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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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BRIAN LUCAS, et al.,

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Plaintiffs,)
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vs.
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GOLD STANDARD BAKING, INC.,)
et al.,
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Defendants.)

No. 13 C 1524

Chicago, Illinois

April 16, 2014
1:00 p.m.

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE YOUNG B. KIM, MAGISTRATE JUDGE

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APPEARANCES:

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For the Plaintiffs:

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MS. SHAYLYN C. COCHRAN
(Cohen, Milstein, Sellers & Toll,
1100 New York Avenue, N.W.
West Tower, Suite 500,
Washington, D.C. 20005)

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MR. CHRISTOPHER J. WILLIAMS
MS. JENEE GASKIN
(Workers' Law Office, P.C.,
401 South LaSalle Street, Suite 1400,
Chicago, Illinois 60605)

For Defendant Gold
Standard Baking:

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MR. BLAKE T. HANNAFAN
MS. STACEY B. VUCKO
(Hannafan & Hannafan, Ltd.,
One East Wacker Drive, Suite 2800,
Chicago, Illinois 60601)

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For Defendant
Personnel Staffing
Group d/b/a MVP:

MS. BRITNEY ZILZ
(Korey, Cotter, Heather & Richardson LLC,
20 South Clark Street, Suite 500,
Chicago, Illinois 60603)

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PATRICK J. MULLEN, Official Court Reporter
219 South Dearborn Street, Room 1714,
Chicago, Illinois 60604

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THE CLERK:

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Standard Baking, Inc., et al.

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THE COURT:

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MS. ZILZ:

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13 CV 1524, Lucas, et al., versus Gold

Please state your names.
Britney Zilz, Your Honor, on behalf of

defendant Personnel Staffing Group.
MS. VUCKO:

Good afternoon, Your Honor.

Stacey Vucko

on behalf of defendant Gold Standard Baking.
MR. HANNAFAN:

Blake Hannafan, Your Honor, also on

behalf of Gold Standard Baking.
MR. WILLIAMS:

Chris Williams on behalf of

plaintiffs.

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MS. GASKIN:

Jenee Gaskin on behalf of plaintiffs.

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THE COURT:

And we have one more person on the line.

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MS. COCHRAN:

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behalf of plaintiffs, Your Honor.

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THE COURT:

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MS. COCHRAN:

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THE COURT:

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Okay.

(Via telephone) Shaylyn Cochran on

That's S-h-a-y-l-y-n?
That's correct.

That's the first name.

All right.

I'm going to go ahead and first deal with

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defendants' joint motion to compel.

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Let me ask Ms. Vucko and Mr. Hannafan if anything happened

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since the filing of the motion that might moot some of the

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issues raised in the motion.

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MS. VUCKO:

That's motion number 132.

Your Honor, on the day that we were

pursuant to the order to file the motion to compel,

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Mr. Williams had served amended responses to the Rule 45

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requests.

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several issues.

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this point.

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However, they're still deficient, so we still have
I can't say that any of the issues are moot at

THE COURT:

Okay.

So with respect to one of the

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issues, one of the issues raised in the motion to compel is

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that Mr. Brian Lucas did not respond to the document requests.

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MS. VUCKO:
correct.

I'm sorry, Your Honor.

Mr. Lucas did respond.

Yes, that is

So we have responses.

They

just are not -- they're inadequate.
THE COURT:

And the inadequacy is similar to the

inaccuracies of Mr. Davis' and Mr. Vaughans' response.

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MS. VUCKO:

Yes, Your Honor.

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THE COURT:

All right.

So then we go on.

According

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to the motion, GSB is moving to compel supplemental responses

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to requests to produce 1 and 2, and these deal with documents

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related to plaintiffs' efforts to gain employment with GSB.

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MS. VUCKO:

That's correct.

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THE COURT:

Now I am going to assume, unless you tell

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me otherwise, Ms. Vucko, that Mr. Lucas' response is similar to

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Mr. Davis' and Mr. Vaughans' response.

Okay?

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MS. VUCKO:

As I recall, they're identical.

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THE COURT:

All right.

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MS. VUCKO:

For the most part, yes.

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THE COURT:

With respect to requests to produce

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number 1 and 2, the motion is denied.

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that they don't have responsive documents, and I'm not going to

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force the plaintiffs to produce documents they don't have.

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However, plaintiffs have to understand that if they don't

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supplement, they will be barred from bringing any documents as

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evidence in this case.

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at the moment, plaintiffs have to be mindful of the obligation

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to supplement.

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MR. WILLIAMS:

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THE COURT:

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MR. WILLIAMS:

Plaintiffs responded

So while, you know, you don't have any

Judge, if I may?

Yes.
On that point, we also included a

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privilege log in which we identified notes, and I wanted to

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give you a little background because I think this is relevant

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to this, to this issue.

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took with my clients.

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The notes in question are notes that I

I first met with them in, I believe, September of

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2011, in the early fall of 2011.

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had general allegations of discrimination.

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met with them on a repeated basis and conducted my

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investigation.

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notes of those efforts.

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I made those notes.

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Following that -- and they
Following that, I

They relayed to me their efforts, and I made
They asked me to make those notes, and

We have identified those notes on a privilege log as

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attorney-client privilege.

However, we are willing to -- you

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know, those notes, those notes contain the factual allegations

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or factual information about plaintiffs' efforts to seek work

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as I recorded them.

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impressions or strategies and so forth.

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willing to waive the privilege as to the factual statements,

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and we're willing to produce those documents subject to

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redaction of the work product, impressions, and so forth.

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THE COURT:

They also contain in some instances my

That's up to you.

But our clients are

As far as I can tell

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from the motion, the defendants are not pushing to get those

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notes.

We're talking about documents that pertain to their

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actual efforts, their actual efforts to obtain employment at

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GSB or through MVP.

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That's the way I interpret 1 and 2.

MR. WILLIAMS:

Well, when they filed their

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supplemental filing, they pointed to a YouTube video in which

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one of the plaintiffs, Mr. Lucas, said:

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kept track.

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We kept notes.

We

I wrote down notes -- something like that.

The notes that he was referring to, he was holding
those.

The notes he was referring to are those notes.
THE COURT:

We're getting ahead of ourselves here.

We'll get to that later.

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MR. WILLIAMS:

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THE COURT:

Okay?
Okay.

With respect to requests to produce 5 and

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6 -- now I'm still on GSB's document requests -- GSB seeks

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complaints plaintiffs filed with the EEOC and also with the

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Illinois Department of Human Rights.

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identified that they did file charges with EEOC or IDHR or, I

Plaintiffs have

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should say, cross-filed with respect to two matters that then

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led to two federal actions.

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What's important here is that GSB is interested in

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looking at the documents, if plaintiffs have any, with respect

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to these two charges filed with the EEOC.

You know, your

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response says that they will be produced.

If you have them,

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you need to turn them over.

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should say that so that GSB can subpoena EEOC for those

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records.

Which is it?

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MR. WILLIAMS:

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THE COURT:

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MR. WILLIAMS:

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THE COURT:

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If you don't have any, then you

The complaints themselves?

Well, the charges.
The charges?

We're not talking about the federal case.

We're talking about charges with the EEOC.

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MR. WILLIAMS:

I will turn over the charges I've got.

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THE COURT:

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MR. WILLIAMS:

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THE COURT:

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MR. WILLIAMS:

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THE COURT:

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to requests to produce 5 and 6.

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produce 8, 10, 11, and 12.

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allegations in the third amended complaint, their damages,

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their employment history, tax returns, and any mediation

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efforts.

You have those.
Yes.

Okay.
I have copies, actually, yes.

All right.

Then the motion is granted as
Next we have requests to

These are documents supporting the

Plaintiffs responded that they did, in fact, provide

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what they have and they also turned over tax returns.

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Ms. Vucko?

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MS. VUCKO:

One plaintiff turned over tax returns.

I

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believe it was Mr. Vaughans, Your Honor, and those are

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incomplete.

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return.

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packet of information, not just select pages that counsel pulls

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from their tax returns.

There's maybe two to three pages of each tax

From my experience in filing taxes, they're normally a

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THE COURT:

But you have the Form 1040?

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MS. VUCKO:

I will have to look through it.

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just a two-page document, but let me see here.

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Honor.

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It was

Yes, Your

THE COURT:

So you have it.

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MS. VUCKO:

Right.

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THE COURT:

I mean, that's the complete 1040.

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MS. VUCKO:

This is for one plaintiff, though, Your

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THE COURT:

Correct.

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MS. VUCKO:

What we're looking at, as you correctly

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It's a two-page form,

right?

Honor.

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stated, is mitigation of damages.

So for the other plaintiffs,

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they claim they did not file tax returns, and the only

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information we have about what they have been doing in the past

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several years in terms of trying to mitigate their damages is

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what Mr. Williams responded to MVP's interrogatory.

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There's no way for us to calculate how much they

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earned, because you would say, for example, during this year

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they worked at such-and-such and earned minimum wage.

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how many hours did they work?

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What is the total that they earned?

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have such little information on their damages, we can't tell

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whether they've been mitigating or how much.

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Your Honor.

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THE COURT:

How long did they work there?
Are there pay stubs?

We

That's the issue,

I only know the Bates stamp numbers.

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don't know exactly what was, in fact, turned over.

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been turned over?

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Well,

MR. WILLIAMS:

What has

Well, Judge, all of the tax returns.

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We decided to go ahead and turn over all of the tax returns

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that were filed.

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THE COURT:

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MR. WILLIAMS:

I

But Ms. Vucko says that she only has one.
I don't think that's accurate.

I

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think there's another plaintiff who turned over one for one of

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the years.

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who do not owe taxes.

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entitled to a tax return.

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not under an obligation to file taxes.

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-- and I forget if it's four or five years -- lose their right

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to a refund, but they're not obligated to file taxes.

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What they don't say is we turned over W-2s.

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addition to the description of the jobs, the hourly rates, and

The fact is, Judge, these are low-income workers
They, in fact, would probably be
They have not filed taxes.

They're

They will at some point

In

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the questions that were asked in the interrogatories, we turned

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over the W-2 forms that the plaintiffs had in their possession

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and control.

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there's not an absence of information here.

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We turned over all of them for everybody.

THE COURT:

So

And are we going back to November of

2011?

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MR. WILLIAMS:

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THE COURT:

What time frame are we working with?

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MS. ZILZ:

January 1st, 2011, to the present, Your

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Yes.

Honor, primarily.

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MR. WILLIAMS:

Judge, in preparation for today, the

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last time I met with my clients I had them execute a request

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for a tax transcript.

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know, you can request from the IRS a copy of each year you file

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taxes and so forth.

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over to defendant for that information.

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We are willing to submit that.

You

We're willing to submit that and turn it

So whatever information was filed, if not a part of

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what the plaintiffs have found in their possession and control

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and turned over to me, we will give to them.

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very clear that at least for some of these years they didn't

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file tax returns.

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THE COURT:

But they were

Well, I'm trying to clarify then.

Do

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they still have documents that they have not turned over to

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you?

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MR. WILLIAMS:

No.

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THE COURT:

So your response is that you have turned

over all documents in their possession.

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MR. WILLIAMS:

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THE COURT:

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MR. WILLIAMS:

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THE COURT:

That's correct.

Including tax returns.
That's correct.

And you're also willing to go ahead and

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provide an authorization for those missing years or for the

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defendants to verify that there aren't any returns.

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MR. WILLIAMS:

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MS. VUCKO:

That's correct.

Your Honor, I just want to correct

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myself.

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2010 tax return here.

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for pay stubs, job applications, things like resumes to show

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their employment history, what they've been doing.

