Lapas attēli
PDF
ePub

14

Opinion of the Court.

437 U.S. covery of matter not "reasonably calculated to lead to the discovery of admissible evidence" is not within the scope of Rule 26 (b)(1). Thus, it is proper to deny discovery of matter that is relevant only to claims or defenses that have been stricken, or to events that occurred before an applicable limitations period, unless the information sought is otherwise relevant to issues in the case.15 For the same reason, an amendment to Rule 26 (b) was required to bring within the scope of discovery the existence and contents of insurance agreements under which an insurer may be liable to satisfy a judgment against a defendant, for that information ordinarily cannot be considered, and would not lead to information that could be considered, by a court or jury in deciding any issues.16

Respondents' attempt to obtain the class members' names and addresses cannot be forced into the concept of "relevancy" described above. The difficulty is that respondents do not seek this information for any bearing that it might have on issues in the case. See 558 F. 2d, at 653 (en banc dissent).17

14 See, e. g., United States v. 416.81 Acres of Land, 514 F. 2d 627, 632 (CA7 1975); Bourget v. Government Employees Ins. Co., 313 F. Supp. 367, 372-373 (Conn. 1970), reversed on other grounds, 456 F. 2d 282 (CA2 1972).

15 See 4 J. Moore, Federal Practice 26.56 [1], pp. 26-126 to 26-128 (2d ed. 1976), and cases there cited.

16 Before Rule 26 (b) (2) was added in 1970, many courts held that such agreements were not within the scope of discovery, although other courts, swayed by the fact that revelation of such agreements tends to encourage settlements, held otherwise. See Advisory Committee's Notes on 1970 Amendment to Fed. Rule Civ. Proc. 26, 28 U. S. C. App., p. 7777; 4 J. Moore, Federal Practice ¶ 26.62 [1] (2d ed. 1976). The Advisory Committee appears to have viewed this amendment as changing rather than clarifying the Rules, for it stated: "[T]he provision makes no change in existing law on discovery of indemnity agreements other than insurance agreements by persons carrying on an insurance business." 28 U. S. C. App., p. 7778 (emphasis supplied).

17 This difficulty may explain why the District Court, after calling for briefs on the question whether the discovery rules applied, see Brief for

[blocks in formation]

If respondents had sought the information because of its relevance to the issues, they would not have been willing, as they were, to abandon their request if the District Court would accept their proposed redefinition of the class and method of sending notice. Respondents argued to the District Court that they desired this information to enable them to send the class notice, and not for any other purpose. Taking them at their word, it would appear that respondents' request is not within the scope of Rule 26 (b)(1).18

The en banc majority avoided holding that the class members' names and addresses are "relevant to the subject matter involved in the pending action" within the meaning of Rule 26 (b) (1) simply because respondents need this information in

Respondents 10 n. 4, did not expressly rely on those rules. See also Note, Allocation of Identification Costs in Class Actions: Sanders v. Levy, 91 Harv. L. Rev. 703, 708-709 (1978) (distinguishing between "information... sought solely to provide adequate notice" and "valid discovery").

In deciding whether a request comes within the discovery rules, a court is not required to blind itself to the purpose for which a party seeks information. Thus, when the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied. See Mississippi Power Co. v. Peabody Coal Co., 69 F. R. D. 558, 565-568 (SD Miss. 1976); Econo-Car International, Inc. v. Antilles Car Rentals, Inc., 61 F. R. D. 8, 10 (V. I. 1973), rev'd on other grounds, 499 F. 2d 1391 (CA3 1974). Likewise, discovery should be denied when a party's aim is to delay bringing a case to trial, or embarrass or harass the person from whom he seeks discovery. See United States v. Howard, 360 F. 2d 373, 381 (CA3 1966); Balistrieri v. Holtzman, 52 F. R. D. 23, 24-25 (ED Wis. 1971). See also n. 20, infra.

18 Respondents contend that they should be able to obtain the class members' names and addresses under the discovery rules because it is "well settled that [a] plaintiff is entitled to conduct discovery with respect to a broad range of matters which pertain to the maintenance of a class action under Rule 23." Brief for Respondents 25 n. 17; see n. 13, supra. The difference between the cases relied on by respondents and this case is that respondents do not seek information because it may bear on some issue which the District Court must decide, but only for the purpose of sending notice.

[blocks in formation]

order to send the class notice. Tacitly acknowledging that discovery must be aimed at illuminating issues in the case, the court instead hypothesized that there is "a potential issue in all [Rule 23 (b)(3) class-action] litigation whether the required notice has properly been sent. A list of the names and addresses of the class members would of course be essential to the resolution of that issue." 558 F. 2d, at 648. But aside from the fact that respondents themselves never pretended to be anticipating this "potential issue," it is apparent that the "potential issue" cannot arise until respondents already have obtained the very information they seek.1 Nor do we perceive any other "potential issues" that could bring respondents' request within the scope of legitimate discovery. In short, we do not think that the discovery rules are the right tool for this job.20

Rule 23, on the other hand, deals comprehensively with class actions, and thus is the natural place to look for authority for orders regulating the sending of notice. It is clear that Rule 23 (d) vests power in the district court to order one of the parties to perform the tasks necessary to send notice."1

19 Until respondents obtain the information and send the class notice, no issue can arise as to whether it was sent "properly."

