DALE EMPEY v. CALIBER HOLDINGS LLC, a foreign limited liability company, dba Caliber Collision, and CALIBER HOLDINGS OF WASHINGTON, LLC, a foreign limited liability company, dba Caliber Holdings Corporation dba Caliber Collision
CASE NO. 3:23-cv-05170-RJB
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
May 15, 2025
ROBERT J. BRYAN
This matter comes before the Court on the Plaintiff Dale Empey‘s Motion to Compel Discovery Production. Dkt. 33. The Court has considered the pleadings filed regarding the motion and the remaining file and is fully advised.
In his Amended Complaint, Mr. Empey alleges that Defendants (collectively “Caliber“) failed to compensate his work for them in accordance with Washington law. Dkt. 17. He and Caliber dispute whether he was exempt from Washington‘s minimum wage and overtime
In its Answer, Caliber denies plaintiff‘s claims with minimal explanation and alleges 12 affirmative defenses. Dkt. 30.
In the motion to compel discovery at issue here, Plaintiff states that, at trial, he intends to prove that he is not a commissioned employee, that the amounts paid to him were not to proportionate the charges to the customer or a fixed amount of Caliber‘s profits. He alleges that he was denied pay for work not directly related to a work order; that he wasn‘t paid overtime for those weeks in which he worked over 40 hours, and that his pay was unlawfully reduced for work he had already performed but Caliber didn‘t collect from the customer or the insured. Dkt 33 at 2-4.
In his discovery requests to Caliber, Plaintiff sought certain discovery including: (a) “documents showing the actual tasks performed by Plaintiff and the ‘flag hours’ Defendant(s) assigned to each task, which are primarily documented as ‘Work Orders’ . . . ;” (b) “documents showing the ‘flag hours’ and dollar amounts that Defendant(s) actually paid to Plaintiff for each such task, which are primarily documented as ‘Paysheets,‘” (c) “customer estimates and invoices, along with agreements between Defendants and customers’ insurers, showing the repair tasks charged to customers on whose vehicles Plaintiff performed work along with the amounts Defendant(s) charged the customers, or their insurers, for each such task.” Dkt. 33 at 3.
Further, Mr. Empey moves to compel documents containing communications between the parties and Caliber‘s internal communications referring to work time, payment, deductions,
In its response to the motion, Caliber reiterates its boilerplate objections to the requested discovery as overbroad, burdensome, vague, ambiguous, not calculated to lead to the discovery of admissible evidence, and impose a duty beyond that set forth in civil rules. Dkt. 36 at 1-2. Caliber contends that a sampling of wage related documents that it has already produced is sufficient for the plaintiff‘s purposes.
Caliber further argues that it estimates that the total number of relevant documents will number at least 3,000 and will take a person working full time several weeks to collect. As to certain information contained in the documents, it wants a protective order and time to produce a privilege log. Finally, Caliber told Mr. Empey in its responses to the discovery, that it will produce the requested documents by May 1, 2025. Because Caliber did not produce any documents by May 1, 2025, Mr. Empey filed a second motion to compel, making the same arguments as in the first. Dkt. 40.
DISCUSSION
Under
Washington has a “long and proud history of being a pioneer in the protection of employee rights.” Hill v. Xerox Business Services, LLC, 191 Wash.2d 751, 760, 426 P.3d 703 (2018) (internal quotations and citation omitted). In 1913, Washington was one of the first states to enact a statewide minimum wage for women and minors. Id. (citations omitted) In 1959, those minimum wage protections were expanded to include men. That expanded version became known as the Washington Minimum Wage Act. Id. (citations omitted). The Washington Supreme Court “requires.. that the WMA be liberally construed [in favor of the employee] and that its exceptions be narrowly confined.” Id. At 709 (citations omitted).
The legislature in Washington‘s MWA,
Whereas the establishment of a minimum wage for employees is a subject of vital and imminent concern to the people of this state . . . therefore the legislature declares that in its considered judgment the health, safety and the general welfare of the citizens of this state require the enactment of this measure,. . to establish a minimum wage for employees of this state to encourage employment opportunities within the state. . . [and]
. . establishing the forty-hour workweek and the right to overtime pay.
One of the primary issues in the case is the basis of Mr. Empey‘s pay calculation. Is he an hourly employee, a piece rate employee, a commissioned employee, or a hybrid of one or more of these systems? An hourly employee is entitled to his contractual hourly rate of pay, or the legal minimum wage. Hill, 191 Wash.2d at752. Workweek averaging to determine minimum wage is not allowed for hourly employees. Id. at 756. If the employee is paid on commission or piecework basis, wholly or partially, (1) The amount earned on such basis in each work-week period may be credited as a part of the total wage for that period; and (2) The total wages paid for such period shall be computed on the hours worked in that period resulting in no less than the applicable minimum wage rate.
On the matter of overtime, an hourly employee is entitled for all hours worked over 40 hours in a workweek at the rate of time and a half the regular rate of pay.
. . .reducing delaying tactics, procedural harassment and mounting legal costs.
The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. Thus, the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses. All of this results in excessively costly and time-consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake....
