Fast’s Four Factors: A Solution to Similarly Situated Discovery Disputes in FLSA Collective Actions

Abstract

A struggling economy and plaintiff-friendly fee-shifting provisions have combined to breathe new life into the Fair Labor Standards Act nearly seventy-five years after its enactment. Among the thousands of new cases brought every year, FLSA litigants are increasingly involved in disputes over the extent of allowable discovery on the individual members of an FLSA plaintiff class. The FLSA’s enforcement provision requires all plaintiffs in a collective action suit to be “similarly situated.” As a result, defendant companies frequently request extensive individualized discovery of the various class members, hoping to bolster their motions for summary judgment following the discovery phase of litigation by showing that the various plaintiffs are not, in fact, similarly situated.  Plaintiffs naturally resist.

This Comment proposes congressional adoption of a four-prong test to guide trial courts as they adjudicate these increasingly lengthy and costly FLSA discovery disputes. The test, originally enunciated by a Missouri district court in 2008, requires discovery to conform with four factors: (1) The discovery is not being sought for the purpose of depriving the opt-in plaintiff of his or her class status; (2) the discovery is simple enough that it does not require the assistance of counsel to answer; (3) the discovery meets the standards of Federal Rule of Civil Procedure 26; and (4) the information is not otherwise available to the defendant.

These four factors combine to provide trial courts with an efficient means to adjudicate collective action discovery disputes. Absent congressional adoption, several alternatives exist, including judicial acceptance and application of the factors as persuasive authority, establishing bright-line rules, and increased self policing among litigants.