Indergit v. Rite Aid Corporation et al

Filing 292

ORDER: For the foregoing reasons, defendants' application to take the depositions of eight class members from the entire New York class of over 1,700 store managers is granted. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 11/30/2015) Copies Transmitted by Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
YATRAM INDERGIT, on behalf of
himself and all others
similarly situated,
Plaintiff,

08 Civ. 9361 (JPO) (HBP)
ORDER

-againstRITE AID CORPORATION, et al.,
Defendants.

-----------------------------------X

PITMAN, United States Magistrate Judge:

In this hybrid action involving claims under the
collective action provisions of the FLSA and class action claims
under the New York Labor Law, defendants seek to depose unnamed
class members who have not opted in to the FLSA collective.
Plaintiffs oppose the application as improperly seeking discovery
of absent class members. 1
The parties have agreed that defendants may take eight
additional depositions of members of the New York Labor Law class

1

Plaintiffs' motion to certify a Rule 23 class of current
and former New York Rite Aid store managers was granted as to
liability only because there was insufficient evidence to certify
the New York class for damages purposes at that time.
Indergit
v. Rite Aid Corp., 293 F.R.D. 632 (S.D.N.Y. 2013),
reconsideration denied, 52 F. Supp. 3d 522 (S.D.N.Y. 2014)
(Oetken, D.J.).

during the merits phase of discovery and have also agreed on a
procedure for a random selection of deponents. 2

The parties

disagree, however, about the pool from which these deponents will
be taken.

Plaintiffs assert that only those class members that

have opted into the FLSA collective action should be included
while defendants argue that the pool should be selected from the
entire New York class, including those who have not opted into
the FLSA collective action.

There are over 1,700 individuals in

the New York class; of these, only 204 New York store managers
have opted into the collective action, leaving approximately
1,500 New York class members who are not part of the collective
action.
Defendants bear the burden of justifying discovery from
absent class members and "the burden on the defendant to justify
discovery of absent class members by means of deposition is

2

Defendants maintain various objections to the current
discovery plan but recognize that the Court previously rejected
their arguments. According to defendants, at the December 10,
2014 conference, "the Court rejected Defendants' proposed
discovery plan", including the number of depositions to be taken,
and "directed the parties to confer about a method of selecting
the limited number of additional persons to be deposed[.]" Thus,
defendants contend, "[w]ithin the confines set by the Court and
without waiving their objections, Defendants have agreed to take
the remaining depositions they are allowed in the manner" set
forth in the joint submission (Joint Letter to the Honorable J.
Paul Oetken re Joint Proposed Discovery Plan, dated July 2, 2015
(Docket Item ("D.I.") 281), at n.3)
2

particularly heavy."

Redmond v. Moody's Inv. Serv., 92 Civ. 9161

(WK), 1995 WL 276150 at *1 (S.D.N.Y. May 10, 1995)
M.J.)

(citation omitted).

(Francis,

"[D]iscovery of absent class members

regarding individual issues, as opposed to common questions, is
inappropriate."
276150 at *1.

Redmond v. Moody's Inv. Serv., supra, 1995 WL
"The conflict is between the competing interests

of the absent class members in remaining passive and the
defendant in having the ability to ascertain necessary
information for its defense."

Town of New Castle v. Yonkers

Contracting Co., Inc., 88 Civ. 2952
(S.D.N.Y. Aug. 13, 1991)

(CES), 1991 WL 159848 at *1

(Stewart, D.J.).

