1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ALASKA 6 7 8 EILEEN JOHNSON, ) ) 9 Plaintiff, ) 3:18-CV-00203 JWS ) 10 vs. ) ORDER AND OPINION ) 11 SOLARA, LLC d/b/a SOLARA SKIN ) [Re: Motions at docs. 21, 26] AND LASER CENTER, ) 12 ) Defendant. ) 13 ) 14 I. MOTION PRESENTED 15 At docket 21 Plaintiff Eileen Johnson ("Plaintiff") filed a motion to compel 16 discovery from Defendant Solara, LLC (“Solara”) arguing that Solara has refused to 17 cooperate with her discovery requests by making generalized objections. Solara 18 responded at docket 25. Plaintiff replied at docket 27. Oral argument was requested at 19 docket 26 but would not be of assistance to the court. 20 II. BACKGROUND 21 Plaintiff had been employed by Solara for over ten years before her termination 22 in February of 2018. During the relevant time period, Plaintiff held the position of 23 Solara’s “Practice Manager” and was paid a salary plus commission. After her 24 termination, she filed this lawsuit against Solara alleging labor law violations and age 25 discrimination. She alleges that “she was improperly classified as an exempt employee, 26 even though her primary duties were clearly not supervisory” and consequently she was 27 28 1 never paid for her overtime work in violation of the Fair Labor Standards Act1 and the 2 Alaska Wage and Hour Act.2 She also alleges that her supervisor “treated her [in] a 3 disparate manner based on her age” in violation of the Age Discrimination in 4 Employment Act.3 Specifically, she alleges that her supervisor, Joe Saunders, treated 5 new employee Trisha Torborg, who unlike Plaintiff was under 40, more favorably. 6 III. STANDARD OF REVIEW 7 Pursuant to Federal Rule of Civil Procedure 26(b)(1) “[p]arties may obtain 8 discovery regarding any nonprivileged matter that is relevant to any party’s claim or 9 defense and proportional to the needs of the case . . . .”4 Proportionality is determined 10 by "the importance of the issues at stake in the action, the amount in controversy, the 11 parties' relative access to relevant information, the parties' resources, the importance of 12 the discovery in resolving the issues, and whether the burden or expense of the 13 proposed discovery outweighs its likely benefit."5 Relevant information does not need to 14 be admissible to be discoverable.6 The court must limit the requested discovery if it is 15 shown to be “unreasonably cumulative or duplicative”; if “the party seeking discovery 16 has had ample opportunity to obtain the information”; or if needed to enforce the 17 appropriate scope of discovery.7 18 On a motion to compel, the party seeking to compel discovery has the initial 19 burden of establishing that her request satisfies the relevancy requirements of 20 21

et seq. 22 2AS 23.10.050 et seq. 23

. 24 25 4Fed. R. Civ. P. 26(b)(1). 26 5Id. 27 6Id. 28 7Fed. R. Civ. P. 26(b)(2)(C). -2- 1 Rule 26(b).8 In turn, the party opposing discovery has the burden to demonstrate that 2 discovery should not be allowed and must explain and support its objections with 3 competent evidence.9 4 IV. DISCUSSION 5 Plaintiff propounded nine interrogatories and forty-three requests for production 6 to Solara. Solara responded by objecting to most all of the requested discovery based 7 on a boilerplate assertion of irrelevance, vagueness, overbreadth, and privilege. After 8 some correspondence between the parties, they were able to narrow the dispute to 9 cover about twenty of Plaintiff’s discovery requests. The parties remain in conflict over 10 the scope of Plaintiff’s request for emails; what evidence is relevant and reasonable in 11 relation to the issue of Plaintiff’s job duties; what is discoverable with regard to other 12 employees’ time and pay; and whether financial information about Solara is relevant. 13 Emails 14 RFP No. 1. Plaintiff requests all emails sent to or from her work email address 15 from April 2015 through April 5, 2018. Solara objected to the request, arguing that it is 16 far too broad and ambiguous. While not at all ambiguous, the request is broad in its 17 scope. Not each and every email in Plaintiff’s email accounts is relevant or necessary 18 to prove the claims in this case. However, emails located in Plaintiff’s work email 19 account that relate to her performance, duties, and pay clearly are and should be 20 provided. Solara contends that it has since turned over thousands of emails, but it has 21 not provided information about what types of emails were turned over, where the emails 22 came from, and whether they include emails from Plaintiff’s work accounts. Solara is 23 directed to comply with Plaintiff’s request for relevant emails from her work account or 24 certify that it has already provided them to her. 25 26 8Fed. R. Civ. P. 26(b)(1). 27 9See Lind v. United States, No. 13-cv-032,

, at * 3 (D. Ariz. June 30, 2014); Integrated Global Concepts, Inc. v. j2 Global, Inc., No. 5:12-cv-03434,

