In practice, the most significant change in modern litigation has been the dramatic increase in electronic discovery costs. As the amount of electronically stored information has skyrocketed over the past two decades, the burden on parties (chiefly businesses) to retain, review, and produce that information in litigation has exponentially increased as well.

Recognizing that reality, the federal Judicial Conference’s Advisory Committee on Civil Rules has recently issued a preliminary draft of proposed amendments to the Federal Rules (pdf) that, if adopted, would take some modest steps towards ensuring greater balance in the discovery process.

A number of interested parties will
Continue Reading Senate Judiciary Subcommittee Holds Hearing On Proposed Changes To Federal Rules Governing Discovery

A quick tip to employers facing class actions brought by the Equal Employment Opportunity Commission (EEOC)—don’t forget about the EEOC’s statutory duty to investigate the claim before filing suit.

Before the EEOC may file a lawsuit, an employee must have made a timely charge of discrimination of which the EEOC timely notified the employer and the EEOC must have investigated the charge, determined that there was reasonable cause to sue, and attempted conciliation with the employer. 42 U.S.C. § 2000e-5(b), (e).

Courts generally have rejected attempts by employers to call into question the sufficiency of the EEOC’s pre-suit investigation.
Continue Reading Court Allows Employer Discovery Into Whether EEOC Actually Investigated Before Filing Discrimination Suit

On May 2, at noon EST, my colleagues Anthony Diana (the co-chair of the firm’s E-Discovery and Records Management practice) and Therese Craparo (a counsel in that practice) and I will be presenting the first in a series of four teleconferences on e-discovery. This teleconference will focus on the unique challenges that class actions pose for collecting, preserving, and producing electronically stored information, and how companies can strike the right balance between risk mitigation and cost control. Please join us!  The teleconference is open to clients and friends of the firm.

For registration information, please see the web page for
Continue Reading Upcoming Teleconference on E-Discovery in Class Actions

One of the reasons that companies hate class actions is that, win or lose, the defense costs are often enormous. Usually, it’s discovery that leads to eye-popping numbers on the bills—whether from law firms themselves, contract attorneys, or e-discovery vendors. But defendants have an often overlooked tool for attempting to avoid costs related to discovery—the pre-discovery motion to strike class allegations.

My recent article, Control Class Action Costs by Filing an Early Motion to Strike the Class Allegations (pdf), explains the authority for such motions and the types of arguments that tend to work best for attacking the class allegations
Continue Reading Nip A Class Action In The Bud By Moving To Strike the Class Allegations

My colleague Anthony Diana publishes monthly tips for businesses seeking to navigate the shoals of modern document-preservation and e-discovery practice. Readers of the blog might be particular interested in the column on strategies for businesses that have been targeted by class actions.

Past tips that might be of particular interest to class-action defendants include:

Continue Reading How Can Class Action Defendants Control E-Discovery Costs?

We’re big fans of filing an early motion to strike class allegations when it’s apparent from the pleadings that the class definition is fatally flawed. Why should a defendant be forced to submit to the wringer of class discovery before taking a swing at defeating class certification? A recent case involving Office Depot illustrates the successful use of that strategy.

In Lindsay Transmission LLC v. Office Depot Inc. (pdf) (E.D. Mo.), the plaintiff alleged that an Office Depot store had faxed him an advertisement in violation of the Telephone Consumer Protection Act (“TCPA”). The complaint demanded statutory damages on behalf
Continue Reading Federal Court Grants Motion to Strike Class Allegations in TCPA Case

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