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Mr. Williams is right.

For Mr. Davis, there is one

But aside from that, the request asks

The reason this issue comes up is because elsewhere

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in the discovery they admit they have a resume.

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say they gave a copy of it.

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gave a copy of the resume to somebody sitting at the front desk

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at MVP.

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The plaintiffs

One of the plaintiffs says:

We

We filled out applications.
We haven't received any of that.

That's why, despite

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the fact that they say they have no additional records, if

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they're saying one thing over here and then in the

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interrogatories saying another thing, that they did have a

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resume, we're entitled to see that, Your Honor.

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THE COURT:

Or you have cross-examination material,

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either or, I suppose.

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MS. VUCKO:

Okay.

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THE COURT:

What's happening?

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MR. WILLIAMS:

What's going on?

Well, I know that in the EEOC file

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there was a copy of a resume for Brian Lucas, so we'll turn

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that over.

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we're happy to turn it over.

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I got it from the file from the EEOC, and we'll turn it over,

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and if there's anything else that matches that description, a

But, you know, I also know that they have that.

I didn't get it from Brian Lucas.

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job application or anything.

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they're in control of and in possession of.

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THE COURT:

So

But these are documents that

Well, let's not use that objection.

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What's important is what plaintiffs' response is.

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defendants have all of the documents, they're interested in

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knowing what you believe to be responsive to these particular

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categories, so that defendants know what plaintiffs' position

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is.

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MR. WILLIAMS:

Judge, I agree with that.

Even if the

I don't

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mean to imply that.

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them.

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home and he's keeping documents from them.

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document to the defendants, and we got it back from them.

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we'll give it to them again.

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What I'm saying is, though, we got it from

So it's not as if he's got it, that he's got a file at

THE COURT:

He turned in a
But

With respect to 8, 10, 11, and 12, the

only thing I'm going to require plaintiffs to provide is the

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authorization.

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Mr. Williams' representation that the defendants have -- sorry

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-- that plaintiffs have provided all of the responsive

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documents that they have in their possession.

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I'm going to deny the motion and accept

If there's anything in the EEOC file that's

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responsive to 8, 10, 11, or 12, well, you know, so be it.

I'm

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not going to -- in other words, I don't want to give a ruling

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that's going to be sort of vague and uncertain.

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is the way to go.

I think this

We have the representation from the

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plaintiffs.

They said they have provided everything

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responsive.

We'll leave it there.

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that they need to supplement, then they'll have to supplement.

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Okay.

If something else comes up

Now we move to MVP's motion.

The first item

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is interrogatory 3.

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the position that plaintiffs should already have this

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information.

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certain degree, they need to have some information from MVP and

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GSB as to what hours we're talking about.

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MVP seeks damages information and takes

I agree with the plaintiffs' response.

To a

In other words, plaintiffs are not certain.

At least

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according to the submissions, they're not certain as to what

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they could have worked, how many hours they could have worked

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at GSB if they were, in fact, employed by MVP.

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extent, there is that hole.

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plaintiffs will learn that, and maybe they'll have their

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calculation at that point.

So to that

I guess through discovery

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But again, you know, plaintiffs have the obligation

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to supplement, when necessary.

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So interrogatory number 3, the motion is denied.

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So plaintiffs have that burden.

Interrogatories 16 and 17, MVP seeks the particulars

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about how plaintiffs learned of the positions at MVP and -- I

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should say slash GSB, and when they sought employment.

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least according to interrogatory answers, what plaintiffs have

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said is that they learned about GSB through word of mouth.

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They did not identify anyone, that's true, but they did go to

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GSB and talk to someone whose name is unknown, and the person,

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an unidentified individual at GSB, told them:

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through MVP in order to work at GSB.

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At

You need to go

So with respect to 17, the answer is November 2011.

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With respect to 16, I do think that plaintiffs can provide more

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details if they are available.

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interrogatory 16 more carefully and answer the questions.

If

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they don't know, then they need to state they don't know.

So

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the motion is granted as to 16 and denied as to 17.

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So they need to look at

We'll move to request to produce 5.

MVP seeks those

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claims plaintiffs filed with the EEOC and IDHR since January of

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2008.

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with two other employers, and Mr. Williams is going to be

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responding or turning over those documents.

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granted as to request to produce 5.

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We know that plaintiffs have filed charges in connection

So the motion is

Requests to produce 9 and 10, MVP seeks any and all

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documents about communications between plaintiffs and CASTE,

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C-A-S-T-E, and SACCC, S-A-C-C-C.

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that they don't have any responsive documents.

Plaintiffs have responded

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Mr. Williams, is that the answer?

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MR. WILLIAMS:

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THE COURT:

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MS. ZILZ:

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THE COURT:

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MS. ZILZ:

That's accurate, yes.

All right.
Your Honor, if I may?
Yes.
It's not stated within the answer to the

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request for production.

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response to our motion to compel.

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THE COURT:

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MS. ZILZ:

Mr. Williams simply states it in his
If he could just --

Say that one more time.
Mr. Williams did not indicate that there

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are no responsive documents within the response to the request

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for production.

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motion to compel.

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anything from the privilege log.

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Mr. Williams amend it to reflect that there are no such

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documents.

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He simply states it in the response to the
It doesn't state that he's not withholding

THE COURT:

I would just request that

Well, we could just have Mr. Williams

state that on the record.
MR. WILLIAMS:

Yeah, this goes to the privilege log.

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I was going to -- you know, they're correct.

It didn't state

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what I thought it stated.

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one, but instead that's what I was discussing.

I was going to give them an amended
The privilege

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log contains a reference to the notes, and our clients will

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waive the attorney-client privilege as to factual statements in

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my notes and will turn them over.

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As to any documents withheld on the basis of

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associational privilege, which is the thing that I was supposed

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to have included in the privilege log, there are no responsive

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documents withheld on that basis.

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THE COURT:

So you're willing to turn over your notes

redacted.

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MR. WILLIAMS:

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THE COURT:

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Redacted.

According to the privilege log, you have

about 22 pages?

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MR. WILLIAMS:

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THE COURT:

That's correct.

Okay.

So that's P-50 to P-72.

Okay?

So

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with respect to requests to produce 9 and 10, I guess the

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motion is granted to the extent that plaintiffs have agreed to

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produce redacted pages P-50 through P-72, correct?

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MR. WILLIAMS:

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THE COURT:

Correct.

All right.

Thank you.

We also have an

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issue about requests to produce and interrogatories to

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Mr. Vaughans.

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MS. ZILZ:

Your Honor, I believe Mr. Vaughans did

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produce amended responses that were deficient the same way as

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Brian Lucas's after we filed the motion to compel, on that same

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date.

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THE COURT:

Okay.

So my ruling can also cover

Mr. Vaughans' responses.

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MS. ZILZ:

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THE COURT:

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MR. WILLIAMS:

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we agreed for Lucas.

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THE COURT:

Yes, sir.
Okay.
And we're in agreement to everything

So the final item is that MVP is seeking

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the notes Mr. Lucas referenced during a press conference about

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Johnson & Johnson and Vee Pak.

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video.

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investigation of GSP or MVP.

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MS. ZILZ:

I listened to the YouTube

There was no mention of any notes being taken of any
Did I miss something?

Your Honor, MVP was named in the Vee Pak

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lawsuit.

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assignments for GSB at MVP, they were also seeking assignments

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at Vee Pak.

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regard to the investigations.

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THE COURT:

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MR. WILLIAMS:

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So when plaintiffs went in and were seeking job

So we believe there would be some overlap with

Mr. Williams?
Judge, that's accurate.

That's P-50

to P-72.
THE COURT:

Okay.

All right.

I'll leave it at that.

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When you say the notes of Mr. Lucas, it's not really tied to

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any requests to produce or interrogatories.

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of out there, but I'm sure it fits within one of the requests

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to produce.

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MS. ZILZ:

Yes, Your Honor.

It was just sort

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THE COURT:

Okay.

So to the extent that requests to

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produce 9 and 10 will cover what Mr. Williams is willing to

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turn over, I think we're done with that.

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MS. ZILZ:

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THE COURT:

All right.

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MS. VUCKO:

All right.

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THE COURT:

Yes, Ms. Vucko, go ahead.

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MS. VUCKO:

I'm sorry.

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Thank you, Your Honor.

Your Honor, before we --

Before we move on to the

plaintiffs' motion to compel, I had one other issue.

We had

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requested a revised privilege log, and I just want to make sure

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that I understand what Mr. Williams represented.

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with regard to the two specific interrogatories and requests

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regarding CASTE and SACCC that there are no associational

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privilege documents being withheld --

Was it only

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THE COURT:

Correct.

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MS. VUCKO:

-- or is it with regard to all of the

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requests?

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knowledge of the allegations in the complaint or persons with

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whom the plaintiffs had communications regarding the

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investigation or the communications in the complaint, and we've

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gotten no response aside from associational privilege and then

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four individuals.

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There are basic requests, for example, persons with

So if there are people out there that we are entitled

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to depose to get more information, I want to know, you know,

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whether those documents or those names are being withheld on

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the basis of associational privilege.

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argue that that does not apply in this situation, or we can set

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a briefing schedule on that, if necessary, as Your Honor would

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like to do.

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THE COURT:

Okay.

If so, I'm prepared to

Mr. Williams, if you can repeat it

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on the record, my understanding is that you are not withholding

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any documents on the basis of the associational privilege.

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MR. WILLIAMS:

That's correct.

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MS. VUCKO:

Thank you, Your Honor.

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THE COURT:

Okay.

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MS. VUCKO:

I'm sorry.

Are there persons, other

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witnesses we should know about that are in response to MVP's

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interrogatories who they have not disclosed or who Mr. Williams

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has not disclosed on the basis of that privilege?

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THE COURT:

Okay.

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certain interrogatory.

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interrogatory?

You need to tie that back to a

What are you talking about?

Which

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MS. VUCKO:

Interrogatory number 2:

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"Name, address, and telephone number of every person

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known to you or your attorneys who has any personal knowledge

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of any facts underlying any allegations or relief sought in the

22

complaint and the subject matter."

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The third line, they object to --

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THE COURT:

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Okay.

Let me stop you.

motion to compel, interrogatory 2?

Is that in the

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MS. VUCKO:

We generally ask for a revised privilege

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log regarding all of the responses in defendants' discovery

3

requests, Your Honor.

4

MR. WILLIAMS:

Judge, they asked for an amended

5

privilege log stating that no documents were withheld based on

6

the associational privilege, which is what I've stated on the

7

record a couple of times.

8
9

THE COURT:

Okay.

I'm going to deal with what's in

front of me, and I don't see that as part of the issue,

10

interrogatory 2.

By the way, I think the parties did exchange

11

26(a)(1) disclosures, correct?

12

MS. VUCKO:

13

MR. HANNAFAN:

14

THE COURT:

That was never ordered?

15

MS. VUCKO:

No, Your, Honor.

16

MR. HANNAFAN:

No, Your Honor.
No.

No, Your Honor.

It was something I

17

had planned to bring up after we were done today, because it

18

dawned on me that that had not been done.

19

obviously, with discovery going forward, you know, all the

20

parties have an obligation to do that.

21

THE COURT:

22

MR. HANNAFAN:

23

Certainly,

All right.
But no one has done it yet, Your

Honor.

24

THE COURT:

Okay.

25

MR. WILLIAMS:

This case has had a little bit of a

 20

1

strange history with the transfer.

2

THE COURT:

That's fine.

All right.

I'll take it

3

under advisement.

4

denied in part, and my order will have the details of that

5

ruling.

6

Okay.

So motion number 132 is granted in part and

We're going to move on.

