United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTIONS TO COMPEL AND MOTION TO DEEM MATTERS ADMITTED
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Kellogg's Motion to Deem Matters Admitted and two Motions to Compel [Dkts. # 256, 257, 258]. This Court conditionally certified the class in a prior order, and more than 800 plaintiffs have chosen to opt-in as parties to this action. This Court must now decide whether Kellogg should be permitted to serve individualized discovery requests on the entire opt-in plaintiff class, and, if so, the scope of that discovery.
The Court will subject Plaintiffs' collective action to a stricter standard during the second step of the certification process, and it is clear that Kellogg intends to seek de-certification. Limited individualized discovery is therefore appropriate.
The Plaintiffs-both the named plaintiffs and the opt-in class-claim Kellogg misclassified them as exempt employees and failed to pay them overtime wages as required by the Fair Labor Standards Act ("FLSA") and various similar state statutes. Following conditional certification and notification to eligible employees, over 800 plaintiffs opted in to the action. The parties subsequently failed to negotiate an agreeable protocol by which to conduct discovery, and Kellogg proceeded to serve individualized discovery on the entire opt-in plaintiff class.
Kellogg's discovery was served directly on at least 829 opt-in plaintiffs, and included (following a twenty-one line document/documents definition and six different context-based "identify" definitions) ten interrogatories, thirteen or fifteen requests for admissions (depending on whether the opt-in plaintiff worked for the Snacks Division, Morning Foods Division, or both), and eight document requests. The majority of those requests were served by May 28, 2014. Two weeks later the Plaintiffs objected to individualized discovery generally, and to the burdensome nature of the requests specifically.
Kellogg now asks the court to compel the individual answers. It also asks the Court to "deem" the Requests for Admission admitted because many of the individual plaintiffs (predictably) did not timely respond. Kellogg asserts that individualized discovery is necessary to assess whether the opt-in plaintiffs are similarly situated as determined during the second stage of the two-step class certification process. The Plaintiffs contend that representative discovery, served on no more than twenty opt-in plaintiffs selected by the Plaintiffs themselves, would be sufficient.
Plaintiffs brought suit pursuant to the Fair Labor Standards Act's ("FLSA") collective action provision. 29 U.S.C. § 216(b). Collective actions may be brought against an employer by employees on behalf of themselves and other employees "similarly situated, " and are subject to a two-step class certification procedure. See id.; Troy v. Kehe Food Distributors, Inc., 276 F.R.D. 643, 649 (W.D. Wash. 2011). In the first step, the Plaintiffs' class may be granted conditional certification based upon limited evidence for the purpose of notifying potential class members. Following an "opt-in" period and discovery, the Court re-visits the "similarly situated" issue in the second stage of review (often triggered by a defendant's motion to de-certify the collective class). If it determines that the parties are not similarly situated, the court de-certifies the collective class and the claims are dismissed without prejudice.
During this second stage of review, the court weighs "(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations" to determine whether the party-plaintiffs are similarly situated such that the case may proceed. Ingersoll v. Royal & Sunalliance USA, Inc., No. C05-1774-MAT, 2006 WL 2091097, at *1 (W.D. Wash. July 25, 2006) (quoting Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The second stage of certification requires information to be obtained at the individual level; not only are the individual plaintiff's disparate factual and employment settings considered, but the defenses available to Kellogg with respect to the individual plaintiffs are likely based on information only available through individualized discovery.
A. Kellogg may proceed with individualized discovery of all opt-in plaintiffs because potential class decertification is at issue.
Kellogg seeks to serve individualized discovery on every opt-in plaintiff. This Court has broad discretion over the decision to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 738 (9th Cir. 2002). While individualized discovery is not generally allowed in a Rule 23 class action, in FLSA collective actions decisions on whether to allow individualized discovery are fact-specific and largely depend on the case's procedural status. The parties cite persuasive albeit non-binding authority supporting their respective positions. Given the nature of the two-step certification process, and Kellogg's clear intention to move to decertify the class on the basis that the opt-in plaintiffs are not "similarly situated" as required by the FLSA collective action provision, individualized discovery may be served on all opt-in plaintiffs subject to the limitations set forth below. See Khadera v. ABM Industries, Inc. No. C08-417RSM, 2011 WL 3651031, at *4 (W.D. Wash. Aug 18, 2011) (analyzing relevant cases, and determining that "in each case, individualized discovery was permitted to allow the defendant to gather ...