The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge:
Plaintiff Gerardo Valdez Lujan ("Lujan") and several "opt-in" plaintiffs (collectively, "plaintiffs") bring this lawsuit against defendants Cabana Management, Inc. ("Cabana") and Glenn Frechter (collectively, "defendants") to recover minimum wage and overtime payments allegedly due to Lujan and other current and former employees of defendants, who operate three New York City-area restaurants.
Previously, this Court conditionally certified Lujan's Fair Labor Standards Act ("FLSA") claims as a collective action. See Memorandum and Order (Feb. 1, 2011) ("2/1/11 M&O"), Electronic Case Filing Document Entry ("DE") #55. At the conclusion of discovery, defendants filed a motion to decertify the FLSA collective action. The same day, plaintiffs moved pursuant to Rule 23 of the Federal Rules of Civil Procedure ("FRCP"), to certify as a class action their state law claims arising out of New York's Labor Law ("NYLL").
In support of and in opposition to these motions, both parties submitted copious evidence, including, inter alia, time records, deposition testimony, and numerous declarations from current and former Cabana employees and managers. Currently pending before this Court are three motions to strike various portions of this evidence. See Order (Dec. 8, 2011), DE #184; Order (May 16, 2012), DE #193.
First, defendants move to strike thirteen declarations filed by plaintiffs in support of their Rule 23 motion, on the grounds that (1) plaintiffs failed to provide the declarations prior to the close of discovery; and (2) the declarations are cookie-cutter, contain inadmissible hearsay and are not based on personal knowledge. Second, defendants seek to strike nine other declarations, submitted by plaintiffs in opposition to defendants' motion to decertify the FLSA collective action, citing numerous evidentiary deficiencies, including hearsay and lack of foundation. Finally, plaintiffs cross-move to strike certain evidence relied on by defendants in opposing plaintiffs' Rule 23 motion to certify. In particular, pursuant to Rule 37 of the FRCP, plaintiffs move to strike exhibits that rely on documents and evidence that defendants allegedly failed to disclose during discovery. In addition, plaintiffs move to preclude thirty-five declarations from individuals not previously identified under Rule 26 of the FRCP, some of whom plaintiffs allege are improperly testifying as experts.
For the reasons detailed below, the Court grants in part and denies in part defendants' two motions to strike, and grants in substantial part plaintiffs' cross-motion to strike.
Defendants own and operate three restaurants in the New York City area: Cabana "70" in Forest Hills, Queens; Cabana Midtown in midtown Manhattan; and Cabana Seaport in lower Manhattan. See Declaration of Glenn Frechter at 2, DE #147-1. From 2002 to approximately March 2009, plaintiff Lujan worked for Cabana as a busboy, runner and dishwasher at the Midtown and Queens locations. See Declaration of Gerardo Valdez Lujan ("Lujan Decl.") ¶¶ 2-3, DE #127-8.
In February 2010, Lujan commenced this action on behalf of himself and other similarly situated persons who were currently or formerly employed by Cabana in various restaurant-related capacities. See Complaint, DE #1. Four months later, Lujan filed an amended complaint, in which he alleged that defendants engaged in a policy and practice of failing to pay its employees minimum wage and overtime and improperly withheld tips in violation of the FLSA, NYLL, and the New York Codes, Rules and Regulations ("NYCRR"). See First Amended Complaint ¶¶ 2-3, DE #9.
I. Conditional Certification Under the FLSA
As discovery progressed, other plaintiffs joined the action. See, e.g., Consents to Join Collective Action (Aug. 19, 2010), DE #22. On October 8, 2010, plaintiffs sought to conditionally certify a collective action under the FLSA (the "2010 Motion to Certify") and requested permission to notify class members. See Memorandum of Law in Support of the Motion for Conditional Certification and Notice, DE #35-2. In support of their application, plaintiffs submitted declarations by Lujan and other opt-in plaintiffs. See generally Declarations, DE #35-3 at 1-38. Defendants opposed plaintiffs' motion on several grounds, citing, inter alia, the allegedly deficient nature of plaintiffs' declarations, which defendants contended were not based on personal knowledge, constituted inadmissible hearsay and were speculative. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion at 9-14, DE #41.