First of all, with

7

respect to motion number 149, which is for leave to file a

8

reply brief, that motion is granted.

9
10

MR. WILLIAMS:
THE COURT:

I did review the reply.

Thank you, Judge.

Okay.

We're moving forward with motion

11

number 134, which is plaintiffs' motion to compel defendant MVP

12

to provide supplements.

13

are seeking articles of incorporation and bylaws, and I gather

14

from the motion itself that the purpose of this particular

15

request is to identify individuals who may be responsible for a

16

1981 violation.

17

Request to produce 1, here plaintiffs

MVP has said, you know:

I don't know that we need to

18

go into the articles of incorporation and bylaws and all the

19

amendments.

20

officers for the time period, but we're only going back to --

21

well, I forget.

22

Here are the individuals who are the corporate

Hold on a second.

I mean, I got the sense that the time period was a

23

little too short.

24

only went back to 2011.

25

Did we go all the way back to 2009?

MS. ZILZ:

You

Your Honor, I believe the people are the

 21

1

same regardless of going back that far.

2

back to 2009; however, I don't think my response will really

3

change.

4

THE COURT:

Okay.

I can amend it going

So let's do that.

I'm going to

5

deny the motion to compel request to produce 1, but I am going

6

to order defendant MVP to amend its answer to interrogatory 1

7

to cover the time period of November 2009 to the present.

8

That's the statute of limitations we're dealing with, correct?

9

MS. ZILZ:

Yes, Your Honor.

10

THE COURT:

Mr. Williams?

11

MR. WILLIAMS:

12

THE COURT:

Yes, correct.

Request to produce 3 and interrogatory 4

13

deal with the same subject matter.

14

manuals and documentation related to software that MVP uses to

15

maintain certain types of information.

16

talking about the information maintained by MVP, but the

17

software that MVP uses to maintain the information.

18

MS. ZILZ:

Plaintiffs are seeking

Okay?

So we're not

Your Honor, I provided that response to

19

Mr. Williams.

20

amended answer to interrogatory number 4, I believe.

21

provided our policy, which is what I believe interrogatory

22

number 3 is, on how we create, maintain, and store any such

23

documents requested.

24

THE COURT:

25

We use the TempsPlus software.

in place, right?

It's within our
I also

That responds to the system that you have

 22

1

MS. ZILZ:

Yes, Your Honor.

2

THE COURT:

Mr. Williams?

3

MR. WILLIAMS:

Judge, in the amended response, they

4

finally identified the system that they use, but they didn't

5

provide any of the documentation on the capacity and capability

6

of the system to run reports or what information is stored in

7

that system.

8

THE COURT:

9

MR. WILLIAMS:

10

Okay.

THE COURT:

12

MR. WILLIAMS:

13

THE COURT:

15

A software called TempsPlus.

It's

identified.

11

14

What systems are we talking about?

Temps, T-e-m-p-s, Plus?
Correct.

Does MVP use any other software or

system?
MS. ZILZ:

Not that I'm aware of, Your Honor.

MVP

16

uses all its electronic database in that system.

17

keeps hard copies in an off-site facility, which I've answered

18

within the amended answer to the interrogatory.

19
20
21

THE COURT:

Okay.

Otherwise, it

Do you have manuals or something

on how to use TempsPlus?
MS. ZILZ:

Your Honor, I could look.

I believe that

22

would be publicly available, however.

Additionally, I fail to

23

see the relevance of such information with regard to

24

Mr. Williams' request.

25

discrimination, not how we maintain documents.

This is obviously a claim of
I'm willing to

 23

1

answer that.

2

THE COURT:

3

MS. ZILZ:

4

Okay.
However, I just fail to see the relevance

of it.

5

THE COURT:

Mr. Williams?

6

MR. WILLIAMS:

Well, it goes to a couple of things.

7

One is the information that is stored and how it is stored

8

would relate to whether or not they ran background checks on

9

individuals, employment verification, when assignments were

10
11

available, how assignments were available.
It also goes to the issue of how they produced

12

records to us.

What they did is they stored records

13

electronically in this TempsPlus system.

14

and then they scanned it in and produced it in a PDF file

15

that's not searchable.

16

later as to the deficiencies in what they produced, the manner

17

in which they produced it, it should be produced in its native

18

form, which is electronically.

19

THE COURT:

They ran a report,

But aside from the issues we'll get to

You know, I've had issues before where

20

litigants asked for electronically stored information in its

21

native format, but once they get it they can't open it because

22

they don't have the proprietary software to open it and

23

actually review it.

24
25

Do you have TempsPlus?

MR. WILLIAMS:

Judge, I've had other cases with

temporary staffing agencies that have used TempsPlus, and part

 24

1

of the -- again, it depends on the version they're using, and

2

that's why the manuals are important.

3

some kind of export to a text-delimited format or to an Excel

4

spread sheet.

5

in an Excel spread sheet or something that could be imported

6

into an Excel spread sheet.

7
8

Each of them allow for

We've gotten them over and over and over again

THE COURT:

So the manual will tell you whether

that's even possible.

9

MR. WILLIAMS:

That's correct.

When they say it's

10

not possible, the manual will allow us to point to the page in

11

the manual that says it is possible.

12

THE COURT:

Okay.

So let's do that.

The first step

13

is to go ahead and turn over the manual or manuals, however

14

many you have.

15

motion is granted.

16

not sure that we need to answer interrogatory 4.

17

repeat, correct?

18

So with respect to request to produce 3, the
Given that we are providing the manual, I'm

MS. ZILZ:

That's just a

Your Honor, as I've stated, I did answer

19

in an amended answer to interrogatory number 4, stating that we

20

do use the TempsPlus software, the particular version, what it

21

reports.

22

THE COURT:

23

MS. ZILZ:

So on -I do not believe Mr. Williams actually

24

raised interrogatory number 4 within -- oh, wait.

25

did.

Again, I think I have answered that.

I believe he

 25

1

THE COURT:

I know that MVP raises the issue about an

2

insufficient meet-and-confer regarding some of the response.

3

think it's easier for me just to deal with these things today

4

and get them out of the way.

5

MS. ZILZ:

Yes, Your Honor.

6

THE COURT:

You're right.

I

Interrogatory 4 was not

7

identified in the March 19th letter, which I consider to be the

8

final letter basically saying:

9

the disputes.

10

But again, with respect to request to produce 3, it's

11

granted.

12

and I see that it's adequate.

13

Hey, this is where we are with

Interrogatory 4 is denied.

I see it was answered,

Just to be clear, Ms. Zilz, you think you have one

14

manual or multiple manuals, or you don't know?

15

know, you don't know.

If you don't

16

MS. ZILZ:

17

THE COURT:

18

We now go to request to produce 4, interrogatory 5,

19

agreements and communications about the provision of laborers

20

and any qualifications and prerequisites to be assigned to GSB.

21

It appears that MVP has provided the only agreement that exists

22

between GSB and MVP, and that's Bates stamp numbers 1764

23

through 1768.

24
25

I'm not positive.
All right.

MR. WILLIAMS:
between them.

Thanks.

Judge, that's the only formal contract

 26

1

THE COURT:

And then MVP goes on to say that they

2

provided all of the written communications between them

3

identified as Bates stamp numbers 1769 through 5886.

4

MS. ZILZ:

5

MR. WILLIAMS:

6

Yes, Your Honor.

amended answer to, I believe, interrogatory number 7 --

7

THE COURT:

8

MR. WILLIAMS:

9
10

Yes.
-- in which they identify that the

hiring process is very individualized.

Let me just find it and

make sure I'm referring to the right interrogatory answer.

11

MS. ZILZ:

12

THE COURT:

13

So I would just refer you to their

That is correct, Mr. Williams.
Well, that deals with request to produce

6 and interrogatory 7.

14

MR. WILLIAMS:

I want to stay with -But one of the points, the point I

15

wanted to make is one of the points is that it depends on the

16

job assignment to which the laborer is seeking employment, the

17

qualifications of the laborer seeking a work assignment.

18

the work is performed at Gold Standard Baking, where do they

19

get the information about the qualifications required and the

20

nature of the job assignment?

21

Standard Baking.

22

the decision about whether to assign person X to work at Gold

23

Standard Baking, they must have some document, or they have

24

none.

25

must be some documents.

Since

They must get that from Gold

So if the decision maker is at MVP in making

If there's none, then they should say "none."

But there

 27

1

THE COURT:

No, they say they have documents, that

2

they have turned over those documents.

3

treat both sides the same.

I can't force MVP to produce

4

documents they don't have.

What they have said is they have

5

documents numbered 1764 through 1768 and 1769 through 5886.

6

MR. WILLIAMS:

Again, I'm going to

And just so we're clear, again

7

equally, if there are documents that they later produced saying

8

that you needed qualifications X, Y, Z, if they don't produce

9

them at this point, then they bear the consequences.

10

THE COURT:

Of course.

Of course.

Both sides have

11

the same obligation to supplement.

12

to produce 4, interrogatory 5, the motion is denied.

13

So with respect to request

Request to produce 5 and interrogatory 6, they deal

14

with agreements with third-party vendors for credit checks,

15

drug testing, and employment eligibility verification.

16

responds that it does not use third-party vendors for employees

17

-- I'm sorry -- third-party vendors to do these types of checks

18

for those employees to be assigned to GSB.

19

MS. ZILZ:

20

THE COURT:

21

MR. WILLIAMS:

MVP

Correct, Your Honor.
What's the relevance then?
So again, referring to amended answer

22

number 7, it says they do not regularly do that.

You know, I

23

would analogize it to the tax transcript that they have

24

requested to verify what plaintiffs have said about what taxes

25

have been filed or not filed.

This allows them to verify that.

 28

1

We're seeking the same thing.

2

do those kinds of background checks on people seeking

3

employment through MVP.

4

are they doing it on?

5

MS. ZILZ:

6

THE COURT:

7

MS. ZILZ:

They say they do not regularly

"Regularly" leaves the door open.

Who

Who are they not doing it on?

Your Honor, if I may?
Yes.
Part of the reason we feel this request is

8

far too broad is that MVP does have many other clients than

9

GSB.

Depending on those clients' needs, we may run background

10

checks for that client, which may mean that a background check

11

has been run on a laborer who later is at GSB.

12

have serious privacy concerns regarding if Mr. Williams, for

13

example, were to subpoena those third-party vendors, that it

14

would raise serious HIPPA concerns for our employees, or if it

15

would require us to identify the employees who have had drug

16

tests done on them which would also violate HIPPA.

17
18

THE COURT:

However, we

For GSB, do you run these tests or

verifications?

19

MS. ZILZ:

No, Your Honor.

20

THE COURT:

21

MR. WILLIAMS:

22

THE COURT:

There you have it.
Judge --

I gather what you're trying to do is

23

limit the factors that MVP considers in making a hiring

24

decision.

25

off the table when it comes to those applicants being reviewed

So based on the answer of counsel, these things are

 29

1

or considered for an assignment to GSB.

2

MR. WILLIAMS:

Judge, the only issue is this is a

3

very unique industry.

4

recruiting and does the initial -- you know, somewhat does the

5

initial screening.

6

this case it does the initial screening and does the initial

7

interview before they determine what company they're going to

8

assign people to.

9

There is one company that does the

This varies from place to place, but in

You know, citing to their own brief in response to

10

the motion to cease and desist, on page 8 they describe the

11

process.

12

here to apply for the job at Gold Standard Baking.

13

here to apply for the job at Company XYZ.

14

They do not allow people to come in and say:

Oh, I'm

Oh, I'm

They have people come in, and they screen them.

