In McDonald v. Kellogg Company, the United States District Court for the District of Kansas ordered the defendant, a food products manufacturer, permit physical access by the plaintiffs' expert to install and monitor Radio Frequency Identification Equipment ("RFID") to gather data on time spent by employees moving from various workstations in connection with an action for overtime pay under the Fair Labor Standards Act ("FLSA").  2011 WL 484191 (D.Kan. 2011). 

There, the plaintiffs alleged that the defendant violated the overtime provisions of the FLSA by failing to compensate them for time spent walking throughout the baking facility.  The plaintiffs, a class of opt-in employees, sought to install various RFID readers at the employee locker rooms, at the time clocks and at various workstations.  Employees would then volunteer to carry RFID cards that each reader could pick up and record the time the employee passed through the area.  In order to set up the RFID system, plaintiffs requested access on two occasions, the first time to observe and plan and the second to install readers and issue cards.  The defendant objected on the grounds that plaintiffs would substantially interfere with operations, jeopardize safety and expose proprietary production processes.  The defendant further argued that the information sought by the study could be achieved by simply measuring distance and estimating walking time. 

Citing Rule 34(a)(2) of the Federal Rules of Civil Procedure, the Court noted that it is permissible to allow access to facilities to observe machinery, work practices or manufacturing operations during discovery.  Although the Court found that such access may be limited where the discovery is unreasonable or burdensome, the Court rejected each of the defendants' arguments.  The Court found that even if the information could be gathered in a different manner, such a finding is not part of the analysis under Rule 34(a)(2). Moreover, the Court found that general claims of interference and burden do not make a "particularized showing" that the proposed discovery would create an undue burden or danger.  The Court also rejected the argument that such a study would impose a burden on employees individually since participation was voluntarily and most employees were included in the class of plaintiffs.  As such, the Court held that plaintiffs' expert be permitted access to install the RFID system and conduct the study. 

For a full copy of the opinion, click here.