Below is an update from Chelli D. Robinson, Jill Crawley Griset, and Anne Bentley McCray on the state of discovery in FLSA class actions. We’re grateful for the opportunity to post it here. For more information on McGuireWoods’ team of discovery lawyers, please visit the Discovery Counsel Services profile.
Class action lawsuits under the Fair Labor Standards Act (FLSA) involve unique discovery issues. Plaintiffs in these suits often propound burdensome discovery requests seeking login and logoff records from numerous applications and devices, emails and other records in an effort to purportedly reconstruct each workday of every employee over a period of years.
A number of courts have addressed these voluminous discovery requests in FLSA matters in favor of more reasonable solutions. The analysis necessarily begins with the new language of Federal Rule of Civil Procedure 26(b)(1), providing that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” FLSA plaintiffs must keep their timekeeping records requests proportional to the overall recovery in the matter.
Indeed, even before the language was amended in Rule 26 to highlight the need for proportionality, one court required the parties in an FLSA claim to meet and confer on the “likely range of provable damages that foreseeably could be awarded if Plaintiffs prevail at trial” before the court would address whether discovery requests were overly burdensome. Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 364 (D. Md. 2008). The court highlighted that discovery should be proportional to the overall amount in controversy, noting the “nature of this FLSA wage and hour case, the few number of named Plaintiffs and the relatively modest amounts of wages claimed for each.” Although plaintiffs often seek every source of data possible for recreating the work history for each plaintiff, this is rarely necessary or proportional, nor is it even feasible.
Also contemplating the burden of class FLSA discovery, another court refused to certify a class because the discovery sought by plaintiffs to prove the overtime claims of each class member was unduly burdensome and highlighted the differences of each class member. See Williams v. Accredited Home Lenders, Inc., No. 1:05CV1681, 2006 WL 2085312, *5 (N.D. Ga. July 25, 2006). The Williams court stated that proving overtime claims by “computer activity reports, date and time stamped email, and phone records” for “hundreds of loan officers for every day for a two year period” was “utterly unmanageable”:
The cost to the parties of the discovery required to prepare for this is mind-boggling. The waste of scarce judicial resources of conducting such a trial would be unconscionable.
Although analyzing the issue in the class certification context, the Williams court recognized the impossibility of recreating an employee’s day through such overbroad discovery requests. Likewise, in Vangelakos v. Wells Fargo Bank, No. 1:13-cv-06574-PKC, slip op. at 2 (S.D.N.Y. Feb. 4, 2014), the court found that “it is not necessary to reconstruct the work-life of each plaintiff on each day of employment in order to prosecute or defend a FLSA case.”
Unfortunately, some courts have allowed broad discovery. In Krouse v. Ply Gem Pac. Windows Corp., 803 F. Supp. 2d 1220, 1230 (D. Or. 2011), the court allowed discovery of all contact information for any customers serviced by the plaintiff for a two-year period. And, in Gillam v. Addicts Rehab. Ctr. Fund, No. 05 Civ. 3452, 2006 WL 228874, *2 (Jan. 26, 2006), the court granted a motion to compel production of electronic payroll discs even where sensitive, non-plaintiff information would be divulged.
With any luck, the new language in the Federal Rules will help FLSA defendants fend off burdensome requests for login/logoff records and email data. At a minimum, defendants may be able to successfully negotiate a sampling approach for certain sets of data, if it is reasonably accessible and proportional.