Full opinion text
MEMORANDUM OPINION AND ORDER VIRGINIA EMERSON HOPKINS, District Judge. Before the court are (1) the Motion of the Defendant, Tyson Foods, Inc. (hereinafter “Defendant”), for Partial Summary Judgment (doc. 149); (2) the Motion of the Plaintiff, Elaine Chao, Secretary of Labor, United States Department of Labor (hereinafter “Plaintiff’) (doc. 151); (3) the Motion of Defendant to Strike the Declarations of Plaintiffs Witnesses, Mary Ziegler and Michael Murray (doc. 184); and (4) the Motions of Plaintiff to Strike various evidentiary submissions of Defendant, incorporated into her submissions in support of her Motion for Partial Summary Judgment. For the reasons explained herein, the motions are due to be DENIED, in part, and GRANTED, in part. I. FACTUAL AND PROCEDURAL HISTORY Plaintiff brings this action, asserting that Defendant has violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., for failing to compensate its employees for hours worked in excess of 40 per week, (doc. 1, Part VI). Specifically, Plaintiff seeks overtime compensation for Defendant’s employees at its Blountsville, Alabama plant for time spent donning, doffing, and washing their protective outer clothing at the beginning and end of each work shift, and for certain rest breaks scheduled during each eight-hour shift, (doc. 1, ¶2^)). Further, Plaintiff seeks an injunction requiring Defendant to compensate its employees at all of its plants nationwide for their time spent donning, doffing, and washing and for their second, uncompensated daily “meal break.” (doc. 1, ¶2®). Plaintiff initiated this action by filing her Complaint on May 9, 2002. (doc. 1). After various pleadings were filed and discovery conducted, Defendant filed its pending Motion for Partial Summary Judgment on July 23, 2007. (doc. 149). Plaintiff filed her pending Motion for Partial Summary Judgment, including various motions to strike, also on July 23, 2007. (doc. 151). Defendant filed its Motion to Strike on August 24, 2007. (doc. 184). II. STANDARD OF REVIEW Under Fed.R.Civ.P. 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met its burden, Rule 56(c) requires the nonmoving party to go beyond the pleadings and, by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324,106 S.Ct. at 2553. The substantive law will identify which facts are material and which are irrelevant. Chapman, 229 F.3d at 1023; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman, 229 F.3d at 1023; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Chapman, 229 F.3d at 1023. If the evidence presented by the nonmoving party to rebut the moving party’s evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The method used by the party moving for summary judgment to discharge its initial burden depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17, citing U.S. v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir.1991) (en banc). If the moving party bears the burden of proof at trial, then it can meet its burden on summary judgment only by presenting positive evidence that demonstrates the absence of a genuine issue of material fact; i.e., facts that would entitle it to a directed verdict if not controverted at trial. Fitzpatrick, 2 F.3d at 1115. Once the moving party makes such a showing, the burden shifts to the nonmoving party to produce significant, probative evidence demonstrating a genuine issue for trial. If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the nonmoving party will be unable to prove its case at trial. Once the moving party satisfies its burden using this method, the nonmoving party must respond with positive evidence sufficient to resist a motion for a directed verdict at trial. The second method by which the moving party who does not bear the burden of proof at trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of any evidence in the record in support of a judgment for the nonmoving party on the issue in question. This method requires more than a simple statement that the nonmoving party cannot meet its burden at trial but does not require evidence negating the nonmov-ant’s claim; it simply requires the movant to point out to the court that there is an absence of evidence to support the non-moving party’s case. Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial burden by using this second method, the nonmoving party may either point to evidence in the court record, overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the nonmoving party may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. However, when responding, the nonmovant can no longer rest on mere allegations, but must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351(1992). III. ANALYSIS A. Defendant’s Motion for Partial Summary Judgment Defendant seeks summary judgment as to (1) Plaintiffs claim that a second, 30-minute rest break during an eight-hour shift is compensable in its entirety, and (2) Plaintiffs claim that Defendant’s employees should be compensated for pre- and post-shift donning, doffing, and washing. 1. Second Meal Period Claim Defendant argues that it is entitled to summary judgment as to Plaintiffs second meal period claim, because the meal period constitutes a “bona fide meal period,” and is therefore not compensable under 29 C.F.R. § 785.19. 29 C.F.R. § 785.19 provides, in relevant part, that (a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. The standard for determining whether a meal period is a “bona fide meal period” in the Eleventh Circuit is set forth in Kohlheim v. Glynn County, Ga., 915 F.2d 1473,1477 (11th Cir.1990). To satisfy this standard, the employer must establish that an employee is “completely relieved from duty.” To be completely relieved from duty, employees cannot be subject to “significant affirmative responsibilities” during the meal period. 915 F.2d at 1477. The “essential consideration” is whether the employees “are in fact relieved from work for the purpose of eating a regularly scheduled meal.” Id. The court instructed in Kohlheim that “what matters in meal period cases is whether the employees are subject to real limitations on their personal freedom which inure to the benefit of their employer.” 