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BELL v. WOODWARD GOVERNOR COMPANY

United States District Court, N.D. Illinois, Western Division


November 7, 2005.

DEMETRIC BELL, MARILYN BERRY, CATHERINE BROWN, KIMBERLY BUCHANAN, GILBERTO GONZALEZ, DELLA JARRETT, TIMMY LINK, EDDIE MANNING, JR., KIM NACHAMPASSACK, DUANE PARKS, BRENDA RILEY, DARNEL ROYAL, ROBIN SALLIS, VELMA SANDERS, BARBARA SMITH, TONY TRIPLETT, JANET WILKINS and FRED WYNNE, individually and on behalf of similarly situated persons, Plaintiffs,
v.
WOODWARD GOVERNOR COMPANY, Defendant.

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.

I. History

  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.

  III. Analysis

  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 depositions.

  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.

  IV. Conclusion

  For the above stated reasons, Defendant's Motion to Clarify the Court's March 8, 2005 Order and to Allow Interrogatories to Absent Class Members is denied.

20051107

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