RULES GOVERNING INITIAL DISCOVERY
PROTOCOLS FOR FAIR LABOR STANDARDS ACT CASES
PART 1: INTRODUCTION AND DEFINITIONS.
(1) Statement of purpose.
a. The Initial Discovery Protocols are not intended to preclude or modify the rights of any
party for discovery as provided by the Federal Rules of Civil Procedure and other
applicable local rules, but they are intended to supersede the parties’ obligations to make
initial disclosures under FED. R. CIV. P. 26(a)(1) for the FLSA Claims.
b. The Initial Discovery Protocols were prepared by a balanced group of highly
experienced attorneys from across the country who regularly represent plaintiffs or
defendants in FLSA matters. The Protocols require the exchange of information and
documents routinely requested in FLSA cases. They are unlike initial disclosures under
FED. R. CIV. P. 26(a)(1) because they focus on the type of information most likely to
be useful in narrowing the issues for FLSA cases.
(2) Definitions. The following definitions apply to cases proceeding under the Initial
Discovery Protocols.
a. Concerning. The term “concerning” means referring to, describing, evidencing, or
constituting.
b. Document. The terms “document” and “documents” are defined to be synonymous in
meaning and equal in scope to the terms “documents” and “electronically stored
information” as used in FED. R. CIV. P. 34(a).
c. Identify (Documents). When referring to documents, to “identify” means to give, to the
extent known: (i) the type of document; (ii) the general subject matter of the document;
(iii) the date of the document; (iv) the author(s), according to the document; and (v) the
person(s) to whom, according to the document, the document(or a copy) was to have
been sent; or, alternatively, to produce the document.
d. Identify (Persons). When referring to natural persons, to “identify” means to give the
person’s: (i) full name; (ii) present or last known address and telephone number; (iii)
present or last known place of employment; (iv) present or last known job title; and (v)
relationship, if any, to the plaintiff or defendant. Once a person has been identified in
accordance with this subparagraph, only the name of that person need be listed in
response to subsequent discovery requesting the identification of that person.
e. Defendant. Any person or entity alleged to be an employer or joint employer of the
plaintiff(s) in the operative Complaint, unless otherwise specified.
f. Plaintiff. Any named individual(s) alleging FLSA Claim(s) in the operative Complaint.
(3) Instructions.
a. For this Initial Discovery, the relevant time period begins two years before the date the
initial Complaint was filed, or, if willfulness is alleged, three years. If the Plaintiff
alleges a shorter relevant time period, then that is the time period for Initial Discovery.
b. For this Initial Discovery, the relevant time period continues through the last date for
which the Plaintiff seeks recovery or relief.
c. This Initial Discovery is not subject to objections except for the reasons under FED. R.
CIV. P. 26(b)(2)(B) or on the grounds of privilege or work product. Documents withheld
based on a claim of privilege or work product are subject to the provisions of FED. R.
CIV. P. 26(b)(5).
d. If a partial or incomplete answer or production is provided, the responding party must
state the reason that the answer or production is partial or incomplete.
e. This Initial Discovery is subject to FED. R. CIV. P. 26(e) on supplementation and FED. R.
CIV. P. 26(g) on certification of responses.
f. This Initial Discovery is subject to FED. R. CIV. P. 34(b)(2)(E) on form of production.
g. This Initial Discovery will be subject to the attached Interim Protective Order unless the
parties agree or the court orders otherwise. The Interim Protective Order will remain in
place only until the parties agree to or the court orders a different protective order.
Absent agreement by the parties, the Interim Protective Order will not apply to
subsequent discovery.
h. Prior to the production of documents by either Party to the other pursuant to the Initial
Discovery Protocols, the Parties will meet and confer regarding the format (e.g.
TIFF/text, searchable .pdf, Excel) for such production. This will not delay the
timeframes for Initial Discovery absent ruling by the court.
PART 2: PRODUCTION BY THE PLAINTIFF.
(1) Timing.
The Plaintiff’s Initial Discovery must be provided within 30 days after the Defendant has
submitted a responsive pleading or motion, unless the court rules otherwise.
