The opinion of the court was delivered by: ROVNER
ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE
This is a class action lawsuit brought by approximately 3,000 flight attendants against their employer, Trans World Airlines, Inc. ("TWA"), challenging the company's refusal to provide them with designated rights letters pursuant to the Airline Deregulation Act, 49 U.S.C. App. § 1552, and its applicable regulations, 29 C.F.R. Pt. 220, after plaintiffs went on strike and were not re-hired. On August 18, 1988, the Court granted plaintiffs' motion for class certification pursuant to Fed. R. Civ. P. 23(b)(3), rejecting defendant's argument that an abundance of individual issues with respect to damages made a class action unwieldy. The Court stated that a number of methods were available to manage these issues, but it deferred consideration of which method should be adopted.
On January 26, 1989, the Court granted plaintiffs' motion for summary judgment as to liability. Long v. Trans World Airlines, Inc., 704 F. Supp. 847 (N.D. Ill. 1989). That decision has been affirmed on appeal. Long v. Trans World Airlines, Inc., 913 F.2d 1262 (7th Cir. 1990). The Court must now determine how litigation of the damages issues shall proceed.
Relevant background facts may be found in the earlier opinions of this Court and the Seventh Circuit. An additional development is the completion of questionnaires by over 2,000 of the class members for use in another case in which they are also plaintiffs, Independent Federation of Flight Attendants v. Trans World Airlines, Inc., No. 86-6084-CV-SJ-6 (W.D. Mo.).
Those "IFFA questionnaires" consist of six forms which request the following information:
1. Form A seeks 23 types of personnel information, such as name, address and marital status.
2. Form B seeks information concerning earnings and expenses during the period for which damages are sought in this case, information concerning other employment during that period, information relating to job search and employment expenses, information relating to job search activity, and information concerning any periods of inability to work.
3. Form C seeks information concerning pre-strike employment and use of child care services during the year preceding the strike.
4. Form D seeks information concerning medical and dental expenses.
5. Form E seeks information concerning quarterly travel pass usage.
6. Form F seeks information concerning insurance expenses.
The parties have submitted a number of briefs on the damages issues, addressing such issues as discovery, proximate cause, mitigation, manner of computing lost wages, and availability of compensatory damages.
Of foremost importance at this stage of the litigation are determinations regarding how discovery on the damages issue should proceed and whether defendant should be permitted to pursue a defense that plaintiffs failed to mitigate their damages.
A. Scope of Class Discovery
Defendant seeks permission to serve interrogatories and discovery requests on all class members.
Defendant suggests that it report to the Court after it has reviewed the responses to this discovery in order to discuss the necessity of additional discovery.
Plaintiffs request that discovery proceed on a "sampling" basis, with the initial step being the selection of a random sample of class members. Defendants would then be allowed to serve discovery only on the sample. Plaintiffs also suggest using affidavits from all class members to prove only incidental and consequential damages.
The parties do not dispute the appropriateness of discovery on the damages issues, and they do not dispute the necessity of an eventual hearing. They differ, however, as to the propriety of using a sampling method to limit discovery. This appears to be an issue of first impression in this context. Plaintiffs primarily argue that full-blown discovery is unnecessary and unduly burdensome, but they have provided no authority squarely authorizing sampling in this situation. Defendants argue that the presence of individual issues entitles them to discovery from each plaintiff, but they have provided no authority which prohibits using sampling to limit discovery. After reviewing the law concerning discovery and the law governing class actions, the Court agrees with plaintiffs that a sampling method should be used.
The issue may be broken down into two questions. First, is sampling ever appropriate over a party's objection? Second, if sampling is appropriate in some instances, is this case such an instance?
The Court finds initially that sampling is a permissible procedure. If sampling were universally prohibited, it could only be because a party had an absolute right to obtain discovery from each adverse party or to introduce evidence concerning each such party. Defendants have not identified any source for such a right. Fed. R. Civ. P. 26(c) provides district courts broad discretion to limit discovery when "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." See Seattle Times v. Rhinehart, 467 U.S. 20, 36, 104 S. Ct. 2199, 2209, 81 L. Ed. 2d 17 (1984). In other class actions, courts have not required absolute precision as to damages and have allowed damages to be proven by reference to a class as a whole, rather than by reference to each individual class member. In Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S. Ct. 2995, 53 L. Ed. 2d 1105 (1977), the defendant was found to have ...