Proceedings

On March 2, 2011, Kevin Dwaine Mitchell and Natasha Lytle (“Plaintiffs”) filed this class and collective action lawsuit against Acosta Sales, LLC, et al. (“Defendants”) on behalf of themselves and similarly situated merchandiser employees. Plaintiffs allege that Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the California Labor Code by failing to pay its merchandiser employees for all hours worked, including for time spent uploading and downloading information to Defendants’ computer servers before and after their shifts. Plaintiffs also allege that Defendants violated California Labor Code section 2802 by failing to reimburse merchandisers in California for required business expenses, including the costs of high-speed internet access, cell phones, and vehicle use. Plaintiffs seek backpay, reimbursements, liquidated damages, attorneys’ fees, and costs of suit. (ECF No. 53 at 1.)

Two related cases, the Torrez and Sutton actions, were filed in early 2011. Those cases also alleged similar claims against Defendants on behalf of merchandisers in California and nationwide. Plaintiffs in those actions were formally added as parties in the First Amended Complaint filed in the current action on June 29, 2011. (Id. at 2.)

On August 10, 2011, the parties filed a Joint Stipulation Re: Plaintiffs’ Motion to Compel Further Responses to Requests for Production of Documents (“RFP”), along with supporting declarations and exhibits. (ECF Nos. 53-57.) On August 17, 2011, Plaintiffs filed a Supplemental Memorandum in support of the Motion to Compel, along with a supporting declaration. (ECF Nos. 73, 74.)

The Court finds this matter suitable for decision without oral argument. Fed. R. Civ. P. 78(b); Local Rule 7-15. As a result, the Court vacates the hearing date set for August 31, 2011, at 9:30 a.m. For the reasons set forth below, the Court denies in part and grants in part Plaintiffs’ Motion to Compel.

II.

Discussion

A. Legal Standards.

1. FLSA Claims.

Under the FLSA, an employer is liable to its employees for any unpaid overtime compensation. See 29 U.S.C. §§ 207(a), 216(b). An action may be maintained by an employee on behalf of himself “and other employees similarly situated.” 29 U.S.C. § 216(b), see also Does I though XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000). A “putative plaintiff must affirmatively opt in to a § 216(b) action” by filing with the district court a written consent to sue. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001); see also Advanced Textile, 214 F.3d at 1064; 29 U.S.C. § 216(b).

By contrast, “[i]n a Rule 23 class action, each person who falls within the class definition is considered to be a class member and is bound by the judgment, favorable or unfavorable, unless he has opted out.” Hipp, 252 F.3d at 1216. As a result, while an FLSA collective action follows an “opt-in” procedure, a Rule 23 class action follows an “opt-out” procedure. SeeMooney v. Aramco Serv. Co., 54 F.3d 1207, 1212 (5th Cir. 1995). Because the FLSA claims are the basis for this Court’s jurisdiction, the Motion to Compel as to these claims is considered first.

*2 “To maintain an opt-in class under § 216(b), plaintiffs must demonstrate that they are ‘similarly situated.’ ” Hipp, 252 F.3d at 1217; 29 U.S.C. § 216(b). Though “similarly situated” is not defined in § 216(b) and the Ninth Circuit has not prescribed a test for determining when the standard has been met, a number of courts in this district have used the two-tiered approach adopted by the Fifth, Tenth, and Eleventh Circuits. See, e.g., Misra v. Decision One Mortg. Co., Inc., 673 F. Supp. 2d 987, 992-93 (C.D. Cal. 2008) (citing Pfohl v. Farmers Ins. Grp., No. CV03-3080 DT (RCx), 2004 WL 554834, at *2 (C.D. Cal. Mar. 1, 2004)) (a majority of courts have adopted the two-step approach); Edwards v. City of Long Beach, 467 F. Supp. 2d 986 (C.D. Cal. 2006) (citing Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)) (following “the majority approach” in applying the two-step approach for determining whether certification of § 216(b) collective action is appropriate); Sarviss v. Gen. Dynamics Info.Tech. Inc., 663 F. Supp. 2d 883, 903 (C.D. Cal. 2009) (citations omitted) (most courts, including those in the Ninth Circuit and California, have adopted the two-step approach); Ferrell v. ConocoPhillips Pipe Line Co., No. 5:09-cv-00431-RRP-OP, 2010 WL 1946896, at *4 (C.D. Cal. May 12, 2010); Pfohl, 2004 WL 554834, at *2-3; Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1081-82 (C.D. Cal. 2002).

