I read an interesting post the other day by Michael Thompson in the Wage & Hour Defense Blog, in which he discussed the discoverability of plaintiff ATM and cell phone records in a FLSA collective action case. He discussed the case of Gonzalez v. Allied Concrete Industries, Inc., where the plaintiffs claimed they were not paid overtime in violation of the Fair Labor Standards Act and New York law. The case was filed in federal court in the Eastern District of New York. To help them ascertain whether the plaintiffs were working when they claimed they were, the defendants sought an order compelling discovery of their ATM and cell phone records.
The defendants asserted the records of the plaintiffs’ ATM transactions were likely to lead to the discovery of admissible evidence because they could reveal each plaintiff’s “whereabouts and activities during hours they claim to have been working.” The defendants relied on other precedent where access to ATM records was granted. The Court denied the motion, although it acknowledged the existing precedent.
The Court found that in the other case an evidentiary showing had been made to the effect that the plaintiff attended prolonged lunches during the workweek and withdrew cash from ATMs for that purpose. In the instant case, however, the defendants had not shown any “evidentiary nexus between the en masse discovery sought and a good faith basis to believe that such discovery material is both relevant and proportional to the needs of the case.”
The defendants also sought the release of the plaintiffs’ cell phone records in order to determine whether the plaintiffs “engaged in personal activities such as non-work related telephone calls, extended telephone calls, [and] frequent text messaging” during times they claimed to have been working. There was also precedent for this production but the Court ruled that the defendants had not made a showing that the plaintiffs made personal calls when they were supposed to be working. Thus, the Court ruled that this was mere speculation and did not warrant a “wholesale intrusion into the private affairs” of the plaintiffs.
I have blogged recently about employers obtaining tax records of plaintiffs in FLSA cases. I think this possibility, i.e. obtaining, or requesting, electronic evidence of an employee’s activities through discovery, may be another good tactic. Obviously, some evidential foundation is needed but there may be a possibility that plaintiffs do not want their ATM or cell phone records thrust into the middle of a litigation.
Therefore, they may be more inclined to settle. Something to ponder, isn’t it? Or to try…