Judicial Notice of Internet Evidence: Information on Government Websites Is Self-Authenticating under Rule 902(5) and Admissible under Rule 803(8) (Public Records Exception)
Rychorcewicz v. Welltec, Inc., 2018 U.S. Dist. LEXIS 123512 (S.D. Tex. June 22, 2018) (Report and Recommendation):
Pending before the court1 is Defendant Welltec, Inc.'s ("Defendant") Motion for Summary Judgment (Doc. 89) and Plaintiffs' Motion to Strike (Doc. 90). The court has considered the motions, the responses, the replies, all other relevant filings, and the applicable law. For the reasons set forth below, the court RECOMMENDS that Plaintiffs' motion to strike be DENIED and Defendant's motion for summary judgment be GRANTED.
I. Case Background
Plaintiff Korey Rychorcewicz ("Rychorcewicz") filed this action alleging that Defendant violated the Fair Labor Standards Act2 ("FLSA") by misclassifying him and other similarly situated field engineers as exempt employees and failing to pay overtime.3
A. Factual Background
Defendant, an international oil and gas [*2] company headquartered in Katy, Texas, created and provided well technologies and solutions, with the goal of helping its clients to "optimize their oil and gas production and increase reservoir drainage."4 Defendant's satellite offices were located in Midland, Texas; San Antonio, Texas; Minot, North Dakota; Houma, Louisiana; Cranberry Township, Pennsylvania; and Deadhorse, Alaska.5 Offices in Colorado and Fort Worth, Texas, closed in 2015, and the office in Bridgeville, Pennsylvania moved to Cranberry Township, Pennsylvania.6
1. Field Engineers
Field engineers were utilized at all of Defendant's operations within the United States7 to "provide on-site intervention services at [Defendant's] customers' well sites to ensure that their oil and gas wells are well maintained and stay in production."8 The duties of field engineers comprised of "rigging up and rigging down a Welltec tractor, which gets tools and equipment in and out of a deep well, operating oilfield machinery, and providing other troubleshooting, maintenance, and intervention services."9 There were four levels of field engineers, including: field engineer trainee, field engineer 2, field engineer, and senior field engineer. [*3] 10 Field engineers were assigned to specific satellite offices from which they primarily operated.11 However, a field engineer's primary base of operations could be moved permanently or temporarily depending on Defendant's needs.12
Field engineers drove Defendant's vehicles from the satellite offices to wellsites, sometimes attaching a trailer in order to transport "various tools and other oil field equipment that the Field Engineer [needed] to perform the assignment at the customer well site."13 Olivier Alferez ("Alferez"), an operations manager for Defendant, testified that "[e]very U.S.-based Field Engineer can expect to be called upon to drive interstate in a Welltec vehicle to a customer well site in the course of his duties."14 Field engineers were required to turn in monthly work reports to track their work, specifying the work performed and the location of the job sites.15 These monthly work reports show that Plaintiffs regularly traveled to other states in the course of their job duties as field engineers.16
2. Defendant's Fleet of Vehicles
Defendant is registered with the United States Department of Transportation ("DOT") as a motor carrier, registration [*4] number DOT #1546653, to carry oil field equipment, machinery, and large objects.17 In the course of their duties, Plaintiffs traveled interstate, and traveled in company vehicles, personal vehicles, vehicles rented from Enterprise, or by airplane.18
Defendant's fleet was made up of vehicles that largely consisted of those with a gross vehicle weight rating ("GVWR") of over 10,000 pounds.19
Per the vehicle inventory spreadsheets, Defendant's vehicles consisted of the following:20
Alferez testified that Defendant recorded the GVWR of its vehicles and worked "to homogenize its vehicle fleet with Ford F-350s (which all have a GVWR above 10,000 pounds)."21 Bill Beck ("Beck"), a field engineer, and Summers testified that they drove Ford F-350s during their employment with Defendant.22 Additionally, trailers were sometimes attached to vehicles for transportation of items, adding additional weight.23
3. Other Vehicles Driven by Plaintiffs
Plaintiffs contend that other, smaller vehicles were driven some of the time, and that some of the larger vehicles were modified by Defendant.
