Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD Document 91-6 Filed 05/20/2004 Page 1 otpzgc 2 Of5
Ex A l?
1998 WL 241279 Page 1
(Cite as: 1998 WL 241279 (S.D.N.Y.))
H pay gargantuan medical benefits to treat
Only the Westlaw citation is currently available. tobacco-related illnesses suffered by firnd
beneficiaries. (See Compl. 1H] 1-8). The
implication is that, had the pertinent information
been disclosed, the funds would have undertaken
United States District Court, S.D. New York. different, and perhaps more aggressive, anti-
smoking programs and perhaps other steps to limit
Laborers Local 17 Health and Benefit Fund et al., such costs. The relevant injury, then, is to the
On Behalf of Themselves and "plaintiffs' infrastructure and fmancial stability." (
All others Similarly Situated, Plaintiffs, Laborers Local 17 v. Philzp Morris, Inc., March 25,
v. 1998 Op. at 26).
PHILIP MORRIS, INC. et al., Defendants.
United Federation of Teachers Welfare Fund et al.,
On behalf of Themselves and FN1. The claims encompass both common
All Others Similarly Situated, Plaintiffs, law torts, including fraud, and asserted
v. violations of the Racketeer Influenced and
PHILIP MORRIS, INC. et al., Defendants. Corrupt Organizations Act ("RICO"), 18
U.S.C. § 1961 et seq. The RICO claims are
N0. 97CIV.4550(SAS)(MI-H)), premised on an asserted pattem of wire or
97CIV.4676(SAS)(MHD). mail fraud. (See Plaintiffs‘ RICO
Statement, dated Sept. 12, 1997, at 1-2).
May 12, 1998.
Perry Weitz, Esq., Arthur M. Luxenberg, Esq., The parties have commenced discovery that is
Steven E. Fineman, Esq., Karen J. Mandel, Esq., directed to plaintiffs' recently filed motions for class
Weitz & Luxenberg, P.C., New York. certification. [FN2] Although merits discovery has
not been stayed, it is the understanding of the
Melvyn I. Weiss, Esq., David J. Bershad, Esq., parties, with the acquiescencc of the court, that such
Michael C. Spencer, Esq., Kenneth J. Vianale, Esq., discovery should be held in abeyance at present, at
Milberg Weiss Bershad Hynes & Lerach LLP, New least until pending motions to remand a number of
York. parallel suits have been disposed of by Judge
Sotomayor.
MEMORANDUM & ORDER
FN2. Plaintiffs seek certification under
DOLINGER, Magistrate J. Fed.R.Civ.P. 23(b)(2) and (3).
*1 Plaintiffs, consisting of nine employee benefit
trust funds, have filed these parallel class—action At a discovery conference conducted on May 6,
lawsuits to seek relief for purported &aud and other 1998, counsel for the parties presented a number of
tortious conduct by the six principal domestic discovery issues, all but one of which the court
cigarette manufacturers and related defendants. disposed of on the record. The one exception
[FN1] The gist of the case is found in the plaintiffs' pertains to defendants' request that we authorize
assertion that, for many decades, defendants them to conduct discovery of absent class members.
concealed crucial information about the dangers of
cigarette smoking and other exposure to tobacco Defendants claim that such discovery, in the form
products, and that, as a result, the plaintiff funds of interrogatories, document requests and
and other, similarly situated frmds were required to depositions, is necessary in order to permit them to
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Case 3:03-cv-00945-CFD Document 91 -6 Filed 05/20/2004 Page 2 olfzgc 3 Of5
1998 WL 241279 Page 2
(Cite as: 1998 WL 241279 (S.D.N.Y.))
explore the degree of commonality, or lack thereof, typicality of the named plaintiffs' claims.