In

15

some instances, as plaintiffs allege, they have them fill out a

16

pre-application.

17

don't get to fill out an application until they're actually

18

offered an assignment.

They respond in the interrogatory that they

19

So when they say they don't run it on people sent to

20

Gold Standard Baking, that does not mean they didn't run it on

21

people who could have worked at Gold Standard Baking.

22

come in -- when people come in and apply for work, not

23

necessarily just at Gold Standard Baking, but not excluding

24

Gold Standard Baking, either, they apply for work at MVP.

25

MVP decides are they going to send them to Gold Standard Baking

They

Then

 30

1

or are they not going to send them to Gold Standard Baking.

2

they're not closing the door that they don't run background

3

checks on individuals who seek work through MVP and would

4

otherwise be eligible to work at Gold Standard Baking.

5
6

THE COURT:

Okay.

So

Maybe you can explain to us the

process.

7

MS. ZILZ:

Your Honor, if we have assignments

8

available and there are laborers, for example, sitting in the

9

lobby, we say that we have ten assignments that need to go out

10

to GSB.

11

application, and they're sent off.

12

background checks on laborers sent to Gold Standard Baking.

13

People then would come up and then fill out the
We don't run pre-assignment

However, for example, if we have ten openings at

14

Company ABC who does require us to run background checks, then

15

those laborers, as they're filling out the application to go to

16

Company ABC, would have a background check.

17
18

THE COURT:

the default setting is that there is no verification process.

19

MS. ZILZ:

20

THE COURT:

21

MS. ZILZ:

23

THE COURT:

25

Correct.
Only when a company requests a

verification to be done do you then do the verification.

22

24

So what you're saying, Ms. Zilz, is that

Yes, Your Honor.
And with respect to GSB, GSB has not

requested that particular process.
MS. ZILZ:

That is correct.

 31

1

THE COURT:

Okay.

With respect to request to produce

2

5, interrogatory 6, based on the responses, the motion is

3

denied.

4

situation.

5

I don't find that to be relevant in this particular

Request to produce 6, interrogatory 7, the company

6

policies and procedures in hiring laborers, plaintiffs also

7

assert that MVP's amended answer to interrogatory number 7 is

8

incomplete.

9

handbook that it uses by the -- that it has for the full-time

MVP responds that MVP has provided the only

10

MVP employees.

11

process of laborers, but MVP explains that the hiring of

12

laborers is highly individualized and depends on various

13

factors as explained in its answer to interrogatory number 7.

14

There are no responsive documents to the hiring

When I looked at the answer to interrogatory 7, I

15

felt also that MVP can still do a much better job of describing

16

its practice at least.

17

mean, that's not in the answer.

18

looking for what system you have.

19

process you have in place.

20

individualized, I've got to think that MVP has a protocol that

21

it follows, because every applicant that comes in is not going

22

to be treated uniquely.

23

MS. ZILZ:

Like what you mentioned just today, I
I think that plaintiffs are
I just want to know what

Even though it's highly

Is that accurate?

Correct, Your Honor, but there is no

24

specific practice.

Say, for example, MVP has a job opening for

25

three applicants, and at 11:00 o'clock at night there's nobody

 32

1

sitting in their lobby.

2

hiring process than there would be when there's 100 people

3

sitting in the lobby.

4

Then there's going to be a different

That's why I have problems answering Mr. Williams'

5

request as it is.

6

be different, whether there's job assignments available, where

7

they're available, the employee's willingness to go out to

8

certain sites and work certain days, the times they come in,

9

because there may be openings at 5:00 a.m. and none at 10:00.

10

With each applicant coming in, it's going to

It varies from day to day, Your Honor.

11

THE COURT:

The situations may vary, but I still get

12

a sense from your response that there are some protocols in

13

place on how to deal with certain situations.

14

MS. ZILZ:

Yes, Your Honor, but I cannot say for

15

certain that it would apply to every laborer who's been hired

16

at MVP.

17

at 11:00 o'clock at night and MVP can't find anybody in their

18

lobby, well, then they may have to begin calling people

19

previously in their system who are not on assignment on that

20

date or who already have been to this site.

Like I said, for example, if there are three openings

21

THE COURT:

22

situations are you looking for?

23

for?

24
25

Okay.

Let's help you out then.

What

What practice are you looking

What information?
MR. WILLIAMS:

Again, generally what we're looking

for, we're trying to anticipate in discovery and prepare for

 33

1

depositions on what they will allege is their defense.

2

know, there's an issue.

3

at all?

4

African-Americans did seek labor work through MVP, why were

5

they not assigned?

Did African-Americans seek work at MVP

That's the first issue.

6

You

Assuming we get past that and

So we're looking for things that would be

7

qualifications they needed and didn't have, like the job

8

assignments or job duties from GSB.

9

things that would disqualify them, like a drug test and

10

We're also looking for

background and so forth.

11

The other point they make, and they said this:

12

they have to be in the lobby at the right time.

13

a question of being in the right place at the right time.

14

Well,

You know, it's

But Ms. Zilz just mentioned exactly that that's not

15

the protocol.

16

lobby, they'll start making calls.

17

Were African-Americans allowed to fill out an application and

18

be on the system in order to receive a phone call?

19

they determine who to call to try and recruit people to come in

20

that day?

21

If they had 30 people and 12 jobs, how did they decide which 12

22

to send on the assignment?

23
24
25

So, in fact, if there is not someone in the
Who did they make calls to?

How did

You know, what decisions did they utilize to decide?

MS. ZILZ:

And, Your Honor, that's the exact point of

why I'm saying I can't respond to the interrogatory number 7.
THE COURT:

So if we narrow request to produce 6 and

 34

1

interrogatory 7 to GSB, how has MVP assigned employees to GSB?

2

Can you answer that question?

3

MS. ZILZ:

Your Honor, I mean, the same difficulty

4

applies.

5

specific individual, it will depend on what day they came in,

6

what assignments were open, what time they were there, and how

7

long they were there.

8

individualized basis and specific dates because I would need to

9

review every --

10
11

I mean, with what Mr. Williams is asking for a

THE COURT:

Let me ask you this question.

Can I come

into MVP and fill out an application?

12

MS. ZILZ:

13

THE COURT:

14

MS. ZILZ:

15

THE COURT:

16

MS. ZILZ:

17

It's very hard to do other than on an

No, Your Honor.
I cannot.
No.
All right.
Our laborers who fill out applications are

those already being sent out to the job.

18

THE COURT:

All right, Ms. Zilz.

GSB sent me over

19

here and said I need to go talk to MVP if I want to work at

20

GSB.

What should I do?

21

MS. ZILZ:

22

THE COURT:

23

Do I wait?

Yes, Your Honor.
Can I give you my number, name and

number, and you give me a call later?

24

MS. ZILZ:

25

THE COURT:

Unfortunately not, Your Honor.
I have to stick around.

 35

1

MS. ZILZ:

2

THE COURT:

3

MS. ZILZ:

4

THE COURT:

5

Yes, Your Honor.
Do you have any work today?
If they did, they would send people out.
So I have to wait around.

If there's an

opening that I want, I have to wait around here.

6

MR. WILLIAMS:

Generally, yes, Your Honor.

We

7

typically don't allow them to come in and just seek an

8

assignment at a specific place.

9

there work available?

10
11

Then we say:

13

THE COURT:

Here you go.

So this is no different than standing on

a street corner looking for a day laboring position?

14

MR. WILLIAMS:

15

THE COURT:

16

MS. ZILZ:

17

Is

Yes, there's positions open over here.

Fill out an application.

12

People come in and say:

Generally.

Is that how it works?
From my understanding, pretty much, Your

Honor.

18

THE COURT:

We talked about, you know, in the

19

responses I saw that MVP has records of over 5,000 employees.

20

What records are kept of these employees?

21

MS. ZILZ:

We have their applications.

Every time an

22

employee is sent to another job assignment, we keep a record of

23

that.

24
25

THE COURT:

So only when you give me an assignment do

I then apply or fill out an application.

 36

1

MS. ZILZ:

2

THE COURT:

3

Correct.

in your system are those of employees who you actually used --

4

MS. ZILZ:

5

THE COURT:

6

Correct.
-- not turned away or who did not receive

an assignment.

7
8

So the only applications you would have

MS. ZILZ:

Correct, Your Honor.

(Discussion off the record.)

9

THE COURT:

All right.

With respect to requests to

10

produce 6 and 7, I'm going to deny the motion and allow

11

plaintiffs to designate a 30(b)(6) witness.

12

best route to take.

13

I think that's the

You're going to be doing that anyway.

MR. WILLIAMS:

The only thing I would point out here,

14

Judge, that's not specific to these specific requests, but that

15

underlies the other request asking to review personnel files

16

and so forth.

17

have written protocols but they, in fact -- Ms. Zilz

18

contradicted herself in saying you have to be there, but

19

earlier she said they would make calls if nobody was in the

20

office.

21

the phone numbers?

22

pre-applications, sign-in sheets, employment applications.

23
24
25

Given that they're essentially saying we don't

Where did they make the calls from?
She said earlier:

THE COURT:

How did they get

We don't take

It's those employees who receive an

assignment.
MS. ZILZ:

Who are already in the system, correct.

 37

1

THE COURT:

So let's move on to request to produce 7,

2

interrogatory 8.

3

are seeking advertisement orders and receipts.

4

alleging or asserting that MVP's response is not adequate

5

because the advertisements detailed are only examples and not

6

all inclusive, and MVP has not turned over any receipts or

7

orders placed for advertisements.

8

a disparate impact theory perhaps?

9

MR. WILLIAMS:

10

We're looking at advertisements.

THE COURT:

Plaintiffs

Plaintiffs are

I take it that this goes to

That's correct.

That MVP is aggressively recruiting

11

Spanish employees and neglecting the African-American labor

12

pool?

13

MR. WILLIAMS:

Correct, and it would be reflected

14

through disproportionate advertisements in the Spanish language

15

media.

16

THE COURT:

17

burdensomeness, and relevance.

18

advertisements used in 2011 through 2013, but it did not

19

explain whether this is the extent of MVP's recruitment efforts

20

through advertisements.

21

MS. ZILZ:

MVP objects based on scope,
MVP provided certain

That's accurate, correct?

Your Honor, we gave him, Mr. Williams, the

22

advertisements that we have from 2011 to the present.

It's

23

clear what language they're in.

24

that they were distributed in, what months, or whether or not

25

they were placed in magazines.

We stated the neighborhoods

Those are the advertisements

 38

1
2

that we have.
It is true we did not provide Mr. Williams with order

3

forms and receipts because given that the only allegation in

4

the fourth amended complaint is that the majority of our

5

recruitment advertisements for laborers is conducted in Spanish

6

language media, we fail to see the relevance of the actual

7

purchase orders.

8
9

THE COURT:

Well, I think it is important to figure

out the extent of MVP's recruitment efforts.

It may become

10

very important during trial when you're making a comparison, so

11

I am going to grant the motion as to request to produce 8 and

12

interrogatory 9.

13

You know, what you do provide, again, it's kind of

14

here are the examples, and we need more details, you know.

15

what we're looking at, I don't know whether you have the

16

records, so I'm not going to force you to give records you

17

don't have.

18

you do need to turn over those orders or receipts, or a

19

substitute is where you have been advertising and the amount of

20

money that you spent in advertising.

21

So

But going back to November 2009 to the present,

Request to produce 11, interrogatory 10, plaintiffs

22

are seeking all communications between GSB and MVP relating to

23

this lawsuit for the 1981 statute of limitations period.

24

period is too broad because the lawsuit was only filed on

25

February 27, 2013.

