Ross v. RBS Citizens, N.A. et al

Filing 361

WRITTEN Opinion entered by the Honorable Joan H. Lefkow on 10/4/2012:Motion by defendants Citizens Financial Group, Inc., RBS Citizens, N.A. to compel Responses to defendants' first and second set of interrogatories and first request for the production of documents (#343) is denied. See statement section of this order for details. Mailed notice(vcf, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

CASE NUMBER

09 C 5695

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

10/4/2012

Ross vs. RBS Citizens, N.A. et al.

DOCKET ENTRY TEXT

Motion by defendants Citizens Financial Group, Inc., RBS Citizens, N.A. to compel Responses to
defendants’ first and second set of interrogatories and first request for the production of documents (#343) is
denied. See statement section of this order for details.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Discovery on the Rule 23 class closed on August 13, 2012. On September 14, 2012, defendants moved to
compel responses to their first and second set of interrogatories and their first request for production of
documents.1 These documents request a variety of specific information from all 1,712 members of the
putative class. In total, defendants seek to serve seven interrogatories (some with multiple sub-parts) and
twenty-nine document requests on absent class members.
The Seventh Circuit has held that “absent class members may, under certain circumstances, be required to
submit to discovery under Rules 33 and 34.” Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999,
1004 (7th Cir. 1971). The movant must make a “strong showing” of the need for such discovery. Enterprise
Wall Paper Mfg. Co. v. Bodman, 85 F.R.D. 325, 327 (S.D.N.Y. 1980). “[T]he majority of courts considering
the scope of discovery against absent class members have granted discovery via interrogatories or document
requests (1) where the information requested is relevant to the decision of common questions, (2) when the
discovery requests are tendered in good faith and are not unduly burdensome and (3) when the information is
not available from the class representative parties.” Transamerican Refining Corp. v. Dravo Corp., 139
F.R.D. 619, 621 (S.D. Tex. 1991). Courts that have allowed such discovery to proceed have typically done
so on a sampling or otherwise limited basis. See MANUAL FOR COMPLEX LITIGATION (4th ed.) § 21.41.
The court remains unpersuaded that such discovery is necessary here. The question is whether Charter One
broadly enforced an unlawful policy that denied employees earned-overtime compensation by (1) instructing
employees not to record hours worked over 40 per week; (2) erasing or modifying employees’ recorded
overtime; (3) providing comp time instead of overtime; and (4) requiring employees to work during unpaid
breaks. Defendants seek to ascertain from each absent class member how this policy was allegedly
implemented, by whom and during what time period. The viability of the class IMWL claim, however, is
determined by the experiences of the representative plaintiffs, not those of the absent class. Individualized
09C5695 Ross vs. RBS Citizens, N.A. et al.

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STATEMENT
inquiries such as these undermine the effectiveness of the class action vehicle and do little to ensure the fair
resolution of plaintiffs’ claim. Moreover, even assuming arguendo that defendants’ requests are relevant to
resolving the common question in this case, the court finds such requests to be unduly burdensome.
Defendants have moved to compel the production of a large amount of information from class members who
are not actively participating in this case one month after the close of fact discovery. Defendants’ requests
are not made in an easy to understand format such as a questionnaire and would undoubtedly require the
assistance of legal counsel to complete. Moreover, defendants have requested information from all 1,712
putative class members—a request that the court finds unreasonable on its face. For these reasons,
defendants’ motion to compel (#343) is denied.
1. Defendants failed to provide the court with copies of their interrogatories and document requests,
although plaintiffs included them as exhibits to their response.

09C5695 Ross vs. RBS Citizens, N.A. et al.

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