The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
This case arises from arrests in Pershing Park on September 27, 2002 during demonstrations in connection with World Bank and International Monetary Fund meetings in Washington, D.C. Plaintiffs represent a class of individuals who were arrested during the morning of the demonstrations. Plaintiffs claim violations of their First, Fourth, and Fourteenth Amendment rights, as well as false arrest, imprisonment, and conversion. Pending before the Court is the defendants' motion to propound limited written discovery to the absent class members. Upon review of the motion, response and reply thereto, the applicable law, and the entire record, the Court DENIES defendants' motion.
The D.C. Circuit's January 13, 2006 opinion details the events at Pershing Park on the morning of September 27, 2002, the aftermath of such events, and the involvement of the District of Columbia Metropolitan Police Department ("MPD"). See Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006). This Court's July 10, 2007 Memorandum Opinion details the involvement of the federal defendants*fn1 in those same events. The District of Columbia defendants ("District defendants") and the federal defendants now both move the Court to allow written interrogatories to be propounded to the absent class members in this litigation. While the District and federal defendants have filed separate motions, their arguments and proposed interrogatories are virtually identical. The plaintiffs have filed a joint opposition and defendants filed a joint reply. Thus, the motions will be addressed concurrently in this opinion.
Defendants seek information regarding the absent class members' activities and experiences before, during, and after their arrest at Pershing Park and their subsequent confinement. Specifically, defendants want to know the details regarding the absent class members' participation in any demonstration activities before they entered Pershing Park on September 27, 2002; any physical or physiological injuries sustained or property loss that occurred as a result of being arrested at Pershing Park; and any effects the experience may have had on the class members' plans to participate in any future demonstrations. See Dist. Def.'s Mot., Ex 1; Fed. Def.'s Mot. Ex. 2. Defendants contend this information is critical to determine whether the police defendants intentionally conspired to arrest almost 400 people at Pershing Park in order to execute unlawful preemptive arrests for the purpose of taking off the streets persons who were at all times acting lawfully so the class members could not exercise their First Amendment Rights, or whether, as the defendants contend, the police were in good faith attempting to cope with roving groups of demonstrators who unilaterally took to the streets without permits or other lawful authorization....
District Def.'s Mot. at 11. Plaintiffs oppose the motion on the grounds that defendants have not met the standards which authorize discovery against absent class members in our circuit.
Federal Rule of Civil Procedure 23 governs the administration of class action lawsuits and provides for the efficient and fair administration of controversies where the class suing or to be sued is sufficiently numerous, shares common claims, and is adequately represented by named plaintiffs whose claims are typical of the rest of the class. See Fed. R. Civ. P. 23(a). The rule envisions a "truly representative suit to avoid, rather than encourage, unnecessary filing of repetitious papers and motions." American Pipe & Const. Co. v. Utah, 414 U.S. 538, 550 (1974). "It is undisputed that the purpose of Rule 23 is to prevent piecemeal litigation to avoid both a multiplicity of suits on common claims resulting in inconsistent adjudications and the difficulties in determining the res judicata effects of a judgment." Donovan v. University of Texas at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981).
Federal Rules 33 and 34 regulate discovery. While discovery against absent class members under Rules 33 and 34 cannot be had as a matter of course, the "evolving view" is that the Court has the power under its authority to manage class actions under Rule 23(d)*fn2 to permit reasonable discovery when the circumstances of the case justify it. United States v. FEOC Trucking Employers, Inc., 72 F.R.D. 101, 104 (D.D.C. 1976)(allowing limited discovery upon a showing of necessity). In Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), the defendant did not engage in any pre-trial discovery nor did it ask the Court to certify subclasses. The D.C. Circuit rejected defendant's request for post-trial discovery of the absent class members, though opined that discovery of absent class members would be permissible in certain cases. Specifically, the Court declared that discovery against absent class members could not be had as a matter of course, but may be had "relevant to the decision of common questions, when the interrogatories or document requests are tendered in good faith and are not unduly burdensome, and when the information is not available from the representative parties." 566 F.2d at 187. In a related case, the Circuit warned that discovery against absent class members "can be a tactic to take undue advantage of the class members... and further that Rule 23... contemplates that absentee parties shall remain the passive beneficiaries of class suits, [therefore] courts have found it necessary to restrict availability of discovery against absentees to those instances in which a need can be shown." Dellums v. Powell, 566 F.2d 231, 236 (D.C. Cir. 1977)(internal citations omitted). Finally, the Manual for Complex Litigation explains that "[o]ne of the principal advantages of class actions over massive joinder or consolidation would be lost if all class members were routinely subjected to discovery." Federal Judicial Center, Manual for Complex Litigation (Fourth) (2004) § 21.41 at 302.
Defendants insist that discovery against the absent class members is critical to their right to a fair trial and seek leave to propound 27 interrogatories to the 281 class members who have been identified based upon MPD arrest records for Pershing Park for September 27, 2002. While defendants concede that both this Court and the Court of Appeals have determined that the arrests at Pershing Park were unlawful, Dist. Def.'s Mot. at 11 (citing Barham v. Ramsey, 434 F.3d 565, 568 (D.C. Cir. 2006)), they contend that discovery is critical to the resolution of multiple issues, namely: whether defendants intentionally conspired to unlawfully arrest people, whether police motivation was malicious and conspiratorial, whether the actions of the protestors justified police action, whether the great majority of persons arrested were not directed or forced into the park by police but rather voluntarily entered the park after unlawfully marching through the streets; and whether the named representatives fairly represent the class, or, as defendants allege, that most people forced into the park were not political activists, but rather bystanders, observers, or non-demonstrators. See Dist. Def.'s Mot. at 11-14. In addition to the above claims, the federal defendants also allege that class discovery is necessary to establish that the federal defendants came to Pershing Park for a legitimate law enforcement purpose and thereafter rendered lawful assistance in response to such a request by the MPD. Fed. Def.'s Mot. at 12. Finally, all defendants argue that class members' activities before, during, and after their arrests are critical to a determination of damages in this case. Dist. Def.'s Mot. at 14; Fed. Def.'s Mot. at 17.
The Court agrees that in certain circumstances, discovery against absent class members may be permitted. See Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977); United States v. FEOC Trucking Employers, Inc., 72 F.R.D. 101 (D.D.C. 1976); Disability Rights Council v. WMATA, 2006 U.S. Dist. LEXIS 63424 (D.D.C. 2006). However, the Court finds that the circumstances of this case do not warrant this unusual measure.
In United States v. FEOC Trucking Employers, the United States sought relief under Title VII of the Civil Rights Act of 1964 for discrimination in the trucking industry. 72 F.R.D at 104. In evaluating plaintiff's request for discovery against absent defendant class members, the Court declared that discovery could be had only when the circumstances of the case justify such action.
The most important relevant circumstances are that the party seeking the discovery must demonstrate its need for the discovery for purposes of trial of the issues common to the class, that the discovery not be undertaken with the purpose or effect of harassment of absent class members or of altering the membership of the opposing class, and that the interrogatories be restricted to information ...