among class members on the issue of reliance and,
apparently, the extent and nature of their injury. ln assessing defendants' assertion of need, we note
Defendants argie that such information is required that there are already nine named plaintiff funds
to assist them in resisting the class certification from which defendants may obtain discovery of this
motion, specifically with regard to the existence of nature. If, as appears altogether likely, each fund
common questions, the predominance of such relied to a differing degree on the absence of the
questions and the typicality of the named plaintiffs' allegedly withheld information about the dangers of
claims. smoking, those differences may be apparent from
discovery of those plaintiffs. We also note that, as
The courts have frequently noted the "inevitable defmed by plaintiffs, the common issues on which
tension in the discovery of nonrepresentative class they rely for certification are ahnost all concerned
members because of the conflict between ‘tl1e with the activities of the defendants rather than of
competing interests of the absent class members in the plaintif`fs. (See Mem. in Supp. of Class Cert.,
remaining passive and the defendant ir1 having the dated March 16, 1998, at 5-6). This suggests that,
ability to ascertain necessary information for its insofar as relevant to the question of the
defense.' " Redmond v. Moodyiv Investor Service, predominance of common issues, there will not be
1995 WL 276150, at *1 (S.D.N.Y. May 10, 1995) much dispute between plaintiffs and defendants that
(quoting Robertson v. National Basketball Ass'n, 67 the precise degree to which each class member
F.R.D. 691, 697 (S.D.N.Y.l975)). Such discovery relied will differ. [FN3]
is not per se unavailable, although it is generally
disfavored and will therefore not be permitted
unless (1) the defendant demonstrates a clear need FN3. In fairness to defendants, however, at
for the infomiation for trial of those aspects oral argument plaintiffs' counsel declined
pertinent to the class claims, (2) the court is to concede that the precise form and extent
satisfied that the discovery requests are narrowly of reliance varies among class members.
tailored to their purpose and (3) the discovery is not
intended to, and will not, impose undue burdens on
the absent class members. See, e.g., Krueger v. New In response, defendants assert that the nine
York Telephone Co., 163 F.R.D. 446, 450- 51 plaintiffs do not constitute a sufficiently large
(S.D.N.Y.l995)(citing cases). The requirement of universe to develop the necessary data. Moreover,
tailoring has also led a number of courts to deem they may also be heard to argue that the extent of
document requests and interrogatories as preferable the difference in reliance among class members will
to depositions of class members. See, e.g., Redmond, be relevant in assessing both the appropriateness of
1995 WL 276150, at *1; Krueger, 163 F.R.D. at class certification and the choice of the current class
452. representatives as typical of the class.
*2 In this case defendants argue that they need to Defendants' argument about the need for a larger
explore the knowledge of individual class members universe for discovery purposes is made in
as to smoking hazards during the pertinent period, conclusory terms and without any specifics or
the steps that those members took in reliance on that evidentiary grounding. Moreover, defendants seek
knowledge, and the extent to which they were both written discovery--interrogatories and
_ misled by the alleged withholding of defendants' document production--and a deposition campaign
scientific data, that is, what the members did or that, by defendants' terms, would yield as many as
failed to do because of their ignorance of the fifty depositions of absent class members [FN4], in
assertedly withheld information. All of this addition to their planned discovery of the nine class
discovery is said to be needed in order to contest representatives and others, [FN5] and they do so
plaintiffs' class-action motion, presumably on the without concrete explanation for the size of this
basis that the extent of each class member's proposed expedition.
lcnowledge and reliance is unique to that member,
and hence that individual issues predominate over
issues common to the purported class. Defendants FN4. Defendants have proposed taking
also suggest that they may seek to contest the discovery from as many as fifteen
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Case 3:03-cv-00945-CFD Document 91 -6 Filed 05/20/2004 Page 3 oiiltgc 4 Of5
1998 WL 241279 Page 3
(Cite as: 1998 WL 241279 (S.D.N.Y.))