20 We do not hold that class members' names and addresses never can be obtained under the discovery rules. There may be instances where this information could be relevant to issues that arise under Rule 23, see n. 13, supra, or where a party has reason to believe that communication with some members of the class could yield information bearing on these or other issues. Respondents make no such claims of relevance, however, and none is apparent here. Moreover, it may be doubted whether any of these purposes would require compilation of the names and addresses of all members of a large class. See Berland v. Mack, 48 F. R. D. 121, 126 (SDNY 1969). There is a distinction in principle between requests for identification of class members that are made to enable a party to send notice, and requests that are made for true discovery purposes. See n. 17, supra.

21 Although Rule 23 (c) (2) states that "the court shall direct" notice to class members, it commonly is agreed that the court should order one of

[blocks in formation]

Moreover, district courts sometimes have found it appropriate to order a defendant, rather than a representative plaintiff, to perform tasks other than identification that are necessary to the sending of notice.22 Since identification simply is another task that must be performed in order to send notice, we agree with the Court of Appeals for the Fifth Circuit that Rule 23 (d) also authorizes a district court in appropriate circumstances to require a defendant's cooperation in identifying the class members to whom notice must be sent.23 We therefore turn to a consideration of the circumstances in which

the parties to perform the necessary tasks. See Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F. R. D. 39, 44 (1968); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 398 n. 157 (1967). Rule 23 (d) provides that in the conduct of a class action, "the court may make appropriate orders: . . . (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct . . . ; [and] (5) dealing with similar procedural matters." The Advisory Committee apparently contemplated that the court would make orders drawing on the authority of either Rule 23 (d) (2) or 23 (d)(5) in order to provide the notice required by Rule 23 (c) (2), for its note to Rule 23 (d) (2) states that "under subdivision (c)(2), notice must be ordered. Advisory Committee's Notes to Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 7768 (emphasis supplied).

22 Thus, a number of courts have required defendants in Rule 23 (b) (3) class actions to enclose class notices in their own periodic mailings to class members in order to reduce the expense of sending the notice, as respondents asked the District Court in this case to do. See, e. g., Ste. Marie v. Eastern R. Assn., 72 F. R. D. 443, 450 n. 2 (SDNY 1976); Gates v. Dalton, 67 F. R. D. 621, 633 (EDNY 1975); Popkin v. WheelabratorFrye, Inc., 20 Fed. Rules Serv. 2d 125, 130 (SDNY 1975). See also Eisen IV, 417 U. S., at 180 n. 1 (Douglas, J., dissenting in part).

23 Our conclusion that Rule 23 (d), not the discovery rules, is the appropriate source of authority is supported by the fact that, although a number of courts have ordered defendants to help identify class members in the course of ordering notice, few have relied on the discovery rules. See In re Nissan Motor Corp. Antitrust Litigation, 552 F. 2d 1088, 1101-1102 (CA5 1977) (collecting cases).

[blocks in formation]

such an order is appropriate and of how the cost of the defendant's complying with such an order should be allocated.

B

Although the Fifth Circuit held that Rule 23 (d), not the discovery rules, authorizes a district court to order a defendant to provide information needed to identify class members to whom notice must be sent, it also suggested that principles embodied in the discovery rules for allocating the performance of tasks and payment of costs might be relevant to a district court's exercise of discretion under Rule 23 (d). See Nissan, 552 F. 2d, at 1102. Petitioners and the en banc dissent, on the other hand, argue that Eisen IV always requires a representative plaintiff to pay all costs incident to sending notice, whether he or the defendant performs the required tasks. Eisen IV does not compel this latter conclusion, for it did not involve a situation where a defendant properly was ordered under Rule 23 (d) to perform any of the tasks necessary to sending the notice.

The first question that a district court must consider under Rule 23 (d) is which party should perform particular tasks necessary to send the class notice. The general rule must be that the representative plaintiff should perform the tasks, for it is he who seeks to maintain the suit as a class action and to represent other members of his class. In Eisen IV we noted the general principle that a party must bear the "burden of financing his own suit," 417 U. S., at 179. Thus ordinarily there is no warrant for shifting the cost of the representative plaintiff's performance of these tasks to the defendant.

In some instances, however, the defendant may be able to perform a necessary task with less difficulty or expense than could the representative plaintiff. In such cases, we think that the district court properly may exercise its discretion under Rule 23 (d) to order the defendant to perform the task in question. As the Nissan court recognized, in identify

« iepriekšējāTurpināt »