Under the two-tiered approach, a court first determines, “on an ad hoc case-by-case basis, whether plaintiffs are ‘similarly situated.’ ” Thiessen v. GE Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (citing Mooney, 54 F.3d at 1213). This is typically referred to as the “notice stage” because the court “makes a decision-usually based only on the pleadings and any affidavits which have been submitted-whether notice of the action should be given to potential class members.” Mooney, 54 F.3d at 1213-14.

Because the court only has minimal evidence at the “notice stage,” the determination of whether opt-in plaintiffs will be similarly situated “is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class.” Id. at 1214. Courts require “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen, 267 F.3d at 1102-03 (internal quotation marks omitted).

Although at this stage the plaintiff’s evidence may show no more than a pattern of illegal conduct, this does not prevent conditional certification, which is properly understood as a case management tool and a means by which courts can oversee and guide discovery. See Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 169, 172, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989) (“Section 216(b)’s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly [and] sensible ...”).

After the court “conditionally certifies” a representative class, it may authorize the named plaintiffs to send notice to all potential plaintiffs and set a deadline by which opt-in plaintiffs must file consents to join the suit. SeeAdvanced Textile, 214 F.3d at 1064 (citing Hoffmann-LaRoche, 493 U.S. at 169, 172). To implement this process, the court may permit discovery of the names and addresses of the putative plaintiffs and approve specific notice language. See Hoffman-LaRoche, 493 U.S. at 486, 488. The case then proceeds as a representative action throughout discovery. Mooney, 54 F.3d at 1214.

The second stage of the two-tiered approach usually is precipitated by a motion for decertification by the defendant and occurs “after discovery is largely complete and the matter is ready for trial.” Id. At this stage, the court has much more evidence on which to base its decision, and makes a factual determination on whether the opt-in plaintiffs are similarly situated. Id. The court may weigh several factors, including: “(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear[ ] to be individual to each plaintiff; and (3) fairness and procedural considerations.” Pfohl, 2004 WL 554834, at *2 (citing Thiessen, 267 F.3d at 1103).

*3 If the court finds the claimants are similarly situated, the representative action will proceed to trial. Mooney, 54 F.3d at 1214. If, on the other hand, the claimants are not similarly situated, the court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. Id. The original named plaintiffs and former class representatives then proceed to trial on their individual claims. Id.

2. Discovery.

The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure and Evidence. Rule 26 provides in pertinent part that:

Fed. R. Civ. P. 26(b)(1).

Rule 33 of the Federal Rules of Civil Procedure governs requests for responses to interrogatories. The responding party must serve its answers and any objections to the interrogatories in writing within thirty days after being served with the interrogatories. Fed. R. Civ. P. 33(b)(2), (3). Any objections to the interrogatories must be stated with specificity, and any objection not stated in a timely manner is waived unless the court finds good cause to excuse to failure to timely respond. Fed. R. Civ. P. 33(b)(4).

Rule 34 governs requests for production of documents, electronically stored information, and tangible things. Upon receiving a request for production, the party to whom the request is directed must respond in writing within thirty days. Fed. R. Civ. P. 34(b)(2)(A). Any objections to a request must provide the reasons for the objections. Fed. R. Civ. P. 34(b)(2)(B).

Rule 37 allows for the filing of a motion to compel if a party fails to provide answers to interrogatories or fails to respond to a request for production of documents. Fed. R. Civ. P. 37(a)(3)(B). A failure to respond to an interrogatory or a request for production of documents is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). Fed. R. Civ. P. 37(d)(2). Sanctions in the form of attorney’s fees must be imposed for failure to serve answers to interrogatories, failure to comply with requests for production, or failure to appear at a properly noticed deposition, unless the failure was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(d)(3).

Trial courts have broad discretion in granting or denying discovery. Santos ex rel. Santos v. City of Culver City, 228 Fed. App’x 655, 657 (9th Cir. 2007)(“broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.”) (citations omitted).

