This matter comes before the Court on a series of motions filed by both parties concerning named class representative Earl Old Person. Defendants seek to compel Old Person to respond to their request for production of documents, and to appear to be deposed. Four of the named plaintiffs and class counsel seek to remove Old Person as a named class representative, to permit class counsel to withdraw from representing Old Person in any other capacity other than as class counsel for an absent member of the class, and to have this Court issue a protective order enjoining defendants from taking discovery from Old Person. Upon consideration of the parties' motions, the opposition and reply briefs filed thereto, *fn1 and the applicable law, the Court finds that plaintiffs' motion to remove Old Person as a class representative and to withdraw as counsel for Old Person should be granted, that plaintiffs' motion for a protective order should be denied, and that defendants' motion to compel should be granted.
On February 4, 1997, this Court entered an order certifying this action as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. Having found that Elouise Pepion Cobell, Thomas Maulson, James Louis LaRose, Mildred Cleghorn, and Earl Old Person would "fairly and adequately protect the interests of the Class," the Court designated these five individual Indian trust beneficiaries as named representatives of the certified class. Order Certifying Class Action, Feb. 4, 1997, at 2. Pursuant to Rule 23(d) of the Federal Rules of Civil Procedure, general principles of equity, and the Court's inherent powers, the Court retained jurisdiction "to modify this Order as the interests of justice may require." Id. at 3.
On June 5, 2002, defendants issued a request for production of documents to plaintiffs. Plaintiffs filed a motion seeking a protective order staying defendants' discovery requests on July 5, 2002, and defendants moved to compel plaintiffs to respond to their request for production on July 16, 2002. On December 11, defendants served plaintiffs with a notice of deposition for Old Person, which scheduled the deposition for January 9, 2003. On December 23, 2002, this Court denied plaintiffs' motion for a protective order and granted defendants' motion to compel.
On January 8, 2003, plaintiffs filed four motions seeking (1) an order removing Old Person as named class representative in this case, (2) permission for counsel to withdraw from the representation of Old Person in any capacity other than as class counsel (3) an order staying Old Person's obligation to respond to defendants' request for production of documents, and (4) a protective order to prevent the deposition of Old Person. *fn2 On January 16, defendants filed briefs in opposition to each of plaintiffs' motions. On the same date, defendants moved to compel Old Person to respond to defendants' request for production and to appear for deposition. Plaintiffs filed a response to defendants' motions on January 29, and defendants submitted reply briefs in support of their motions on February 7.
A. Removal of Old Person and Withdrawal of Counsel
Rule 23(a)(4) of the Federal Rules of Civil Procedure provides that "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if . . . the representative parties will fairly and adequately protect the interests of the class." The D.C. Circuit has stated that
"[b]asic consideration of fairness require[s] that a court undertake a stringent and continuing examination of the adequacy of representation by the named class representatives at all stages of the litigation where absent members will be bound by the court's judgment." At all stages of the litigation the lack of adequate representation "denies [absentee class members] due process of law and prevents the court from assuming personal jurisdiction over the absentee members." Nat'l Ass'n for Mental Health, Inc. v. Califano, 717 F.2d 1451, 1457 (1983) (quoting Nat'l Ass'n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 344-45, 346 (D.C. Cir. 1976)). Whether a representative party will fairly and adequately protect the interests of class members is a question of fact that depends on the individual circumstances of each case, and is committed to the sound discretion of the district court. McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981); Susman v. Lincoln Am. Corp., 561 F.2d 86, 90 (7th Cir. 1977); Diduck v. Kaszycki & Sons Contractors, Inc., 149 F.R.D. 55, 59 (S.D.N.Y. 1999). The leading treatise on class action litigation explains that
Rule 23 has built-in safeguards to deal with potential and actual conflicts and situations where other problems of inadequate representation arise. Under Rule 23, the court may create subclasses, limit the class scope, or rely on the right of class members to exclude themselves in order to resolve conflicts. The court may invite interventions to bolster or substitute for class representation. It may alter, amend, or modify its class ruling at any time before a judgment on the merits.
ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 3.42 (4th ed. 2002).
In this context, the Fifth Circuit has stated that "if after the class has been certified and its claims heard and the representatives are found to be inadequate for some reason during the course of the class claims or during a bifurcated hearing with respect to individual claims, the appropriate step is appointment of new representatives from the existing class, not decertification." Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 617-18 (5th Cir. 1983) (citing Satterwhite v. City of Greenville, 634 F.2d 231 (5th Cir. 1981) (per curiam)). Additionally, in a case involving a situation where the named plaintiff's claim ceased to be typical of the class, another district court explained that such cases as United States Parole Comm'n v. Geraghty and Sosna v. Iowa teach that once a class has been certified it acquires an existence separate and apart from the individual named plaintiff, so that the failure of his or her individual claim does not impair the class'[s] entitlement to relief. Hence Umar's inability to serve as an appropriate representative after certification of the Inmate Class does not require class decertification. Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982) . . . has so held:
Although a district court may decertify a class if it appears that the requirements of Rule 23 are not in fact met, it need not decertify whenever it later appears that the named plaintiffs were not class members or were otherwise inappropriate class representatives. Rather, the Supreme Court has stated, "provided the initial certification was proper . . . the claims of the class members would not need to be mooted or destroyed because subsequent events or the proof at trial has undermined the named plaintiffs' individual claims.
In the present circumstance the appropriate procedure is to substitute a new named plaintiff, not to decertify the class. Where the class relief at issue is injunctive and declaratory in nature, it would be wasteful and contrary to the interests of justice to require a new class (and perhaps new class counsel) to start again at ground ...