Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-1726-Edwin A. Robson, Judge .
Before Fairchild and Wood, Circuit Judges, and Hoffman,*fn* Senior District Judge.
This began as a not uncommon civil rights suit against a local union and a contractors association. It was brought by five named plaintiffs, seeking to represent a class of black and Hispanic persons alleging employment discrimination in their efforts to gain entry into the plumbing trade.*fn1 Controversy quickly erupted between attorneys over mutual discovery efforts which had been limited by the court to class certification issues. Although the complaint was filed in 1977 and was followed by voluminous interrogatories and in excess of 2,600 pages of deposition transcript, the case is before us now with the class issue still unresolved. The trial judge assessed all the fault against counsel for plaintiffs and dismissed the entire suit with prejudice. This appeal followed.
A resolution of the controversy on the merits, the legitimate controversy between the litigants, not the lawyers, is nowhere in sight.*fn2 We regret that this court must review this type of dispute, because the conduct of this case reveals an abuse of the judicial processes which does a disservice not only to the court and litigants, but also to the public interest in the fair and efficient resolution of disputes.*fn3
The five named plaintiffs are represented to be either black or Hispanic persons who had applied unsuccessfully for apprentice or journeyman membership in the Chicago Journeymen Plumbers' Local Union No. 130. Following those failures, each plaintiff allegedly filed charges with the Equal Employment Opportunity Commission ("EEOC"), and after exhausting that avenue retained counsel and filed suit against the three defendants.
Plumbers' Local Union No. 130 ("Local 130") is alleged to be the labor organization representing all plumbers employed in Cook County, Illinois, and also certain plumbers employed outside the county. Plumbing Contractors Association of Chicago and Cook County ("Contractors Association" or "PCA") is alleged to represent most plumbing contractors within the jurisdiction of Local 130 and to be a co-signatory with Local 130 to a collective bargaining agreement which governs the terms and conditions of employment in the plumbing industry within Local 130's jurisdiction. It is further alleged that the Contractors Association, in consort with Local 130, controls the apprenticeship program operated by the Joint Apprenticeship Committee Local No. 130 U.A. ("JAC") which is alleged to be an unincorporated association that is an agent of and operates under the control of Local 130 and the Contractors Association in administering the apprenticeship program. The Committee is directed by a ten-person board, five members selected by the union and five by the Contractors Association.
Plaintiffs contend that substantially all plumbing work in the construction industry in the Chicago metropolitan area is performed under the labor agreement between Local 130 and the Contractors Association. Under the terms of that agreement there are two ways to enter into the plumbing trade and eventually become a "journeyman" plumber. One is to be admitted to the plumbers' apprenticeship program, and the other is to work for five years in the trade and then be recommended by a contractor. This latter procedure, however, first requires a permit from Local 130. At the conclusion of either procedure, the prospective journeyman must pass a test administered by Local 130.
Plaintiffs submit that the defendants have systematically denied admission into the apprentice program to blacks and Hispanics, and in the five-year program, the contractors association has refused to refer blacks and Hispanics to Local 130 to receive the permit necessary to gain the required qualifying experience. In addition to generally excluding blacks and Hispanics, plaintiffs aver that Local 130 has refused to administer the test for journeymen status to blacks and Hispanics and that the test, in any event, is discriminatory and non-valid. It is claimed that each of the named plaintiffs has been rebuffed from pursuing one or the other of the entry programs because of the alleged discrimination.
The trial court limited initial discovery to matters relevant to a determination of whether the suit should proceed as a class action.*fn4 Extensive interrogatories were exchanged, numbering into hundreds of questions and sub-questions. Things did not go smoothly from the outset. A series of motions to compel discovery were filed by each party. The trial judge labored patiently to resolve the questions during a period of months.*fn5 Next began the oral depositions of the named plaintiffs which lasted about sixteen days before the whole process collapsed. The plaintiffs claim that many questions were racially offensive; were intended to intimidate, harass and belittle plaintiffs; were argumentative, repetitious and obviously outside the knowledge of individual plaintiffs; and were not relevant to class certification issues.
Defendants seek to justify the questions propounded and fault the conduct of plaintiffs' counsel. They cite 965 refusals of the witnesses to answer. Defendants contend that race was a proper subject for inquiry because plaintiffs' complaint made it an issue and failed to identify which plaintiffs were black and which Hispanic. Further, defendants argue that the complaint was confusing in that it did not make clear which plaintiffs were alleging racial discrimination and which were alleging national origin discrimination. Defendants additionally aver that plaintiffs failed to object in court to the alleged harassment or to seek protective orders. Defendants also complain that plaintiffs not only refused to answer numerous questions, but that plaintiffs' counsel declared that certain subject matter areas were off limits. Further, it is alleged that plaintiffs' counsel held at least 127 conferences off the record with their clients under circumstances which suggested "coaching" during the course of the deposition testimony. It is claimed that plaintiffs' counsel generally disregarded the Federal Rules of Civil Procedure and the orders of the court, all of which disrupted the discovery proceedings. Two of the plaintiffs, Eggleston and Viera, it is charged, unilaterally terminated their depositions and refused to appear to complete them. Defendants submit that plaintiffs' counsel did not give accurate information about the necessity of providing an interpreter for Viera. After hours of what is described as futile attempts at examination of Viera, an interpreter was engaged. Later during the deposition Viera became ill and did not complete the deposition. Plaintiffs claim that Viera "collapsed from exhaustion" because of defense counsel's grueling examination.
