Johnson et al v. Ford Motor Company, No. 3:2013cv06529 - Document 530 (S.D.W. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER denying 437 MOTION for Protective Order. Signed by Magistrate Judge Cheryl A. Eifert on 6/4/2015. (cc: attys; any unrepresented party) (skm)
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Johnson et al v. Ford Motor Company Doc. 530 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION CH ARLES JOH N SON , e t al., Plain tiffs , v. Cas e N o .: 3 :13 -cv-0 6 52 9 FORD MOTOR COMPAN Y, D e fe n d an t. MEMORAN D U M OPIN ION an d ORD ER Pending before the Court is Plaintiffs’ Motion for Protective Order. (ECF No. 437). Defendant Ford Motor Com pany (“Ford”) has filed a m emorandum in opposition to the m otion, (ECF No. 471), and Plaintiffs have replied. (ECF No. 495). Plaintiffs’ m otion pertains to Ford’s request to take the depositions of four form er plaintiffs (Laura Elsinger, Gabriel Kletschka, Dean Richardson, and Christine Salam one) in this putative class action. The four form er plaintiffs filed voluntary notices of dism issal on Novem ber 26, 20 14, approxim ately twenty m onths after filing suit against Ford, and after Ford had served written discovery on them and orally requested dates for their depositions. (ECF No. 471 at 4-5). Plaintiffs object to any discovery of the four form er plaintiffs on the ground that they are absent class m em bers, and Ford has not m ade the requisite showing to justify taking their depositions. (ECF No. 437 at 5-7). Having fully considered the m atter, the Court D EN IES Plaintiffs’ Motion for Protective Order. 1 Dockets.Justia.com I. Re le van t Le gal Stan d ard s The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has not specifically addressed the propriety of a defendant in a putative class action scheduling the depositions of absent class m em bers. However, the generally accepted rule is that “discovery from such unnam ed class m em bers is not perm itted absent special circum stances.” Khaliel v. Norton Healthcare, Inc. Retirem ent Plan, Civil Action No. 3:0 8-CV-69-C, 20 12 WL 6554714, at *1 (W.D.Ky Nov. 20 , 20 12) (citing Boy nton v. Headw aters, Inc., Case No. 1-0 2-1111-J PM-egb, 20 0 9 WL 310 3161, at *1 (W.D.Tenn. J an. 30 , 20 0 9). Courts agree that without such a prohibition, the “principal advantage of a class action will be forfeited.” Id. (citing Groth v. Robert Bosch Corp., Case No. 1:0 7CV-962, 20 0 8 WL 270 470 9, at *1 (W.D.Mich. J uly 9, 20 0 7) (holding that if all m em bers are “routinely subject to discovery” the benefits of class action will be lost). Courts have articulated a variety of factors to consider when determ ining whether discovery of absent class m em bers should be perm itted, m ost of which grow out of the Seventh Circuit’s decision in Clark v. Universal Builders, Inc., 50 1 F.2d 324, 340 -41 (7th Cir. 1974). See, e.g., McPhail v. First Com m and Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D. Cal. 20 0 8) (Discovery should be perm itted only when “(1) the discovery is not designed to take advantage of class m em bers or reduce the size of the class, (2) the discovery is necessary, (3) responding to discovery requests would not require the assistance of counsel, and (4) the discovery seeks inform ation that is not already known by the proponent.”); and McCarthy v. Paine W ebber Group, Inc., 164 F.R.D. 30 9, 313 (D. Conn. 1995) (“Discovery [of absent class m em bers] is only perm itted where a strong showing is m ade that the inform ation sought (1) is not sought with the purpose or effect of harassm ent or altering m em bership of the class; (2) is directly relevant to com m on 2 questions and unavailable from the representative parties; and (3) is necessary at trial of issues com m on to the class”). These standards usually require a showing of good faith m otive on the part of the defendant seeking discovery. Sibley v. Sprint Nextel Corporation, No. 0 8-20 63-KHV, 20 0 9 WL 3244696, at *2 (D.Kan. Oct. 6, 20 0 9). Given that requests that are unduly burdensom e, or require the absent class m em bers to obtain legal or expert assistance, m ay be used as tools to intim idate the mem bers or reduce the class size, the scope and reach of the proposed discovery are im portant factors in the analysis. Holm an v. Experian Inform ation Solutions, Inc., No. C 11– 0 0 180 CW (DMR), 20 12 WL 256820 2, at *3 (N.D.Cal. J uly 2, 20 12) (Request to propound discovery on 38,0 0 0 absent class m em bers was seen as a way to “whittle down the size of the class.”); Mehl v. Canadian Pacific Ry ., 216 F.R.D. 627, 631 (D.N.D. 20 0 3) (holding that there m ust be justification for discovery of absent class m em bers as “such discovery is not generally encouraged due to its potential for harassm ent and due to concerns regarding its practicality”). The suspicion that discovery is being done for an im proper m otive grows exponentially as the sam pling of absent class m em bers selected for discovery increases in num ber. Clark, 50 1 F.2d at 341. Sim ilarly, because depositions require the absent class m em bers “to appear for questioning” and subm it to “often stiff interrogation by opposing counsel with the concom itant need for counsel of their own,” a defendant seeking deposition testim ony carries a heavier burden to establish justification than does a defendant requesting the use of interrogatories. Id. Furtherm ore, the defendant m ust dem onstrate a specific and actual need for the discovery, and show that the inform ation sought is not available from the class representatives and is not already in the defendant’s possession. In re Carbon Dioxide Industry Antitrust Litigation, 155 F.R.D. 20 9, 212 (M.D. Fla 1993) (Defendant m ust 3 show a “particularized need” to obtain inform ation not available from the class representatives). Nevertheless, courts always have leeway to perm it discovery from absent class m em bers “when reasonably necessary, not conducted for an im proper purpose, and not unduly burdensom e in