Kennicott et al v. Sandia Corporation

Filing 213

MEMORANDUM OPINION AND ORDER re 194 Status Report by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LISA A. KENNICOTT, LISA A. GARCIA,
SUE C. PHELPS, and JUDI DOOLITTLE, on
behalf of themselves and a class of those
similarly situated,
Plaintiffs,
vs.

No. CIV 17-0188 JB\GJF

SANDIA CORPORATION d/b/a SANDIA
NATIONAL LABORATORIES,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiffs’ Letter from Anne B. Shaver, Lieff,
Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 6, 2018), filed December 6,
2018 (Doc. 194)(“Letter”). The Court held a hearing on December 11, 2018. See Clerk’s Minutes
at 1, filed December 11, 2018 (Doc. 198). The primary issues are: (i) whether the Court should
order Defendant Sandia Corporation d/b/a Sandia National Laboratories (“Sandia Labs”) to
produce discovery on its current -- post-April, 2017 -- employment policies and practices; and
(ii) whether the Court should order Sandia Labs to produce data on its employees’ prior pay. In
the Letter from Krissy A. Katzenstein, Morgan Lewis, to the Court (dated December 10, 2018),
filed December 10, 2018 (Doc. 196)(“Letter Response”), Sandia Labs concedes that it will produce
discovery on the prior pay data. See Letter Response at 4. Accordingly, the Court need not order
Sandia Labs to produce such information. Because discovery postdating April, 2017, is relevant
to the Plaintiffs’1 claims and because the Court can order Sandia Labs to produce discovery that is
proportional to the Plaintiffs’ needs, the Court will order Sandia Labs to produce its 2018, policy
documents and electronically stored information (“ESI”) related to the “vice president of human
resources post-transition” -- now “associate laboratory director of human resources” (hereinafter,
“vice president” or “vice president of human resources”). Draft Transcript of Hearing at 20:11-13

“Plaintiffs” refers to the named Plaintiffs -- Lisa A. Kennicott, Lisa A. Garcia, Sue C.
Phelps, and Judi Doolittle -- and similarly situated individuals “employed by Sandia in the United
States at any time from February 20, 2014 through the resolution of this action.” See First
Amended Class Action Complaint at 1, filed July 5, 2018 (Doc. 146); id. ¶ 41, at 9.
1

(taken December 11, 2018)(Levin-Gesundheit)(“Tr.”); id. at 22:8 (Levin-Gesundheit).2 The
Court, therefore, grants the Plaintiffs’ requests in part and denies them in part.
FACTUAL BACKGROUND
The Court recited this case’s facts and early procedural history in its Memorandum Opinion
and Order at 2-3, 2018 WL 6069635, at *1, filed November 20, 2018 (Doc. 190)(“MOO”). The
Court incorporates that recitation here.
Plaintiffs Lisa A. Kennicott, Lisa A. Garcia, Sue C. Phelps, and Judi
Doolittle allege that Sandia Labs, “a federally-funded research and development
contractor operating under contract for the Department of Energy and managed by
Sandia Corporation,” First Amended Class Action Complaint ¶ 1, at 1, filed July 5,
2018 (Doc. 146)(“First Amended Complaint”), has “policies, patterns, and
practices,” which result in female employees earning lower compensation and
fewer promotions than “their male counterparts,” First Amended Complaint ¶ 3, at
2. According to the Plaintiffs, Sandia Labs applies uniform policies in its offices
throughout the United States of America. See First Amended Complaint ¶¶ 22-23,
at 5-6. The Plaintiffs allege that Sandia Labs’ employee performance evaluation
process, see First Amended Complaint ¶¶ 26-30, at 6-7, initial salary calculations,
see First Amended Complaint ¶¶ 31-35, at 7-8, and promotion system, see First
Amended Complaint ¶¶ 36-40, at 8-9, disadvantage women, see First Amended
Complaint ¶¶ 26-40, at 6-9.
MOO at 2, 2018 WL 6069635, at *1.
PROCEDURAL BACKGROUND
Kennicott, Garcia, and Phelps sue Sandia Labs on behalf of themselves and
a class of those similarly situated. See Class Action Complaint, filed February 7,
2017 (Doc. 1)(“Complaint”).3 Doolittle joined Kennicott, Garcia, and Phelps as a
named plaintiff when the Plaintiffs amended their Complaint. See First Amended
Complaint at 1. In the First Amended Complaint, the Plaintiffs assert: (i) that
Sandia Labs engages in intentional discrimination, violating Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (“Title VII”); and (ii) that
Sandia Labs engages in disparate impact discrimination in violation of Title VII.
See Amended Complaint ¶¶ 85-99, at 21-23. Kennicott asserts individual Title VII
claims against Sandia Labs for retaliation and constructive discharge.
See Amended Complaint ¶¶ 100-08, at 23-24.
MOO at 2, 2018 WL 6069635, at *1. In the MOO, the Court issues an updated case schedule:

The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
2

The Court dismissed the Plaintiffs’ state-law claims -- the Complaint’s
Counts III, IV, V, and VII -- under the federal enclave doctrine. See Order at 1,
filed March 31, 2018 (Doc. 106). For the Court’s reasoning for the dismissal,
see generally Memorandum Opinion, 314 F. Supp. 3d 1142, filed May 14, 2018
(Doc. 113).
3

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Event

Original Deadline

Stipulated discovery stay ends

November 26, 2018

Sandia [Labs] completes production
of ESI, including final privilege log
Pre-class certification discovery
deadline
Plaintiffs submit motion for class
certification and expert reports
Sandia [Labs] submits opposition to
class certification and expert reports
Plaintiffs submit reply motion and
expert reports
Class certification hearing

January 15, 2019
March 11, 2019
March 25, 2019
May 16, 2019
June 18, 2019
July 1, 2019

MOO at 66, 2018 WL 6069635, at *27. On December 6, 2018, the Plaintiffs filed the letter,
requesting the Court’s assistance with discovery disputes so that the parties can meet the case
deadlines. See Letter at 1.
1.

The Letter.

The Plaintiffs notify the Court of two discovery disputes. See Letter at 1. The Plaintiffs
first complain that Sandia Labs refuses to produce discovery on policies and practices that postdate
April, 2017. See Letter at 1. The Plaintiffs explain that, on May 1, 2017, “management of Sandia
National Laboratories . . . transferred from Sandia Corporation, a subsidiary of Lockheed Martin
Corporation, to National Technology and Engineering Solutions of Sandia (‘NTESS’), LLC, a
subsidiary of Honeywell International, Inc.” Letter at 1-2 (citing Corporate Disclosure Statement
at 1-2, filed March 17, 2017 (Doc. 16)). According to the Plaintiffs, Sandia Labs has taken the
position that its policies and practices postdating the transfer are not relevant. See Letter at 2. The
Plaintiffs, however, contend that their Complaint and Amended Compliant allege “ongoing
violations of Title VII.” Letter at 2 (emphasis in original). The Plaintiffs request that the Court
order Sandia Labs to produce the requested discovery for the period from May, 2017, through
December, 2018. See Letter at 3.
The Plaintiffs next aver that Sandia Labs has withheld information regarding its
employees’ prior pay data. See Letter at 3. The Plaintiffs describe that they requested information
on employees’ “compensation histories” in May, 2017, Letter at 3 (quoting Defendant’s
Objections and Responses to Plaintiffs’ First Set of Requests for Production of Documents,
Request No. 5, at 8, filed March 19, 2018 (Doc. 100-1)), and, according to the Plaintiffs,

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compensation from prior employers is “an essential component of this information” and relevant
to the Plaintiffs’ claims. Letter at 3. The Plaintiffs request that the Court order that Sandia Labs
produce the requested information within one week so that the Plaintiffs may analyze the
information before the deadline for their class certification motion. See Letter at 4.
2.

The Letter Response.

Sandia Labs responds in a letter dated December 10, 2018. See Letter Response at 1-5.
Sandia Labs first contends that it did not refuse to provide prior pay data; rather, according to
Sandia Labs, it told the Plaintiffs that they had not requested production of such documents.
See Letter Response at 2. Sandia Labs quotes the Plaintiffs’ discovery request and emphasizes
that the Plaintiffs desired “prior job history within and outside of Sandia.” Letter Response at 2
(emphasis in Letter Response)(quoting Defendant’s Objections and Responses to Plaintiffs’ First
Set of Requests for Production of Documents, Request No. 5, at 8). Sandia Labs explains that, in
July, 2018, it provided the Plaintiffs information on its employees’ job histories, such as “prior
employers, prior employment dates, and positions held,” and that the Plaintiffs did not indicate, at
that time, any problems with the production. Letter Response at 3. Sandia Labs explains that, in
October, 2018, the Plaintiffs requested the prior pay data about which they now complain.
See Letter Response at 3. According to Sandia Labs, after it informed the Plaintiffs that they had
not previously requested such information, the Plaintiffs served a request for production seeking
information on: “compensation in dollar terms, whether in terms of annual salary, hourly wage,
bonus compensation AND/OR any other form of compensation, previously received or requested
prior to hire AND/OR offer of employment for DEFENDANT’s EMPLOYEES AND applicants.”
Letter Response at 3 (quoting Plaintiffs’ Fourth Set of Requests for Production of Documents,
Request No. 39, at 5, filed December 10, 2018 (Doc. 196-3)(capitalization in Plaintiffs’ Fourth Set
of Requests for Production of Documents)). Sandia Labs concedes that, despite its complaints, it
will produce to the Plaintiffs the requested information. See Letter at 4.
Sandia Labs next contends that the Plaintiffs cannot ground their claims on policies and
practices that postdate the transition from Sandia Corporation to National Technology and
Engineering Solutions of Sandia (“National Technology”). See Letter at 4. Sandia Labs first avers
that, because Sandia Labs primarily employed the named Plaintiffs during Sandia Corporation’s
management, the Plaintiffs cannot base a class claim on later policies and practices. See Letter

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Response at 4. Second, Sandia Labs argues that, to the extent that the Plaintiffs base their claims
on their starting pay, any policy or practice postdating April, 2017, is irrelevant, because Sandia
Labs hired each named Plaintiff at least “thirteen years before the transition date.” Letter
Response at 4 (emphasis in original). Last, Sandia Labs protests that it has already produced
documentation on thousands of Sandia Labs’ employees, and so, if the Plaintiffs cannot develop a
theory from that discovery, no theory exists. See Letter Response at 4-5.
3.

The Letter Reply.

Also on December 10, 2018, the Plaintiffs replied to the Letter Response. See Letter from
Anne B. Shaver, Lieff, Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 10,
2018), filed December 10, 2018 (Doc. 196)(“Letter Reply”). The Plaintiffs first consider the
dispute about discovery postdating April, 2017. See Letter Reply at 1. The Plaintiffs argue that
their claims do not rest solely on Sandia Labs’ policies and practices, and that three of the four
named Plaintiffs continued working for Sandia Labs after the transition to National Technology.
See Letter Reply at 1. Further, the Plaintiffs note that designing injunctive relief “to Sandia’s
human resources practices” requires knowledge about current policies and practices. Letter Reply
at 1. The Plaintiffs additionally comment that, although Sandia Labs has produced considerable
discovery already, they require information about employment procedures under National
Technology to determine whether Sandia Labs’ policies and practices changed. See Letter Reply
at 1. The Plaintiffs concede that, because Sandia Labs agreed to produce employees’ compensation
histories, the dispute regarding “prior pay data” is moot. Letter Reply at 2. The Plaintiffs conclude
by noting that Sandia Labs mischaracterizes their claims. See Reply Letter at 2. According to the
Plaintiffs, “Plaintiffs’ allegation regarding the role of prior pay in salary setting at hire does not
represent the sum of Plaintiffs’ claims,” and the Plaintiffs argue, moreover, that “reliance on prior
pay to set salaries at the time of hire may cause gender disparities in compensation for years after
an employee was initially hired.” Reply Letter at 2.
4.

The Hearing.

