Zhinin v. Sistina Restaurant Inc.

Background

Luis Zhinin sued Sistina Restaurant Inc., Caravaggio, Inc., and Guieseppe Bruno under the Fair Labor Standards Act (FLSA) and New York Labor Law for alleged unpaid wages. The opinion describes Zhinin as a former busboy at Sistina, where he worked for approximately five months, from May through October 2023. He sought to represent FLSA collective plaintiffs and a class covering similarly situated employees at Sistina and Caravaggio. He had not yet filed a motion for FLSA collective-action certification or class certification under Federal Rule of Civil Procedure 23.

The order addressed discovery disputes concerning class-related documents, contact information for potential class members, electronic discovery, and deposition scheduling. The court had previously rejected expanding class-related discovery to Caravaggio because Zhinin never worked there and had not presented evidence at that stage that the same challenged practices were followed there.

Class Document Discovery

The court ordered Defendants first to provide a list of approximately 90 current or former non-exempt busboys, hosts, waiters, and other front-of-house employees who worked at Sistina from 2021 through 2024. The list must include each employee’s name and, if applicable, identification number; job title; and period of employment. Defendants must provide the list within two weeks of the order, by December 17, 2024.

After receiving the list, Zhinin may select 14 employees, or approximately 15 percent of the group, and a period of no more than six months for each employee. For those selected employees and periods, Defendants must provide paystubs, punch records, wage notices, and wage statements.

The court declined to order production of employee handbooks at that stage. The opinion states that the request appeared late, did not identify what handbooks or time period were sought, and did not clearly establish whether Zhinin had made a discovery request that Defendants refused.

Class Contact Information

Zhinin requested contact information for all prospective class members. The court did not order that production. It stated that courts in the district are cautious about requiring disclosure of potential class members’ identities and contact information before certification, and that Zhinin had not shown that the information was necessary to satisfy the requirements for class certification.

Electronic Discovery

The court rejected Defendants’ request to extend their time to respond to electronic-discovery requests until January 15, 2025. Defendants had characterized the requests as burdensome or voluminous but had not run the searches, provided search-result counts, or determined how to conduct them.

The court directed Defendants to conduct electronic searches and provide search-result reports to Zhinin as promptly as possible. Both sides must continue meeting and conferring. If the dispute was not resolved within three weeks, by December 24, 2024, Zhinin could file a motion to compel on or after that date, or Defendants could move for a protective order under Rule 26(c).

The court expressly made no finding about whether Zhinin’s electronic-discovery requests were proper. It expected Zhinin to reasonably narrow the requests, including the search terms, people whose records would be searched, and time period, consistent with Rule 26(b)(1).

Deposition Scheduling and Disposition

The court denied Zhinin’s request to require Defendants to propose deposition dates by December 6, 2024. The existing case schedule set March 12, 2025, as the deadline for depositions and all fact discovery. The court stated that Zhinin could serve deposition notices if he wanted to require Defendants’ representatives to appear on a specific date, but it would not intervene in the parties’ scheduling discussions at that time.

Judge Gary Stein’s order therefore required limited employee-list and wage-record production, declined to order handbooks and potential class members’ contact information, rejected Defendants’ requested electronic-discovery extension, directed electronic searches and search-result reports, and denied the request for immediate deposition dates. The court did not decide the merits of the wage claims or whether a collective action or class should be certified. The Clerk was directed to terminate the motion at Docket No. 31.