March 05, 2020 Practice Points

Ninth Circuit: Identification of Potential Clients Alone Is Not a Permissible Discovery Purpose

The court finds clear error in allowing discovery to identify class members before class-certification.

By Neeckaun Irani

In In re Williams-Sonoma, Inc., 947 F.3d 535 (9th Cir. 2020), the Ninth Circuit granted the defendants’ petition for a writ of mandamus and vacated a pre-class-certification discovery order directing the defendants to a produce a list of California customers who had purchased bedding products with alleged advertising misrepresentations. The defendants pursued the extraordinary remedy of a writ of mandamus, requiring clear errors of law, as the district court’s discovery order was not appealable.

A Kentucky resident named William Rushing brought a putative class action lawsuit alleging violations of state consumer protection laws on behalf of purchasers of bedsheets. Rushing alleged he overpaid because the bedsheets at issue did not meet a mere 300-thread count, let alone the advertised representation of a 600-thread count threshold. Rushing brought the suit against the consumer retail company Williams-Sonoma and its related advertising entity.

The district court applied the governing Kentucky law and found Kentucky’s consumer protection law prohibited class actions. Rushing stated he would pursue his claims under Kentucky law on an individual basis. However, to assist the plaintiff’s counsel in finding a new named plaintiff to pursue the claims under California law instead, the district court granted the plaintiff’s request to order discovery from the defendants to find California residents who had purchased similar bedding products since January 2012.

A divided Ninth Circuit panel reasoned that under Rule 26(b)(1) of the FRCP, the scope of discovery must be limited to matters relevant to any party’s claim or defense. The court distinguished this case—where the sole purpose of discovery was to find counsel a client—from other cases where post-class certification discovery was necessary for class notice. Since Rushing’s claims and defenses involved the application of Kentucky law, discovery regarding unknown class members for the possible pursuit of class claims under California law would not relevant to Rushing’s complaint.

In a dissenting opinion, Judge Richard A. Perez opined that Rule 23 of the FRCP broadly empowers district courts to take measures necessary to maintain a class action, protect putative class members’ interests, and provide notice to absent class members. Moreover, he noted the majority incorrectly interpreted precedent by holding that discovery of absent class representatives is limited to post-class certification. Given that this case involved an open issue of law, Judge Perez found the majority’s ruling unnecessary under a writ of mandamus’ clear error of law standard.

Neeckaun Irani is an associate with Weil, Gotshal & Manges LLP in Silicon Valley, California.

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