This document outlines 10 common mistakes made during the electronic discovery (e-discovery) process in wage and hour cases. These include not involving the right stakeholders, not collecting enough relevant data, making unrealistic assumptions about the ease of data collection, being imprecise in technical requirements, failing to account for system limitations, assuming things have not changed over time, taking data at face value without validation, misidentifying class members, mishandling personally identifiable information, and making production blunders. The recommendations provided are to plan thoroughly, be inclusive, validate requirements and outputs, understand relevant systems, and verify the accuracy and reasonableness of any data collected or produced.

1. Ten Common e-Discovery Mistakes to Avoid in
Wage and Hour Cases
Michael Wei, Managing Director, FTI Consulting
Nadia Brannon, Managing Director, FTI Consulting

2. #10 – Not Working With The Right People
■ Waste of time, money and resources
■ Possible negative impact on client and stakeholder relationships
■ Potential to collect misleading or incorrect information
■ Recommendations
– Identify all relevant business sponsors, IT, and / or any 3rd party vendor owners
– Ensure proper communication among all entities
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3. #9 – Not Collecting Enough Data
■ Filtering the data at collection is harder than getting everything
■ May require supplemental data collection if anything changes
– Collecting half the data twice costs more than collecting everything once
■ Fail to consider the requirements of future, similar or related matters
■ Recommendation
– Err on the side of being more inclusive
– Collect key data for all employees:
– Payroll
– Job History
– HR History
– Time Records
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4. #8 – Assuming Data Collection is Just “a Push of a Button”
■ Difference in client representative’s priorities - IT has a day job
■ Lack of managerial control for 3rd party vendor / cloud hosted data
■ Systems don’t talk to each other
■ Multitude of HR, Payroll, and Time & Attendance Systems: many proprietary
formats
■ Inaccessibility & readability of legacy system(s) – backup tapes, media
■ Recommendations
– Plan ahead and ensure enough time
– Involve appropriate business stakeholder(s), IT and technical experts
– Agree on an acceptable format with opposing side: native vs. standard
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5. #7 – Imprecise Technical Requirements
■ Will result in wrong data and / or unusable data
■ Data extraction is based on exactly what the technical requirements state
■ IT personnel are not lawyers, don’t assume they know what is needed
■ Recommendation
– Be precise and list all values to be used in filtering
– Check what you receive
– Review and validate requirements and output by “data owners”
State of Condition Specified
System and or Action Result
Data Inputs
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6. #6 – Failing to Account For System Constraints/Limitations
■ Not considering system exporting limitation(s)
– email archiving, tape extraction
■ Loss of data due to data type conversion
■ Data truncation
■ File size limit
■ Recommendations
– Understand extraction process
– Review data for reasonableness
– Find the “right” person that knows the system
and understands your needs
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7. #5 – Assuming “Things” Have not Changed
■ Business rules may change overtime
– new and closed locations,
– reuse of IDs,
– changes to job codes,
– changes in the definition of exempt / non-exempt status
■ Systems migration – overlapping date ranges
■ Recommendations
– Discuss potential issues with data owner
– Understand all values within key fields
– Have an explanation for anything that does not make sense
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8. #4 – Taking Data at Face Value
■ Possible unintended use of data
– E.g.: Paycheck earning codes used for internal accounting
■ Names of fields may not correspond to the values stored in the field
■ Punch in vs. punch out, recorded differently in system(s)
■ The inclusion of dummy / test data
■ Recommendation
– Reformat data for production
– Anticipate what the other side
may do with the data you
produce
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9. #3 – Misidentifying Class Members
■ Can’t rely on names alone
■ Employee ID reused and / or changed over time
■ Employees with multiple IDs, positions
– This may lead to understatement or
overstatement of class size or
– Failure to produce all relevant records
■ Recommendations
– Assign a unique identifier (make sure you can
re-identify backwards)
– Decide on producing all records or just relevant
records (by job / location)
– All records for class member vs. records
during the period when employee qualifies as
a class member
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10. #2 – Mishandling Personally Identifiable Information (PII)
■ Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)
■ Gramm-Leach-Bliley, Financial Modernization Act
■ California Privacy Protection Act of 2003
■ California data breach notification law, SB1386
■ Recommendations
– Use encryption technology (file, media)
– Understand other side’s data handling
protocol
– Discuss PII issue with the other side
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11. #1 – Production Blunders or
“OMG, We Left Out Named Plaintiffs!”