Plaintiff Antonio Alaniz testified that when he traveled to out-of-state [*6] sites as a field engineer, he drove vehicles, including Dodge Calibers, that were owned by Welltec.24 Plaintiff Stang Gappa ("Gappa") testified that he "drove quite a few rental cars throughout [his] employment," including a Nissan Cube, between Fort Collins, Colorado, and Wyoming on "numerous occasions."25 In addition to these smaller vehicles, Gappa also explained that some of the heavy duty trucks at satellite offices in Pennsylvania, Texas, and Colorado had their back seats removed in order to carry equipment.26 Plaintiff Kevin Hoffman drove a Dodge Caliber owned by the Fort Worth office from Midland to New Mexico for a job.27 Rychorcewicz recalled renting vehicles from Enterprise and other car rental companies, including a Ford F-250, a Jeep Wrangler, a Chevrolet 250, and a Chrysler 200.28 In his deposition, Plaintiff Alexander Henry Mueller ("Mueller") explained that the driver's logs were not very accurate and on multiple occasions he drove a Jeep Wrangler located at the San Antonio office.29 Mueller also stated that the San Antonio office had, at certain times, a small Chrysler car, a Dodge Ram 2500, a Chevrolet Silverado, and a Jeep Patriot.30 The Jeep Patriot was rented by Mueller, and [*7] Mueller also drove a Dodge 1500 when he was on-site in Colorado.31 Plaintiff Michael Summers drove his personal vehicle, a Honda Civic, to a well site at least one time.32
B. Procedural Background
Rychorcewicz filed this lawsuit on January 2, 2016, alleging that Defendant violated the FLSA.33 Rychorcewicz subsequently filed a motion to certify a class, requesting that the court conditionally certify a class of field engineers.34 On April 27, 2016, the court certified the following class: "All Field Engineers and Field Engineer Trainees employed by Welltec, Inc. at any time from April 27, 2013."35 Notice was allowed, and Defendant was ordered to turn over contact information for current and former employees who fell within the class definition.36 As a result, fifty-one additional field engineers (collectively, "Plaintiffs") opted into this lawsuit.37
On September 15, 2017, Defendant filed the pending motion for summary judgment, contending that Plaintiffs were properly classified as exempt to the FLSA under the Motor Carrier Act ("MCA").38 Plaintiffs separately filed a response and a motion to strike certain exhibits attached to Defendant's motion, and updated its [*8] response with supplemental exhibits.39 Defendant later filed two notices of new authority, bringing the court's attention to two recently decided cases bearing directly on this case: Encino Motorcars, LLC v. Navarro, U.S. , 138 S.Ct. 1134 (2018) and Carley v. Crest Pumping Techs., 890 F.3d 575 (5th Cir. 2018).40
II. Plaintiffs' Motion to Strike
Plaintiffs challenge some of Defendant's summary judgment exhibits on hearsay and authentication grounds.
A. Legal Standard
A party must support its factual positions on summary judgment by citing to particular evidence in the record. Fed. R. Civ. P. 56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant to object to exhibits that "cannot be presented in a form that would be admissible in evidence" under the Federal Rules of Evidence.
Only relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence has a "tendency to make a fact more or less probable than it would be without the evidence" and relates to a fact "of consequence in determining the action." Fed. R. Evid. 401. Affidavits or declarations supporting summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). The court may strike an affidavit that violates this rule. Akin v. Q-L Investments, Inc., 959 F.2d 521, 530 (5th Cir. 1992). Conclusory allegations, unsubstantiated assertions, improbable inferences, [*9] and speculation are not competent evidence. Roach v. Allstate Indem. Co., 476 F. App'x 778, 780 (5th Cir. 2012)(unpublished)(citing S.E.C. v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Hearsay is not admissible evidence. Fed. R. Evid. 802. Hearsay is an out-of-court statement that is offered for "the truth of the matter asserted in the statement." Fed. R. Evid. 801. Statements offered against an opposing party made "by the party in an individual or representative capacity" are not hearsay. Fed. R. Evid. 801(d)(2)(A). The Federal Rules of Evidence also list exceptions to the rule against hearsay. Fed. R. Evid. 803-804, 807.
For purposes of authentication, Federal Rule of Evidence 901(a) requires "evidence sufficient to support a finding that the item is what the proponent claims it is." Circumstantial evidence, such as the document itself and the circumstances surrounding its discovery, is sufficient for authentication. In re McLain, 516 F.3d 301, 308 (5th Cir. 2008). The Fifth Circuit "does not require conclusive proof of authenticity before allowing the admission of disputed evidence . . . It merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be." Id. (quoting United States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993)).
