Rule 26 Proportionality and Class Counsel’s Communications With Class Members


A number of courts have grappled with whether a defendant may discover the identities of the absent class members with whom class counsel have communicated, as well as whether counsel may be compelled to produce the underlying communications.

Typically, the analysis has turned on privilege and privacy concerns.  See, e.g.Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104, 1111 (9th Cir. 2005); Tien v. Superior Court, 139 Cal. App. 4th 528, 540 (2006).  A recent opinion adds Rule 26 proportionality concerns as yet another basis for deeming such requests objectionable.

In O’Connor v. Uber Technologies, No. 13-cv-03826, 2016 WL 107461 (N.D. Cal. Jan. 11, 2016), Magistrate Judge Donna M. Ryu acknowledged that the requests “raise the questions of attorney client privilege and work product,” Id. at *4 n.4,  but opted to deny Uber’s motion to compel on other grounds.  The court held Uber failed to show that the utility or significance of the information justified the concomitant burdens:

In light of the foregoing, Uber’s wildly overbroad discovery requests fail Rule 26(b)’s proportionality requirements, given the lack of importance of the discovery to the resolution of the issues in the case, as well as the enormous burden such discovery would place on the attorney-client relationship between class members and class counsel.

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