That

 39

1

So what we're really looking for are communications.

2

Because we're talking about communications about the lawsuit,

3

we're talking about communications sometime in perhaps -- I

4

don't know when.

5

litigation hold request or something?

I think, Mr. Williams, you sent over a

6

MR. WILLIAMS:

7

THE COURT:

8

MR. WILLIAMS:

9

THE COURT:

Yes.

That was when?
March of 2013.

Okay.

So February -- so I guess March 1,

10

2013, to the present, that's the time period we're looking at.

11

MVP has responded that it has tendered those communications not

12

protected by the joint defense privilege.

13

here?

14

MR. WILLIAMS:

So what's lacking

I guess we would ask for a certificate

15

of completeness that they've turned over everything.

16

believe that they have.

17

understand that this is one company contracting with another

18

company.

19

Baking's facility that they use as back-up e-mails, that they

20

use as back-up to their invoices from MVP, that we have not

21

seen produced from MVP.

We've seen e-mails.

We don't

You know, again,

So we have reviewed documents at Gold Standard

22

THE COURT:

I'm sorry.

23

MR. WILLIAMS:

Can you go over that again?

So there's a sender of an e-mail and a

24

receiver of an e-mail.

Gold Standard Baking in some cases is

25

either the sender or the receiver.

So they have printed out

 40

1

e-mails and attached them to invoices.

The e-mail may relate

2

to don't return this person, that somebody arrived late or, you

3

know, we have three heavies, something related to the

4

assignment, or MVP may have an e-mail on something saying, you

5

know, they only have ten people today, something like that.

6

So Gold Standard Baking has printed some of those

7

e-mail correspondence from MVP out and attached them to their

8

invoices from MVP as sort of back-up documentation for the

9

invoices.

So we've seen those in looking at documents produced

10

by Gold Standard Baking and made available to us by Gold

11

Standard Baking.

12

believe we have all of the e-mail correspondence from MVP.

13

Those are not included in MVP's, so we don't

THE COURT:

But how are they about this lawsuit?

I

14

mean, that's what request to produce 11 and interrogatory 10

15

cover, correct, communications between GSB and MVP relating to

16

this lawsuit?

17
18

MR. WILLIAMS:

I'm sorry.

I was

focused on the wrong thing.

19

THE COURT:

20

MR. WILLIAMS:

21

THE COURT:

22

That's correct.

telling MVP:

But am I reading that right?
You are.

We're talking about, you know, GSB

Oh, this lawsuit is bunch of crap or whatever.

23

It's that kind of communication, not about --

24

MR. WILLIAMS:

25

So what we've asked them to do with

regard to that now is to produce a privilege log that whatever

 41

1

they're withholding is pursuant to this joint defense doctrine.

2

THE COURT:

Okay.

3

MR. WILLIAMS:

4

THE COURT:

And the joint defense.

What's the extent of the communication

5

between MVP and GSB that would fall within the joint defense

6

privilege?

7

MS. ZILZ:

Your Honor, we asserted it in case --

8

because Mr. Williams did not define MVP, in case he included

9

their attorneys within that definition, communications between

10

MVP's attorney and GSB's attorneys relating to this lawsuit.

11

THE COURT:

12

MS. ZILZ:

13

Okay.
Other than that, that's about it, Your

Honor.

14

THE COURT:

All right.

I mean, I'm not going to

15

require MVP and GSB to go through the burden and the expense of

16

actually listing out each e-mail communication.

17

MVP's and GSB's representation here today that the only

18

documents withheld are those e-mails exchanged or letters

19

exchanged between the attorneys for MVP and GSB.

20

I don't want to state something that's not accurate.

21
22

MR. HANNAFAN:

I will accept

Am I correct?

On behalf of GSB, Your Honor, that's

correct.

23

MS. ZILZ:

Yes, Your Honor.

24

THE COURT:

25

MR. WILLIAMS:

Okay.
Judge, given what they just put on the

 42

1
2
3
4

record, then I'm satisfied.
THE COURT:

Great.

Thanks.

So as to request to

produce 11, interrogatory 10, the motion is denied.
MR. HANNAFAN:

Well, I guess, Your Honor, we do have

5

-- I'm sorry.

6

regards -- you know, we had the same request on communications

7

on the lawsuit.

8

than what was, you know, between the attorneys.

9
10

For GSB, we are not withholding anything with

We're not withholding anything on that other

THE COURT:

Okay.

MR. HANNAFAN:

We do have some issues where we've

11

got, as I believe Mr. Williams stated in his motion, e-mails

12

and other things that go beyond.

13

now, but I just want to make sure that it's clear I'm not

14

stating that we have produced all of that information.

15

only thing that we would withhold is related to communications

16

between our client and their attorneys.

17
18
19
20
21

THE COURT:

Okay.

That's not before Your Honor

The

I'm really limited to request to

produce 11 and interrogatory 10 served on MVP.
MR. HANNAFAN:
was clear.

Okay.

I just wanted to make sure I

I apologize.

THE COURT:

All right.

We'll move forward to request

22

to produce 13 and interrogatory 12.

We're talking about

23

complaints of discrimination and settlements MVP entered into.

24

Mr. Williams, the relevance?

25

MR. WILLIAMS:

Well, the relevance is how they

 43

1

investigated discrimination claims.

2

goes to, you know, that they asserted they don't have any video

3

recordings, that they didn't preserve any video recordings, any

4

sign-in sheets, any pre-applications.

5

be were there African-Americans who sought employment or not.

6

So whether or not there were prior complaints is going to be

7

relevant.

8
9

THE COURT:
connection.

I'm sorry.

The issue here, Judge, it

So the issue is going to

I don't follow the

You want information about all EEO complaints

10

against MVP and any lawsuits that MVP settled while they were

11

in the administrative process or in the federal district court.

12

MR. WILLIAMS:

Right.

It also goes, I mean, to what

13

they have asserted to us.

There's statutory requirements to

14

maintain EEO-1s, and under the state law, the Temporary Labor

15

Services Act, to maintain a record of the race and gender of

16

the temporary laborer whose sent out.

17

have not kept those, so they're creating a vacuum of

18

information that they're required to keep that they don't have.

19

So the fact of other allegations from other

They're saying that they

20

African-Americans claiming that they, too, were discriminated

21

against in not being assigned is going to help us establish,

22

you know, what I think they're contesting and what they've

23

asserted in this conversation, that they're contesting that

24

there weren't African-Americans who sought employment there.

25

THE COURT:

Response?

 44

1

MS. ZILZ:

Your Honor, I think the way that request

2

for production 13 is written, it's far overly broad.

3

previous ten years, which is far beyond the statute of

4

limitations period.

5

just those African-Americans seeking assignment at MVP.

6

it's not limited to Illinois, the specific office that sends

7

out to GSB, our Cicero office.

8

and MVP does business on a nationwide basis.

9
10

THE COURT:

It's the

It seeks all claims of discrimination, not
Also,

This is a nationwide request,

What if we limited the time period to

2008 and to race discrimination filed by African-Americans?

11

MS. ZILZ:

If the request was limited to the statute

12

of limitations period from 2009 to the present in Illinois and

13

race discrimination claims by African-Americans, if they allege

14

-- my other difficulty is that the current class definition is

15

African-Americans who sought employment and sought to go to

16

GSB, and this request isn't limited there.

17

the EEOC charge that they requested assignment at GSB, I would

18

certainly see the relevance, but just general allegations of

19

people --

20

THE COURT:

If it was within

But Mr. Williams is of the opinion that

21

MVP's defense is going to be that you just didn't have many

22

African-Americans seeking employment.

23
24
25

MS. ZILZ:

It is one of our defenses, correct, Your

THE COURT:

And Mr. Williams wants to at least be

Honor.

 45

1

able to use the complaints, if any, to identify perhaps

2

potential witnesses who, in fact, sought employment through

3

MVP.

4

MS. ZILZ:

5

THE COURT:

Yes, Your Honor.
All right.

So I'll go ahead and grant

6

the motion but limit it to the time period of -- hold on a

7

second.

8

is granted.

9

no, I'm going to go back to November of 2008 to the present,

Request to produce 13 and interrogatory 12, the motion
The time period is limited to November of 2009 --

10

charges of race discrimination by African-Americans.

11

branch offices are there in the city of Chicago?

12
13

MS. ZILZ:

THE COURT:

15

MS. ZILZ:

16

THE COURT:

18
19

I'm not positive in the city of Chicago.

There's only one that is relevant for this lawsuit.

14

17

The Cicero branch?
Yes, Your Honor.
I'm going to limit it to the Cicero

branch.
MR. WILLIAMS:

THE COURT:

21

MR. WILLIAMS:

23
24
25

Judge, can I ask counsel to confirm

that they don't also send from another branch?

20

22

How many

Okay.
My understanding is that they do send

to GSB sometimes from other branches.
MS. ZILZ:

My understanding is it's only from the

Cicero branch, Your Honor.
THE COURT:

Well, then I need you to confirm that in

 46

1

what you respond to this particular request to produce 13 and

2

interrogatory 12.

3
4

MR. WILLIAMS:

Judge, can we just say from any branch

from which laborers have been sent to GSB?

5

THE COURT:

That's fine, the branch responsible.

6

right.

7

supervisors and managers for purposes of hiring, right?

So next is request to produce 14, manuals used by

8

MR. WILLIAMS:

9

THE COURT:

Correct.

Because you want to see if the practice

10

that they follow will have an exclusive impact or, I should

11

say, you know, that the practice sort of excludes

12

African-Americans, right?

13

MR. WILLIAMS:

14

THE COURT:

That's correct.

Okay.

MVP has said that the only manual

15

it has is the manual used by full-time employees.

16

motion is denied.

17

All

So the

The response is adequate.

Request to produce 15, manuals and policies dealing

18

with discipline of employees, I don't see the relevance, but

19

given MVP's response that they only have one manual that its

20

employees use, that's also denied.

21

MR. WILLIAMS:

22
23
24
25

I could point out the relevance, but

your other -THE COURT:

Well, I want to hear it, because I always

learn from you, also.
MR. WILLIAMS:

So there's a procedure by which

 47

1

temporary laborers are sent and the company can say, for

2

example, they don't want this person sent back, a DNR.

3

THE COURT:

Correct.

4

MR. WILLIAMS:

Sometimes those DNR's can be based on

5

a discriminatory reason or an unlawful reason.

6

that there was a policy in place on how to deal with that

7

discord between a request from a client and a law, that would

8

be relevant.

9

MS. ZILZ:

10

THE COURT:

To the extent

Your Honor, if I may?
But given the accusation against MVP,

11

that kind of cuts against your theory, though, right?

12

were black employees sent to Gold Standard, GSB, you know, if

13

there's a DNR on that person's file, I mean, I don't know how

14

much traction you're going to get from that because it kind of

15

cuts against it.

16

because it may go against GSB, not necessarily MVP, right?

17
18

Perhaps, well, I see your point, though,

MR. WILLIAMS:

Or against the relationship between

the two.

19

THE COURT:

20

MR. WILLIAMS:

21

THE COURT:

Okay.
Don't send these people again.

All right.

22

manual, that's what we deal with.

23

MR. WILLIAMS:

24

THE COURT:

25

If there

But since they only have one

That's right.

Now we are at the point of moving to

request to produce 16.

Here plaintiffs are seeking a copy of

 48

1

the video recordings of the operation.

2

Cicero operation.

3

MVP says:

4

happening in the Cicero office, but that's not recorded.

If I understand MVP's response correctly,

Yes, we have a video camera sort of capturing what's

5

MS. ZILZ:

6

THE COURT:

7

another set of eyes?