B. Plaintiffs’ Motion to Compel (ECF No. 53).

*4 It is against this backdrop that Plaintiffs bring their Motion to Compel in which they seek an order compelling Defendants to: (1) provide Plaintiffs with the identities and contact information of proposed FLSA class members prior to certification (Interrogatory No. 4); (2) provide Plaintiffs with the identities and contact information for proposed California class members without first requiring the parties to engage in a notice and opt-out procedure, subject to a protective order (Interrogatory No. 1); and (3) provide Plaintiffs with a representative sample set of data for proposed class members (but without class member names or other personal identifying information), including the compensation and reimbursements paid to them and records of the time they spent uploading and downloading data before and after their shifts (RFP Nos. 28, 29, 30, 31; Interrogatory No. 6). (ECF No. 53 at 1.)

1. Interrogatory No. 4: Should Defendants provide Plaintiffs with the identities and contact information of proposed FLSA classmembers?

In Interrogatory No. 4, Plaintiffs asks Defendants to “IDENTIFY the individuals ACOSTA has employed or otherwise engaged as MERCHANDISERS in the United States from March 2, 2008, through the present.”

Plaintiffs requested that Defendants produce the identities, contact information such as addresses and phone number, and job titles for Defendants’ merchandisers nationwide who are putative FLSA opt-in plaintiffs. In response, Defendants disclosed ten “active” job titles within the company that currently engage in merchandising jobs and five additional “inactive titles” that engaged in merchandising jobs within the class period. Because Plaintiffs do not know how many potential opt-in plaintiffs worked in each of these job titles, they contend that they should have the opportunity to contact individuals who held each of these job titles to ascertain whether they were subject to the same overtime policies Plaintiffs challenge in this case. They further contend that their ability to do so will facilitate the defining scope of the FLSA class that Plaintiffs will move to conditionally certify and may also facilitate an earlier motion for conditional certification which will, in turn, give potential plaintiffs an earlier ability to opt-in and preserve the statute of limitations on their FLSA claims. (Id. at 14-15 (citations omitted).)

Defendants contend that they are not required to provide any contact information for potential plaintiffs until after the collective action is conditionally certified by the Court. (Id. at 16-17 (citations omitted).)

It is well settled that at the “notice” stage, district courts have the discretion under § 216(b) of the FLSA to direct a defendant employer to disclose the names and addresses of potential class members. Hoffman-LaRoche, 493 U.S. at 170 (approving district court’s order permitting discovery of names and addresses of employees who had not yet opted in to the action in order to facilitate notice). Discovery of contact information thus facilitates the issuance of a notice informing potential “opt-in” plaintiffs of the collective action.[1]

Courts that follow the two-step procedure set forth in Hipp, including courts in the Ninth Circuit, often require the court to first determine whether it will conditionally certify the class prior to giving notice and, therefore, routinely deny pre-certification disclosure of contact information as premature. See, e.g., Prentice v. Fund for Pub. Interest Research, Inc., No. C-06-7776 SC, 2007 WL 2729187, at *3 (N.D. Cal., Sept. 18, 2007) (holding that “the FLSA, however, does not require Defendants to provide contact information for potential plaintiffs until after the court certifies the collective action”); see also Adams v. Inter- Con Sec. Sys., Inc., 242 F.R.D. 530, 543 (N.D. Cal. 2007) (citing Hoffman-La Roche, 493 U.S. at 170) (recognizing that under the FLSA “defendant is only required to provide potential plaintiffs’ contact information after conditional certification”).

*5 Other courts in this and other circuits have generally ordered discovery of contact information after determining notice to putative class members is appropriate. These courts tend to view the discovery of contact information in actions under the FLSA as facilitating the issuance of a notice informing potential “opt-in” plaintiffs of the collective action once conditional certification has been granted. See, e.g., Carter v. Anderson Merch., LP, EDCV 08-25-VAP (OPx); 2008 WL 2783193, at *7 (C.D. Cal. July 10, 2008); see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266-67 (E.D. N.Y. 2005) (after determining the threshold issue of whether putative FLSA class members are “similarly situated,” court may order notification and order employer to disclose names and addresses of potential class members to facilitate notice); Stephens v. Erosion Containment Mgmt., Inc., No. 8:07-CV-1995-T-30MAP, 2008 WL 2157095, at *1 (M.D. Fla. May 21, 2008)(discovery of contact information prior to conditional certification is premature); Barton v. Pantry, Inc., No. 1:04CV00748, 2006 WL 2568462, at *2 (M.D.N.C. Aug. 31, 2006) (contact information not due until court rules on motion for conditional certification); Crawford v. Dothan City Bd. of Educ., 214 F.R.D. 694, 695 (M.D. Ala. 2003) (discovery of contact information should only be allowed after a collective action has been conditionally certified).

