Abarca v. Werner Enters.

Decision Date01 August 2022
Docket Number8:14CV319,8:15CV287,8:17CV145,8:20CV227
PartiesEZEQUIEL OLIVARES ABARCA, individually and on behalf of all those similarly situated; Plaintiffs, v. WERNER ENTERPRISES, INC., et al., Defendants. WILLIAM SMITH, on behalf of himself and all others similarly situated, and on behalf of the general public, Plaintiffs, v. WERNER ENTERPRISES, INC., et al., Defendants. BRIAN VESTER and JOEL MORALES, individually and on behalf of all others similarly situated, Plaintiffs, v. WERNER ENTERPRISES, INC., et al., Defendants. DANIEL BRYANT, individually and on behalf of all others similarly situated, Plaintiffs, v. WERNER ENTERPRISES, INC., et al., Defendants.
CourtU.S. District Court — District of Nebraska


This matter is before the Court on the plaintiffs' objection Filing No. 357 in 8:14-cv-319 (“lead case”) Filing No. 262 in 8:15-cv-287, Filing No. 220 in 8:17-cv-145 and Filing No. 96 in 8:20-cv-227, to the order of the Magistrate Judge, Filing No. 352 in the 8:14-cv-319,[1] Filing No. 257 in 8:15-cv-287, Filing No 215 in 8:17-cv-145, and Filing No. 91 in 8:20-cv-227) on the plaintiffs' motions to compel production of documents Filing No. 313 and 314 in 8:14-cv-319, Filing No. 218 and 219 in 8:15-cv-287, and Filing Nos. 176 and 177 in 8:17-cv-145. This is a class action for alleged violations of various California and Nebraska wage and hour laws. This Court has jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d).


The plaintiffs moved to compel Werner to produce, in CSV format, all electronic Qualcomm/Omnitracs messages sent to and received by class members over at least a ten-year period, or, alternatively, to produce supplemental responses to certain subsets of the electronic Qualcomm/Omnitracs messages.[2] The plaintiffs later revised their request and sought an order compelling Werner to produce the five OMMS tables and one position table, which eliminated the burden associated with writing a code to filter class members' messages.

The Magistrate Judge found “the plaintiffs' motion to compel all messaging data should be denied because its relevance to the plaintiffs' class claims is not outweighed by the significant burden to Werner.” Filing No. 352 at 9. Further, he found the production of numerous subsets of Omnitracs/Qualcomm messages “would be unduly burdensome to produce and is not proportional to the needs of the case, particularly considering the plaintiffs have represented that other evidence, such as driver logs, would suffice.” Id. at 10.

The plaintiffs object to the Magistrate Judge's denial of their request for CSV extractions of Werner's native messaging data, which are saved over 6 tables in Werner's database.[3] Filing No. 357 at 2. They also object to the Magistrate Judge's denial of their motion to compel production of subsets of such data found in their Fourth Set of Requests, Requests 2-20. Id. They argue that although the Magistrate Judge correctly determined that the records requested were relevant to the litigation and provided evidence of the activities and the tasks drivers performed for Werner while they were over-the-road, the Magistrate Judge erred in finding that the burden of production was disproportionate to the probative value of the production. Id. They contend that the Magistrate Judge clearly erred in finding that the Department of Transportation (“DOT”) driver logs provided a reasonable substitute for the Qualcomm data and misapplied the law in finding that the burden of producing the discovery outweighed the plaintiffs' need for the data. The plaintiffs argue that the claims at issue are significant-the minimum wage rights of over 60,000 individuals over the course of ten years-and the information sought is relevant to the issue of whether the drivers are entitled to compensation for time the time categorized as “off duty” or “sleeper berth.” Id. at 5.


A magistrate judge's authority over nondispositive pretrial matters is governed by 28 U.S.C. § 636(b)(1)(A). Gomez v. United States, 490 U.S. 858, 873-74 (1989); see also Fed.R.Civ.P. 72(a). On review of a decision of the magistrate judge on a nondispositive matter, the district court may set aside any part of the magistrate judge's order that it finds is clearly erroneous or contrary to law. 28 U.S.C. § 636 (b)(1)(A); Fed.R.Civ.P. 72(a); seeFerguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007). (“A district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters where it has been shown that the ruling is clearly erroneous or contrary to law.”).