Correct, Your Honor.
So this is like a security camera,

8

MS. ZILZ:

Yes, Your Honor.

9

THE COURT:

What do we do?

10

We're limited to the

MR. WILLIAMS:

Well, as I understand it, it's

11

recorded and recorded over.

It can be preserved, but it was

12

not preserved.

13

as they pointed out, in another case in which another staffing

14

agency, ASI, is a defendant.

15

letter, they contacted us and said:

16

you'll pay for the costs.

I would just point out that MVP is a defendant,

When we sent this preservation
We'll preserve it if

17

We paid for the costs, and they preserved it.

18

THE COURT:

So what's your -- so we have different

19

information here.

Ms. Zilz says that MVP does not record, but

20

you tend to believe that MVP does record at the Cicero branch

21

office.

22

MR. WILLIAMS:

23

THE COURT:

24

MR. WILLIAMS:

25

That's correct.

What do you base that on?
Well, we base it on conversations we

had with counsel early on in the -- after we sent the

 49

1

preservation letter.

2

THE COURT:

3

MR. WILLIAMS:

4

THE COURT:

5

MR. WILLIAMS:

Ms. Zilz or someone else?
Her and her partner, Mr. Elliot.

Mr. Richardson.
Mr. Richardson, yes.

Excuse me.

6

Elliot Richardson.

7

documentation relating to the system they use and their

8

protocol.

9
10

Judge, I guess what I would ask for then is

THE COURT:

Okay.

For this one, I'll ask MVP to

simply certify that it does not record.

11

MS. ZILZ:

12

THE COURT:

Okay?

Yes, Your Honor.
The motion is denied with respect to

13

request to produce 16, but I am ordering MVP to provide a

14

certification that it does not record the operation at the

15

Cicero branch office.

16

MR. WILLIAMS:

17

THE COURT:

18

MR. WILLIAMS:

19

And can I just ask for clarity?

Yes.
And that it has not recorded since

March 6th of 2013.

20

THE COURT:

Okay.

I will do that.

21

done, unless I missed something.

22

MR. WILLIAMS:

23

And just so I'm clear on request

number 3 and interrogatory number 4 --

24
25

I think we're

THE COURT:
see them.

Hold on.

Let me go back.

3?

I didn't

 50

1

MR. WILLIAMS:

2

THE COURT:

3

MR. WILLIAMS:

4

THE COURT:

On page 12 of our motion.

Hold on.

Let me go to it.

Paragraph 17.

Oh, wait.

5

produce 3, the manuals?

6

MR. WILLIAMS:

I granted that.

The applications, pre-applications,

7

sign-in sheets.

8

request number 2, interrogatory number 3.

9
10
11

I'm sorry.

THE COURT:
in your motion?

It's request 4.

Request number 2?

Where do you see that

(Discussion off the record.)
THE COURT:

13

MR. WILLIAMS:

I thought I -Judge, we may have misnumbered it.

14

It's paragraph, I think, number 17.

15

interrogatory 4.

17

I mean, it's

Maybe I missed it.

12

16

Request to

That's request 3 and

It's actually interrogatory 3 and request 2.

THE COURT:

So I have it right.

It was request to

produce 3.

18

MR. WILLIAMS:

19

THE COURT:

20

MR. WILLIAMS:

21

THE COURT:

22

MR. WILLIAMS:

That's correct.

Not 2.
Right.

All right.
The description in paragraph 17 is of

23

the sign-in sheets, the pre-applications.

Paragraph 17 of our

24

motion, identify or produce any applications, pre-applications,

25

and sign-in sheets.

 51

1

THE COURT:

So you meant to say request to produce 2?

2

MR. WILLIAMS:

3

THE COURT:

That's correct.

Hold on a second.

Okay.

We can talk

4

about this a little bit because there was an objection made

5

about this.

6

It's in response to --

MS. ZILZ:

7

8 and 9, Your Honor.

8

THE COURT:

9

MS. ZILZ:

10

THE COURT:

I believe it's requests to produce numbers

Yes.

I'm sorry.

Did I miss this one?

I believe so, Your Honor.
All right.

I apologize.

I think I went

11

from -- so I did deal with request to produce 7, though, right,

12

advertisements?

13

MS. ZILZ:

14

MR. WILLIAMS:

15

THE COURT:

16

and interrogatory 9.

17
18

MS. ZILZ:

Yes, Your Honor.
Yes.

And I skipped over request to produce 8

As well as request to produce number 9,

Your Honor, for all of the employees' personnel files.

19

THE COURT:

Well, I don't see request to produce

20

number 9 in the motion.

21

apologize.

22

is a reference to -- oh, I'm sorry.

23

number 8.

24
25

There's an interrogatory 9.

I

Yes, page 10, paragraph 11, we deal with it.

Okay.

There

That's interrogatory

Request to produce 8 is information about

basically all laborers MVP has assigned to work at GSB.

 52

1

Plaintiffs would like the information, if it's kept

2

electronically, in its native format.

3

a year it's kept in hard copy and stored off-site.

4

MS. ZILZ:

MVP responds that after

Your Honor, the applications are kept in

5

hard copies.

6

and then they're stored in an off-site facility.

7
8

They're kept within MVP's office for one year,

THE COURT:

What's kept electronically then, the

assignments?

9

MS. ZILZ:

The assignments, correct, Your Honor.

10

THE COURT:

The amount of money that they earned

11

through their assignments?

12

MS. ZILZ:

13

THE COURT:

Correct, Your Honor.
Okay.

When we talk about 5,000

14

employees, are we talking about 5,000 employees assigned to

15

GSB?

16

MS. ZILZ:

17

THE COURT:

18
19

MS. ZILZ:
2009 to the present.

21

THE COURT:

23

For the time period November 2009 to the

present, 5,000?

20

22

GSB, yes, Your Honor.

I believe we gave Mr. Williams February of

What did you give him so far, just an

Excel spread sheet with the names?
MS. ZILZ:

Your Honor, it was a PDF that we produced

24

that had all the names of the employees and the weeks that they

25

were sent out, as well as I believe one of the columns had

 53

1

their start date at MVP.

2

information, it also had their weekly earnings and other

3

private information that we redacted.

4

ourselves and then rescan it and send it to Mr. Williams.

5
6

THE COURT:

When our client gave us that

Thus we had to redact it

When you say "private information," are

you talking about personally identifiable information?

7

MS. ZILZ:

The employee's pay rates, Your Honor.

8

Depending on how long they were employed at MVP, their pay

9

rates may be different.

10

and their total earnings per year.

11
12

So we had withheld that information

THE COURT:

I know.

Isn't that kind of important,

though, if I'm trying to figure out my lost wages?

13

MS. ZILZ:

Your Honor, Mr. Williams could easily ask

14

what the starting rate to be assigned in a certain position at

15

GSB is.

16

MVP's records because those employees may be longer term

17

employees.

However, it wouldn't necessarily be reflected within

18

MR. WILLIAMS:

Judge, this gets at the fundamental

19

question of what they've produced, the format in which it is,

20

and how it could be produced.

21

database.

22

of weekly assignments, and they included only certain fields

23

that are contained in the database.

24
25

They have an electronic

They ran the report they chose, which is a summary

We think, first of all, the daily assignment is the
critical factor because they allege themselves, you know:

If

 54

1

there wasn't a job available at Gold Standard Baking, how could

2

we assign someone to Gold Standard Baking?

3

The only way we could find out who -- how many people

4

were being assigned from MVP to Gold Standard Baking is to see

5

who was assigned there on a daily basis.

This information is

6

run and -- it is stored electronically.

It was run through a

7

report, and then it was scanned in a non-searchable format.

8

it is available electronically.

9

So

The other thing that we need from them is what fields

10

are available and what fields are kept.

11

information about TempsPlus.

12

generally from TempsPlus as to how it operates, but what fields

13

they maintain, do they have a field for qualifications or

14

skills, or do they have a field, as the EEOC found in a case we

15

referred to them several years ago, where they code that they

16

want women or they want men.

17

men.

18

That's part of the

So it's not just the manual

In that case, it was women and

They had a coding for that these jobs were women's jobs.
Is there something along the same line where there's

19

a coding here?

20

fields they kept and, you know, to the extent that they

21

complied with the EEO-1s and the Temporary Labor Services Act,

22

did they keep track of race or gender and any other

23

information.

24
25

We're entitled to know what records and what

We're entitled to this information.
is not burdensome.

They produced a report.

This information

To produce a

 55

1

different report is no more burdensome.

2

electronic.

3

parameters that you give it for these reports, and I know

4

because we've received these reports in numerous wage and hours

5

cases where there's the daily payroll data for every employee.

6

It's a database.

You know, it's

The report runs on the

I also agree that, you know, we have a protective

7

order in place.

The information about what rate of pay people

8

were receiving for different jobs very well may go to our

9

damage calculations.

How much of a pay raise people got over

10

time, our allegation is that someone was denied employment that

11

they could have had over time and they could have gotten

12

raises, and knowing what the pay scale was and how it changed

13

over time is very relevant.

14

This information is incredibly relevant.

If the

15

answer is, you know, these are the fields we have and we don't

16

have a field on race or we don't have a field on this, then all

17

they have to do is answer the corresponding interrogatory and

18

identify that.

19

This is the crux of the case.

20

sent, when were jobs available, what job assignments were

21

people given, and to compare that to what skill set those

22

individuals had, vis-a-vis other African-American applicants,

23

what skill sets they had, I mean, it's the very crux.

24

We need to know what the qualifications and

25

But this is not the burdensome information.
Who was sent, when were they

requirements were and what the disqualifications were.

If

 56

1

there were none, if that's the answer, then we need to know

2

that, and we're entitled to know that.

3

They've asserted that they have sort of an unwritten protocol.

4

Well, we're entitled to test that assertion with the underlying

5

facts.

6

We're entitled to.

You know, part of the interrogatory, the reason --

7

and I'm looking at it now -- the reason we didn't request

8

number 9 is because in number 9 we said we would ask for a

9

sampling of personnel files once we got the information in

10

number 8 which would tell us what jobs people had, you know,

11

what dates they were assigned, who was new, who was an existing

12

assignee.

So number 9 builds off of number 8.

13

THE COURT:

14

raised in the motion to compel?

15

But am I right that number 9 is not

MR. WILLIAMS:

It's not raised yet because we need

16

number 8 before we feel prepared to identify an agreed-upon

17

sampling.

18

running a report is burdensome, I'm sure they'll raise that

19

providing a personnel file for everybody is extremely

20

burdensome.

21

You know, I'm sure they'll raise -- if they think

We're willing to do a sampling, but we need to know.

22

We don't want to get all people that were working on one

23

production line.

24

certain set of skills to work on croissants versus doughnuts,

25

then we need to know what that set of skills is, and we need to

If they're going to assert that you need a

 57

1

know who was assigned to that before we can ask for or we can

2

identify for whom we would want a personnel file.

3

THE COURT:

4

MS. ZILZ:

Response?
Your Honor, if I may, I don't read request

5

number 8 to ask the same things that Mr. Williams does.

I

6

believe it asks for things that are extremely broad.

7

in my response, regardless of whether or not this information

8

even relates to GSB, for us to provide Mr. Williams with all of

9

our employees' applications, obviously, those are stored in the

As I say

10

off-site facility amongst the tens of other thousands of

11

employees' that we have.

12

would take them months with multiple employees searching for

13

these specific 5,000 names.

My client has represented that it

14

Additionally, we did produce the documents in the

15

weekly aggregate because that is how it is produced for the

16

third-party clients when they request it.

17

sent to GSB on a weekly basis.