At the hearing on December 11, 2018, the Court began by clarifying whether the parties
had resolved their dispute about the prior pay data. See Tr. at 4:7-15 (Court). The Plaintiffs
affirmed the Court’s assessment, see Tr. at 4:19-20 (Levin-Gesundheit), with the caveat that
Sandia Labs produce the prior pay data “by the end of this year so we have plenty [of] opportunity

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to review it, analyze it[,] and prepare for the class certification briefing and expert report
deadlines,” Tr. at 4:20-23 (Levin-Gesundheit). In response to the Court’s prompting about a
possible deadline, Sandia Labs confirmed that it could produce the discovery in the requested time.
See Tr. at 5:4-10 (Court, Katzenstein).
The Plaintiffs turned to the dispute about documents postdating April, 2017, and reiterated
their Letter’s arguments. See Tr. at 6:5-11 (Levin-Gesundheit). The Plaintiffs requested that
Sandia Labs produce updated policy documents, updated internal complaints for 2018, employee’s
checks for 2018, see Tr. at 9:11-17 (Levin-Gesundheit), and “documents collected from the agreed
upon custodians through the end of December 2018,” Tr. at 19-20 (Levin-Gesundheit). In response
to a question from the Court regarding the April, 2017, date, the Plaintiffs explained that they did
not attach much significance to the date, but, that near that date, Sandia Labs’ management
changed. See Tr. at 10:7-17 (Levin-Gesundheit). According to the Plaintiffs, they filed their
Complaint “a couple months prior” to the transition, Tr. at 17-18 (Levin-Gesundheit), and the
Amended Complaint in July, 2018, see Tr. at 10:18-19 (Levin-Gesundheit).

The Plaintiffs

explained that National Technology undertook Sandia Corporations’ liabilities, see Tr. at 10:1911:5 (Levin-Gesundheit), and, according to the Plaintiffs, although some upper-level management
changed in the transition, many managers retained their original positions, see Tr. at 11:5-9 (LevinGesundheit). The Plaintiffs concluded that, “at least with respect to policy” documents, Tr. at
11:22 (Levin-Gesundheit), they do not seek voluminous production, and believe that their
discovery request “is proportional,” Tr. at 12:5 (Levin-Gesundheit). See id. at 11:21-12:8 (LevinGesundheit).
Sandia Labs responded by indicating that the First Amended Complaint’s core focuses on
events occurring before May, 2017. See Tr. at 12:13-16:22 (Katzenstein). Sandia Labs first
reiterated the arguments from its Letter Response. See Tr. at 12:21-13:17 (Katzenstein). Sandia
Labs contended that the Plaintiffs cannot form a class on events after April, 2017, because the
named Plaintiffs and others in the proposed class did not work long, if at all, under National
Technology. See Tr. at 13:18-24 (Katzenstein). Further, according to Sandia Labs, under National
Technology, new management -- unconnected to the actions of which the Plaintiffs complain -entered Sandia Labs. See Tr. at 23:19-25 (Katzenstein).

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Sandia Labs further argued that rule 23 of the Federal Rules of Civil Procedure allows
limited discovery to prepare for class certification, and that the discovery relating to the five-anda-half years preceding May, 2017, should satisfy that requirement.

See Tr. at 14:5-15:21

(Katzenstein). Sandia Labs asserted that, although the Plaintiffs request a small number of policy
documents, the ESI requested involves thousands of documents and poses a substantial burden for
Sandia Labs. See Tr. at 15:22-16:22 (Katzenstein). For the ESI, Sandia Labs must pull emails
from the ESI custodians, run searches for relevant information, and review the documents
recovered. See Tr. at 18:7-24 (Katzenstein).
The Court asked the Plaintiffs whether they seek ten to twelve documents or thousands of
documents. See Tr. at 18:20-21 (Court). The Plaintiffs responded that they seek around twelve
policy documents. See Tr. at 18:23 (Levin-Gesundheit). According to the Plaintiffs, at the core,
they seek Sandia Labs’ policy documents, and the Plaintiffs noted that Sandia Labs had, for
months, opposed the discovery on relevance grounds and had only just raised arguments about the
discovery’s burden. See Tr. at 18:23-19:6 (Levin-Gesundheit). The Plaintiffs, however, admitted
that they desire ESI discovery and believe it foundational to their case, because ESI may reveal
management’s knowledge about discriminatory actions. See Tr. at 19:16-13 (Levin-Gesundheit).
The Plaintiffs indicated that, to show their good faith, they would limit their ESI request to a
request for information from the “vice president.” Tr. at 20:11-13 (Levin-Gesundheit). The Court
asked how many documents the Plaintiffs seek from the vice president. See Tr. at 20:14-17
(Court). The Plaintiffs stated that they do not have an exact number. See Tr. at 20:18-21:1 (LevinGesundheit). The Court asked what, beyond policy documents, the Plaintiffs seek from the vicepresident, see Tr. at 21:14-21 (Court), and the Plaintiffs asserted that they desired ESI, because the
vice president is “intimately involved in administering, supervising the implementation of Sandia’s
human resource policies,” Tr. at 21:24-22:1 (Levin-Gesundheit). See id. at 22:4-13 (LevinGesundheit).
The Court returned to Sandia Labs to ask how many documents Sandia Labs would expect
to produce in ESI limited to the vice president of human resources. See Tr. at 22:14-18 (Court).
Sandia Labs could not estimate a number, and, when the Court inquired about the burden Sandia
Labs’ anticipated in producing the policy documents and ESI, Sandia Labs replied that it
considered any discovery to impose a burden and that it still disputed the discovery’s relevance.

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See Tr. at 23:3-24:3 (Katzenstein). The Court concluded that it could not limit discovery as Sandia
Labs proposed, because the First Amended Complaint discusses Sandia Labs’ current activities.
See Tr. at 24:4-14 (Court). The Court stated that it would order Sandia Labs to produce the policy
documents and ESI related to the vice president of human resources, and that it would grant the
Plaintiffs’ request as modified. See Tr. at 24:15-23 (Court).
LAW REGARDING DISCOVERY
Rule 34 governs discovery requests for tangible objects and states:
A party may serve on any other party a request within the scope of Rule 26(b):
(1)

to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding
party’s possession, custody, or control:
(A)

(B)
(2)

any designated documents or electronically stored information -including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations -- stored in
any medium from which information can be obtained either directly
or, if necessary, after translation by the responding party into a
reasonably usable form; or
any designated tangible things; or
to permit entry onto designated land or other property possessed or
controlled by the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the property or any
designated object or operation on it.

Fed. R. Civ. P. 34(a). Discovery’s proper scope is “any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R. Civ. P.
26(b)(1). The factors that bear upon proportionality are: “the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
Discovery’s scope under rule 26 is broad. See Gomez v. Martin Marietta Corp., 50 F.3d
1511, 1520 (10th Cir. 1995); Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M.
2004)(Browning, J.)(“The federal courts have held that the scope of discovery should be broadly
and liberally construed to achieve the full disclosure of all potentially relevant information.”). The
federal discovery rules reflect the courts’ and Congress’ recognition that “mutual knowledge of all
the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor,
329 U.S. 495, 507 (1947). A district court is not, however, “required to permit plaintiff to engage

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in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes, 43 F. App’x 214,
217 (10th Cir. 2002)(unpublished)(quoting Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1169
(10th Cir. 2000)).4 “Discovery . . . is not intended to be a fishing expedition, but rather is meant
to allow the parties to flesh out allegations for which they initially have at least a modicum of
objective support.” Rivera v. DJO, LLC, No. CIV 11-1119 JB/RHS, 2012 WL 3860744, at *1
(D.N.M. Aug. 27, 2012)(Browning, J.)(internal quotation marks omitted)(quoting Tottenham v.
Trans World Gaming Corp., No. Civ. 00-7697 (WK), 2002 WL 1967023, at *2 (S.D.N.Y.
2002)(Knapp, J.)). “[B]road discovery is not without limits and the trial court is given wide
discretion in balancing the needs and rights of both plaintiff and defendant.” Gomez v. Martin
Marietta Corp., 50 F.3d at 1520 (internal quotation marks omitted)(quoting Scales v. J.C. Bradford
& Co., 925 F.2d 901, 906 (6th Cir. 1991)).
The 2000 amendments to rule 26(b)(1) began narrowing discovery’s substantive scope and
injected courts deeper into the discovery process. See Simon v. Taylor, No. CIV 12-0096
JB/WPL, 2015 WL 2225653, at *23 (D.N.M. April 30, 2015)(Browning, J.). Before the 2000
amendments, rule 26(b)(1) defined the scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending actions, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense of any other
party, including the existence, description, nature, custody, condition and location
of any books, documents, or other tangible things and the identity and location of
persons having knowledge of any discoverable matter. The information sought
need not be admissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1) (1996). The 2000 amendments made the following changes, shown here
with the deleted language stricken and the added material underlined:
Parties may obtain discovery regarding any matter, not privileged, that which is
relevant to the subject matter involved in the pending actions, whether it relates to
4

McGee v. Hayes is an unpublished Tenth Circuit opinion, but the Court can rely on an
unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A) (“Unpublished opinions are not precedential, but may be cited
for their persuasive value.”). The Tenth Circuit has stated: “In this circuit, unpublished orders are
not binding precedent, . . . and . . . citation to unpublished opinions is not favored. . . . However,
if an unpublished opinion . . . has persuasive value with respect to a material issue in a case and
would assist the court in its disposition, we allow a citation to that decision.” United States v.
Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that McGee v. Hayes, Nard
v. City of Oklahoma City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished), Douglas v.
Norton, 167 F. App’x 698 (10th Cir. 2006), Rhoads v. Miller, 352 F. App’x 289 (10th Cir. 2009),
and Hamilton v. Water Whole International Corp., 302 F. App’x 789 (10th Cir. 2008), have
persuasive value with respect to material issues, and will assist the Court in its preparation of this
Memorandum Opinion and Order.

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the claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the subject matter involved
in the action. Relevant The information sought need not be admissible at the trial
if discovery the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). Putting aside the last sentence’s changes -- which the advisory
committee’s notes make clear was a housekeeping amendment to clarify that inadmissible
evidence must still be relevant to be discoverable -- the 2000 amendments have two effects: (i) they
narrow discovery’s substantive scope in the first sentence; and (ii) they inject courts into the
process in the entirely new second sentence.
In 1978, the Committee published for comment a proposed amendment,
suggested by the Section of Litigation of the American Bar Association, to refine
the scope of discovery by deleting the “subject matter” language. This proposal
was withdrawn, and the Committee has since then made other changes in the
discovery rules to address concerns about overbroad discovery. Concerns about
costs and delay of discovery have persisted nonetheless, and other bar groups have
repeatedly renewed similar proposals for amendment to this subdivision to delete
the “subject matter” language. Nearly one-third of the lawyers surveyed in 1997
by the Federal Judicial Center endorsed narrowing the scope of discovery as a
means of reducing litigation expense without interfering with fair case resolutions.
[Federal Judicial Center, Thomas Willging, John Shapard, Donna Stienstra, & Dean
Miletich, Discovery and Disclosure Practice, Problems, and Proposals for Change]
44-45 (1997). The Committee has heard that in some instances, particularly cases
involving large quantities of discovery, parties seek to justify discovery requests
that sweep far beyond the claims and defenses of the parties on the ground that they
nevertheless have a bearing on the “subject matter” involved in the action.
The amendments proposed for subdivision (b)(1) include one element of
these earlier proposals but also differ from these proposals in significant ways. The
similarity is that the amendments describe the scope of party-controlled discovery
in terms of matter relevant to the claim or defense of any party. The court, however,
retains authority to order discovery of any matter relevant to the subject matter
involved in the action for good cause. The amendment is designed to involve the
court more actively in regulating the breadth of sweeping or contentious discovery.
The Committee has been informed repeatedly by lawyers that involvement of the
court in managing discovery is an important method of controlling problems of
inappropriately broad discovery. Increasing the availability of judicial officers to
resolve discovery disputes and increasing court management of discovery were
both strongly endorsed by the attorneys surveyed by the Federal Judicial Center.
See Discovery and Disclosure Practice, supra, at 44. Under the amended
provisions, if there is an objection that discovery goes beyond material relevant to
the parties’ claims or defenses, the court would become involved to determine
whether the discovery is relevant to the claims or defenses and, if not, whether good
cause exists for authorizing it so long as it is relevant to the subject matter of the
action. The good-cause standard warranting broader discovery is meant to be
flexible.
The Committee intends that the parties and the court focus on the actual
claims and defenses involved in the action. The dividing line between information
relevant to the claims and defenses and that relevant only to the subject matter of
the action cannot be defined with precision. A variety of types of information not

