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ORDER GRANTING DEFENDANTS’ MOTION

FOR CLARIFICATION OF DISCOVERY LIMITS

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

STEVEN INGERSOLL, a Washington

resident, LYNN BASTROM, a Washington

resident, and on behalf of themselves and all

others similarly situated,

Plaintiffs,

v.

ROYAL & SUNALLIANCE USA, INC., a

foreign corporation, and

ROYAL INDEMNITY COMPANY, a foreign

corporation.

Defendants.

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CASE NO. C05-1774-MAT

ORDER GRANTING DEFENDANTS’

MOTION FOR CLARIFICATION OF

DISCOVERY LIMITS

INTRODUCTION

Plaintiffs brought this action pursuant to the Fair Labor Standards Act (“FLSA), 29 U.S.C.

§ 216(b). Defendants filed the current motion seeking clarification of discovery limits. (Dkt. 78.)

Defendants argue that discovery should be allowed for both named and opt-in plaintiffs. Plaintiffs

contend that discovery at this phase of the proceedings should be allowed only as to named

plaintiffs. (Dkt. 84.) Alternatively, plaintiffs suggest allowing discovery as to only a small sample

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ORDER GRANTING DEFENDANTS’ MOTION

FOR CLARIFICATION OF DISCOVERY LIMITS

PAGE -2

of opt-in plaintiffs. For the reasons described below, the Court finds defendants’ request

reasonable and will allow written and deposition discovery as to all opt-in plaintiffs to proceed.

DISCUSSION

Pursuant to 29 U.S.C. § 216(b), “[a]n action to recover . . . liability . . . may be maintained

against any employer . . . by any one or more employees for and in behalf of himself or themselves

and other employees similarly situated.” In this case, plaintiffs sought to certify a class of all auto

insurance field staff appraisers and other employees with similar job duties who work or have

worked for defendants as similarly situated persons.

By order dated February 10, 2006, United States District Judge Robert S. Lasnik adopted

a two-step approach utilized by a majority of courts in conditionally certifying this collective

action. ( See Dkt. 27.) Pursuant to that approach, the Court employed a lenient standard in

rendering an initial determination as to plaintiffs’ assertion of other potential class members who

are similarly situated. (Id. at 3 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102

(10th Cir. 2001)). At this first step, the Court concluded that “plaintiffs are similarly situated to

auto insurance field staffers and others with similar job duties employed by defendant.” (Id.) The

Court noted that, following notice to all similarly situated individuals and “[u]pon completion of

discovery, defendant may make a motion to decertify the 29 U.S.C. § 216(b) collective action.”

(Id. at 4.) At that point, the Court will undertake the second evaluation called for by the two-step

approach. “Using a test of higher scrutiny, the Court will weigh ‘the following factors: (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.’” (Id. (quoting Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D. Cal.

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ORDER GRANTING DEFENDANTS’ MOTION

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2004.)) If concluding that class members are not similarly situated to plaintiffs, the Court will

decertify the collective action, dismissing without prejudice the claims of individuals who opted

in to the litigation. (Id.)

Thirty-four individuals subsequently opted in to this collective action. Defendants

thereafter served plaintiffs with their first set of discovery requests. Although responding with

respect to named plaintiffs, plaintiffs objected to any discovery from opt-in plaintiffs. However,

as noted by defendants, plaintiffs sought discovery both as to named and opt-in plaintiffs in their

own first set of discovery requests. Defendants filed the current motion in order to resolve this

discovery dispute.

Defendants argue that the plain language of Section 216(b) of the FLSA and Federal Rules

of Civil Procedure 33 and 34 allow for discovery of opt-in plaintiffs, that the Court must evaluate

evidence gathered in discovery for each individual plaintiff, and that courts regularly allow

discovery of all opt-in plaintiffs in collective actions. They assert the need for this discovery to

allow the development of evidence relevant to certification at the second step of the abovedescribed two-step process, to allow the evaluation of various defenses available to defendants

with respect to each individual plaintiff, and to allow an individual inquiry to determine plaintiffs’

request for equitable tolling.

Plaintiffs ask that the Court use its discretion to limit what they describe as burdensome

and cumulative discovery requests. See Fed. R. Civ. P. 26(b)(2) (calling for limitation of discovery

that is, inter alia, unreasonably cumulative or duplicative, or where the burden or expense of the

discovery outweighs its likely benefit). Also, noting the bifurcation of the proceedings in this case

into liability and damages phases (See Dkt. 61 (“Joint Status Report and Discovery Plan”)),

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1

 Also, the statement that “[t]he parties agree that discovery will occur in phases[,]”

appears to relate to the subsequent statements that depositions will begin in June 2006 and then

recommence in September 2006 owing to the unavailability of plaintiff’s counsel in the interim.