B. Business Records
Plaintiffs challenge exhibit 1-A, Defendant's vehicle inventory spreadsheets, on hearsay grounds. Plaintiffs assert that these records do not fall under the business records exception to the hearsay [*10] rule because the supporting affidavit of Olivier Alferez ("Alferez") does not properly authenticate the records and that David McQueen ("McQueen") should have provided the authentication. Plaintiffs also contend that the records are untrustworthy.
The business records exception to the hearsay rule reads as follows:
"The following are not excluded by the rule against hearsay .
(6) Records of a Regularly Conducted Activity. A record of an act, event condition, opinion or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by certification that complies with Rule 902(11) or (12) or with a statute permitted certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
For business records to be admissible under the [*11] 803(6) exception to the hearsay rule, "either the custodian of the business records or 'other qualified witness'" must provide authentication. U.S. Commodity Futures Trading Comm'n v. Dizona, 594 F.3d 408, 415 (5th Cir. 2010)(quoting United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008)). The Fifth Circuit has specifically stated that "[t]here is no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to its accuracy." Id. (quoting Brown, 553 F.3d at 792). Rather, "[a] qualified witness is one who can explain the record keeping system of the organization and vouch that the requirements of Rule 803(6) are met." Id. (quoting Brown, 553 F.3d at 792).
Alferez was the operations manager for Defendant beginning in October 2016.41 In his declaration, Alferez provides the foundation for exhibit 1-A. As operations manager, Alferez was in charge of oversight of Defendant's vehicle fleet, a role previously filled by McQueen, who created the records in this exhibit.42 Alferez stated that exhibit 1-A:
is a true and correct copy of the vehicles inventories created and maintained by Mr. McQueen. These were kept and maintained by [Defendant] in the regular course of its business . . . Mr. McQueen maintained these vehicle inventory spreadsheets in his office in [Defendant's] U.S. headquarters in Katy, Texas until the time of his retirement [*12] in June 2015.43
The court finds that Alferez is qualified to testify to the authenticity of these records and properly laid the foundation in his declaration. Additionally, attached to Defendant's response as exhibit A, Defendant provided a declaration from McQueen testifying to the basis of his knowledge and the process he utilized in creating the spreadsheets provided in exhibit 1-A.44 McQueen stated that he created these records in the regular course of his business.45 To any extent that Alferez's declaration did not adequately provide the foundation for these records, McQueen's declaration gives more then enough support to authenticate the accuracy of exhibit 1-A. Plaintiffs' objection is overruled.
Plaintiffs also assert that exhibit 1-A lacks trustworthiness because there are differences between the listed GVWR and online reports of the gross weight of these vehicles. Plaintiffs looked to http://bigrigvin.com/our-reports/ for gross weights and contend that these numbers do not match the numbers provided by McQueen in exhibit 1-A, making it untrustworthy. Defendant asserts that the record is accurate and contest Plaintiffs' reliance on the bigrigvin.com [*13] data; Defendant also argues that the accuracy of the records bears on their weight, not their admissibility, citing U.S. v. Smith, 804 F.3d 724, 729 (5th Cir. 2015).
In Smith, the Fifth Circuit stated that it had "explained that the district court 'has great latitude on the issue of trustworthiness'" of business records, with the burden resting on the party challenging the records. 804 F.3d at 729 (quoting United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990)). The witness providing foundation for the admissibility of the business record does not have to have personal knowledge that the record is accurate. Id. Explaining further, the Fifth Circuit stated that "'courts should not focus on questions regarding the accuracy' of a record in making the trustworthiness determination required by Rule 803, because the jury is responsible for assessing credibility and deciding what weight to afford admitted evidence." Id. (quoting Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1307 (5th Cir. 1991)). Therefore, the Fifth Circuit has "repeatedly recognized that a challenge to the accuracy or completeness of a record goes to its weight, not its admissibility." Id. at 730 (citing cases).