915 F.2d at 1477 n. 19, citing Wahl v. City of Wichita, 725 F.Supp. 1133, 1138-44 (D.Kan.1989) (emphasis added).' Applying the completely relieved from duty standard as set forth in Kohlheim, the court must examine whether the second rest break is allotted “for the purpose of eating a regularly scheduled meal,” whether Defendant’s employees retain “significant affirmative responsibilities” during the meal period, and whether the employees are subject to “real limitations on their freedom” during the break which inure to Defendant’s benefit. See Kohl-heim, 915 F.2d at 1477. Defendant argues that the first element of this test is satisfied, because it provides both breaks for the purpose of eating a regularly scheduled meal. Plaintiff disputes this argument, pointing out that the two breaks are scheduled only two and a half to three hours apart, and therefore, must be provided for some purpose other than to eat a regularly scheduled meal. The only authority Plaintiff cites in favor of her position is Brock v. Claridge Hotel & Casino, 664 F.Supp. 899, 907-08 (D.N.J.1986). Plaintiff apparently relies on Clar-idge Hotel for the proposition that numerous rest breaks during a work shift are unlikely to be offered for the purpose of eating regularly scheduled meals, but are more likely for the employer’s benefit. In Clañdge Hotel, the district court found that several 20-45-minute breaks throughout an eight-hour shift could not have been scheduled “for the purpose of eating a regularly scheduled meal,” because, inter alia, the breaks occurred only an hour and a half to two hours apart. Id. The court explained that “not all of [the] breaks can logically be considered meal periods,” because “no one would eat so many meals in a day.” Id. Clañdge Hotel is distinguishable from this action in that, here, only two thirty-minute breaks are in question, rather than several breaks throughout an entire shift. Furthermore, the employees in Clañdge Hotel were clearly required to take the several breaks for purposes other than eating regularly-scheduled meals. There, the employees’ primary duty was to supervise gambling activities on a casino floor, work which the court described as “requiring] intense concentration,” necessitating “frequent breaks” to maintain the employees’ focus. 664 F.Supp. at 907. The court concluded that “[t]he primary purpose of these breaks was to maintain worker productivity” and to “increase the workers’ efficiency” while on duty, not to provide “regularly scheduled meals.” Id. In contrast to Clañdge Hotel, the court finds no evidence.that a second rest break was necessary to allow Defendant’s employees to increase their efficiency on the production floor. Nor does Plaintiff argue that the employees’ primary duties required such “intense concentration” as to demand a second rest break. Finally, Plaintiff avers that Defendant provides the second rest break so that it may perform a wash-down of its production floor and equipment while the employees are away from their workstations. However, the court notes that USDA regulations do not require a wash-down twice during an eight-hour shift. That Defendant chooses to perform this task more often than it is required to do by law does not indicate that it offers the second rest break for that purpose. Finally, Plaintiff argues that, while the first of the two rest breaks constitutes a non-compensable meal period, the second is compensable, because it does not “meet the criteria” for a bona fide meal period. However, other than their temporal proximity, Plaintiff offers no basis for the court to distinguish the first meal period from the second. The court finds no basis to conclude that the second rest break is offered for any purpose other than to eat a meal. Under the circumstances of this case, the court will not conclude, as a matter of law, that a second rest break at least two and a half hours after the first is not for the purpose of eating a regularly scheduled meal. Defendant has established that the second rest break is provided for the purpose of eating a regularly scheduled meal. Therefore, the first element of the completely relieved from duty standard is satisfied. As to whether Defendant’s employees retain “significant affirmative responsibilities” during their second rest break, the evidence of record indicates they do not. The only “affirmative responsibilities” the employees are required to perform during either rest break is to doff their protective outerwear at the beginning of the meal period, wash and sanitize their equipment, then don the equipment again at the end of the break. The Eleventh Circuit appears to require a higher level of responsibility during a rest break before finding that this element is satisfied. In Kohlheim, the court found that firefighters retained “significant affirmative responsibilities” during their meal periods, because they were expected to remain at their work stations, subject to emergency calls, while they ate their meals. 915 F.2d at 1477. As the Bridges court noted, such duties constitute “the bulk of a fireman’s job.” Bridges, 19 F.Supp.2d at 1379. Similar to the court’s observation in Bridges, however, “a plant worker’s job is to work at their station.” Id. (emphasis in original). During the second meal period at issue here, the employees are not suffered to work at their stations, or perform any other “significant affirmative responsibilities” which are even remotely analogous to their on-duty tasks. Moreover, Plaintiff offers neither argument nor authority for the proposition that donning, doffing, and washing protective outer gear at the beginning and end of a meal period constitutes “significant affirmative responsibilities” compared to the employees’ productive work while on duty. Rather, Plaintiff ignores the completely relieved from duty standard altogether, and offers no analysis of this aspect of her claim. The court finds that the second element of the completely relieved from duty standard is also satisfied. As explained supra, the Eleventh Circuit has instructed that “what matters in meal period cases is whether the employees are subject to real limitations on their personal freedom which inure to the benefit of their employer.” Kohlheim, 915 F.2d at 1477 n. 19. In Kohlheim, the firefighters were subject to the same or similar working conditions during their breaks as during the rest of their shift. Id. at 1477. This constituted a “real limitation” on their personal freedom from which their employer specifically benefit-ted, in that the employer retained an “available pool of competent firefighters” for “immediate response” in the event of an emergency. Kohlheim, 915 F.2d at 1477. No such limitations are present here. Plaintiff does not assert that the employees are on call to respond to any emergency during their second rest break, and concedes that they are free to leave the plant to perform personal errands, eat at local restaurants, or go home. While Plaintiff argues that Defendant’s Blounts-ville plant is too remote for its employees to truly benefit from any surrounding amenities, the Eleventh Circuit has rejected this argument as offering any justification for rendering a meal period compen-sable under the FLSA. See Avery, 24 F.3d at 1347 n. 8. Short of donning, doffing, and washing their protective gear, Defendant’s employees are free to spend their meal periods as they wish. The employees are “completely relieved from duty” as that standard is applied in this circuit, thereby satisfying the requirements of a “bona fide meal period” under § 785.19. On this basis, Defendant’s Motion for Partial Summary Judgment is due to be GRANTED as to this claim. 