Strauch et al v. Computer Sciences Corp

Filing 127

RULING granting in part and denying in part plaintiff's 98 Motion to Compel (see attached). Signed by Judge Joan G. Margolis on 1/06/15. (Malone, A.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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JOSEPH STRAUCH, ET AL
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V.
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COMPUTER SCIENCES CORP.
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3:14 CV 956 (JBA)

DATE: JANUARY 6, 2015

RULING ON PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS
On July 1, 2014, plaintiffs Joseph Strauch and Timothy Colby filed this proposed class
action lawsuit under the Fair Labor Standards Act ["FLSA"], 29 U.S.C. 201 et seq., and under
the parallel state wage and hour statutes in Connecticut, CONN. GEN. STAT. §§ 31-60, 31-76c,
31-71b & 31-71c, and in California, CAL. LABOR CODE §§ 510, 1194, 226, 1174, 1774.5, 218.5,
226.7, 512 & 2698-2699.5, and Cal. Wage Order 4-2001, on behalf of defendant's
information technology support workers (and in particular System Administrators ["SAs"]),
who allege that they have been misclassified as exempt, even though they perform primarily
nonexempt work. (First Claim through Eighth Claim). As of early January 2015, more than
seventy individuals have filed Notices of Filing of Consents to Become Party Plaintiffs. (Dkts.
##7-8, 10-11, 17-18, 40, 58, 65, 76, 85, 87-89, 93, 97, 102, 104-05, 107-09, 111, 114,
119). On September 4, 2014, defendant filed its answer and defenses. (Dkt. #59).1
On November 12, 2014, plaintiffs filed the pending Motion to Compel Production of

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On October 31, 2014, defendant filed its Motion to Transfer Venue (Dkt. #95), to the U.S.
District Court for the Eastern District of Virginia, as to which plaintiffs filed their brief in opposition on
November 21, 2014 (Dkt. #106); defendant's reply brief was filed on December 5, 2014. (Dkt.
#116). That matter is pending before U.S. District Judge Janet Bond Arterton.
Defendant recently filed its Motion to Compel, with brief, affidavit and exhibit in support
(Dkts. ##120-22), the briefing for which has not been completed yet. (See Dkts. ##123-26).

Documents, and brief and declarations in support. (Dkts. ##98-101).2

On December 3,

2014, defendant filed its brief and declaration in opposition. (Dkt. #110).3 Thirteen days
later, plaintiffs filed their reply brief. (Dkt. #116). On November 17, 2014, U.S. District
Judge Janet Bond Arterton referred this motion to this Magistrate Judge. (Dkt. #103).4
For the reasons stated below, plaintiffs' Motion to Compel (Dkt. #98) is granted in
part and denied in part.
I. DISCUSSION
At issue here is plaintiffs' Request for Production No. 1, which seeks for all
prospective class members, their full name, job title, job level or salary grade, job location,
and Social Security number; dates of hire, transfer to a new location or job position, or
termination; all information regarding compensation earned by or paid by defendant to each
individual, including the individual's hourly rate; all last known contact information, including
current and former home addresses, telephone numbers, and e-mail addresses; and
information reflecting each individual's location within defendant's organization, including
team, group, division, organizational unit, and other detailed organizational information.
(Dkt. #99, Brief at 3; Sagafi Decl., Exh. C).
According to plaintiffs, "[a]t this early state of discovery," it is "unclear" to them how

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Attached was the Declaration of Joseph Strauch, signed November 11, 2014 ["Strauch
Decl."] and the Declaration of Attorney Jahan C. Sagafi, signed November 12, 2014 ["Sagafi Decl."],
with the following three exhibits: copy of defendant's Management Policy Statement – Global Jobs
and Roles (Exh. A); copy of defendant's Job Description Summary Report (Exh. B); and copy of
plaintiffs' Request for Production No. 1 (Exh. C). Copies of case law were also attached.
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Attached was the declaration of Attorney David R. Golder, signed December 3, 2014, with
the following two exhibits: copy of Defendant's Objections and Responses to Plaintiffs' First
Requests for Production of Documents, dated October 24, 2014 (Exh. 1); and copies of e-mails,
dated July 10, 11, 15 & 23, August 15, and September 19, 2014 (Exh. 2).
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Under the Scheduling Order filed by Judge Arterton on October 27, 2014 (Dkt. #94),
scheduling for the class certification motions will be set after this ruling is filed. (¶ 2).

