Opinion
Case No. 2:92-CV-639TC
May 15, 2003
ORDER
The Named Plaintiffs and Plaintiff Class in this action (collectively, "Plaintiffs") have filed a Motion regarding Notice to the Plaintiff Class, accompanied by a proposed order and proposed notice. Specifically, the court is asked to apply its discretion and to order that notice be given to the Plaintiff class under Fed.R.Civ.P. 23(d)(2), which provides that a court may order that notice be given "in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action."
The parties dispute the question of which party actually urges notice at this time. According to Plaintiffs, it is Defendant State of Utah ("Utah") that stands to benefit from notice, because Utah seeks to "insure a res judicata effect based upon this action and to insure a final equitable accounting binding on all beneficiaries of the Navajo Trust Fund." (Pl.'s Mem. Supp. Mot. re. Notice at 3.) In contrast, Utah argues that notice under Rule 23(d)(2) is by definition "for the protection of the members of the class or otherwise for the fair conduct of the action." (Def.'s Mem. Resp. to Mot. re. Notice at 14 (citing Fed.R.Civ.P. 23(d)(2)).) In any event, it is apparent from the briefing that both Plaintiffs and Utah will likely derive benefit from notice to the class. Accordingly, the court turns to the issues of (1) how notice should be given, (2) which party should bear the burden of giving notice, (3) which party should bear the burden of paying for notice, and (4) what the substance of the notice should be.
(1) How should notice be given? Who should give it? Who should pay for it?
Both parties agree that Plaintiffs' counsel will continue to provide notice in an informal manner that has proven effective, and that comports with the class members' communications traditions, practices, and circumstances. Specifically, Mr. Bernard and Mr. Pace have provided notice to the class by way of: (a) governmental (Utah State and Navajo Nation) entities and officials that serve or represent the class, (b) newspapers available to Navajos in San Juan County and on the reservation, (c) public service announcements over the several radio stations broadcast in both the Navajo and English languages, and (d) direct mail to households of beneficiaries known to Plaintiffs' counsel. The court agrees that Plaintiffs' counsel should continue these practices, and should add the "refinement" suggested by Utah: "that Plaintiffs' counsel should provide notice to each of the named Plaintiffs with directions to communicate that notice to the residents of their chapter at the next appropriate chapter meeting." Such a refinement appears beneficial and of minimal cost to Plaintiffs' counsel.
Plaintiffs further suggest that "the State of Utah as trustee for the Navajo Trust Fund maintains a mailing list, of approximately 1,800 households which contain the vast majority of fund beneficiaries," and that notice should be given to beneficiaries on this list. (Pl.'s Mem. Supp. Mot. re. Notice at 5.) They further argue that Utah should provide and pay for such notice.
The United States Supreme Court has held that "[i]n some instances . . . 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." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 357 (1978);see also, Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023, 1029 (10th Cir. 1993). The Court analogized to practice under Rule 33(c) of the Federal Rules of Civil Procedure, under which interrogatories may be answered with reference to the records containing the answer, when the "burden of deriving the answer would be `substantially the same' for either party." Oppenheimer, 437 U.S. at 357 (citation omitted). This provision, the Court noted, is intended to place the `burden of discovery upon its potential benefitee.'" Id. The Court further observed that inEisen IV, 417 U.S. 156 (1974), "when the court concluded that the representative plaintiffs could derive the names and addresses of the class members from the defendants' records with substantially the same effort as the defendants, it required the representative plaintiffs to perform this task and hence to bear the cost." Id. However, "where the burden of deriving the answer would not be `substantially the same,' and the task could be performed more efficiently by the responding party, the discovery rules normally require the responding party to derive the answer itself." Id. In this case, if a Navajo Trust Fund mailing list exists, and if it is indeed in Utah's sole possession, Utah is the party in a position to provide notice to the potential class members on that list, particularly where, as mentioned above, all parties to this action stand to benefit from providing notice at this time.
But the fact that plaintiffs would also benefit weights against having Utah bear the cost of notice through the mailing list. In Oppenheimer, the Court held that "Eisen IV strongly suggests that the representative plaintiff should bear [the expense of complying with orders properly issued by the district court] because it is he who seeks to maintain the suit as a class action." Id. at 358. The question of whether to shift the expense to the representative plaintiff or to leave it with the defendant is one for the court's discretion. Id. The Court did note, consistent with Utah's position, that "in the Rule 23(d) context, the defendant's own case rarely will be advanced by his having performed the tasks." Id. Even so, "it may be appropriate to leave the cost where it falls because the task ordered is one that the defendant must perform in any event in the ordinary course of its business." Id.; see also, Southern Ute, 2 F.3d at 1030. Here, it is not clear that Utah would incur no additional costs because it would be communicating with the beneficiaries "in any event."
With these principles in mind, the court concludes that if Plaintiffs find informal notice to be insufficient, Utah will be ordered to provide notice to those beneficiaries on their Navajo Trust Fund mailing list. However, Plaintiffs will also bear the expense of providing notice to those on the list, since it is clear that Utah will not derive the sole benefit from providing notice, and given Oppenheimer's strong admonition that "the representative plaintiff should hear all costs relating to the sending of notice because it is he who seeks to maintain the suit as a class action." Oppenheimer, 437 U.S. at 358. Within ten days of this Order, Plaintiffs are to inform the court whether they consider it necessary for Utah to provide formal notice to those on the Trust Fund mailing list, again with the understanding that Plaintiffs will be responsible for the consequent expense of doing so.
(2) What should the substance of the notice be?
The content and substance of the notice to be provided, derived largely from Plaintiffs' Proposed Notice to the Members of the Class, is contained in the court's Notice to Members of the Class, filed concurrently with this Order. Utah argues that such "formal" specifies are not necessary given Plaintiffs' counsel's willingness to continue their "informal" practice of providing notice to the class in the manner described above. However, this argument confuses the questions of how notice should be given and what such notice should include.
Furthermore, the court in its discretion declines to order that the notice to provide opportunity to class members to signify whether they consider the representation by the named Plaintiffs and by appointed counsel Brian Barnard and John Pace to be fair and adequate.
In summary, the court orders that notice be given at this time to the plaintiff class in the form and substance provided in the court's Notice to Members of the Proposed Class. At the very least, notice will be given according to Plaintiffs' counsel's conventional methods, as described above. Furthermore, should Plaintiffs' counsel find it necessary to provide notice to all beneficiaries on the Navajo Trust Fund mailing list — with the knowledge that Plaintiffs' counsel will be responsible for the consequent expense of such notice — they are to inform the court in writing within ten days of the date of this Order so that the court may order Utah to comply with this notice requirement.
IT IS SO ORDERED.