2. Pre- and Post-Shift Donning, Doffing, and Washing Claims Defendant argues that it is entitled to summary judgment as to Plaintiffs pre-and post-shift donning, doffing, and washing claims because the activities are excluded from compensability under the Portal-to-Portal Act, 29 U.S.C. § 254(a)(2). Specifically, Defendant avers that the activities are not compensable as a matter of law, because they are preliminary and postliminary to its employees’ principal work activities, and are not otherwise compensable as “integral and indispensable” to any principal activity. While Plaintiff does not dispute that the pre- and post-shift activities are preliminary and postliminary duties, she argues that they are compensable as integral and indispensable to the employees’ principal work activities. The Supreme Court established the “integral and indispensable” doctrine in Steiner v. Mitchell, in which the Court addressed pre- and post-shift donning, doffing, and showering claims by battery plant workers. Steiner, 350 U.S. at 248, 76 S.Ct. at 331. The Court concluded that, due to the hazardous conditions in which the employees worked, the donning, doffing, and showering at issue were integral and indispensable to their ability to perform their principal work activities inside the plant. 350 U.S. at 252-53, 76 S.Ct. at 333-34. The former Fifth Circuit applied the “integral and indispensable” doctrine to electricians’ claims for their pre-shift duties in Dunlop v. City Elec., Inc., 527 F.2d 394, 399 (5th Cir.1976). In Dunlop, the plaintiffs sought compensation for filling out paperwork, unloading refuse from their work trucks, and checking their job locations prior to the beginning of their compensable work shift. 527 F.2d at 397. The court instructed that the following factors are relevant to determine whether an activity is integral and indispensable: (1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his duties; and (3) whether the activity primarily benefits the employer. 527 F.2d at 401. The court concluded that these factors were satisfied in Dunlop, and that the electricians’ pre-shift work duties constituted “principal activities” for which they must be compensated. Id. More recently, the Ninth Circuit applied a similar analysis in a case closely on point with the present action. See Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir.2003). The court there concluded that the donning, doffing, and washing of protective outer gear by employees at a meat processing plant were integral and indispensable to employees’ principal activity of processing meat. 339 F.3d at 902-03. The court found specifically that (1) the activities were required by the employer, USDA and OSHA regulations, and by the nature of the work; and (2) the employer benefit-ted from the activities because they enabled the employer to comply with government regulations and to prevent injury to its employees and contamination of its product. Alvarez, 339 F.3d at 903. Finally, because the duties were mandatory, the court found them necessary to the employees’ principal work activity. Id. This analysis and this conclusion were not specifically addressed, disturbed, or endorsed by the Supreme Court; however, the Court implicitly relied on the Ninth Circuit’s “integral and indispensable” determination in concluding that any walking time that occurs after pre-shift donning and doffing is also compensable. IBP, Inc. v. Alvarez, 546 U.S. 21, 33, 37, 126 S.Ct. 514, 524, 525, 163 L.Ed.2d 288 (2005). Therefore, while the Ninth Circuit’s decision in Alvarez is not binding upon this court, Alvarez appears to be the most relevant authority in determining whether the pre- and post-shift donning, doffing, and washing activities here are “integral and indispensable” to principal work activities. Contrary authority, however, also exists as to how Steiner v. Mitchell may be applied to determine whether an activity is integral and indispensable. In a post-Ai-varez decision, the Second Circuit applied the integral and indispensable doctrine to claims asserted by employees at a nuclear power plant, who were required to don and doff protective gear and complete certain security-related procedures prior to beginning their work shifts. Gorman v. Consolidated Edison Corp., 488 F.3d 586, 589 (2nd Cir.2007). Contrary to the Ninth Circuit in Alvarez, the Second Circuit applied Steiner v. Mitchell narrowly, concluding that the integral and indispensable doctrine was intended to apply only in eases where an activity is necessary to protect employees from a lethal environment and thereby enable them to perform their principal work activities. Gorman, 488 F.3d at 593. Gorman, however, is less on point with the present action than Alvarez, as the Second Circuit there did not address donning and doffing claims in a meat or poultry processing plant, nor did it consider factors similar to Dunlop’s three-part analysis. Therefore, while the Second Circuit espouses a narrow application of Steiner, binding, former Fifth Circuit precedent persuades the court that the Eleventh Circuit would more likely agree with the position of the Ninth Circuit as expressed in Alvarez. a. Required items In the present case, some of the employees’ protective outerwear is required by Defendant, while some is optional. Applying Dunlop’s three-part analysis, the first element is readily satisfied as to the required items at issue. As to the second element, Defendant concedes that the donning, doffing, and washing of required items is “technically necessary.” Therefore, as to required items, the primary remaining issue is whether Defendant “primarily benefits” from such activities. This element is addressed infra. b. Optional Items Plaintiff avers that even the optional outerwear satisfies the first element of the integral and indispensable analysis, as such gear is required “by the nature of the work,” due to the cold, wet, messy, and unsanitary environment inside the plant. Defendant responds that this description of its Blountsville plant is “exaggerated,” as the plant is “no more risky to employees than handling raw chicken when preparing a meal at home.” (Defi’s Reply Br. pg. 17). In Bonilla, the Eleventh Circuit offered no instruction as to whether the “nature of the work” may render a particular duty integral and indispensable. Rather, the court there focused on whether the employer requires the performance of a duty. 487 F.3d at 1344. Clearly, Defendant does not require its employees to wear items which are optional. Therefore, these items fail to satisfy the first element of the integral and indispensable analysis. As to the second element, Defendant argues that many employees choose not to wear optional items, thereby demonstrating that such items are not necessary to the performance of the employees’ work. Plaintiff offers very little, if any, response to this argument. Therefore, with no basis to conclude that optional items are necessary, this element is also unsatisfied. In summary, as to required items, the first two elements of the integral and indispensable analysis are satisfied. As to optional items, neither element is satisfied. c. Primary benefit With regard to the