United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S AND
DEFENDANTS' MOTIONS TO COMPEL DISCOVERY (DKT. NOS. 63,
KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE.
Leonard Viscito (“Plaintiff”) brings claims
against the defendants, National Planning Corporation
(“NPC”), John Johnson, Maura Collins and an
unspecified number of John or Jane Does (collectively,
“Defendants”) under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (Count I)
(“FLSA”); the Massachusetts Independent
Contractor Law, Mass. Gen. Laws ch. 149, § 148B (Count
II); the Massachusetts Wage Act, Mass. Gen. Laws ch. 149,
§ 148 (Count III) (“MWA”); and, against NPC
only, for Unjust Enrichment (Count IV); Breach of the Implied
Covenant of Good Faith and Fair Dealing (Count V); and
Quantum Meruit (Count VI) (Dkt. No. 54, Second Am. Compl.,
¶¶ 29, 33, 37, 42, 47, 50). Before the court are
Plaintiff Leonard Viscito's Motion to Compel Discovery
and for Sanctions and Request for Expedited Ruling (Dkt. No.
63) (“Plaintiff's Motion”) and
Defendants' Motion to Compel Discovery (Dkt. No. 65)
(“Defendants' Motion”). The court heard
argument from the parties on September 4, 2019 and took the
motions under advisement (Dkt. No. 82). For the reasons set
forth below, Plaintiff's Motion is granted in part and
denied in part and Defendants' Motion is granted in part
and denied in part.
Factual Allegations in Second Amended Complaint
Plaintiff's Second Amended Complaint, he alleges that he
is a resident of Florida who worked for NPC, a national
financial services corporation, as a registered
representative, insurance agent, and investment advisor from
approximately November 14, 2013 through November 29, 2017 out
of an office located in Springfield, Massachusetts (Second
Am. Compl. ¶¶ 2, 16-17). Plaintiff alleges that
under the Independent Contractor Agreement he executed, NPC
“exercised a substantial degree of control over”
how Plaintiff conducted his business (Second Am. Compl.
¶ 18), and that he was misclassified as an independent
contractor (Second Am. Compl. ¶ 24). He alleges that he
was “therefore forced to incur substantial costs, fees
and deductions (including, among other things, for rent,
utilities, supplies, payroll/commission expenses,
professional fees, advertising, travel expenses,
entertainment, recruiting, insurance, charges, payroll taxes
and interest) that he would not have incurred had he been
properly classified as an employee” and that he was
deprived of benefits, including retirement benefits, vacation
time, and reimbursement of business expenses (Second Am.
Compl. ¶ 24).
The Parties' Discovery Motions
General Legal Principles
26(b)(1) of the Federal Rules of Civil Procedure provides
that, “[u]nless otherwise limited by court order, the
scope of discovery is as follows: Parties 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 … . Information within this scope of
discovery need not be admissible in evidence to be
discoverable.” The proportionality provision was added
to Fed.R.Civ.P. 26 (b)(1) in December 2015 to emphasize that
there are intended to be limits on the breadth of discovery
to which a party is entitled. See, e.g., Fed. Energy
Regulatory Comm'n v. Silkman, No. 1:16-cv-00205-JAW,
2017 WL 6597510, at *6-7 (D. Me. Dec. 26, 2017). Nonetheless,
“[a]s a general matter, relevancy must be broadly
construed at the discovery stage such that information is
discoverable if there is any possibility it might be relevant
to the subject matter of the action.” Cherkaoui v.
City of Quincy, Civil Action No. 14-cv-10571-LTS, 2015
WL 4504937, at *1 (D. Mass. July 23, 2015) (quoting
E.E.O.C. v. Electro-Term, Inc., 167 F.R.D. 344, 346
(D. Mass. 1996)). “[B]ecause discovery itself is
designed to help define and clarify the issues, the limits
set forth in Rule 26 must be construed broadly to encompass
any matter that bears on, or that reasonably could lead to
other matters that could bear on, any issue that is or may be
in the case.” Green v. Cosby, 152 F.Supp.3d
31, 34 (D. Mass. 2015) (quoting In re New England
Compounding Pharmacy, Inc. Prods. Liab. Litig., MDL No.
13-2419-FDS, 2013 WL 6058483, at *4 (D. Mass. Nov. 13,
2013)). The party seeking information in discovery has the
burden of showing its relevance. See, e.g., Cont'l W.
Ins. Co. v. Opechee Constr. Corp., Civil No.
15-cv-006-JD, 2016 WL 1642626, at *1 (D.N.H. Apr. 25, 2016)
(citing Caouette v. OfficeMax, Inc., 352 F.Supp.2d
134, 136 (D.N.H. 2005)); see also Whittingham v. Amherst
Coll., 164 F.R.D. 124, 127 (D. Mass. 1995); Gagne v.
Reddy, 104 F.R.D. 454, 456 (D. Mass. 1984). Conversely,
“[w]hen a party resists the production of evidence, it
‘bears the burden of establishing lack of relevancy or
undue burden.'” Autoridad de Carreteras y
Transportacion v. Transcore Atl., Inc., 319 F.R.D. 422,
427 (D.P.R. 2016) (quoting Sánchez-Medina v.