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SAs fit into the various job categories defendant has established in its corporate records, and
while some of this information is available through defendant's employee portal, entitled
"Employee Self Service" ["ESS"], former employees do not have access to the ESS because
it is, as expected, password protected. (Dkt. #99, Brief at 2-3; Strauch Decl. ¶¶ 2-4; Sagafi
Decl., Exhs. A-B). As plaintiffs explain, SAs fall within three broad categories – "Family,"
"Discipline," and "Function," which are then followed by further subcategories by Contribution
Group and Job Title, including "Associate Professional," "Professional," "Senior Professional,"
"Advisor," and "Principal." (Dkt. #99, Brief at 2; Sagafi Decl., Exh. B). Plaintiffs posit that
to determine whether potential plaintiffs are "similarly situated" under FLSA, 29 U.S.C. §
216(b), federal courts, including this district, "apply a two-step process[,]" the first step of
which, described as the "notice" stage, "authorize[s] notice inviting prospective opt-ins to
join the collective action if there are substantial allegations that the proposed class members
were victims of a single decision, policy or plan that violated the law[.]" (Dkt. #99, Brief at
4, citing Aros v. United Rentals, Inc., 269 F.R.D. 176, 179 (D. Conn. 2010)). Plaintiffs have
cited multiple decisions in this district for the proposition that "[p]re-certification discovery
of potential class lists is favored by most cases considering the question, within the contexts
of Rule 23, FLSA, or both." (Dkt. #99, at Brief 4-5, quoting Zaniewski v. PRRC, Inc., No.
11 CV 1535 (CSH), 2012 WL 996703, at *1 (D. Conn. Mar. 22, 2012); see also Dkt. #99,
Brief at 5-6). Plaintiffs further argue that employee classification information is also relevant
to Rule 23 class certification and allowing plaintiffs access to the same information as
defendant will facilitate efficient adjudication of FLSA and Rule 23 certification issues. (Id.
at 6-7).
In contrast, defendant objects to the pre-certification disclosure of confidential

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information regarding putative class members as irrelevant and immaterial to plaintiffs'
current claims, for which the majority of courts, including the Eastern District of New York,
have allowed only "limited discovery[,]" absent a showing of "good faith need[.]" (Dkt.
#110, at 1, 2-5). Defendant further emphasizes that plaintiffs cannot articulate any "good
faith need" when more than seventy plaintiffs already have opted-in here. (Id. at 2, 5-6).
Defendant further argues that plaintiffs' counsel may jeopardize any court-authorized notice
with "misleading and improper ex parte communications[,]" which communications are not
necessary given that plaintiffs already have contacted potential class members through email and LinkedIn requests which have directed the potential class members to the website
of their attorneys; defendant has cited several decisions from the Eastern District of New
York that have "refused to allow discovery of class members' identities at the pre-certification
stage out of concern that plaintiffs' attorneys may be seeking such information to identify
potential new clients, rather than to establish the appropriateness of certification." (Id. at
6-9, quoting Dziennik v. Sealift, Inc., No. 05-CV-4659 (DLI)(MDG), 2006 WL 1455464, at *3
(E.D.N.Y. May 23, 2006)). Thus, defendant concluded that "[a]t most, [p]laintiffs need only
the number of putative class members, job titles, and states where putative class members
are employed for their anticipated Rule 23 class motions, not a detailed class list with contact
information." (Dkt. #110, at 2).
In their reply brief, plaintiffs counter that they seek "organizational information
showing where [c]lass [m]embers are located within [defendant's] company structure, such
as their precise job titles or levels, the location and state in which they work, the client they
support, and similar objective labeling information that [defendant] applies in organizing and
differentiating them within the company[,]" as the requested organizational data is critical

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to certification under FLSA and Rule 23, and will streamline the litigation. (Dkt. #116, Brief
at 1, 3-5)(emphasis in original).

