Briggs et al v. Massachusetts Department of Correction et al

Filing 277

Judge George A. OToole, Jr: ORDER entered denying 268 Motion for (1) Consequential Relief or (2) Defendant's Contempt of Settlement Agreement, denying 269 Motion for Discovery from Absent Class Members. (de Oliveira, Flaviana)

Case 1:15-cv-40162-GAO Document 277 Filed 10/20/22 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-40162-GAO
LEONARD BRIGGS, GEORGE SKINDER, LOUIS MARKHAM, FRANCIS MCGOWAN,
ERIC ROLDAN, ROLANDO S. JIMENEZ, and JENNIFER WARD,
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
MASSACHUSETTS DEPARTMENT OF CORRECTION; CAROL A. MICI, 1 Commissioner
of the Massachusetts Department of Correction; JENNIFER GAFFNEY, Deputy Commissioner
of Classification, Programs, and Reentry Division; SUZANNE THIBAULT, Superintendent of
MCI-Shirley; STEVEN SILVA, Superintendent of MCI-Norfolk; LISA MITCHELL,
Superintendent of the Massachusetts Treatment Center; KYLE PELLETIER, Acting
Superintendent of MCI-Framingham; and MASSACHUSETTS PARTNERSHIP FOR
CORRECTIONAL HEALTHCARE, LLC,
Defendants.
ORDER
October 20, 2022
O’TOOLE, D.J.
The Court resolves two pending motions as follows:
1. The Plaintiff Class Member’s Verified Motion for (1) Consequential Relief, or (2)
Defendant’s Contempt of Settlement Agreement, by Either Discrimination for Disability, or
Retaliation for Federal Causation (dkt. no. 268) is DENIED.
2. The defendant Massachusetts Department of Correction (“DOC”) seeks leave to
conduct further discovery from members of the class who are not named plaintiffs (the “absent
class members”) concerning the plaintiffs’ remaining claim that the “DOC facilities lack effective
visual systems for notifying deaf and hard of hearing prisoners of emergency alarms and

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The defendants, named in their official capacities, have been substituted as successors in office
pursuant to Fed. R. Civ. P. 25(d).

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announcements, which also places them at risk of serious physical injury and other harms.” (Class
Action Compl. ¶ 115 (dkt. no. 1).)
After the denial of the DOC’s motion for summary judgment, the parties jointly requested
that the Court allow a brief period of supplemental discovery concerning the DOC’s emergency
notification systems. On November 10, 2021, the Court granted the parties’ request, permitting an
additional seventy-five days to conduct such discovery. The DOC thereafter filed the present
motion, seeking leave to propound to class members who are not named parties to the action some
further interrogatories and a request for production of documents.
Ordinarily, under the Federal Rules of Civil Procedure, “discovery techniques—such as
interrogatories, document requests, and requests for admissions—only apply to named plaintiffs
in a class action, not absent class members.” In re Publ’n Paper Antitrust Litig., No. 3:04 MD
1631(SRU), 2005 WL 1629633, at *1 (D. Conn. July 5, 2005). Courts are cautioned to be
particularly “attentive to the possibility of abuse when discovery is targeted directly or indirectly
at passive class members.” In re Porsche Automobil Holding SE, 985 F.3d 115, 121 (1st Cir. 2021).
Although requests for discovery from absent class members are generally disfavored,
courts have considered requests where the proposed discovery: “(1) is needed for the purposes of
trial or the issues common to the class, (2) is narrowly tailored, (3) will impose undue burden on
the absent class members, and (4) is not available from representative plaintiffs.” Fishon v. Peloton
Interactive, Inc., 336 F.R.D. 67, 70–71 (S.D.N.Y. 2020) (quoting In re Warner Chilcott Ltd. Sec.
Litig., No. 06 Civ. 11515(WHP), 2008 WL 344715, at *2 (S.D.N.Y. Feb. 4, 2008)). The DOC’s
proposed discovery requests implicate more than 500 absent class members, including individuals
who may require an interpreter or other auxiliary aids or services to respond to the requests. It is
evident that the issuance of the requested interrogatories and request for production of documents

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on all absent class members would be unduly burdensome for both the individuals and for class
counsel. Furthermore, the DOC has “not identified any such class member whose knowledge about
classwide issues is superior to that of the named plaintiffs.” Redmond v. Moody’s Inv. Serv., 92
CIV. 9161 (WK), 1995 WL 276150, at *2 (S.D.N.Y. May 10, 1995). Accordingly, the
Massachusetts Department of Correction’s Motion to Take Discovery from Absent Class Members
(dkt. no. 269) is DENIED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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