United States District Court, D. Minnesota
TIMOTHY C. BORUP, individually and on behalf of all others similarly situated, Plaintiff,
THE CJS SOLUTIONS GROUP, LLC, d/b/a The HCI Group, Defendant.
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Timothy C. Borup filed a “collective and class
action” lawsuit under the Fair Labor Standards Act and
Minnesota state law alleging that Defendant CJS Solutions
Group, LLC misclassified him and others as independent
contractors, resulting in loss of overtime pay. Borup now
seeks to compel discovery from CJS, arguing that many of
CJS's responses to his interrogatories and document
requests were deficient. The Court concludes that Borup is
entitled to much of the discovery he has requested.
Complaint, Borup alleges that CJS employed him and others as
consultants to assist medical facilities as they transition
to electronic recordkeeping systems. Compl. ¶ 11, Docket
No. 1. These consultants are known as “ATEs”
because they work “at the elbows” of a
facility's employees for a brief period as the facility
“goes live” with the electronic system. Decl. of
Stephen Tokarz ¶¶ 5-6, Docket No. 34-1. Borup
worked for CJS for one such “go live” project at
the Mayo Clinic in 2018. Compl. ¶ 13. He contends that,
though CJS classified him and other consultants as
independent contractors, the reality of the arrangement
properly rendered them CJS employees. Id. at
¶¶ 16-28. He also contends that he and other
consultants regularly worked 12-hour days, 7 days a week
during the Mayo Clinic and other “go live”
events. Id. at ¶ 33. But, because CJS
classified them as independent contractors, they were not
paid overtime under either the Fair Labor Standards Act or
Minnesota state law. Id. at ¶ 34. Borup seeks
to have his lawsuit certified as a collective action for the
FLSA claim and as a Rule 23 class action for the Minnesota
statutory claim. Id. at p. 17.
previously faced lawsuits alleging it failed to pay
appropriate overtime wages due to misclassifying employees as
independent contractors. It settled these lawsuits in 2018.
See Decl. of T. Joseph Snodgrass Ex. I (Pl.'s
Mem. L. in Supp. Unopposed Mot. for Final Approval of the Am.
Settlement Agreement), Docket No. 26. The settlement was
universally binding on claims under New York, North Carolina,
and Washington law. Id. at Ex. H (Notice of
Settlement). It was only binding on FLSA claims if a class
member opted-in and deposited the settlement award check.
the litigation was ongoing, CJS changed its practice and
began classifying almost all its ATE consultants as
employees. Tokarz Decl. ¶ 7. However, it continued to
classify certain ATEs who were medical doctors, medical
residents, or medical students, as independent contractors.
Id. These consultants, “ATE MDs”,
received some additional training and allegedly exercise
greater discretion over their work. Id. at
¶¶ 8-9. The Mayo Clinic event has been the only
“go live” project thus far under CJS's new
classification regime. Id. at ¶ 7.
served his first discovery requests in November of 2018.
Snodgrass Decl. Ex. A. Many of the requests, including the
single interrogatory, are aimed at identifying and
classifying individuals whom Borup contends are similarly
situated to him, but who have not released their claims
against CJS. Id. This includes individuals who
worked on go live events at issue in the prior lawsuits, but
who did not receive a part of the settlement award.
Id. For these individuals, Borup seeks documents
that may show they worked more than 40 hours a week without
overtime pay, such as records of the number of hours they
worked per week, their pay rates, and any time they may have
spent on travel or uncompensated breaks. Id. He also
seeks documents that would tend to demonstrate that such
individuals should have properly been classified as
employees, including records outlining the scope of their job
duties, the training and instruction they received, and any
oversight that CJS exercised. Id.
category of document requests relates to the prior litigation
and settlement. Some requests seek documents indicating which
individuals waived their FLSA claims by opting into the
settlement and cashing a settlement check. Id.
Others seek the discovery and disclosures CJS made during the
prior litigation, as well as communications between counsel
in the prior litigation. Id. The remaining requests
concern CJS's potential liability and defenses, including
the basis for any affirmative or good faith defense it might
objected to the interrogatory and nearly every request for
production. Id. at Exs. E, F. Some responses
directed Borup to documents previously produced as part of
CJS's initial Rule 26 disclosures. Id. at Ex. F.
CJS's central objections are that the discovery requests
are irrelevant, overly broad, or inappropriately attempt to
relitigate the prior lawsuits that led to settlement.
Id.; Decl. of Claire B. Deason ¶ 5, Docket No.
34. Beyond these objections, CJS's objections are mere
primarily questions the relevance of the information Borup
seeks, including those requests relating to the scope and
certifiability of the FLSA and Rule 23 classes, as well as
matters of privilege and breadth. Because much of the
information sought is at least relevant to the certifiability
of the collective action under the FLSA, as well as the
merits of the FLSA claim, Borup is entitled to much-though
not all-of what he seeks.