Opinion
Case No. 04 C 50006.
June 29, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the court on Plaintiff's Motion for a Protective Order, filed May 27, 2005, concurrently filed in Bell v. Woodward Governor, 03 C 50190. Specifically, Plaintiff seeks an Order that (1) prohibits Defendant's supervisors from confronting class members regarding class members' deposition testimony, (2) prohibits Defendant's supervisors from coercing, intimidating, retaliating against or otherwise treating class members adversely based on class members' deposition testimony, and (3) prohibits Defendant's supervisors from attending depositions of class members. For the following reasons, Plaintiff's Motion for a Protective Order is denied.
This Opinion and Order was issued concurrently in Bell v. Woodward Governor, 03 C 50190. References to a class action lawsuit in this Opinion pertain to Bell, and not the above captioned case. However, as the basis for Plaintiff's Motion is identical to that articulated in Bell, the Opinion is substantively unmodified.
I. Background
The alleged actions of Defendant underlying Plaintiff's Motion for a Protective Order began May 3, 2005, following Defendant's deposition of absent class member Juan Aguilar ("Aguilar"). Aguilar, who currently works for Defendant as a janitor in the Maintenance Department, is a member of the class certified in Bell v. Woodward, 03 C 50190, who has not opted out of the lawsuit. At his deposition, Aguilar testified, among other things, that he was unhappy with the amount of money he has been paid by Defendant.
Members of the class who are not plaintiffs or charging parties.
When Aguilar returned to work after his deposition, he was called to talk with his supervisor, Greg Navarra ("Navarra"). (Aff. of Aguilar, at para 5). The conversation occurring between Aguilar and Navarra at this meeting is in dispute. Aguilar's Affidavit states that Navarra talked to him about his use of telephones at work. ( Id. at para 6). Aguilar's Affidavit also states that Navarra told him he had heard Aguilar was not happy with his pay, and that Navarra said "didn't you just come from a meeting, Juan?" ( Id. at para 7). Additionally, Aguilar states that Navarra told him he "could not pay me any more until my next review and at that time, he would look at any complaints about me. He said that complaints will follow me to my review." ( Id.). Aguilar alleged in his Affidavit that the meeting last about forty-five minutes. ( Id. at para 9).
Navarra's Affidavit, on the other hand, states that Navarra "did not retaliate against Juan in any way." (Aff. of Navarra, at para.1). Instead Navarra states that he "had already decided to speak with Juan . . . about using other people's telephones . . . before [he] learned that [Aguilar] was going to be deposed." ( Id. at para.7). Navarra admitted in his Affidavit that he did say, "I understand that you think you should get a raise and not just the night shift differential," but denies using the words "meeting" or "deposition." ( Id. at para.10). Navarra's Affidavit states he ended the conversation with Aguilar by noting that he was not going to give Aguilar a raise, adding that Woodward reviews wages on an annual basis with performance evaluations. ( Id.). Finally, Navarra's Affidavit states the meeting only lasted somewhere between ten and fifteen minutes. ( Id. at para.11).
The events following Aguilar's meeting with Navarra are also in dispute. Aguilar alleges that he spoke with another employee at Woodward, Genaro Perez ("Perez"), shortly after the meeting. (Aff. of Aguilar, at para 9). Aguilar reported his conversation with Navarra to Perez, and Perez stated in his Affidavit that Aguilar was "shaken and upset." (Aff. of Perez, at para. 4). Perez testified about his conversation with Aguilar at his own deposition on May 4, 2005. ( Id. at para. 5). Both Perez and Aguilar alleged in their Affidavits that certain Woodward employees stopped being friendly towards them after their depositions. (Aff. of Aguilar, at para. 10; Aff. of Perez, at para. 6). While Defendant does not dispute Aguilar's conversation with Perez, it does offer the Affidavits of employees cited by Perez (Aguilar did not cite any specific employees), which deny that any adverse steps were taken as the result of any deposition statements. (Aff. of London; Aff. of Spielman).
Defendant also offers a detailed account of the circumstances that led up to Navarra's meeting with Aguilar. (Def.'s Resp., at 3-7). Through the Affidavit of Navarra, Defendant offers evidence that night shift employee use of the engineering and tool design area telephones was brought to the attention of Eddie Manning on April 27, 2005. ( Id. at 4-5). This information was in turn brought to the attention of Navarra, who requested the names of persons using the phones. (Def.'s Resp., at 6). On May 2, 2005, Eddie Manning informed Navarra that Aguilar was one of the employees misusing the phones. ( Id.). Navarra also learned the telephone number being called from the desks in the area of concern belonged to Marta Aguilar, Aguilar's sister. ( Id. at 7). Notably, all of this allegedly occurred before Navarra knew Aguilar was to be deposed May 3, 2005. ( Id. at 6). Defendant also notes that Navarra did not have to know about Aguilar's deposition testimony to know that Plaintiff was unhappy with his pay because Aguilar discussed with his lead, who reports to Navarra, his complaints about his pay. ( Id. at 8).