18

was sent out and on what line they were every day, that

19

information is within GSB's records which were made available

20

to Mr. Williams.

21

THE COURT:

The invoices are

For the actual records of who

Do you know how difficult it is to go

22

ahead and provide the TempsPlus data of the 5,000 employees in

23

an Excel spread sheet?

24

two, if so, how costly is that?

25

MS. ZILZ:

Number one, is it possible?

Number

We provided all the names of the employees

 58

1

who were sent out throughout the entire period to Mr. Williams

2

in an Excel spread sheet.

3

information, I believe not a lot of that is actually stored

4

within the TempsPlus system, such as whether a drug test was

5

conducted or whether a background check was run.

6

depending, he says for each employee whether a drug test was

7

performed.

With regard to the other

8

THE COURT:

9

that GSB does not require that.

Again,

Well, I think we've covered that area,
So I'm not going to require

10

that information.

11

particular employee started working for MVP, how much he or she

12

earned, how many hours he or she worked, that sort of thing?

13

But what about information about when this

MS. ZILZ:

Because it is stored on an assignment

14

basis, how much they earned in the aggregate may be able to be

15

produced, but that would also include other assignments, other

16

than GSB, and wouldn't necessarily include just being sent to

17

GSB.

18

We've produced it in the aggregate on a weekly basis.
Say, for example, someone is sent for 32 hours a

19

week.

20

hours they've worked per week from February of 2009 to the

21

present for every week.

22

That has been produced to Mr. Williams, the number of

THE COURT:

I guess the question is whether

23

TempsPlus, whether MVP can go into TempsPlus and generate an

24

electronically formatted report showing the employees assigned

25

to GSB and all the hours and wages associated with their

 59

1
2

assignment at GSB.

That's the question.

MR. WILLIAMS:

It is, and we've already been over

3

that "third-party client" means GSB.

4

have to figure out a way to do it, Judge, but I can give you a

5

dozen examples from other cases that I've had in which

6

TempsPlus produced exactly this kind of information on the

7

assignments, the invoices, and the payroll.

8

THE COURT:

9

the capabilities of TempsPlus.

10

MS. ZILZ:

We agreed to that.

But you don't have any information about

No, Your Honor.

I have not myself used

11

the system.

12

this is to make the PDF that we have already produced to

13

Mr. Williams in a searchable format, and we have offered.

14
15
16

However, I believe the least burdensome way to do

THE COURT:

But I take it that the PDF only has the

names of the employees.
MS. ZILZ:

The names, the hours worked per week, what

17

hours they started, and I believe their first date of

18

assignment.

19
20
21

I'd

THE COURT:

But if you can generate it electronically

using TempsPlus, we don't need to convert the PDF.
MR. WILLIAMS:

The key I would have a question for my

22

client is whether or not they can remove the aggregate

23

earnings, unless Your Honor is saying we need to produce those

24

as well per week.

25

THE COURT:

Well, I guess what I'm interested is

 60

1

information about employees assigned to GSB by MVP.

2

information you have maintained about that particular employee,

3

that's what I'm interested in.

4

that information to the plaintiffs electronically?

5

preference here is to be in Excel so that things can be

6

aggregated, but I don't know the system.

7

MR. WILLIAMS:

The question is:

All

Can we give
The

It could be in any text-limited

8

electronic format, which is standard protocol in almost any

9

database that runs a report, and then that could be uploaded

10

into Excel after that.

11

TempsPlus has the capability of doing that, you know.

12

Judge, TempsPlus can do that.

We'd be happy to -- well, I mean, I think now is the

13

first time we're getting into what is the capacity of TempsPlus

14

to do it rather than do they have to convert what they PDF'd in

15

non-searchable format into a searchable format.

16

to meet and confer with them, and I could demonstrate to them

17

the other cases where TempsPlus has been the database utilized

18

and what format and information has been produced.

19

could come back.

20
21
22

This is the crux of the case.

We'd be happy

Then we

Again, there's a

protective order in place.
THE COURT:

Okay.

With respect to request to produce

23

8, what I'm asking MVP to produce in electronic format is all

24

information about the employees assigned to GSB from November

25

1, 2009, through March 31, 2014, just so we have an end date.

 61

1

I'm assuming that this information is going to be given to a

2

statistician for purposes of analysis, so I don't think that

3

it's all that significant that I cut it off on March 31st,

4

2014, but we do have to have an open and end date for purposes

5

of searching and then downloading.

6
7
8
9

MS. ZILZ:

Okay?

Your Honor, if I may, does that include

whether necessarily a drug test was conducted?
THE COURT:

No, no.

I'm looking for employees'

names, I'm looking for when they started, well, and any other

10

information you have.

11

information you don't already maintain.

12

don't want you to limit any information.

13

you keep about these applicants who have been assigned to GSB,

14

I understand that they may have been assigned to other places

15

as well, but that's up to the plaintiffs to decipher, I guess.

16

I don't know what it's going to look like.

17

I mean, I'm not asking you to create
What I'm saying is I
Whatever information

So as an initial step, we need to have that

18

information electronically provided to the plaintiffs.

I'm

19

limiting the temporal scope from November 1, 2009, to March 31,

20

2014, and the preference here is Excel.

21

in the order, in Excel.

22

to bring it up as a motion for a protective order, just to

23

address your concerns, if any.

24

MS. ZILZ:

25

THE COURT:

So that's going to be

If there's a cost issue, then you need

I just don't know.

Yes, Your Honor.
Mr. Williams believes that it's not that

 62

1

big of a deal, but I don't know.

2

say about request to produce 2.

3

motion to compel, and I hate to give you, you know, a pass.

4

I've got to treat both sides equally.

5

know what to tell you.

6

MR. WILLIAMS:

Okay?

I don't know what to

It's not identified in the

I don't know.

I don't

Well, Judge, I mean, you know, we have

7

now unbifucated discovery, and we'll be propounding new

8

discovery.

9

for it in the preservation letter.

10

We'll ask for the sign-in sheets again.

We asked

We did identify it in the

reply as to number 2.

11

THE COURT:

I've got to tell you that I'm not a big

12

fan of multiple rounds of written discovery.

This is the first

13

time, when I read through the motions to compel, the first time

14

I'm actually seeing that there was bifurcation.

15

have looked at the document more carefully, but it's something

16

that you should have told me the last time we were in court as

17

well.

18

think.

Maybe I should

I mean, that certainly would have been significant, I

19

MR. WILLIAMS:

20

bifurcation, and the defendants --

21

THE COURT:

22

already bifurcation.

We suggested to maintain the

Maybe I misunderstood that there was

23

MR. WILLIAMS:

Judge, just by way of --

24

MR. HANNAFAN:

I disagree, Your Honor, that there was

25

bifurcation.

 63

1

THE COURT:

Hold on.

2

MR. WILLIAMS:

By way of background, very early in

3

the case when defendants responded to the original complaint,

4

they answered the original complaint.

5

motion to dismiss.

6

to engage in a meet-and-confer.

7

a meet-and-confer and for plaintiffs and the parties to attempt

8

to agree and for us to come up with limited discovery.

9

what we're talking about here, an agreement on limited

They did not file a

Judge Chang, you know, directed the parties
We attached those orders about

That's

10

pre-class certification discovery, which then defendants agreed

11

they would answer over objection.

12

When we filed an amended complaint, they then filed a

13

motion to dismiss, and we went back and forth with Judge Chang

14

as to whether discovery was proper.

15

status report which we attached in which defendant said:

16

we don't think it's proper, but if you direct us to answer, we

17

will answer it.

We even filed that joint

18

Then Judge Chang did direct them to do that.

19

THE COURT:

All right.

Well,

Let's do this and get this

20

done and out of the way.

21

when it comes up.

22

with my order that's going to be issued sometime today, it will

23

be May 2nd.

24
25

Then we'll deal with the second round

With respect to responding and complying

By the way, the parties are not to serve any more
written discovery requests without leave of court.

When you do

 64

1

file a motion for leave of court, I want to see the actual

2

proposed second set of interrogatories with requests to produce

3

as an exhibit.

4

of those requests in advance so that you don't need to have a

5

meet-and-confer.

6
7

We'll have a status hearing on May 6th at 11:00.
Does that work for everyone?

8
9
10

My plan is to go ahead and deal with the scope

MR. HANNAFAN:

I'm unavailable.

I've got an arbitration, but Ms. Vucko can handle it for us,
Your Honor, unless you want me present.

11

THE COURT:

12

MR. HANNAFAN:

13

MS. ZILZ:

14

MR. WILLIAMS:

15

THE COURT:

16

I'm Mr. Hannafan.

No, that's fine.
Okay.

Thank you.

May 6th is fine with us, Your Honor.
And it's fine with us.

I do have a question.

How are you ever

going to identify the class members in this case?

17

MR. WILLIAMS:

Well, this is part of our concern

18

about this assertion that everything should be limited to

19

people who asked for jobs at GSB or were assigned to GSB or

20

sought assignments to GSB, because by defendant's own

21

admission, by MVP's own admission in a motion they filed -- and

22

I'm happy to pull it for the Court -- people go in and ask for

23

work.

24

-- African-Americans may have gotten work on certain tickets

25

but not Gold Standard.

They may have gotten work on certain tickets but not on

 65

1

THE COURT:

GSB.

2

MR. WILLIAMS:

3

putative class members.

4

for three days and then got no more work, we know who they are.

5

There's a record of them.

6

the records they were required to keep.

7

THE COURT:

8

MR. WILLIAMS:

9

GSB's ticket.

So those would be

If they were assigned to Company XYZ

The problem here is they didn't keep

But -That's why the sign-in sheets and the

video and the prints, that's one way.

But, I mean, we're going

10

to have to come up with another way to find people who sought

11

assignments through MVP and would have been able to work at

12

Gold Standard Baking and weren't disqualified for any other

13

reasons.

14

background checks.

15

criminal records.

16

They have not produced anything to say in order to work at GSB

17

that you have to have a forklift driving certificate or you

18

have to have this.

19

Thus far, none have been produced.
It can't be drug tests.

It can't be
It can't be

It can't be employment verification systems.

They've produced nothing to date.

THE COURT:

So one group of class members are those

20

African-Americans who have been -- who have received work

21

through MVP but were not assigned to GSB.

22

lost out on that opportunity for temporary work.

23

that by looking at records of employees assigned through the

24

Cicero branch office, you may get that subgroup of

25

African-Americans.

In other words, they
So that means

But then you have the other group of

 66

1

individuals who simply showed up at MVP's office, asked for

2

work, and were turned down.

3

MR. WILLIAMS:

That's what you're saying?

I mean, what typically happened is

4

there's 15 people in the office, 12 people assigned, and three

5

African-Americans sitting there at the end of the day and not

6

getting assigned.

7

THE COURT:

But those sitting there at the end of the

8

day, unless they have been assigned through MVP in the past or

9

to a different employer, we wouldn't have a record of those

10

three.

11

MR. WILLIAMS:

What I'm hearing is they did not

12

maintain records they were obligated to maintain that they were

13

asked to preserve.

14

way to identify other putative class members, and this may be

15

an appropriate case also to consider both remedial relief and

16

injunctive relief.

17

So, yes, we'll have to come up with another

THE COURT:

All right.

I'm just asking for my own

18

benefit.

19

certification issue, but it certainly is something that's going

20

to come up.

21

It's not something I have to deal with, the class

MR. WILLIAMS:

It would be the height of injustice.

22

I mean, assuming the facts to be right, it would be the height

23

of injustice to say you threw away all the records that would

24

help establish a class and, therefore, we can't establish a

25

class.