And, as the Court of

Appeals has noted, unlike an FLSA collective action, Rule 23 has
no requirement that class members take any affirmative action to
be a member of the class.
120, 126 (2d Cir. 2004)

See Kern v. Siemens Corp., 393 F.3d

("we find scant support for the

proposition that a court could ever certify a class with an 'opt
in' provision during the liability stage of the litigation.")
(emphasis in original).
absent class members,

Where a defendant seeks discovery from

"[c]ourts consider whether discovery of

absent class members (1) is needed for the purposes of trial or
the issues common to the class,

(2)

is narrowly tailored,

(3) will impose undue burden on the absent class members, and (4)
is not available from representative plaintiffs."
3

In re Warner

Chilcott Ltd. Sec. Litig., 06 Civ. 11515 (WHP), 2008 WL 344715 at
*2 (S.D.N.Y. Feb. 4, 2008)

(Pauley, D.J.), citing Krueger v. New

York Tel. Co., 163 F.R.D. 446, 450

(S.D.N.Y. 1995)

(Koeltl, D.J.)

and Redmond v. Moody's Inv. Serv., supra, 1995 WL 276150 at *1.
Applying the aforementioned factors,

I find that

defendants have presented a sufficient basis for the limited
discovery they seek of absent class members.
First, the discovery defendants seek from absent class
members goes to common issues.

The nature of the job duties

performed by defendants' store managers is a common question
because plaintiffs contend that the store managers, as a group,
were improperly classified as exempt from the overtime pay
requirements imposed by law.
supra, 293 F.R.D. at 652.

See Indergit v. Rite Aid Corp.,

Defendants seek discovery from absent

class members who did not join the FLSA collective regarding
their work experiences and job duties to assess their claims and
gather support for their affirmative defenses (Defendants' Letter
re Outstanding Discovery Issues, dated Sept. 11, 2015
at 8) .

(D.I. 284),

Defendants assert that they wish to "develop evidence

related to the myriad reasons why Plaintiffs' overtime claim is
not appropriate for continued class treatment, or alternatively,
develop and present defenses at trial related to the merits of
the claim"

(Defendants' Letter re Outstanding Discovery Issues,
4

This is an appropriate

dated Sept. 11, 2015 (D. I. 284), at 12).
area of inquiry for absent class members.

As to the second and third factors, defendants' request
is narrowly tailored and the limited number of depositions sought
will not impose an undue burden on plaintiffs or their counsel.
Defendants seek only eight depositions from the New York class, a
number that plaintiffs do not oppose.

See Kress v. Price

Waterhouse Coopers, 08 Civ. 0965 (LKK)

(GGH), 2012 WL 4465556 at

*4 (E.D. Cal. Sept. 25, 2012)

(permitting 25 depositions of

absent class members out of 1,709 total class as not "unduly
burdensome").

Further, not all of those depositions will

necessarily be of truly "absent" class members since the pool
from which the selection will be made will include the 204 class
members who opted into the New York class.

Opt-in plaintiffs are

not "absent" for purposes of this analysis because they have
affirmatively chosen to participate in the collective action.
See Perkins v. S. New England Tel. Co., 07 Civ. 967
WL 2026439 at *1 (D. Conn. May 21, 2010)

(JCH), 2010

(defining "the absent

class members" as the non opt-in class members); Luna v. Del
Monte Fresh Produce (Southeast), Inc., 06 Civ. 2000
WL 1500269 at *7
litigation,

(N.D. Ga. May 18, 2007)

(JEC), 2007

("Having opted into the

[these plaintiffs] are not 'passive' in the same

sense as absent Rule 23 class members.").
5

Given the limited

nature of the discovery sought of absent class members,
defendants' request is sufficiently narrow and will not impose
undue burden on plaintiffs.
As to the final factor, defendants have also
demonstrated that the limited discovery they seek is not
available from the named plaintiff or opt-in plaintiffs.

As

noted above, defendants seek to depose the non-opt-in plaintiffs
in order to discover the nature of their job duties and
experiences.

Defendants argue that the opt-in plaintiffs, who

have "affirmatively" asserted claims against defendants, will not
be able to testify as to the nature of the job duties of the Rule
23 class members who chose not to opt into the FLSA collective.
Plaintiffs are correct that defendants may not seek discovery
from non-opt-in class members concerning their decision not to
opt in to the collective action -- this is contrary to the policy
that absent class members have a right to remain passive.

See

Perkins v. S. New England Tel. Co., supra, 2010 WL 2026439 at *2
(denying request for depositions of non opt-ins for the purpose
of exploring "'whether these class members' decision to take no
action in response to the notice of the lawsuit
purposeful'")

(citation omitted).