In contrast, some courts, primarily in the Southern District of New York, have found that conditional certification is not a prerequisite to the discovery of information concerning the identity of potential class members. See, e.g., Fei v. WestLB AG, No. 07 Civ. 8785(HB)(FM), 2008 WL 7863592, at *2 (S.D. N.Y. Apr. 23, 2008) (citations omitted) (although acknowledging that courts often grant such motions to compel in tandem with the decision to grant conditional certification); see also Whitehorn v. Wolfgang’sSteakhouse, Inc., No. 09 Civ. 1148(LBS), 2010 WL 2362981 at *2 (S.D. N.Y. June 14, 2010) (pre-certification discovery of employee contact information will enable a plaintiff to make a fuller showing at the conditional certification stage or reveal that the collective action is not suitable for certification; early access may allow a plaintiff to move for conditional certification earlier and potentially permit putative class members to opt-in earlier).

In short, while there is no blanket prohibition against permitting disclosure of contact information prior to certification in an opt-in collective action, the weight of authority in this Circuit and others, finds such discovery premature unless conditional certification has been granted. Plaintiffs have not provided any Ninth Circuit authority to the contrary.[2] Further, as set forth above, trial courts have broad discretion in granting or denying discovery. Santos ex rel. Santos, 228 Fed. App’x at 657. Accordingly, the Court finds that discovery of employee contact information for the FLSA action is premature. Thus, the denial of Plaintiffs’ Motion to Compel with respect to Interrogatory No. 4 is warranted.

2. Interrogatory No. 1: Should Defendants provide Plaintiffs with theidentities and contact information for proposed California classmembers without first requiring the parties to engage in a notice and opt-out procedure?

In Interrogatory No. 1, Plaintiffs ask Defendants to “IDENTIFY the individuals ACOSTA has employed or otherwise engaged as MERCHANDISERS in California from March 2, 2007, through the present.”

Defendants have agreed to produce the requested identities, contact information, including mailing addresses, phone numbers,[3] and job titles for Defendants’ merchandisers employed in California. However, Defendants insist that the discovery be provided after formal notice of the lawsuit can be sent to each putative California class member so that they can consent to the disclosure of their name and contact information by having the ability to “opt-out” before disclosure to Plaintiffs’ counsel. Defendants contend that the opt-out notice is required in order to protect the privacy concerns of the putative class members. (Id. at 8-10.) Defendants further contend that Plaintiffs’ position is inconsistent with their agreement to use the opt-out procedure in two other California federal and state cases involving nearly identical issues as in this case. (Id. at 12.)

*6 The Court notes that the Rule 23 motion to certify a California class in this case has been proposed by the parties to be considered either on the day the motion to decertify the FLSA collective action is filed (ECF No. 77 at 14, Ex. A), or at the same time that the FLSA motion for certification is filed, assuming the date to do so is continued approximately 120 days. (Id. at 16.) The scheduling conference currently is scheduled for August 29, 2011. (Id.at 1.) Whether the FLSA collective class is ultimately certified may impact the Court’s supplemental jurisdiction with regard to the state law class action and claims. See, e.g., 28 U.S.C. § 1367(c); Marquis v. Tecumseh Prod. Co., 206 F.R.D. 132, 162-65 (E.D. Mich. 2002) (declining to exercise supplemental jurisdiction after finding that the plaintiffs’ state-law claims, if pursued on a class-wide basis, would substantially predominate over the individual federal claims of the named plaintiffs); Haskins v. City of Louisville, 213 F.R.D. 280, 283 (W.D. Ky. 2003 (declining to certify state-law class action under Rule 23 where federal claims of less than twenty plaintiffs served as the only jurisdictional basis for state-law claims); Martin v. Dahlberg, Inc., 156 F.R.D. 207, 218 (N.D. Cal. 1994) (declining to certify a class based solely on state-law claims where the only bases for federal claims were not appropriate for class treatment); see also Hoffman v. Constr. Protective Serv., Inc., No. EDCV 03-01006-VAP (SGLx), 2004 WL 5642136, at *16-17 (C.D. Cal. July 13, 2004) (finding Rule 23 motion premature when court’s certification of the FLSA action was only conditional and more appropriate after motion to decertify has been decided).

