Summary
noting that "bifurcation of discovery may well-increase litigation expenses by protracting the completion of discovery, coupled with endless disputes over what is 'merit' versus 'class' discovery"
Summary of this case from In re Plastics Additives Antitrust Litig.Opinion
Case No. 01-CIV-0156-GOLD/SIMONTON
January 14, 2002
ORDER
THIS CASE is before the Court sua sponte following the entry of the Court's Order Denying Defendants' Motions to Dismiss. At issue is when and how merit and class action discovery should commence and proceed in this action. One alternative is to bifurcate discovery with merits discovery being stayed until after the Court has ruled on the motion for class certification. This approach is envisioned in Washington v. Brown Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11h Cir. 1992), which provides that "to make early class determination practicable and to best serve the ends of fairness and efficiency, courts may allow classwide discovery on the certification issue and postpone classwide discovery on the merits."
The Brown Williamson decision does not set forth a bright line test on this issue. Rather, discretion is left with the district judge, particularly when discovery relating to class certification is closely intertwined and enmeshed with merits discovery. Under such circumstances, bifurcation of discovery may well-increase litigation expenses by protracting the completion of discovery, coupled with endless disputes over what is "merit" verses "class" discovery. Furthermore, there may be instances when the defendant(s) to a class action suit may require certain merit related discovery in order to "evaluate carefully the legitimacy of the named plaintiffs plea that he is a proper class representative under Rule 23(a)." General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372 (1982). See also Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 457 (11th Cir. 1996) (noting that because "evidence relevant to the commonality requirement is often intertwined with the merits[,] . . . it is sometimes necessary to probe behind the pleadings before coming to rest on the certification question") (quoting Nelson v. United States Steel Corp., 709 F.2d 675, 679 (11th Cir. 1983) and Falcon, 457 U.S. at 160, 102 S.Ct. at 2372).
A more reasoned approach is for the Court to approve a detailed discovery plan which prioritizes "class" related discovery, while not depriving a plaintiff or defendant from engaging in "merits" discovery when facts and issues are inextricably intertwined, or to otherwise address requirements which are essential prerequisites to class determination under Federal Rule of Civil Procedure 23(a).
2. By this Order, the Court cannot anticipate the nature or magnitude of issues that may arise during the discovery process between "class" and "merits" discovery. In lieu of specifying detailed rules, the parties are directed to prepare a detailed discovery plan to be implemented consistent with the intent of this Order. The details of the discovery plan will be addressed by the Magistrate Judge at a discovery conference which shall be set by separate order, with the goal of implementing and monitoring the discovery plan and to make recommendations to the Court on a scheduling order.
3. The following schedule shall govern submission of the discovery plans to United States Magistrate Judge Andrea M. Simonton: DATE ACTION
By January 23, 2002 The parties shall submit to each other their proposed detailed discovery plans, consistent with this Order. By February 1, 2002 The parties shall meet to discuss and further negotiate the specifics of the detailed discovery plans. By February 8, 2002 Any objections to, or alternative proposals regarding, the opposing parties proposed discovery plans shall be filed and served. Alternatively, any agreement relative to the discovery plans shall be filed with the Court. By February 28, 2002 (On a date The Magistrate Judge shall hold a hearing specific to be set by separate with the parties relative to their proposed order of the Magistrate Judge) discovery plan and any filed objections. By March 15, 2002 The Magistrate Judge shall issue an order establishing a detailed discovery plan for the remainder of this case. By March 29, 2002 Any appeal of the Magistrate Judge's order relative to the discovery plan shall be filed, together with an accompanying memorandum of law.4. The parties shall confer and complete the following schedule and submit it on January 23, 2002 to the Magistrate Judge in conjunction with their proposed detailed discovery plans pertaining to class certification: DATE ACTION
By: Completion of class related fact discovery By: Deadline for appointment of experts and delivery of expert reports regarding the class. By: Deadline for appointment of rebuttal experts and delivery of rebuttal expert reports. By: Completion of expert class discovery. By: Plaintiffs may file and serve a supplemental memorandum on class certification. By: Defendants shall file and serve their Opposition Briefs. By: Plaintiffs shall file and serve their Reply Briefs. By: Proposed date for oral argument on class certification. Assume thirty days after oral Court shall issue order on class certification By: The parties shall confer and submit a detailed discovery plan and proposed deadlines for the remainder of the case. By: The Magistrate Judge shall hold a status conference with the parties on discovery.5. The parties shall confer and complete the following schedule pertaining to the remainder of the case at the same time as complying with Paragraph 4 above: DATE ACTION 14 15 18 15 15 Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 113 S.Ct. 2786 Kumho Tire Co., Ltd. v. Carmichael, 525 U.S. 137 119 S.Ct. 1167 Daubert Daubert Motions In Limine. motions in limine. motions in limine motions in limine
By: Any additional non-dispositive pretrial notions (including motions pursuant to Fed.R.Civ.P. , , through 22, and 42) shall be filed. Any motion to amend or supplement the pleadings pursuant to Fed.R.Civ.P. (a) or (d) shall comport with S.D.Fla. L.R. 13.1 and shall be accompanied by the proposed amended or supplemental pleading and a proposed order as required. By: Plaintiff shall furnish opposing counsel with a written list containing the names and addresses of all expert witnesses intended to to be called at trial and only those expert witnesses listed shall be permitted to testify. By: Defendant shall furnish opposing counsel with a written list containing the names and addresses of all expert witnesses intended to be called at trial and only those expert witnesses listed shall be permitted to testify. By: All expert reports and summaries are to be exchanged per S.D.Fla. L.R. 16.1(K). This date shall supercede any other date in Local Rule 16.1(K). By: All expert discovery shall be completed. By: All non-expert discovery shall be completed. By: All dispositive pretrial motions and memoranda of law must be filed. If any party moves to strike an expert affidavit filed in support of a motion for summary judgment [for reasons stated in , (1993) and , (1999)], the motion to strike shall be filed with that party's responsive memorandum. By: All responses to dispositive and motions due. By: All replies to dispositive and motions due. By: Mediation shall be completed. By: Pretrial Stipulation and The joint pretrial stipulation shall be filed pursuant to S.D.Fla. L.R. 16.1(E) and any other relevant orders of this Court. In conjunction with the Joint Pretrial Stipulation, the parties shall file their By: All responses to the shall be filed. By: All replies to the shall be filed. On: A pretrial conference shall be held where the court and parties shall discuss the order and sequence of the trial. On: Anticipated trial date.6. The Magistrate Judge shall address any disagreement on the proposed dates (paragraphs 4 and 5 above), and shall issue a Report and Recommendation to this Court with respect to all dates to be completed in paragraphs 4 and 5 above, as well as her recommendation on a detailed discovery plan. See eg., Report and Recommendation Re: Pretrial Schedule in Cheney v. Cyberguard Corp. Case No. 98-6879-Civ-Gold/Simonton, [DE 226].
7. This Order shall supercede the Court's prior Order of June 28, 2001, [DE 29].