Electronic Discovery Law

Ayers v. SGS Control Servs., 2006 WL 618786 (S.D.N.Y. Mar. 9, 2006)

Plaintiffs sued under the Fair Labor Standards Act ("FLSA"), alleging that defendants, through their payroll practices, failed to compensate their employees for overtime work. Plaintiffs requested that defendants be ordered to produce a tabulation containing mathematical information regarding payroll and timekeeping data. Defendants claimed that the tabulation was protected by the work product privilege.

The court granted the request, finding that the tabulation did not constitute work product. It noted that the defendants had not claimed that the underlying information was privileged, and that the data had been produced to plaintiffs in discovery. "Disclosure of the tabulation will, therefore, not reveal litigation strategy or the mental impressions or thought processes of counsel."

The court went on to state that, even if the tabulation did constitute work product, plaintiffs had made a showing sufficient to overcome the qualified work product protection. It observed that plaintiffs could secure the disclosure of the tabulation upon showing: (1) substantial need and (2) that they could not obtain the substantial equivalent through other means without undue hardship. The court found that plaintiffs had satisfied the threshold requirement of substantial need insofar as the number and frequency of minimum wage adjustments was relevant for determining whether defendants' payroll practices were lawful.

As to the showing of undue hardship, the court stated:

It is possible for plaintiffs to determine when a minimum wage adjustment was applied by analyzing the payroll and timekeeping records produced in discovery. Both parties agree, however, that the calculation is mathematically complicated and time consuming. The undertaking is made more difficult because the payroll and timekeeping information has been provided in hard copy format. Since the data is not in electronic format, it cannot be manipulated. Defendants assert that some of the payroll and timekeeping data is available in electronic format. The electronic source, however, contains payroll and timekeeping records for all of defendants' employees, and not just the employees that are relevant in this action. Defendant is currently exploring whether the relevant electronic data can be segregated and extracted, and made available to plaintiffs. Even if the defendants were to produce the data in electronic format, however, the plaintiffs would still have to perform the time consuming data analysis and complicated mathematical calculations. This calculation presents an undue burden on the plaintiffs. In contrast, defendants could make duplicates of their tabulation records quickly and inexpensively.

The court concluded: "In light of [FRCP] Rule 1, since the time frame and cost associated with the analysis of the payroll and timekeeping records is uncertain, and because plaintiffs will be entitled to attorney's fees if they succeed in this action under FLSA, the production of the tabulation is appropriate."

In addition, the court stated that defendants' failure to include the tabulation in a privilege log waived any protection that may have otherwise applied.