At the pre-certification stage, discovery should generally pertain to whether conditional certification is appropriate. See Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634 (D. Kan. 2012) (citing MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.14 (2004)); see also ECF 15 ¶ 2(b) (bifurcating discovery into two phases, where the first phase is “discovery relating to whether conditional certification of the FLSA collective action is appropriate”). More specifically, pre-certification discovery should focus on whether putative collective action members were subject to the same decision, policy, or plan.
Generally, such discovery should pertain to the requirements for collective or class certification under the FLSA and/or Federal Rule of Civil Procedure 23, rather than the merits of the plaintiff's claims.Infinity Home Collection v. Coleman, No. 17-MC-00200-MSK-MEH, 2018 WL 1733262, at *2 (D. Colo. Apr. 10, 2018); Griffin v. Home Depot USA, Inc., No. 11-2366-RDR, 2013 WL 1304378, at *4 (D. Kan. Mar. 28, 2013); Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634 (D. Kan. 2012); see also Soseeah v. Sentry Ins., No. CV 12-1091 RB/ACT, 2013 WL 11327129, at *3 (D.N.M. Nov. 4, 2013) (scope of “discovery on class certification” turns on “whether the moving party can establish the discovery is pertinent to Fed.R.Civ.P. 23 class certification requirements”).
493 U.S. 165, 170 (1989). See Griffin v. Home Depot USA, Inc., 2013 WL 1304378, at *4-5 (D. Kan. March 28, 2013); Allen v. Mill-Tel, 283 F.R.D. 631, 635-37 (D. Kan. April 18, 2012); Hammond, 216 F.R.D. at 672-73. Although these interrogatories seek information on employees presently not parties to this litigation, the opt-in provision of the FLSA requires some procedure for identifying and notifying the potential class members.
In re Bank of Am. Wage & Hour Emp. Pracs. Litig., 275 F.R.D. 534, 541 (D. Kan. 2011). Courts in the District of Kansas have been receptive to allowing discovery requests regarding putative class members where the information sought are names, contact information, and locations of individuals. See, e.g., Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 635-636 (D. Kan. 2012) (overruling objection to precertification discovery); Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 672 (D. Kan. 2003) (ruling that failure to file a provisional precertification alone is not a basis for sustaining objection); see also, e.g., In re Bank, 275 F.R.D. at 541-44.
To be sure, pre-certification discovery should generally pertain to the requirements of Rule 23. Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634 (D. Kan. 2012). The reason for this general rule is that responding to class-wide discovery before the plaintiff has demonstrated the requirements for class certification frequently presents an undue burden on the responding party.
” Doc. 30 at 3. “[A]n interrogatory containing subparts directed at eliciting details concerning a common theme should be considered a single question while an interrogatory with subparts inquiring into discrete areas is likely to be counted as more than one for purposes of the limitation.” Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 637 (D. Kan. 2012) (internal quotation marks and citation omitted).
If the class is not certified, it is unclear that Plaintiffs would be entitled to seek this volume of information about non-parties. See Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 63435 (D. Kan. 2012). As a result, the Court finds that the burden to Defendants of producing discovery for all class members for RFPs 3 and 6 outweighs the relevance of the discovery to Plaintiffs at this time.
-bear the initial burden to show how the discovery they seek is proper and within the scope of the Federal Rules. See Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 633-34 (D. Kan. 2012) (“If, however, the discovery requests are facially objectionable in that they are overly broad or seek information that does not appear relevant, the burden is on the movant to demonstrate how the requests are not objectionable.”). Plaintiffs cannot justify a facially objectionable definition by pointing to a failure by Defendant to timely compile a privilege log.
Charles A. Wright & Arthur R. Miller, 8B Fed. Prac. & Proc. Civ. § 2168.1 at 261 (3d ed. April 2022 update). Ellis v. Hobbs Police Dep't, 2018 U.S. Dist. LEXIS 208406, at *3 (D.N.M. Dec. 11, 2018); see also Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 637 (D. Kan. Apr. 18, 2012); Phillips v. Clark Cnty.Sch. Dist., No. 2:10-cv-0208-GMN-GWF, 2012 WL 135705, at *7-8 (D. Nev. Jan. 18, 2012); Harnage v. Lightner, No. 3:17-cv-00263, 2018 WL 6804482, at *n.3 (D. Conn. Dec. 27, 2018); Bartnick v. CSX Transp., Inc., No. 1:11-cv-1120 (GLS) (TRF), 2012 WL 1565057, at *2 (N.D.N.Y. Apr. 27, 2012).; Walech v. Target Corp., No. C11-254 RAJ, 2012 WL 1068068, at *3-4 (W.D. Wash. Mar. 28, 2012). Analysis
Rule 33 does not define what a “discrete subpart” means. Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 637 (D. Kan. 2012). However, courts use a “common-theme” test to determine whether subparts count as a separate question or fall under the broader interrogatory.