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Viscito v. National Planning Corp.

United States District Court, D. Massachusetts

October 21, 2019

LEONARD VISCITO, Plaintiff
v.
NATIONAL PLANNING CORPORATION, JOHN JOHNSON, MAURA COLLINS AND JOHN AND/OR JANE DOES, Defendants.

          MEMORANDUM AND ORDER REGARDING PLAINTIFF'S AND DEFENDANTS' MOTIONS TO COMPEL DISCOVERY (DKT. NOS. 63, 65)

          KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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.

         II. Factual Allegations in Second Amended Complaint

         In 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).

         III. The Parties' Discovery Motions

         A. General Legal Principles

         Rule 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).

         B. Plaintiff's Motion

         In 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 bonuses.

(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.

         C. Defendants' Motion

         1. Documents Related to Plaintiff's Taxes, Income, and Deductions

         In 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).

         It is 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)).

         Defendants 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 ...


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