This аction is brought by six former employees of New York Telephone Company (“NYT”) claiming discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the New York Human Rights Law, Executive Law § 290 et seq. (the “HRL”), and unlawful interference with pension rights under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”).
In motions already pending before the Court, plaintiffs seek to maintain a collective opt-in action fоr the ADEA claims.
Currently before the Court is plaintiffs’ motion to bifurcate liаbility and damage issues under Fed.R.Civ.P. 42(b). Plaintiffs also seek a protective order against discovery defendants wish to conduct on certain consent signers. Defendants contest both motions and seek an order compelling discovery. For the reasons set forth in this opinion, plaintiffs’ motion for bifurcation is denied without prejudice, plaintiffs’ motion for a protective order is granted in part and denied in part, and- defendants’ motion is granted in part and denied in part.
I.
Plaintiffs move to bifurcate the liability and damages phases of this lawsuit under Fed.R.Civ.P. 42(b).
The motion is also premature because discovery is not yet complete. The continuing development of the factual record in this ease may well affect the issues to be tried and the presentation of those issues in the Joint Pretrial Order. See Rosen v. Reckitt & Colman, Inc., No. 91 Civ. 1675 (LMM),
In any event, plaintiffs’ motion to bifurcate does not begin to address the very complexities it raises. Among the questions plaintiffs fail to mention, much less resolve, are what issues will be tried in the first trial, what issues will be left to subsequent trials, and whether there should be individual trials of the claims of individual groups of plaintiffs. See, e.g., Rosen,
Furthermore, plaintiffs urge that discovery be stayed pending resolution of a trial on liability issues, assuming implicitly that a bifurcation scheme of some kind will be adopted. The possibility that some portion of this cаse may be bifurcated for trial, or the fact that there may be more than one trial, does not adequately support plaintiffs’ request to stay discovery.
To the contrary, staying discovery at this point, given the circumstances of this case, would be both inefficient and unfair. Until now, discovery has not been stayed, severed, or in any way limited to specific issues. The parties should havе been proceeding in good faith to complete all discovery by the November 1 deadline—a date selected after the parties fully explained their anticipated need for time. In accordance with this schedule, defendants are entitled to discovery from the class members with respect to damages and liability issues. Plaintiffs do not explain why the Court should interrupt that discovery now. This is not a class consisting of thousands of absent class members, scattered throughout the country, perhaps unaware of the litigation itself. This case involves a relatively small group of 162 people, each of whom has freely chosen to participate and each of whom has relevant information with respect to the claims and defenses in this action. Having already deposed the named plaintiffs and having obtained the plaintiffs’ agreement to depose about 19 other consent signers without objection, defendants properly seek to depose an additional 14 consent signers. These 14 individuals, like all members of the class, could.be deposed fully on the issues in this case to the extent information is not otherwisе obtained from them, such as through answers to detailed questionnaires. Certainly this approach is more efficient and less onerous than a procedure that defers an entirely new round of unspecified discovery until some indefinite future date. Finally, defendants persuasively argue that they need discovery to be able to participate meaningfully in settlement discussions pending before the Magistrate Judge in this action. See generally Rosen,
Therefore, plaintiffs’ motion for bifurcation of the liability phase of any trial from the damages phase of any trial is denied without prejudice to renewal at the time the Pretrial Order is submitted. At that time, the parties are free to move for bifurcation or suggest alternative trial management procedures, such as those discussed by Judge MсKenna in Rosen.
II.
Plaintiffs seek a protective order with respect to certain discovery requests defendants have made on unnamed class members and defendants seek an order compelling such discovery. Specifically, defendants seek responses to interrogatories predominately relating to damages from all members of the class and seek to depose 33 consent signers. Plaintiffs have agreed to 19 of these depositions, including the depositions of consent signers who participated in the evaluation of other consent signers. Thus, only 14 deposi
With respect to the interrogatories, plaintiffs contend that damages discovery of individual class plaintiffs is premature and burdensome and ought to be deferred until liability has been determined. Plaintiffs also protest that such discovery is directed at individual rather than class-wide issues and improper at this point in the litigation. Plaintiffs offеr instead to provide information on damages from a sample of 40 to 50 class members in order to approximate class-wide damages for purposes of settlement discussions. In response, defendants point out that liability and damages issues have not yet been bifurcated and that the discovery deadline of November 1, 1995 applies to all discovery. Defendants also argue they are unable to evaluate or discuss meaningful settlement options without conducting appropriate discovery on the plaintiff class members. Finally, defendants attempt to ease the burden of answering interrogatories by offering as an alternative a 15-page questionnaire to be completed by each plaintiff class member.
Discovery of unnamed class members is neither prohibited nor sanctioned explicitly by Rules 30, 33 and 34. Nevertheless, there is authority for the usé of both interrogatories and depositions against members of Rule 23 classes. And, while the defendants argue that more extensive discovery should be permitted in a collective ADEA action where class members have affirmatively opted in, the discovery sought here would be рroper in any event under the standards applied in Rule 23 cases. In Robertson v. Nat’l Basketball Assoc.,
The use of discovery devices against non-representative class members raises the troublesome conflict between the competing interests of the absent class members in remaining passive and the defendant in having the ability to ascertain necessary information for its defense.
