Federal Judge Orders 7% Opt-In Sample in Delivery-Driver Wage Suit, Rejecting Both Sides' Proposals

MANHATTAN (LN) — A federal magistrate judge on Thursday ordered that discovery in a wage-and-hour lawsuit against delivery company LaserShip, Inc. proceed against a representative sample of 45 of the case's 620-plus opt-in plaintiffs — roughly 7% — after rejecting the workers' proposal of 5% and the company's request for nearly 10%.

U.S. Magistrate Judge Sarah L. Cave of the Southern District of New York issued the order following a telephone conference in West v. Lasership, Inc., a collective action brought by named plaintiffs Daniel West, Romaine Clarke, Ryon Morgan, and Saadala Aboulessan on behalf of themselves and all others similarly situated.

The plaintiffs had argued that LaserShip should be limited to discovery from approximately 30 opt-ins — 5% of the group. LaserShip countered that it needed discovery from 60 opt-ins, which it described as "slightly less than 10%."

Cave declined both figures. Citing Southern District precedent establishing that representative sampling is appropriate when opt-in counts exceed 200, she noted that courts in the district have landed on both ends of the 5%-to-10% range depending on the case. She settled on 45 opt-ins as the appropriate number.

Under the framework Cave set, LaserShip may serve each of the 45 selected opt-ins with 10 document requests and eight interrogatories, and may depose each one. LaserShip's obligation to search for communications responsive to the plaintiffs' Request for Production No. 32 is also capped at those 45 individuals.

The selection process itself is divided three ways: plaintiffs choose 15 opt-ins, LaserShip chooses 15, and the remaining 15 are drawn at random using a methodology the parties must agree on.

Cave drew on a line of district court decisions to anchor the 7% figure, including Lloyd v. J.P. Morgan Chase & Co., which observed that courts grow more inclined toward representative sampling as opt-in numbers approach 200, and Onate v. AHRC Health Care, Inc., which limited interrogatories to 5% of opt-ins while capping depositions at 15 individuals out of more than 1,000.

The order leaves open how Cave will rule on the plaintiffs' separate Request for Production No. 15, which seeks all text messages and other communications from any LaserShip employee to master contractors concerning subcontractors, including communications about the wearing of uniforms — a dispute she held in abeyance until a June 5 conference scheduled for noon Eastern time.