Courts will no longer accept excuses that producing data is too hard or unduly burdensome without evidence of that burden. At the very least, if they anticipate difficulty during discovery, parties have a duty to understand what the complexities of production may be and explain them to the court in order to win a proportionality claim, as illustrated by US Dept. of Labor v. Federal Armament (W.D. Ark. June 28, 2022).
In this FLSA case involving alleged failure to pay employees time and a half overtime wage, the plaintiff moved to compel the defendants to produce employee timekeeping records.
During a discovery dispute regarding these records, the defendants told the plaintiff that the records would be “available for in-person inspection.” But when the plaintiff reviewed the materials, the time cards “did not contain certain requested categories of information and a time clock from which records had not been extracted.”
The defendants contended that the information requested from them was improper based upon:
- Irrelevancy: The discovery request should be limited to a three year period, even though the complaint alleged misconduct beyond that time period.
- Privileged: The discovery request included confidential information, even though the plaintiff said they would sign a confidentiality agreement.
- Unduly Burdensome: Producing the requested information would take “substantial time” and “effort.”
- Motion to Compel Granted. The court granted the plaintiff’s motion to compel timecard records. In the event the defendants failed to comply, the court left open the possibility of “striking the Defendants' pleadings or rendering a default judgment against the Defendants.”
- Failure to Prove Undue Burden. According to the court, the defendants never offered any evidence that producing the requested timecards was unduly burdensome. Additionally, the defendants’ excuse that they didn’t know if it was even possible to extract time records was insufficient.
- No Confidentiality Concern. The court noted that protecting employees’ confidentiality was a legitimate concern, but “the Court sees no reason why a confidentiality agreement adequately addressing this concern cannot immediately be reached by counsel in this case, all of whom are doubtlessly well experienced in negotiating such agreements, which are quite routine in litigation.”
Expert Analysis from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper
Where a party objects on grounds of burden or expense, it must present evidence of that, not just throw out those familiar buzzwords. And claiming it doesn’t know how to extract certain data is similarly unavailing, particularly here, where it had a legal obligation to preserve the data.
Case Law Tip
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