*758 OPINION
In 1969, Ronald Berry founded a summer program for disadvantaged youth called Micro-City Government. This program was funded in part by the Lexington-Fayette Urban County Government (LFUCG). Numerous former teenagers who participated in Micro-City Government now claim that LFUCG continued to support the program even after learning that Berry was sexually molesting them, and that LFUCG knowingly concealed Berry’s conduct for political reasons.
These appeals arise from the plaintiffs’ attempt to maintain a class-action lawsuit against LFUCG. Although several procedural issues аre raised, the key issue is whether to vacate two orders dismissing earlier class-action lawsuits against LFUCG brought by Berry’s victims. For the reasons set forth below, we REVERSE the judgment of the district court in Guy et al. v. LFUCG, No. 98-431-KSF, and REMAND the case for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual background
From 1969 until 2000, LFUCG provided funding for Micro-City Government, a summer program founded by Ronald Berry. The purpose of the program was to provide part-time summer employment for disadvantaged area youth. According to many of the program’s participants, however, Berry physically, mentally, and sexually abused them, with the latest acts of abuse occurring in May of 1995. Berry was subsequently convicted on 12 counts of sodomy and abuse of minors in criminal proceedings brought by the Commonwealth of Kentucky.
The plaintiffs in the present case, 96 former Micro-City Government participants, claim that LFUCG knowingly concealed and facilitated the abuse. Specifically, they allege that LFUCG officials were informed of the abuse on a number of occasions, and that at least one LFUCG official actually witnessed “one of Berry’s sexual outings.” Nevertheless, LFUCG continued to fund Micro-City Government and is alleged to have actively concealed Berry’s behavior. The plaintiffs further allege that LFUCG retained Berry as the director of the program even after LFUCG officials were aware of the abuse, and that at least one Mayor of Lexington refused to cut off funding or expose Berry because doing so would not have been “politically sustainable.”
B. Procedural background
1. Guy
On October 15, 1998, the four victims who initiated the criminal charges against Berry (Keith Rene Guy Sr., Barry Lynn Demus Jr., Octavius Gillis, and Christopher Andrew Williams) filed a class action lawsuit against LFUCG, alleging that it had been both aware of and deliberately indifferent to the abuse. (This suit, Guy et al. v. LFUCG, No. 98-431-KSF, is hereinafter referred to as Guy.) But in January of 2000, before any determination was made as to the certification of the class, the Guy plaintiffs (with the exception of Guy himself) settled with LFUCG and joined in the defense motion to dismiss the case. On January 12, 2000, Craig Johnson and David Jones, two victims who were not among the Guy plaintiffs, moved to have notice of the dismissal provided to the putative class members pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. This request for notice was rejected by the district court in an April 4, 2000 order that provides the following rationale:
*759 Four named plaintiffs brought the instant case and Jones and Johnson moved to intervene. Considering that this lawsuit was filed in October 1998 and that there has been an enormous amount of publicity about the case, the Court believes that it is unlikely that many more alleged victims will come forward. Accordingly, the Court finds that the class is not so numerous that joinder is impracticable. Since the class fails to meet the prerequisites of Rule 28(a), notice to putative class members is not warranted.
As demonstrated by the later filings related to this case, howеver, the district court’s reasoning was based on faulty assumptions. Nearly 100 putative class members came forward within two years after the district court’s April 4, 2000 Guy order that dismissed the case. Guy, Johnson, and Jones all appealed.
As discussed in greater detail below, Johnson and Jones eventually settled. Guy’s appeal, however, was considered by a prior panel of this court in
Guy v. Lexington-Fayette Urban County Gov’t,
Nos. 00-5434 & 00-5569,
2.Doe I
On May 3, 2000, Johnson, Jones, and seven other “John Does” filed a second class-action complaint that contained the same allegations as in Guy. (This action, Doe v. LFUCG, No. 00-166-KSF, is hereinafter referred to as Doe I.) Doe I was settled some two years later, on June 28, 2002. The district court again failed to provide any notice to putative class members when the parties settled, and the case was dismissed. No one, however, requested that notice be provided, and there is nothing in the record to dеmonstrate that the district court even considered the applicability of Rule 23(e). Johnson, Jones, and LFUCG subsequently filed a joint motion to dismiss Johnson’s and Jones’s outstanding appeal in Guy. The motion was granted by this court in January of 2003.
