Closing The Loop

Get ready for a new, more standardized approach to discovery—at least in certain federal wage and hour lawsuits.

Early this year, the Federal Judicial Center released a new set of protocols meant to guide the discovery process in non-collective-action Fair Labor Standards Act cases. This new, nonbinding approach to discovery establishes a standard timeline for the exchange of documents and information related to work schedules, employment contracts, and other information typical of such lawsuits—all with the goal of reducing discovery burdens and quickly narrowing the issues in litigation. 


Introducing the Initial Discovery Protocols

The new protocols, poetically titled “Initial Discovery Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions,” follow on the success of the existing Employment Protocols. Like the Initial Discovery Protocols, the Employment Protocols systematize the initial exchange of information—there in federal employment cases involving adverse actions. Released as a pilot project in 2011, the Employment Protocols emerged as a response to the desire to avoid unnecessary cost and delay by institutionalizing “pattern discovery” in certain cases. Since then, more than 50 judges and multiple jurisdictions have implemented the Employment Protocols.

And those protocols seem to have accomplished some of their goals. According to a report issued by the Federal Judicial Center in 2015, cases that employed the Employment Protocols saw about half the discovery motions as those without. They similarly saw fewer motions to dismiss and fewer motions for summary judgment. The expectation is that the Initial Discovery Protocols will have a similar impact in FLSA litigation.


What’s Included in the Initial Discovery Protocols

According to the FJC, “The Initial Discovery Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to FLSA cases.”

This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the Federal Rules of Civil Procedure is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Initial Discovery Protocols are accompanied by a Standing Order for their implementation by individual judges, as well as an Interim Protective Order that the attorneys and the judge can use as a template for discussion.

While the protocols do not preclude discovery as provided by the FRCP, they “are intended to supersede” initial disclosure obligations under Rule 26(a)(1) for FLSA claims.  

Under the protocols, once the defendant has submitted a responsive pleading or motion, plaintiffs must produce, within 30 days, the following documents:

  • Documents created or maintained by the Plaintiff recording time worked.
  • Documents created or maintained by the Plaintiff recording wages or other compensation paid or unpaid by the Defendant.
  • If the Plaintiff reported or complained internally to the Defendant (including but not limited to supervisors or administrative departments, such as human resources, payroll, timekeeping or benefits) about the FLSA Claim(s), the report(s) or complaint(s) and any response that the Defendant provided to the Plaintiff.
  • Any offer letters, employment agreements, or compensation agreements for the Plaintiff.
  • Any sworn statements from individuals with information relevant to the FLSA Claim(s).
  • Documents that the Plaintiff relies on to support a claim of willful violation.
  • All other documents that the Plaintiff relies on to support the Plaintiff’s FLSA Claim(s).

Similarly, defendants must provide their initial discovery within the same 30 day period, including:

  • Time and pay records created or maintained by the Defendant for the Plaintiff.  
  • If the Plaintiff reported or complained internally to the Defendant (including but not limited to supervisors or administrative departments, such as human resources, payroll, timekeeping or benefits) about the FLSA Claim(s), the report(s) or complaint(s) and any response that the Defendant provided to the Plaintiff.
  • Any sworn statements from individuals with information relevant to the FLSA Claim(s).
  • Documents that the Defendant relies on to support a claim that any alleged violation was in good faith.
  • Any offer letters, employment agreements, or compensation agreements for the Plaintiff.
  • Collective bargaining agreement(s) applicable to the Plaintiff.
  • The job description for the position(s) the Plaintiff held during the relevant time period(s), if the job duties are at issue in the FLSA Claim(s).
  • The Defendant’s policies, procedures, or guidelines for compensation that are relevant to the FLSA Claim(s).
  • The cover page, table of contents, and index of any employee handbook, code of conduct, or employment policies and procedures manual pertaining to compensation or time worked.
  • Any other documents the Defendant relies on to support the defenses, affirmative defenses, and counterclaims to the FLSA Claim(s).
  • Any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

In addition to the above documents, the protocols require the exchange of certain information, such as a computation of damages claimed, from the plaintiff, and, from the defendant, information on reports created in response to any earlier plaintiff complaints.

They also require an initial meet and confer regarding production formats prior to any exchange of documents. However, this meet and confer shall not delay the initial discovery timelines, “absent ruling by the court.”

Finally, the protocols contemplate the “immediate entry of a protective order” in order to “allow the parties to commence discovery without delay.” Under the Interim Protective Order provided, any party may designate any document, or information contained in a document, as confidential, thus limiting its disclosure outside of the requesting party, counsel, legal staff, those from whom testimony is to be taken, and the court.


Likely to Spread Beyond Just FLSA Litigation

In 2016, the FJC reported that the initial Employment Protocols had been adopted in a variety of contexts, reaching “more widely than one would expect given the parameters in the pilot materials”.

It’s a fair bet that these new protocols will have an impact beyond just wage and hour litigation as well—either by their adoption in novel areas or simply by educating the bar on how to approach the early stages of some discovery processes.


This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull. 
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