During his deposition, as an example, Eggleston refused to answer about 200 questions which defendants say were class related and propounded to determine his experience, skill and qualifications to work as a journeyman plumber. Plaintiffs say, however, that the questions were only technical plumbing questions unrelated to class issues and therefore walked out of the deposition offering to return when only class related questions would be asked. Plaintiffs' counsel made it plain that he was not going to submit his clients for opposing counsel's "plumbing test," since opposing counsel himself "had flunked the legal test so far in this lawsuit," and that plaintiffs' counsel was not prepared "to make him the judge in any plumbing test...." We see no need to set down for posterity all the details of the deposition squabbling. We hope that what has already been briefly mentioned, together with some additional details, will be sufficient to paint the picture for our purposes. As a result, the district court dismissed the claims of Eggleston and Viera and entered a rule to show cause why the three remaining plaintiffs should not also have been dismissed. Five months later, after discovery remained bogged down, the court dismissed the claims of the remaining plaintiffs with prejudice.
Class Action and Discovery Overview
Class actions are governed by Fed.R.Civ.P. 23.*fn6 Plaintiffs seek to bring their class action under Rule 23(a) and (b)(2). Allegations of discrimination do not constitute a by-pass around Rule 23, as the Supreme Court made clear in East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S. Ct. 1891, 1897-98, 52 L. Ed. 2d 453 (1977):
We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.Rule Civ.Proc. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination.*fn7
Accordingly, some degree of discovery may be appropriate in certain cases to aid making the necessary class determinations. The pleadings are expected to be of assistance, but more information may be needed. Doctor v. Seaboard Coast Line R. Co., 540 F.2d 699, 707 (4th Cir. 1976). However, "nothing in either the language or history of Rule 23 ... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 2152, 40 L. Ed. 2d 732 (1974).
The trial court in the present case specifically limited discovery to class determination issues. The boundary between a class determination and the merits may not always be easily discernible. Eisen has not been interpreted so broadly, however, as to foreclose inquiry into whether plaintiff is asserting a claim which, assuming its merit, will satisfy the requirements of Rule 23 as distinguished from an inquiry into the merits of plaintiff's particular individual claim. Doctor v. Seaboard Coast Line R. Co., supra, 540 F.2d at 707. Some overlap may be unavoidable.*fn8 The burden of establishing class requirements rests on plaintiff, Carracter v. Morgan, 491 F.2d 458, 459 (4th Cir. 1973), but it is often the defendant, preferring not to be successfully sued by anyone, who supposedly undertakes to assist the court in determining whether a putative class should be certified. When it comes, for instance, to determining whether "the representative parties will fairly and adequately protect the interests of the class," or the plaintiffs' ability to finance the litigation, it is a bit like permitting a fox, although with a pious countenance, to take charge of the chicken house.
Under Rule 23(a) the focus of the class determination inquiry should be on certain criteria. First is numerosity. It ordinarily is not difficult to ascertain if a class approach would be useful to avoid the practical problems of trying to join many named plaintiffs or otherwise clog the docket with numerous individual suits. Except for the class approach many might never receive any redress for the wrong done them. Second is commonality. Ordinarily it is not difficult to determine if there appear to be common questions of law or fact. In a discrimination suit this requirement may be satisfied even though there may be differences in the details of individual claims. The third is typicality. The rule requires that the claims or defenses of the named parties be typical of the claims or defenses of the class. This simply requires a showing, not unrelated to commonality, that others suffer from similar alleged grievances. Nor is this ordinarily a difficult preliminary showing to make in many discrimination cases.
Finally is the requirement that the named parties will fairly and adequately protect the interests of the class members who are not personally involved in the litigation. This requirement is often more difficult to resolve. Whenever certain named persons purport to represent others without their knowledge or consent, the court must be assured that the named parties are qualified and capable of fully pursuing the common goals of the class without collusion or conflicts of interests. That requires competent and experienced counsel able to conduct the litigation. Even so, the class representative's role is limited. It was found not to be enough to defeat a class certification in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366, 86 S. Ct. 845, 847, 15 L. Ed. 2d 807 (1966), that the named plaintiff did not understand her complaint at all, could not explain the statements in it, had little knowledge of what the lawsuit was about, did not know the defendants by name, nor even the nature of the misconduct of the defendants. The plaintiff, a Polish immigrant, had relied on her son-in-law. Surowitz appears to be an extreme case, but it does illustrate the flexibility and broad area for the exercise of the trial court's common sense and good judgment in particular instances.*fn9
In addition, provided those criteria are met, there remains one of several other criterion under Rule 23(b) to be satisfied. In the present case plaintiffs allege under (b)(2) that the defendants have acted or refused to act on discriminatory grounds generally applicable to the class rendering final injunctive or declaratory relief appropriate. The invocation by plaintiffs of (b)(2) in the circumstances alleged is not novel, since it appears to have been drafted primarily for racial discrimination cases.*fn10
Often it is more difficult to apply those rules to a given situation than their text initially suggests, but with the good faith assistance of the parties, a court should be able "as soon as practicable after the commencement of an action brought as a class action" to make the necessary and appropriate initial determination under Rule 23. After all, a favorable class determination by the court is not cast in stone. If the certification of the class is later deemed to be improvident, the court may decertify, Sayre v. Abraham Lincoln Federal Savings & Loan Ass'n, 65 F.R.D. 379, 384 (E.D.Pa.1974); subclassify, Wolfson v. Solomon, 54 F.R.D. 584, 592 (S.D.N.Y.1972), alter the certification, Hernandez v. United Fire Insurance Co., 79 F.R.D. 419, 433 (N.D.Ill.1978), or permit intervention, United States v. Trucking Employers, Inc., 72 F.R.D. 101, 106 (D.D.C.1976). If, as distinguished from the ideal, the class certification inquiry is twisted and misused so as to impede, harass, discourage or to accomplish some other ...