3. Doe II
On September 25, 2002, 38 John Does (who are included in the present appeal) filed a third class action case, making the same allegations as in Guy and Doe I, as well as various claims under federal racketeering laws. (This action, Doe # 1-33 v. LFUCG, No. 02-436-JMH, is hereinafter referred to as Doe II.) The district court, on April 23, 2003, dismissed Doe II as being barred by the applicable statute of limitations.
4. Discovery and attorney fees
At a scheduling conference in Doe II, the district court gave both parties 30 days to conduct discovery on the issue of whether the case was barred by the applicable statute of limitations. Although the Does did not initially object to the 30-day deadline, and even failed to depose certain parties “out of professional courtesy,” they subsequently moved for an extension of time to conduct more discovery on LFUCG’s alleged concealment of Berry’s abuse. The district court denied the motion, noting that extensive discovery had already been conducted on the concealment issue and chastising the Does for “permittfing] the opportunity to depose the desired parties to slip through their fingers even as they held that opportunity in their hands.”
*760 After successfully opposing the Does’ motion to compel during this discovery period, LFUCG moved to recover its attorney fees on that motion. The district court held that the Does’ motion to compel had not been “substantially justified,” and thus awarded LFUCG $5,841.80 in attorney fees.
5. Doe III
On the same date that Doe II was dismissed, 58 new John Does (who are also included in the present appeal) filed still another class-action case, again repeating the same allegations as in Guy, Doe I, and Doe II. (This action, Doe # 1-44 v. LFUCG, No. 03-12-JMH, is hereinafter referred to as Doe III.) Doe III was dismissed over a year later by the district court on November 21, 2003 as being time-barred by the aрplicable statute of limitations.
6. Doe v. Miller
The 58 new Does also filed a separate action, Doe v. Miller, No. 00-166-KSF, in which they moved to intervene in the earlier Guy and Doe I cases pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. They contend that the lack of notice to the putative class members violated their right to the due process of law, making the judgments in those cases void. The Does’ claims in Doe v. Miller were rejected by the district court in an order entered on October 7, 2002.
Three related appeals have arisen from this procedural morass. Doe v. Miller has been consolidated with Guy v. LFUCG. The third appeal is Doe v. LFUCG.
II. ANALYSIS
A. Standard of review
1.Summary judgment
The district court’s grant of summary judgment is reviewed de novo.
Thermo-Scan, Inc. v. Thermoscan, Inc.,
2. Rule 60(b) claims
This court will review the denial of a Rule 60(b) motion under the “abuse of discretion” standard.
Kalamazoo River Study Group v. Rockwell Int’l Corp.,
3. Discovery, attorney fees, and class certification
Because “the scope of discovery is within the sound discretion of the trial court,”
Chrysler Corp. v. Fedders Corp.,
B. The Does’ motion under Rule 60(b)(4) with respect to their Rule 23(e) notice claims
By failing to provide notice to the putative class members in
Guy
and
Doe I,
the district court is alleged to have acted inconsistently with both the Rules of Civil Procedure and with basic notions of due process. The Does therefore request that this court vacate the
Guy
and
Doe I
judgments pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure, which allows us to grant relief when an earlier “judgment is void.” “A judgment is void under 60(b)(4) ‘if the court that rendered it lacked jurisdictiоn of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’ ”
Antoine v. Atlas Turner, Inc.,
Rule 23(e)(1)(B) of the Federal Rules of Civil Procedure regulates the dismissal or settlement of class actions, providing that a “court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise.” As many commentators have noted, “[t]he purpose of the rule is to discourage the use of the class action device by the individual representative plaintiff to secure an unjust private settlement and to protect the absent class members against the prejudice of discontinuance.” Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 8:18 (4th ed.2002).
Most courts have found that Rule 23(e)’s notice requirement applies to
putative
class members as well as to
certified
class members.
See Culver v. City of Milwaukee,
Even the circuits that have not required notice to putative class members as a general rule have warned that failure to provide notice is justified only in instances free of prejudice and collusion.