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directly pertinent to the incident in suit could be relevant to the claims or defenses
raised in a given action. For example, other incidents of the same type, or involving
the same product, could be properly discoverable under the revised standard.
Information about organizational arrangements or filing systems of a party could
be discoverable if likely to yield or lead to the discovery of admissible information.
Similarly, information that could be used to impeach a likely witness, although not
otherwise relevant to the claims or defenses, might be properly discoverable. In
each instance, the determination whether such information is discoverable because
it is relevant to the claims or defenses depends on the circumstances of the pending
action.
The rule change signals to the court that it has the authority to confine
discovery to the claims and defenses asserted in the pleadings, and signals to the
parties that they have no entitlement to discovery to develop new claims or defenses
that are not already identified in the pleadings. In general, it is hoped that
reasonable lawyers can cooperate to manage discovery without the need for judicial
intervention. When judicial intervention is invoked, the actual scope of discovery
should be determined according to the reasonable needs of the action. The court
may permit broader discovery in a particular case depending on the circumstances
of the case, the nature of the claims and defenses, and the scope of the discovery
requested.
The amendments also modify the provision regarding discovery of
information not admissible in evidence. As added in 1946, this sentence was
designed to make clear that otherwise relevant material could not be withheld
because it was hearsay or otherwise inadmissible. The Committee was concerned
that the “reasonably calculated to lead to the discovery of admissible evidence”
standard set forth in this sentence might swallow any other limitation on the scope
of discovery. Accordingly, this sentence has been amended to clarify that
information must be relevant to be discoverable, even though inadmissible, and that
discovery of such material is permitted if reasonably calculated to lead to the
discovery of admissible evidence. As used here, “relevant” means within the scope
of discovery as defined in this subdivision, and it would include information
relevant to the subject matter involved in the action if the court has ordered
discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of
subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is
otherwise within the scope of subdivision (b)(1). The Committee has been told
repeatedly that courts have not implemented these limitations with the vigor that
was contemplated. See 8 Federal Practice & Procedure § 2008.1 at 121. This
otherwise redundant cross-reference has been added to emphasize the need for
active judicial use of subdivision (b)(2) to control excessive discovery. Cf.
Crawford-El v. Britton, [523 U.S. 574] (1998)(quoting Rule 26(b)(2)(iii) and
stating that “Rule 26 vests the trial judge with broad discretion to tailor discovery
narrowly”).
Fed. R. Civ. P. 26 advisory committee’s notes.
The Court gets the impression from reading the advisory committee’s notes that the
amendment is not intended to exclude a delineable swath of material so much as it is intended to
send a signal to district judges to become more hands-on in the process of regulating -- mostly
limiting -- discovery on relevance grounds alone. The “two effects” of the 2000 amendments
might, thus, be only one effect: directing district judges to roll up their sleeves and manage
discovery, and to do so on a relevance basis. The change in substantive scope from “subject

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matter,” to “claim or defense,” would, therefore, seem to “add teeth” to the relevance standard
instead of narrowing that standard. Fed. R. Civ. P. 26 advisory committee’s notes. It is not
surprising that the Supreme Court of the United States and the United States Congress would want
to increase judicial presence: “relevance” is a liberal concept in the context of trial. Fed. R. Evid.
401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the action.”).
Of course, regardless of the Court’s musings about the rules, courts should also seek to
give substantive content to amendments. Read literally, the rule does not permit parties to discover
information relevant only to the claim or defense of another party; they must use discovery only
to investigate their own claims and defenses. More problematically, however, the rule may prevent
using the Federal Rules’ compulsory discovery process to obtain “background” information not
specifically relevant to any one claim or defense -- e.g., a plaintiff naming a pharmaceutical
company as a defendant and then using discovery to educate itself generally about medicine,
biochemistry, and the drug industry by using the defendant’s expertise.
In In re Cooper Tire & Rubber Co., 568 F.3d 1180 (10th Cir. 2009), the United States Court
of Appeals for the Tenth Circuit clarified that the 2000 Amendments to rule 26 “implemented a
two-tiered discovery process; the first tier being attorney-managed discovery of information
relevant to any claim or defense of a party, and the second being court-managed discovery that can
include information relevant to the subject matter of the action.” 568 F.3d at 1188. The Tenth
Circuit further stated that,
when a party objects that discovery goes beyond that relevant to the claims or
defenses, “the court would become involved to determine whether the discovery is
relevant to the claims or defenses and, if not, whether good cause exists for
authorizing it so long as it is relevant to the subject matter of the action.” This
good-cause standard is intended to be flexible. When the district court does
intervene in discovery, it has discretion in determining what the scope of discovery
should be. “[T]he actual scope of discovery should be determined according to the
reasonable needs of the action. The court may permit broader discovery in a
particular case depending on the circumstances of the case, the nature of the claims
and defenses, and the scope of the discovery requested.”
568 F.3d at 1188-89 (quoting the advisory committee’s notes (citations and footnote
omitted)(alteration in original)).
The 2015 amendments to rule 26(b)(1) continued narrowing discovery’s substantive scope
and injecting courts further into the discovery process. The 2015 amendment made notable
deletions and additions, both of which emphasized the need to make discovery proportional to the

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needs of the case and are noted in the quotation below. See Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1),
provides:
(1)

Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense
including the existence, description, nature, custody, condition and location
of any documents or other tangible things and the identity and location of
persons who know of any discoverable matter. For good cause, the court
may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to the limitations imposed by
Rule 26(b)(2)(C) and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in
evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1) (alterations added).
The advisory advisory committee’s notes state that the first deletion does not make a
substantive change. Rather, the deletion was made because “[d]iscovery of such matters is so
deeply entrenched” in standard discovery that including it would be “clutter.” Fed. R. Civ. P.
26(b) advisory committee’s notes.5
On the second deletion, the advisory committee’s notes explain that the former provision
for discovery of relevant but inadmissible information that appears “reasonably calculated to lead
to the discovery of admissible evidence” is also deleted.

Fed. R. Civ. P. 26(b) advisory

committee’s note.
The phrase has been used by some, incorrectly, to define the scope of discovery.
As the Committee Note to the 2000 amendments observed, use of the “reasonably
calculated” phrase to define the scope of discovery “might swallow any other
limitation on the scope of discovery.” The 2000 amendments sought to prevent
such misuse by adding the word “Relevant” at the beginning of the sentence,
making clear that “‘relevant’ means within the scope of discovery as defined in this
The Court regrets this deletion. Moving things out of the statute’s text often creates
mischief, especially for courts that rely heavily on the text’s plain language. The drafters might
be astonished how often the Court sees objections to interrogatories and requests that seek basic
information about documents. The rule is well-established because the deleted language was in
the rule; now that the language is not in the rule, the rule may be eroded or, more likely, ignored
or overlooked by those who do not spend time in the advisory committee’s notes’ thicket. What
the advisory comments describe as “clutter” is a simple instruction to practitioners who do not
practice in federal court every day for every case. This deletion might incrementally increase
unnecessary litigation rather than shorten it. Some of the amendments seem designed to help the
nation’s large corporations, represented by some of the nation’s most expensive law firms, cut
down expenses rather than to help courts and practitioners in more routine cases.
5

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subdivision. . . .” The “reasonably calculated” phrase has continued to create
problems, however, and is removed by these amendments. It is replaced by the
direct statement that “Information within this scope of discovery need not be
admissible in evidence to be discoverable.” Discovery of nonprivileged
information not admissible in evidence remains available so long as it is otherwise
within the scope of discovery.
Fed. R. Civ. P. 26 advisory committee’s note. The deletion, therefore, did not necessarily change
discovery’s scope, but clarified it.6 Accordingly, “[r]elevance is still to be ‘construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on’ any party’s claim or defense.” State Farm Mut. Auto. Ins. v. Fayda, No. CIV 14-9792
WHP/JCF, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(Francis IV, M.J.)(quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
The most notable addition to rule 26(b) is the proportionality concept. Rule 26(b)(2)(C)(iii)
has always limited overly burdensome discovery and required proportionality. See Fed. R. Civ.
P. 26(b)(2)(C)(iii) (pre-2015 version). The proportionality requirement was relocated to 26(b)(1)
to address the “explosion”7 of information that “has been exacerbated by the advent of ediscovery.”8 Fed. R. Civ. P. 26(b) advisory committee’s note. Describing how e-discovery is the
driving factor in the 2015 amendment, the advisory committee’s notes state:

6

Arguably, older lawyers will have to learn a new vocabulary and ignore the one they have
used for decades. If the changes were not made to change the scope of discovery, it is unclear
what the benefit of all this change is.
It is unclear to the Court whether the “explosion” of e-discovery has made discovery
harder or easier. In many situations, algorithms and search engines have replaced associates and
paralegals, and brought greater accuracy and efficiency to discovery. Searching warehouses of
documents by reviewing papers one-by one may have been a bigger burden then today’s ediscovery.
7

8

This relocation -- rather than substantive change -- is one reason that the Court is skeptical
that the 2015 amendments will make a considerable difference in limiting discovery or cutting
discovery costs. Courts were bringing common sense and proportionality to their discovery
decisions long before the 2015 amendments. See Aguayo v. AMCO Ins., 59 F. Supp. 3d 1225,
1275 (D.N.M. 2014)(Browning, J.)(“[T]he Court expects that discovery and motion practice bear
some proportionality to the case’s worth.”); Cabot v. Wal-Mart Stores, Inc., No. CIV 11-0260 JB,
2012 WL 592874, at *11-12 (D.N.M. Feb. 16, 2012)(Browning, J.)(limiting the scope of discovery
because it was unduly burdensome in relation to the relevance and need). The real import of the
rule is that it will likely lead to more “proportionality” objections and more disputes that the district
courts will have to resolve, which is what the drafters apparently intended. It is unclear how more
judicial involvement in discovery can be squared with a federal court docket that is at a breaking
point already. It is also unclear what was wrong with the old goal of having discovery be largely
self-executing. The new rules require attorneys to learn the new vocabulary of “proportionality,”
delete old stock legal sections from their briefs, and rewrite new sections to use the correct
language. Older lawyers must be particularly alert to read and learn the new rules, read the
comments, and understand the thrust of the drafting. Finally, given that “proportionality” is a very

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The burden or expense of proposed discovery should be determined in a
realistic way. This includes the burden or expense of producing electronically
stored information. Computer-based methods of searching such information
continue to develop, particularly for cases involving large volumes of electronically
stored information. Courts and parties should be willing to consider the
opportunities for reducing the burden or expense of discovery as reliable means of
searching electronically stored information become available.
Fed. R. Civ. P. 26(b) advisory committee’s note.
The 2015 Year-End Report on the Federal Judiciary written by the Honorable John
Roberts, Chief Justice of the Supreme Court of the United States, indicates that the addition of
proportionality to rule 26(b) “crystalizes the concept of reasonable limits on discovery through
increased reliance on the common-sense concept of proportionality.”9 Chief Justice John Roberts,

subjective standard, it will be hard for any court to sanction any attorney for raising this objection.
In sum, the rules are just as likely to increase the costs of discovery as to decrease it.
9

The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, empowers the federal courts to
prescribe rules for the conduct of their business. See 28 U.S.C. § 2071. The Judicial Conference - the policy making body of the federal judiciary -- has overall responsibility for formulating those
rules. See Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary at 6,
Supreme Court of the United States, available at https://www.supremecourt.gov/publicinfo/yearend/year-endreports.aspx (last visited Jan. 11, 2019)(“2015 Year-End Report”). The Chief Justice
leads the Judicial Conference. The Judicial Conference’s Committee on Rules of Practice and
Procedure, known as the Standing Committee, solicits guidance from advisory committees and
conferences to draft proposed rules and amendments for the Judicial Conference’s consideration.
See 2015 Year-End Report, at 5-6. Chief Justice Roberts, a former clerk for the Honorable
William Rehnquist, former-Chief Justice of the Supreme Court of the United States, appointed the
Honorable David Campbell, United States District Judge for the District of Arizona, also a former
Justice Rehnquist clerk and President George W. Bush appointee, to chair the Civil Rules Advisory
Committee. Judge Campbell and David Levi -- then-Dean of the Duke University School of Law
and now President of the American Legal Institute, Professor at Duke University School of Law,
and Director of the Bolch Judicial Institute; a former clerk to the Honorable Lewis Powell, formerassociate Justice of the Supreme Court of the United States, and former Chief Judge of the United
States District Court for the Eastern District of California; appointed as United States Attorney by
President Ronald Reagan and appointed to the Eastern District of California by President George
W. Bush -- led the effort to increase proportionality and hands-on judicial case management in the
2015 amendments. See Report to the Standing Committee at 4, Advisory Committee on Civil
Rules
(May
8,
2013),
https://www.uscourts.gov/rules-policies/archives/committeereports/advisory-committee-rules-civil-procedure-may-2013 (last visited Jan. 11, 2019). After the
Judicial Conference concurred on the 2015 amendments, it sent the proposed rules and
amendments to the Supreme Court, which approved them. Chief Justice Roberts submitted the
proposed rules to Congress for its examination. See 2015 Year-End Report at 6. Because
Congress did not intervene by December 1, the new rules took effect. See 28 U.S.C. § 2074. Some
scholars have noted that the rules reflect the conservative nature of those who have participated in
drafting the amendments. See generally Edward A. Purcell, Jr., From the Particular to the General:
Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts, 162 U. Pa. L.
Rev. 1731 (2014); Corey Ciocchetti, The Constitution, The Roberts Court, and Business: The
Significant Business Impact of the 2011-2012 Supreme Court Term, 4 Wm. & Mary Bus. L. Rev.
385 (2013). In particular, the New Mexico Trial Lawyer published an article asserting that the
amendments favored corporate defendants, which was partially the result of Chief Justice Roberts’
appointment of “corporate-minded judges to the Rules Advisory Committee that drafted the
amendments.” Ned Miltenberg & Stuart Ollanik, The Chief Umpire is Changing the Strike Zone
at 1, The New Mexico Trial Lawyer (Jan./Feb. 2016). The Court shares some of the concerns with

