Mandamus appeals are difficult to win. That's one reason that we were intrigued to read In re Williams-Sonoma, Inc., ___ F.3d ___, 2020 WL 131360 (9th Cir. Jan. 13, 2020). The second was the result, which prevented an improper would-be class representative from using discovery as a bootstrap method to his own replacement. The plaintiff here was a would-be litigation tourist from Kentucky who sought to utilize California's more liberal class action practices to bring a claim that was impermissible under Kentucky law:
[Plaintiff] brought an action . . . to recover damages under the law of the State of California that he allegedly suffered due to [defendant's] alleged misrepresentations. He also sought damages under California law for a class of consumers. . . . Before a class action was certified, the district court determined, inter alia, that Kentucky law governed [plaintiff's] claims and that Kentucky consumer law prohibited class actions.
Id. at *1-2 (footnote omitted).
Rather than go quietly into the night following these rulings, plaintiff "sought to obtain discovery from [defendant] for the sole purpose of aiding his counsel's attempt to find a California purchaser . . . who might be willing to sue." Id. at *2. The District Court thought plaintiff's bootstrap attempt to use discovery in an invalid action to recruit a replacement was peachy-keen and ordered the defendant "to produce a list of all California customers," for this particular product for a period of over seven years. Id.
That discovery, of course, had nothing to do with any claim that the plaintiff seeking it could validly bring, so the defendant sought mandamus relief in the Ninth Circuit – and won.
Three elements of mandamus were important, not just to the result, but to simply being heard: "(1) The party seeking the writ has no other adequate means" of relief; "(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal"; and "(3) The district court's order is clearly erroneous as a matter of law." Id.
From our perspective as interested outsiders, item three was the key. The Ninth Circuit (by a 2-1 decision) held as a matter of law it was clearly erroneous for a class action plaintiff to use discovery solely to seek his/her own replacement.
Rule 26(b)(1) limits the scope of discovery to "nonprivileged matter that is relevant to any party's claim or defense." . . . [S]eeking discovery of the name of a class member (here an unknown person, who could sue [defendant]) is not relevant within the meaning of that rule.
Williams-Sonoma, 2020 WL 131360, at *2.
Even under the pre-2015 scope of discovery, it was improper to use discovery to identify putative class members:
Respondents' attempt to obtain the class members' names and addresses cannot be forced into the concept of "relevancy" described above. The difficulty is that respondents do not seek this information for any bearing that it might have on issues in the case.
Id. at *3 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-53 (1978) (footnote omitted)). Oppenheimer involved a plaintiff's attempt to use discovery to identify class members for purposes of providing class notice, 437 U.S. at 353, but the Ninth Circuit majority held that, as long as the reason for seeking class members' identities was extraneous to the substance of the litigation, Oppenheimer's prohibition applied. "[W]e do not think that the discovery rules are the right tool for this job." Williams-Sonoma, 2020 WL 131360, at *3 (quoting Oppenheimer).
Longtime readers may be forgiven for thinking, "Oppenheimer, Oppenheimer . . . where have I seen that name before?" Several years ago, we complained about a number of courts' misuse of language from the same Oppenheimer decision to avoid the 2015 tightening of the definition of the scope of discovery in Rule 26. Well, the Ninth Circuit in Williams-Sonoma threw cold water on that, because plaintiff raised those 2015 rules change in an attempt to avoid the actual Oppenheimer decision. However, the 2015 amendment to Rule 26 "cut against" allowing greater discovery than permissible under Oppenheimer:
Rule 26(b)(1) was amended to its current form after 1978 when Oppenheimer was decided. As quoted above, the rule then indicated that discovery must be "relevant to the subject matter involved in the pending action" that related to a party's claim or defense. Now, the "subject matter" reference has been eliminated from the rule, and the matter sought must be "relevant to any party's claim or defense." Rule 26(b)(1). That change, however, was intended to restrict, not broaden, the scope of discovery. See Rule 26(b)(1) advisory committee's note to 2000 amendment; see also id. advisory committee's note to 2015 amendment.
Williams-Sonoma, 2020 WL 131360, at *3 (emphasis added). After a couple of quick searches, we're pretty sure that Williams-Sonoma is the first appellate court explicitly holding that Oppenheimer has been superseded by the 2015 federal rules amendment.
Plaintiff also failed with a second, less important, attempt to distinguish Oppenheimer. That no class had been certified in Williams-Sonoma (as opposed to Oppenheimer, where certification had occurred), was all the more reason to reject the plaintiff's attempt at self-help. "[H]ere counsel is without a lead plaintiff for the class issues that counsel wishes to pursue," so without any certified class, "the request here is less relevant than the request in Oppenheimer." Id. Thus, it was "clear error" "as a matter of law" to force a defendant to provide discovery designed to facilitate its opponent's attempt to solicit a new class representative. "[U]sing discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1)." Id.
That, too, is a useful ruling.
The other essential prerequisites to mandamus relief were also satisfied:
[Defendant] has no other adequate means for relief available to it at this time, and before a direct appeal could be taken and heard, the disclosure and damage to its (and its customers') interests would be complete − its claim would be mooted. Thus, the first and second factors weigh in favor of granting the petition.
Id. at *4 (footnotes omitted).
Finally, we see a broader implication in Williams-Sonoma with possible spill-over effects to other types of complex litigation. The 2015 "claim or defense" amendment to Rule 26(b)(1), comes into play any time that a party (usually, but not necessarily, a plaintiff) seeks some kind of collateral advantage through "discovery" that is unrelated to the merits of the litigation. Here, it was an attempt to solicit a new class representative. But plaintiffs have been known to use what they call "discovery" to disrupt a defendant's relationships with its customers, to pressure a governmental unit, or even a nihilistic desire just to generate bad publicity for the other side. Unless any given request is "relevant to any party's claim or defense," Williams-Sonoma is persuasive precedent for it being impermissible discovery, with mandamus as a proper remedy.
This article is presented for informational purposes only and is not intended to constitute legal advice.