The opinion of the court was delivered by: P. MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendant's Motion to
Clarify the Court's March 8, 2005 Order and to Allow
Interrogatories to Absent Class Members. On October 12, 2005, the
court reserved ruling on Defendant's Motion pending a seven day
supplemental response period. For the reasons stated below,
Defendant's Motion is denied.
On March 8, 2005, the court issued an Order whereby all parties
and their counsel were "forbidden from making communications with
class members, or from taking any other action, direct or
indirect, that coerces, intimidates, or retaliates against class
members." seeks clarification of the Order. In particular, Defendant asks
for guidance on whether or not sending interrogatories to all
absent class members in the case constitutes a permissible class
contact. Plaintiffs have numerous objections to Defendant being
allowed to send interrogatories to absent class members.
Defendant contends it must have information from each of the
absent class members to prepare for trial.*fn1 If the court
is not inclined to allow written discovery to be served on the
absent class members, Defendant requests that the court compel
Plaintiffs to identify all absent class members they intend to
call as witnesses during trial so that Defendant may serve
interrogatories on only those individuals.
II. The Proposed Interrogatories
Defendant attached a representative copy of what it entitles:
"Woodward Governor Company's Questions to Absent Class Members."
See Def.'s Mtn., at Ex. A. The form introduces the lawsuit and
states that to Woodward Governor's knowledge, "you have not
advised the Court that you desire to opt out of or not
participate in this class action." Id. The form also states
"The Court has authorized Woodward Governor Company to send
questions to you to ascertain the nature of your potential claims
in this class action." Id. The form contains seven questions
that ask the absent class member to: (1) state when and if they
received the opt-out notice; (2) identify and describe unposted
promotions they believe they should have received; (3) identify
every job, job code, job level, or salary range they contend they
should have received; (4) identify employees they contend make or
made more money than they make or have made; (5) state if they
have ever heard discriminatory language used by any other employee; (6) state if they have ever seen discriminatory
conduct; and (7) describe all things they contend Woodward
Governor has done to discriminate against them. Id. Each
general question contains detailed subparts. Id.
Communication with "absent class members" (in this case, class
members who have not opted out of the lawsuit, but are not named
Plaintiffs) is a major concern for courts in class action
litigation. Post-certification discovery directed at absent class
members is generally only permitted to the extent necessary at
the liability stage of a class action. Discovery must be
carefully limited to protect absent class members from
harassment, and to ensure that the advantage of streamlined
discovery in a class action lawsuit is not lost. See Brennan v.
Midwestern United Life Ins. Co., 450 F.2d 999, 1005 (7th Cir.
1971); Clark v. Universal Builders, Inc., 501 F.2d 324, 340-41
(7th Cir. 1974). This court has expressed before that it would
not allow discovery to be served on absent class members unless
there was a strong showing of necessity for obtaining information
for trial preparation. The burden is on Defendant to show that
absent class member discovery is necessary in this case. Clark,
501 F.2d at 340.
This court finds Defendant has failed to show how the
information sought in the absent class member interrogatories is
necessary to trial preparation. First, the court notes that
Defendant's fear that "the case would revert back to full-blown
discovery on the eve of trial" is unfounded. Def.'s Supp. Resp.,
at 3. This court has admonished Plaintiffs that it expects to
find, at least, in answers to contention interrogatories those
facts that Plaintiffs intend to offer to prove their
case-in-chief. Plaintiffs have submitted 424 (single spaced)
pages of supplemental answers to Defendant's December 31, 2004
contention interrogatories. This response includes anecdotal information regarding various discriminatory acts allegedly
committed by Defendant. Pages 310-329 of the response also
contain Plaintiffs' contentions regarding "any other current or
former minority employee at Woodward Governor" that was placed in
job, job code, job level, or salary range determination as result
of unlawful race discrimination and each of the Plaintiffs'
contentions regarding "any other current or former minority
employee at Woodward Governor" that had a wage rate that was or
is the result of unlawful race discrimination. Plaintiffs are
further obligated to timely update their disclosures under the
Federal Rules. Fed.R.Civ.P. 26(e).
Second, upon Defendant's request, the court allowed Defendant
forty additional depositions without precluding Defendant from
deposing absent class members, as is often done in class action
lawsuits. Presumably, Defendant was able to learn some
information regarding absent class member claims through these
Third, there is no evidence that Plaintiffs are aiming to
subject Defendant to "trial by ambush." Def.'s Supp. Resp., at 3.
Plaintiffs have complied with the court's disclosure orders, and
the disclosures have been detailed. Plaintiffs have also stated
orally, and in writing, that they do not intend to name surprise
absent class member witnesses in their Final Pre-Trial Order.
Though Plaintiffs will not commit themselves to not calling any
absent class members at trial, they do not appear to hinge their
case on absent class member testimony. Also, when Plaintiffs are
aware that they intend to present absent class member testimony,
they disclose this information to Defendant. See, e.g., the
disclosure of absent class member and potential witness, Ronald
Matlock; Pl.s' Supp. Resp., at 6.
Finally, the court finds interrogatories to absent class
members unwarranted because the court is confident that it can handle any "surprise witness"
issues that may or may not arise at the Final Pre-trial
Conference. Parties have already been cautioned that the court
will consider re-opening discovery if witnesses whom the parties
have not had the opportunity to take adequate discovery on are
named in the Final Pre-trial Order.
For the above stated reasons, Defendant's Motion to Clarify the
Court's March 8, 2005 Order and to Allow Interrogatories ...