Knutson filed an Affidavit from one Blue Cross employee expressing an interest in
joining this action. She also argued that Blue Cross had prevented her from locating other
customer-service representatives to ascertain whether they would seek to opt in. In
particular, she claimed to have served a document request on Blue Cross (Request No. 1)
seeking the names and contact information for such individuals, but that Blue Cross had
failed to respond.3 The Court accepted that allegation as true for purposes of resolving
4 The Motion to Compel also addressed several other discovery matters, none of which is
at issue here.
the certification Motion, although it is now clear that despite its objections, Blue Cross
had, in fact, provided Knutson with the requested information for 43 customer-service
representatives at the time she filed her Reply. And, there was no dispute at that time that
Knuston had contacted at least 12 of her former co-workers about joining this litigation.
By Order dated September 23, 2008 (Doc. No. 41), the Court denied without
prejudice Knutsons Motion for conditional certification, concluding that she had failed to
make a sufficient showing that others were interested in opting in to this case. The Court
was unmoved by Knutsons allegation that Blue Cross had stonewalled her discovery
efforts, noting that she had made no effort to seek judicial intervention such as filing a
motion to compel concerning Blue Crosss alleged intransigence.
Following the Courts September 23, 2008 Order, Knutson moved to compel a
complete response to Request No. 1.4 Knutsons only argument in support of her Motion
was that Blue Crosss
refusal to furnish an adequate answer or documents in response to Request No.
1 has prevented Plaintiff from identifying or contacting potential opt-in
plaintiffs, and directly led to this Courts denial, without prejudice, of
Plaintiffs Motion for Conditional Certification and Judicial Notice. Because
the Court, in its September 23, 2008 . . . Order, established a standard for
FLSA conditional certification as a collective action that requires Plaintiff in
this case to identify more than two individuals who wish to participate in this
action as an opt-in plaintiff, this Court should issue an order compelling [Blue
Cross] to directly respond to Request No. 1 to give Plaintiff the opportunity to
attempt to satisfy this Courts standard.
To deny Plaintiff access to this fundamental information would be
highly prejudicial considering Judge Kyles ruling, which impliedly mandates
that Plaintiff affirmatively contact current and/or former similarly situated
employees to determine whether they would opt in to this lawsuit. Without a
complete answer and production of documents responsive to Request No. 1,
Plaintiff will be prevented from doing so, not only by Defendant, but also by
this Court. Judge Kyle denied Plaintiffs prior motion without prejudice for
a reason. Plaintiff submits that such reason can only be that the Court would
entertain re-filing of the motion and reconsider its ruling if Plaintiff w[ere]
able to find more similarly situated individuals who desire to opt-in to this
(Pl. Mem. (Doc. No. 44) at 9-10 (emphases in original) (citation omitted); accord Reply
Mem. (Doc. No. 50) at 2 (It would be fundamentally unfair and prejudicial for this Court
on the one hand to deny Plaintiff the opportunity to discover this contact information, and
on the other hand to deny her motion for conditional certification for arguable lack of
support for the lawsuit.).)
By Order dated November 3, 2008 (Doc. No. 58) (the Order), Magistrate Judge
Mayeron granted Knutsons Motion vis-a-vis Request No. 1, concluding that the
information sought was reasonably likely to yield support for plaintiffs class allegations
with regards to her assertion that she is similarly situated to other employees of
defendant. (Id. at 6.) The Order noted that the undersigned had denied Knutsons
conditional-certification motion without prejudice, and thereby left the door open for
plaintiff to re[file] a motion for conditional class certification. (Id. at 5-6.) The Order
also noted that the undersigned had pointed out, when denying the certification Motion,
that Knutson had failed to move to compel contact information. (Id. at 5.)
Blue Cross has now objected to that portion of the Order requiring it to provide
contact information for customer-service representatives in response to Request No. 1.
Pursuant to 28 U.S.C. 636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and
Local Rule 72.2(a), the Court must set aside those portions of Judge Mayerons Order that
are clearly erroneous or contrary to law. A decision is clearly erroneous when, after
reviewing the entire record, a court is left with the definite and firm conviction that a
mistake has been committed. Thorne v. Wyeth, Civ. No. 06-3123, 2007 WL 1455989,
at *1 (D. Minn. May 15, 2007) (Magnuson, J.) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). A decision is contrary to law when it fails to
apply or misapplies relevant statutes, case law or rules of procedure. Transamerica Life
Ins. Co. v. Lincoln Natl Life Ins. Co., __ F. Supp. 2d __, 2008 WL 5265029, at *5 (N.D.
