Use of Phased Discovery to Achieve Proportionality

In Guzman v. KP StoneyMill, Inc., 2022 WL 1748308 (D. Md. May 31, 2022)(Quereshi, J.), a single plaintiff sued his employer for alleged FLSA violations.  The Court addressed a number of discovery issues.[1]

The case provides a textbook example of the use of phased discovery to achieve proportionality.

Plaintiff had worked for the defendants for approximately five years.  He sought discovery of his time and pay records for five years, as well as those of other employees for the same time period.

The Court wrote: “Plaintiff has explained the relevance of the materials and Defendants have failed to provide any specific response….  Accordingly, the production of additional journals and/or ledgers is a reasonable request.”

However, the Court then addressed proportionality and analyzed the burden of production.  It wrote:

It is unclear, at this time and from the current filings, why Plaintiff’s expert requires five years of journals to complete their work. Notably, Plaintiff does not provide any affidavits or other evidence supporting his assertions regarding the number of journals the expert needs to conduct his analysis. Accordingly, I will begin by ordering the production of two years of journals – November 1, 2018 to October 30, 2020 – for all employees. [emphasis added].

The Court then established a phased discovery process.  After review of those documents, plaintiff was authorized to request up to three years of additional documents, if it filed an expert affidavit explaining the need for them.  If plaintiff did so, defendants were ordered to explain specifically, with an affidavit, the “specific burden” this would impose.

This is a classic example of the use of phased discovery to achieve proportionality.

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[1] A prior blog addressed another issue addressed in this case.  FLSA Litigant Cannot Refuse to Provide Relevant Discovery Merely Because It May Open the Responding Party Up to Other Liability.