Alaska Employment Law

Several employees filed an action that combined an opt-in FLSA collective action with multiple individual state law overtime claims.   When the case approached trial without any Rule 26 damages disclosures from the unnamed class members on either their FLSA or state law claims, the employer moved for exclusionary sanctions.

The trial court granted the motion, and excluded damages evidence for almost every plaintiff.  A 9th Circuit panel has now affirmed.  The panel held:  

Plaintiffs assert that they were substantially justified in failing to disclose damage computations for each opt-in plaintiff because the law is unsettled as to the obligation to disclose such information on an individual basis in FLSA opt-in class of actions. Although the district court accepted Plaintiffs’ argument that the right to individualized discovery in this context remains unsettled, compare Adkins v. Mid-American Growers, Inc., 143 F.R.D. 171, 174 (N.D. Ill. 1992) (precluding individual discovery in FLSA case as inappropriate under the circumstances) with Krueger v. N.Y. Tel. Co., 163 F.R.D. 446, 451 (S.D.N.Y. 1995) (permitting individualized discovery relating to damages in opt-in class action), their argument ignores the fact that each individual opt-in plaintiff was also proceeding on multiple state law causes of action that were not included in the class action. As to those causes of action, Plaintiffs have cited no case, and there appears to be none, to support the argument that disclosure on an individual basis was not required.

The panel also held that the non-disclosure was not harmless.

Later disclosure of damages would have most likely required the court to create a new briefing schedule and perhaps re-open discovery, rather than simply set a trial date.  Such modifications to the court’s and the parties’ schedules supports a finding that the failure to disclose was not harmless.

The panel also held that a Local Rule requiring a pre-filing conference for a Rule 37(c) motion would violate Rule 37, and that Rule 37(c) is “self-executing” and requires no finding of willfulness or bad faith.

Alam v. Construction Protective Services, Inc., 2008 WL _______ (9th Cir. Sept. 4, 2008)

09/16/08 Update:  The Court has issued several corrections.