Plaintiffs contend that they need this organizational

information even as to the now seventy opt-in plaintiffs, who do not know whether they have
been categorized, for example, as an "Associate Professional," "Professional," or "Senior
Professional." (Id. at 1-2, 4-5). Plaintiffs estimate that there are approximately 3,000 class
members who have not opted-in. (Id. at 2-4, 8). Plaintiffs argue that this district "routinely"
orders production of class lists in FLSA cases, that the cases cited by defendant are
distinguishable, and that the cases from the Eastern District of New York take the "minority
position[]" in this country. (Id. at 5-7). Lastly, plaintiffs argue that their communications
with class members are proper. (Id. at 7-10).
This issue was addressed three years ago in this district by U.S. Magistrate Judge
Donna F. Martinez, in Allard v. Post Road Entertainment, No. 3:11 CV 901 (AWT), 2012 WL
951917 (D. Conn. Mar. 20, 2012), in which the plaintiff, a server at one of defendant's seven
Black Bear Saloons, requested the names, addresses and e-mail addresses of every server
and bartender employed at all seven locations. Id. at *1. In carefully reviewing the
conflicting decisions on point, Judge Martinez agreed with the analysis of the judges in the
Southern District of New York in concluding that plaintiff had a "good faith need" for the precertification discovery in order to "enable her to define the class and identify similarly
situated employees[.]" Id. at *1-2 (multiple citations omitted). She further found that the
"discovery of names, addresses and e-mail [addresses] [was] not extraordinarily invasive of
the employees' privacy[.]" Id. at *2 (citation omitted). See also Zaniewski, 2012 WL 996703,
at *1-2 (permitting such discovery for putative plaintiffs who worked as Assistant Store
Managers in PriceRite stores in Connecticut, Massachusetts and New York).
As previously mentioned, there is an abundance of case law from the Southern
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District of New York, over the last nine years, which has "routinely allow[ed] plaintiffs to
discover identifying information regarding potential class members so that they may be told
about the pending FLSA action." Fei v. WestLB AG, No. 07 Civ. 8786 (HB)(FM), 2008 WL
7863592, at *1 (S.D.N.Y. Apr. 23, 2008)(multiple citations omitted). U.S. Magistrate Judge
Frank Maas held that "conditional certification is not a prerequisite to the turnover of
information concerning the identity of potential class members[,]" especially since "the
information that [plaintiff] seeks obviously will be of considerable help to [him] in his efforts
to define the class." Id. at *2 (multiple citations omitted). As a result, plaintiff's motion to
compel was granted with respect to his request for the names, positions, job titles, dates of
employment, social security numbers, addresses, and telephone numbers of WestLB's
"executives" and "managers," and any other persons with comparable titles. Id. at *3.
In subsequent years, pre-certification discovery was permitted, but with more limited
requests – the putative class members' names, telephone numbers, and e-mail addresses,
Glatt v. Fox Searchlight Pictures, Inc., No. 11 Civ. 6784 (WHP), 2012 WL 2108220, at *2-3
(S.D.N.Y. June 11, 2012)(multiple citations omitted);5 the putative class members' names,
addresses, and dates of employment for approximately 1,500 store managers at defendant's
Family Dollar stores, Youngblood v. Family Dollar Stores, Inc., Nos. 09 Civ. 3187 (RMB)(FM),
10 Civ. 7580 (RMB)(FM), 2011 WL 1742109, at *1-5 (S.D.N.Y. Jan. 5, 2011)(Maas,
M.J.)(multiple citations omitted)(filed under parallel New York State statute, not FLSA); the
putative class members' names, addresses and telephone numbers of defendant's personal
bankers, Ruiz v. Citibank, N.A., Nos. 10 Civ. 5950 (JGK)(MHD), 10 Civ. 7304 (JGK)(MHD),
2010 WL 4630263, at *1-2 (S.D.N.Y. Nov. 9, 2010)(multiple citations omitted); and the

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The Glatt lawsuit is the well-publicized FLSA action brought by an unpaid intern for the
filming and post-production of the movie, Black Swan. Id. at *1.