Fisons, 122 Wash.2d at 341, 858 P.2d at 1077 (internal quotations and citation omitted). The decision emphasized that “. . .a spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials. . .” As noted by Washington Supreme Court Justice Barbara Durham in Gammon v. Clark Equip. Co., 38 Wash.App. 274, 686 P.2d 1102 (1984), aff‘d, 104 Wash.2d 613, 707 P.2d 685 (1985), writing to explain why a new trial should have been ordered because of discovery abuse by the defendant, stated:
The Supreme Court has noted that the aim of the liberal federal discovery rules is to make a trial less a game of blindman‘s b[l]uff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. The availability of liberal discovery means that civil trials no longer need be carried on in the dark. The way is now clear ... for the parties to obtain the fullest possible knowledge of the issues and facts before trial. This system obviously cannot succeed without the full cooperation of the
parties. Accordingly, the drafters wisely included a provision authorizing the trial court to impose sanctions for unjustified or unexplained resistance to discovery.
Gammon, 38 Wash.App. at 280, 686 P.2d 1102 (Citations and internal quotations omitted.). Here, the court expects that parties perform their discovery obligations with these principles in mind.
Finally,
Based on the record, the court finds that requested discovery is relevant to his claims made in his Amended Complaint.
Taking each factor of the proportionality review in turn, the parties’ arguments, and the above stated law, the court finds as follows:
1) The Importance of the Issues at Stake in the Case.
The requested documents are key to determining which part of the MWA applies to plaintiff‘s pay, his damages and resolving other issues in the case. The plaintiff apparently has no other access to the information. As stated above, protecting employee‘s wage rights is important public policy under Washington law. Hill, 191 Wash.2d at 760. See also
Defendants’ objections that plaintiff‘s discovery requests are irrelevant, overly broad, overly burdensome, and improperly described does not comply with
2) The Amount in Controversy.
A complete set of wage related documents directly bear on proving what the appropriate pay scheme is and the amount in controversy. Neither party has stated what the amount in controversy and the court has no other information to make a determination. Further,
3) The Parties’ Relative Access to the Relevant Information
Defendants told the plaintiff that they will provide documents on or before May 1, 2025, apparently indicating that they have access to the information. They don‘t provide information about why they didn‘t meet that obligation. It doesn‘t appear that plaintiff has any independent access to requested information, or any other access to the information than from the defendants.
4) The Parties’ Resources
The defendants have not justified the alleged burden and expense of production in detail nor shown that the burden and expense outweigh the likely benefit; they haven‘t proposed an alternative. The plaintiff is a single private person. It is clear that the defendants have the information and the documents and the plaintiff has no other way to obtain it.
Further, the defendants fail to argue that the requested discovery is not proportional to the issues at stake, the amount in controversy, or the importance of discovery to resolve the issues in the case. As stated herein, this is a case that impacts an important public policy in the State of Washington. This case may a type of case described in the Advisory Committee Notes for the 2015 Amendment to
6) Whether the Burden or Expense of Discovery Outweighs its Likely Benefit
The defendants contend that it will be expensive to pick them out of the vast numbers of documents associated with other employees responsive to Mr. Empey‘s request. The defendants fail to give detailed support for its contention that it is too expensive. Mr. Empey is a single party versus the defendant being a corporate entity, presumptively with many employees. As stated in Advisory Committee‘s Note (2015), the defendants should consider opportunities for reducing burden and expense of searching for documents and information.
Based on these findings and the applicable law set forth herein, the court concludes that the plaintiff has demonstrated that the documents he seeks are relevant and proportional to the needs of the case.
It appears from the record that defense counsel used a variety of efforts to avoid full response to Plaintiff‘s discovery requests, such as offering samples, promising future response, attacking plaintiff‘s need for the discovery request, claiming over-breadth in the request, claiming burdensomeness, contending that there is no relevance and/or little value in producing the entire set, and claiming that some of the request is improper. None of those efforts bore fruit,
Therefore, it is hereby
ORDERED that Plaintiff‘s Motion to Compel Discovery is GRANTED as follows:
- Paysheets showing specific tasks for which defendant paid plaintiff and the amount of flag hours paid for each task, as sought in RFP #7, 9, 27, 45 and 46.
- Work orders showing specific tasks performed by plaintiff and the flag hours in each task, including any reductions, i.e. backflagging. RFP #7, 14, 22, 27, 44, and 45.
- Customer invoices showing the customer and other specific detail on vehicles that plaintiff worked on in RFP #15 and 43.
- Documents re agreements with insurers as to task charge amount, uncharged tasks, and reduced charges sought in RFP 16, 17, 18, 19, 20.
- Communications between parties re work time, payment, deductions, backflagging, reductions in pay, and unpaid time/tasks sought in RFP #8, 21, 22, 23, and 28.
- Internal documents between defendants’ agents/management re work time, payment, deductions, backflagging, reductions in pay, and unpaid time/tasks sought in RFP 24.
- Documents re the “representative period” for assessing commissions and plaintiff‘s alleged exemption from overtime sought in RFP #30.
- Documents relied on by defendants in assessment of pay plan sought in RFP #29.
- Documentation of other wage complaints sought in RFP #33, 34, 35, and 36.
- Witness information sought in Inter. #1, 2, and 3.
- Business banking information re wage payor, sought in RFP #40.
- Documents supporting Affirmative Defenses #8, #10, and #12 sought in RFP 29, 47, 48, and 49.
Caliber shall produce the documents and information within 30 days of the date of this order.
ORDERED that the court RESERVES ruling on issues of an award of attorneys’ fees and costs in favor of Mr. Empey for bringing this motion, as well as issues regarding the expenses of production of the discovery materials. The parties are advised to keep detailed records on such matters, as they may be addressed in further motion practice and/or in court‘s findings at conclusion of the trial.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party‘s last known address.
Dated this 15th day of May, 2025.
ROBERT J. BRYAN
United States District Judge