Case Summary
In re Rail Freight Fuel Surcharge Antitrust Litigation, 2009 U.S. Dist. LEXIS 56748 (D.D.C. July 2, 2009).
Defendants' request for bifurcated or phased discovery in consolidated antitrust class actions was denied because electronically stored information needed by plaintiffs to support class certification was intertwined with information needed to support their claims on the merits. Also, bifurcated discovery would require additional supervision by the court to distinguish certification discovery from merits discovery.
Defendant railroads in litigation concerning an alleged fuel charge conspiracy proposed a case management order that provided for class discovery before class certification and merits discovery. Defendants argued that they could isolate electronically stored information relevant to class certification from such information relevant to the merits of the litigation. Plaintiffs countered that it would be impossible for defendants to provide meaningful search terms to distinguish between certification and merits discovery and that something similar to a privilege log would have to be provided to allow checks to see that responsive certification discovery was not being excluded from production.
The court stated that the bifurcated discovery sought by defendants in effect would amend federal discovery rules "to create a unique form of discovery for class actions." The court questioned how defense counsel could "create a search engine so refined and exquisite that it will yield information bearing on the certification question but not the merits." Also, evidence needed for certification was "closely intertwined" with merits evidence, given the certification requirement that plaintiffs establish predominance of questions of law or fact common to class members over such questions relating only to individual members of the proposed class. Bifurcated discovery would not promote judicial economy because the court would have to resolve disputes among the parties over classification of information as certification or merits information. However, the court concluded that in order to avoid unlimited discovery before class certification was decided, the parties would have to brief the certification issue after an initial period of discovery that was not bifurcated. According to the court, "nothing concentrates a lawyer's mind like a deadline."
<< Click here to go backDefendant railroads in litigation concerning an alleged fuel charge conspiracy proposed a case management order that provided for class discovery before class certification and merits discovery. Defendants argued that they could isolate electronically stored information relevant to class certification from such information relevant to the merits of the litigation. Plaintiffs countered that it would be impossible for defendants to provide meaningful search terms to distinguish between certification and merits discovery and that something similar to a privilege log would have to be provided to allow checks to see that responsive certification discovery was not being excluded from production.
The court stated that the bifurcated discovery sought by defendants in effect would amend federal discovery rules "to create a unique form of discovery for class actions." The court questioned how defense counsel could "create a search engine so refined and exquisite that it will yield information bearing on the certification question but not the merits." Also, evidence needed for certification was "closely intertwined" with merits evidence, given the certification requirement that plaintiffs establish predominance of questions of law or fact common to class members over such questions relating only to individual members of the proposed class. Bifurcated discovery would not promote judicial economy because the court would have to resolve disputes among the parties over classification of information as certification or merits information. However, the court concluded that in order to avoid unlimited discovery before class certification was decided, the parties would have to brief the certification issue after an initial period of discovery that was not bifurcated. According to the court, "nothing concentrates a lawyer's mind like a deadline."
