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How Much Discovery From Opt-Ins in FLSA Collective Actions Should Businesses Seek?

Posted in Class Certification, Employment, Motions Practice

A recent federal court decision has addressed the knotty issue of a defendant’s right to discovery in an FLSA collective action from the individuals who opt into the class after it is conditionally certified but before the court decides whether to grant final certification.

The case, Scott v. Bimbo Bakeries, USA, Inc. (pdf), No. 10-3154 (E.D. Pa. Dec. 11, 2012), featured a claim that the defendant’s delivery drivers—who were independent contractors—were de facto “employees” and thus entitled to various remedies under the FLSA. After the court conditionally certified the collective action, roughly 650 individuals opted into the class. To prepare its opposition to the motion for final certification of the class, the defendant sought leave to (a) propound written discovery to all 650 opt-ins, giving them 30 days to respond; and (b) depose 260 opt-ins (i.e., 40% of the opt-in class). The named plaintiff sought to limit written discovery to a representative sample of opt-ins, not to exceed 10%, and to prohibit more than 15 depositions of the opt-ins.

The court’s order reads like a defeat for the defendant. In particular, the court limited the scope of discovery to issues related to the upcoming motion for final certification. The court barred the defendant from propounding written discovery to more than 10% of the opt-ins despite the fact that many courts across the country have allowed broader written discovery, and directed that the opt-ins should get 60 days rather than 30 days to respond. And the court deemed the request to take 260 depositions to be excessive, instead limiting the defendant to 20 total depositions, including those of the named plaintiff.

But by requesting to take written discovery from every opt-in and to depose almost half of them, the defendant has set the stage for its opposition to final certification. The defendant can use the results of the discovery to show that the circumstances surrounding the opt-ins’ FLSA claims vary and warrant individualized inquiry. And the defendant can point out that it would have found even more distinctions and variations had it been permitted broader discovery, and that a trial of the collective action would necessitate a one-by-one assessment of the claims. After all, even if the court limits discovery to a “sample” of employees, the Supreme Court has made abundantly clear that a trial plan cannot limit the defendant to raising but a “sample” of the defenses that it has a statutory right to present. Although the Supreme Court relied upon the Rules Enabling Act and Rule 23 to reject the “Trial by Formula” approach that the plaintiffs had suggested in Wal-Mart Stores, Inc. v. Dukes, the defendant in an FLSA collective action can use due process as the spring board for the same argument.