Litvinova v. The City and County of San Francisco

Background

The case is a collective action brought on behalf of “dual status” nurses who work for the City as staff nurses and also volunteer for per diem shifts. The plaintiffs claim that the City violated the Fair Labor Standards Act (FLSA) by failing to pay overtime when their combined hours exceeded 40 in a week. The City contends that the nurses are salaried professionals exempt from the FLSA’s overtime requirements.

The opinion explains that, in an earlier related proceeding, the Ninth Circuit held that using an hourly rate did not by itself deprive the nurses of salaried status. It sent the matter back for analysis of regulations governing public entities, including whether the City deprived nurses of the opportunity to work regular shifts or whether unpaid leave fit within those regulations.

Discovery violations

After the Ninth Circuit’s decision, the City served interrogatories, document requests, and deposition notices for four plaintiffs. The court found that Litvinova’s counsel made meritless objections to some interrogatories, failed to respond to other discovery, violated the discovery deadline, and did not comply with the court’s May 13, 2025 order requiring discovery responses and the production of plaintiffs for deposition. The court had extended the deadline to July 14, 2025 and warned that further delays could result in sanctions.

The court found that Litvinova still had not provided written discovery responses, produced only one of the four plaintiffs noticed for deposition, and failed to serve an expert report by the July 31, 2025 deadline. The court also discussed counsel’s claimed personal and medical difficulties, including a foot injury, but found that his overall pattern of conduct showed willfulness, bad faith, and flagrant disregard of court orders. Counsel appeared remotely at the August 28, 2025 hearing.

Rule 37 sanctions

Rule 37 permits sanctions when a party fails to obey discovery orders. The court concluded that the relevant factors supported sanctions, including the need for an efficient resolution, docket management, prejudice to the City, and the lack of an effective lesser sanction. It also found that the requested sanctions were reasonably related to the discovery that had not been provided.

For the identified interrogatories and related document requests, the court established that the plaintiffs were unaware of facts, documents, or witnesses supporting claims that:

- City policies or the nurses’ employment agreement violated the FLSA salary-basis test; - the City sent nurses home or denied them regularly scheduled shifts; - nurses were denied regular shifts by particular supervisors or managers; - 72 instances of missing data showed violations of the applicable FLSA regulation; - the City denied nurses regular shifts under specified provisions of the nurses’ employment agreement; or - the City used a “7(j)” work schedule.

The court prohibited the plaintiffs from making those claims or introducing testimony, facts, or documents involving the information sought by the interrogatories. The same restrictions applied to related document requests.

The court also limited the plaintiffs to evidence from the deposition testimony of the plaintiffs who appeared for deposition: Litvinova, Grace Bondoc, Santiago Hayo, Ryan Hood, Romulo Adiao, Jacqueline Savage, and Virginia Bryant.

Dismissal of plaintiffs who were not deposed

The court found that three plaintiffs noticed for deposition—De Leon, Rapada, and Madamba—did not appear. It further found that the plaintiffs’ failure to provide written discovery deprived the City of information needed to defend against allegations involving other members of the plaintiff group.

Under Rule 37, the court dismissed from the case the plaintiffs who failed to appear for deposition and the plaintiffs who were not deposed and for whom the City had no information because of the discovery failures. Except for plaintiffs who were deposed, those plaintiffs were dismissed with prejudice. If a plaintiff had opted into both this case and the related Silloway case, the dismissal applied only to Litvinova, not Silloway.

Fees and costs

The court held that the City was entitled to payment by Litvinova and/or Litvinova’s counsel of the attorney’s fees and costs incurred in enforcing its discovery rights and bringing the sanctions motion. The City was ordered to submit an accounting of its hours and expenses. The opinion did not set the amount of the award.

Other rulings noted in the order

The court stated that the order had no effect on the related Silloway case. In a footnote, it also stated that the Silloway plaintiffs’ motion to intervene was granted and that a motion for an extension of time to disclose tardy witness reports was granted, allowing the expert report to be served by September 12, 2025.