third element, Plaintiff avers that Defendant primarily benefits from the donning, doffing, and washing of both required and optional items because the activities enable Defendant to comply with (1) government regulations, and (2) its own standard of sanitation, by preventing the contamination of its product and injury or illness to its employees. Defendant counters that it does not primarily benefit from these activities, because they are not part of the “productive work” in which its employees are engaged, i.e., poultry processing. Rather, Defendant points out that certain items, such as aprons and gloves, are in some cases provided solely for the employees’ benefit. (Casey Dep. pg. 162). According to Defendant, the court may not presume that, simply because it requires the duties at issue, it primarily benefits therefrom. Plaintiff responds, however, that this element is satisfied, as the relevant standard is not whether Defendant primarily benefits from the performance of a duty, but whether Defendant derives any benefit therefrom. See Dunlop, 527 F.2d at 398 (“[d]ecisions construing the Portal-to-Portal Act in conjunction with the F.L.S.A. make clear that the excepting language of § 4 was intended to exclude from F.L.S.A. coverage only those activities ‘predominantly ... spent in (the employees’) own interests’. [ ] No benefit may inure to the company”). Because Defendant derives some benefit from the activities at issue, Plaintiff argues that this element of the integral and indispensable analysis is satisfied. Plaintiff misstates the holding in Dunlop and its progeny. In Dunlop, the court explained further that “[t]he exemption was not intended to relieve employers from liability for ‘any work of consequence performed for an employer’ ... from which the company derives ‘significant benefit.’ ” Id. (emphasis added). Moreover, in Bonilla, as explained supra, the court held that time spent by construction workers proceeding through a security clearance was not integral and indispensable. 487 F.3d at 1344. The court found that the employer did not primarily benefit from its employees’ compliance with the security requirements. Id. However, it is clear that the employer benefitted at least in part therefrom, because its employees’ compliance enabled them to reach their work sites to perform their jobs. Id. Despite this benefit to the employer, the activities were held not to be “integral or indispensable.” Therefore, the Eleventh Circuit clearly does not apply Plaintiffs proffered standard that any benefit to the employer renders an activity integral and indispensable. The fact that Defendant may derive some benefit from its employees’ use of protective outer gear, and from the washing of these items at the end of the com-pensable workday, does not necessarily render Defendant the primary beneficiary thereof. Any benefit that Defendant derived from the cleanliness of its plant — • including its employees’ protective outer gear — is counterbalanced by the benefit to its employees by ensuring their outerwear is cleansed of raw chicken product, thus reducing the risk of illness to employees and cross-contamination from employees’ outerwear to other objects or persons outside the plant, including employees’ homes. Therefore, while Defendant does receive a benefit from these activities, a question of material fact remains as to whether the benefit it receives is so significant that it is Defendant, and not Defendant’s employees, who receives the primary benefit thereof. Because this element of the integral and indispensable analysis is not satisfied as to required or optional items, Defendant’s Motion for Partial Summary Judgment is due to be DENIED as to this claim. B. Plaintiffs Motion for Partial Summary Judgment In her Motion for Partial Summary Judgment, Plaintiff argues that (1) the donning, doffing, and washing activities at issue are compensable “work” under the FLSA; (2) such activities are com-pensable despite the Portal-to-Portal Act; (3) Defendant should not be permitted to present a de minimis defense against her claims; (4) the second, unpaid rest break is compensable as “work” under the FLSA; (5) Defendant should not be permitted to present a good faith defense against her claims; and (6) if Plaintiff prevails on the merits of her claims, Defendant must be ordered to pay liquidated damages therefor. 1. Whether the activities are com-pensable “work” under the FLSA. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), the Supreme Court described “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” In Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944), the Court explained further that “work” does not necessarily require “exertion” under the FLSA. The circuit courts have since held that an activity need not require exertion to be considered “work” under the FLSA. In Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir.2004), the Ninth Circuit concluded that donning and doffing of safety equipment is compensable “work.” 370 F.3d at 912. The court explained that “the term ‘work,’ as used in the FLSA, includes even non-exertional acts,” and “the donning and doffing of various types of safety gear [ ] constitute^] ‘work.’ ” Ballaris, 370 F.3d at 910-11. The Third Circuit explained its interpretation of “work” under the FLSA in de Asencio v. Tyson Foods, Inc., 500 F.3d 361 (3rd Cir.2007). The court there heard similar claims to those at issue here— whether Tyson must compensate its employees for time spent donning, doffing, and washing their protective outer clothing in a poultry processing plant. In determining whether these activities constituted “work,” the district court instructed the jury to consider whether the activities “involved physical or mental exertion.” Id. at 363. The Third Circuit rejected this instruction, and held that the proper focus of “work” is not whether the activity requires exertion or is cumbersome, but whether it is “controlled or required by the employer and pursued for the benefit of the employer.” Id. at 373. In so concluding, the court found that the donning and doffing at issue constituted “work as a matter of law.” Id. Based on the foregoing, the question whether the donning, doffing, and washing activities are compensable “work” under the FLSA is answered by considering whether the activities are required or controlled by Defendant and whether they are performed primarily for Defendant’s benefit, not whether the level of exertion required to perform them is sufficient to constitute “work.” Plaintiff argues that Defendant both requires its employees to don, doff, and wash protective outer clothing and primarily benefits therefrom. Defendant disputes this argument, responding that it does not require its employees to wear all the protective items at issue, nor does it primarily benefit from these activities. As explained supra, a material factual dispute remains as to whether Defendant primarily benefits from these activities. Therefore, summary judgment as to this claim is due to be DENIED. 