Discovery Cannot Be Used to Find a Class Action Plaintiff

• Author: Erik A. Christiansen
• Pages: 21-21

U.S. cour t of appeals refused to p ermit discovery

prior to class certi cation to nd a replacement

plaintiff be cause the discovery was not relevant to

an issue in the ca se. The Cour t of Appeals for the

Ninth Circu it in In re William s-Sonoma, Inc .

held that discovery to  nd a potential plaintiff is beyond the

scope of the Federal Ru les of Civil Procedu re.

A Kentucky resident l ed a purported cl ass action law-

suit in Califor nia to recover damages due to the defendant

Williams- Sonoma’s representations about sheet thread

count. The U.S . District Court for the Nort hern District of

Californi a held that Kentucky law applied a nd barred con-

sumer class action s. The plaintiff sought disc overy from the

defendant to nd a lead Ca lifornia class plaintiff. T he dis-

trict cour t permitted t he discovery. The defendant then led

a writ of mandamus .

Relying on Oppe nheimer Fund, Inc . v. Sanders, the court

of appeals granted t he extraordinary writ and revers ed the

district cou rt. It held that “[r]espondents’ attempt to obtain

the class members’ na mes and addresses cannot be force d

into the concept of ‘relevancy ’ described above.” The plaintiff

argued that th e discovery was relevant under Rule 23 of the

Federal Rules of Civi l Procedure for class certic ation issues.

The court of appea ls disagreed and held that “using dis cov-

ery to nd a client to be t he named plaintiff before a class

action is certi ed is not within the scope of Rule 26(b)(1).”

“The court got it rig ht,” states Adam Polk, Sa n Francisco,

CA, cocha ir of the Sect ion of Litigation’s Class Actions &

Derivative Suits Com mittee. “All the plai ntiff’s counsel had

to do was advertise on Facebook or G oogle or get a referral

from another local C alifornia lawyer to discover a substi -

tute class plaint iff,” he states. “The plaintiff made i mproper

use of discovery to shop for clie nts,” agrees Jenni fer L.

Mesko, Cleveland, OH , cochair of the Consumer Law

Subcommitte e of the Section’s Class Actions & Derivative

Suits Comm ittee.

The key is that “unti l there is a certied class, th ere can

be no class discover y. You cannot le a lawsuit to nd some-

one to bring a lawsuit,” comments Fre d B. Burnside , Seattle,

WA, cochair of the Nationa l Institute on Class Actions

Subcommitte e of the Section’s Class Actions & Derivative

Suits Commit tee. “The plaintiff only had a per sonal, non-

class claim, so c lass discovery h ad nothing to do with h is

case whether consider ed under Rule 26 or Rule 2 3,” opines

Daniel R. Karon , Cleveland, OH, cochair of the Nat ional

Institute on Cl ass Actions Subcommittee of the S ection’s

Class Actions & D erivative Suits Comm ittee.

The dissent read Oppenheimer to apply only once a

class is certi ed, after which “class counsel must r ely on

the class action proc edures outlined in Federal Rule of Civi l

Procedure 23 —and not the federal discovery ru les contained

in Rules 26 throu gh 37—to notify abs ent class members of

certic ation.” The dissent also note d that class couns el owes

a duciary duty to u nnamed class members. “[S]ince iden-

tication simply is a nother task that must be performed in

order to communicate to pot ential plainti ffs their rights and

encourage their i nvolvement in a class suit, it was rea sonable

for the distric t court to require [the defendant’s] cooperation

to cull that lis t.”

Burnside disa grees. “The  duciary duty of clas s counsel

does not exist before t here has been a cert ied class. There

also are privacy conce rns at issue here,” he says. “Customers

may or may not want their infor mation provided to class

counsel and may not want to par ticipate in the lawsuit,” he

adds. “Ultimat ely, the decision is somewhat fact d riven,”

Mesko explains. “It w ill be interesting to nd out whethe r

the decision is an outl ier driven by the facts or a sign of

things to come,” she concludes.

RESOURCES

In re Hyunda i & Kia Fuel Econ. Litig., 897F.3 d 1003 (9th Cir. 2018).

Mazza v. Ameri can Honda, 666 F.3d 581 (9 th Cir. 2012).

Bauman v. U. S. District Cour t, 557 F.2d 650 (9th Cir. 1997).

Discovery Cannot Be Used to Find a

Class Action Plaintiff

By Erik A. Christia nsen, Litigation News Asso ciate Editor

Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

AMERICA N BAR ASSOCIATION WINTER 202 1 • VOL. 46 NO. 2 | 21

Published in Litigation News Volume 46, Number 2, Wint er 2021. © 2021 by the Americ an Bar Association. Re produced with per mission. All rights res erved. This infor mation or any portio n thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.