. was

However, the nature of the

non-opt-in class members' job duties is relevant to class-related
issues.

The non-opt-in class members are in the best position to
6

testify as to this issue and discovery from absent class members
concerning analagous issues has been permitted in other cases.
See Krueger v. New York Tel. Co., supra, 163 F.R.D. at 451
(allowing absent class member discovery on "a class-wide issue
going to the heart of the plaintiffs' claim"); Bruhl v. Price
Waterhousecoopers Int'1, 03 Civ. 23044, 2010 WL 5090207 at *2
(S.D. Fla. Dec. 8, 2010)

(allowing depositions of absent class

members where there was "no other way" for defendant to get the
information, which was relevant to class issues); In re Nat'l W.
Life Ins. Deferred Annuities Litig., 05 Civ. 1018 (WVG), 2010 WL
4809330 at *3

(S.D. Cal. Nov. 19, 2010)

(allowing 16 depositions

of absent class members and stating "[w]hether Defendants'
strategy will ultimately be successful is uncertain .
However, the Court is unwilling to deny Defendants the
opportunity to meaningfully defend themselves."), sustained in
relevant part, 2011 WL 3438186 at *1 (S.D. Cal. Jan. 19, 2011);
In re Warner Chilcott Ltd. Sec. Litig., supra, 2008 WL 344715 at
*2

(allowing "short depositions" of absent class members where

"discovery is necessary for their defense, narrowly tailored, and
will not impose undue burden on the absent class members"); see
also Redmond v. Moody's Inv. Serv., supra, 1995 WL 276150 at *2
(denying depositions of absent class members but allowing written
discovery to allow defendant "to determine whether the experience
7

of nonrepresentative class members will confirm or rebut the
claims of classwide discrimination").

On balance, given that

defendants seek this information from a limited number of
deponents and that the information is necessarily not available
from the named plaintiff or opt-ins, defendants have satisfied
this factor in favor of the limited discovery sought here.
In opposition to defendants' application, plaintiffs
cite Youngblood v. Family Dollar Stores, Inc., 09 Civ. 3176
(RMB), 10 Civ. 7580
(unreported)

(RMB)

(S.D.N.Y. Jan. 23, 2012)

("Youngblood Order").

the result here.

(Berman, D.J.)

That decision does not change

The defendants in that case sought the

depositions of twenty-five absent class members in order to
"among other things, develop evidence that there are
'differences' among class members."

Youngblood Order at 1.

The

defendants did not meet their burden in part because the
discovery sought went to individual issues, rather than common
questions.

Youngblood Order at 1.

The Court also found that

there were alternative discovery devices available to defendants,
including "documentary evidence adduced which sets forth the
duties and responsibilities of Defendants' store managers,
in minute detail,' or upon written interrogatories."
Order at 2.

'often

Youngblood

Here, on the other hand, defendants seek fewer

depositions, there is no clear indication that the information
8

defendants seek is available from other sources,

3

and plaintiffs

have not suggested that they would agree to written
interrogatories.
For the foregoing reasons, defendants' application to
take the depositions of eight class members from the entire New
York class of over 1,700 store managers is granted.

Dated:

New York, New York
November 30, 2015
SO ORDERED

HENRY PITMAN
United States Magistrate Judge
Copies transmitted to:
All Counsel

3

In a supplemental letter submitted by plaintiffs regarding
the decision in Youngblood v. Family Dollar Stores, Inc., they
assert that the information is available from documentary
evidence in defendants' possession (Plaintiffs' Supplemental
Letter, dated Oct. 9, 2015 (D.I. 285), at 3-4). Defendants were
not given an opportunity to respond to this argument because the
parties' supplemental letters were due and filed simultaneously.
In any event, I find that even if relevant information could be
gleaned from these sources, the depositions requested of the
class members are not burdensome and are more likely to yield the
information defendants seek regarding the deponents' job duties.
9