Johnson v. Solara, LLC

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
EILEEN JOHNSON, )
)
Plaintiff, ) 3:18-CV-00203 JWS
)
vs. ) ORDER AND OPINION
)
SOLARA, LLC d/b/a SOLARA SKIN ) [Re: Motions at docs. 21, 26]
AND LASER CENTER, )
)
Defendant. )
)
I. MOTION PRESENTED
At docket 21 Plaintiff Eileen Johnson ("Plaintiff") filed a motion to compel
discovery from Defendant Solara, LLC (“Solara”) arguing that Solara has refused to
cooperate with her discovery requests by making generalized objections. Solara
responded at docket 25. Plaintiff replied at docket 27. Oral argument was requested at
docket 26 but would not be of assistance to the court.
II. BACKGROUND
Plaintiff had been employed by Solara for over ten years before her termination
in February of 2018. During the relevant time period, Plaintiff held the position of
Solara’s “Practice Manager” and was paid a salary plus commission. After her
termination, she filed this lawsuit against Solara alleging labor law violations and age
discrimination. She alleges that “she was improperly classified as an exempt employee,
even though her primary duties were clearly not supervisory” and consequently she was
Case 3:18-cv-00203-JWS Document 29 Filed 11/11/19 Page 1 of 8

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never paid for her overtime work in violation of the Fair Labor Standards Act1 and the
Alaska Wage and Hour Act.2 She also alleges that her supervisor “treated her [in] a
disparate manner based on her age” in violation of the Age Discrimination in
Employment Act.3 Specifically, she alleges that her supervisor, Joe Saunders, treated
new employee Trisha Torborg, who unlike Plaintiff was under 40, more favorably.
III. STANDARD OF REVIEW
Pursuant 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 . . . .”4 Proportionality is determined
by "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."5 Relevant information does not need to
be admissible to be discoverable.6 The court must limit the requested discovery if it is
shown to be “unreasonably cumulative or duplicative”; if “the party seeking discovery
has had ample opportunity to obtain the information”; or if needed to enforce the
appropriate scope of discovery.7
On a motion to compel, the party seeking to compel discovery has the initial
burden of establishing that her request satisfies the relevancy requirements of
129 U.S.C. § 201 et seq.
2AS 23.10.050 et seq.
329 U.S.C. § 623.
4Fed. R. Civ. P. 26(b)(1).
5Id.
6Id.
7Fed. R. Civ. P. 26(b)(2)(C).
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Rule 26(b).8 In turn, the party opposing discovery has the burden to demonstrate that
discovery should not be allowed and must explain and support its objections with
competent evidence.9
IV. DISCUSSION
Plaintiff propounded nine interrogatories and forty-three requests for production
to Solara. Solara responded by objecting to most all of the requested discovery based
on a boilerplate assertion of irrelevance, vagueness, overbreadth, and privilege. After
some correspondence between the parties, they were able to narrow the dispute to
cover about twenty of Plaintiff’s discovery requests. The parties remain in conflict over
the scope of Plaintiff’s request for emails; what evidence is relevant and reasonable in
relation to the issue of Plaintiff’s job duties; what is discoverable with regard to other
employees’ time and pay; and whether financial information about Solara is relevant.
Emails
RFP No. 1. Plaintiff requests all emails sent to or from her work email address
from April 2015 through April 5, 2018. Solara objected to the request, arguing that it is
far too broad and ambiguous. While not at all ambiguous, the request is broad in its
scope. Not each and every email in Plaintiff’s email accounts is relevant or necessary
to prove the claims in this case. However, emails located in Plaintiff’s work email
account that relate to her performance, duties, and pay clearly are and should be
provided. Solara contends that it has since turned over thousands of emails, but it has
not provided information about what types of emails were turned over, where the emails
came from, and whether they include emails from Plaintiff’s work accounts. Solara is
directed to comply with Plaintiff’s request for relevant emails from her work account or
certify that it has already provided them to her.
8Fed. R. Civ. P. 26(b)(1).
9See Lind v. United States, No. 13-cv-032, 2014 WL 2930486, at * 3 (D. Ariz. June 30,
2014); Integrated Global Concepts, Inc. v. j2 Global, Inc., No. 5:12-cv-03434, 2014 WL 232211,
at *1 (N.D. Cal. Jan. 21, 2014).