non-plaintiff members of the Laborers Yonkers Contracting Co. ., Inc., 1991 WL 159848,
class and ten members of the United at *2 (S.D.N.Y. Aug.l3, 1991); Robertson, 67
Federation class. Since their counsel F.R.D. at 699.
asserted at oral argument that they seek
depositions of both an administrator and a
board member from each plan, they are FN6. I note that defendants' argument
asking in effect for as many as fifty about typicality could be made in any case,
depositions of non- party class members. and thus could be viewed as proving too
much, since it would justify discovery of
class members in virtually all cases. That
FN5. Defendants outlined a proposed said, we note that in many cases there will
general discovery plan for class be little, if any, real question about the
certification in a March 31, 1998 letter to named plaintiffs' typicality, or else the
plaintiffs' counsel, and they have attached facts pertinent to that question will be
a copy to their May 6, 1998 motion papers readily apparent from the face of the
as Exhibit E. complaint or discovery directed solely to
the named plaintiffs. That is not the case
here, since the uniqueness of each fund‘s
Despite the generality of defendants' presentation, pertinent activities is neither self-evident
it is not entirely unpersuasive. There is no question nor likely to be leamed solely from the
that plaintiffs allege conduct by defendants that was plaintiff ftmds.
common to all of the plaintiffs, that is, the ~
withholding of data and misrepresentations to the
public at large. Nonetheless, the balance of the case There does remain, however, a serious question as
concerns the class members' reactions to that to the extent and scope of any discovery to be
conduct, and those responses are likely to have undertaken by the defendants. As noted, their
varied. If so, opposition to the certification motion current plans are both generally stated and
will likely focus on both the degree of such seemingly very broad in scope. We are not
variation and its significance for adjudicating prepared, at this stage and on the current record, to
plaintiffs' claims. It is also plausible that, in seeking approve the extent ofthe discovery that they seek.
. to block certification, defendants will legitimately
desire to delve into the typicality of the named For present purposes, defendants may select a total
plaintiffs' claims. of ten class members from the lists either already
provided or soon to be provided by the plaintiffs,
*3 Given this focus, the discovery related to the and may request documents from those members
certification motion will also center on reliance reflecting such matters as the nature of the class
issues and perhaps on the significant distinctions, if member's constituency (that is, the type of work
there be any, between the relevant circumstances of done by the beneficiaries of the fimd), the nature of
the nine plaintiffs and the other class members. In the f1md's activities that were purportedly affected
view of that conclusion, we cannot say that the by the defendants' alleged misconduct, and the
interest of the defendants in obtaining some degree and nature of the alleged effect, as well as
information pertinent to these matters from some of any indication that the fund was already aware of
the non-plaintiff class members is unjustified [FN6] the information purportedly withheld by defendants.
or reflective of any bad-faith motives. Moreover, Whether follow-up discovery from these members,
since the class members here are not the typical particularly the use of narrative interrogatories or
members of a plaintiff class--individuals with small short depositions, will be permitted in preparation
claims and presumably limited means--but rather for opposing the class certification motion will
are organized entities providing financial and other depend on whether defendants can make a showing
benefits to members of their constituencies under that specific further inquiry is warranted.
pre- existing collective bargaining agreements, there
is less concem that some controlled discovery will CONCLUSION
be unduly burdensome or imperil the maintenance
of the class. See, e.g., Town of New Castle v. For the reasons noted, we approve a limited
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Case 3:03-cv-00945-CFD Document 91 -6 Filed 05/20/2004 Page 4 olwige 5 cfs
1998 WL 241279 Page 4
(Cite as: 1998 WL 241279 (S.D.N.Y.))
document request by defendants directed to ten
non-plaintiff members for the purpose of preparing
to respond to the certification motion. Our analysis
is limited to that purpose, and is not intended to
suggest any views as to the propriety of discovery
addressed to class members concerning the merits
of the case.
SO ORDERED.
1998 WL 241279, 1998 WL 241279 (S.D.N.Y.)
END OF DOCUMENT
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