See Shel
*762
ton v. Fargo, Inc.,
Ultimately, the general rule adopted by most federal courts that have addressed the topic is the one articulated in Newberg:
[MJost requests for voluntary dismissals of representative suits are made before there has been any class ruling. Whether a voluntary dismissal in these circumstances is sought in connection with a proposed settlement of claims of the individual plaintiff only or in a nonsettlement context, most courts have stressed the need under Rule 23(e) to examine whether any prejudice to the class will result if the dismissal of the action is allowed without class notice.
Alba Conte
&
Herbert B. Newberg, New-berg on Class Actions § 11:72 (4th ed.2002) (footnotes omitted) (emphasis added);
see also Simer v. Rios,
LFUCG, however, argues that the “precedents from the pre-certification context do not apply because class certification was expressly denied in
Guy
and
Doe I.”
This position, however, is not supported by thе relevant caselaw. The Seventh Circuit, for example, explicitly considered and rejected the argument that notice is not required when class certification has been denied in the case of
Culver v. City of Milwaukee,
On appeal, the Seventh Circuit determined that the class action had been correctly dismissed. Nonetheless, the court found that the district court had erred in failing to give notice to the putative class members pursuant to Rule 23(e). It noted that an important justification for the application of Rule 23(e) was that “[t]he filing of a class action suit tolls the statute of limitations for all the members of the class, but when the suit is dismissed without prejudice or when class certification is
*763
denied[,] the statute resumes running for the class members.”
Id.
at 914 (citations omitted). The court further conсluded that, in the present case, “the statute of limitations on [the class members’] claims will run without their knowing it until it is too late.”
Id.
Applying the rule that “[t]he judge’s duty is to order notice unless the risk of prejudice to absent class members is nil,”
id.
at 915, the court remanded the case to the district court for compliance with Rule 23(e), even though, as here, the district court had already rejected class certification.
Id.; see also Birmingham Steel Corp. v. TVA,
Consistent with the above caselaw, the Does argue that prejudice can be inferred from the great publicity surrounding the underlying facts of this case. They pоint to a line of cases standing for the proposition that prejudice can be inferred where the litigation has received widespread publicity, which increases the likelihood that putative class members have relied on the lawsuit in question.
See, e.g., In re Cardizem CD Antitrust Litig.,
No. 99-MD-1278,
Rather than adopt a per se rule, most courts considering the issue have found the level of publicity to be one of several fаctors appropriately considered when examining whether putative class members are likely to be prejudiced if the class-action ease is dismissed without notice.
See In re Cardizem CD Antitrust Litig.,
Consistent with the majority rule that a district court should order Rule 23(e) notice where the putative class is likely to be prejudiced by the dismissal or settlement of a class-action suit, we conclude that the district court below abused its discretion in not providing notice in both Guy and Doe I. One key factor supporting our conclusion is that once the abusive activity at the Micro-City Government program was thrust into the open, the local media devoted substantial coverage to the abuse. This *764 included coverage of the Guy and Doe I lawsuits. Such public attention presumably led putative class-action members to believe that their rights were being adequately reprеsented by the Guy and Doe I plaintiffs. Without notice that these actions had been dismissed, the putative class members were likely lulled into believing that their claims continued to be preserved.
The other significant consideration in our evaluation was that the district court in Guy relied on' a faulty assumption in denying the notice request. The Micro-City Government program was popular and long-lasting, with thousands of participants during its 30-year lifetime. There is, moreover, evidence demonstrating that Berry had been abusing many of the participating youths throughout the length of the program. (The Does even allege that one of Berry’s primary motivations in establishing the program was to give him sexual access to children.) In light of these facts, which were known at the time of Guy, the district court’s conclusion that “it is unlikely that many more alleged victims will come forward” was objectively unreasonable. There was in fact substantial reason to believe that many more victims would come forward, as in fact actually occurred with the filing of the Doe II and Doe III lawsuits.
We therefore adopt the view of the majority of the circuits that Rule 23(e) applies in a precertifiсation context where putative class members are likely to be prejudiced. Moreover, because of the public policy considerations involved, we further adopt the reasoning articulated by the Seventh Circuit in Culver that Rule 23(e) may be applied where the district court has already rejected class certification. Under this standard, the district court in Guy erred in failing to provide notice to the putative class members because they were clearly prejudiced by the dismissal of that case. We decline, however, to vacаte the district court’s order in Doe I. Although the majority rule discussed above also renders questionable the district court’s failure in Doe I to order notice to putative class members, the Doe I settlement between the named plaintiffs and LFUCG was contingent upon the dismissal of the class action. An action by this court vacating the district court’s order in Doe I would therefore disturb the settlement. On the other hand, vacating the Guy order reaches the equitable result of allowing the Does to go forward with their case while preserving the settlement reached by the Doe I parties.
