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
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.
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
Therefore, they may be more inclined to settle. Something
to ponder, isn't it? Or to try...
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