Id.,
Shortly after Robertson, the District Court for the District of Columbia elaborated the standard further.
The most important relevant circumstances are that the party seeking the discovery must demonstrate [first ] its need for the discovery for purposes of trial of the issues common to the class, [second ] that the discovery not be undertaken with the purpose or effect of harassment of absent class members or of altering the membership of the opposing clаss, and [third ] that the interrogatories be restricted to information directly relevant to the issues to be tried by the Court with respect to the class action aspects of the case.
United States v. Trucking Employers, Inc.,
With respect to the 14 depositions of the unnamed Krueger plaintiffs, defendants satisfy the three Trucking Employers factors. Defendants claim that certain absent class members participated in evaluations and appraisals of other class members and that plaintiffs have alleged those evaluations and appraisals formed the basis of discriminatory actions under the procedures and criteriа of the defendants’ Force Management Plan (the “FMP”). Because plaintiffs assert that defendants manipulated and applied the FMP so as to adversely affect older employees, (see Compl. ¶ 37), the depositions defendants wish to conduct of those individuals subject to the evaluations are addressed to class-wide liability issues, thus satisfying the first factor. The second factor is met bеcause there is no meaningful evidence that defendants are attempting to harass the plaintiff class members. Plaintiffs’ counsel is quite capable of assuring there is no harassment or of seeking appropriate protection from the Court if necessary. Finally, the issues of liability on which defendants seek to depose the consent signers is a class-wide issue going to the heart of the plaintiffs’ claim—that defendants administered the FMP and its allegedly violative criteria in a way that discriminated impermissibly against older NYT employees. The intended deponents are evaluatees whose observations and experiences are relevant to this issue and therefore properly the subject of defendants’ discovery. The third Trucking Employers factor is therefore met. Accordingly, plaintiffs’ motion for a protective order against the depositions of these class members is denied.
With respect to defendants’ desire to serve interrogatories on all 162 class members in the form of a questionnaire, such class-wide discovery on issues of individual damages is entirely appropriate. In Kaas v. Pratt & Whitney, No 89-8343-CIV,
The facts in the present case are similar to Kaas and Rosen. The Krueger plaintiffs bring a collective ADEA action on behalf of 162 consent signers, not significantly more than the 50 in Rosen or the 100 in Kaas. The Krueger plaintiffs assert both disparate impact and disparate treatment theories based on a company-wide plan, analogous to the claims brought in Kaas. The Krueger defendants face difficulty participating in settlement negotiations without a reasonable ba
The present case exhibits additional considerations favoring discovery of the absent class members. First, defendants wish only to serve interrogatories and have not indicated a desire to depose the entire class. Second, defendants have attempted to reduce the burden on plaintiffs by рroviding a 15-page questionnaire designed to elicit appropriate damages information in a convenient and organized manner. Third, there is a discovery cutoff date of November 1, 1995 that applies to all discovery, including individual damages issues. Regardless of whether this trial is ultimately bifurcated in some fashion, both parties must comply with that discovery deadline, and defendants сertainly have the right to conduct discovery with respect to individual damages in order to prepare for trial. These three factors and the similarity of this ease to Rosen and Kaas persuade the Court to exercise its discretion in favor of permitting discovery from the absent class members.
The plaintiffs argue that several particular items in the questionnaire are over-broad and burdеnsome. (See Pl.Motion at 11 n. 6.) These interrogatories concern the consent signers’ educational background, information about their spouses and dependents, and details of the actual costs and fees paid in this lawsuit. Defendants purport to justify some of these interrogatories on a need to assess each consent signers’ motivation to mitigate damages. This rationale does not support such overbroad and invasive discovery. Accordingly, plaintiffs’ motion for a protective order against these particular interrogatories is granted.
III.
Therefore, plaintiffs’ motion to bifurcate the trial of this action is denied without prejudice to renewal. Further, the Court finds it appropriate for defendants to take the depositions of the 14 cоnsent signers whose depositions are sought. The Court also finds it appropriate for defendants to conduct damages discovery on all of the members of the ADEA, HRL and ERISA classes by means of interrogatories and document requests, or alternatively by questionnaire in the form submitted by defendants. The Court therefore grants defendants’ motion to compel such discovery, except for the interrogatories which the Court has found overbroad and burdensome. Plaintiffs’ motion for a protective order with respect to both the depositions and interrogatories is denied, except with respect to the specific interrogatories as to which the protective order is granted as explained above.
SO ORDERED.
Notes
. Collective action is authorized under ADEA by incоrporation of the Fair Labor Standards Act, 29 U.S.C. § 216(b). References to a “class action” with respect to the ADEA claims is for ease of reference only and should not be construed as implying the relevance of Fed.R.Civ.P. 23. See Heagney v. European American Bank,
. Rule 42(b) provides that:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claims, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
Application of Rule 42(b) is within the trial court’s discretion. Getty Petroleum Corp. v. Island Transp. Corp.,
. In fact, when plaintiffs made this motion, then-class certification motions under Rule 23 and § 216(b) were still pending. The Court has now issued an opinion and order certifying collective and class actions for plaintiffs. See Krueger v. New York Telephone Co.,