ORDER GRANTING DEFENDANTS' MOTION FOR CLARIFICATION OF DISCOVERY LIMITS

MARY THEILER, Magistrate Judge

INTRODUCTION

Plaintiffs brought this action pursuant to the Fair Labor Standards Act ("FLSA), 29 U.S.C. § 216(b). Defendants filed the current motion seeking clarification of discovery limits. (Dkt. 78.) Defendants argue that discovery should be allowed for both named and opt-in plaintiffs. Plaintiffs contend that discovery at this phase of the proceedings should be allowed only as to named plaintiffs. (Dkt. 84.) Alternatively, plaintiffs suggest allowing discovery as to only a small sample of opt-in plaintiffs. For the reasons described below, the Court finds defendants' request reasonable and will allow written and deposition discovery as to all opt-in plaintiffs to proceed.

DISCUSSION

Pursuant to 29 U.S.C. § 216(b), "[a]n action to recover . . . liability . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." In this case, plaintiffs sought to certify a class of all auto insurance field staff appraisers and other employees with similar job duties who work or have worked for defendants as similarly situated persons.

By order dated February 10, 2006, United States District Judge Robert S. Lasnik adopted a two-step approach utilized by a majority of courts in conditionally certifying this collective action. ( See Dkt. 27.) Pursuant to that approach, the Court employed a lenient standard in rendering an initial determination as to plaintiffs' assertion of other potential class members who are similarly situated. ( Id. at 3 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). At this first step, the Court concluded that "plaintiffs are similarly situated to auto insurance field staffers and others with similar job duties employed by defendant." ( Id.) The Court noted that, following notice to all similarly situated individuals and "[u]pon completion of discovery, defendant may make a motion to decertify the 29 U.S.C. § 216(b) collective action." ( Id. at 4.) At that point, the Court will undertake the second evaluation called for by the two-step approach. "Using a test of higher scrutiny, the Court will weigh `the following factors: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations.'" ( Id. (quoting Leuthold v. Destination Am., 224 F.R.D. 462, 466 (N.D. Cal. 2004.)) If concluding that class members are not similarly situated to plaintiffs, the Court will decertify the collective action, dismissing without prejudice the claims of individuals who opted in to the litigation. ( Id.)

Thirty-four individuals subsequently opted in to this collective action. Defendants thereafter served plaintiffs with their first set of discovery requests. Although responding with respect to named plaintiffs, plaintiffs objected to any discovery from opt-in plaintiffs. However, as noted by defendants, plaintiffs sought discovery both as to named and opt-in plaintiffs in their own first set of discovery requests. Defendants filed the current motion in order to resolve this discovery dispute.

Defendants argue that the plain language of Section 216(b) of the FLSA and Federal Rules of Civil Procedure 33 and 34 allow for discovery of opt-in plaintiffs, that the Court must evaluate evidence gathered in discovery for each individual plaintiff, and that courts regularly allow discovery of all opt-in plaintiffs in collective actions. They assert the need for this discovery to allow the development of evidence relevant to certification at the second step of the above-described two-step process, to allow the evaluation of various defenses available to defendants with respect to each individual plaintiff, and to allow an individual inquiry to determine plaintiffs' request for equitable tolling.

Plaintiffs ask that the Court use its discretion to limit what they describe as burdensome and cumulative discovery requests. See Fed.R.Civ.P. 26(b)(2) (calling for limitation of discovery that is, inter alia, unreasonably cumulative or duplicative, or where the burden or expense of the discovery outweighs its likely benefit). Also, noting the bifurcation of the proceedings in this case into liability and damages phases ( See Dkt. 61 ("Joint Status Report and Discovery Plan")), plaintiffs further assert that the information sought by defendants — including that related to equitable tolling and defenses — relates to damages, not liability and, therefore, is not relevant at this stage of the proceedings. Finally, plaintiffs note that other courts have limited individualized discovery in FLSA collective actions. Alternatively, plaintiffs aver that they are amenable to several opt-in plaintiffs participating in discovery during the liability phase, and that they are similarly willing to confine their discovery requests to this limited group of individuals.

Although the Court recognizes the burdens associated with undertaking this collective action, plaintiffs' arguments are not well taken. The Court first notes that, as pointed out by defendants, the parties agreed to bifurcate the trial in this matter, not to bifurcate discovery. ( See Dkt. 61 at 3 4.) The acknowledgment in the Joint Status Report and Discovery Plan that a "second phase of discovery may be required after the first liability phase" recognizes the possible need for later discovery, it does not foreclose discovery pertinent to the issue of damages in the liability phase of the proceedings. Indeed, the Joint Status Report and Discovery Plan broadly pronounces that "[d]iscovery will be directed to the claims and defenses raised in the pleadings." ( Id. at 3.) Moreover, as argued by defendants, the prevention of discovery into damages until after a trial on liability may well result in the undesirable consequence of preempting settlement.

Next, and critically, discovery related to the opt-in plaintiffs is pertinent to the determination of whether or not these individuals are similarly situated within the meaning of the FLSA. Plaintiffs' reliance on language contained within Judge Lasnik's order disregards the fact that that order merely conditionally certified the class. As indicated within the order, "[u]pon completion of discovery" and a motion to decertify by defendants, the Court will more closely scrutinize whether or not the opt-in plaintiffs are in fact similarly situated. (Dkt. 27 at 4.) Defendants reasonably and appropriately request the opportunity to obtain discovery relevant to their anticipated motion to decertify.

Finally, the Court is persuaded by the reasoning of courts permitting individualized discovery of opt-in plaintiffs. See, e.g., Krueger v. New York Telephone Co., 163 F.R.D. 446, 449 (S.D.N.Y. 1995) ("This is not a class consisting of thousands of absent class members, scattered throughout the country, perhaps unaware of the litigation itself. This case involves a relatively small group of 162 people, each of whom has freely chosen to participate and each of whom has relevant information with respect to the claims and defenses in this action. Having already deposed the named plaintiffs and having obtained the plaintiffs' agreement to depose about 19 other consent signers without objection, defendants properly seek to depose an additional 14 consent signers. These 14 individuals, like all members of the class, could be deposed fully on the issues in this case to the extent information is not otherwise obtained from them, such as through answers to detailed questionnaires. Certainly this approach is more efficient and less onerous than a procedure that defers an entirely new round of unspecified discovery until some indefinite future date. Finally, defendants persuasively argue that they need discovery to be able to participate meaningfully in settlement discussions pending before the Magistrate Judge in this action.") Plaintiffs fail to adequately support their contention that discovery relating to a total of thirty-six individuals would be unduly burdensome. In fact, the only case on which plaintiffs specifically rely — an unpublished decision from the Southern District of Ohio — involved a far larger class (more than 1500 opt-in plaintiffs) and the potential for discovery of some 90 individual opt-in plaintiffs. See Smith v. Lowe's Home Centers, Inc., No. 2:04-CV-774, 2006 U.S. Dist. LEXIS 26686 at *5-12 (S.D. Ohio May 5, 2006). Plaintiffs' alternative suggestion that this Court similarly allow discovery of only a small representative sample ignores the fact that this matter involves a relatively small total number of named and opt-in plaintiffs.

CONCLUSION

For the reasons described above, defendants' motion for clarification of discovery limits is hereby GRANTED. Defendants may conduct written and deposition discovery of both named and all opt-in plaintiffs in this matter. The Clerk is directed to send copies of this Order to counsel for plaintiffs and defendants.