United States District Court, S.D. New York
EVA AGERBRINK, individually and on behalf of all others similarly situated, Plaintiff,
MODEL SERVICE LLC d/b/a MSA MODELS, SUSAN LEVINE, and WILLIAM IVERS, Defendants.
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
case involves the alleged misclassification of the plaintiff
and other similarly situated employees as independent
contractors. Discovery has not gone smoothly, as the motions
now before the Court attest. The plaintiff has made an
omnibus motion to compel discovery responses, while the
defendants have cross-moved to compel the production of tax
returns by the plaintiff and other persons who opt-in to the
litigation. For the reasons discussed below, the
plaintiff's motion is granted in part and denied in part,
and the defendants' motion is denied.
Agerbrink, the plaintiff, is a "fit model, " that
is, she works with the apparel industry "to check the
fit, drape, and visual appearance of a design on a real human
being." (Second Amended Complaint (“SAC”),
¶ 1). From March 2013 through June 2014, she worked for
the corporate defendant, Model Service LLC, doing business as
MSA Models (“MSA”). (SAC, ¶¶ 25, 91).
While MSA classified her as an independent contractor, Ms.
Agerbrink contends that she should have been deemed an
employee and compensated accordingly. (SAC, ¶¶
25-26, 31). She has brought this action alleging violations
of the Fair Labor Standards Act (the “FLSA”), 29
U.S.C. § 201 et seq., and New York Labor Law
(“NYLL”). (SAC, ¶¶ 296-359). She also
alleges that the defendants were unjustly enriched when MSA
relied on an unenforceable liquidated damages provision in
her contract to withhold monies owed to her. (SAC,
case has been conditionally certified pursuant to 29 U.S.C.
§ 216(b) as a collective action on behalf of all fit
models who have worked for MSA at any time after September
2011, three years before the action was filed (the “Fit
Model Collective”). Agerbrink v. Model Services
LLC, No. 14 Civ. 7841, 2016 WL 406385, at *1-2, 9
(S.D.N.Y. Feb. 2, 2016). Ms. Agerbrink also intends to seek
certification under Rule 23 of the Federal Rules of Civil
Procedure of a class of all fit models who could assert NYLL
claims (the “Fit Model Class”), as well as all
models employed by MSA who were subject to withholding of
compensation under the challenged liquidated damages
provision (the “Unjust Enrichment Class”).
Honorable J. Paul Oetken, U.S.D.J., has granted partial
summary judgment in favor of the plaintiff on her unjust
enrichment claim, finding that the liquidated damages
provision in the employment contract constituted an
unenforceable penalty. Agerbrink v. Model Services
LLC, 196 F.Supp.3d 412, 416-19 (S.D.N.Y. 2016).
course of discovery, the plaintiff propounded interrogatories
and document requests, and the defendants responded. In part,
that response consisted of identifying fifteen
“exemplar” models with respect to whom the
defendants collected more detailed information. I will
discuss the specifics of the parties' discovery disputes
in connection with the analysis of their motions.
Plaintiff's Motion to Compel
speaking, the plaintiff's complaints about the
defendants' discovery responses fall into three broad
categories: database discovery, email, and contracts. (Tr. at
However, the plaintiff also seeks an order effectively
compelling the defendants to produce virtually everything
that the plaintiff has ever requested, regardless of whether
the defendants have already responded to the requests,
produced responsive documents, or asserted meritorious
objections. Ms. Agerbrink's memorandum of law
recategorizes the original requests into 38 new groupings,
but does not acknowledge the extent to which these requests
have been addressed. (Memorandum in Support of
Plaintiff's Omnibus Motion to Compel (“Pl.