In a Memorandum and Order dated February 1, 2011, this Court granted plaintiffs' motion, conditionally certifying the collective action under the FLSA and authorizing plaintiffs to provide notice to the class. See 2/1/11 M&O. In doing so, the Court overruled defendants' hearsay objections, noting that courts "frequently consider hearsay in deciding whether to issue class notice," and found, in any event, that plaintiffs had provided sufficient non-hearsay evidence in support of their motion. See id. at 10 n.9 (citation omitted).
Thereafter, class notice was sent out to similarly situated "servers, hosts(esses), bartenders, bar-backs, busboys, runners, dishwashers, and [those conducting] other restaurant[-]related tasks," who worked at the three New York locations from 2007 to 2010. See generally id. at 20-21. Following the class notice, additional plaintiffs opted in, and discovery continued. On June 26, 2011, near the close of discovery, plaintiffs amended their Rule 26 disclosure (hereinafter, "6/26/11 Pl. Am. Rule 26 Disclosure"), which had originally been served on January 24, 2011. See 6/26/11 Pl. Am. Rule 26 Disclosure, DE #191-5. Two days later, plaintiffs amended their disclosures a second time. See Plaintiff's Second Amended Rule 26 Disclosures, DE #191-6. Discovery concluded on July 1, 2011. See Amended Scheduling Order (Mar. 18, 2011) ("3/18/11 Am. Sched. Order") at 1, DE #64.
II. Motions to Certify and Decertify
On July 5, 2011, plaintiffs moved to certify a Rule 23 class based on their NYLL and NYCRR claims (hereinafter, the "Rule 23 Motion to Certify"). See Memorandum of Law in Support of the Motion for Class Certification, DE #127-2. In support of the Rule 23 Motion to Certify, plaintiffs submitted, inter alia, thirteen recent declarations of current and former Cabana employees and managers (collectively, the "7/5/11 Declarations").*fn1 See Declarations, DE #127-8 through 127-20.
In opposing the Rule 23 Motion to Certify, defendants submitted multiple exhibits, including a declaration by Elisa Frechter (the "Frechter Declaration"). See Declaration of Elisa Frechter (Aug. 4, 2011), DE #146. The Frechter Declaration, in large part, purported to summarize the contents of Cabana's records, including time clock records, paystubs, guest checks, void reports and check registers relating to Lujan and the opt-in plaintiffs ("Frechter Exhibits"). See Exhibits to Frechter Declaration, DE #146-1 to #146-29. Defendants also submitted thirty-four recent declarations by former and current Cabana employees and managers (the "Cabana Declarations"). See Declaration of Douglas Weiner, Esq. In Opposition to Motion to Certify, DE #147 at 2-6 (listing declarants). In addition, defendants filed a declaration by Buzz Cmayo concerning Cabana's current timekeeping system; by Troy Gimson concerning Cabana's prior computerized timekeeping system; and by accountant Russel Mantell concerning Cabana's tax practices and an investigation by the Department of Labor ("DOL"). See generally Declaration of Buzz Cmayo, DE #147-7; Declaration of Troy Gimson, DE #147-6; Declaration of Russel Mantell, DE #147-8.
On the same day plaintiffs filed their Rule 23 Motion to Certify, defendants filed a motion to decertify the FLSA collective action (the "Motion to Decertify"). See Memorandum of Law in Support of Motion to Decertify (July 5, 2011), DE #129. In opposition to defendants' Motion to Decertify, plaintiffs submitted twenty declarations previously filed in connection with earlier motions, including nine declarations that plaintiffs had filed in support of their October 8, 2010 motion to conditionally certify the collective action (the "2010 Declarations"). See, e.g., Declaration of Edwin Quiza (dated Aug. 5, 2010) ("2010 Quiza Decl."), DE #144-11.
