Pippins v. KPMG LLP, —F.R.D.—, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012)
In this opinion, the District Court found the Magistrate Judge’s order requiring defendant’s preservation of more than 2500 hard drives was not clearly erroneous or contrary to law. Finding objections to the order moot, however, because plaintiffs’ motion for conditional certification of a nationwide class was granted, the court denied defendant’s motion for a protective order and ordered preservation of the hard drives until the parties could agree on a sampling methodology, until defendant abandoned a particular litigation position, or until members of each relevant class were established.
In this case, plaintiffs—former and departing Audit Associates at KPMG—filed an action under the Fair Labor Standards Act (“FLSA”) and New York Labor laws and sought conditional certification of a collective action under the FLSA. In a prior opinion discussed here, a Magistrate Judge denied KPMG’s motion for a protective order and ordered ongoing preservation of more than 2500 hard drives during the pendency of plaintiffs’ motion to certify. Two prominent factors in that decision were the potential for all Audit Associates to become plaintiffs either as part of a class or individually and the inability of the court to determine the potential relevance or value of the contents of the at-issue hard drives because of KPMG’s refusal to provide any information regarding the same. On appeal, KPMG asked the District Court to set aside that order and to grant a protective order to limit the scope of its preservation obligation.