Plaintiffs challenge the accuracy of the weights provided in Defendant's records, contending that because they do not match the weights found on a website, that they are uuntrustworthy. Plaintiffs point to the handwriting [*14] on the records as an indication that the records are untrustworthy. However, as Defendant points out, these challenges go to the accuracy of the records, not their admissibility. What evidentiary weight should be assigned to a document is a question for the jury to decide, not the court. Therefore, Plaintiffs' objection as to the trustworthiness of Exhibit 1-A is overruled.
To the extent that Plaintiffs challenge the foundation of the GVWR data, it is supported by McQueen's affidavit. Plaintiffs state that "it is not apparent from the record how this chart was filled in."46 In McQueen's affidavit, he explains that, in creating the spreadsheets, he would "document the . . . GVWR" and he "prepared [the spreadsheets] based on [his] own personal inspection of the vehicle or information provided to me by Field Service Managers at [Defendant's] various bases."47 On the charts, it states that "[t]he GVWR Information is found on the driver's door/door jamb along with tire pressure data."48 Additionally, Defendant has since provided pictures from door jambs demonstrating the GVWR of certain vehicles. This provides the foundation for the GVWR data contained in exhibit 1-A.
C. National Highway [*15] Traffic Safety Administration Records
Plaintiffs argue that Exhibit 17 to Defendant's motion, the National Highway Traffic Safety Administration ("NHTSA") records, should be stricken as they are not properly authenticated and do not comport with the public records exception to the hearsay rule. Defendant cites to Federal Rule of Evidence 902(5) to support its argument that this exhibit is self-authenticating, as it is a printout from a government website and also contends that the records fall under the public records exception of the hearsay rule, Federal Rule of Evidence 803(8).
Plaintiffs cite St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, No. 8:06-CV-223-T-MSS, 2006 WL 1320242, at *1 (M.D. Fla. May 12, 2006)(unpublished), for the proposition that in order to authenticate printouts from a website, a party must provide "some statement or affidavit from someone with knowledge [of the website] . . . for example [a] web master or someone else with personal knowledge would be sufficient." Plaintiffs also contend that this court takes "a naturally suspicious view of evidence procured from the Internet," and cite St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp.2d 773, 775 (S.D. Tex. 1999), in support of this proposition.
Federal Rule of Evidence 902(5) states: "The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity to be admitted [*16] . . . (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority." Fed. R. Evid. 902(5).
It is well-settled that information found on government websites is self-authenticating under this rule. See Nat'l Urban League, Inc. v. Urban League of Greater Dallas & N. Cent. Tex., Inc., CIVIL ACTION NO. 3:15-CV-3617-B, 2017 WL 4351301, at *6 (N.D. Tex. Sept. 29, 2017)(slip op.)("Printouts from government web sites are self-authenticating under Federal Rule of Evidence 902(5)."); Brown v. JNH Invs., Inc., CIVIL ACTION NO. 4:16-CV-00675-ALM-CAN, 2017 WL 3205716, at *2 (E.D. Tex. July 7, 2017)(slip op.)("Further, government websites in particular '[are] self authenticating under Rule 902(5).'"); EEOC v. United Bible Fellowship Ministries, Inc., Civil Action No. 4:13-CV-2871, 2015 WL 12777363, at *4 (S.D. Tex. Mar. 25, 2015)(slip op.)(citing Rule 902(5) in support of the finding that a website published by a governmental authority is self-authenticating); Riverkeeper v. Taylor Energy Co., LLC, 113 F. Supp.3d 870, 881 n.52 (E.D. La. 2015)("[f]ederal courts consider records from government websites to be self-authenticating under Rule 902(5).").
The cases cited by Plaintiffs do not address the real issue of whether printouts from a government website need additional authentication or may be self-authenticated through its web domain name. Defendant's authority clearly supports the proposition that printouts from government websites are self-authenticating. The court agrees [*17] and holds that exhibit 17 needs no further authentication under Rule 902(5).
2. Public Records Exception
Plaintiffs also argue for exhibit 17's exclusion under the hearsay rule. Defendant contends that this exhibit falls under the public records exception. The court agrees. District courts in the Fifth Circuit have regularly found that printouts from government websites come under the public records exception to the hearsay rule, Federal Rule of Evidence 803(8). See, e.g., Nat'l Urban League, 2017 WL 4351301, at *6; Johnson v. United Healthcare of Tex., Inc., 167 F. Supp.3d 825, 835 (W.D. Tex. 2016); Riverkeeper, 113 F. Supp.3d at 881 n.52; Kew v. Bank of Am., N.A., No. H-11-2824, 2012 WL 1414978, at *3 n.4 (S.D. Tex. Apr. 23, 2012)(unpublished).