Iowa Dec. 18, 2008).
Although the Court recognizes the deference to which a Magistrate Judges
discovery order ordinarily is entitled, for several reasons the Court concludes that the
objected-to portion of the Order must be set aside here.
First, the Order determined that the information sought was relevant because it was
reasonably likely to yield support for plaintiffs class allegations with regards to her
assertion that she is similarly situated to other employees of defendant. (Order at 6.)
Yet, this is an argument that Knutson nowhere pressed in her Motion to Compel. Rather,
she asserted only that the information was necessary in order for her to locate other Blue
5 Knutson argues in response to Blue Crosss Objections that she did, in fact, assert that
the contact information is relevant for reasons other than solicitation. Yet, the argument is
nowhere to be found in Knutsons Motion papers, and appears to have arisen (in only the most
oblique fashion) in response to questioning from the Magistrate Judge at the hearing on the
Motion to Compel. The Court need not endorse Knutsons belated, half-hearted assertion that
the information is relevant for purposes other than solicitation.
Cross employees, to solicit their participation in this case.5
Moreover, this Court has previously recognized that a collective-action plaintiff is
entitled to contact information for other employees only if she can show that such
information is discoverable for some reason other than facilitating notice to potential
plaintiffs. Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991)
(Alsop, J.) (emphasis added); see also West v. Border Foods, Inc., Civ. No. 05-2525,
2006 WL 1892527, at *9 n.6 (D. Minn. July 10, 2006) (Frank, J., adopting Report &
Recommendation of Erickson, M.J.). The Magistrate Judge declined to rely on Severtson
because, in her view, that Court had already concluded that the plaintiffs claims were
inappropriate for collective action and notice, whereas here the Court left the door
open by denying Knutsons Motion without prejudice. (Order at 5.) Yet, the door was
equally open in Severtson, where the Court remanded the issue of class notification and
discovery to the Magistrate Judge for further proceedings. 137 F.R.D. at 267. In the
undersigneds view, Severtson was correctly decided, is on all-fours with this case, and
should have been followed here.
The Court also believes that the Order here ascribes too much significance to the
fact that the certification Motion was denied without prejudice. In doing so, the Court
in no way intended to suggest that Knutson was entitled to the discovery she now seeks.
Rather, at the time the Court denied the Motion, it simply could not be sure that Knutson
would be unable to make a more compelling case for conditional certification at a later
date. For example, former customer-service representatives might learn of this lawsuit
through the grapevine, either from Knutson or otherwise. If enough of them were to
express a willingness to join this case, Knutson could be entitled to conditional
certification. The Court simply was not in a position to close that door permanently
when it ruled on the certification Motion.
Nor was the Court intending to opine of the discoverability of contact information
when it noted that Knutson had failed to move to compel. The Court pointed out this
failure not to suggest that Knutson would have received the information had she asked for
it. Rather, the Court was pointing out that Knutsons complaints about Blue Crosss
deficient discovery responses rang hollow, since she had taken no steps to remedy the
matter with the Court.
Furthermore, the Court believes that the discovery Knutson seeks does not fall
within the ambit of Federal Rule of Civil Procedure 26(b)(1). That Rule authorizes
discovery only of matters that are relevant to any partys claim or defense. Discovery
sought solely for the purpose of inviting others to join this litigation would not achieve
this purpose and would not be not relevant to the particular claims and defenses currently
asserted in this case.
Such a conclusion does not run afoul of Hoffman-LaRoche Inc. v. Sperling, 493
6 For this reason, the Court finds that most of the cases relied upon by Knutson add little
to the mix, as they simply cite Sperling in requiring disclosure of contact information. See, e.g.,
Acevedo v. Ace Coffee Bar, Inc., 248 F.R.D. 550, 553 (N.D. Ill. 2008); Morden v. T-Mobile
USA, Inc., No. C05-2112, 2006 WL 1727987, at *2-3 (W.D. Wash. June 22, 2006); Bailey v.