A decision is ‘clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Chakales v. Comm'r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996); seeFerguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007). A decision is “contrary to the law” when it “fails to apply or misapplies relevant statutes, case law or rules of procedure.” Knutson v. Blue Cross & Blue Shield ofMinn., 254 F.R.D. 553, 556 (D. Minn. 2008) (quoting Transamerica Life Ins. Co. v. v. Lincoln Nat'l Life Ins. Co., 592 F.Supp.2d 1087, 1093 (N.D. Iowa 2008)). A magistrate judge is afforded broad discretion in the resolution of nondispositive discovery disputes. Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 764 (8th Cir. 1995).

The Federal Rules of Civil Procedure provide:

Unless otherwise limited by court order, . . . [p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). Courts construe Rule 26(b)(1) broadly. SeeOppenheimerFund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). The party seeking to limit discovery must “establish grounds for not providing the discovery that are specific and factual.” Vallejo v. Amgen, Inc., 903 F.3d 733, 743 (8th Cir. 2018) (citations omitted). Once the Court finds that the information sought is relevant, the burden shifts to the resisting party to show that the burden of producing the information is disproportionate to the need for the information. In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998); see also Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 466 (N.D. Tex. 2015) ([T]he existing allocation of burdens to show undue burden or lack of proportionality have not fundamentally changed.”).

Under Federal Rule of Civil Procedure 26(b)(2)(B), [a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” The Court may, nonetheless, order discovery if the moving party makes a showing of good cause, subject to the other considerations in Rule 26(b)(2)(C) such as where the discovery sought is “unreasonably cumulative,” is available from a less burdensome source, or where “the burden and expense . . . outweighs its likely benefit.” Rule 26 requires “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973); see alsoDoe v. Nebraska, 788 F.Supp.2d 975, 981 (D. Neb. 2011) (“A party claiming requests are unduly burdensome cannot make conclusory allegations, but must provide some evidence regarding the time or expense required” (citation omitted)).


The Court has reviewed the evidence and the parties' briefing in connection with the motions to compel and finds the Magistrate Judge erred in concluding that the burden and expense of producing the Qualcomm/Omnitracs messaging data outweighs the needs of the case. The Magistrate Judge correctly determined that the information provided in the Qualcomm tables is relevant. The plaintiffs have shown that the information relates to the dispute about whether time logged as “off duty” or “sleeper berth” constitutes work. Filing No. 316-5, Ex. 1E (comparison of information In Qualcomm versus Dot logs); see also, e.g., Plaintiff's Brief at 9-10. Work under DOT regulations is not necessarily work as defined under wage and hour laws. See, e.g., Ridgway v. Wal-Mart Stores Inc., No. 3:08-CV-05221-SI, 2017 WL 1549329 (N.D. Cal. May 1, 2017), aff'd sub nom.Ridgeway v. Walmart Inc., 946 F.3d 1066 (9th Cir. 2020) (holding that under California law, DOT logs showing “off duty” did not establish that drivers were not under the control of their employer, and thus entitled to compensation under California law); Browne v. P.A.M. Transp., Inc., No. 5:16-CV-5366, 2018 WL 5118449, at *3 (W.D. Ark. Oct. 19, 2018) (stating that “[t]he DOT regulations aim to make our roads safe, while the DOL regulations aim to provide workers adequate compensation); Julian v. Swift Transp. Co. Inc., 360 F.Supp.3d 932, 943-44 (D. Ariz. 2018) (“The Browne court's conclusion that the DOT regulations provide no meaningful guidance regarding matters of compensation is correct.”); Haworth v. New Prime, Inc., 448 F.Supp.3d 1060, 1070 (W.D. Mo. 2020). The plaintiffs have also shown that the information is not available in DOT driving logs. Filing No. 316-6, Ex. 1-F, Deposition of Devin Inlow at 106-120 (testifying about examples where messages showed activities such arriving at a shipper and completing a truck swap,...

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