, 28 at *1 (N.D. Cal. Jan. 21, 2014). -3- 1 RFP No. 2. Plaintiff requests all emails from April 2015 through April 5, 2018 2 sent by or to Joe Saunders that mention her name. Again, while the request is quite 3 broad in its scope, it does touch on relevant material. Any emails sent by or to Plaintiff’s 4 supervisor on his Solara email accounts relating to Plaintiff’s performance, duties, pay, 5 or age are relevant here and should be turned over. To the extent Plaintiff asks that 6 emails from her supervisor’s personal accounts be turned over, there is no basis to 7 suggest that Solara has possession or control over such emails or that her supervisor 8 conducted business through his personal email accounts. Again, Solara contends that 9 it has since turned over thousands of emails but has not provided information about 10 what types of emails were turned over, where the emails came from, and whether they 11 include emails from Joe Saunders’s work accounts. Solara is directed to comply with 12 Plaintiff’s request for relevant emails from Joe Saunders’s work email accounts or certify 13 that it has already provided them to her. 14 RFP No. 3. Plaintiff requests all emails from April 2015 through April 5, 2018 15 sent to or by Trisha Torborg through her personal email accounts and any other email 16 or messaging accounts “that Defendant has possession and/or control to access” and 17 that mention Plaintiff’s name. Emails sent to or by Trisha Torborg that are covered by 18 RFP Nos. 1 and 2 are of course discoverable. That is, relevant email exchanges 19 between Plaintiff and Trisha Torborg or Joe Saunders and Trisha Torborg found in 20 Solara email accounts are within Solara’s possession and control and are discoverable. 21 Solara has no obligation or ability to search Torborg’s personal email accounts for 22 relevant exchanges. 23 RFP No. 4. Plaintiff more specifically asks for any exchanges between Joe 24 Saunders and Trisha Torborg that mention Plaintiff’s name. Again, emails sent to or by 25 Trisha Torborg that are covered by RFP No. 2 are discoverable. That is, relevant email 26 exchanges between Joe Saunders and Trisha Torborg found on Solara email accounts 27 are within Solara’s possession and control and are discoverable. Outside of that, 28 Solara’s objection to such a request is well-founded. -4- 1 RFP Nos. 5-9. Five of Plaintiff’s requests for production address emails between 2 Joe Saunders and people alleged to be Solara co-owners. As was the case with RFP 3 No. 4, emails sent to or by the various co-owners that are covered by RFP No. 2 are 4 discoverable—relevant email exchanges between Joe Saunders and others found in 5 Solara email accounts are within Solara’s possession and control and discoverable. 6 Otherwise, Solara’s objections to these requests are well-founded. 7 Pay information 8 RFP No. 11. Plaintiff asks for all of her payroll records, including time cards and 9 detailed pay stubs, from April 2015 to April 2018. Solara provided payroll summaries 10 but not pay stubs or time cards. Plaintiff’s pay is relevant to this fair wage and age 11 discrimination action, and the court sees no reason to withhold specific items related to 12 her pay. Therefore, Solara must comply with RFP No. 11 in its entirety and provide any 13 and all pay records for Plaintiff in its possession. 14 RFP No. 10. Plaintiff asks Solara to produce all payroll records, including time 15 cards and pay stubs, for Trisha Torborg for the period of January 1, 2016 through 16 April 1, 2018. Solara objects on all available grounds: vagueness, overbreadth, burden, 17 relevancy, and privacy. The court concludes that pay information for fellow Solara 18 employee Trisha Torborg is potentially relevant to the claims here. Given the 19 allegations of favorable treatment and their similar job positions, information about 20 Trisha Torborg’s pay, time worked, bonuses, and overtime are potentially relevant to 21 both Plaintiff’s age discrimination claim and her fair wage claim. Due to the confidential 22 nature of the requested information, the Court directs the parties to confer and submit a 23 proposed protective order. 24 RFP No. 12. Plaintiff also requests all payroll records for her supervisor, Joe 25 Saunders. Unlike the request for Trisha Torborg’s pay information, the relevance of Joe 26 Saunders pay is unclear to the court. Her age discrimination claim does not allege 27 disparate treatment compared to Saunders and the two did not hold the same positions 28 -5- 1 within the company. Plaintiff has not met her burden to show why information regarding 2 Joe Saunders pay is likely to lead to relevant evidence. 3 Job duties 4 RFP No. 17. Plaintiff asks Solara for “all information [Plaintiff] stored on the 5 Solara, LLC computer and Microsoft Outlook programs, including calendars, contact, 6 schedules, tasks and employee comments and attendance records.” The court agrees 7 with Solara that such a request is far too broad and burdensome. Asking for all data she 8 ever entered on a computer is not proportional to the needs of the case. What Plaintiff 9 did on a daily basis and the extent of her supervisory duties is information within her 10 knowledge and the burden of gathering all such data outweighs any potential relevancy 11 of the information. 