947 F.3d 535
9th Cir.2020Background
- Plaintiff William Rushing (Kentucky resident) sued Williams‑Sonoma alleging bedding thread‑count misrepresentations and sought to pursue a California‑law class action.
- Before class certification, the district court held Kentucky law governed and Kentucky consumer law barred class actions for Rushing’s claims; Rushing then sought a California resident as a putative class representative.
- Rushing’s counsel requested, and the district court ordered, pre‑certification production of a list of Williams‑Sonoma customers in California who purchased the relevant bedding products to locate a potential California lead plaintiff.
- Williams‑Sonoma sought reconsideration of the discovery order; the district court denied relief and Williams‑Sonoma petitioned this court for a writ of mandamus to vacate the order.
- The Ninth Circuit majority granted mandamus, concluding the district court clearly erred as a matter of law in ordering discovery of absent class members’ identities for the purpose of finding a named plaintiff before class certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre‑certification discovery of absent class members’ names/contacts is within Rule 26(b)(1) | Rushing: information is relevant to class‑certification issues (commonality, typicality, ascertainability, reliance) and to identifying a proper California representative | Williams‑Sonoma: identity/contact information sought solely to solicit a class representative and is not relevant to any party’s claim or defense under Rule 26 | Court: Discovery to locate a client to serve as named plaintiff before class certification is not within Rule 26(b)(1); ordering production was clear legal error; mandamus granted |
| Whether Oppenheimer bars this pre‑certification discovery | Rushing: distinguishes Oppenheimer (that case dealt with post‑certification notice and cost allocation) and argues Rule 26 can be used here | Williams‑Sonoma: Oppenheimer forecloses using discovery rules to obtain class member identities for solicitation/notice purposes | Court: Applies Oppenheimer’s principle—discovery rules are not the proper tool to obtain absent class members’ identities for the purpose of finding plaintiffs; Oppenheimer controls and district court erred |
| Whether Rule 23 grants district courts authority to order such discovery pre‑certification | Rushing: (via the district court/dissent) invoked Rule 23(d) authority to protect putative class members and facilitate communications/notice; identification aids protecting class interests (e.g., tolling concerns) | Williams‑Sonoma: federal discovery rules (not state rules) govern; Rule 23 does not authorize discovery that contravenes Rule 26’s relevance limits | Court: Majority rejected Rule 23 as authorizing this discovery in lieu of Rule 26; district court also erred by applying California discovery rules rather than Federal Rules |
| Whether mandamus relief is appropriate | Rushing: intervention unnecessary; district court acted within discretion; not clear and indisputable error | Williams‑Sonoma: disclosure of customer identities and contact information would cause irreparable/prejudicial harm not correctable on appeal, and no adequate alternative remedy exists | Court: Bauman factors weighed in favor of mandamus (no adequate alternative, irreparable harm, clear error); writ granted |
Key Cases Cited
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (Sup. Ct. 1978) (discovery of class members’ names/addresses cannot be compelled under Rule 26 when sought solely to facilitate notice or solicitation; Rule 23 is the proper channel)
- SG Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909 (9th Cir. 1999) (sets out mandamus/Bauman factors and application guidance)
- Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) (articulates factors for mandamus consideration)
- Van Dusen v. U.S. Dist. Court (In re Van Dusen), 654 F.3d 838 (9th Cir. 2011) (discusses extraordinary nature and burden for mandamus relief)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (Sup. Ct. 2004) (mandamus is an extraordinary remedy; requires clear and indisputable error)
- Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (Sup. Ct. 1980) (discretionary matters not warranting mandamus absent clear right to particular result)
- Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (Sup. Ct. 1974) (putative class filing tolls statute of limitations for absent class members)