United States District Court, N.D. Illinois, Eastern Division
ROBERT C. BURROW, on Behalf of Himself and Others Similarly Situated, Plaintiff,
SYBARIS CLUBS INTERNATIONAL, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
HARRY D. LEINENWEBER, District Judge.
Before the Court is Plaintiff Robert Burrow's (hereinafter, the "Plaintiff" or "Burrow") Motion for Interim Class Certification or, Alternatively, for a Protective Order [ECF No. 46]. For the reasons stated herein, the Motion is denied.
Burrow used to work at the reservations desk for one of Defendant Sybaris Clubs International's five "romantic getaway" motels. (Pl.'s Mot. for Interim Class Cert. ("Pl.'s Mot."), ECF No. 46 at 2.) According to Burrow's Complaint, "[e]very phone call made to or from the reservations desk at every one of the five Sybaris locations over the last two years has been intercepted, recorded, and electronically archived without obtaining consent of either party to the calls." (Pl.'s Compl., ECF No. 1, ¶ 1.) Burrow claims that some of his calls were recorded without his consent, and he brings this five-count putative class action complaint on behalf of himself and other Sybaris employees and customers whose calls were recorded without consent. At this point, the Court has dismissed Count II, there is not yet any certified class, and discovery on the class certification issue is ongoing.
During discovery, however, Sybaris' attorneys contacted and interviewed several Sybaris employees. Before initiating any conversations, Sybaris' attorneys gave the employees a "Consent to Interview" letter, which the employees signed if they decided to speak with the attorneys. Burrow's Motion is based on the letter's contents, and the parties' briefing on this Motion demonstrates great disagreement over what the letter says and what it means. The Court, therefore, reproduces the letter's contents in full:
Sybaris Clubs International, Inc. ("Sybaris"), has been sued by a former employee, Robert Burrow. Mr. Burrow alleges that the recording of telephone calls by Sybaris after the installation of the new ShoreTel phone system was improper. Mr. Burrow claims that he was not aware that the reservation lines were being recorded. Mr. Burrow also claims that some employees listened to recordings of phone calls for their own amusement, and that his personal phone calls were recorded.
Mr. Burrow claims that he should be able to recover damages on behalf of all employees and customers whose calls were recorded, as their representative. No court has determined that Mr. Burrow has the right to bring claims and collect money on behalf of other employees like you (or on behalf of customers). If a court agrees with Mr. Burrow, he may be allowed represent a class of people, including you, in his action against Sybaris.
At this stage of the lawsuit, the attorneys for both sides are investigating the claims and gathering information. Attorneys for Sybaris would like to interview you to obtain information relevant to Sybaris' defense in the case. Sybaris' attorneys expect to use this information to show that Sybaris' employees knew that the reservation lines were being recorded for quality assurance purposes and could be used for "phone grades", and therefore the employees consented to the recordings. If a court agrees with Sybaris, Mr. Burrow will only be able to bring claims on his own behalf.
You are not required to speak with Sybaris' attorneys. They are not employees of Sybaris, and will not report anything you reveal in the interview to Sybaris unless you consent to the disclosure of the information or a court orders its production. Sybaris will not retaliate against you for anything say in an interview or for refusing to be interviewed. Please be advised that your personal interests may not be the same as Sybaris' interests and information you give may limit your ability to participate in this or another lawsuit against your employer, Sybaris. If you are represented by an attorney in connection with any claims against Sybaris, please decline to be interviewed at this time. [emphasis in original]
I, ___________, have read the above Consent to Interview and understand it. I understand that I am not being represented by Sybaris' counsel, that I have the right to be represented by an attorney of my own, and that I am under no obligation to participate in an interview. I further understand that my interests could be adverse to the interests of Sybaris. I hereby consent to be interviewed by Sybaris' counsel.
[Pl.'s Mot., Ex. A]. The letter then provides a space for the employee's name and signature.
Burrow asks the Court to grant "interim class certification" or issue a protective order because, according to Burrow, the letter is misleading and coercive. Sybaris argues that the letter is proper and modeled on other communications that courts deem permissible.
II. LEGAL STANDARD
As a general rule, each party to a potential class action has a "right" to communicate with putative class members. E.E.O.C. v. Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869, 870 (7th Cir. 1996). That right, however, is not unlimited, and Federal Rule of Civil Procedure 23(d) allows a court to limit communications between parties and putative class members in certain situations. Gulf Oil Co. v. Bernarnd, 452 U.S. 89, 100 (1981). Courts may limit communications between potential class members and parties only if the order is "based on a clear record and ...