Memo.”) at 4-39). Take, for example, the category that
the plaintiff characterizes as “Agreements Between
Defendants and MSA Fit Models, ” which encompasses five
different document demands. (Pl. Memo. at 19-20). This
category includes Requests Nos. 13 and 69, which sought:
all documents concerning or referring to the negotiation,
execution, agreement, rejection, or finalization of any
agreement or contract (whether oral or written, formal or
informal) between Defendants and any or all MSA Fit Model(s),
including with respect [to] all documents concerning
Defendants' decision to enter or decline to enter into
any or all agreements or contracts (whether oral or written,
formal or informal), including with respect [to] all
management agreement(s) or modeling agreements
(Plaintiff's First Request for Production of Documents
(“Pl. First Doc. Req.”), attached as Exh. C to
Declaration of Cyrus E. Dugger dated Nov. 4, 2016
(“Dugger 11/4/16 Decl.”), Request No. 13
(emphasis omitted)), and “all documents concerning or
referring to the working conditions or schedules of any or
all MSA Fit Model(s)” (Pl. First Doc. Req., Request No.
69 (emphasis omitted)). Yet, with respect to these demands,
the defendants agreed to produce responsive,
non-privileged documents (Defendants Model Service LLC d/b/a
Models and Susan Levine's Responses and Objections to
Plaintiff's First Request for Production of Documents,
attached as Exh. E to Dugger 11/4/16 Decl., Requests Nos. 13,
69), and the plaintiff has identified no specific
shortcomings in the production.
document demands in this category that the defendants
objected to and did not agree to comply with request the
all documents reflecting, containing, or constituting any
agreement or contract (whether written or oral, formal or
informal) between Defendants and any or all MSA Fit Model(s),
including any agreement concerning the provision of fit
modeling services, management, management agreement, model
management agreement, compensation, talent management
agreement, or concerning the full or partial release, waiver,
or limitation of rights or claims (including all documents
concerning any associated payment related thereto).
(Pl. First Doc. Req., Request No. 5 (emphasis omitted));
“all documents concerning or referring to the terms or
conditions of any or all MSA Fit Model(s) provision of fit
modeling services (or potential provision of fit modeling
services) to any or all apparel industry client(s)”
(Pl. First Doc. Req., Request No. 18 (emphasis omitted)); and
“all rosters, lists, or contact information (including
machine-readable electronic documents) concerning all or any
MSA Fit Model(s)” (Pl. First Doc. Req., Request No. 76
(emphasis omitted)). The defendants' objections were
well-taken. Courts have long held that requests for
“any and all” documents are generally improper.
See Gropper v. David Ellis Real Estate, L.P., No. 13
Civ. 2068, 2014 WL 518234, at *4 (S.D.N.Y. Feb. 10, 2014)
(holding request for “any and all documents”
inherently overbroad); Rice v. Reliastar Life Insurance
Co., Civ. A. No. 11-44, 2011 WL 5513181, at *2 (M.D. La.
Nov. 10, 2011) (finding that “a request for ‘any
and all documents' relating to a particular subject is
overbroad and amounts to little more than a fishing
expedition”); Badr v. Liberty Mutual Group,
Inc., No. 3:06CV1208, 2007 WL 2904210, at *3 (D. Conn.
Sept. 28, 2007) (finding request for “any and
all” documents overly broad); Pollard v. E.I.
DuPont de Nemours & Co., No. 95-3010, 2004 WL
784489, at *5 (W.D. Tenn. 2004)(holding “any and
all” request ambiguous and overbroad). It is thus
unhelpful for the plaintiff to file a blunderbuss motion to
compel that includes a substantial number of plainly
objectionable discovery demands.
defendants' approach to discovery has been equally
unhelpful. They have produced relatively complete information
with respect to Ms. Agerbrink and fifteen exemplar models,
and they have offered to produce similar information for
perhaps fifteen more models, to be chosen by the plaintiff.
(Memorandum of Law in Opposition to Plaintiff's Omnibus
Motion (“Def. Memo.”) at 5; Tr. at 32;
Declaration of Evan Spelfogel dated Dec. 7, 2016,
¶¶ 3-4). The problem is that the defendants
adamantly decline to accept any sample as representative.
(Tr. at 32-33). But the defendants cannot have it both ways:
they cannot refuse discovery that is necessary to demonstrate
prerequisites for class certification such as commonality and
typicality and at the same time argue (as they do) that the
uniqueness of each ...