Under the “careful what you ask for” category, Judge Gaitan faced an incongruous situation in this wage and hour class action brought against Farmland Foods.   In an FLSA and MMWL class that had been filed in 2010 and certified a year ago, Plaintiffs moved prevent Farmland from changing the very “doffing and donning “ policies it was challenging.  Specifically, having learned from Farmland’s employees that certain policy changes were being implemented, class counsel sought an evidence preservation order enjoining Farmland from changing its employment policies, and sought an order granting class counsel video access at any time within a prescribed 30-day window to observe and document these employment activities.   Plaintiffs argued that a preservation order was necessary to avoid the “irreparable injury” that would occur from what it termed “serial changes mid-litigation to its operational and compensation policies . . . and to allow the Court to render effective relief if Plaintiffs prevail at trial.”

Judge Gaitan perspicaciously denied the motion, explaining that what Plaintiffs sought was not the preservation of actual evidence, but the mandatory perpetuation of the precise policies of which they had complained.  He also observed that Plaintiffs’ cries of irreparable harm were substantially compromised by their failure to pursue Rule 34 discovery at any time over the nearly three years the case had been pending.  He also denied their request for video discovery as overbroad, unnecessary, and beyond the scope of Rule 34.

Only in class action law would you see something like class counsel attempting to enjoin a  defendant from changing the policies under attack so that class counsel could take credit for the changes.  This order is nice confirmation to defendants that there is no real impediment to beating class counsel to the punch by altering problematic policies after suit is filed but before the litigation is resolved.  Whether class counsel can be credited as impetus for those changes as part of the class benefit analysis is another matter.  This order is also a tidy reminder to document your evidence early – it just might change before you get to trial.