A. Defendants' First Motion to Strike
Following the submission of plaintiffs' Rule 23 Motion to Certify and defendants' Motion to Decertify, defendants moved to strike evidence submitted by plaintiffs in connection with those motions. First, defendants moved to strike the 7/5/11 Declarations proffered in support of plaintiffs' Rule 23 Motion to Certify. See Memorandum in Support of Motion to Strike (Aug. 5, 2011) ("8/5/11 Def. Mem."), DE #151. Defendants objected to the 7/5/11 Declarations on the ground that plaintiffs had failed to produce some of the declarations in response to defendants' document and interrogatory requests, and/or defendants' verbal requests during depositions. See id. at 3-7. Defendants further objected to the Davila Declaration due to Davila's failure to appear at her scheduled deposition. See id. at 6. In addition, defendants argued that the 7/5/11 Declarations were conclusory, cookie-cutter, contained hearsay, were not based on personal knowledge and lacked foundation. See id. at 9-17.
B. Defendants' Second Motion to Strike
In a separate motion filed several weeks later, defendants moved to strike the 2010 Declarations submitted by plaintiffs in opposition to defendants' Motion to Decertify. See Memorandum of Law in Support of Motion to Strike Declarations (Aug. 16, 2011) ("8/16/11 Def. Mem."), DE #159. Defendants similarly argued that the 2010 Declarations were inadmissible, cookie-cutter, contained hearsay, were not based on personal knowledge and lacked foundation. See id.*fn2 In further support of their second motion to strike, defendants pointed to inconsistencies between the 2010 Declarations and later deposition testimony by some of those declarants. See id. at 12-13.
C. Plaintiffs' Motion to Strike
Not to be outdone, plaintiffs moved to strike evidence proffered by
defendants in opposition to plaintiffs' Rule 23 Motion to Certify. See
Memorandum of Law in Support of Motion to Strike Certain Evidence
(Oct. 5, 2011) ("10/5/11 Pl. Mem."), DE #177. In particular,
plaintiffs argued that the Frechter Declaration and the accompanying
Frechter Exhibits were based on relevant, responsive documents that
should have been produced during discovery. See id. at 3-9. In
addition to arguing that the Frechter Declaration relied on
guest checks that had not been produced, plaintiffs complained that those
guest checks were the same ones defendants had previously argued were
irrelevant and burdensome to produce. See id. at 6-7. Plaintiffs also
sought to preclude thirty-one of the Cabana Declarations, as those
former and current Cabana employees and managers were never disclosed
under Rule 26(a) of the FRCP, thus depriving plaintiffs of the
opportunity to depose the declarants or otherwise demand discovery
concerning them. See id. at 10. Plaintiffs also opposed five of the
Cabana Declarations on the basis that the declarants were not employed
by defendants during the time encompassed by this action.*fn3
See id. at 11.
Finally, plaintiffs sought to strike the Frechter Declaration, the Gimson Declaration, the Cmayo Declaration and the Mantell Declaration. See 10/5/11 Pl. Mem. at 11-18, DE #177. Plaintiffs contended that these declarants were testifying as experts, despite the fact that defendants had never identified them as such. See id. Moreover, plaintiffs argued that defendants had not previously disclosed the identities of Gimson, Cmayo or Mantell prior to submitting their declarations, in violation of Rule 26. See id. at 11, 14.
Given that both parties sought to strike declarations for failure to properly disclose, the Court issued an order directing the parties to show cause why their failures to do so were "substantially justified or harmless." Order To Show Cause (Mar. 20, 2012) ("3/20/12 OTSC"), DE #189; see Fed. R. Civ. P. 37(c)(1). Thereafter, plaintiffs and defendants filed responses. See Plaintiffs' Memorandum of Law in Response to Order to Show Cause (Mar. 23, 2012) ("3/23/12 Pl. OTSC Resp."), DE #191; Defendants' Response to Order to Show Cause (Mar. 23, 2012) ("3/23/12 Def. OTSC Resp."), DE #190.
