In Fair Labor Standards Act (“FLSA”) collective actions, the parties often disagree about the propriety of conducting discovery pertaining to a representative sample of the FLSA collective rather than from each and every collective member. The use of such representative discovery is widely accepted at this point, especially when the collective consists of hundreds of opt-in plaintiffs. However, after agreeing to the concept of representative discovery, the parties still need to reach agreement over some important details. The most basic source of disagreement is the size of the representative sample. E.g.: Should the sample include 10%, 15%, or 20% of the opt-in plaintiffs? A second source of disagreement is the method by which the sample of opt-in plaintiffs should be selected. In this regard, I want to direct you to a thoughtful opinion issued a few months ago by Southern District of Ohio Magistrate Judge Chelsey M. Vascura and entitled Rosenbohm v. Cellco Partnership, 2:17-cv-00731 (S.D. Ohio May 16, 2019). Therein, the Judge concisely explains the reasons why, as a matter of basic statistics, the representative sample should be comprised of a randomly selected group of opt-in plaintiffs. The Judge also explains that “[h]and-picking [the sample of opt-in plaintiffs] is almost certain to introduce a substantial amount of selection bias into the sample.” I strongly recommend that attorneys contemplating representative discovery in FLSA collective actions read this opinion. -PW