 67

1

MS. ZILZ:

Your Honor, I believe Mr. Williams is

2

mischaracterizing the scope of the class.

3

stated on the record that he's not seeking African-Americans

4

who were assigned to other clients of MVP, just those who were

5

turned down for employment at GSB.

6

that that first category of individuals are actual putative

7

class members.

8

Mr. Williams has

Therefore, I don't believe

Additionally, MVP has not thrown away records.

As my

9

client has stated in an affidavit, they have not had sign-in

10

sheets or these pre-applications that Mr. Williams refers to

11

since the day of the preservation letter.

12
13

THE COURT:

What about the EEO-1 data that

Mr. Williams refers to?

14

MS. ZILZ:

This is the first time Mr. Williams raised

15

it within his reply brief, so I'm not prepared to address that

16

at this time.

17

MR. WILLIAMS:

18

MS. ZILZ:

It's in the --

Additionally, with the Illinois Day and

19

Temporary Labor Services Act, it's true our client does not

20

maintain records of --

21

THE REPORTER:

22

MS. ZILZ:

I'm sorry.

23

THE COURT:

Go ahead.

24

MS. ZILZ:

25

Act.

I'm sorry, counsel.

Illinois?

Illinois Day and Temporary Labor Services

It is true our client does not maintain records of

 68

1

employees' race simply because we believe that it is actually

2

in contradiction of federal law and may violate federal law to

3

do so because you are only allowed ask for the employees' race

4

on applications when they are not already employees.

5

instance, people cannot fill out applications until they're

6

being sent out.

7

client who does not want to be discriminating against any class

8

of individuals.

9

In this

That creates an interesting dichotomy for my

THE COURT:

All right.

I mean, it's not a battle

10

that I have to call anyway, but I was curious.

11

me understand the scope of discovery.
But one thing, Judge.

It might help

12

MR. WILLIAMS:

We keep going

13

back and forth on this.

14

does not ask for an assignment to Gold Standard Baking because

15

they don't know where the assignments are, but they ask for

16

work.

Somebody walks in the door at MVP and

17

MR. HANNAFAN:

Well, Your Honor, that's not --

18

THE COURT:

19

MR. HANNAFAN:

I thought he was done.

20

MR. WILLIAMS:

That person, unless there's some

Hold on.

Let Mr. Williams finish.
I'm sorry.

21

reason they're disqualified from an assignment to Gold Standard

22

Baking, they're seeking work and are ineligible to work at Gold

23

Standard Baking, so why wouldn't they be putative class

24

members?

25

check with Company XYZ and there's a hit on that, are they then

That's the question about if they run a background

 69

1

disqualified from any assignment at MVP, including Gold

2

Standard Baking?

That makes it relevant.

3

THE COURT:

Mr. Hannafan?

4

MR. HANNAFAN:

Well, he says that no one comes in and

5

asks to go to GSB, but in his complaint these three people,

6

Lucas, Vaughans, and Davis, all of them say they came in and

7

said:

I want to go to GSB.

8
9

He says no one does that.

Well, apparently except

for his three clients.

10

MR. WILLIAMS:

But, Judge --

11

MR. HANNAFAN:

They came in, apparently.

12

deposed them yet, but this is what they claim.

13

and said:

14

We haven't

They came in

Hey, I want to go to GSB.
They were told there wasn't work there or whatever,

15

that they were too late, so they didn't get assigned out.

16

can't have it both ways.

17

He

With regards to African-Americans -- and I think Your

18

Honor touched on this -- who come in and don't ask to go to

19

GSB, who come in and are looking for work and are sent to, you

20

know, Company ABC, I don't see how that stands up as

21

discrimination certainly by GSB.

22

the application or the hiring or the assignment, or even by

23

MVP.

24

to do work, he acts as if there's only one company or two

25

companies that they're assigning out for, and that's not the

They don't have any say in

I mean, if people are getting assigned out somewhere else

 70

1

case.

2

THE COURT:

The linchpin that you have to prove in

3

this case is that GSB has expressed a preference, a racial

4

preference, and that MVP went along with it because it makes

5

money by assigning employees to employers, right?

6

theory?

7

MR. WILLIAMS:

That's the

That's the theory on the disparate

8

treatment, but the theory on the disparate impact is that by

9

using MVP as its recruiter/screener, where MVP is recruiting

10

and, you know, expending disproportionate amounts on

11

advertising in Spanish language media, the flaw in what

12

Mr. Hannafan just said is if an African-American does go in and

13

goes for one day to job X, then if they're available because

14

there's no other work at job X because that job ended but

15

there's assignments to Gold Standard Baking and they're

16

repeatedly passed over at Gold Standard Baking --

17
18
19

THE COURT:

But that goes back to the disparate

treatment theory, not the impact theory.
MR. WILLIAMS:

Well, if Gold Standard Baking says

20

their preference is to have people who aren't going to complain

21

about shortening of hours, who aren't going complain about

22

dangerous working conditions, who aren't going to complain

23

about things that are costly --

24

THE COURT:

25

So your claim against GSB cannot be a

disparate impact claim.

Would you agree with me?

It would

 71

1

have to be a disparate treatment theory.

2

MR. WILLIAMS:

Well, if Gold Standard Baking is

3

expressing a preference to MVP, then it's disparate treatment.

4

It's a disparate impact if their utilization of MVP is because

5

MVP is providing the lowest contract which results in a 99.67

6

percent Latino population.

7

people who were sent were African-American or not.

8

know they have don't have a typical Latino sur name.

9

believe that is the neutral policy, the use of MVP.

10

THE COURT:

11

MR. WILLIAMS:

You know, we don't know if the 14

Then I

But that's a policy of MVP, not GSB.
Well, to utilize MVP in order to

12

recruit their employees.

13

our clients did not go into MVP and say:

14

at Gold Standard Baking.

15

We just

I mean, Gold Standard Baking sent -I only want to work

They went to Gold Standard Baking and were told to go

16

to MVP.

Then when they went to MVP, they said:

17

by Gold Standard Baking to come here to get work.

18

We were told

They weren't seeking work only at Gold Standard

19

Baking.

The class here is not people who went in and said:

20

Oh, I want to work at Gold Standard Baking.

21

MVP's admission in their motion -- and this is where

22

it was misrepresented by Mr. Hannafan -- it's not that you can

23

get an assignment somewhere else and, therefore, you're a class

24

member for this.

25

requests.

If you go seek work, MVP doesn't accept

They will take your application or your

 72

1

pre-application, whatever.

They'll accept the information, and

2

then they'll assign you where they want to assign you.

3

where what jobs were available at Gold Standard Baking is going

4

to be relevant.

5

THE COURT:

6

at least according to Ms. Zilz.

7

That's

That doesn't seem to be their practice,

MR. WILLIAMS:

No.

According to their own motion,

8

Judge, that is the practice.

People can -- I mean, I thought

9

she said it again today, and maybe we can ask her to repeat it.

10

If someone comes in and says he wants to work at Company XYZ,

11

does MVP accommodate that response, or is their practice to not

12

accommodate that response?

13
14

THE COURT:
assignment available.

15
16

19

But anyway --

MR. WILLIAMS:

But MVP determines that.

I mean,

that's what they said they determine.

17
18

It sounds like only if there's an

THE COURT:

-- you'll get more from your 30(b)(6), I

suppose.
MR. HANNAFAN:

Mr. Williams also neglects to tell

20

Your Honor that the claim about his clients going to GSB, he

21

had initially claimed that GSB was directly discriminating

22

against them by, you know, not hiring them directly.

23

dropped that because apparently he's been convinced and learned

24

that GSB tells everyone that.

25

Latino or African-American or white.

He's

It doesn't matter if you're
If you want to apply

 73

1

there, it goes through MVP.

2

using MVP, somehow that's discrimination.

3

think that's going anywhere.

4

THE COURT:

So their claim is, you know, by
Certainly, I don't

Just out of curiosity, can you tell me,

5

Ms. Zilz, by talking with your client, the discrepancy, the

6

racial makeup of the temporary employee pool?

7

MS. ZILZ:

Your Honor, from what I understand from my

8

client, Cicero, Illinois, where our branch office is located,

9

is primarily Latino.

10

in is primarily Latino.

11
12

Therefore, the work force that they get

THE COURT:

But the population around GSB is

primarily and predominantly African-American.

13

MS. ZILZ:

No, Your Honor.

14

MR. HANNAFAN:

No, Your Honor.

It's predominantly

15

Hispanic.

So if they're showing up to GSB looking for a job

16

and they're told you've got to go to the Cicero office at MVP,

17

you've got a highly Hispanic population around GSB.

18

his theory, they're showing up looking for work and being told

19

to go to MVP.

20

going in, and then you've got a highly populated Hispanic area

21

where the Cicero office is located.

So taking

You're going to have a highly Hispanic group

22

THE COURT:

And you disagree.

23

MR. WILLIAMS:

Judge, the issue is:

Do you draw a

24

very tiny circle around their office, or do you draw a slightly

25

larger circle?

Mr. Lucas' house was within two miles of the

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1

city that has public transportation, roads, sidewalks, other

2

ways to get there.

3

agencies along that road that border the highly

4

African-American west side of Chicago and the highly Hispanic

5

areas on the southwest side of Chicago.

There's a whole strip of temporary staffing

6

THE COURT:

What do they say about statistics?

7

MR. HANNAFAN:

And this is one of three complaints,

8

identical complaints that Mr. Williams and his clients have

9

brought as well.

10
11

THE COURT:

They have a right to exercise their legal

rights.

12

MR. HANNAFAN:

I'm not saying that.

13

MR. WILLIAMS:

They sought work at MVP.

14

MR. HANNAFAN:

I'm not saying they don't.

15
16
17

It's just

kind of unusual all three of them are identical.
THE COURT:

And that's the theory of the defendants,

too, right, that they're professional plaintiffs?

18

MR. HANNAFAN:

19

THE COURT:

20

MR. WILLIAMS:

We'll find out.

Okay.
They go to one place to get work, and

21

they don't get work.

So they go to other places for work.

22

They've got a history.

23

for temporary staffing agencies.

24

get an assignment and accepted an assignment at a temporary

25

staffing agency, that doesn't mean that in the interim when

Theyre's a long history of them working
The fact that Mr. Lucas did

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1

there's sparse employment opportunities, it doesn't mean

2

there's never an assignment of an African-American, but that's

3

not the standard for whether there's discrimination or not.

4

THE COURT:

5

MR. HANNAFAN:

6

pay stubs.

Correct.
And as we saw earlier, they don't have

We don't have their employment applications.

7

MR. WILLIAMS:

You do have pay stubs.

8

MR. HANNAFAN:

They don't have tax returns, except

9

for a few years.

10

MR. WILLIAMS:

11

Mr. Lucas, if you've looked at it.

12

MR. HANNAFAN:

13

he worked for you, Mr. Williams.

14
15

THE COURT:
fine.

You have W-2s for Staffing Network for

We don't have Mr. Lucas' returns when

Okay, folks.

MR. WILLIAMS:

17

MS. VUCKO:

18

MS. ZILZ:

Thank you, Your Honor.

Thank you, Your Honor.
Thank you, Your Honor.

19

(Proceedings concluded.)

20

C

22
23
24
25

That's

Thank you.

16

21

That's enough.

E

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T

I

F

I

C

A

T

E

I, Patrick J. Mullen, do hereby certify that the
foregoing is a complete, true, and accurate transcript of the
proceedings had in the above-entitled case before the Honorable
YOUNG B. KIM, one of the magistrate judges of said court in
Chicago, Illinois, on April 6, 2014.
/s/ Patrick J. Mullen
__________________________
Official Court Reporter
United States District Court