(Dkt. 61 at 3.)

ORDER GRANTING DEFENDANTS’ MOTION

FOR CLARIFICATION OF DISCOVERY LIMITS

PAGE -4

plaintiffs further assert that the information sought by defendants – including that related to

equitable tolling and defenses – relates to damages, not liability and, therefore, is not relevant at

this stage of the proceedings. Finally, plaintiffs note that other courts have limited individualized

discovery in FLSA collective actions. Alternatively, plaintiffs aver that they are amenable to

several opt-in plaintiffs participating in discovery during the liability phase, and that they are

similarly willing to confine their discovery requests to this limited group of individuals.

Although the Court recognizes the burdens associated with undertaking this collective

action, plaintiffs’ arguments are not well taken. The Court first notes that, as pointed out by

defendants, the parties agreed to bifurcate the trial in this matter, not to bifurcate discovery. (See

Dkt. 61 at 3 & 4.) The acknowledgment in the Joint Status Report and Discovery Plan that a

“second phase of discovery may be required after the first liability phase[]” recognizes the possible

need for later discovery, it does not foreclose discovery pertinent to the issue of damages in the

liability phase of the proceedings.1

 Indeed, the Joint Status Report and Discovery Plan broadly

pronounces that “[d]iscovery will be directed to the claims and defenses raised in the pleadings.”

(Id. at 3.) Moreover, as argued by defendants, the prevention of discovery into damages until

after a trial on liability may well result in the undesirable consequence of preempting settlement.

Next, and critically, discovery related to the opt-in plaintiffs is pertinent to the

determination of whether or not these individuals are similarly situated within the meaning of the

FLSA. Plaintiffs’ reliance on language contained within Judge Lasnik’s order disregards the fact

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ORDER GRANTING DEFENDANTS’ MOTION

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that that order merely conditionally certified the class. As indicated within the order, “[u]pon

completion of discovery[]” and a motion to decertify by defendants, the Court will more closely

scrutinize whether or not the opt-in plaintiffs are in fact similarly situated. (Dkt. 27 at 4.)

Defendants reasonably and appropriately request the opportunity to obtain discovery relevant to

their anticipated motion to decertify.

Finally, the Court is persuaded by the reasoning of courts permitting individualized

discovery of opt-in plaintiffs. See, e.g., Krueger v. New York Telephone Co., 163 F.R.D. 446, 449

(S.D.N.Y. 1995) (“This is not a class consisting of thousands of absent class members, scattered

throughout the country, perhaps unaware of the litigation itself. This case involves a relatively

small group of 162 people, each of whom has freely chosen to participate and each of whom has

relevant information with respect to the claims and defenses in this action. Having already

deposed the named plaintiffs and having obtained the plaintiffs’ agreement to depose about 19

other consent signers without objection, defendants properly seek to depose an additional 14

consent signers. These 14 individuals, like all members of the class, could be deposed fully on the

issues in this case to the extent information is not otherwise obtained from them, such as through

answers to detailed questionnaires. Certainly this approach is more efficient and less onerous than

a procedure that defers an entirely new round of unspecified discovery until some indefinite future

date. Finally, defendants persuasively argue that they need discovery to be able to participate

meaningfully in settlement discussions pending before the Magistrate Judge in this action.”)

Plaintiffs fail to adequately support their contention that discovery relating to a total of thirty-six

individuals would be unduly burdensome. In fact, the only case on which plaintiffs specifically rely

– an unpublished decision from the Southern District of Ohio – involved a far larger class (more

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ORDER GRANTING DEFENDANTS’ MOTION

FOR CLARIFICATION OF DISCOVERY LIMITS

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than 1500 opt-in plaintiffs) and the potential for discovery of some 90 individual opt-in plaintiffs.

See Smith v. Lowe’s Home Centers, Inc., No. 2:04-CV-774, 2006 U.S. Dist. LEXIS 26686 at *5-

12 (S.D. Ohio May 5, 2006). Plaintiffs’ alternative suggestion that this Court similarly allow

discovery of only a small representative sample ignores the fact that this matter involves a

relatively small total number of named and opt-in plaintiffs.

CONCLUSION

For the reasons described above, defendants’ motion for clarification of discovery limits

is hereby GRANTED. Defendants may conduct written and deposition discovery of both named

and all opt-in plaintiffs in this matter. The Clerk is directed to send copies of this Order to counsel

for plaintiffs and defendants.

DATED this 25th day of July, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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