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2015 Year-End Report on the Federal Judiciary at 6, Supreme Court of the United States, available
at https://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx (last visited Jan. 11,
2019)(“2015 Year-End Report”) He states that the proportionality concept seeks to “eliminate
unnecessary or wasteful discovery,” and to impose “careful and realistic assessment of actual
need.” 2015 Year-End Report at 7. This assessment may, as a practical matter, require “judges to
be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to
analyze proportionality before ordering production of relevant information.” State Farm Mut.
Auto. Ins. v. Fayda, 2015 WL 7871037, at *2 (internal quotation marks omitted)(quoting Fed. R.
Civ. P. 26(b)(1) advisory committee’s notes). The burden of demonstrating relevance remains on
the party seeking discovery, and the newly revised rule “does not place on the party seeking
discovery the burden of addressing all proportionality considerations.” Fed. R. Civ. P. 26(b)(1)
advisory committee’s notes. See Dao v. Liberty Life Assurance Co. of Boston, No. CIV 14-4749SI (EDL), 2016 WL 796095, at *3 (N.D. Cal. Feb. 23, 2016)(LaPorte, M.J.)(observing that the
2015 amendment “reinforces the Rule 26(g) obligation of the parties to consider these factors in
making discovery requests, responses or objections”); Williams v. U.S. Envtl. Servs., LLC, Civil
Action No. 15-0168-RLB, 2016 WL 617447, at *1 n.2 (M.D. La. Feb. 16, 2016)(Bourgeois, M.J.).
In general, “the parties’ responsibilities . . . remain the same” as they were under the rule’s earlier
iteration so that the party resisting discovery has the burden of showing undue burden or expense.
Fed. R. Civ. P. 26(b)(1) advisory committee’s notes. See Dao v. Liberty Life Assurance Co. of
Boston, 2016 WL 796095, at *3 (noting that, “while the language of the Rule has changed, the
amended rule does not actually place a greater burden on the parties with respect to their discovery
obligations”).
Like with the 2000 amendments, it is unsurprising that the drafters are unable to articulate
precise language narrowing the discovery’s substantive scope. Instead of being Aristotelian and
trying to draft rules, the drafters largely opted to make federal judges Plato’s enlightened
guardians. They have decided that no single general rule can adequately take into account the
infinite number of possible permutations of different claims, defenses, parties, attorneys, resources
of parties and attorneys, information asymmetries, amounts in controversy, availabilities of

the new amendments being pro-business and giving corporations new tools to limit plaintiffs’
discovery.

- 16 -

information by other means, and other factors. They have dropped all discovery disputes into
judges’ laps. The drafters have decided that this determination requires the individualized
judgment of someone on the scene, and that presence is what the rulemakers want when they:
(i) encourage district judges to take a firmer grasp on the discovery’s scope; and (ii) put their
thumbs on the scale in favor of narrower discovery in the rule’s definition of the scope of
discovery.
Rule 34 allows a party to serve requests to produce certain items “on any other party . . . in
the responding party’s possession, custody, or control.” Fed. R. Civ. P. 34(a)(1) (emphasis added).
See Hickman v. Taylor, 329 U.S. at 504 (explaining that rule 34 “is limited to parties to the
proceeding, thereby excluding their counsel or agents”). Applying this standard, courts have found
that corporations control documents in their subsidiaries’ hands, clients control case files in their
attorneys’ hands, and patients control health records in their healthcare providers’ hands.
See Simon v. Taylor, No. CIV 12-0096 JB/WPL, 2014 WL 6633917, at *35 (D.N.M. Nov. 18,
2014)(Browning, J.)(citing United States v. Stein, 488 F. Supp. 2d 350, 360-62 (S.D.N.Y.
2007)(Kaplan, J.)); CSI Inv. Partners II, L.P. v. Cendant Corp., No. CIV. 00-1422 (DAB) (DF),
2006 WL 617983, at *6 (S.D.N.Y. March 13, 2006)(Eaton, M.J.)(compelling a client’s attorney to
disclose documents in the attorney’s possession regarding the attorney’s representation of that
particular client, but only insofar as the documents were relevant)).

An employee’s or

corporation’s ability to access the documents in the normal course of business weighs in favor of
finding control. See, e.g., Gerling Int’l Ins. v. Comm’r of Internal Revenue, 839 F.2d 131, 1441
(3d Cir. 1988)(stating that where “agent-subsidiary can secure documents of the principal-parent
to meet its own business needs . . . the courts will not permit the agent-subsidiary to deny control
for purposes of discovery”); Camden Iron & Metal v. Marubeni Am. Corp., 138 F.R.D. 438, 442
(D.N.J. 1991)(Simandle, M.J.)(including “demonstrated access to documents in the ordinary
course of business” in list of factors to be considered in determining control). Applying that
standard, the Court, in Simon v. Taylor, determined that a racing commission had legal control
over test samples from horses, because the commission “has the legal right to have those horses’
samples tested upon demand.” 2014 WL 6633917, at *35. In another case, the Court concluded
that an oil company had control over the payroll records a third-party payroll company possessed,
because the oil company had the practical ability to request that payroll company, with which it

- 17 -

contracted, to produce those payroll records on demand. See Landry v. Swire Oilfield Servs. LLC,
323 F.R.D. 360, 397 (D.N.M. 2018)(Browning, J.).
Courts have specifically considered whether clients control information in their attorneys’
hands. Because a client has the right “to obtain copies of documents gathered or created by its
attorneys pursuant to their representation of that client, such documents are clearly within the
client’s control.” Am. Soc’y For Prevention of Cruelty to Animals v. Ringling Bros. and Barnum
& Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006)(Facciola, M.J.). See Poppino v. Jones Store
Co., 1 F.R.D. 215, 219 (W.D. Mo. 1940)(Otis, J.)(“It is quite true that if an attorney for a party
comes into possession of a document as attorney for that party his possession of the document is
the possession of the party.” (emphasis in original)). Consequently, a party may be required to
produce a document that it has given to its attorney when the document relates to the attorney’s
representation of that client on a specific matter. See Ruppert v. Repper (In re Ruppert), 309 F.2d
97, 98 (6th Cir. 1962)(per curiam); Hanson v. Garland S.S. Co., 34 F.R.D. 493, 495-96 (N.D. Ohio
1964)(Connell, J.)(concluding that witness statements taken by a party’s attorney in preparation of
the case were within the party’s control and subject to production under rule 34 on a proper
showing);

Kane

v.

News

Syndicate

Co.,

1

F.R.D.

738,

738-39

(S.D.N.Y.

1941)(Mandelbaum, J.)(determining that a plaintiff in an action for copyright infringement could
require the defendants’ attorneys to produce a document from which the plaintiff hoped to ascertain
whether material had been obtained from his copyrighted works).
The mere fact, however, that the attorney for a party has possession of a document
does not make his possession of the document the possession of the party. The
paper may be one of his private papers which he had before the relation of attorney
and client was established. It is inconceivable that he should be required to produce
such a paper for the inspection of his client’s adversary. The paper which he has in
his possession may be the property of some other client. It is inconceivable that he
should be compelled to produce the document belonging to another client because
the adversary of one of his clients demands it.
Poppino v. Jones Store Co., 1 F.R.D. at 219. See Hobley v. Burge, 433 F.3d 946, 949-52 (7th Cir.
2006)(observing that a party may not have had control over its former attorney’s documents);
Ontario Inc. v. Auto Enters., Inc., 205 F.R.D. 195 (E.D. Mich. 2000)(Duggan, J.). Simply put, if
a person, corporation, or a person’s attorney or agent can pick up a telephone and secure the
document, that individual or entity controls it. See Simon v. Taylor, 2014 WL 6633917, at *34
(“Control is defined as the legal right to obtain documents upon demand.”).

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LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a court to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four
corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d
337, 340 (10th Cir. 1994). The Complaint’s sufficiency is a question of law, and, when considering
a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint,
view those allegations in the light most favorable to the nonmoving party, and draw all reasonable
inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from
the alleged facts would the defendant prevail on a MTD [(motion to dismiss)].”); Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion,
we accept as true all well-pled factual allegations in a complaint and view these allegations in the
light most favorable to the plaintiff.” (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006))).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be
enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. at 555.
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts that, if
assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v.
Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has
facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility
that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;

- 19 -

the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood
of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007)(emphasis omitted). The Tenth Circuit has stated:
“[P]lausibility” in this context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs “have not nudged their claims across the line
from conceivable to plausible.” The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citations omitted)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. at 570). See Gallegos v. Bernalillo Cty. Bd. of Cty. Comm’rs, 278
F. Supp. 3d 1245, 1259 (D.N.M. 2017)(Browning, J.).
“When a party presents matters outside of the pleadings for consideration, as a general rule
‘the court must either exclude the material or treat the motion as one for summary judgment.’”
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir.
2017)(quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). There are three
limited exceptions to this general principle: (i) documents that the complaint incorporates by
reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322; (ii) ”documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity,” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th
Cir. 2002); and (iii) “matters of which a court may take judicial notice,” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. at 322. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,
861 F.3d at 1103 (holding that the district court did not err by reviewing a seminar recording and
a television episode on a rule 12(b)(6) motion, which were “attached to or referenced in the
amended complaint,” central to the plaintiff’s claim, and “undisputed as to their accuracy and
authenticity”). “[T]he court is permitted to take judicial notice of its own files and records, as well
as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568
(10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th
Cir. 2001).
In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion
with numerous documents, and the district court cited portions of those motions in granting the
[motion to dismiss].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was
improper” and that, even if “the district court did not err initially in reviewing the materials, the

- 20 -

court improperly relied on them to refute Mr. Gee’s factual assertions and effectively convert the
motion to one for summary judgment.” 627 F.3d at 1186-87. In other cases, the Tenth Circuit has
emphasized that, “[b]ecause the district court considered facts outside of the complaint . . . it is
clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v.
City of Okla. City, 153 F. App’x 529, 534 n.4 (10th Cir. 2005)(unpublished). In Douglas v.
Norton, 167 F. App’x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely
filed charge with the Equal Employment Opportunity Commission -- which the Tenth Circuit
analogized to a statute of limitations -- and concluded that, because the requirement was not
jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and
“because the district court considered evidentiary materials outside of Douglas’ complaint, it
should have treated Norton’s motion as a motion for summary judgment.” 167 F. App’x at 70405.
The Court has previously ruled that, when a plaintiff references and summarizes
defendants’ statements in a complaint, the Court cannot rely on documents containing those
statements that the defendants attach in their briefing. See Mocek v. City of Albuquerque, No.
CIV 11-1009 JB/KBM, 2013 WL 312881, at *50-51 (D.N.M. Jan. 14, 2013)(Browning, J.). The
Court reasoned that the statements were neither incorporated by reference nor central to the
plaintiff’s allegations in the complaint, because the plaintiff cited the statements only to attack the
defendant’s reliability and truthfulness. See 2013 WL 312881, at *50-51. The Court has also
previously ruled that, when determining whether to toll a statute of limitations in an action alleging
fraud and seeking subrogation from a defendant, the Court may not use interviews and letters
attached to a motion to dismiss, which show that a plaintiff was aware of the defendant’s alleged
fraud before the statutory period expired. See Great Am. Co. v. Crabtree, No. CIV 11-1129
JB/KBM, 2012 WL 3656500, at *3, *22-23 (D.N.M. Aug. 23, 2012)(Browning, J.)(“Crabtree”).
The Court in Crabtree determined that the documents did not fall within any of the Tenth Circuit’s
exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone,
as the complaint did not incorporate the documents by reference or refer to the documents.
See 2012 WL 3656500, at *22-23; Mocek v. City of Albuquerque, 2013 WL 312881, at *50
(refusing to consider statements that were not “central to [the plaintiff’s] claims”).

