Mikityuk v. Cision US Inc.

Background

The plaintiffs brought this Fair Labor Standards Act (FLSA) case against Cision US Inc. and Cision Ltd. They allege that Cision maintained work requirements that caused its sales representatives to work more than 40 hours per week without recording or receiving overtime pay. The court conditionally certified the case as an FLSA collective action and authorized notice to sales representatives at Cision offices nationwide. After notice was sent, 37 individuals filed consents to join the case as opt-in plaintiffs. There are also three named plaintiffs.

The Parties’ Discovery Proposals

The plaintiffs moved for a protective order, which is an order limiting discovery to prevent undue burden. They proposed limiting written discovery to a random, geographically proportionate sample of no more than 19 opt-in plaintiffs, with no more than four interrogatories and ten document requests for each. They also proposed limiting Cision to 13 depositions, including one already completed, with each deposition lasting no more than three hours.

Cision argued that it should be allowed to serve written discovery on all 37 opt-in plaintiffs and depose each of them. Cision proposed limits of 25 document requests and ten interrogatories per opt-in plaintiff, and argued that participants who failed to respond should be dismissed. Cision said it expected to seek decertification of the collective and needed individualized information because the employees worked at different locations and had different managers. Cision also sought discovery about damages.

Court’s Analysis

The court explained that the Federal Rules of Civil Procedure allow it to limit discovery when it is not proportional to the needs of the case, when its burden or expense outweighs its likely benefit, or when it is cumulative or duplicative. The court also recognized that courts take different approaches to individualized discovery in FLSA collective actions. Some allow discovery from every opt-in plaintiff, while others permit only class-wide discovery or a representative sample. The court stated that the appropriate approach depends on the burdens and benefits of the requested discovery.

The court allowed written discovery from all 37 opt-in plaintiffs. It found that the collective was not so large that written discovery from every participant would be impracticable or excessively burdensome. The court also found that the participants’ claims were substantial and that limited written discovery would not be harassing or discourage people from joining FLSA collective actions. Cision was permitted to serve up to ten requests for production and 15 interrogatories on each opt-in plaintiff.

The court did not allow Cision to depose all 37 opt-in plaintiffs. It concluded that, at this stage, the benefit of every deposition would be substantially outweighed by the burden on the individual participants and the collective as a whole. Cision would receive information about liability and damages through written discovery from all opt-ins, and it had not shown that depositions of every participant were necessary to address whether the plaintiffs were sufficiently alike for the collective to continue.

The court also rejected the plaintiffs’ proposed limit of 13 total depositions. Cision was permitted to depose up to 15 opt-in plaintiffs of its choosing, not including Michael Esquibel, who had already been deposed. The depositions could be conducted remotely, could include questions about damages, and could last up to three hours for each opt-in plaintiff. Plaintiffs’ counsel could receive additional questioning time based on the amount of time counsel used after two hours. The court did not require the depositions to be phased.

Other Rulings and Disposition

The court stated that its ruling did not prevent Cision from seeking permission to take additional depositions if the collective was not decertified or if the plaintiffs designated a witness for trial or submitted an affidavit opposing summary judgment without giving Cision an opportunity to depose that witness.

If an opt-in plaintiff failed to respond to written discovery or failed to appear for a deposition, Cision could seek sanctions under Federal Rule of Civil Procedure 37, including possible dismissal of that plaintiff’s claim. The court declined to decide in advance what consequence would apply to any particular failure. It stated that dismissal is an available sanction for a plaintiff who willfully fails to participate in discovery, but that the appropriate sanction depends on the facts.

The court’s order states that the plaintiffs’ motion was GRANTED IN PART and DENIED IN PART. The Clerk of Court was directed to close Docket Nos. 163 and 164.