Based on the foregoing, the Court finds that the denial of Plaintiffs’ Motion to Compel further response to Interrogatory No. 1 as premature is warranted.[4]

3. RFP Nos. 28-31; Interrogatory No. 6: Should Defendants providePlaintiffs with a representative sample set of data for proposedclass members?

Plaintiffs seek the production of a sample set of compensation and reimbursement records, as well as records reflecting the time spent by merchandisers uploading and downloading information to Defendants servers.

In RFP No. 28, Plaintiff seeks “ACOSTA’s DOCUMENTS or databases that identify the names, most recent available home addresses, most recent available home telephone numbers, and/or most recent available email addresses of MERCHANDISERS (whether part-time or full time, permanent or temporary): (a) in the United States from March 2, 2008 to the present. (b) in California from March 2, 2008 to the present.”

In RFP No. 29, Plaintiffs seek “All DOCUMENTS or records used by ACOSTA to determine the hours worked by MERCHANDISERS covered in the preceding request, including paper or electronic timecards.”

In RFP No. 30, Plaintiffs seek “All DOCUMENTS or databases containing information compiled for ACOSTA’s payroll function for MERCHANDISERS covered in the preceding request. Information compiled for ACOSTA’s payroll function may include: (a) the employees’ job titles; (b) parttime or full-time status; (c) permanent or temporary status; (d) casual and permanent hire dates; (e) initial job assignment and subsequent jobs held; (f) work schedules; (g) initial pay rates; (h) subsequent pay rates or adjustments (including the dates of such subsequent rates or adjustments); (g) amount and dates of OVERTIME wages paid; (h) total compensation; and (i) amount and dates of reimbursements for expenses incurred in the discharge of employment duties.”

In RFP No. 31, Plaintiffs seek “All DOCUMENTS or records of the uploading and downloading of information to or from ACOSTA by the MERCHANDISERS covered in the preceding request before, during, or after scheduled shifts, including records of how frequently and/or for how long the MERCHANDISERS uploaded or downloaded that information.”

*7 In Interrogatory No. 6, Plaintiffs ask Defendants to “State the percentage of MERCHANDISERS in the United States who, in the months of June and December from March 2, 2008, through the present, were paid for working 40 or more hours in a week.”

a. RFP No. 28.

Plaintiffs acknowledge that the information sought in RFP No. 28 is the same information sought by Interrogatories Nos. 1 and 4. As with the Interrogatory responses discussed above, Defendants contend that they are not required to provide any contact information for potential plaintiffs unless the opt-out notice is provided as to the putative California class members and/or after the collective action is conditionally certified by the Court as to nationwide FLSA plaintiffs. (Id. at 22, 28-29.) For the reasons previously discussed, the Court agrees. Accordingly, for the same reasons previously stated above, the Court finds that the denial of Plaintiff’s Motion to Compel as to these documents as premature is warranted.

b. RFP Nos. 29, 30, 31.

In RFP Nos. 29 and 30, Plaintiffs seek records of work performed. In RFP No. 30, Plaintiffs seek records regarding compensation and reimbursements paid to Defendants’ merchandisers. Plaintiffs have offered to reduce the scope of the demand to a representative and randomly selected sample of one-third of the class. In order to ensure the records are produced from a representative sample of the proposed class (which Defendants states may contain fifteen job titles), Plaintiffs also seek the job titles of the employees in the representative sample, subject to the redaction of personal identifying information of the employees. Defendants have offered to produce a limited set of records for up to twenty class employees who have affirmatively opted-in to the case, which Plaintiffs contend is too limited. (Id. at 22.)

Defendants further contend that the requests are unduly burdensome and over broad.[5] (Id. at 26, 27.)

As to RFP No. 31, Defendants contend that the request is over broad but are willing to provide records of upload and download time, as well as records of hours worked and overtime for a limited set of plaintiffs. (Id. at 28.)