2. Whether the activities are com-pensable despite application of the Portal-to-Portal Act. Plaintiff asserts that, even if the activities are preliminary or postliminary duties, they are nevertheless compensable as “integral and indispensable” to the principal work activities of Defendant’s employees. Again, however, a question of material fact remains as to whether the third element of the “integral and indispensable” analysis is satisfied. For the same reason the court denies Defendant’s Motion for Partial Summary Judgment as to this claim, Plaintiffs Motion for Partial Summary Judgment as to this claim is also due to be DENIED. 3. Whether Defendant should be allowed to present a de minimis defense. Plaintiff next argues that Defendant should not be permitted to present a de minimis defense against her claims. She points out that the de minimis standard is applicable only where “applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.” 29 C.F.R. § 785.47. According to Plaintiff, Defendant must be precluded from offering this defense because the standard of § 785.47 is not satisfied on the facts of this case. In Lindow v. United States, 738 F.2d 1057 (9th Cir.1984), the Ninth Circuit considered three factors in determining whether an activity should be noncompensable as de minimis: (1) the practical administrative difficulty of recording the uncompensated time; (2) the aggregate amount of uncompensated time; and (3) the regularity of the uncompensated work. 738 F.2d at 1063. Defendant avers that it is administratively impractical to record the amount of time spent donning, doffing, and washing by its employees. Defendant argues that its employees perform the duties at different times and locations in its plant, and at different paces and in different orders. Defendant asserts that its employees often perform these tasks in between non-com-pensable acts, such as socializing. According to Defendant, it cannot practically move its time clocks to each location where these activities occur. Defendant posits that the only possible solution is to move its preexisting time clocks to other locations in its plants. The court rejects this argument, as Defendant may clearly add new time clocks to its plants. Defendant controls where and how many clocks it places throughout its plants. Moreover, Defendant already has in place a timekeeping system called “Pers-time,” which can track increments as small as one-one-hundredth of an hour. Therefore, Defendant is clearly capable of tracking small amounts of time that might otherwise be de minimis. However, the evidence before the court creates a genuine issue of material fact as to whether it is administratively practical for the Defendant to record this time. Plaintiff also argues that the aggregate amount of uncompensated time precludes application of the de minimis defense. She points out that her claim covers thousands of employees over a period of seven years. According to Plaintiff, her claim is substantial, and “cannot be considered de minimis under any meaning of the word.” In addition to Plaintiffs failure to offer unambiguous evidence in support of this argument, the court also rejects the argument as an incorrect application of the law. Regardless of the number of employees for whom Plaintiff seeks back wages, or the length of time for which such pay is sought, the proper focus is on the aggregate amount of uncompensated time for each employee per day, not the total number of employees over any length of time. Moreover, any damages will be individual damages and will vary from employee to employee. Thus, it is not appropriate to aggregate the time spent by multiple employees, and it is equally inappropriate to aggregate that time over a period longer than a single workday. See Nardone v. General Motors, Inc., 207 F.Supp. 336, 340 (D.N.J.1962) (rejecting argument that claim of 53 individual plaintiffs (of whom only 12 testified) involving two-year period, in the aggregate, defeated de minimis defense as “misconstruing]” the de min-imis doctrine, under which “the basic tasks still are in terms of minutes per day”). Furthermore, the Ninth Circuit explained in Lindow that [a]n important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work. There is no precise amount of time that may be denied compensation as de minimis. No rigid rule can be applied with mathematical certainty. Frank v. Wilson & Co., 172 F.2d 712, 716 (7th Cir.1949); Nardone v. General Motors, Inc., 207 F.Supp. 336, 341 (D.N.J.1962). Rather, common sense must be applied to the facts of each case. Most courts have found daily periods of approximately 10 minutes de minimis even though otherwise compensable. See, e.g., E.I. du Pont De Nemours & Co. v. Harrup, 227 F.2d 133, 135-36 (4th Cir.1955) (10 minutes); Green v. Plant ers Nut & Chocolate Co., 177 F.2d 187, 188 (4th Cir.1949) (“obvious” that 10 minutes is de minimis); Carter v. Panama Canal Co., 314 F.Supp. 386, 392 (D.D.C.1970) (2 to 15 minutes), aff'd, 463 F.2d 1289 (D.C.Cir.), cert. denied, 409 U.S. 1012, 93 S.Ct. 441, 34 L.Ed.2d 306 (1972); see also Hodgson v. Katz & Besthoff, # 38, Inc., 365 F.Supp. 1193, 1197 n. 3 (W.D.La.1973) (summary of de minimis holdings). But see Usery v. City Electric, Inc., 23 W.H. Cases 256, 257, 1976 WL 1697 (W.D.Tex.1976) (15 to 20 minutes not de minimis). Lindow, 738 F.2d at 1062 (emphasis added). Therefore, the court is persuaded that the number of employees or the length of time covered by the Complaint has no bearing on whether the de minimis defense may be raised. While Plaintiff cites to authority for the opposite conclusion, see Reich v. Monfort, Inc., 144 F.3d 1329, 1334 (10th Cir.1998), Plaintiff overstates Reich’s holding. Reich involved overtime donning and doffing claims at a meat packing plant that employed, at any particular time between May 1989 and May 1993, between 1,537 and 1,717 employees daily in the slaughter and fabrication departments. 144 F.3d at 1332. The district court and the appellate court both considered what was clearly an average estimated aggregate daily time for these employees (11.57 minutes daily according to one expert opinion; between 8 and 11.5 minutes daily according to another). Id. “The district court determined that the preliminary and postliminary activities constituted ten minutes of compen-sable time, rejecting the defendant’s argument that it should be excluded under the de minimis doctrine.” Id. at 1333. The Tenth Circuit discussed the fact that “we have cited with approval cases finding that ‘as little as ten minutes of working time [per day] goes beyond the level of de min-imis and triggers the FLSA.’ ” Id. (citation omitted). The court then stated that “[w]e must evaluate three factors in addition to the amount of time to determine whether otherwise compensable time is de minimis: (1) the practical administrative difficulty of recording the additional time; (2) the size of the claim in the aggregate; and (3) whether ‘the claimants performed the work on a regular basis.” Id. at 1333— 34 (emphasis added) (citations omitted). The court held “[although this is a close case we agree with the district court’s conclusion that the work was not de min-imis and hence was compensable.” Id. Thus, contrary to Plaintiffs position, the size of the claim in Reich was one factor in determining that the de minimis standard was not met: it was not the sole or even stated to be the controlling factor. This court’s decision is consistent with Reich. It has considered “the size of the claim in the aggregate” because that is part of the “industrial realities” of this case. To allow the size of the claim in the aggregate to be the determining factor would arguably render any claim for any amount of time, no matter how insubstantial as to any particular employee on a daily basis, compensable just because many employees are involved or their claims cover an extended length of time. If the court were to apply Plaintiffs rule, even the “trifles” of a few seconds or minutes described by the Supreme Court in Anderson v. Mt. Clemens Pottery Co. could avoid the de minimis rule. See 328 U.S. 680, 692, 66 S.Ct. 1187, 1195, 90 L.Ed. 1515 (1946). Therefore, in rejecting Plaintiffs argument as to this element, it is possible that Defendant may demonstrate, at trial, that the amount of uncompensated time, per day, is de minimis under the industrial realities of this case. Plaintiff next argues that, because the donning and doffing activities are performed each day, they occur with the requisite regularity to preclude application of the de minimis standard. Defendant responds that, regardless of how often the activities occur, they are performed at irregular times during the day, and are thus not performed with sufficient regularity to preclude the de minim-is defense. Defendant cites to Reich v. IBP, Inc., 38 F.3d 1123, 1126 n. 1 (10th Cir.1994); Kassa v. Kerry, Inc., 487 F.Supp.2d 1063, 1067 n. 1 (D.Minn.2007); and Pressley v. Sanderson Farms, Inc., 2001 WL 850017 at * 3 (S.D.Tex.2001), to support its argument that its employees do not perform the uncompensated activities with the requisite regularity to preclude the de minimis defense. However, in each of these cases, the court either did not address the regularity of the uncompensated activities, or how regularly the activities must be performed, to preclude the de minimis defense. Furthermore, the evidence is unrebutted that the activities are performed at the beginning and end of every work shift, so regularity has been established. See, e.g., Reich v. New York City Transit Authority, 45 F.3d 646, 652 (2nd Cir.1995) (activity was de minimis because, inter alia, it was not performed on a regular basis, “few and far between”); Kosakow v. New Rochelle Radiology Associates, P. C., 274 F.3d 706, 719 (2nd Cir.2001) (work not de minimis because, inter alia, it occurred every day; distinguishing Reich v. New York City Transit Authority because work was regularly performed, was not difficult to record, and constituted a “significant amount of time”). However, as Plaintiff points out, 29 C.F.R. § 785.47 provides for application of the de minimis defense “only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.” Thus, the court’s finding that regularity has been established does not answer whether the de minimis standard is satisfied in its entirety. Having considered the de minimis standard as a whole, the court finds that a genuine issue of material fact still remains as to the size of the aggregate claim and whether Defendant may practically record the amount of time spent on the uncompensated activities. Summary judgment as to this claim is due to be DENIED. 4. Whether the second, unpaid rest break is “work.” As discussed supra with regard to Defendant’s Motion for Partial Summary Judgment, 29 C.F.R. § 785.19(a) provides that “bona fide meal periods are not work-time.” Because the second meal period qualifies as a “bona fide meal period,” the time spent therein may not be considered “work.” Therefore, Plaintiffs Motion for Partial Summary Judgment is due to be DENIED as to this claim. 5. Whether Defendant may present a good faith defense. Plaintiff argues that Defendant may not present a good faith defense to her claims under the Portal-to-Portal Act, 29 U.S.C. § 259. Defendant has “dropped” this defense, and offers no argument in response to Plaintiffs position on this issue. Defendant’s failure to refute Plaintiffs argument on this point is deemed a concession thereof, see, cf., Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned). Therefore, summary judgment as to this defense is due to be GRANTED as abandoned. 6. If Plaintiff prevails on the merits of her claims, whether Defendant should pay liquidated damages. Plaintiff argues that, should she prevails on the merits of her claims, Defendant should not be permitted to avoid liability for liquidated damages based on any “good faith” defense it may offer under 29 U.S.C. § 260. The Portal-to-Portal Act provides that an employer who has violated the FLSA is liable for both the amount of overtime pay due to its employees and an equal, additional amount in liquidated damages. 29 U.S.C. § 260. The employer may avoid liquidated damages only if it can prove “that the act or omission giving rise to [the FLSA violation] was in good faith and that [it] had reasonable grounds for believing that [its] act or omission was not a violation of the Fair Labor Standards Act.” Id The § 260 defense contains both “objective and subjective components.” Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1566 (11th Cir.1991). Defendant must establish that it acted (1) in good faith, and (2) with a reasonable belief that its actions were not in violation of the FLSA. Id.; see also Nelson, 896 F.Supp. at 1115. To satisfy the subjective “good faith” component, “the [employer has the burden of proving] that [it] had an honest intention to ascertain what [the Act] requires and to act in accordance with it.” Dybach, 942 F.2d at 1566. To satisfy the objective “reasonable belief’ component, Defendant need not demonstrate that it precisely conformed with the FLSA, but that it acted with a “reasonable belief of conformity.” Nelson, 896 F.Supp. at 1115. Therefore, Defendant may present a § 260 defense even if it based its pay practices on a mistaken interpretation of Department of Labor regulations. Id. Offering no argument as to the subjective component of the defense, Plaintiff avers that Defendant could not have reasonably believed it acted in conformity with the FLSA. Plaintiff argues that, for at least two years prior to this action, the Department of Labor more than adequately informed Defendant that the activities at issue are compensable. However, given the vast amount of litigation similar to this action which has either recently been or is currently pending in district and circuit courts nationwide, and which offers varying conclusions under different legal theories, it is reasonable to conclude that the compensability of the