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RFP No. 2. Plaintiff requests all emails from April 2015 through April 5, 2018
sent by or to Joe Saunders that mention her name. Again, while the request is quite
broad in its scope, it does touch on relevant material. Any emails sent by or to Plaintiff’s
supervisor on his Solara email accounts relating to Plaintiff’s performance, duties, pay,
or age are relevant here and should be turned over. To the extent Plaintiff asks that
emails from her supervisor’s personal accounts be turned over, there is no basis to
suggest that Solara has possession or control over such emails or that her supervisor
conducted business through his personal email accounts. Again, Solara contends that
it has since turned over thousands of emails but has not provided information about
what types of emails were turned over, where the emails came from, and whether they
include emails from Joe Saunders’s work accounts. Solara is directed to comply with
Plaintiff’s request for relevant emails from Joe Saunders’s work email accounts or certify
that it has already provided them to her.
RFP No. 3. Plaintiff requests all emails from April 2015 through April 5, 2018
sent to or by Trisha Torborg through her personal email accounts and any other email
or messaging accounts “that Defendant has possession and/or control to access” and
that mention Plaintiff’s name. Emails sent to or by Trisha Torborg that are covered by
RFP Nos. 1 and 2 are of course discoverable. That is, relevant email exchanges
between Plaintiff and Trisha Torborg or Joe Saunders and Trisha Torborg found in
Solara email accounts are within Solara’s possession and control and are discoverable.
Solara has no obligation or ability to search Torborg’s personal email accounts for
relevant exchanges.
RFP No. 4. Plaintiff more specifically asks for any exchanges between Joe
Saunders and Trisha Torborg that mention Plaintiff’s name. Again, emails sent to or by
Trisha Torborg that are covered by RFP No. 2 are discoverable. That is, relevant email
exchanges between Joe Saunders and Trisha Torborg found on Solara email accounts
are within Solara’s possession and control and are discoverable. Outside of that,
Solara’s objection to such a request is well-founded.
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RFP Nos. 5-9. Five of Plaintiff’s requests for production address emails between
Joe Saunders and people alleged to be Solara co-owners. As was the case with RFP
No. 4, emails sent to or by the various co-owners that are covered by RFP No. 2 are
discoverable—relevant email exchanges between Joe Saunders and others found in
Solara email accounts are within Solara’s possession and control and discoverable.
Otherwise, Solara’s objections to these requests are well-founded.
Pay information
RFP No. 11. Plaintiff asks for all of her payroll records, including time cards and
detailed pay stubs, from April 2015 to April 2018. Solara provided payroll summaries
but not pay stubs or time cards. Plaintiff’s pay is relevant to this fair wage and age
discrimination action, and the court sees no reason to withhold specific items related to
her pay. Therefore, Solara must comply with RFP No. 11 in its entirety and provide any
and all pay records for Plaintiff in its possession.
RFP No. 10. Plaintiff asks Solara to produce all payroll records, including time
cards and pay stubs, for Trisha Torborg for the period of January 1, 2016 through
April 1, 2018. Solara objects on all available grounds: vagueness, overbreadth, burden,
relevancy, and privacy. The court concludes that pay information for fellow Solara
employee Trisha Torborg is potentially relevant to the claims here. Given the
allegations of favorable treatment and their similar job positions, information about
Trisha Torborg’s pay, time worked, bonuses, and overtime are potentially relevant to
both Plaintiff’s age discrimination claim and her fair wage claim. Due to the confidential
nature of the requested information, the Court directs the parties to confer and submit a
proposed protective order.
RFP No. 12. Plaintiff also requests all payroll records for her supervisor, Joe
Saunders. Unlike the request for Trisha Torborg’s pay information, the relevance of Joe
Saunders pay is unclear to the court. Her age discrimination claim does not allege
disparate treatment compared to Saunders and the two did not hold the same positions
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within the company. Plaintiff has not met her burden to show why information regarding
Joe Saunders pay is likely to lead to relevant evidence.
Job duties
RFP No. 17. Plaintiff asks Solara for “all information [Plaintiff] stored on the
Solara, LLC computer and Microsoft Outlook programs, including calendars, contact,
schedules, tasks and employee comments and attendance records.” The court agrees
with Solara that such a request is far too broad and burdensome. Asking for all data she
ever entered on a computer is not proportional to the needs of the case. What Plaintiff
did on a daily basis and the extent of her supervisory duties is information within her
knowledge and the burden of gathering all such data outweighs any potential relevancy
of the information.