- 21 -

On the other hand, in a securities class action, the Court has ruled that a defendant’s
operating certification, to which plaintiffs refer in their complaint, and which was central to
whether the plaintiffs adequately alleged a loss, falls within an exception to the general rule, so the
Court may consider the operating certification when ruling on the defendant’s motion to dismiss
without converting the motion into one for summary judgment. See Genesee Cty. Emps.’ Ret.
Sys. v. Thornburg Mortg. Secs. Tr. 2006-3, 825 F. Supp. 2d 1082, 1150-51 (D.N.M.
2011)(Browning, J.). See also Sec. & Exch. Comm’n v. Goldstone, 952 F. Supp. 2d 1060, 121718 (D.N.M. 2013)(Browning, J.)(considering, on a motion to dismiss, electronic mail
transmissions referenced in the complaint as “documents referred to in the complaint,” which are
“central to the plaintiff’s claim” and whose authenticity the plaintiff did not challenge); Mata v.
Anderson, 760 F. Supp. 2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents
outside of the complaint because they were “documents that a court can appropriately view as
either part of the public record, or as documents upon which the Complaint relies, and the
authenticity of which is not in dispute”).
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the
initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party’s
case.’”

Herrera v. Santa Fe Pub. Sch., 956 F. Supp. 2d 1191, 1221 (D.N.M.

2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).
Before the court can rule on a party’s motion for summary judgment, the moving
party must satisfy its burden of production in one of two ways: by putting evidence
into the record that affirmatively disproves an element of the nonmoving party’s
case, or by directing the court’s attention to the fact that the non-moving party lacks
evidence on an element of its claim, “since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears
the burden of proof at trial, the nonmovant “must go beyond the pleadings and
designate specific facts to make a showing sufficient to establish the existence of
an element essential to his case in order to survive summary judgment.” Cardoso
v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).
Plustwik v. Voss of Nor. ASA, No. CIV 11-0757 DS, 2013 WL 1945082, at *1 (D. Utah May 9,
2013)(Sam, J.). “If the moving party will bear the burden of persuasion at trial, that party must

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support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331
(Brennan, J., dissenting)(emphasis in original).10 Once the movant meets this burden, rule 56
requires the nonmoving party to designate specific facts showing that there is a genuine issue for
trial.

See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Process Piping,
Inc., 184 F. Supp. 3d 1030 (D.N.M. 2016)(Browning, J.), the Court confronted a situation in which
the movant did not offer evidence disproving the nonmovant’s allegations, but, rather, argued,
under the second option in Celotex, that the nonmovant lacked evidence to establish an element of
its claim. See 184 F. Supp. 3d at 1075. The Court granted summary judgment for the movant,
because the nonmovant -- the plaintiff -- did not offer expert evidence supporting causation or
proximate

causation

for

its

breach-of-contract

or

breach-of-the-implied-warranty-of-

merchantability claims as New Mexico law required for those elements. 184 F. Supp. 3d at 1075.
The Court concluded that Celotex applied to the situation, and that, without the requisite evidence,
the nonmovant failed to prove “an essential element of the . . . case.” 184 F. Supp. 3d at 1075
(quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).
The party opposing a motion for summary judgment must “set forth specific facts showing
that there is a genuine issue for trial as to those dispositive matters for which it carries the burden
of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal
quotation marks omitted)(quoting Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912
F.2d at 1241)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations

10

Although the Honorable William J. Brennan, Jr., Associate Justice of the Supreme Court
of the United States, dissented in Celotex, this sentence is widely understood to be an accurate
statement of the law. See 10A Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure § 2727, at 470 (3d ed. 1998)(“Although the Court issued a five-to-four decision, the
majority and dissent both agreed as to how the summary-judgment burden of proof operates; they
disagreed as to how the standard was applied to the facts of the case.”).

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(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.” Fed. R. Civ. P. 56(c)(1). It is not enough for the party opposing a properly
supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.”
Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th
Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly
supported summary judgment motion is made, the opposing party may not rest on the allegations
contained in his complaint, but must respond with specific facts showing the existence of a genuine
factual issue to be tried.” (internal quotation marks omitted)(quoting Coleman v. Darden, 595 F.2d,
533, 536 (10th Cir. 1979)).
Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations
unsupported by specific facts, or speculation.” Colony Nat’l Ins. v. Omer, No. CIV 07-2123 JAR,
2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Fed. R. Civ. P. 56(e); Argo
v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding
to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or
on suspicion and may not escape summary judgment in the mere hope that something will turn up
at trial.’” Colony Nat’l Ins. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853
F.2d 789, 794 (10th Cir. 1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment.
Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there
must be sufficient evidence on which the fact finder could reasonably find for the nonmoving
party. See Liberty Lobby, 477 U.S. at 251 (citing Vitkus v. Beatrice Co., 11 F.3d at 1539;
Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)). “[T]here is no
evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is merely colorable . . . or is not significantly
probative, . . . summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations
omitted)(citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968); Dombrowski
v. Eastland, 387 U.S. 82, 87 (1967)). Where a rational trier of fact, considering the record as a

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whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain
principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue
whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S.
at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary
judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind
the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S.
at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party’s
favor, and construe all evidence in the light most favorable to the nonmoving party. See Liberty
Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.”); Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999). Fourth,
the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.
There are, however, limited circumstances in which the court may disregard a party’s
version of the facts. This doctrine developed most robustly in the qualified immunity arena. In
Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court concluded that summary judgment is
appropriate where video evidence “quite clearly contradicted” the plaintiff’s version of the facts.
550 U.S. at 378-81. The Supreme Court explained:
At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts . . . .
Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec.
Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent
was driving in such fashion as to endanger human life. Respondent’s version of
events is so utterly discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by the videotape.
Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).

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The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304
(10th Cir. 2009), and explained:
[B]ecause at summary judgment we are beyond the pleading phase of the litigation,
a plaintiff’s version of the facts must find support in the record: more specifically,
“[a]s with any motion for summary judgment, when opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts.”
York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott[
v. Harris], 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511
F.3d 1255, 1258 (10th Cir. 2008).
Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads
v. Miller, 352 F. App’x 289 [, 291] (10th Cir. 2009) . . . [(unpublished),] explained that the blatant
contradictions of the record must be supported by more than other witnesses’ testimony[.]” Lymon
v. Aramark Corp., 728 F. Supp. 2d 1222, 1249 (D.N.M. 2010)(Browning, J.), aff’d, 499 F. App’x
771 (10th Cir. 2012).
LAW REGARDING CLASS CERTIFICATION UNDER RULE 23
Rule 23 sets forth the requirements for certifying a class action under the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 23. All classes must satisfy: (i) all the requirements of rule
23(a); and (ii) one of the three sets of requirements under rule 23(b), where the three sets of
requirements correspond to the three categories of classes that a court may certify. See Fed. R.
Civ. P. 23(a)-(b). The plaintiff11 bears the burden of showing that the requirements are met,
see Rex v. Owens ex rel. Okla., 585 F.2d 432, 435 (10th Cir. 1978); Pueblo of Zuni v. United
States, 243 F.R.D. 436, 444 (D.N.M. 2007)(Johnson, J.), but, in doubtful cases, class certification
is favored, see Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968)(“[T]he interests of justice
require that in a doubtful case, . . . any error, if there is to be one, should be committed in favor of
allowing the class action.”); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968)(“[W]e
hold that . . . rule [23] should be given a liberal rather than a restrictive interpretation, and that
[denying certification] is justified only by a clear showing to that [end]. . . .”). In ruling on a class
certification motion, the Court need not accept either party’s representations, but must

11

Technically, it is the party seeking certification, i.e., the movant, who bears the burden of
proof, and defendants may also move for class certification. See William B. Rubenstein, Newberg
on Class Actions § 7:20 (5th ed. 2017)(“Newberg”). As a practical matter, however, motions for
class certification are made almost exclusively by plaintiffs.

- 26 -

independently find the relevant facts by a preponderance of the evidence.12 See Rutstein v. Avis
Rent-A-Car Sys., Inc., 211 F.3d at 1234 (“Going beyond the pleadings is necessary, as a court
must understand the claims, defenses, relevant facts, and applicable substantive law in order to
make a meaningful determination of the certification issues.”). “In determining the propriety of a
class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or
will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Anderson v.
City of Albuquerque, 690 F.2d at 799. See Vallario v. Vandehey, 554 F.3d at 1267 (“We, of
course, adhere to the principle that class certification does not depend on the merits of a suit.”).
Still, the Court must conduct a rigorous analysis of the rule 23 requirements, even if the facts that
the Court finds in its analysis bear on the merits of the suit:
Rule 23 does not set forth a mere pleading standard. A party seeking class
certification must affirmatively demonstrate his compliance with the Rule -- that is,
he must be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc. We recognized in [General Telephone Co.
of the Southwest v.] Falcon[, 457 U.S. 147 (1982)] that “sometimes it may be
necessary for the court to probe behind the pleadings before coming to rest on the
certification question,” and that certification is proper only if “the trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied.
Actual, not presumed, conformance with Rule 23(a) remains
indispensable.” Frequently that “rigorous analysis” will entail some overlap with
the merits of the plaintiff’s underlying claim. That cannot be helped. The class
determination generally involves considerations that are enmeshed in the factual
and legal issues comprising the plaintiff’s cause of action. Nor is there anything
unusual about that consequence: The necessity of touching aspects of the merits in
order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar
feature of litigation.

12

As the Court has previously noted, Tenth Circuit precedent suggests that the Court must
show some level of deference to the Complaint’s factual allegations when ruling on a rule 23
motion: “The Court must accept a plaintiff’s substantive allegations as true,” but it “need not
blindly rely on conclusory allegations which parrot Rule 23,” and “may consider the legal and
factual issues presented by plaintiff’s complaints.” In re Thornburg Mortg., Inc. Sec. Litig., 912
F. Supp. 2d 1178, 1120 (D.N.M. 2012)(Browning, J.)(citing Shook v. El Paso Cty., 386 F.3d 963,
968 (10th Cir. 2004); J.B. v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999); Eisen v. Carlisle
& Jacquelin, 417 U.S. at 178). Since the Court’s statement in In re Thornburg Mortgage, Inc.
Securities Litigation, however, the Tenth Circuit issued an opinion stating that district courts
should apply a “strict burden of proof” to class certification issues. Wallace B. Roderick
Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir. 2013). This request is
consistent with the general trend in the federal judiciary toward using an ordinary preponderance
standard to find facts at the class certification stage. See, e.g., Teamsters Local 445 Freight Div.
Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008); In re Hydrogen Peroxide
Litig., 552 F.3d 305, 318-20 (3d Cir. 2008); Newberg § 7.21 (tracing the shift in the case law from
deferring to plaintiffs’ representations to adopting an ordinary preponderance standard, and
disclaiming the Court’s statement from In re Thornburg Mortgage, Inc. Securities Litigation -- a
statement that earlier versions of the treatise espoused). Thus, although the Tenth Circuit has not
yet explicitly adopted the preponderance standard for fact-finding in class certification analyses,
it most likely will, and the Court will employ that standard here.

- 27 -

Wal-Mart, 564 U.S. at 350-52 (citations omitted). In a subsequent, seemingly contradictory
admonition, however, the Supreme Court cautioned district courts not to decide the case’s merits
at the class certification stage:
Although we have cautioned that a court’s class-certification analysis must be
“rigorous” and may “entail some overlap with the merits of the plaintiff’s
underlying claim,” Rule 23 grants courts no license to engage in free-ranging merits
inquiries at the certification stage. Merits questions may be considered to the extent
-- but only to the extent -- that they are relevant to determining whether the Rule 23
prerequisites for class certification are satisfied.
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 465-66 (2013)(citations omitted). To
reconcile these two directives, the Court will find facts for the purposes of class certification by
the preponderance of the evidence, but will allow the parties to challenge these findings during the
subsequent merits stage of this case. This approach is analogous to preliminary injunction practice,
and many Courts of Appeals have endorsed it. See Abbott v. Lockheed Martin Corp., 725 F.3d
803, 810 (7th Cir. 2013); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313 (3d Cir.
2008); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004). Because of the res
judicata effect a class judgment has on absent parties, a court may not simply accept the named
parties’ stipulation that class certification is appropriate, but must conduct its own independent
rule 23 analysis. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620-22 (1997). In taking
evidence on the question of class certification, the Federal Rules of Evidence apply, albeit in a
relaxed fashion. See Anderson Living Tr. v. WPX Energy Prod. LLC, 306 F.R.D. 312, 378 n.39
(D.N.M. 2015)(Browning, J.).
1.

