discovery strategies in wage and hour class and collective...

Discovery Strategies in Wage and Hour Class

and Collective Actions Before and After

Certification of Putative Class Strategically Limiting Discovery in the Wake of the 2015 Amendments to Rule 26(b)

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THURSDAY, APRIL 6, 2017

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

William (Bill) Jhaveri-Weeks, Partner, Goldstein Borgen Dardarian & Ho, Oakland, Calif.

Lisa A. (Lee) Schreter, Shareholder & Co-Chair, Wage and Hour Practice,

Littler Mendelson, Atlanta

Noel P. Tripp, Principal, Jackson Lewis, Melville, N.Y.

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

Putative Class

William (Bill) Jhaveri-Weeks [email protected]

Lisa A. (Lee) Schreter [email protected]

Noel P. Tripp [email protected]

I. Impact of December 2015 amendments on discovery in wage & hour collective/class actions

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

• AND THEY’RE OFF! – SPEEDING UP THE INITIATION OF DISCOVERY.

• NO MORE HIDE-THE-BALL RESPONSES

• NO MORE “ARE YOU DONE YET?” (date-certain for completing production)

• DIDN’T PRESERVE ESI? NO MORE MR. NICE GUY

… So has it made a difference?

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“PROPORTIONALITY” – A SEA-CHANGE (OR IS 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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AND THEY’RE OFF!

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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NO MORE HIDE-THE-BALL; NO MORE “ARE YOU DONE YET?”

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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DIDN’T PRESERVE ESI? NO MORE MR. NICE GUY 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]

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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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Certification Discovery

• Voluntary – Pre-Litigation: • To provide or not to provide?

• Scope of data and in what form

• Confidentiality/attorney’s eyes only

• Tolling

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• After Litigation Commences: • Class member releases

• Bifurcation

• Affirmative discovery • Plaintiffs’ depositions

• Blitz declarations

• Off-the-clock cases

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• Response to discovery: • Limit discovery regarding absent class members.

• Compare Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 557 (D. Minn. 2008) and Charles v. Nationwide Mut. Ins. Co., 2010 U.S. Dist. LEXIS 143487 (E.D.N.Y. May 27, 2010) (denying request for pre-conditional certification disclosure of putative collective participant contact information) with Whitehorn v. Wolfgang's Steakhouse, Inc., 2010 U.S. Dist. LEXIS 58460 (S.D.N.Y. June 14, 2010)(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.”

• Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. Pa. 2012)

• Holding that “scanning and file format conversion can be considered to be ‘making copies,’” and thus taxable pursuant to 28 U.S.C. § 1920.

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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 • Questionnaires

• Entitlement to written discovery from all opt-ins in a collective action:

• Compare Evans v. Lowe’s Home Centers, Inc., No. 3:03-cv-0438, 2005 WL 2100708, at *1 (M.D. Pa. Aug. 29, 2005)(allowing defendant to take individual discovery of all 508 opt-in plaintiffs) and Stickle v. SCI Western Market Support Center, L.P., No. 08-083, 2010 WL 3218598 (D. Ariz. Aug. 13, 2010)(allowing defendant to take individual discovery of all 1,400 opt-in plaintiffs) with

• Adkins v. Mid-America Growers, Inc., 141 F.R.D. 466, 468 (N.D. Ill. 1992)

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

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III. Discovery considerations for summary judgment

• What is the scope of the summary judgment motion and 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 Planning 1. Time to plan for trial is at case inception 2. Elements of early trial plan

a. Model and actual jury instructions b. Courtroom and local rules regarding trial c. Research

i. Opposing counsel’s trial history ii. Assigned Judge and/or Magistrate approach and rulings at trial iii. Trial of comparable cases iv. History of jury verdicts in similar cases

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

responsive discovery f. Order of proof (exemption cases) g. Bench v. jury trials h. Expert witnesses

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B. Role of Rule 26 Conference in Trial Planning 1. Protective Order 2. Early discussions regarding authentication of

electronic documents 3. Plaintiff’s trial plan 4. Stipulated facts

C. Discovery Plan with Eye Toward Trial 1. Admissions paired with interrogatories 2. Planning brings focus to:

a. Magistrate designation b. Phasing discovery around summary judgment and class

certification

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3. Sampling methods a. Questionnaires b. Test plaintiffs c. Selecting a sample

4. Anticipated Evidentiary Issues a. Admissibility

i. Surveys ii. Interrogatory responses iii. Declarations iv. Social Media v. Email vi. Recoveries by non-injured class members vii. The problems with representative proof

b. Authentication

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5. Waiver of Attorney-Client Privilege

6. Order of Proof

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

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Case Law Developments

• Tyson Foods Inc. v. Bouaphakeo • Issue—whether it was proper to allow the jury to use

representative evidence to establish liability for the class.

• Holding—affirms use of representative evidence in this case (based on Mt. Clemens Pottery).

• Declines to issue any broad categorical rules governing the use of representative evidence. • “Whether a representative sample may be used to establish

class-wide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of 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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