Rivera v. The Anthem Companies, Inc.

Background

The parties submitted a joint letter describing a discovery dispute concerning discovery before certification of a proposed Rule 23 class. The plaintiffs sought records concerning non-managerial Retention Associates, Facilitated Enrollers, and Medicaid Representatives employed by the defendants at New York City offices during the six-year period beginning February 16, 2012. The requested materials included payroll and time records, wage-and-hour notices and statements, handbooks and policies, and information about employee duties and responsibilities. The plaintiffs also sought names and contact information for potential class members.

The opinion notes that, on November 13, 2019, the court conditionally certified an FLSA collective action covering the three positions at issue for employees at the defendants’ New York City offices during the three-year period beginning May 10, 2016. The plaintiffs distinguished discovery for a Rule 23 class from discovery relevant to conditional certification of an FLSA collective action. They argued that the requested records would help evaluate Rule 23 requirements such as commonality, typicality, numerosity, ascertainability, and predominance.

The Parties’ Positions

The plaintiffs argued that courts in the Southern District of New York generally allow pre-certification discovery in Fair Labor Standards Act and New York Labor Law cases. They described the potential class members as witnesses with firsthand knowledge of the defendants’ wage-and-hour policies and employees’ experiences under those policies.

The defendants stated that they were not opposed to all pre-certification discovery, but disputed the scope and timing of the particular requests. They said the original requests were overbroad because they sought documents concerning every non-managerial employee in the “Retention Department” without a geographic limitation, and said the revised requests still sought individualized records for the entire proposed class. The defendants argued that such discovery was not proportional to the needs of the case at that stage. As alternatives, they proposed producing relevant pay and timekeeping policies, producing individualized pay and timekeeping documents for FLSA collective members who opted in, and meeting and conferring after the opt-in period about any additional discovery. They also proposed providing names and contact information after the opt-in period closed.

Order

The court ordered the parties to participate in a telephone conference on January 15, 2020, at 1:00 p.m., to discuss the issues raised in the joint letter. The order did not grant or deny a motion to compel and did not resolve the parties’ disagreement about the scope or timing of discovery.