In support of their argument, Plaintiffs cite Smith v. Isuzu Motors, Ltd., 137 F.3d 859 (5th Cir. 1998). In that case, the evidence in dispute was not a printout from a government website; rather, the records the court found to be inadmissible were safety memoranda drafted by employees of the NHTSA. Smith is clearly distinguishable, and the court finds the reasoning outlined in National Urban League, Johnson, Riverkeeper, and Kew to be persuasive. Therefore, Plaintiffs' objection that exhibit 17 should be excluded as hearsay is overruled.
1 This case was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. See Doc. 92, Ord. Dated Oct. 6, 2017.
3 See Doc. 1, Pl.'s Compl.
4 Doc. 89-2, Ex. 1 to Def.'s Mot. for Summ. J., Decl. of Alferez p. 2.
5 See id.
6 See id.
7 Field engineers were employed to help with the entire United States operation except the office in Katy, Texas. See id.
10 See id.
11 See id. p. 3.
12 See id.
15 See id.
16 See Doc. 113-5, Ex. 32 to Def.'s Mot. for Summ. J., Interstate Travel of Pls. Referenced in Pls.' Opposition Briefs pp. 1-13.
17 See id. p. 2; Doc. 89-8, Ex. 7 to Def.'s Mot. for Summ. J., Def.'s Motor Carrier Registration p. 1.
18 See Doc. 89-5, Ex. 4 to Def.'s Mot. for Summ. J., Dep. of Pl. Michael P. Summers pp. 94-100 (discussing out of state travel); Doc. 89-9, Ex. 8 to Def.'s Mot. for Summ. J., Pl. Antoni[o] Alaniz, Jr.'s Answers & Objs. to Def.'s 1st Interrogs. & Reqs. for Prod. p. 10 (Plaintiff undertook a "[l]ot of driving to New Mexico, Oklahoma, Lousianna [sic], and Arkansas . . . I never used a personal vehicle. We always used a company vehicle or Welltec would rent us a vehicle from Enterprise."); Doc. 89-10, Ex. 9 to Def.'s Mot. for Summ. J., Pl. Stang Gappa's Answers & Objs. to Def.'s 1st Interrogs. & Reqs. for Prod. p. 9 ("I have traveled to North Dakota, Colorado, Wyoming, South Dakota, Montana, Texas, Pennsylvania, New York, West Virginia, Texas, Oklahoma, New Mexico. I traveled by company pickup truck and airplane. I traveled to these locations numerous times throughout my employment."); Doc. 89-11, Ex. 10 to Def.'s Mot. for Summ. J., Pl. Kevin Hoffman's Answers & Objs. to Def.'s 1st Interrogs. & Reqs. for Prod. pp. 9-10 ("Sites I have worked in include, Pennsylvania, Ohio, West Virginia, Louisiana, Michigan, Colorado, North Dakota, Montana, New Mexico, Texas, Oklahoma, Alaska . . . I traveled by company truck for all jobs from the Welltec Base. I mainly traveled by airport to the states themselves . . . I never traveled by personal vehicle. I was always in a company provided vehicle."); Doc. 89-12, Ex. 11 to Def.'s Mot. for Summ. J., Pl. Alex Mueller's Answers & Obj. to Def.'s 1st Interrogs. & Reqs. for Prod. p. 9 ("I have been to Oklahoma, New Mexico, Colorado & Louisiana . . . I have driven and flown, I have used a company vehicle most of the time but have used a personal vehicle as well."); Doc. 89-13, Ex. 12 to Def.'s Mot. for Summ. J., Pl. Rychorcewicz's Answers & Objs. to Def.'s 1st Interrogs. & Reqs. for Prod. p. 8 ("Mr. Rychorcewicz has worked in Texas, Oklahoma and New Mexico and has driven a company pick up truck."); Doc. 89-14, Ex. 13 to Def.'s Mot. for Summ. J., Dep. of Pl. Rychorcewicz pp. 41-47 (discussing driving and flying to bases in other states); Doc. 89-15, Ex. 14 to Def.'s Mot. for Summ. J., Pl. Ivan Virruet's Answers & Objs. to Def.'s 1st Interrogs. & Reqs. for Prod. p. 9 ("I drove company pickup trucks in Alaska, Ohio, West Virginia, Louisanna [sic], north Dakota [sic] south Dakota, and Wyoming.").
