Discovery Strategies in Wage and Hour

Class and Collective Actions Before and

After Certification of Putative ClassStrategically Limiting Discovery, Resolving Discovery Disputes

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WEDNESDAY, APRIL 3, 2019

Presenting a live 90-minute webinar with interactive Q&A

Craig S. Friedman, Partner, Jones Day, Atlanta

William C. (Bill) Jhaveri-Weeks, Founder, Jhaveri-Weeks Law, San Francisco

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Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of

Putative Class

William (Bill) Jhaveri-Weekswjw@jhaveriweeks.com

Craig Friedmancsfriedman@jonesday.com

I. Revisiting the December 2015 amendments on discovery in wage & hour collective/class actions 3 years later

• “PROPORTIONALITY” – A SEA-CHANGE (OR WAS IT?)

• SPEEDING UP THE INITIATION OF DISCOVERY.

• REQURING MORE TRANSPARENT DISCOVERY RESPONSES

• TEETH FOR RULES ABOUT PRESERVING ESI

… So has it made a difference?

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“PROPORTIONALITY” – A SEA-CHANGE (OR WAS IT?)Rule 26(b)(1) – Proportionality • “Parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit…]

• Committee note: cannot make boilerplate proportionality objection and refuse to produce discovery.

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MOVING UP START OF DISCOVERY

Rule 26(d)(2)• Can issue discovery requests 21 days after service of

complaint.

• Deemed served on day of Rule 26(f) conference.

Rule 16(b)(2)• Court’s scheduling order to be issued within 90 days (not

120) of service, or 60 days of defendant’s appearance.

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MORE TRANSPARENCY IN DISCOVERY RESPONSES

Rule 34(b)(2)(B)

• Objection must “state with specificity the grounds for objecting … including the reasons.

• “The amendments require greater specificity regarding the nature of objections and the existence of unproduced documents. Failure to respond in conformity with these amendments risks waiver of objections.” See Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017).

• Response must “state whether any responsive materials are being withheld on the basis of that objection.”

• Production must occur by the date specified in the request or “another reasonable time specified in the response.”

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Rule 37(e) – Failure to Preserve ESI

• “If [ESI] that should have been preserved … is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:• (1) upon finding prejudice … may order measures no greater than

necessary to cure the prejudice; or• (2) only upon finding that the party acted with the intent to deprive …

may:• [adverse inference]• [adverse jury instruction]• [dismiss case]

• What not to do… Small v. University Med. Ctr., 2018 WL 3795238 (D. Nev. 2018).

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II. Pursuing or objecting to discovery requests in wage and hour collective and class actions:

a) Before conditional collective or class certification

b) After conditional certification of a collective action

c) After class certification

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II. Pursuing or objecting to discovery requests in wage and hour collective and class actions:

Written discovery before (collective or class) certification

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Pre-Certification Discovery

• Document and data preservation

• Document and data gathering

• Voluntary disclosure prior to litigation• Scope of data and in what form

• Confidentiality agreement

• Attorneys’ eyes only

• Tolling

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Pre-Certification Discovery

• After Litigation Commences and Prior to Conditional Certification• Phased discovery

• Early stage discovery prior to conditional certification?

• Dispositive or threshold issues?

• Affirmative discovery• Plaintiffs’ depositions & 30(b)(6) deposition

• Class member declarations

• Manager declarations

• Electronic Discovery• Negotiate scope of early phase electronic discovery

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Pre-Certification Discovery

• Discovery of putative class member contact information• Compare Lapointe v. Target Corp., No. 16-CV-216 (GTS/CFH), 2017 U.S.

Dist. LEXIS 153648, at *8 (N.D.N.Y. Mar. 24, 2017) (denying request for pre-conditional certification disclosure of putative collective participant contact information) and Velasquez-Monterrosa v. Mi Casita Rests., No. 5:14-CV-448-BO, 2015 U.S. Dist. LEXIS 57385, at *23 (E.D.N.C. May 1, 2015) with Spack v. Trans World Entm't Corp., No. 1:17-CV-1335 (TJM/CFH), 2019 U.S. Dist. LEXIS 23004, at *12 (N.D.N.Y. Feb. 13, 2019) (compelling disclosure).

• Limit company-wide fishing expeditions (consider sampling, as appropriate).

• Motion practice• Move for protective order vs. waiting for motion to compel.• Timing may depend on Rule 16 order and Plaintiff’s apparent or stated

certification strategy.

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• Sampling• Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492 (E.D. Cal. 2012)

• The plaintiff sought timekeeping and payroll records for 330 current and former employees spanning an 11 year period.

• Court ordered that the defendants produce a “random sample of 50% of the timekeeping and payroll records for January, April, July and October for the odd-numbered years of the alleged class period and a random sample of 50% of the timekeeping and payroll records for February, May, August and November for the even-numbered years of the alleged class period.”

