Home/S.D. New York/Ni v. HSBC Bank USA, N.A.

Ni v. HSBC Bank USA, N.A.

District Court, S.D. New York·Decided July 10, 2023·No. 1:23-cv-00309·Unknown

Opinion

LEE LITIGATION GROUP, PLLC 148 WEST 24T4 STREET, EIGHTH FLOOR NEW YORK, NY 10011 TEL: 212-465-1180 FAX: 212-465-1181 INFO@LEELITIGATION.COM WRITER’S DIRECT: (212) 465-1188 cklee@leelitigation.com July 7, 2023 Via ECF: [_ a The Honorable Katharine H. Parker, U.S.M.J. USDC SDNY United States District Court DOCUMENT Southern District of New York ELECTRONICALLY FILED 500 Pearl Street New York, NY 10007 Doc e———_____ Re: Niet al. v. HSBC Bank USA, N.A. DATE FILED: _7/10/2075 Case No. 1:23-cv-00309-RA-KHP EE Dear Judge Parker: We are counsel to Plaintiffs. We write to inform the Court of a discovery dispute and request an informal conference under Local Civil Rule 37.2 and Your Honor’s Individual Rules. Plaintiffs and Defendant have met and conferred regarding their discovery disputes. While some issues have been resolved, the below disputes require judicial intervention. I. CLASS DOCUMENT DISCOVERY: a. Defendants Documents Provide Strong Evidence of a Violation As an initial matter, class discovery is particularly important in this case as Defendant’s documents for Plaintiff NI already provide strong evidence of a class wage violation. Plaintiffs believe there to be ‘on the records’ proof that Defendant improperly deducted breaks of 20 minutes or less from employees’ compensable time. See Exhibit A, Plaintiff NI’s Timesheets. Examples of this ‘20-minute violation’ appear in Plaintiff NI’s timesheets on the following days: (i) October 16, 2019, (ii) January 8, 2020 (ii) January 24, 2020, (iv) August 5, 2020, and (v) August 18, 2020. As an example, on August 5, 2020, clocks-out at 1:25 pm and back in at 1:45 pm for a 20-minute break. See Exhibit A at Defendant’s Prod. 000020. Despite this break lasting 20 minutes or less, Defendant failed to compensate for this time. Again, on January 8, 2020, Plaintiff NI clocks in and out for a two-minute break and, once again, Defendant’s timesheets reveal she was not compensated for this time. Jd. at Defendant’s Prod. 000006. With respect to at least this violation, the claim will be provable using class paystubs and punch-records. b. Paystubs and Punch Records With respect to paystubs and punch records, the parties agree a sampling of these records for the putative nationwide class is appropriate. However, the parties have been unable to agree on the size of the sampling for this production. Plaintiffs propose a nationwide sampling of 25%. Plaintiffs propose that Defendant provides in excel format, a list of employees identifiable by employee ID or name, which will include each employee’s job-title, state of employment, and length of employment. From this list, Plaintiff will select the 25% sampling to ensure full coverage by way of year of employment, location of employment, and position. Pursuant to 29 C.F.R. § 516.7 paystubs and time records are the type of documents that must be maintained and produced to a U.S.D.O.L. Administrator within 72 hours following a

request. The rules themselves recognize the importance of these records and the ease with which they may be produced. Further, Defendant maintains these records electronically, making retrieval and production a simple and economical endeavor. c. Email/Slack Metadata and Timestamped Submissions. In addition to the above basic wage records, Plaintiffs seek the data necessary to demonstrate that employees were working off-the-clock and through lunch. To that end, Plaintiffs seek email metadata, short messaging service (“SMS”) metadata, and timestamps of employee submissions for a sampling of class members. While Plaintiffs’ typical document review can be costly, Plaintiffs tailored their demand to avoid such costs. For example, with regard to email information, Plaintiffs seek an excel spreadsheet containing only the following information for each sampled employee: (i) time each email was sent/received, (ii) sender/recipient of each message, (iii) subject line of the message. In this manner, the parties will be able to avoid actual review of each email’s contents. Instead, the parties will be engaged in a review of the timing of each message to determine if they were sent before or after each employee’s clock-in/out. Plaintiffs seek similar information for a sampled class as to Defendant’s internal SMS correspondence, which operates similarly to Slack, and the time of document submissions made by the sampled employees. The information sought is highly relevant. Evidence that employees engage in after-hours correspondence and submissions will be strong evidence of off-the-clock work. Further, by limiting the class evidence sought to the mere existence of the messages, rather than the messages themselves, Plaintiffs tailor their request to avoid any burden of review. Further, Plaintiffs are willing to accept a sampling to avoid any burden of production. Plaintiffs propose that after Defendant provides the aforementioned sampling of paystubs and punch records, Plaintiff will then select from those sampled employees a further 80% subset for whom a sampling of the above metadata records will be provided. d. Legal Standard Plaintiffs note that Courts in the Second Circuit have repeatedly held that plaintiffs are entitled to pre-certification discovery of documents regarding potential class members. See Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 492 (S.D.N.Y. May 19, 2016) (“[P]roduction of wage-and-hour documents, tip records . . . [for all non-exempt employees in the six years prior to the complaint] would likely support findings of commonality, typicality, numerosity, that the class is identifiable and ascertainable, and that common questions predominate over any individual issues as required by Rule 23.”). In Salazar v. Spectrum of Creations, Inc., No. 16 Civ. 653, Dkt. No. 52 (VSB) (S.D.N.Y. Sept. 9, 2016), the court held: “Whatever the merits of their claim, Plaintiffs have repeatedly stated throughout this action that they intend to seek Rule 23 class certification, and the Second Circuit has noted both that ‘[i]n deciding a motion for class certification under Rule 23, the district judge must receive enough evidence . . . that each Rule 23 requirement has been met.” See also Rahman v. Smith & Wollensky Rest. Grp., Inc., 2007 U.S. Dist. LEXIS 37642, at *9 (S.D.N.Y. 2007) (“Pre-certification discovery is often necessary in order to provide the court with sufficient information to determine whether certification is appropriate.”); Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982) (“[T]here can be no doubt that it is proper for a district court, prior to certification of a class, to allow discovery and to conduct hearings to determine whether the prerequisites of Rule 23 are satisfied.”); Calabrese v. CSC Holdings, Inc., No. 2007 U.S. Dist. LEXIS 16059, at *20 (E.D.N.Y. 2007). II. CLASS CONTACT INFORMATION: Plaintiffs have also requested contact information, i.e., name address, email, mobile number of all prospective class members. This is appropriate because each of these individuals is a prospective witnesse. As seen by the below case law, the production of such information has been deemed to be proper in many cases in this circuit. “[T]here is an abundance of case law from the Southern District of New York, over the last nine years, which has ‘routinely allow[ed] plaintiffs to discover identifying information regarding potential class members . . . .’” Strauch v. Comput. Scis. Corp., No. 3:14 Civ. 956, 2015 U.S. Dist. LEXIS 516, at *10 (D. Conn. Jan. 6, 2015) (collecting cases). In Fei v.

Free access — add to your briefcase to read the full text and ask questions with AI

Ni v. HSBC Bank USA, N.A., (S.D.N.Y. 2023).

Ni v. HSBC Bank USA, N.A. (Ni v. HSBC Bank USA, N.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Benavides v. Serenity Spa NY Inc.
166 F. Supp. 3d 474 (S.D. New York, 2016)
Sirota v. Solitron Devices, Inc.
673 F.2d 566 (Second Circuit, 1982)