C. Statutes of limitation (discovery rule and equitable-tolling analysis)
Statutes of limitation that сover the acts alleged by the Does range from one year to six years. Because
Guy
will be reopened, however, the various statutes of limitation will be considered as tolled from and after the filing of
Guy. See Crown, Cork & Seal Co. v. Parker,
D. The Rule 60(b)(2) and (3) motions with respect to Guy and Doe I
The Does further claim that LFUCG and the plaintiffs’ counsel in Guy and Doe I took actions that constituted fraud, collusion, misrepresentation, and misconduct, meriting relief under Rules 60(b)(2) and 60(b)(3) of the Federal Rules of Civil Pro *765 cedure. Because Guy will be reopened on the basis of Rule 60(b)(4), however, we have no need to address these alternative claims for relief.
E. Whether the statutes of limitation were tolled by Doe I
LFUCG contends that “Croim Cork tolling applies only to the first class action,” and therefore argues that the various statutes of limitation were not tolled when Doe I was filed. Because the Guy class action will be reopened for the reasons set forth in Part II.B. above, we need not address the question of whether the statutes of limitation for Doe II and Doe III were tolled by the filing of Doe I.
F. 30-day discovery period
A district court’s decision to limit discovery will generally be upheld unless the decision is deemed to be “an abuse of discretion resulting in substantial prejudice.”
Hahn v. Star Bank,
G.Attorney fees relating to the Does’ motion to compel
1. Whether the motion was substantially justified
Rule 37(a)(4)(B) of the Federal Rules of Civil Procedure provides that if a motion to compel discovery is denied,
the court ... shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the; reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
A motion is “substantially justified” if it raises an issue about which “there is a genuine, dispute, or if reasonable people could differ as to the appropriateness of the contested action.”
Pierce v. Underwood,
487 U.S.. 552, 565,
This circuit has adopted a four-factor test to determine whether a district court’s decision to impose sanctions *766 under Rule 37 amounts to an abuse of discretion:
The first factor is whether the party’s failure to cooperate in discovery is due to willfulness, bad faith, or fault; the second factor is whether the adversary was prejudiced by the party’s failure to cooperate in discovery; the third factor is whether the party was warned that failure to cooperate could lead to the sanction; and the fourth factor in regard to a dismissal is whether less drastic sanctions were first imposed or considered.
Freeland v. Amigo,
Likewise, LFUCG could not have been “prejudiced by the [Does’] failure to cooperate in discovery,”
Freeland,
2. The Does’ citation of Harding v. Dana Transport
Central to the district court’s imposition of sanctions was its discussion of the deficiencies in the Does’ argument for the discovery of materials that LFUCG claimed were protected by the attorney-client privilege. Although the Does may have been wrong on this issue, the district court’s sweeping statement that the authority cited by the Does “was not germane in any way to the issue before the Court” was overbroad. The case cited by the Does,
Harding v. Dana Transport, Inc.,
Regardless of whether the ultimate issue addressed in Harding was identical to the issue raised by the Does, Harding clearly provides support for a party seeking to compel discovery of informаtion that the opposing party claims is protected by the attorney-client privilege. See id. at 1089-90, 1102 (holding that “[a] party or person seeking to obtain a protective order on the basis of an asserted privilege bears the burden of establishing the applicability of a privilege to the information sought,” and noting that “there is no general prohibition against obtaining the deposition of adverse counsel regarding relevant, non-privileged information”) (citation omitted).
In sum, we conclude that the district court abused its discretion by granting attorney fees in rеgard to a motion that, even if properly denied, was substantially justified. We therefore vacate the district court’s order awarding attorney fees to LFUCG.
H. Class certification
The district court’s denial of class certification was based on its holding that the denial of certification in
Doe I
collaterally estopped consideration of this issue in
Doe II
and
Doe III. See Montana v. United States,
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court with respect to Guy and the award of attorney fees to LFUCG in Doe II, and REMAND the case for further proceedings consistent with this opinion. The remaining issues in these consolidated appeals are DISMISSED as moot.