Despite Defendant's attempt to clarify the events leading up to Navarra's meeting with Aguilar in its Response filed with the court, Plaintiff's Reply maintains a protective order is warranted prohibiting improper conduct as a result of deposition testimony by class members, citing the inherent intimidation caused by Defendant's deposition of absent class members. Plaintiff vehemently argues that some assurance from the court is needed so that class members who are asked to participate in the lawsuit can do so without the fear of retaliation.
II. Analysis
Plaintiff seeks a Protective Order because of the events occurring on May 3rd and May 4th, 2005, but does not seek an Order "curing what has already happened." (Pl.s' Reply, at 1). Instead, Plaintiff asserts that the court's help is needed to protect against future conduct with respect to class members who fear retaliation following their depositions, especially given the history of the parties in this case. Defendant, in its opposing Response to Plaintiff's Motion, argues that Plaintiff has failed to make a record of any misconduct that would warrant a protective order, and it further asserts a business need and constitutional right to speak with its employees. The court looks to Federal Rule of Civil Procedure 26(c) and 23 to determine if a protective order is needed in this class action lawsuit.
See Protective Order, Bell, et al v. Woodward, 03 C 50190 (N.D. Ill. March 8, 2005) (ordering "all parties to cease communications with class members initiated for the purposes of coercion, intimidation, or retaliation regarding the class member's decision to remain in the class or opt out).
A. Rule 26(c)
The issuance of protective orders is governed by Rule 26(c), which provides that:
Upon motion by a party or by the person from whom discovery is sought . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
Fed.R.Civ.P. 26 (c). The party seeking the protective order has the burden to show good cause upon which a protective order should be entered. Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981). The rule contemplates a "specific demonstration of fact as distinguished from stereotyped and conclusory statements." United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir. 1978).
B. Rule 23
Under Rule 23, which governs class actions in federal court, a court has the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of both counsel and parties. Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981). Nonetheless, the court's authority is bounded by the Federal Rules. Id. Where one party urges the court to use its discretion under Rule 23 to limit communications with members of the class, the court should also only consider relief "that limits speech as little as possible consistent with the rights of the parties under the circumstances." Id. at 102 (addressing concerns with prior restraints on speech).
Gulf Oil reiterated that a court should limit communication only based upon a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties, expressly noting that a court should not limit communications without a specific record of the particular abuses threatened. Id. at 101-02. While actual harm need not be shown, especially when speech is inherently conducive to overreaching and duress ( see Kleiner v. First Nat'l Bank (11th Cir. 1985)), the court cannot issue an Order without some evidence that a potential for serious abuse exists. Gulf Oil Co., 452 U.S. at 101-02.
C. Protective Order Regarding Depositions
At this time, the court does not find that a protective order regarding depositions and conduct thereafter is warranted. An order prohibiting Defendant's supervisors from discussing class member deposition testimony with class members and from attending depositions of class members would burden Defendant's ability to communicate effectively with its employees and to prepare its case. While that burden is not insurmountable, Plaintiff has not provided evidence that there is a serious threat of abuse accompanying the limited number of depositions the court has allowed Defendant to take in this case.
The court has made clear in previous Orders and Opinions that coercion, intimidation, and retaliation (direct or indirect) will not be tolerated against class members. Likewise, it has always been Defendant's counsels' duty to advise Defendant of the parameters of permissible contact with class members. Undoubtedly, this court condemns any attempt by any party to interfere with the rights of class members or to undermine the class action process. However, the declarations of Aguilar and Perez fail to establish specific instances of misconduct necessary to demonstrate good cause for imposing restrictions on Defendant beyond the Orders already issued.
Before the court can intervene with a protective order and restrict communication between parties, a Plaintiff must demonstrate an abuse of the class action process or an imminent threat of abuse. Here, the evidence presented, which appears to be an isolated incident, inflamed by opposing counsels' inability to communicate with one another, does not justify an order regulating communications with class members.
III. Conclusion
For the foregoing reasons, Plaintiff's Motion for a Protective Order is denied.