Opinion
Case No. C-1-02-218
June 27, 2002
ORDER
This matter is before the Court on plaintiff's motion for leave to discovery, a memorandum by defendant Immerman Tobin Co. LPA ("Immerman Tobin") in opposition, and plaintiffs reply. (Does. 2, 7, 8). Plaintiffs motion will be granted.
Plaintiff Cecilia Whitfield initiated this putative class action by filing a complaint on behalf of herself and all other similarly situated persons seeking damages and permanent injunctive and declaratory relief for alleged violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, and the Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann. § 1345.01. (Doc. 1). An amended class action complaint was filed on April 4, 2002. (Doc. 3).
On April 1, 2002, plaintiff filed a motion for leave to conduct limited discovery relating to class certification issues prior to the mandatory Fed.R.Civ.P. 26(f) discovery conference. Plaintiff seeks expedited discovery on the grounds that she is required by S.D. Ohio Civ. R. 23.3 to file her motion for class certification within 120 days after the filing of her complaint and that the time permitted following the Rule 26 (9 conference will be insufficient time for class-related discovery. (Sec Doc. 2). Defendant Immerman Tobin opposes the motion on the grounds that Fed.R.Civ.P. 26(d) precludes discovery until the 26(f) conference and that bifurcated discovery would be unduly burdensome. (See Doc. 7).
There is no evidence that the parties in the present case have attempted to con fer. Moreover, the Court has not yet ordered the parties to confer nor set a date for a scheduling conference because not all of the defendants have filed answers or responsive motions. The 120-day period contemplated by S.D. Ohio Civ. R. 23.3 will expire on August 1, 2002.
Defendant Immerman Tobin flied its answer to die first amended complaint on May 29, 2002. (Doc. 9). Defendant Eberly, McMahon Hochsheid, LLC, filed its answer on June 3, 2002. (Doc. 10). Defendant Tabitha Hochsheid has not yet filed an answer.
Rule 26(d) provides in part as follows:
Except when authorized under these rules or by local rule, order, or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by subdivision (f).
Fed.R.Civ.P. 26(d). While generally precluding discovery until the 26 (f) meeting, see Epps v. Lauerdale County, 139 F. Supp.2d 859, 868 (W.D. Tenn. 2000), the rule nonetheless permits the court to set the timing of discovery "for the convenience of the parties and the witnesses and in the interests of justice." Fed.R.Civ. p. 26(d). The rule allows the district court to order discovery early in the case and to order expedited discovery upon a showing of good cause. See Yokohama Tire Corp. v. Dealers Tire Supply Inc., 202 F.R.D. 612, 614 (D. Ariz. 2001).
Limited discovery may be ordered prior to the Rule 26(f) meeting to resolve class related issues. See Knapp v. Americredit Fin. Servs., Inc., 204 F.R.D. 306, 307-08 (S.D. W. Va. 2001). The Federal Rules of Civil Procedure require that "[a]s soon as practicable after the commencement of the action brought as a class action, the court shall determine by order whether it is to be so maintained. Fed.R.Civ.P. 23. 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. See Washington v. Brown Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir. 1992) (citing Stewart v. Winter, 669 F.2d 328, 331 (5th Cir. 1982)). Where the pleadings themselves do not conclusively show whether the requirements for class certification are met, the parties must be afforded the opportunity to discover and present documentary evidence on the issue. Walker v. World Tire Corp., tic, 563 F.2d 918, 921 (8th Cir. 1977); see also Eggleston v. Chicago Journeymen Plumbers "Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981), cent denied sub nom. Joint Apprenticeship Comm. Local 130, U.A. v. Eggleston, 455 U.S. 1017 (1982).
Early discovery is proper in this case.
IT IS THEREFORE ORDERED THAT:
Plaintiff's motion for leave to conduct limited discovery (Doc. 2) is GRANTED.