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March 27, 2020 - Class Action

Ninth Circuit Provides Guidance on Pre-certification Discovery

Ninth Circuit Provides Guidance on Pre-certification Discovery

Earlier this year, the Ninth Circuit held that plaintiffs cannot avail themselves of liberal discovery rules in order to locate class representatives. The court found that Rule 26(b)(1) of the Federal Rules of Civil Procedure, which governs the discovery process, does not authorize discovery before class certification when such discovery is to help plaintiffs locate a putative class representative.[1]

Plaintiff Sought Discovery to Follow the Thread to a Putative Class Representative

Plaintiff William Rushing, a resident of Kentucky, purchased bedding from Defendant Williams-Sonoma online. He brought suit in California Superior Court bringing individual and class claims under California law, alleging that the thread count was much lower than the advertised 600 threads per square inch. Williams-Sonoma removed the case to federal court, where the district court used a choice-of-law analysis to conclude Kentucky law applied to Plaintiff’s claims.

Because Plaintiff’s class action claim was impermissible under Kentucky consumer law, Plaintiff needed a California class representative to keep the action alive. Thus, Plaintiff “sought to obtain discovery from Williams-Sonoma for the sole purpose of aiding his counsel’s attempt to find a California purchaser of bedding from Williams-Sonoma who might be willing to sue.”[2] The district court ordered Williams-Sonoma to produce a list of customers and subsequently denied its request for leave to file a motion for reconsideration. Williams-Sonoma sought a writ of mandamus to vacate the district court’s discovery order.

Ninth Circuit Vacates Discovery Order that Required Production of a Customer List  

The Ninth Circuit granted the writ and vacated the discovery order. Judge Ferdinand Fernandez, writing for the majority panel, explained that seeking discovery of the names of potential class members—for the purpose of finding a named class plaintiff—is not within the purview of relevant evidence under Rule 26(b)(1). In so ruling, the Ninth Circuit panel relied on Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), in which the Supreme Court held that federal discovery rules cannot subject a defendant to an order directing it to compile a list of class members for identifying those to whom individual notice must be sent.[3]

Judge Fernandez also explained that the 2015 amendment to Rule 26(b)(1) narrowed the scope of discovery, which now requires that it be “relevant to any party’s claim or defense.”[4] That amendment “was intended to restrict and not broaden the scope of discovery.”[5] In In re Williams-Sonoma, the Ninth Circuit did not buy plaintiff’s argument that the information sought was broadly relevant to class certification issues. That contention “[did] not undercut, or water down, the primary point that using 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).”[6] Accordingly, the Ninth Circuit concluded that the district court’s decision was clear error as a matter of law and vacated the discovery order.

In a lengthy dissent, Judge Richard Paez explained that the district court had not erred because it remains “an open question” whether Rule 26(b)(1) may be used as a pre-certification tool to find a named class representative.[7] As he read it, Oppenheimer Fund only stands for the proposition that class counsel cannot rely on Rule 26 or any other federal discovery rule to attempt to notify potential class members that a class action has been certified. Instead, class counsel must rely on Rule 23(d), which outlines the procedures for conducting the class action. Judge Paez also explained that Rule 23(d) “provides district courts with residual powers to regulate communication with absent class members outside of formal notice requirements” even before class certification, primarily in light of the fiduciary duties that class counsel owe putative class members.[8]


When served with pre-certification discovery that appears designed to locate a putative class representative for the plaintiffs, defendants should object on the ground that the information sought is not within the scope of Rule 26(b)(1) because it is not “relevant to any party’s claim or defense.”[9] On the other hand, defendants should keep in mind that Rule 23(d) may be an appropriate source of authority for court orders directing a defendant to compile a list of potential putative class members in order to facilitate the sending of notice, but it is unlikely that such disclosures are proper before class certification.

[1] See In re Williams-Sonoma, Inc., 947 F.3d 535, 540 (9th Cir. 2020).

[2] Id. at 538.

[3] See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-55 (1978). The Supreme Court explained that relevancy in discovery means the information sought is “aimed at illuminating issues in the case,” not facilitating class notice. Id. at 354.

[4] In re Williams-Sonoma, Inc., 947 F.3d at 539 (quoting Rule 26(b)(1)).

[5] Id.

[6] Id. at 540.

[7] Id. at 542 (Paez, J., dissenting).

[8] Id. (citation omitted).

[9] Fed. R. Civ. P. 26(b)(1).