Putative Class Action Lawsuit Entitled to “Sampling Protocol” of Defense Production
In McPherson v. Canon Business Solutions, Inc. Civil Action No. 12-7761 (JBS/AMD)(D.N.J. February 20, 2014), Plaintiff filed a putative class action lawsuit, but had not yet moved for class certification. The lawsuit alleged defendant engaged in violations of the Fair Credit Reporting Act (“FRCA”) in its hiring practices.
Plaintiff electronic discovery requests were sent and defendant provided some data but objected to the requests, asserting that the FRCA permitted claims within five years of the alleged violation, provided claimants did not discover the violation more than two years prior. Therefore, Defendant claimed Plaintiff could not certify a class past two years prior, because the court would have to hold mini-trials to determine when each plaintiff discovered the alleged violation. Plaintiff responded that she is entitled to discovery prior to class definition issues being decided. Although Defendant filed a Motion for Summary Judgment, the court construed the motion as one to limit discovery under FRPC 26(b)(2)(C)(iii).
The court noted that all claims going back five years are potentially timely, and that discovery could shed light on a potential corporate policy of concealment or at least lack of notice to potential class members. The court also noted that discovery going back five years might also help defendants, showing that potential class members did receive notice prior to the two year limitation. The court held Plaintiff is entitled to reasonable discovery going back five years, but such right to discovery is not plenary.
Specifically, Plaintiff sought electronic data discovery, hard copies and and Rule 30(b)(6) depositions from Defendant’s applicant-tracking and the HR databases and data from the CRAs (credit reporting agencies) going back five years.
The defense then had the opportunity to describe its burdens in providing the discovery. To summarize, Defendant averred it already provided evidence of compliance with the FCRA, and the ESI sought would be extremely burdensome. The production would be a mix of electronic data and hard copies, and Defendant would have to manually review the electronic files to obtain the hard copy documents that offer evidence of compliance.
The court ordered that limited discovery was proper regarding the disputed three year period and limited the manual search to a random 10 percent of otherwise eligible files to strike a balance between Plaintiff’s need for this data verses Defendant’s’ burden of production. Ten percent was estimated to be 15-19 hard copy files, and the court believed such a sample group was sufficient to offer either evidence of a pattern of compliance or a lack thereof.