In Roy v. FedEx Ground Package Sys., Inc., No. 3:17-cv-30116-KAR (D. Mass. Nov. 30, 2022), Massachusetts Magistrate Judge Katherine A. Robertson granted the plaintiffs’ motion to compel production of all scanner data for all opt-in plaintiffs to illustrate time worked in a dispute over unpaid overtime.

Case Discussion

In this case involving a claim of unpaid overtime pursuant to the Fair Labor Standards Act (“FLSA”), the court conditionally certified a collective of similarly situated individuals. Approximately 554 opt-in plaintiffs submitted consent forms affirming that they drove a vehicle with a gross vehicle weight rating (GVWR) under 10,001 pounds, worked more than forty hours a week, and, “to the best of [their] knowledge,” were not paid overtime for the hours that exceeded forty hours in a week. According to FedEx, there were presently 483 opt-in plaintiffs at the time of this ruling.

Delivery drivers are required to use electronic hand-held scanners that record their daily activities. The scanner data for each date includes the driver’s name and his or her ISP, destination terminal, vehicle number, and “on duty” and “off-duty” times. The data recorded by the drivers’ scanners is automatically uploaded to FedEx’s servers and continuously maintained by FedEx.

Plaintiffs asked FedEx to produce all scanner data (including time records and route information) for the Plaintiffs and “each opt-in” from February 19, 2015 through the present in March 2020. FedEx initially objected to producing all scanner data, but later produced scanner data for some 204 opt-in plaintiffs who were designated by FedEx or Plaintiffs for individual discovery. Plaintiffs filed a motion to compel for the scanner data for all remaining opt-in plaintiffs. FedEx objected on the grounds that (1) the additional scanner data would not provide relevant information; (2) the request for individualized information for all opt-ins was not appropriate in an FLSA collective action; (3) the burden and cost of producing the scanner data outweighed its benefits and is disproportional to the needs of the case; and (4) the GVWR is not included in the scanner data and is unduly burdensome to produce.

Judge’s Ruling

Regarding FedEx’s first objection, Judge Robertson stated: “FedEx’s contention that the scanner data for all current opt-ins is ‘unreasonably cumulative or duplicative’ of the scanner data it has produced for 204 opt-ins is premised on the inaccurate contention that Plaintiffs seek the scanner data to show that FedEx controls the drivers who deliver FedEx packages. FedEx ignores that Plaintiffs contend that the ‘actual data captured by the scanners’…is relevant to show that the drivers worked more than forty hours a week. The scanner data for opt-ins for whom this data has not been produced is likely to contain ‘materially new information’ that is neither duplicative nor cumulative of the scanner data that was previously produced for a subset of opt-ins.”

Regarding FedEx’s second objection, Judge Robertson stated: “In a similar case in Pennsylvania involving drivers who deliver packages for FedEx in all states except Massachusetts, are employed by ISPs, and use vehicles with GVWR of under 10,001 pounds, plaintiffs asked FedEx to produce GVWR information for all 30,000 opt-ins…According to FedEx, production of the GVWR data is much more burdensome than is the production of scanner data. In rejecting FedEx’s argument that the plaintiffs were not entitled to the GVWR discovery that they sought, the court found that FedEx was ‘a single source for this information, as opposed to Plaintiffs’ counsel being required to reach out to each of the individual collective members, who are further unlikely to be able to produce information in a format comparable to what FedEx can produce.’…This court agrees with that analysis.” She also stated in rejecting the cases used by FedEx to support its position: “Plaintiffs have adequately demonstrated the relevance of the scanner data.”

Regarding FedEx’s third objection, Judge Robertson stated: “Rather than attempting to support its claim of undue burden by estimating the time and cost that would be expended to comply with Plaintiffs’ request for scanner data for the opt-in plaintiffs in this case for whom such data has not been produced, FedEx points to the sixteen weeks that it took to compile the scanner data for approximately sixty times that number of opt-ins (the 30,000 opt-ins in Claiborne)…As Plaintiffs have demonstrated, FedEx has not shown that producing scanner data for all opt-in members of the collective for whom it has not produced such data would be unduly burdensome”.

Finally, Judge Robertson stated: “FedEx’s claim that Plaintiffs’ motion encompasses GVWR information for all opt-ins is simply inaccurate. Plaintiffs have acknowledged that the scanner data does not include GVWR information and that they are not moving to compel production of this information.”

As a result, Judge Robertson granted Plaintiffs’ motion to compel production of all scanner data and ordered FedEx “to produce the scanner data within 30 days of issuance of this order.” Hey, at least she didn’t say that it “absolutely, positively has to be there overnight”!

So, what do you think? Do you agree with the Court’s order for FedEx to produce all scanner data? Please share any comments you might have or if you’d like to know more about a particular topic.

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