19 See Doc. 89-2, Ex. 1 to Def.'s Mot. for Summ. J., Decl. of Alferez p. 4; Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J., Welltec Vehicle Inventory Spreadsheets; Doc. 100-3, Ex. B to Def.'s Resp. to Pls.' Mot. to Strike, Suppl. Decl. of Alferez pp. 2-6.
20 See Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J., July 2013 Welltec Vehicle Inventory Spreadsheets pp. 1-5; Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J., June 2015 Welltec Vehicle Inventory Spreadsheet pp. 1-4; Doc. 89-2, Ex. 1-C to Def.'s Mot. for Summ. J., March 2017 Welltec Vehicle Inventory Spreadsheet pp. 1-2. The vehicle inventory spreadsheets were updated every few months, but the court has not included every single update in this chart. See Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J, Welltec Vehicle Inventory Spreadsheets.
21 Doc. 89-2, Ex. 1 to Def.'s Mot. for Summ. J., Decl. of Alferez p. 4.
22 See Doc. 89-16, Ex. 15 to Def.'s Mot. for Summ. J., Decl. of Beck p. 4 ("I drove an F-350 truck with no attachments every week.").
23 See Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J., Welltec Vehicle Inventory Spreadsheets; Doc. 89-6, Ex. 5 to Def.'s Mot. for Summ. J., Dep. of Alaniz pp. 32-33; Doc. 89-7, Ex. 6 to Def.'s Mot. for Summ. J., Dep. of Virruet p. 51-53, 55, 71-72, 91-92, 96; Doc. 89-14, Ex. 13 to Def.'s Mot. for Summ. J., Dep. of Rychorcewicz pp. 46-48, 128.
24 See Doc. 95-2, Ex. 1 to Pl.'s Resp., Dep. of Pl. Antonio Alaniz pp. 31-32.
25 Doc. 95-3, Ex. 2 to Pl.'s Resp., Dep. of Pl. Gappa pp. 176-77.
26 See id. pp. 204-06.
27 See Doc. 95-4, Ex. 3 to Pl.'s Resp., Dep. of Pl. Kevin Hoffman pp. 209-10.
28 See Doc. 95-5, Ex. 4 to Pl.'s Resp., Dep. of Pl. Rychorcewicz p. 96.
29 Doc. 95-6, Ex. 5 to Pl.'s Resp., Dep. of Pl. Mueller pp. 99-100.
30 See id. pp. 101, 104, 108, 110.
31 See id. pp. 110, 116.
32 See Doc. 95-7, Ex. 6 to Pl.'s Resp., Dep. of Pl. Michael Summers p. 140.
33 See Doc. 1, Pl.'s Compl.
34 See Doc. 21, Pl.'s Mot. for Conditional Certification.
35 Doc. 26, Ord. Dated Apr. 27, 2016 p. 1.
36 See id.
37 See Doc. 89, Def.'s Mot. for Summ. J. p. 2.
38 See id. p. 1.
39 See Doc. 90, Pls.' Mot. to Strike; Doc. 95, Pls.' Resp. to Def.'s Summ. J.
40 See Doc. 114, Def.'s Not. of Suppl. Authority in Support of its Mot. for Summ. J.
41 See Doc. 89-2, Ex. 1 to Defs.' Mot. for Summ J., Decl. of Alferez p. 1.
42 See id. p. 5.
43 Id. pp. 4-5.
44 See Doc. 100-2, Ex. A to Def.'s Resp. to Pls.' Mot. to Strike, Decl. of McQueen pp. 1-3.
45 See id. p. 3.
46 See Doc. 90, Pls.' Mot. to Strike p. 7.
47 Doc. 100-2, Ex. A to Def.'s Resp. to Pls.' Mot. to Strike, Decl. of McQueen pp. 2-3.
48 See, e.g., Doc. 89-2, Ex. 1-A to Def.'s Mot. for Summ. J., Welltec Vehicle Inventory Spreadsheets p. 6.
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