Rule 23(a).

All classes must satisfy the prerequisites of rule 23(a):
(a)

Prerequisites. One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately protect
the interests of the class.

Fed. R. Civ. P. 23(a). “A party seeking to certify a class is required to show . . . that all the
requirements of [rule 23(a)] are clearly met.” Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.

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1988). “Although the party seeking to certify a class bears the burden of proving that all the
requirements of Rule 23 are met, the district court must engage in its own ‘rigorous analysis’ of
whether ‘the prerequisites of Rule 23(a) have been satisfied.’” Shook v. El Paso Cty., 386 F.3d
963, 968 (10th Cir. 2004)(quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 161, and citing
Reed v. Bowen, 849 F.2d at 1309). These four requirements are often referenced as numerosity,
commonality, typicality, and adequacy, respectively. See Fed. R. Civ. P. 23(a).
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). Even “factual differences in the claims of the individual putative class
members should not result in a denial of class certification where common questions of law exist.”
In re Intelcom Grp. Sec. Litig., 169 F.R.D. 142, 148 (D. Colo. 1996)(Daniel, J.). See Adamson v.
Bowen, 855 F.2d 668, 676 (10th Cir. 1988)(“That the claims of individual putative class members
may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the
application of a common policy.”); Lopez v. City of Santa Fe, 206 F.R.D. 285, 289 (D.N.M.
2002)(Vázquez, J.)(“Commonality requires only a single issue common to the class, and the fact
that ‘the claims of individual putative class members may differ factually should not preclude
certification under Rule 23(b)(2) of a claim seeking the application of a common policy.’”
(citations omitted)(citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996); Adamson
v. Bowen, 855 F.2d at 676)). A single common question will suffice to satisfy rule 23(a)(2), but
the question must be one “that is central to the validity of each one of the claims.” Wal-Mart, 564
U.S. at 349. “Where the facts as alleged show that Defendants’ course of conduct concealed
material information from an entire putative class, the commonality requirement is met.” In re
Oxford Health Plans, Inc. Sec. Litig., 191 F.R.D. 369, 374 (S.D.N.Y. 2000)(Brieant, J.).
The commonality requirement was widely perceived to lack teeth before the Supreme
Court’s decision in Wal-Mart, which grafted the following requirements onto rule 23(a)(2): (i) that
the common question is central to the validity of each claim that the proposed class brings; and
(ii) that the common question is capable of a common answer. See Wal-Mart, 564 U.S. at 348-52.
In that case, a proposed class of about 1.5 million current and former Wal-Mart employees sought
damages under Title VII for Wal-Mart’s alleged gender-based discrimination. See 564 U.S. at
342. Wal-Mart, however, had no centralized company-wide hiring or promotion policy, instead
opting to leave personnel matters to the individual store managers’ discretion. See 564 U.S. at

- 29 -

343-45. The plaintiffs argued that, although no discriminatory formal policy applied to all
proposed class members, “a strong and uniform ‘corporate culture’ permits bias against women to
infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s
thousands of managers -- thereby making every [proposed class member] the victim of one
common discriminatory practice.” 564 U.S. at 345. The Supreme Court disagreed that such a
theory constitutes a common question under rule 23(a)(2).
The crux of this case is commonality -- the rule requiring a plaintiff to show
that “there are questions of law or fact common to the class.” Rule 23(a)(2). That
language is easy to misread, since “[a]ny competently crafted class complaint
literally raises common ‘questions.’” Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-132 (2009). For example: Do all of
us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over
pay? Is that an unlawful employment practice? What remedies should we get?
Reciting these questions is not sufficient to obtain class certification. Commonality
requires the plaintiff to demonstrate that the class members “have suffered the same
injury,” [Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 157]. This does not mean
merely that they have all suffered a violation of the same provision of law. Title
VII, for example, can be violated in many ways -- by intentional discrimination, or
by hiring and promotion criteria that result in disparate impact, and by the use of
these practices on the part of many different superiors in a single company. Quite
obviously, the mere claim by employees of the same company that they have
suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no
cause to believe that all their claims can productively be litigated at once. Their
claims must depend upon a common contention -- for example, the assertion of
discriminatory bias on the part of the same supervisor. That common contention,
moreover, must be of such a nature that it is capable of classwide resolution -- which
means that determination of its truth or falsity will resolve an issue that is central
to the validity of each one of the claims in one stroke.
What matters to class certification . . . is not the raising of
common “questions” -- even in droves -- but, rather the capacity of
a classwide proceeding to generate common answers apt to drive the
resolution of the litigation. Dissimilarities within the proposed class
are what have the potential to impede the generation of common
answers.
Wal-Mart, 564 U.S. at 349-50 (emphasis in original)(quoting Nagareda, supra, at 132). In EQT
Production Co. v. Adair, 764 F.3d 347 (4th Cir. 2011), the United States Court of Appeals for the
Fourth Circuit stated:
We first review the aspects of the district court’s analysis that apply to all
five royalty underpayment classes.
At bottom, the district court believed that both the commonality and
predominance requirements of Rule 23 were satisfied by the same basic fact: the
defendants employed numerous uniform practices related to the calculation and
payment of CBM [coalbed methane gas] royalties. These common practices are
not irrelevant to Rule 23(b)’s predominance requirement. But we hold that the
district court abused its discretion by failing to consider the significance of this
common conduct to the broader litigation.

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The district court identified numerous common royalty payment practices.
For example, it noted that EQT sells all of the CBM it produces in Virginia to an
affiliate, EQT Energy, and that “all royalty owners within the same field have been
paid royalties based on the same sales price for the CBM.” With respect to CNX,
it noted that CNX “has uniform policies and procedures which governed its
calculation of CBM revenues,” and that “it has deducted severance and license
taxes when calculating royalties since January 1, 2004.”
That the defendants engaged in numerous common practices may be
sufficient for commonality purposes. As noted above, the plaintiffs need only
demonstrate one common question of sufficient importance to satisfy Rule
23(a)(2).
764 F.3d at 366 (citations omitted).
In Wal-Mart, the Honorable Antonin Scalia, former Associate Justice of the Supreme Court
of the United States, stated: “Wal-Mart is entitled to individualized determinations of each
employee’s eligibility for backpay.” 564 U.S. at 366. From this observation, he then concluded:
Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge
or modify any substantive right,” 28 U.S.C. § 2072(b), a class cannot be certified
on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to
individual claims. And because the necessity of that litigation will prevent backpay
from being “incidental” to the classwide injunction, respondents’ class could not
be certified even assuming, arguendo, that “incidental” monetary relief can be
awarded to a 23(b)(2) class.
Wal-Mart, 131 U.S. at 367. Thus, the common question or questions cannot be “incidental,” nor
can the plaintiff submit a long list of “incidental” questions or issues, and say that they predominate
over the real issues to be used.
2.

Rule 23(b).

Once the court concludes that the threshold requirements have been met, “it must then
examine whether the class falls within at least one of three categories of suits set forth in Rule
23(b).” Adamson v. Bowen, 855 F.2d at 675. See DG ex rel. Stricken v. Devaughn, 594 F.3d
1188, 1199 (10th Cir. 2010)(“In addition to satisfying Rule 23(a)’s requirements, the class must
also meet the requirements of one of the types of classes described in subsection (b) of Rule 23.”).
Rule 23(b) provides that a class action is appropriate if the threshold requirements are satisfied,
and the case falls into one or more of three categories:
(b)

Types of Class Actions. A class action may be maintained if Rule 23(a) is
satisfied and if:
(1)

prosecuting separate actions by or against individual
putative class members would create a risk of:
(A)

inconsistent or varying adjudications with
respect to individual putative class members

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that would establish incompatible standards
of conduct for the party opposing the class; or
(B)

adjudications with respect to individual
putative class members that, as a practical
matter, would be dispositive of the interests
of the other members not parties to the
individual
adjudications
or
would
substantially impair or impede their ability to
protect their interests;

(2)

the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole; or

(3)

the court finds that the questions of law or fact common to
putative class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these
findings include:
(A)

the putative class members’ interests in
individually controlling the prosecution or
defense of separate actions;

(B)

the extent and nature of any litigation
concerning the controversy already begun by
or against putative class members;

(C)

the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and

(D)

the likely difficulties in managing a class
action.

Fed. R. Civ. P. 23(b). “Only one of rule 23(b)’s subdivisions must be satisfied to meet the classaction requirements.” Gonzales v. City of Albuquerque, No. CIV 09-0520 JB/RLP, 2010 WL
4053947, at *11 (D.N.M. Aug. 21, 2010)(Browning, J.)(citing Carpenter v. Boeing, Co., 456 F.3d
1183, 1187 (10th Cir. 2006)(stating that the district court must determine whether a suit “falls
within one of the categories of actions maintainable as class actions”)).
The three categories of class actions -- really four, as rule 23(b)(1) contains two
subcategories, known as (b)(1)(A) and (b)(1)(B) class actions -- are not of equal utility. Class
actions under (b)(1) can be certified only in very particular circumstances. Class actions under
(b)(2) are broadly available, but are only capable of seeking injunctive or declaratory relief, and
not damages. Far and away the most controversial class action category, (b)(3), can be brought
for class-wide damages, injunctive relief, declaratory relief, or any combination thereof. Class

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actions under (b)(3) always require notice to all proposed class members of certification of the
class, and those individuals must be given the opportunity to opt out if they so desire. See Fed. R.
Civ. P. 23(c)(2)(B); Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 812 (1985)(“[W]e hold that due
process requires at a minimum that an absent plaintiff be provided with an opportunity to remove
himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to
the court.”). The other class action categories, however, are ordinarily mandatory, and neither
notice nor opportunity to opt out needs to be given. See Fed. R. Civ. P. 23(c)(2)(B); Phillips Petrol.
Co. v. Shutts, 472 U.S. at 811 n.3 (limiting the constitutional requirement of an opt-out notice “to
those class actions which seek to bind known plaintiffs concerning claims wholly or predominately
for money judgments”). The Court will focus on the most important form of class action, the
(b)(3) damages class action.13

13

The Court will briefly address the other class-action types. Rule 23(b)(1) contains two
subcategories of class action, (b)(1)(A) actions and (b)(1)(B) actions; a class need satisfy the
requirements of only one to be certified. See Fed. R. Civ. P. 23(b)(1). Class actions under
(b)(1)(A) are designed to avoid the situation in which a defendant subject to suit by multiple
plaintiffs is ordered to undertake incompatible courses of conduct as a result of the non-centralized
nature of the adjudication. See Fed. R. Civ. P. 23(b)(1)(A). “Incompatible” means more than
simply inconsistent. A situation in which, for example, a defendant was ordered to pay ten
thousand dollars to a plaintiff in one case, was ordered to pay ten million dollars to another plaintiff
in an identical or similar case, and was found to not be at fault at all in yet another case, may be
inconsistent, but it does not create “incompatible standards of conduct for the party opposing the
class.” Fed. R. Civ. P. 23(b)(1)(A). Such alleged inconsistency is a normal and expected part of
the system of individualized adjudication used by the judiciary to apply a uniform set of laws to
varied factual settings. What (b)(1)(A) is designed to avoid is injunctive or declaratory
“whipsawing,” in which, e.g., one court orders a school district to close an underperforming innercity school and bus its students to suburban schools, and another court orders the district to keep
the school open and bus suburban students in to the school. Class actions under (b)(1)(B) serve a
similar role, but apply when varying adjudications would result in practically -- rather than legally
-- incompatible judgments. See Fed. R. Civ. P. 23(b)(1)(B). Rule 23(b)(1)(B) applies when the
defendant has possession or control of a res -- a pot of money or thing that constitutes the relief
that the proposed class seeks -- and the relief sought by all the individual members of the proposed
class would more than exhaust the res. For example, if a Ponzi scheme operator took ten billion
dollars of investors’ money, and, upon law enforcement’s discovery of the scheme, had only six
billion dollars remaining, then the individual investors’ claims to recover their rightful share would
add up to four billion dollars more than existed in the res. Thus, the court might certify a (b)(1)(B)
class action to ensure that the custodian of the res does not pay out the entire res to the first
investors to file suit, but, instead, distributes the res fairly among all investors.
The two subcategories of (b)(1) class action have other things in common as well. Both
exist, in a sense, for the benefit of the defendant -- at least relative to (b)(2) and (b)(3) class actions
-- and are rarely brought, in part because plaintiffs have little incentive to bring them. In the
(b)(1)(B) example, each investor hopes to recover the full value of his or her investment, not a
sixty-percent value, and thus is incentivized to file as an individual. In the (b)(1)(A) example, the
plaintiff seeking to close down the school (i) does not care about the inconsistent obligations of
the school district, and (ii) would rather not be joined in a class action with plaintiffs who want to
keep the school open. Last, (b)(1) class actions, along with (b)(2) class actions, are mandatory: if
certified, no person covered under the class definition may opt out of it or pursue his or her own
individual claim. As such, no notice needs to be given to the class members that they are part of

