United States District Court, D. New Jersey
matter comes before the Court on the objection of defendants
to Magistrate Judge Hammer's October 21, 2016 Order (ECF
Nos. 161, 162) ("Discovery Order") requiring them
to produce to plaintiff, Thompson, "for the time period
of March 16, 2008 to the present, the name, address, home
telephone number, email address, job title[s], dates of
employment, company name, and work location, of any and all
underwriters, closers, and HUD reviewers in Georgia and New
Jersey." The Discovery Order-routine in collective
action cases brought under the Fair Labor Standards Act
("FLSA") 29 U.S. §§ 201-19-is manifestly
appropriate. The appeal is DENIED.
for the parties and so assume familiarity with the various
opinions and orders that have been issued in this case.
(See, e.g., ECF Nos. 23-24, 44, 106, 152) I
highlight here the facts and procedural history that are
pertinent to the resolution of this appeal.
action, filed in March 2011, has a stop-and-start history.
There have been two motions to dismiss (ECF. nos. 23, 24), a
trip to the Third Circuit, Thompson v. Real Estate
Mortgage Network, 748 F.3d 142 (3d Cir. 2014) (ECF No.
44), and two motions for judgment on pleadings (ECF Nos. 52,
a former underwriter employed at Security Atlantic Mortgage
Company, Inc., ("SAMC") and Real Estate Mortgage
Network, Inc. ("REMC"), claims that SAMC and REMC
have failed to compensate her for overtime work. Under the
FLSA, Thompson may bring a collective action on behalf of
"employees similarly situated." 29 U.S.C. §
216(b). To determine whether the members of the collective
action are similarly situated to Thompson, a court will
employ a two-stage certification process. Camesi v. Univ.
of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
2013). The first step of that process, a motion for
conditional certification, has yet to be filed.
issue presented here is this: Must the defendants turn over
contact information about potential opt-ins in advance of
conditional certification of the putative class? Following an
oral argument held on October 21, 2016, Judge Hammer ruled
that they must. See (ECF No. 160) To certify (or
not) a proposed class, the Court will eventually have to
decide "whether all the employees worked in the same
department and location[, ]" "whether their claims
are similar[, ]" and "whether the relief that they
seek is similar." Judge Hammer therefore concluded that
the requested information "easily fits within the ambit
of discovery under Rule 26, " Fed.R.Civ.P. (Hrg. Tr.
timely appealed the Discovery Order on November 4, 2016.
District Court will reverse a Magistrate Judge's decision
on a non-dispositive motion only if it is "clearly
erroneous or contrary to law." Fed.R.Civ.P. 72(a); L.
Civ. R. 72.1(c)(1)(A). This Court has frequently spoken of
the discretion granted to the Magistrate Judge in
non-dispositive matters. Where, as here, the appeal seeks
review of a discovery dispute, an abuse of discretion
standard is appropriate. See Cooper Hospital/Univ. Med.
Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998J;
Deluccia v. City of Paterson, No. 09-703, 2012 WL
909548, at *1 (D.N.J. March 15, 2012). Abuse of discretion
review, of course, may get us to much the same place: as a
practical matter it incorporates clear-error review of
factual issues and plenary review of legal questions. See
Koon v. United States, 518 U.S. 81, 100 (1996).
assert that the Order is clearly erroneous for five primary
reasons: (1) the circumstances of this case are
distinguishable from the facts presented in Capitani v.
McDonald's Corp., C.A. No. 08-448, 2010 U.S. Dist.
LEXIS 57873 (D. Del. June 11, 2010) and Stillman v.
Staples, Inc., Civil Action No. 07-849, 2007 U.S. Dist.
LEXIS 58873 (D.N.J. July 30, 2007), on which the Discovery
Order relied; (2) Thompson has no need for the information;
(3) equitable tolling issues do not require the information
to be disclosed; (4) disclosure would violate the privacy
rights of third parties; and (5) the Discovery Order is
overbroad. I consider these reasons, but reject them.
Capitani and Stillman
Capitani and Stillman both stand for the
proposition that pre-conditional certification disclosure of
the "names, address, position, and title of employees
with the same or similar job duties as the plaintiff" is
permissible under the liberal relevancy standard of Rule 26.
Stillman, at *4; Capitani, at * 10-11. As
then-Magistrate Judge Patty Shwartz reasoned, "there is
no basis to delay [disclosure of this information] until
after a ruling on the collective action motion" because
the information goes to "whether or not employees were
impacted by a common policy" and allows the plaintiff to
identify which employees are similarly situated.
Stillman, *2-4. Citing to Stillman, Judge
Farnan in Capitani likewise concluded that "a
list containing the names and contact information of
potential class members" is relevant to whether the
defendant "engages in a policy of wrongly
classifying" employees, and ordered the defendant to
produce such information prior to conditional certification.
do not argue that Stillman or Capitani are
contrary to some other controlling precedent.Defendants instead
stress that Stillman and Capitani courts
ordered the production of only a "narrow" range of
information for individuals with the same job title who
suffered the same injury as the plaintiff. That argument,
however, begs a fundamental question: Are the members of the
proposed class similarly situated to Thompson? Defendants are
saying in effect that discovery is inappropriate now because
(after discovery, presumably?) they will defeat a motion to
certify a class later. Perhaps so, or perhaps not. Either
way, I will not give what amounts to a preliminary, or even
preemptive, ruling on the certification
The Discovery is Superfluous Defendants next argue
that Thompson doesn't need the names and other
identifying information of potential opt-ins. Defendants say
they have already produced other information that Thompson
might use to determine whether potential opt-ins are
similarly situated. But strict necessity is not the
applicable legal standard. In light of certification
issues-e.g., "whether all the employees worked
in the same department and location[, ]" "whether
their claims are similar[, ]" and "whether the
relief that they seek is similar"-Judge Hammer correctly
ruled that the information requested was relevant, and indeed
"classic document discovery" under Rule 26. (Hrg.
Tr. 31:9-30; 33:14-15; 34:16-19) To resist turning over the
information, defendants needed to show lack of relevancy or
undue burden. See, e.g.; EEOC v. Princeton Healthcare
Sys., Civ. Action No. 10-4126 2012 U.S. Dist. LEXIS
65115, at *54-55 (D.N.J. May ...