activities presently at issue remains unsettled. Compare Anderson v. Cagle’s, 488 F.3d 945 (11th Cir.2007) (poultry processor did not violate FLSA by failing to compensate its employees for pre- and post-shift donning and doffing activities pursuant to § 203(o) of the FLSA where collective bargaining agreement established a “custom or practice” of not compensating employees for these activities) with Alvarez v. IBP, Inc., 339 F.3d 894, 903 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (meat processor did not violate FLSA by failing to compensate its employees for pre- and post-shift donning and doffing activities; while such activities were “integral and indispensable” to employees’ principal work activities, they were non-compensable as de minimis). Furthermore, despite the Department of Labor’s representations to Defendant during the years prior to this action, courts have afforded varying degrees of deference to Wage and Hour Opinion Letters and regulations. See Anderson v. Cagle’s, 488 F.3d at 956; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124. While Plaintiff avers that the Department of Labor’s position as to the compensability of these activities has remained static for at least 40 years, the expert report of Brian Farrington indicates otherwise, (doc. 160, exh. 1). Thus, Plaintiff has failed to demonstrate that Defendant had no reasonable belief that it acted in conformity with the FLSA by failing to compensate its employees for the activities at issue. Therefore, Plaintiffs Motion for Partial Summary Judgment is due to be DENIED as to Defendant’s § 260 defense. C. Plaintiffs Motions to Strike. Plaintiff moves to strike evidence in support of Defendant’s argument that its employees bargained to receive two uncompensated meal periods. (Pi’s Opp. pg. 2 n. 3; Id. pg. 15). Specifically, Plaintiff asks the court to strike paragraph 9 of the Declaration of Carolyn Box, Complex Human Resources Manager at Defendant’s poultry processing facility in Carthage, Texas, which states that Defendant’s employees at that plant negotiated a collective bargaining agreement with Defendant that provides for two unpaid 30-minute “meal periods.” (Def.’s exh. B, ¶¶ 1, 9). The actual collective bargaining agreement is not attached to the declaration. Therefore, Plaintiff moves to strike this portion of the declaration pursuant to Fed. R.Evid. 1002, which provides that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” The fact that two uncompensated meal periods were bargained for by employees at Defendant’s plant in Texas has no bearing on the court’s analysis of whether Defendant’s employees are completely relieved from duty during their second meal break under § 785.19(a). Therefore, as the evidence in question carries no relevance to the court’s determination, the motion to strike is due to be DENIED as MOOT. Additionally, Plaintiff moves to strike a portion of Defendant’s brief in support of its Motion for Partial Summary Judgment. In particular, Plaintiff asks the court to strike Defendant’s statement that “[a]ny incursions into [its employees’] meal period resulting from donning and doffing take minimal time.” (Def.’s Br. pg. 20). Plaintiff moves to strike this sentence in a footnote to her opposition brief, but has failed to adequately explain her reason for so moving. See, cf., Jean v. Nelson, 711 F.2d 1455, 1501-02 (11th Cir.1983) (rejecting case that consisted of “nothing but mere protestation and arguments of counsel” as a proper rebuttal of prima facie case of discrimination). The court has considered counsel’s arguments merely as argument — not facts. Plaintiff has failed to support her motion with any basis or authority; therefore, the motion is due to be DENIED. D. Defendant’s Motions to Strike. Defendant moves to strike the declarations of two witnesses proffered by Plaintiff in support of her Motion for Partial Summary Judgment. Specifically, Defendant moves to strike the declaration of (1) Mary Ziegler, a former Farm Labor Team Leader of the Department of Labor’s Wage and Hour Division, Employment Standards Administration, whose declaration regards a consent judgment entered between Perdue Farms, Inc., and the Department of Labor in May 2002 (doc. 186, exh. 4); and (2) Michael Murray, a Systems Analyst employed by BPX Technologies, Inc., and working under contract to provide litigation support services to the Department of Labor in the present action. Mr. Murray’s declaration describes his calculation of the number of times Defendant’s employees punched a time clock during a single shift at Defendant’s Blountsville plant between April 2000 and July 2006. (Id., exh. 1). E. Michael Murray Defendant argues that the declaration of Mr. Murray constitutes expert testimony that Plaintiff failed to disclose prior to the deadline for disclosing expert witnesses in this action. As such, Defendant argues that it has not been afforded an opportunity to depose Mr. Murray regarding his calculation methods or obtain rebuttal testimony in response thereto. Therefore, Defendant avers, the court must strike Mr. Murray’s testimony in accordance with Fed.R.Civ.P. 37(c)(1). Plaintiffs sole basis for opposing Defendant’s Motion to Strike is to argue that Mr. Murray’s testimony does not constitute that of an expert, but rather qualifies as lay witness testimony, which Plaintiff was under no duty to disclose prior to the expert witness disclosure deadline. Plaintiff intends to use Mr. Murray’s testimony to prove the number of Defendant’s employees who clocked out, in order to leave the facility, and then clocked back in during their meal periods. However, Mr. Murray points out that “[t]here is no way to directly count the number of breaks each shift.” (Murray Decl. ¶ 6). Hence, in his declaration, Mr. Murray recounts the various means he used to “estimate as accurately as possible” the number of employees who left the facility during the relevant time period. (Id., ¶¶ 8-12). Defendant argues that the means by which Mr. Murray reached his conclusions render his declaration expert testimony rather than that of a lay witness. Specifically, Defendant avers that Mr. Murray “did not simply count the number of punches,” but rather “made various assumptions and exclusions of data to ‘derive’ and ‘infer’ the information on which he is opining.” Defendant argues that such means exceed the skills of a lay witness, and therefore, Plaintiff should have disclosed that she would utilize Mr. Murray as an expert witness. Contrary to Defendant’s argument, however, it appears that Mr. Murray’s work does not exceed the understanding or skills of a lay witness. For example, Mr. Murray assumed merely that two meal periods occurred where records indicated a meal period lasting longer than 30 minutes but less than or equal to 60 minutes. (Id., ¶ 6). Given that Defendant has not disputed that employees’ meal periods typically last only 30 minutes, such an assumption appears to be reasonable and not beyond the skill of a lay witness. Mr. Murray also