In a class action involving claims of uncompensated, pre-shift off-the-clock work, a California federal magistrate denied plaintiffs’ motion for a protective order to prevent defendants from taking 196 depositions of absent class members as a part of a post-certification “pilot study” designed to determine the variability in liability among the class members.

The certified class consisted of approximately 25,000 member employees.  To establish liability, plaintiffs sought to conduct a survey of 1,500 members and extrapolate the results to the remainder of the claims.  Defendants objected, contending that because the class consisted of several sub-groups – among them, (a) employees who were subject to a policy to perform uncompensated work; (b) employees who performed uncompensated work due to a failure of a policy to prevent them from doing so; and (c) employees who possibly did not perform uncompensated work – plaintiffs’ proposed survey would produce broad over-generalizations across the disparate groups.

Defendant argued that a deposition-based pilot study was necessary to test the accuracy and reliability of plaintiffs’ survey results, by determining the amount of variability within the class.  After an extensive discussion, the court agreed.  After noting the absence of Ninth Circuit authority, the court analyzed the relevant law from other courts and concluded that “as a general rule, discovery from absent class members may be conducted when reasonably necessary, not conducted for improper purpose [such as reducing the class size or revisiting issues of certification] and not unduly burdensome in the context of the case and its issues.”

With respect to reasonable necessity, the court agreed with defendants that their proposed approach was “more scientific and more reliable” then mere extrapolation in testing the accuracy and reliability of plaintiffs’ survey results, and that therefore the discovery sought by defendants was “relevant to the liability of sampling and the statistical study to be used to establish liability.”  As to the burden on plaintiffs, the court acknowledged that the pilot study is a “major undertaking.”  However, the court stated that it was “unwilling to limit a party’s seemingly good faith, expertly designed, effort to seek relevant and reliable evidence.”  With regard to good faith, despite plaintiffs’ claims that defendants’ pilot study was an attempt to obtain information on individual claims and not to address class-wide issues relating to liability, and also to revisit issues resolved during the certification phase, the court concluded that there was no evidence that defendants’ purpose was improper.

Arredondo v. Delano Farms Co., No. 09cv1247 (E.D. Cal. Oct. 10, 2014)