■ Embarrassment
■ Court sanctions
■ Need for damage control
■ Recommendations:
– Verify your named plaintiffs are in the production
– Check for reasonableness
– Identify reason(s) for null values / missing data
– Examine extreme values
– More than 24 hours in a day
– Janitor with hourly rate of >$100
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12. Final Thoughts
“Mistakes are the portals of discovery.”
- James Joyce (1882 - 1941)
“An expert is a person who has made all the mistakes
that can be made in a very narrow field.”
- Niels Bohr (1885 - 1962)
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13. FTI Professionals
Data Analytics
MIKE WEI
Managing Director Michael Wei is a managing director in FTI’s Forensic and Litigation Consulting practice
Financial & Enterprise Data Analytics and is based in San Francisco. Mr. Wei has over 15 years experience in the collection
Forensic and Litigation Consulting and analysis of financial, transactional, and operational data. He specializes in data-
intensive engagements that require the complex modeling of information, including
One Front Street labor and employment class actions, federal and state agency pattern and practice
Suite 1600 cases, and complex employment / wage and hour litigation matters.
San Francisco, CA 94111 Mr. Wei has served clients on labor and employment matters across a variety of
Tel: (415) 215-6343 industries, including retail, telecommunications, education, and construction.
Fax: (415) 283-4275 Representative cases include:
mike.wei@fticonsulting.com • Retention by a national, home improvement retailer client to respond to multiple
investigations by the Equal Employment Opportunity Commission (EEOC)
related to hiring, promotion, and termination practices. Mr. Wei identified and
Industries
produced data in response to requests for information issued by the EEOC in the
Labor & Employment
different investigations.
Retail
• Retention by a global retailer client in defense of a nationwide wage-and-hour
Financial Services
class action. Mr. Wei identified employee class members, determined the extent
Education of alleged code violations, and calculated potential exposure and damages.
B.A., Harvard University • Retention by a national telecommunications client in defense of a nationwide
wage-and-hour class action. Client retained Mr. Wei to identify and produce
relevant data from dozens of company system after previously being fined $30M
for not properly producing data in a related case.
Prior to joining FTI, Mr. Wei served as Vice President of Products and Services at
EVault, Inc., where he managed the company’s product development and network
operations teams. He has extensive experience with massive, enterprise data
systems, including PeopleSoft, Oracle, and Siebel Systems, with individual cases
resulting in the acquisition and analysis of hundreds of millions of records.
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14. FTI Professionals
Data Analytics
NADIA BRANNON
Ms. Brannon specializes in damages assessment, complex and large-scale data
and statistical analysis. She focuses on projects that involve analysis of large
amounts of electronic data, sampling and statistical inferences, as well
development and design of specialized databases and applications. For over
fifteen years, Ms. Brannon has been advising counsel in a variety of consumer
class actions, financial and fraud investigations, breach of contract, intellectual
property, wage and hour, employment discrimination and antitrust matters.
Managing Director
Financial & Enterprise Data Analytics
Ms. Brannon was retained in some of the largest national consumer class
Forensic and Litigation Consulting
actions involving millions of putative class members. She provided consulting
One Front Street services related to class certification and identification, led transactional data
Suite 1600 discovery efforts, quantified damages for settlement purposes, and provided
San Francisco, CA 94111 assisted with settlement administration.
Tel: (415) 283-4217
Fax: (415) 293-4488 With respect to wage and hour and employment disputes, Ms. Brannon
nadia.brannon@fticonsulting.com analyzed time and pay records, accessed class characteristics, quantified
potential exposures and damages, developed various impact scenarios
associated with alternative resolution plans. She performed disparate treatment
Industries and disparate impact analyses in employment discrimination matters.
Labor & Employment
Retail Ms. Brannon holds a M.S. in economics from Oklahoma State University and a
Financial Services M.S. in petroleum engineering and economics from National Oil and Gas
Oil and Gas University, Ukraine. Ms. Brannon is fluent in Ukrainian and Russian. She is a
Education Certified Fraud Examiner and Certified SAS Programmer.
M.S. in Economics, Oklahoma State
University
M.S. in Petroleum Engineering and
Economics, National Oil and Gas University,
Ukraine
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