the context of the case and its issues.” Arrendondo v. Delano Farm s Co., No. 1:0 9-CV-0 1247 MJ S, 20 14 WL 510 640 1, at *5 (E.D. Cal. Oct. 10 , 20 14). II. D is cu s s io n Taking into account the aforestated considerations, the undersigned finds that Ford has m et its burden to justify the four depositions requested. First, the discovery does not appear designed to take advantage of the class m em bers or reduce the size of the class. As Ford em phasizes, all four of the proposed deponents were nam ed plaintiffs in the litigation for nearly two years. Certainly, when these individuals agreed to participate in the case in a representative capacity, they should have realized that they would be expected to respond to discovery requests at som e point in the proceedings. Ford does not seek leave to take long, taxing depositions; instead, it explicitly describes the scope of the questioning to include “each of the individuals’ purchase, use, and potential sale of their vehicles, their involvem ent in this litigation, and their dism issal from this action.” (ECF No. 471 at 10 ). Moreover, Ford does not attem pt to discover this inform ation from a large num ber of absent class m em bers and does not tie a failure to respond to the discovery to any particular sanction; consequently, there is nothing to suggest a m otive on Ford’s part to intim idate the four proposed deponents or reduce the size of the class by taking these four depositions. Second, Ford shows the necessity of the exam ination by explaining that the inform ation sought is relevant to com m on issues and cannot be obtained from other 4 class representatives. In order to m aintain a class action, Plaintiffs m ust dem onstrate that “there are questions of law or fact comm on to the class.” Fed.R.Civ.P. 23(a)(2). As the Fourth Circuit explains, ‘“[c]om m onality requires the plaintiff[s] to dem onstrate that the class m em bers have suffered the sam e injury’—a shared injury that also springs forth from the sam e ‘com m on contention.”’ Ealy v. Pinkerton Governm ent Services, Inc., 514 F. App’x 299, 30 4 (4th Cir. 20 13) (citing W al– Mart Stores, Inc. v. Dukes, – – – U.S. – – – – , 131 S.Ct. 2541, 2556, 180 L.Ed.2d 374 (20 11) (internal citations om itted). According to Plaintiffs, one com mon question of fact in this case is “whether Nationwide and Statewide Class m em bers overpaid for their Ford Vehicles as a result of the defects alleged herein.” (ECF No. 381-1 at 134). Ford proposes to depose four individuals who claim to have suffered a econom ic injury related to Ford’s allegedly defective electronic throttle control system , although the individuals apparently never experienced the purported consequence of the defect; that being, a sudden unintended acceleration of their vehicle. (See ECF No. 1). Three of the proposed deponents (Elsinger, Kletchka, and Richardson) bought Ford vehicles, and one proposed deponent (Salam one) leased a Ford vehicle. All four vehicles used by the proposed deponents were different m odels. Two vehicles were new at the tim e of purchase, and one was used. Accordingly, depositions of these individuals could provide relevant and im portant inform ation regarding the financial injury, if any, associated with the alleged defect when considering different vehicle m odels, when the vehicle is purchased new versus used, and when the vehicle is bought rather than leased. Inform ation regarding the experiences of these individuals is not available from the current class representatives and is not entirely within Ford’s knowledge. Plaintiffs’ contention that Ford has already deposed current plaintiffs with sim ilar experiences m ay be true, but alone does not 5 provide a reason to entirely preclude Ford from obtaining additional discovery. Third, the proposed deponents should not require expert or legal assistance to prepare for the depositions. While Ford does seek inform ation about the individuals’ participation in the litigation and subsequent dism issals from the case, their form er counsel will already be present at the depositions and can provide guidance in areas of attorney/ client privilege and work product protection. Therefore, the universal concern that an absent class m em ber will incur legal fees as a consequence of the deposition is not applicable to the factual scenario here. Ford correctly points out that the proposed deponents are not ordinary absent class m em bers being singled out for intrusive discovery. To the contrary, these four individuals were previously nam ed parties, who affirm atively interjected them selves into the prosecution of the claim s and m aintained their representative roles until opting for voluntary dism issals. During the period of their involvem ent, the proposed deponents filed num erous m otions, including a m otion to consolidate and a m otion for prelim inary injunction; served Ford with discovery requests; served m ultiple third-party subpoenas; responded to Ford’s m otions; participated by counsel in scheduling conferences; m oved for the appointm ent of colead counsel; and m oved to compel discovery from Ford. Thus, the proposed deponents are not “garden variety absent class m em ber[s]”entitled to a shield from discovery. In re Plasm a-Derivative Protein Therapies Antitrust Litigation, Nos. 0 9-c-7666, 11-c-1468, 20 12 WL 1533221, at *5 (N.D. Ill. Apr. 27, 20 12). III. Co n clu s io n Balancing the interests of the Plaintiffs, the proposed deponents, and Ford, the undersigned finds that deposing four form er plaintiffs out of a potential class of thousands is not unduly burdensom e, or designed to harass the m em bers, or reduce the 6 class size. The proposed deponents have inform ation relevant to com m on issues in the case, and Ford should be given som e leeway to discover those issues. Therefore, the m otion for protective order is D EN IED . The Clerk is directed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : J une 4, 20 15 7
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