explained that he did not include in his calculations either computerized punches (as opposed to those entered manually on a time clock) or duplicated punches. (Id., ¶8). On occasions where a shift began during an evening and ended the following’ morning, Mr. Murray derived the actual shift date by matching dates between two tables found in Defendant’s time records. (Id., ¶ 9). Finally, Mr. Murray explains in his declaration that he did not include in his calculations any shift dates during which an employee worked in more than one department within the plant. (Id., ¶ 10). Testimony is considered that of an expert if the opinion is based on “scientific, technical, or other specialized knowledge.” Fed.R.Evid. 702 (emphasis added). However, Mr. Murray’s techniques do not appear to be based on knowledge of scientific, technical, or otherwise specialized origin. Furthermore, the cases cited by Defendant in support of its motion are either inapposite or distinguishable from this action. In Prieto v. Malgor, 361 F.3d 1313, 1318-19 (11th Cir.2004), the court considered whether proffered witness testimony constituted that of an expert or a fact witness, and concluded that the witness qualified as an expert who had been improperly excluded from Rule 26 disclosures. However, contrary to that of Mr. Murray, the proffered witness offered testimony based on his specialized knowledge of police force, and gave his opinion on the appropriateness of force used by a police officer in that case. Id. Such testimony more clearly constitutes an expert’s opinion, rather than simple arithmetic within the understanding of a lay witness. Similarly, in Marco Island Cable, Inc. v. Comcast Cablevision of the South, Inc., 2006 WL 1722341 (M.D.Fla.2006), the district court concluded that proffered witness testimony was that of an expert rather than a fact witness. The witness testified to his opinion regarding the feasibility of a particular type of cable wiring installation on real estate property, and offered his conclusion as to the “only reasonable” option which was available to the plaintiff. Id. at *2. The district court found the opinion was “replete with expert testimony” and struck the testimony for the plaintiffs failure to comply with disclosure requirements. Id. As stated supra, Mr. Murray’s declaration is not “replete with expert testimony,” nor does it appear to be based on “specialized knowledge” of any kind. In United States v. Hamaker, 455 F.3d 1316 (11th Cir.2006), the Eleventh Circuit held that, pursuant to Fed.R.Evid. 701, a financial expert could testify as a lay witness where the witness prepared for his testimony simply by “add[ing] and subtracting] numbers from a long catalogue of [the defendant’s] records and then compared those numbers in a straightforward fashion.” Id. at 1332. While Mr. Murray’s calculations include inferences, assumptions, and derivations that arguably exceed simple arithmetic, they do not appear to exceed the understanding of a lay witness or require the knowledge of an expert to reach the conclusions presented. The plain language of Rule 701 allows a witness to testify in the form of inferences without requiring that the witness be designated as an expert. Fed.R.Evid. 701. In short, Mr. Murray’s testimony does not appear to constitute that of an expert. Therefore, Defendant’s Motion to Strike the testimony and report of Mr. Murray is due to be DENIED. F. Mary Ziegler In response to any de minimis defense raised by Defendant, Plaintiff offers the declaration of Mary Ziegler, who purports to testify that the Department of Labor has entered a consent judgment with Defendant’s competitor, Perdue Farms, whereby Perdue has agreed to comply with the Department’s interpretation of the FLSA. (Ziegler Decl. ¶ 6). Ms. Ziegler explains, in general, that Perdue has come into compliance with the consent judgment. (Id., ¶¶ 7-8). Ms. Ziegler implies that, because it is administratively feasible for Perdue to record the amount of time its employees spend donning, doffing, and washing their protective outer clothing, Defendant should likewise be capable of keeping such records. (Id., ¶ 9). Defendant moves to strike Ms. Ziegler’s declaration on the grounds that the declaration is based on evidence as to Perdue’s specific compliance methods — information which Plaintiff refused to supply during discovery as protected by, inter alia, the work product privilege. Defendant argues that it may not rebut Ms. Ziegler’s testimony without access to the evidence upon which the declaration is based. Defendant avers that, without an understanding of how Perdue has modified its time-keeping operations to comply with the FLSA, Defendant cannot determine whether it may similarly adjust its record-keeping practices. In short, Defendant argues that, by her assertion of the work-product privilege, Plaintiff has unfairly “stymied” its attempt to rebut her argument that it is administratively feasible for Defendant to record the uncompensated activities because Perdue is capable of doing so. In opposition to the motion, Plaintiff argues that (1) the evidence upon which Ms. Ziegler’s declaration does rely has been produced to Defendant, and (2) Ms. Ziegler’s declaration does not rely upon privileged evidence that Plaintiff has failed to produce. First, Plaintiff argues that evidence upon which Ms. Ziegler’s declaration relies has been provided to Defendant in the form of the Department of Labor’s amicus brief submitted to the First Circuit in Tum v. Barber Foods, 360 F.3d 274 (1st Cir.2004), aff'd in part, rev’d in part, IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). However, as Defendant points out, a legal brief is not evidence. Plaintiff next avers that Defendant has a copy of the consent judgment with Perdue, in addition to a side agreement thereto, and a letter from Plaintiff confirming Per-due’s compliance with the FLSA. However, neither the consent judgment nor the side agreement contains any reference to how Perdue is complying with the FLSA. While Plaintiff does not cite to any point in the record where her letter to Perdue may be found, she also fails to assert that the letter specifically enumerates how Perdue has achieved compliance. Finally, Plaintiff argues that she produced more than 1,200 pages of documents regarding the Department’s investigation of three Perdue plants, including the number of employees at each plant, plant layouts, and information about Perdue’s failure to comply with the FLSA. Again, however, such information does not purport to supply Defendant with any evidence as to how Perdue has achieved FLSA compliance. As stated supra, Plaintiff argues that Ms. Ziegler’s declaration does not rely on privileged documents. Said argument is clearly erroneous, however, as the declaration is based almost exclusively on evidence which Plaintiff has refused to produce as privileged. (See doc. 185, exhs. 5, 6). “[A] litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.” Frontier Refining, Inc. v. Gorman-Rupp Co.,