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Hubbard v. Potter

February 22, 2007


The opinion of the court was delivered by: John M. Facciola United States Magistrate Jduge


Plaintiffs are five deaf employees of the United States Postal Service ("USPS") from various facilities across the country. Each plaintiff claims to have been denied a qualified sign language interpreter at safety meetings and mandatory work meetings and therefore claims not to have understood the information USPS was trying to convey. Plaintiffs also claim that USPS is failing to comply with its own written policy, which requires (at a minimum) that qualified sign language interpreters are provided at meetings to communicate with employees who can sign. Plaintiffs claim that defendant's refusal to provide the qualified sign language interpreters has prevented them from performing an essential function of their job--safety.


This case was referred to me for the resolution of the pending discovery motions. Following is a brief discussion of the context in which discovery takes place in this instance.

I. Discovery in the Context of a Pre-Certification Class Action

Plaintiffs seek class certification pursuant to Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure. As a prerequisite to an action under either Rule 23(b) or (c) however, the following must be true: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). In addition, if the requirements of Rule 23(a) have been satisfied and either "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole" or "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy," then class certification is appropriate. See Fed. R. Civ. P. 23(b)(2) and (3).

Discovery in the context of this pre-certification stage can be difficult to navigate:

[While] [c]courts often bifurcate discovery between certification issues and those related to the merits of the allegations . . . There is not always a bright line between the two. Courts have recognized that information about the nature of the claims on the merits and the proof that they require is important to deciding certification. [Thus,]

[a]rbitrary insistence on the merits/class discovery distinction sometimes thwarts the informed judicial assessment that current class certification practice emphasizes.

Manual for Complex Litigation (Fourth) § 21.14 (2004).

II. The Pending Motions

In the case at bar, the court has determined that a bifurcation of discovery into two distinct periods is appropriate. See Scheduling Order of December 21, 2005 (RJL). The question then becomes how to provide the plaintiffs with the discovery they need without creating an undue and unnecessary burden on the defendants. As has been stated:

Obviously, some discovery is necessary prior to a determination of class certification. National Organization for Women v. Sperry Rand Corp., 88 F.R.D. 272, 276 (D.Conn.1980); see also, East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S.Ct. 1891, 1897-98, 52 L.Ed.2d 453 (1977). However, the recognized need for pre-certification discovery is subject to limitations which may be imposed by the court, and any such limitations are within the sound discretion of the court. National Organization for Women, 88 F.R.D. at 277; Chateau de Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir.1978). The discovery which is permitted should be sufficiently broad that the plaintiffs have a fair and realistic opportunity to obtain evidence which will meet the requirements of Rule 23, yet not so broad that the discovery efforts present an undue burden to the defendant. National Organization for Women, 88 F.R.D. at 277. "Discovery is not to be used as a weapon, nor must discovery on the merits be completed precedent to class certification." Id.

In managing discovery in cases of this nature, district courts are required to balance the need to promote effective case management, the need to prevent potential abuse, and the need to protect the rights of all ...

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