Category Archives Discovery

If there is one topic that has captured the attention of federal courts around the country in the past few years, it's the applicability of mandatory arbitration in putative class actions. (Indeed, during our humble blog's brief existence, we have covered the issue numerous times, most notably here, here and here).  A recent decision from the Tenth Circuit may provide the most entertaining and candid examination of the procedure district courts should take in answering that question. In Howard v. Ferrellgas Partners, L.P., Case No. 13-3061, 2014 WL 1363963 (10th Cir. Apr. 8, 2014), the court admonished all parties involved when it reversed an order from the District of Kansas denying arbitration after a year and a half of discovery on the issue of whether arbitration even applied to the parties dispute.  The time spent on discovery appeared to baffle Judge Gorsuch, who writing for the court, noted that the case seemed to…

In Critchfield Physical Therapy, P.C., v. Techhealth, Inc., 2013 WL 791860 (E.D. Mo., March 4, 2013), Judge Fleissig split the difference in this class discovery dispute. Plaintiffs in this putative TCPA class action had moved to compel both the production of full, unredacted lists of fax recipients (including names, addresses, and contact information) in their native format, as well as mirror images of the Defendant's hard drives. The District Court ordered production of the unredacted fax recipient lists subject to a mutually agreeable protective order, reasoning that this information was not only relevant to the merits issue of whether a prior business relationship existed, but also to the class issue of whether all class members were similarly situated with the plaintiff with respect to this defense (i.e., presumably typicality and predominance). And though the District Court declined to order the Defendant to produce a mirror of its hard drives at…

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…

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