Presenting a live 90-minute webinar with interactive Q&A 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) THURSDAY, APRIL 6, 2017 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: 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. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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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 wjhaveriweeks@gbdhlegal.com Lisa A. (Lee) Schreter lschreter@littler.com Noel P. Tripp trippn@jacksonlewis.com
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? 5
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. 6
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. 7
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. 8
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] 9
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 10
II. Pursuing or objecting to discovery requests in wage and hour collective and class actions: Written discovery before (collective or class) certification 11
Certification Discovery Voluntary Pre-Litigation: To provide or not to provide? Scope of data and in what form Confidentiality/attorney s eyes only Tolling 12 www.jacksonlewis.com
Certification Discovery After Litigation Commences: Class member releases Bifurcation Affirmative discovery Plaintiffs depositions Blitz declarations Off-the-clock cases 13 www.jacksonlewis.com
Certification Discovery 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. 14 www.jacksonlewis.com
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. 15
II. Pursuing or objecting to discovery requests in wage and hour collective and class actions: After (Conditional Collective or Class) Certification 16
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) 17
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. 18
II. Pursuing or objecting to discovery requests in wage and hour collective and class actions: Special Masters 19
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). 20
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 21
IV. Discovery Considerations for Trial 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 22
IV. Discovery Considerations for Trial 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 23
IV. Discovery Considerations for Trial 5. Waiver of Attorney-Client Privilege 6. Order of Proof 7. Negotiations with Opposing Counsel Regarding Identification of Testifying Representative Plaintiffs 24
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. 25
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 26