• Cost-Shifting• Boeynaems v. La Fitness Int'l, 285 F.R.D. 331 (E.D. Pa. 2012)

• “[I]f Plaintiff’s counsel has confidence in the merits of its case, they should not object to making an investment in this cost of securing documents from Defendant and sharing costs with Defendant.”

• Camesi v. Univ. of Pittsburgh Med. Ctr., 753 F. App'x 135, 139 (3d Cir. 2018)• Concluding that costs associated with file format conversion activity are

recoverable under 28 U.S.C. § 1920.

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Discovery Based on Types of Claims

• Off the clock claims• Discovery tends to be data intensive

• Misclassification cases: exemptions under the FLSA• Discovery focuses on demonstrating duties and

qualifications for exemptions

• Misclassification cases: independent contractors• Discovery focuses on demonstrating the level of control

over independent contractors

II. Pursuing or objecting to discovery requests in wage and hour collective and class actions:

After (Conditional Collective or Class) Certification

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• Written discovery and depositions: different considerations.• Limit written questions to opt-ins• Conditions on depositions (length, location)

• Various solutions:• Lawson v. Love’s Travel Stops & Country Stores, Inc., 2018 WL

3524640 (M.D. Pa. June 25, 2018) (allowing written discovery to 20 randomly selected opt-ins out of 368, limited to 10 RFPs, 10 RFAs, and 10 Rogs; five depositions allowed – limited to four hours with option of videoconference)

• Lloyd v J.P. Morgan Chase & Co., 2015 WL 1283681 (S.D. N.Y. Mar. 20, 2015) (allowing written discovery to 100 out of 1000+ opt-ins, and deposition of 20 opt-ins)

• Scott v. Chipotle Mexican Grill, 300 F.R.D. 188 (S.D.N.Y. 2014) (written discovery permitted from 10% of 582 opt-ins; 15 randomly selected depositions)

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• Difference between discovery of Rule 23 class and FLSA collective?

• Entitlement to discovery from an absent class must be established. Indergit v. Rite Aid Corp., 2016 U.S. Dist. LEXIS 6833 (S.D.N.Y. Jan. 19, 2016).• Defendant could depose some absent class members;

• Deponents should include individuals who had not opted in to the FLSA collective action.

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V. Resolving discovery disputes

• Best approach in seeking discovery: organized, detailed, prompt, ahead of schedule.

• Potential subjects for negotiation in e-discovery:• Custodians• Search terms – share initial hit-count and revise as needed• Claw-back

• Couch meet/confer in terms of judge’s requirement for motion to compel.

• Cal. Ethics Opin. 2015-193 – steps that attorneys responding to e-discovery requests must take to be “competent”

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III. Discovery considerations for summary judgment

• What are the scope and timing of summary judgment motion(s)?

• What happens to the opt-in plaintiffs?• Merits determination as to named Plaintiffs. Charlot v. Ecolab,

Inc., 136 F. Supp. 3d 433 (E.D.N.Y. 2015).• Merits determinations as to certain classes of opt-ins.• Defenses applicable to specific opt-ins: bankruptcy, SoL.

• Consider prior to initial conference and entry of Rule 16 order.

• Use of bellwethers or test plaintiffs. Allen v. Coil Tubing Servs., L.L.C., 755 F.3d 279 (5th Cir. Tex. 2014) (affirming summary judgment ruling based on “cross-section” of fourteen Bellwether plaintiffs).

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IV. Discovery Considerations for Trial

A. Trial Planning1. Time to plan for trial is at case inception2. Elements of early trial plan

a. Model and actual jury instructionsb. Courtroom and local rules regarding trialc. Research

i. Opposing counsel’s trial historyii. Assigned Judge and/or Magistrate approach and rulings at trialiii. Trial of comparable casesiv. History of jury verdicts in similar cases

d. Early case assessmente. “What do I have to prove?” helps frame both affirmative and

responsive discoveryf. Order of proof (exemption cases)g. Bench v. jury trialsh. Expert witnesses

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IV. Discovery Considerations for Trial

B. Role of Rule 26 Conference in Trial Planning1. Protective Order

2. Early discussions regarding authentication of electronic documents

3. Plaintiff’s trial plan

4. Stipulated facts

C. Discovery Plan with Eye Toward Trial1. Admissions paired with interrogatories

2. Planning brings focus to phasing discovery around summary judgment and class certification

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IV. Discovery Considerations for Trial

3. Anticipated Evidentiary Issuesa. “Representative” evidence

b. Admissibilityi. Surveys

ii. Interrogatory responses

iii. Declarations

iv. Social Media

v. Email

vi. Recoveries by non-injured class members

c. Authentication

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IV. Discovery Considerations for Trial

4. Waiver of Attorney-Client Privilege

5. Order of Proof

6. Negotiations with Opposing Counsel Regarding Identification of Testifying Representative Plaintiffs

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