Strauch et al v. Computer Sciences Corp

Filing 171

RULING On Number of Depositions (see attached). Signed by Judge Joan G. Margolis on 06/10/2015.(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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:
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3:14 CV 956 (JBA)

DATE: JUNE 10, 2015

RULING ON NUMBER OF DEPOSITIONS
The factual and procedural history behind this FLSA litigation has been set forth in
this Magistrate Judge's Ruling on Defendant's Motion to Compel, filed February 10, 2015,
2015 WL 540911 ["February 2015 Discovery Ruling"] and in Judge Arterton's Ruling Granting
Plaintiffs' Motion for Conditional Certification, filed June 9, 2015 (Dkt. #168)["June 2015
Ruling"]. The February 2015 Discovery Ruling addressed the number of opt-in plaintiffs from
whom written discovery responses were required, adopting the position that a large
representative sample was sufficient, in this case, 40% of nearly 80 opt-in plaintiffs, or 32
plaintiffs. 2015 WL 540911, at *1-3. The ruling specifically "le[ft] open the number of optin plaintiffs to be deposed, if counsel are unable to agree on that number. . . ." Id. at *3,
n.8.
No agreement was reached with regard to the number of potential plaintiffs to be
deposed. On May 22, 2015, defendant sent a letter to this Magistrate Judge with its
suggestions, as to which plaintiffs forwarded a letter six days later with their own
suggestions.1 A brief telephonic status conference was held on June 9, 2015. (Dkt. #169).
In their letters, counsel agree that there are approximately 86 to 89 opt-in plaintiffs, and in

1

If an objection is filed to this discovery ruling, then the two letters will be docketed on

CM/ECF.

light of Judge Arterton's June 2105 Ruling, the putative class is approximately 4,000 to 4,421
people. (5/22/15 Letter at 1; 5/28/15 Letter at 1). Counsel also agree to a three-tier
approach for conducting depositions, with the first tier including any class representative
identified by plaintiffs in any pleading or amended pleading filed in this case, whose number
would not be used in any "cap" toward the total number of depositions. (5/22/15 Letter at
2; 5/28/15 Letter at 2). However, the parties disagree about who should be included in the
second and third tiers.
Defendant argues that the second tier should consist of anyone who has submitted,
or will submit, a declaration in support of plaintiffs' motions, objections or pleadings and
anyone plaintiffs otherwise identify as a witness; according to defendant, plaintiffs have
submitted 24 opt-in plaintiff declarations to date. (5/22/15 Letter at 2). As a third tier,
defendant reserves the right to depose up to 100 additional opt-in plaintiffs, not including
those who fall into the first and second tiers, and given that the putative class "could well
number into the thousands[,]" these 100 depositions will be less than 10% of the total
group. (Id.).
In contrast, plaintiffs have proposed a "sliding-scale approach," under which the
second tier would be 15% of the current 86 opt-ins, or 13 deponents. (5/28/15 Letter at 2).
For the third tier, plaintiffs suggest that defendant be permitted to depose 10% of the next
100 opt-ins (10 deponents) and 5% of the next 300 opt-ins (15 deponents), with a cap of
38 depositions. (Id. at 2-3).
In a recent decision, Lloyd v. J.P. Morgan Chase & Co., Nos. 11 Civ. 9305 (LTS)(HBP),
12 Civ. 2197 (LTS)(HBP), 2015 WL 1283681 (S.D.N.Y. Mar. 20, 2015), approximately 1,049
individuals had filed consents to join the FLSA lawsuit; relying upon the February 2015

2

Discovery Ruling, among others, U.S. Magistrate Judge Henry Pitman allowed defendants to
seek written discovery from 100 opt-ins and to depose 20 of them. Id. at *1-4.
Given the size of the putative class here, which is approximately 4,000 people, this
Magistrate Judge agrees that a "sliding scale approach" is appropriate, but one that is not
as restrictive as has been suggested by plaintiffs. As previously stated, the parties agree that
the first of three tiers will consist of any class representative identified by plaintiffs in any
pleading or amended pleading filed in this case, whose number would not be used in any
"cap" toward the total number of depositions.
The second tier will consist, as suggested by defendant, of anyone who has
submitted, or will submit, a declaration in support of plaintiffs' motions, objections or
pleadings and anyone plaintiffs otherwise identify as a witness, which defendant represents
is 24 to date. The third tier will consist, with some modifications to the suggestion of
plaintiffs, of 10% of the first 100 opt-ins (10 deponents) and 5% of the next 300 opt-ins (15
deponents), with a total cap of 60 depositions for the second and third tiers. Thus, the total
number of depositions will roughly approximate the percentage of depositions permitted in
the recent Lloyd case.
The February 2015 Discovery Ruling left to counsel the selection of the representative
sample of opt-in plaintiffs for written discovery, 2015 WL 540911, at *3, n.8, and counsel
reached an agreement on this issue. (5/28/15 Letter at 2 (defendant selected 22 of the 32
opt-in plaintiffs and plaintiffs chose the remaining 10)). As before, if counsel are unable to
agree on this issue, they should notify this Magistrate Judge's Chambers accordingly.2

2

Magistrate Judge Pitman imposed an interesting "carrot and stick" option in Lloyd. 2015
WL 1283681, at *5.
In their letter, plaintiffs raised "a small but important matter" relating to production of

3

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).3
Dated at New Haven, Connecticut, this 10th day of June, 2015.

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

documents prior to each deposition, requesting production of documents relating to each deponent
one week prior to his or her deposition, to which defendant did not agree. (5/28/15 Letter at 2).
Plaintiffs' request is a reasonable one, and thus defendant is ordered to produce one week prior to
each deposition all documents relating to each deponent that it intends to use to question the
witness and on which it intends to rely in the litigation.
3

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.

4