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Agerbrink v. Model Service LLC

United States District Court, S.D. New York

March 8, 2017

EVA AGERBRINK, individually and on behalf of all others similarly situated, Plaintiff,



         This 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.


         Eva 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, ¶¶ 360-64).

         This 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”).

         The 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).

         In the 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.


         A. Plaintiff's Motion to Compel

         Generally speaking, the plaintiff's complaints about the defendants' discovery responses fall into three broad categories: database discovery, email, and contracts. (Tr. at 2).[1] 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.

         The document demands in this category that the defendants objected to and did not agree to comply with request the following:

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.

         The 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 ...

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