United States District Court, D. Kansas
SARAH HAPKA, individually and on behalf of all others similarly situated, Plaintiff,
CARECENTRIX, INC., Defendants.
ORDER ON MOTION TO DESIGNATE UNKNOWN NONPARTY FOR
KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant's Motion to Permit Putative
Class Discovery (Doc. 60). For the reasons set forth below,
Defendant's motion is DENIED.
case involves a claim for common law negligence. More
specifically, Plaintiff alleges that Wage and Tax Statements
belonging to her and other employees of Defendant were stolen
from Defendant by an unknown third party. Plaintiff contends
that Defendant “owed a duty to Plaintiff and the Class
to exercise reasonable care in obtaining, securing,
safeguarding, deleting and protecting Plaintiff and Class
members' personal and tax information within its control
from being compromised, lost, stolen, accessed and misused by
unauthorized persons.” (Doc. 1, at ¶ 60; Doc. 54,
at 2.) A fraudulent tax return was subsequently filed in
Plaintiff's name. She contends she continues to be at a
heightened risk for tax fraud and identity theft. (Doc. 1, at
10-11.) The District Court previously denied Defendant's
Motion to Dismiss, finding that Plaintiff had sufficiently
plead duty, breach, and causation. (See Doc. 31;
brings the present motion requesting permission to send
“a simple, voluntary questionnaire” to putative
class members. Defendant contends the information sought is
relevant, “necessary, cannot be discovered without
putative class member discovery, and can be discovered
without imposing any significant burden on the putative class
members . . . .” (Doc. 61, at 1.) Plaintiff objects
that the questionnaire is misleading and will result in
unfair prejudice. (Doc. 62, at 3-6.) Plaintiff continues that
the information sought is unnecessary to class-wide issues.
(Id., at 7.)
Federal Rules of Civil Procedure “neither prohibited
nor sanctioned explicitly” putative class discovery.
Schwartz v. Celestial Seasonings, Inc., 185. F.R.D.
313, 316 (D. Colo. March 2, 1999) (citing Krueger v. New
York Tel. Co., 163 F.R.D. 446, 450 (S.D.N.Y.1995)).
Utilizing this procedure is within the discretion of the
court, but it should not be used “when it only will
confuse the absentees, some class members can demonstrate
that it will prejudice their rights, it will be employed
prematurely or administered in an inappropriate fashion, or
it will serve only to reduce the efficiencies of the class
action.” Id. (citing 7B Charles Alan Wright
et al., Federal Practice and Procedure
§ 1787 at 218-19 (2d ed.1986)).
general rule is that discovery requests to absent class
members are “generally disfavored.” Sibley v.
Sprint Nextel Corp., No. 08-2063-KHV, 2009 WL 3244696,
at *2 (D. Kan. Oct. 6, 2009) (citing McPhail v. First
Command Fin. Planning, Inc., 251 F.R.D. 514, 517 (S.D.
Cal.2008) and Barham v. Ramsey, 246 F.R.D. 60, 62
(D.D.C.2007)). That stated,
that rule is not absolute, and discovery of absent class
members may be allowed in certain circumstances. In
considering the propriety of such requests, courts look to
whether the information sought is necessary for trial
preparation and whether the discovery requests made to class
members are designed to be a tactic to take undue advantage
of or otherwise limit the number of class members.
Sibley v. Sprint Nextel Corp., No. 08-2063-KHV, 2009
WL 3244696, at *2 (D. Kan. Oct. 6, 2009) (citations omitted).
Because the procedure is generally disfavored, “[t]he
party moving to include the questionnaire has the burden of
proving necessity.” Schwartz, 185 F.R.D. at
316. When allowed at the pre-class certification stage,
“discovery in a putative class action is generally
limited to certification issues: e.g., the number of class
members, the existence of common questions, the typicality of
claims, and the representative's ability to represent the
class.” Colorado Cross-Disability Coalition v.
Abercrombie & Fitch Co., NO. 09-2757, 2011 WL
5865059, at *1 (D. Colo. Nov. 22, 2011) (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359
contends that “[i]n order to test [Plaintiff's]
claim that her experiences are substantially similar to those
of a large class of people, we must first know what that
class of people experienced.” (Doc. 61, at 6.)
Defendant also argues that while Plaintiff “fears an
increased risk of encountering some unknown problem sometime
in the future” as a result of the identity theft,
“what we do not know right know - and what we cannot
know without class member discovery - is whether anyone else
in the class shares Hapka's fear.” (Id.,
at 7.) Plaintiff responds that such an “individualized
damages inquiry is unnecessary and irrelevant to a trial of
class-wide issues, ” particularly where Plaintiff
intends “to show class-wide injury through the use of
expert testimony.” (Doc. 62, at 7.)
Court agrees with Plaintiff. Defendant argues that it must be
allowed to conduct discovery into whether the injuries and
damages suffered by putative class members are similar to
that suffered by the proposed class. Defendant essentially
contends this is necessary to evaluate the typicality element
of the certification issue - “to determine if Hapka is
typical of the class she claims to represent.” (Doc.
61, at 6.)
typicality requirement is satisfied if there are common
questions of law or fact. Fed.R.Civ.P. 23(a). “Provided
the claims of Named Plaintiffs and putative class members are
based on the same legal or remedial theory, differing fact
situations of the putative class members do not defeat
typicality.” DG v. Devaughn, 594 F.3d 1188,
1198-99 (10th Cir. 2010) (citing Adamson v. Bowen,
855 F.2d 668, 676 (10th Cir.1988)). “‘[L]ike
commonality, typicality exists where . . . all putative class
members are at risk of being subjected to the same harmful
practices, regardless of any class member's individual
circumstances.”' Anderson Living Trust v. WPX
Energy Production, LLC, 306 F.R.D. 312, 382 (D. N.M.
2015) (citing DG v. Devaughn, 594 F.3d at 1199).
Differences in the amount of damages will not defeat
typicality. Id., at 382-83.
contention that it is “necessary” to be allowed
discovery at this stage in the proceedings regarding the
damages - and potential “fears” - of all putative
class members is unfounded. The Court finds that Defendant
has failed to establish the necessity of receiving the
requested information, ...