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putative class members' names, last known addresses, last known telephone numbers, and
job positions of every non-exempt tipped employee at defendant's restaurants, Whitehorn
v. Wolfgang's Steakhouse, Inc., No. 09 Civ. 1148 (LBS), 2010 WL 2362981, at *1-3 (S.D.N.Y.
June 14, 2010)(multiple citations omitted). Just seven months ago, after conditionally
certifying the collective FLSA action, U.S. Magistrate Judge James L. Cott, relied on all of
these decisions in holding that plaintiff was entitled to discovery of the putative class
members' names, mailing addresses, e-mail addresses, telephone numbers, and dates of
employment for all non-managerial employees, but defendants "need not produce at this
time the dates of birth or social security numbers for these employees." Tate v. WJL Equities
Corp., No. 13 Civ. 8616 (JLC), 2014 WL 2504507, at *1-2 (S.D.N.Y. June 3, 2014)(multiple
citations omitted). See also Sharma v. Burberry Ltd., No. 12-6356 (LDW)(AKT), 2014 WL
4385426, at *1, 12-15, 20-21 (E.D.N.Y. Sept. 4, 2014)(after partial conditional certification
for sales associates only at defendant Burberry's New York and New Jersey stores, and not
at all of its sixty-five stores nationwide, U.S. Magistrate Judge A. Kathleen Tomlinson
ordered disclosure of names, addresses, telephone numbers, e-mail addresses, and dates of
employment for all potential class members, but "decline[d] to allow discovery in the first
instance[]" of their social security numbers)(multiple citations omitted).
As pointed out by Magistrate Judge Martinez in Allard, the Eastern District of New
York has taken the opposite position on this issue. See also Charles v. National Mut. Ins.
Co., No. 09 CV 94 (ARR), 2010 WL 7132173, at *3 (E.D.N.Y. May 27, 2010)(courts
throughout the country "have ruled both ways on the question.")(multiple citations omitted).
Over the past nine years, the Eastern District of New York has denied as premature precertification disclosure of the names, titles, compensation rates, and contact information of
opt-in plaintiffs, at times without prejudice to reconsideration once the conditional
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certification has been granted. See, e.g., Zheng v. Good Fortune Supermarket Group (USA),
Inc., No. 13-CV-60 (ILG), 2013 WL 5132023, at *8 (E.D.N.Y. Sept. 12, 2013)(multiple
citations omitted); Jenkins v. TJX Cos., No. CV 10-3753 (ADS)(WDW), 2011 WL 1563677, at
*1-3 (E.D.N.Y. Apr. 25, 2011)(multiple citations omitted); Charles, 2010 WL 7132173, at *1,
3, 5-8 (multiple citations omitted); Searson v. Concord Mtg. Corp., No. CV 07-3909
(DRH)(ARL), 2008 WL 961624, at *1 (E.D.N.Y. Apr. 8, 2008)(multiple citations omitted).
This Magistrate Judge agrees with Magistrate Judge Martinez in Allard, and with the
Southern District of New York, that pre-certification of discovery of some identifying
information regarding putative class members is appropriate. However, the information
sought by plaintiffs is too excessive and intrusive. First and foremost, as indicated above,
the more recent decisions do not permit initial disclosure of social security numbers.
Second, by plaintiffs' accounts, the size of the putative class is significant
(approximately 3,000), and there is uncertainty as to the various categorizations created by
defendant. Thus, before defendant is put to the task of providing detailed information about
3,000 people, it should first provide a global breakdown of the number of putative class
members who fall within each category and subcategory, including precise job titles or levels,
and the location and state in which they work. (See Dkt. #116, Brief at 1, 3-4). Once that
information is obtained, the parties may have an easier time reaching an agreement as to
which categories and/or subcategories require production of individual identifying
information, or in the absence of such an agreement, the Court will be able to make a more
informed decision based upon this additional information.
And lastly, given the uncertainty of these various categorizations, with respect to the
now seventy opt-in plaintiffs (see id. at 1-2), plaintiffs are entitled to the following
information: their full names, job titles, job levels or salary grades, and job locations; dates
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of hire, transfer to a new location or job position, or termination; all information regarding
compensation earned by or paid by defendant to each individual, including the individual's
hourly rate; all last known contact information, including current and former home addresses,
telephone numbers, and e-mail addresses; and information reflecting each individual's
location within defendant's organization, including team, group, division, organizational unit,
and other detailed organizational information.
Defendant shall comply with this ruling on or before February 6, 2015.
II. CONCLUSION
For the reasons stated above, plaintiffs' Motion to Compel (Dkt. #98) is granted in
part and denied in part to the extent set forth above.6
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude further
appeal to Second Circuit).

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If any counsel believes that a settlement conference before this Magistrate Judge would
be productive, he or she should contact this Magistrate Judge's Chambers accordingly.

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Dated at New Haven, Connecticut, this 6th day of January, 2015.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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