Ameriquest Mortgage Co., Civ. No. 01-545, 2002 WL 100388, at *2 (D. Minn. Jan. 23, 2002)
(Tunheim, J.); Miklos v. Golman-Hayden Cos., No. 2:99-CV-1279, 2000 WL 1617969, at *1-2
(S.D. Ohio Oct. 24, 2000).
U.S. 165 (1989), upon which Knutson relies. It is true that Sperling affirmed an order
compelling the production of contact information to the plaintiffs in a collective action,
noting in passing that the discovery was relevant to the subject matter of the action. Id.
at 170. But Sperling was decided prior to the 2000 Amendments to the Federal Rules of
Civil Procedure, which altered the scope of discovery from matters relevant to the
subject matter involved in the pending action to matters relevant to any partys claim or
defense. While Sperling mandates the conclusion that the contact information Knutson
seeks is relevant to the subject matter of this case, in the Courts view it is not relevant to
the claims or defenses of the only parties currently before the Court, Knutson and Blue
Cross. At most, the information would be relevant to future claims that might (or might
not) be brought by other Blue Cross customer-service representatives, but no such
individuals are parties to this action at this juncture. See Fed. R. Civ. P. 26(b)(1)
(discovery must be relevant to any partys claim or defense) (emphasis added); see also
Sperling, 493 U.S. at 180 (Scalia, J., dissenting) (discovery for purpose of notifying
absent class members is simply not authorized by Rule 26).6
In any event, assuming arguendo that the information Knutson seeks is relevant
under the Federal Rules, it is not necessarily discoverable per se. E.g., Acevedo v. Ace
Coffee Bar, Inc., 248 F.R.D. 550, 553 (N.D. Ill. 2008) ([e]ven if relevant, discovery will
not be allowed in some instances). Indeed, the court has discretion to deny discovery
relating to putative class members under Federal Rule of Civil Procedure
26(b)(2)(C)(iii), depending upon the burden imposed by the discovery, its likely benefits,
the needs of the case, and other factors. E.g., Sjoblom v. Charter Commcns, LLC, No.
3:07-CV-451, 2008 WL 4276928, at *2 (W.D. Wis. Jan. 4, 2008) (collecting cases);
Anderson v. Perdue Farms, Inc., No. 1:06-CV-1000, 2007 WL 4554002, at *1 (M.D. Ala.
Dec. 20, 2007) (The Court has the discretion to deny . . . discovery prior to conditional
class certification.). The Court determines that such discretion should be exercised here.
There is no dispute that Knutson has been provided with contact information for at
least 43 of her former co-workers. Moreover, Knutson was employed by Blue Cross for
more than seven years therefore, it is likely that she already knows the identity of many
other customer-service representatives. She has reached out to at least a dozen of those
individuals, and yet she has made only the weakest of showings that this case is
appropriate for collective-action certification. Given these facts, the Court does not
believe that putting Blue Cross to the burden and expense of producing contact
information for more than 1,200 people will serve much (if any) benefit. This is not a
case, for example, where a plaintiff has been given no access to contact information by
the defendant and, because of her short tenure with her employer, she is unlikely to
possess such information. An order compelling production might be appropriate in that
situation, to give the plaintiff an opportunity to make the threshold showing that others
seek to opt in to her case. Here, however, Knutson has already had a substantial
opportunity to make that showing, and she failed.
Furthermore, Knutson will not be prejudiced by the denial of her Motion to
Compel the requested information. She has nowhere argued that denying her this
information will somehow prevent her from proving her case at trial; indeed, she argues
only that she needs the information to solicit others to participate. Moreover, her claims
will remain pending before the Court regardless of whether conditional certification is
granted. Denying her the requested information, therefore, will not impact her claims in
any way.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED as follows:
1. Defendants Objections to the Magistrate Judges Discovery Order of
November 3, 2008 (Doc. No. 59) are SUSTAINED;
2. The Order (Doc. No. 58) is REVERSED insofar as it compelled the
production by Blue Cross of contact information in response to Request No. 1; and
3. Plaintiffs Motion to Compel (Doc. No. 42) is DENIED vis-a-vis Request
No. 1.
Dated: December 29, 2008 s/Richard H. Kyle
United States District Judge


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