Because the outcome of each of these three motions to strike necessarily affects the evidence that the Court will consider in addressing plaintiffs' Rule 23 Motion to Certify and defendants' Motion to Decertify, it is appropriate for the Court to first resolve the motions to strike.*fn4
DEFENDANTS' MOTION TO STRIKE THE 7/5/11 DECLARATIONS IN SUPPORT OF PLAINTIFFS' RULE 23 MOTION TO CERTIFY
I. Plaintiffs' Failure to Disclose the 7/5/11 Declarations During Discovery
A large number of the 7/5/11 Declarations are dated, and were
presumably executed, during the last two weeks of June 2011. See
8/5/11 Def. Mem. at 5, DE #151.*fn5 Plaintiffs,
however, did not produce them prior to the fact discovery deadline of
July 1, 2011, but rather submitted them in support of their Rule 23
Motion to Certify on July 5, 2011. See id. Defendants argue that the
7/5/11 Declarations were responsive to their First Request for
Production of Documents and First Revised Set of Interrogatories, and
"impermissibly ambushed" defendants. See id. at 4-5.*fn6
In response, plaintiffs contend that the 7/5/11 Declarations
were protected as work product and that defendants failed to show
either a substantial need for the declarations or an inability to
obtain the same information through alternative means. See Plaintiffs'
Opposition to Motion to Strike Declarations (Aug. 15, 2011) ("8/15/11
Pl. Opp.") at 2-7, DE #155.
In their reply, defendants counter that the 7/5/11 Declarations do not qualify as work product and that plaintiffs' failure to provide a privilege log undercuts their assertion of the privilege. See Defendants' Reply Memorandum of Law in Further Support of Motion to Strike (Aug. 17, 2011) ("8/17/11 Def. Reply") at 1-4, DE #160. Defendants also argue, for the first time on reply, that plaintiffs failed to properly identify the 7/5/11 Declarations and former Cabana manager Ariel Penizzotto in their amended Rule 26 initial disclosures. See id. at 3-4.
The work product doctrine applies to materials that are "prepared in anticipation of litigation or for trial by or for another party or its representative." Fed. R. Civ. P. 26(b)(3)(A). Work product "provides a zone of privacy for a lawyer; the doctrine grants counsel an opportunity to think or prepare a client's case without fear of intrusion by an adversary." In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir. 1992) (citing United States v. Nobles, 422 U.S. 225, 238 (1975)).
Defendants claim that the 7/5/11 Declarations are not privileged because they merely "recite factual matters." See 8/17/11 Def. Reply at 1, DE #160. The Second Circuit has recognized two types of work product: factual work product and opinion work product. See In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007). Factual work product "may encompass factual material[,]" while opinion work product is comprised of an attorney's mental impressions, conclusions, opinions or legal theories. See id. Thus, defendants' argument is without merit.
Moreover, where an affidavit or declaration has been drafted with the assistance of counsel and executed by the affiant for possible use in conjunction with a motion, courts have held that such affidavits qualify for work product protection up until the time the affidavit or declaration is publicly filed in connection with the motion. See Inst. for the Dev. of Earth Awareness v. People for the Ethical Treatment of Animals, 272 F.R.D. 124, 125 (S.D.N.Y. 2011) (executed affidavits drafted for possible use on a summary judgment motion "remained work product until the lawyer elected to serve and file them"); Stokes v. City of New York, No. CV 2005-7(JFB)(MDG), 2006 WL 2064976, at *2 (E.D.N.Y. July 24, 2006) (nonparty affidavit is protected by work product doctrine until it is "filed in this action or otherwise publicly disclosed").