UNICCO Serv. Co., 265 F.R.D. 24, 27 (D.P.R. 2009));
see also Cont'l W. Ins. Co., 2016 WL 1642626, at
*1. Generally, a court will not “compel [production] of
what does not exist.” Harris v. Koenig, 271
F.R.D. 356, 370 (D.D.C. 2010).
Plaintiff's document request 9, he asked NPC to produce:
Any and all documents concerning the benefits made available
by NPC to individuals classified by NPC as employees,
including but not limited to sick leave, vacation, paid time
off, health, life, dental and disability insurance,
retirement benefits, health savings accounts, and performance
(Dkt. No. 63 at 2). He contends, and Defendants do not
dispute, that documents responsive to this request are
generally relevant for discovery purposes because they bear
on Plaintiff's calculation of his alleged damages. By the
date of the hearing on the parties' discovery motions,
NPC had produced copies of all of its benefit plans,
including so-called “top hat plans” applicable
exclusively to top management, and was close to completing
its assembly of employee manuals that were in effect while
Plaintiff was affiliated with NPC. At the hearing, Plaintiff
could not identify any other document or category of
documents that would be responsive to his document request 9.
He contended that he was nonetheless entitled to a court
order requiring production because Defendants had not
abandoned a lack of relevance objection asserted to preserve
their legal position that Plaintiff was properly classified
as an independent contractor who was not entitled to
benefits. Plaintiff's speculative assertion that there
might be additional documents that he could not identify and
whose relevance he could not articulate is not a basis for a
court to enter a discovery order, and the court declines to
do so. See P.R. Med. Emergency Grp., Inc. v. Iglesia
Episcopal Puertorriqueña, Inc., 318 F.R.D. 224,
229 (D.P.R. 2016) (declining to find that the documents
produced failed to satisfy the moving party's requests
where the court “ha[d] no facts at its disposal”
to conclude that the production was deficient in content).
Plaintiff's Motion is denied except to the limited extent
that Defendants must ensure that their response to
Plaintiff's ninth document production request complies
with Fed.R.Civ.P. 34(b)(C), which requires the responding
party to state whether it has withheld documents from
production on the basis of its objection to the request.
Documents Related to Plaintiff's Taxes, Income, and
Defendants' document requests 7, 8, 9, 29, and 30, they
asked for (in summary): (a) Plaintiff's complete federal,
state, and local income tax returns, including all supporting
schedules and attachments for the years 2012 to the present;
(b) documents showing all sources of revenue generated by
Plaintiff individually or through his businesses from January
2013 to November 2017; (c) any documents not otherwise
identified that show Plaintiff's income, benefits, or
expenses for any tax year in which Plaintiff was affiliated
with NPC; and (d) all documents that show Plaintiff's
work-related income, expenses, and benefits from January 2013
through November 2017 (Dkt. No. 66-1 at 2-3). Defendants
agreed that any information related to Plaintiff's
wife's income could be redacted from tax returns and
related documents and that documents responsive to these
requests would be subject to the discovery confidentiality
order docketed in the instant case on April 23, 2019 (Dkt.
No. 42). Plaintiff objected to producing his tax returns and
any other financial information except for documents showing
the terms of his affiliations with NPC or with any other
insurance or financial services agency, brokerage,
broker-dealer, or company from 2013 through 2017 (Dkt. No.
66-2 at 5-7, 8-10, 19-20).
well-settled in the First Circuit that “income tax
returns are discoverable where the returns are relevant to
the claims of the parties and the information is not readily
available in another form.” Bourne v. Arruda,
Civil No. 10-cv-393-LM, 2012 WL 1107694, at *3 (D.N.H. Apr.
2, 2012) (ordering production of income tax returns where the
plaintiff's damages claim included a claim for lost
income) (citing Buntzman v. Springfield Redev.
Auth., 146 F.R.D. 30, 32 (D. Mass. 1993); Enterasys
Networks, Inc. v. DNPB, LLC, Civil No. 04-CV-209-PB,
2006 WL 1644598, at *1 (D.N.H. June 12, 2006)).
have more than demonstrated the relevance of Plaintiff's
tax returns and supporting documentation for the years
2012-2018. Plaintiff's damages claim as stated in his
initial disclosures is for lost compensation in the form of
taxes he paid from January 8, 2015 to January 8, 2018
(calculated as a loss of $413, 197), lost benefits
(calculated as a loss of $280, 241), business expenses he
claims he paid from January 8, 2015 to January 8, 2018 ($59,
182), and a lost opportunity to contribute to a company 401K
and other deferred compensation plans resulting in an alleged
loss of an unknown amount (Dkt. No. 78-1 at 6). Plaintiff
leaves unexplained how the figures he provided were
calculated or could be challenged or verified without access
to his tax returns, all attached schedules, and supporting
documents. He has pointed to no “reasonable
substitute” for ...