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ongoing litigation, although the certifying court may elect to direct notice in appropriate
circumstances. See Fed. R. Civ. P. 23(c)(2)(A). Class actions under (b)(2) provide for injunctive
or declaratory relief when a defendant has “acted or refused to act on grounds that apply generally
to the class.” Fed. R. Civ. P. 23(b)(2).
The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory
remedy warranted -- the notion that the conduct is such that it can be enjoined or
declared unlawful only as to all of the class members or as to none of them.”
Nagareda, supra, at 132. In other words, Rule 23(b)(2) applies only when a single
injunction or declaratory judgment would provide relief to each member of the
class. It does not authorize class certification when each individual class member
would be entitled to a different injunction or declaratory judgment against the
defendant. Similarly, it does not authorize class certification when each class
member would be entitled to an individualized award of monetary damages.
Wal-Mart, 564 U.S. at 360-61 (emphasis in original). The (b)(2) class action was invented for the
purpose of facilitating civil rights suits, and much of its use is in that field today. See Newberg
§ 4:26. The (b)(2) class action allows civil rights litigants to advocate on behalf of all similarly
situated individuals, such as a disenfranchised black voter representing a class of all black voters
within an unconstitutionally drawn district or a jail inmate representing all inmates in an
overcrowding case. Anyone familiar with the nation’s seminal civil rights cases, however, knows
that many of them are not brought as class actions, which raises a question:
[W]hy would anyone ever bring one? . . . Th[is] inquiry is generated because if an
individual litigant pursues an individual case for injunctive relief and prevails, she
can generally get all of the remedy that she needs without going through the hurdles
of certifying a class. For example, to return to Brown v. Board of Education, once
Linda Brown prevailed on her race discrimination claim, her remedy -- a
desegregated school -- was hers to pursue. Although that remedy would affect
many other persons not a part of her litigation, hence making class certification
appropriate, there is no requirement that to secure that remedy, she had to file a
class action.
Nonetheless, social change advocates tend to pursue class certification
under Rule 23(b)(2) for several reasons. First, and perhaps most importantly, Linda
Brown will likely graduate from school long before her case ends; if hers is simply
an individual action, it will become moot and risk dismissal. Class certification,
however, constitutes an exception to the mootness doctrine in certain
circumstances. Second, the scope of the plaintiff’s relief is likely augmented by
certifying a class. It is arguable that all that Linda Brown would have been able to
secure as a remedy for her individual claim was a desegregated school for herself,
not for students throughout the entire school district; there is some relationship
between the scope of the class and the scale of the remedy. Third, it is often the
case that the attorneys pursuing civil rights actions are doing so as public interest
lawyers paid by an organization like the NAACP Legal Defense Fund or the
American Civil Liberties Union (ACLU); they may therefore have a financial
incentive to pursue a class’s case rather than a series of individual cases as they
have limited resources, and the economies of scale may argue for a class action suit.
Most generally, many civil rights cases are brought as class suits because the
attorneys and clients pursuing them conceptualize their efforts in group, not
individual, terms. Thus, while an individual civil rights plaintiff might be able to
secure the relief that she seeks without a (b)(2) class, a series of factors may
encourage the pursuit of one.
Newberg § 4:26 (footnotes omitted). Like (b)(1) class actions, (b)(2) class actions are mandatory
-- individuals covered under the class definition may not opt out -- and do not require notice to be
given to the class. See Fed. R. Civ. P. 23(c)(2)(A).

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To satisfy rule 23(b)(3), the court must find “that the questions of law or fact common to
the members of the class predominate over any questions affecting only individual members, and
that a class action is superior to other available methods for the fair and efficient adjudication of
the controversy.” Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) provides that “[t]he matters pertinent to
these findings include”: (i) the class members’ interest in individually controlling the prosecution
or defense of separate actions; (ii) the extent and nature of any litigation concerning the
controversy already commenced by or against members of the class; (iii) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum; and (iv) the
difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P.
23(b)(3)(A)-(D).
Rule 23(b)(3)’s first requirement is that questions common to the class predominate over
those that are individualized. See Fed. R. Civ. P. 23(b)(3). A question is common when “the same
evidence will suffice for each member to make a prima facie showing,” Blades v. Monsanto Co.,
400 F.3d 562, 566 (8th Cir. 2005)(citing In re Visa Check/MasterMoney Antitrust Litig., 208 F.3d
124, 136-40 (2d Cir. 2001)), or when the issue is “susceptible to generalized, class-wide proof,”
In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006). A question is individual
when “the members of a proposed class will need to present evidence that varies from member to
member.” Blades v. Monsanto Co., 400 F.3d at 566. Although a case need not present only
common questions to merit certification, and the presence of some individual questions does not
destroy predominance, the rule 23(b)(3) predominance requirement is much stricter than the rule
23(a)(1) commonality requirement: the latter requires only that a common question or questions
exist; the former requires that the common question or questions predominate over the individual
ones. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24; In re Thornburg Mortg., Inc. Sec.
Litig., 912 F. Supp. 2d 1178, 1225 (D.N.M. 2012)(Browning, J.)(“The predominance criterion of
rule 23(b)(3) is ‘far more demanding’ than rule 23(a)(2)’s commonality requirement.”). As the
Tenth Circuit, addressing a Title VII claim, put it:
The myriad discriminatory acts that Plaintiffs allege (e.g., failure to promote, failure
to train, unequal pay, disrespectful treatment, etc.) each require independent legal
analysis, and similarly challenge the predominance requirement of Rule 23(b)(3) if
not also the commonality requirement of Rule 23(a).
....

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Although we do not rest our decision upon Rule 23(a), cases that
interpret . . . the commonality requirement of Rule 23(a) illustrate the instant
Plaintiffs’ inability to satisfy Rule 23(b)(3)’s “far more demanding” requirement
that common issues predominate.
Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir. 2004)(footnote omitted).
The predominance question applies to both macro damages -- the total class damages -and to micro damages -- the individual damages. In Comcast Corp. v. Behrend, 569 U.S. 27
(2013), the Supreme Court held that it could not accept the regression model which the plaintiffs’
expert had developed as evidence that damages were susceptible of measurement across an entire
class -- as rule 23(b)(3) requires. The plaintiffs argued four theories of antitrust violations; one
theory was that Comcast Corp.’s activities had an antitrust impact, because Comcast Corp.’s
activities reduced the level of competition from “overbuilders,” companies that build competing
cable networks in areas where an incumbent cable company already operates. 569 U.S. at 31. The
district court found, among other things, that the damages resulting “from overbuilder-deterrence
impact could be calculated on a classwide basis.” 569 U.S. at 31-32.
To establish such damages, [the plaintiffs relied] solely on the testimony of
Dr. James McClave. Dr. McClave designed a regression model comparing actual
cable prices in the Philadelphia [Designated Market Area] with hypothetical prices
that would have prevailed but for [Comcast Corp.’s] allegedly anticompetitive
activities. The model calculated damages of $875,576,662.00 for the entire class.
As Dr. McClave acknowledged, however, the model did not isolate damages
resulting from any one theory of antitrust impact. The district court nonetheless
certified the class.
569 U.S. at 31-32 (citations omitted).
The United States Court of Appeals for the Third Circuit affirmed the district court
decision. The Third Circuit concluded that the plaintiffs “provided a method to measure and
quantify damages on a classwide basis,” finding it unnecessary to decide “whether the
methodology was a just and reasonable inference or speculation.” 569 U.S. at 32 (quoting 655
F.3d 182, 206 (3d Cir. 2011)). The Supreme Court granted certiorari on the question of “[w]hether
a district court may certify a class action without resolving whether the plaintiff class had
introduced admissible evidence, including expert testimony, to show that the case is susceptible to
awarding damages on a class-wide basis.” 569 U.S. at 39. Justice Scalia criticized the Third
Circuit’s reluctance to entertain arguments against the plaintiffs’ damages model “simply because
those arguments would also be pertinent to the merits determination.” 569 U.S. at 34. Justice
Scalia said that

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it is clear that, under the proper standard for evaluating certification, respondents’
model falls far short of establishing that damages are capable of measurement on a
classwide basis. Without presenting another methodology, respondents cannot
show Rule 23(b)(3) predominance: Questions of individual damage calculations
will inevitably overwhelm questions common to the class.
569 U.S. at 34. Justice Scalia stated that, under the Third Circuit’s logic, “at the class-certification
stage, any method of measurement is acceptable so long as it can be applied classwide, no matter
how arbitrary the measurements may be. Such a proposition would reduce rule 23(b)(3)’s
predominance requirement to a nullity.” 569 U.S. at 35 (emphasis in original).
It is clear that Comcast Corp. v. Behrend applies to classwide damages. It is less clear that
Comcast Corp. v. Behrend’s language applies to the determination of individual damages. There
are three ways that the Court could deal with Comcast Corp. v. Behrend and the determination of
individual damage awards. First, the Court could decide that Comcast Corp. v. Behrend applies
only to classwide damages and is not controlling at all in the determination of individual damages.
Second, the Court could decide that everything that Justice Scalia said about classwide damages
also applies to the determination of individual damages. Third, the Court could decide that Justice
Scalia said some things relating to the determination of individual damages, but not the same things
that apply to classwide damages. As to the first option, while much could be said of limiting
Justice Scalia’s opinion to classwide damages -- even from the language of the opinion and from
the wording of the question presented -- the Court is reluctant to say that it has nothing to say that
might be relevant to the determination of individual damages awards. Some of Justice Scalia’s
concerns about admissible evidence to determine damages -- whether classwide or individual
damage awards -- still seem relevant to whether damages are classwide or individual. While
Justice Scalia was not addressing the determination of individual damage awards, some of what
he said -- and how he said it -- causes the Court to be cautious in determining a methodology for
calculating individual damage awards. On the other hand, the Court is not convinced that it should
or even can apply Comcast Corp. v. Behrend’s language to the individual determination of
damages as it does to classwide damages. The dissent stated that “[r]ecognition that individual
damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh
universal.” 569 U.S. at 42 (Ginsburg, J., dissenting). Justice Scalia did not refute this proposition,
and the Court has no reason to think the dissent’s statement -- which is accurate -- does not remain
good law. Accordingly, just because each plaintiff and class member may get a different amount

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and there has to be a separate calculation of each plaintiff’s damages does not defeat class
certification.
What the Court thinks that Comcast Corp. v. Behrend says that is relevant to the individual
determination of damages is threefold. First, at the class certification stage, the Court cannot
ignore how individual damages, if any are appropriate, are to be decided. In other words, the Court
cannot ignore the possible complexities of the individual damages determinations in making the
predominance calculation. A class can have individual damage calculations, but the Court has to
look at the issues of individual damages calculations at the class certification stage. Second, the
methodology for all class members needs to be common or, if there are different methodologies
for some plaintiffs and class members, the Court must take these differences into account at the
class certification stage in the predominance analysis. In other words, if the Court is going to use
different methodologies for different class members, it must decide: (i) whether these differences
create questions affecting only individual members; and (ii) whether these individual questions
predominate over the questions of law or fact common to the class. Third, even if the methodology
is common to the class, the Court must decide whether it will operate in a consistent way for each
individual class member. The law and methodology may be the same, but when applied to the
class, they may create issues for one class member or group of class members that they do not
create for other class members or groups. The predominance analysis must identify precisely the
common issues and uncommon issues that application of the class methodology or methodologies
raise, and then determine whether, in the total issue mix, the common issues predominate over the
individual ones.
A defendant’s desire to assert individual counterclaims14 does not typically defeat
predominance. See Phillips Petrol. Co. v. Shutts, 472 U.S. at 810; Allapattah Servs., Inc. v. Exxon
Corp., 333 F.3d 1248, 1260 (11th Cir. 2003). A defendant’s desire to assert individual affirmative
defenses also often does not defeat predominance, see Smilow v. Sw. Bell Mobile Sys., Inc., 323
F.3d 32, 39 (1st Cir. 2003)(“Courts traditionally have been reluctant to deny class action status

14

Generally speaking, counterclaims, even common ones, are not permitted against absent
class members at all. See Fager v. CenturyLink Commc’ns, LLC, 854 F.3d 1167, 1172 (10th Cir.
2016)(“[A]bsent plaintiff class members . . . are almost never subject to counterclaims or crossclaims . . . .” (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. at 810)).

