Wednesday, June 16, 2010

More District Courts Beginning To See Wisdom of Pre-Certification Production of Class Lists

The past week has seen two separate district court orders compelling employer defendants to produce class lists, pre-certification. In Capitani v. McDonald's Corp., 2010 U.S. Dist. LEXIS 57873 (D. Del. June 11, 2010) and Whitehorn v. Wolfgang's Steakhouse, 2010 U.S. Dist. LEXIS 58460 (S.D.N.Y. June 14, 2010), the respective district courts each granted plaintiff motions to compel production of the proposed class list prior to plaintiff moving for conditional collective action certification under the FLSA. Although the right to obtain a class list is more or less a foregone conclusion in California, this is not the case in all jurisdictions. As both opinions note, a split in authority exists among district courts as to whether production of a class list is appropriate prior to certification. See Capitani, 2010 U.S. Dist. LEXIS 57873, 8-9; see also Whitehorn, 2010 U.S. Dist. LEXIS 58460, 4-5.

In granting plaintiff’s motion, the Capitani Court reasoned that pre-certification discovery of employee contact information falls well within the FRCP’s liberal disclosure standard and furthers the objectives of certification by supplying plaintiff counsel access to witnesses having first-hand knowledge on the question of whether employees were/are impacted by a uniform policy:
[I]n this action, the Court concludes that a list containing the names and contact information of potential class members "appears reasonably calculated to lead to the discovery of admissible evidence" on the claim that Defendant engages in a policy of wrongly classifying assistant manager trainees. See Fed. R. Civ. P. 26(b)(1). Accordingly, under the liberal discovery standards of Rule 26, Defendant will be ordered to provide such a list to Plaintiffs. [] Likewise, the Court concludes that a list of all corporate-owned stores in operation since July 2005 is relevant to identifying where potential witnesses may have worked, and Defendant will also be ordered to produce that information.
See Capitani, 2010 U.S. Dist. LEXIS 57873, at 9-10.

The Whitehorn Court too concluded that such information was material to certification issues. See id., at 7 (“pre-certification discovery is appropriate to enable Plaintiff to define the class and identify similarly situated employees.”).

While both opinions considered the issue in the context of the FLSA, no principled basis exists for denying such discovery in the context of a Rule 23 action. In Whitehorn the Court noted that at least one NY court has declined such production in a Rule 23 cases based concerns of solicitation [Whitehorn, 2010 U.S. Dist. LEXIS 58460, at 8-9 n.2], but distinguished such authority on the policy of prompt consideration of the certification question in FLSA actions (due to the continued running of the limitations period). See id., at 8. Yet, this distinction does not justify why such information is needed "precertification." Even putting that aside, however, it is incapable of justifying preclusion of pre-certification production in the Rule 23 context, not only because Rule 23 also embodies a policy favoring prompt consideration of the certification question [See FRCP, Rule 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action”)], but also because the need for such witness evidence is stronger in the Rule 23 context where the court is obligated to engage in a rigorous evidentiary analysis of the certification elements. Unlike Rule 23, a rigorous evidentiary analysis is generally not applied under the FLSA until the second stage of certification (which traditionaly occurs right before trial). In many jurisdictions, conditional certification of a FLSA action may be obtained based on bare allegations alone.

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