12 RFP No. 18. This RFP similarly seeks a broad swath of data, with Plaintiff 13 asking for three years of “point of sale (pos) logs, time sheets, cashier count sheets, 14 cashier logs, sales invoices, and daily sales records.” Details about every transaction in 15 the store and the time spent on all sales by each employee over a period of three years 16 is not proportional to the needs of the case. The relevancy of the data derived from 17 such a request is likely to be minimal and outweighed by the burden involved in 18 gathering the information. However, to the extent Solara already possesses any data or 19 reports that summarize employee sales or time spent on various tasks, such information 20 is relevant and must be produced. 21 RFP No. 22. Plaintiff requests all commission related sales reports from 22 January 1, 2015 through December 31, 2018. Plaintiff argues that such information is 23 relevant to her fair wage claim and the issue of her job classification. She asserts that 24 information about what she earned in sales commissions in relation to other employees, 25 including those she supervised, is relevant to the issue of whether she primarily 26 performed nonexempt duties. The court is persuaded that the request is reasonably 27 calculated to lead to relevant evidence. Solara has not demonstrated with any 28 particularly that the information is not available or too burdensome to generate. -6- 1 RFP No. 30. Plaintiff asks Solara to produce copies of all “standard operating 2 procedures” for the company that were in use during the relevant time period. Although 3 it is not entirely clear what specific procedures Plaintiff is requesting, employee and 4 managerial manuals, handbooks, policy statements and other similar materials would 5 be relevant to Plaintiff’s claims. To the extent such materials exist, there should be 6 minimal effort in finding and providing Plaintiff with a copy. 7 RFP No. 39. Plaintiff asks that Solara provide the “Employee Consult Reports” 8 from 2015-2018 related to a variety of brands and/or products that, presumably, Solara 9 sells to its customers. Her request is limited to the reports for her and Trisha Torborg. 10 Plaintiff’s consult reports are reasonably likely to contain information about the time 11 Plaintiff spent consulting, which is potentially relevant to her wage claim. Solara’s 12 concern about privacy of third-party information contained in such reports is valid but 13 presumably any names or personal identifiers can be redacted. As to the reports for 14 Trisha Torborg’s consult reports, while a closer call, the court concludes the request is 15 reasonably calculated to lead to relevant evidence, shedding light on how the two 16 employees spent their time and performed against one another. Solara has not 17 demonstrated with any particularly that the information is not available or too 18 burdensome to generate. A stipulated protective order will suffice to address any 19 privacy concerns. 20 RFP Nos. 16, 33, 42. Plaintiff asks for materials related to Solara’s day-to-day 21 operations. She asks Solara to provide “inventory numbers” for 2015 through 2018, all 22 “payment records and statements” made to certain vendors, and petty cash reports and 23 receipts. The court finds these requests to be outside the scope of discovery needs for 24 this case. Even if inventory numbers, petty cash amounts, and payments made to 25 various vendors could help recreate her daily schedule and tasks or demonstrate how 26 she spent her time in comparison to others, the burden and expense of gathering 27 information about every product coming into and out of the store and all bills paid and 28 money exchanged at the store far outweighs any benefit of the evidence. -7- 1 Solara’s business information 2 RFP No. 13. Plaintiff initially asked for a variety of information about Solara’s 3 business and its finances, such as identification of all ownership interests and emails 4 discussing ownership, information about the company’s valuation, information about 5 possible sale of shares, and the company’s profit and loss statements, financial records, 6 and income tax records. After receiving Solara’s responses, Plaintiff appears to have 7 dropped most of these requests except for one. She continues to ask for all records of 8 board or employee meetings from June 2015 through 2018 that deal with Solara’s 9 valuation or any sale of shares. Plaintiff has not explained how Solara’s finances are 10 relevant to Plaintiff’s fair wage and age discrimination claims, nor can the court see any 11 relevance. 12 RFP No. 29. Plaintiff also requests that Solara provide “Board of Directors 13 Meeting Packet[s] and accompanying reports” from June 2015 though 2018. This 14 request is far too broad. Any votes taken or meetings held that discuss or relate to 15 Plaintiff’s job duties, performance, age, or termination are relevant and should be turned 16 over. No other board items need to be provided. 17 V. CONCLUSION 18 Based on the foregoing, Plaintiff’s motion to compel at docket 21 is GRANTED IN 19 PART in accordance with the discussion above. The motion at docket 26 requesting 20 oral argument is DENIED. The parties shall confer and prepare a proposed protective 21 order regarding any third-party confidential information on or before November 25, 22 2019. Solara shall comply with this order by providing the requisite supplemental 23 discovery on or before November 29, 2019. 24 DATED this 11th day of November 2019. 25 /s/ JOHN W. SEDWICK 26 SENIOR JUDGE, UNITED STATES DISTRICT COURT 27 28 -8-