RFP No. 18. This RFP similarly seeks a broad swath of data, with Plaintiff
asking for three years of “point of sale (pos) logs, time sheets, cashier count sheets,
cashier logs, sales invoices, and daily sales records.” Details about every transaction in
the store and the time spent on all sales by each employee over a period of three years
is not proportional to the needs of the case. The relevancy of the data derived from
such a request is likely to be minimal and outweighed by the burden involved in
gathering the information. However, to the extent Solara already possesses any data or
reports that summarize employee sales or time spent on various tasks, such information
is relevant and must be produced.
RFP No. 22. Plaintiff requests all commission related sales reports from
January 1, 2015 through December 31, 2018. Plaintiff argues that such information is
relevant to her fair wage claim and the issue of her job classification. She asserts that
information about what she earned in sales commissions in relation to other employees,
including those she supervised, is relevant to the issue of whether she primarily
performed nonexempt duties. The court is persuaded that the request is reasonably
calculated to lead to relevant evidence. Solara has not demonstrated with any
particularly that the information is not available or too burdensome to generate.
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RFP No. 30. Plaintiff asks Solara to produce copies of all “standard operating
procedures” for the company that were in use during the relevant time period. Although
it is not entirely clear what specific procedures Plaintiff is requesting, employee and
managerial manuals, handbooks, policy statements and other similar materials would
be relevant to Plaintiff’s claims. To the extent such materials exist, there should be
minimal effort in finding and providing Plaintiff with a copy.
RFP No. 39. Plaintiff asks that Solara provide the “Employee Consult Reports”
from 2015-2018 related to a variety of brands and/or products that, presumably, Solara
sells to its customers. Her request is limited to the reports for her and Trisha Torborg.
Plaintiff’s consult reports are reasonably likely to contain information about the time
Plaintiff spent consulting, which is potentially relevant to her wage claim. Solara’s
concern about privacy of third-party information contained in such reports is valid but
presumably any names or personal identifiers can be redacted. As to the reports for
Trisha Torborg’s consult reports, while a closer call, the court concludes the request is
reasonably calculated to lead to relevant evidence, shedding light on how the two
employees spent their time and performed against one another. Solara has not
demonstrated with any particularly that the information is not available or too
burdensome to generate. A stipulated protective order will suffice to address any
privacy concerns.
RFP Nos. 16, 33, 42. Plaintiff asks for materials related to Solara’s day-to-day
operations. She asks Solara to provide “inventory numbers” for 2015 through 2018, all
“payment records and statements” made to certain vendors, and petty cash reports and
receipts. The court finds these requests to be outside the scope of discovery needs for
this case. Even if inventory numbers, petty cash amounts, and payments made to
various vendors could help recreate her daily schedule and tasks or demonstrate how
she spent her time in comparison to others, the burden and expense of gathering
information about every product coming into and out of the store and all bills paid and
money exchanged at the store far outweighs any benefit of the evidence.
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Solara’s business information
RFP No. 13. Plaintiff initially asked for a variety of information about Solara’s
business and its finances, such as identification of all ownership interests and emails
discussing ownership, information about the company’s valuation, information about
possible sale of shares, and the company’s profit and loss statements, financial records,
and income tax records. After receiving Solara’s responses, Plaintiff appears to have
dropped most of these requests except for one. She continues to ask for all records of
board or employee meetings from June 2015 through 2018 that deal with Solara’s
valuation or any sale of shares. Plaintiff has not explained how Solara’s finances are
relevant to Plaintiff’s fair wage and age discrimination claims, nor can the court see any
relevance.
RFP No. 29. Plaintiff also requests that Solara provide “Board of Directors
Meeting Packet[s] and accompanying reports” from June 2015 though 2018. This
request is far too broad. Any votes taken or meetings held that discuss or relate to
Plaintiff’s job duties, performance, age, or termination are relevant and should be turned
over. No other board items need to be provided.
V. CONCLUSION
Based on the foregoing, Plaintiff’s motion to compel at docket 21 is GRANTED IN
PART in accordance with the discussion above. The motion at docket 26 requesting
oral argument is DENIED. The parties shall confer and prepare a proposed protective
order regarding any third-party confidential information on or before November 25,
2019. Solara shall comply with this order by providing the requisite supplemental
discovery on or before November 29, 2019.
DATED this 11th day of November 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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