As explained in a decision from a court within this Circuit, one reason for granting work product status to an executed affidavit prior to its public filing is that the attorney who caused the preparation of the affidavit may have a strategic reason for changing course and deciding not to file the document. See Earth Awareness, 272 F.R.D. at 125 ("Until the moment of service and filing, the lawyer reserves the right to reverse course and refrain from using the affidavits."). This Court agrees that the 7/5/11 Declarations constituted work product up until the date they were filed with plaintiffs' Rule 23 Motion to Certify.
Given the timeline in this case, the Court finds little force in defendants' contention that the 7/5/11 Declarations are not entitled to work product protection because they were not included on a privilege log. See 8/17/11 Def. Reply at 2-3. The record reflects that the 7/5/11 Declarations were executed between June 17, 2011 and July 5, 2011.*fn7 In other words, they were all finalized during the few weeks prior to their public filing. Defendants do not articulate how they were prejudiced by the absence of a privilege log for the few weeks between the execution and filing of the 7/5/11 Declarations, particularly given their conceded awareness, during that period, that plaintiffs' counsel had recently begun to collect declarations from individuals. See 8/5/11 Def. Mem. at 6, DE #151.
Although the 7/5/11 Declarations constituted factual work product, the protection is not absolute. Work product may nevertheless be discoverable if the party seeking disclosure (1) shows that it has a substantial need for the materials to prepare its case and (2) cannot obtain their substantial equivalent without undue hardship. See Garnier v. Ill. Tool Works, Inc., No. 04-CV-1825 (NGG) (KAM), 2006 WL 1211201, at *2 (E.D.N.Y. May 4, 2006); Fed. R. Civ. P. 26(b)(3)(A)(ii). This "does not mean that a party seeking the document must show an absolute impossibility" in obtaining the substantial equivalent of the information, "but rather that it is significantly more difficult, time-consuming or expensive to obtain the information from another source." Garnier, 2006 WL 1211201, at *2.
Here, any work product protection was waived upon the public filing of the 7/5/11 Declarations, at which point defendants came into possession of them in their entirety and thus were made fully aware of their contents. In these circumstances, it is entirely pointless to discuss and analyze, as plaintiffs do, whether defendants have shown a substantial need for the declarations or undue hardship in obtaining equivalent information. See 8/15/11 Pl. Opp., DE #155. Rather, defendants' objection challenges plaintiffs' strategic choice to withhold the documents until their filing. See 8/5/11 Def. Mem. at 1, DE #151 (withholding of 7/5/11 Declarations constituted "ambush").*fn8 In any event, for the reasons described above, plaintiffs' failure to provide the privileged 7/5/11 Declarations in advance of their filing does not violate Rule 26. See Fed. R. Civ. P. Rule 26(b)(1) (scope of Rule 26 is limited to "any non-privileged matter") (emphasis added); see also Worsham v. Acc't Receivables Mgmt., Inc., Civil No. JKB-10-3051, 2011 WL 5873107, at *1 (D. Md. Nov. 22, 2011) (refusing to strike two affidavits that were created just prior to filing, as they were not required to be disclosed under Rule 26). In addition, under these facts, the Court concludes that plaintiffs' failure to provide a privilege log in the two weeks between the execution of the 7/5/11 Declarations and their filing did not prejudice defendants and thus was harmless error.
B. Rule 26(e) of the FRCP*fn9
For the first time in their reply submission, defendants argue that (1) the 7/5/11 Declarations (as opposed to the declarants themselves) should have been disclosed in plaintiffs' June 28, 2011 amended initial disclosures pursuant to Rule 26(e) of the FRCP; and
(2) plaintiffs' amended Rule 26 disclosures, which listed "Cabana manager Ariel" as an individual "likely to have discoverable information that the [p]laintiffs may use to support their claims," 6/26/11 Pl. Am. Rule 26 Disclosure at 3, DE #191-5, failed to properly identify former Cabana manager Ariel Penizzotto as an individual plaintiffs might rely upon to ...