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E-Discovery Issues Emerge as Wage-and-Hour Litigation Soars

Increase in Employment Law Cases

Twice in two days I have seen articles about the growing number of wage-and-hour cases filed each year.

In an article for Corporate Counsel, Richard Alfred of Seyfarth Shaw notes that filings of Fair Labor Standards Act (“FLSA”) cases in federal court have “skyrocketed” in recent years, citing the Federal Judicial Caseload Statistics. According to those statistics, the number of FLSA cases filed in federal court between 2010 and 2011 increased more than 15 percent; over the last ten years, the increase was a whopping 325 percent. Alfred points to several reasons for the steady increase: the cases are easier and less expensive for plaintiffs’ lawyers to litigate than discrimination cases; the payouts can be extremely high; and there is much uncertainty in how the FLSA – a relic from the 1930s and 1940s – should be applied in today’s very different workplace.

A recent Law 360 article also examines this trend of increased FLSA filings, mentioning some of the same reasons as Alfred, but also noting that application of an overly lenient standard for conditional class certification has contributed to the increase.

E-Discovery Issues in Employment Law Cases

Along with the growing liability exposure all employers face as a result of these lawsuits, the costs of defending each case are also increasing as the e-discovery issues become more complex and more broad. Heather Morgan (my former partner at Paul Hastings) and I explored some of these thorny e-discovery challenges in a webinar last year; I invite you to listen to the webcast, Unique E-Discovery Challenges in Employment Litigation, if you weren’t able to join us. Some of the most significant challenges include:

  • The difficulty of determining the appropriate parameters of a legal hold when the scope of the class or collective action is still unknown. The headline-grabbing case of Pippins v. KPMG, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012), examines this issue, and provides a sobering look at how expensive and disruptive it can be to implement a broad legal hold on electronic information across a large company.
  • The unique concerns that arise when producing information from complex structured databases. Wage-and-hour litigation typically involves the analysis and production of information from timekeeping, payroll, and other databases, which can pose tricky legal and practical problems.
  • The potentially large volume of information subject to discovery. When a class or collective action involves thousands – or maybe hundreds of thousands – of individual employees, the sheer volume of data at issue can be overwhelming.
  • Evidence useful in exempt status cases often defies the use of search terms and other automated techniques. In wage-and-hour cases alleging the improper classification of employees as exempt from overtime, the proof of an applicable exemption rides on the nature of the employee’s job duties and responsibilities. In theory, virtually every document and email found in an employee’s possession might shed some light on his or her job duties, and narrowing down the universe of information to a manageable subset of documents can be difficult.

E-Discovery Solutions for Employment Law Cases

As daunting as these e-discovery challenges may seem, there are solutions. DiscoverReady’s Employment Law Practice Group has extensive experience in all types of employment law matters, having handled complex employment litigation and agency proceedings for the most sophisticated clients in virtually every industry. We leverage that experience to provide our clients with cutting-edge ways to solve even the most vexing discovery problems.

Maureen O'Neill