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Burkhart-Deal v. Citifinancial

June 18, 2009

AMY BURKHART-DEAL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CITIFINANCIAL, INC., AND DOES 1 - 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Donetta W. Ambrose Chief Judge, U.S. District Court

OPINION AND ORDER

In this civil action, Plaintiff brings a state-wide class action under Fed. R. Civ. P. 23, on behalf of current and former Financial Sales Representatives ("FSRs") employed by Defendant in Pennsylvania, to recover unpaid wages, including overtime compensation, pursuant to Pennsylvania wage and hour laws. The parties are familiar with the ongoing discovery issues in the parallel FLSA case, Burkhart-Deal I, and no background is necessary.

In the context of pre-certification discovery, Plaintiff moves to compel the production of certain documents, concerning the relevant time period: 1) those identifying all FSRs in PA during the relevant time period; 2) those concerning quota, goal, target, budget, or objectives with respect to FSRs labor hours, labor costs, or payroll costs in PA; 3) those concerning prospective or retrospective determinations that particular tasks by FSRs, or overtime work, would or would not be compensated; and 4) documents regarding complaints regarding FSR compensation, for all PA locations.*fn1

In connection with the Motion to Compel, Plaintiff also moves to extend deadlines relating to class certification. For the following reasons, the Motion to Compel will be granted in part and denied in part; the Motion to Extend Deadlines will be granted.

I. MOTION TO COMPEL

A. Standards

A party may take discovery on any matter, not privileged, relevant to a party's claim or defense. Fed. R. Civ. P. 26. At the pre-certification phase, the Court "has the authority 'to limit pre-certification discovery to evidence that, in its sound judgment, would be 'necessary or helpful' to the certification decision,' given the requirements of Federal Rule of Civil Procedure 23...." Duran v. Portfolio Recovery Assocs., LLC, No. EP-08-CA-165-FM, 2008 U.S. Dist. LEXIS 108435, at *16 (W.D. Tex. Oct. 30, 2008). In turn, Fed. R. Civ. P. 23 requires Plaintiff to demonstrate numerosity, commonality, typicality, and adequacy of the class, claims, or representative.

The discovery permitted must be sufficiently broad in order that the plaintiffs have a realistic opportunity to meet [certification] requirements; at the same time, the defendant must be protected from discovery which is overly burdensome, irrelevant, or which invades privileged or confidential areas. Discovery is not to be used as a weapon, nor must discovery on the merits be completed precedent to class certification.

Sloan v. C & C Collings Co., No. 85-3315, 1986 U.S. Dist. LEXIS 22525, at **5-6 (E.D. Pa. Jul. 21, 1986).

B. Complaints - Request No. 22

I first address the parties' dispute regarding "complaints" documents, embodied by Request No. 22:

All documents concerning any complaint or allegation by any party during the Relevant Time Period that you failed to fully, appropriately, or lawfully compensate any FSR. This Request includes, but is not limited to, any documents and/or files created as a result of any complaints hotline and/or any investigation of any complaint.

In response to a dispute over a similar Request in Burkhart-Deal I, the Court directed that Defendant provide information regarding a sampling of seven percent of Defendant's branches nationwide. Plaintiff now seeks the production of similar information from all of Defendant's Pennsylvania branches. Defendant argues that included in the seven percent nationwide sampling are thirty-one percent of the Pennsylvania branch offices, and that percentage is sufficient in this case.

The Burkhart-Deal I sample included 32 of Defendant's 104 Pennsylvania offices, with seventy-two branches remaining unplumbed. Complaints statewide are unquestionably relevant to certification issues in this case, and bear on issues of numerosity, typicality, and commonality. In the parallel federal case, Defendant has already asked over two hundred managers and HR professionals nationwide to search their individual files. During a telephone conference, Defendant advised that it contacted appropriate personnel at each branch and asked them to look through their files for responsive documents, rather than engaging in a centralized, system-driven search.

Although Plaintiff was unsatisfied with Defendant's methodology, I find that it would suffice in this context - particularly as here, unlike in the federal case, the information represents a sampling of over half of the pertinent branch offices. Defendant proffers no reason that this ...


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