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requiring production because "[f]ee agreements may be relevant to a plaintiff's ability to protect the interests of potential class members by adequately funding the suit, and to the question of awarding of attorneys fees upon settlement or judgment"
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Civil Action No. 03-3768.
July 8, 2004
ORDER AND REASONING
AND NOW, this day of July, 2004, upon consideration of Defendants' Motion to Compel Discovery (Doc. 57), Plaintiff's Response, and Defendants' Reply, it is hereby ORDERED that Defendants' Motion is GRANTED in part and DENIED in part, insofar as the conditions set below by the Court are met. It is hereby further ORDERED that:
1. Plaintiff shall provide specific objections to each interrogatory and document request within ten days of this order or immediately take measures to produce all remaining requests; with the exception that
2. Plaintiff shall answer all interrogatories and produce all documents requested by Defendants that relate to fee agreements.
The Court's reasoning follows.
I. Background
This Order marks yet another chapter in a long and overly contentious discovery dispute. Defendants have accused Plaintiff of inaction and evasiveness in a lengthy Motion to Compel Discovery. In response to Defendants' discovery requests, Plaintiff has provided few direct objections amongst otherwise vague responses, leaving the Court to either divine Plaintiff's objections to each request or invite clarification. Out of consideration to both parties, the Court instructs Plaintiff to clarify which objections shall be made to which interrogatory or document request.
This Motion exceeds the pages limits imposed on the parties by this court's Order of February 11 (Doc. 38) and by the Court's Pre-Trial and Trial Procedure. Additionally, it appears that Plaintiff is still not complying with the Court's electronic document submission requirement.
II. Plaintiff Shall Clarify Objections
Parties who resist discovery must be specific with their objections. Parties "cannot invoke the defense of oppressiveness or unfair burden without detailing the nature and extent thereof. Simply decrying the expense to plaintiff will not satisfy this obligation." Martin v. Easton Pub. Co., 85 F.R.D. 312, 316 (E.D. Pa. 1980). The party resisting discovery "must show specifically how . . . each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive."Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980); see also Josephs v. Harris Corp., 677 F.2d 985 (3d Cir. 1982). Additionally, in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), the Supreme Court held that "discovery [is not] limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits." The Court specifically notes that "discovery often has been used to illuminate issues upon which a district court must pass in deciding whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation." Id.
In the instant case, two difficulties loom for Plaintiff. First are her unresponsive and vague objections to Defendants' interrogatories and document requests. On this issue, the Court will not depart from the orbits of Martin and Roesberg. It is neither the Court's job, nor that of Defense Counsel, to assign objections to each individual discovery request. Although general objections may be included as Plaintiff chooses, she must be specific as to which objection applies to which discovery request instead of using the catch-all "see above objections." As case law and common sense dictate, Plaintiff must provide reasoning and specificity with each objection. Accordingly, this Court, out of fairness to both parties, will allow Plaintiff ten (10) days from the date of this order to provide specific and targeted objections. If none are produced, Plaintiff will be assumed to have waived her objections to the discovery requests.
This leads us to Plaintiff's second difficulty. Many of Defendants' discovery requests relate directly to Fed.R.Civ.Pro. 23 class creation and maintenance issues. The Supreme Court has made clear that these are discoverable topics. Therefore, information pertaining to the adequacy of representation, size of class, and any number of other issues addressing Rule 23 requirements are within Defendants' realm of discovery. Plaintiff's time would thus be well-spent tailoring legitimate and sincere objections to the discovery requests instead of becoming increasingly evasive. This will allow the Court to make fair and informed rulings regarding all discovery requests.
III. Motion to Compel Partially Granted for Fee Agreements
The Court has enough substantive information to rule on Defendants' request for information on, and documentation of, Plaintiff's fee agreements. The Third Circuit has held that, "The attorney-client privilege does not shield fee arrangements."Montgomery County v. Microvote Corp., 175 F.3d 296, 304 (3d Cir. 1999); see also In re Grand Jury Investigation, 631 F.2d 17 (3d Cir. 1980). Moreover, "the fee agreement letter does not come within the ambit of the work-product privilege." Montgomery County, 175 F.3d at 304. Furthermore, as discussed above, the Supreme Court has found that issues relating to the creation, maintenance, and management of class action suits are discoverable. Fee agreements may be relevant to a plaintiff's ability to protect the interests of potential class members by adequately funding the suit, and to the question of awarding of attorneys fees upon settlement or judgment. See Klein v. Henry S. Miller Residential Services, Inc., 82 F.R.D. 6 (N.D. Tex. 1978).
Plaintiff cites Sanderson v. Winner, 507 F.2d 477 (10th Cir. 1974), for the proposition that fee agreements are not discoverable. Sanderson is inapplicable here for several reasons. First, the Sanderson court did not ultimately rule on whether fee agreements are privileged for discovery purposes. Instead, the opinion states "[w]e have found cases which rule that such information is privileged and there are other cases to the contrary." Id. at 480. In addition, the Sanderson court did not hold squarely that a plaintiff seeking to maintain a class action would not be required to disclose fee agreements, as Plaintiff argues. The court instead found the issue irrelevant in that particular case, as the plaintiff's finances and ability to maintain and manage the class were not at issue. At no time did the court make a blanket ruling on all future discovery requests for fee agreements. Finally, Sanderson addresses a class more limited than the potentially complex nationwide group represented by Plaintiff here. Even the Sanderson court acknowledged that, with a larger class, the fee agreement could become discoverable.
Plaintiff shall answer all interrogatories and produce all documents that relate to fee agreements in her present case.
AND IT IS SO ORDERED.