(2) Documents that the Plaintiff must produce to the Defendant.
a. Documents created or maintained by the Plaintiff recording time worked.
b. Documents created or maintained by the Plaintiff recording wages or other compensation
paid or unpaid by the Defendant.
c. If the Plaintiff reported or complained internally to the Defendant (including but not
limited to supervisors or administrative departments, such as human resources, payroll,
timekeeping or benefits) about the FLSA Claim(s), the report(s) or complaint(s) and any
response that the Defendant provided to the Plaintiff.
d. Any offer letters, employment agreements, or compensation agreements for the Plaintiff.
e. Any sworn statements from individuals with information relevant to the FLSA Claim(s).
f. Documents that the Plaintiff relies on to support a claim of willful violation.
g. All other documents that the Plaintiff relies on to support the Plaintiff’s FLSA Claim(s).
(3) Information that the Plaintiff must produce to the Defendant.
a. Identify persons the Plaintiff believes to have knowledge of the facts concerning the
FLSA Claim(s) or defenses, and a brief description of that knowledge.
b. Identify the start and end dates for the FLSA Claim(s);
c. The Plaintiff’s title or position and a brief description of the Plaintiff’s job duties for the
relevant time period.
d. Describe the basis for the FLSA Claim(s).
e. A computation of each category of damages claimed by the Plaintiff, including a)
applicable dates, b) amounts of claimed unpaid wages, and c) the method used for
computation (including applicable rates and hours).
f. The names of the Plaintiff’s supervisors during the relevant time period.
g. If the Plaintiff reported or complained about the FLSA Claim(s) to any government
agency, the identity of each such agency, the date(s) or such reports or complaints, and
the outcome or status of each report or complaint.
h. If the Plaintiff reported or complained to the Defendant (including but not limited to
supervisors or administrative departments such as human resources, payroll,
timekeeping or benefits) about the any FLSA Claim(s), state whether the report or
complaint was written or oral, when the report or complaint(s) was made, to whom any
report or complaint(s) were made, and any response provided by the Defendant.
PART 3: PRODUCTION BY THE DEFENDANT.
(1) Timing.
The Defendant’s Initial Discovery must be provided within 30 days after the Defendant
has submitted a responsive pleading or motion, unless the court rules otherwise.
(2) Documents that the Defendant must produce to the Plaintiff.
a. Time and pay records created or maintained by the Defendant for the Plaintiff.
b. If the Plaintiff reported or complained internally to the Defendant (including but not
limited to supervisors or administrative departments, such as human resources, payroll,
timekeeping or benefits) about the FLSA Claim(s), the report(s) or complaint(s) and any
response that the Defendant provided to the Plaintiff.
c. Any sworn statements from individuals with information relevant to the FLSA Claim(s).
d. Documents that the Defendant relies on to support a claim that any alleged violation was
in good faith.
e. Any offer letters, employment agreements, or compensation agreements for the Plaintiff.
f. Collective bargaining agreement(s) applicable to the Plaintiff.
g. The job description for the position(s) the Plaintiff held during the relevant time
period(s), if the job duties are at issue in the FLSA Claim(s).
h. The Defendant’s policies, procedures, or guidelines for compensation that are relevant
to the FLSA Claim(s).
i. The cover page, table of contents, and index of any employee handbook, code of conduct,
or employment policies and procedures manual pertaining to compensation or time
worked.
j. Any other documents the Defendant relies on to support the defenses, affirmative
defenses, and counterclaims to the FLSA Claim(s).
k. Any insurance agreement under which an insurance business may be liable to satisfy all
or part of a possible judgment in the action or to indemnify or reimburse for payments
made to satisfy the judgment.
(3) Information that the Defendant must produce to the Plaintiff.
a. Provide the following information related to the Plaintiff:
1. Start and end dates for work performed;
2. Work location(s);
3. Job title(s);
4. Employee or contractor identification number;
5. In cases alleging the misclassification of the Plaintiff, the classification status of
the Plaintiff (i.e., exempt or non-exempt);
6. Immediate supervisor(s) and/or manager(s).
b. If the Defendant does not have a job description for the Plaintiff, a brief description of
the Plaintiff’s job duties for the relevant time period(s), if the job duties are at issue in
the FLSA Claim(s).
c. Identify persons the Defendant believes to have knowledge of the facts concerning the
FLSA Claim(s) or defenses, and a brief description of that knowledge.
d. If the Plaintiff reported or complained to the Defendant about the FLSA Claim(s),
whether the report(s) or complaint(s) were written or oral, when the report(s) or
complaint(s) were made, to whom any report(s) or complaint(s) were made, and any
response(s) provided by the Defendant.