It appears that with regard to these RFPs, Defendants have proposed to give Plaintiffs “sample data of all named plaintiffs, up to twenty opt-in plaintiffs (and more if necessary),” (id. at 29 (regarding RFP Nos. 29, 30)), and “five sets of sample data of compensation and hours worked records for each merchandiser classification” (id. at 27 (regarding RFP No. 31)). The Court finds Defendants proposed production to be reasonable at this stage of the proceedings. Thus, the Court finds that the granting in part of Plaintiff’s Motion to Compel as to RFP Nos. 29, 30, and 31, is warranted.

c. Interrogatory No. 6.

*8 In this Interrogatory, Plaintiffs seek the percentage of merchandisers in the United States who, in the months of June and December from March 2, 2008, through the present, were paid for working forty or more hours in a week. (ECF No. 53 at 30.)

Plaintiffs and Defendants both incorporate their arguments regarding the sample sets of data as discussed with regard to RFP Nos. 29-31. (Id.)

For the reasons discussed above, the Court finds that the granting in part of Plaintiff’s Motion to Compel is warranted.

III.

Conclusion

Based on the foregoing, the Court denies in part and grants in part Plaintiffs’ Motion to Compel. Specifically, the Court DENIES Plaintiffs’ Motion to Compel with respect to Interrogatory Nos. 1, 4 as premature; DENIES Plaintiffs’ Motion to Compel with respect to RFP No. 28 as premature; and GRANTS Plaintiff’s Motion to Compel in part with respect to RFP Nos. 29, 30, 31, and Interrogatory No. 6.

Defendants shall produce the sample data requested for all named plaintiffs, and twenty opt-in plaintiffs, and five sets of sample data of compensation and hours worked records for each merchandiser classification. Defendants shall provide further response to Interrogatory No. 6 based on the sample data provided.

Verified supplemental responses shall be provided no later than September 9, 2011. If necessary, the information provided shall be subject to a protective order.

Finally, the parties are reminded to fully comply with the Federal Rules of Civil Procedure and the Local Rules of this Court. The failure to do so may result in the imposition of sanctions. Fed. R. Civ. P. 37(d)(3); Local Rule 37-4.

IT IS SO ORDERED.

As for the privacy rights of prospective plaintiffs, the disclosure of mere contact information, such as names and addresses, does not unduly interfere with their right to privacy. Pioneer Electronics (USA), Inc. v. Super. Ct., 40 Cal. 4th 360, 372 (2007). Any concern for their privacy rights can be addressed through the issuance of a protective order. Tomassi v. City of Los Angeles, No. CV 08-1851 DSF (SSx), 2008 WL 4722393, at *4 (C.D. Cal. Oct. 24, 2008).

Plaintiffs cite to Tomassi for the general proposition that courts “have often exercised their discretion to provide [contact information] in FLSA cases prior to conditional class certification. However, in that case, the court had made a determination that “there was ‘a rather strong case for a collective action conditional certification,’ ” and directed the parties to discuss an appropriate notice. Tomassi, 2008 WL 4722393, at *2.

But see Tomassi, 2008 WL 4722393, at *4 (permitting discovery of names and address but denying the request to the extent it sought telephone numbers or alternate contact information such as email addresses).

The Court further notes that it appears that the California class action putative class members would largely, if not entirely, be a subset of the FLSA collective action. As a result, to permit discovery of contact information of the California putative class member at this time would appear to act as an end-run around the Court’s denial herein of such discovery of the FLSA class members. It is also likely, however, that when Defendants ultimately respond to Interrogatory No. 4, Plaintiffs will obtain contact information for the California merchandisers at the same time.

In that regard, Defendants contend that their Human Resources Information Systems team has spent approximately 450 hours in gathering information responsive to Plaintiffs’ discovery requests to date, that their Human Resources Field Operations team has spent approximately 500 hours in gathering information responsive to Plaintiffs’ discovery requests to date, and in order to respond to the remainder of Plaintiffs’ discovery requests for all putative plaintiffs, it would require Defendants to “spend almost half a year and to hire additional employees to manually search through mountains of paper documents and volumes of electronically stored information” in light of the fact that it takes an estimated 300 hours to extract data from just one particular database system for a single associate. Even Plaintiffs’ offer to accept one third of the data available would be unduly burdensome considering the number of putative class members and the fact that the data for them is from many different sources and requires review by live persons. (Id. at 27, 28.)