- 38 -

under Rule 23(b)(3) simply because affirmative defenses may be available against individual
members.”), but this statement is less true after Wal-Mart.15 Other recurring individual issues
present more serious challenges to predominance, such as: (i) the prima facie element of reliance
or due diligence in common-law fraud and other cases;16 (ii) differences in the applicable law in a

15

Limitations defenses are an especially common breed of affirmative defense. Limitations
defenses generally present common questions, rather than individual ones, because a limitations
defense’s merits rest on two facts: (i) the date on which the claim accrued; and (ii) the date on
which the action was filed. Fact (ii) is a common issue in virtually every class action, because the
entire class gets credit for the filing date of the class action complaint. Fact (i) may not be truly
common, but it might be, if, for example, the discovery rule delays accrual of a claim until the
cause of action is discovered, and all class members’ causes of action are discovered at the same
time, or if a single act by the defendant breached contracts with all class members at once. Even
if the question is individual -- for example, if a class is defined as only encompassing preexisting
filed claims, or if the discovery rule might delay the accrual of the claim for some class members
but not others -- it still typically does not defeat predominance.
Although a necessity for individualized statute-of-limitations determinations
invariably weighs against class certification under Rule 23(b)(3), we reject any per
se rule that treats the presence of such issues as an automatic disqualifier. In other
words, the mere fact that such concerns may arise and may affect different class
members differently does not compel a finding that individual issues predominate
over common ones. As long as a sufficient constellation of common issues binds
class members together, variations in the sources and application of statutes of
limitations will not automatically foreclose class certification under Rule 23(b)(3).
Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue
test.
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000)(citing 5 James W.
Moore et al., Moore’s Federal Practice ¶ 23.46[3] (3d ed. 1999)). See Newberg § 4:57 (confirming
that the above passage “reflects the law in most circuits” (footnote omitted)).
16

The advisory committee’s notes to rule 23 state that

a fraud perpetrated on numerous persons by the use of similar misrepresentations
may be an appealing situation for a class action, and it may remain so despite the
need, if liability is found, for separate determination of the damages suffered by
individuals within the class. On the other hand, although having some common
core, a fraud case may be unsuited for treatment as a class action if there was
material variation in the representations made or in the kinds or degrees of reliance
by the persons to whom they were addressed.
Fed. R. Civ. P. 23 advisory committee’s notes (citing Miller v. Nat’l City Bank of N.Y., 166 F.2d
723 (2d Cir. 1948); Oppenheimer v. F. J. Young & Co., Inc., 144 F.2d 387 (2d Cir. 1944)).
Despite the generalized concern about the individual nature of the
misrepresentations and/or reliance inquiry in fraud cases, there are at least three
recurring situations in which courts have found common issues predominant in
fraud cases: (1) those in which reliance is common across the class; (2) those in
which courts have excused a showing of individual reliance; and (3) those in which
the underlying law does not require a showing of individual reliance.
Newberg § 4:58. Reliance may be a common issue when the same misrepresentation is made to
the entire class; some Courts of Appeals have held that written misrepresentations may be common
issues while oral misrepresentations are presumed to be individualized. See, e.g., Moore v.
PaineWebber, Inc., 306 F.3d 1247, 1253 (2d Cir. 2002)(“[T]he Third, Fourth, Fifth, Sixth, and

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multi-state, state-law-based class actions,17 see Castano v. Am. Tobacco Co., 84 F.3d 734, 741
(5th Cir. 1996); and (iii) the need to determine individual personal injury damages, which presents

Seventh Circuits . . . have held that oral misrepresentations are presumptively individualized.”); In
re Prudential Ins. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir.
1998)(certifying class where alleged misrepresentations were written and uniform); Spencer v.
Hartford Fin. Servs. Grp., Inc., 256 F.R.D. 284, 297 (D. Conn. 2009)(Hall, J.)(certifying class
where class definition was narrowed to include only those who had received written
communications from defendant). The requirement that plaintiffs show reliance is most often
presumed or excused in so-called fraud-on-the-market securities cases, in which class members -investors in the defendant company -- are presumed to be rational, fully informed actors who use
all of the information available to the general public, but are also presumed to not possess insider
information.
We have found a rebuttable presumption of reliance in two different circumstances.
First, if there is an omission of a material fact by one with a duty to disclose, the
investor to whom the duty was owed need not provide specific proof of reliance.
Second, under the fraud-on-the-market doctrine, reliance is presumed when the
statements at issue become public. The public information is reflected in the market
price of the security. Then it can be assumed that an investor who buys or sells
stock at the market price relies upon the statement.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 159 (2008)(citing Affiliated Ute
Citizens of Utah v. United States, 406 U.S. 128, 153 (1972); Basic Inc. v. Levinson, 485 U.S. 224,
245 (1988)).
17

In In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), the Honorable Frank
H. Easterbrook, United States Circuit Judge for the Seventh Circuit, in an opinion that predates
Wal-Mart and Comcast, stated:
No class action is proper unless all litigants are governed by the same legal
rules. Otherwise the class cannot satisfy the commonality and superiority
requirements of Fed. R. Civ. P. 23(a), (b)(3). Yet state laws about theories such as
those presented by our plaintiffs differ, and such differences have led us to hold
that other warranty, fraud, or products-liability suits may not proceed as nationwide
classes
288 F.3d at 1015. Judge Easterbrook then discussed how variations in tires defeat class treatment:
Because these claims must be adjudicated under the law of so many
jurisdictions, a single nationwide class is not manageable. Lest we soon see a Rule
23(f) petition to review the certification of 50 state classes, we add that this
litigation is not manageable as a class action even on a statewide basis. About 20%
of the Ford Explorers were shipped without Firestone tires. The Firestone tires
supplied with the majority of the vehicles were recalled at different times; they may
well have differed in their propensity to fail, and this would require sub-subclassing
among those owners of Ford Explorers with Firestone tires. Some of the vehicles
were resold and others have not been; the resales may have reflected different
discounts that could require vehicle-specific litigation. Plaintiffs contend that many
of the failures occurred because Ford and Firestone advised the owners to
underinflate their tires, leading them to overheat. Other factors also affect heating;
the failure rate (and hence the discount) may have been higher in Arizona than in
Alaska. Of those vehicles that have not yet been resold, some will be resold in the
future (by which time the tire replacements may have alleviated or eliminated any
discount) and some never will be resold. Owners who wring the last possible mile
out of their vehicles receive everything they paid for and have claims that differ
from owners who sold their Explorers to the second-hand market during the height
of the publicity in 2000. Some owners drove their SUVs off the road over rugged

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such a challenge to predominance that class certification of mass tort claims is now exceedingly
rare, see Amchem Prods., Inc. v. Windsor, 521 U.S. at 625. There is little uniform guidance on
how to assess when common issues predominate over individual ones, and the Court’s statements
to this point have, obviously, done more to disavow various tempting but fallacious rules than they
have to set forth a usable standard.
There is currently a split of authority between the United States Courts of Appeals over the
proper way to analyze predominance. The Honorable Richard A. Posner, former United States
Circuit Judge for the United States Court of Appeals for the Seventh Circuit, concluded that the
predominance inquiry boils down to “a question of efficiency.” Butler v. Sears, Roebuck & Co.,
702 F.3d 359, 362 (7th Cir. 2012), vacated, 569 U.S. 1015 (2013). Judge Posner poses the

terrain, while others never used the “sport” or “utility” features; these differences
also affect resale prices.
Firestone’s tires likewise exhibit variability; that’s why fewer than half of
those included in the tire class were recalled. The tire class includes many buyers
who used Firestone tires on vehicles other than Ford Explorers, and who therefore
were not advised to underinflate their tires.
....
When courts think of efficiency, they should think of market models rather than
central-planning models.
Our decision in Rhone-Poulenc Rorer made this point, and it is worth
reiterating: only “a decentralized process of multiple trials, involving different
juries, and different standards of liability, in different jurisdictions” (51 F.3d at
1299) will yield the information needed for accurate evaluation of mass tort claims.
....
No matter what one makes of the decentralized approach as an original
matter, it is hard to adopt the central-planner model without violence not only to
Rule 23 but also to principles of federalism. Differences across states may be costly
for courts and litigants alike, but they are a fundamental aspect of our federal
republic and must not be overridden in a quest to clear the queue in court.
See BMW v. Gore, 517 U.S. [559, 568-73 (1996)]; Szabo[v. Bridgeport Machs.,
Inc., 249 F.3d 672 (7th Cir. 2001)](reversing a nationwide warranty class
certification); Spence v. Glock, Ges.m.b.H., 227 F.3d 308 (5th Cir. 2000)(reversing
a nationwide tort class certification); Larry Kramer, Choice of Law in Complex
Litigation, 71 N.Y.U. L. Rev. 547, 579 (1996); Linda S. Mullenix, Mass Tort
Litigation and the Dilemma of Federalization, 44 DePaul L. Rev. 755, 781 (1995);
Robert A. Sedler, The Complex Litigation Project’s Proposal for FederallyMandated Choice of Law in Mass Torts Cases: Another Assault on State
Sovereignty, 54 La. L .Rev. 1085 (1994). Tempting as it is to alter doctrine in order
to facilitate class treatment, judges must resist so that all parties’ legal rights may
be respected.
In re Bridgestone/Firestone, Inc., 288 F.3d at 1018-20.

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predominance question as: “Is it more efficient, in terms both of economy of judicial resources
and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in
separate trials?” Butler v. Sears, Roebuck & Co., 702 F.3d at 362. In Butler v. Sears, Roebuck &
Co., the Seventh Circuit reversed a district court’s denial of certification of a class of washingmachine owners who alleged that Sears’ washing machines were prone to cultivate mold and
affirmed the district court’s certification of the same class to pursue a claim that the machines’
control units were defective. See 702 F.3d at 360-61. The Seventh Circuit denied certification of
the class -- which spanned six states -- to pursue its mold claim under state breach-of-warranty
law:
A class action is the more efficient procedure for determining liability and damages
in a case such as this, involving a defect that may have imposed costs on tens of
thousands of consumers yet not a cost to any one of them large enough to justify
the expense of an individual suit. If necessary a determination of liability could be
followed by individual hearings to determine the damages sustained by each class
member (probably capped at the cost of replacing a defective washing machine -there doesn’t seem to be a claim that the odors caused an illness that might support
a claim for products liability as distinct from one for breach of warranty). But
probably the parties would agree on a schedule of damages based on the cost of
fixing or replacing class members’ mold-contaminated washing machines. The
class action procedure would be efficient not only in cost, but also in efficacy, if
we are right that the stakes in an individual case would be too small to justify the
expense of suing, in which event denial of class certification would preclude any
relief.
....
[T]he district court will want to consider whether to create different subclasses of
the control unit class for the different states. That should depend on whether there
are big enough differences among the relevant laws of those states to make it
impossible to draft a single, coherent set of jury instructions should the case ever
go to trial before a jury.
Butler v. Sears, Roebuck & Co., 702 F.3d at 362. Along with numerous other class actions pending
appeal before the Supreme Court, the Supreme Court vacated Butler v. Sears, Roebuck & Co., and
remanded it to the Seventh Circuit “for reconsideration in light of Comcast Corp. v. Behrend.”
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 797 (7th Cir. 2013). On reconsideration, the
Seventh Circuit reaffirmed its prior decision, again in an opinion that Judge Posner wrote:
Sears thinks that predominance is determined simply by counting noses:
that is, determining whether there are more common issues or more individual
issues, regardless of relative importance. That’s incorrect. An issue “central to the
validity of each one of the claims” in a class action, if it can be resolved “in one
stroke,” can justify class treatment. [Wal-Mart, 564 U.S. at 338]. That was said in
the context of Rule 23(a)(2), the rule that provides that class actions are permissible
only when there are issues common to the members of the class (as of course there
are in this case). But predominance requires a qualitative assessment too; it is not
bean counting. In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds,

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[568 U.S. at 468], the Court said that the requirement of predominance is not
satisfied if “individual questions . . . overwhelm questions common to the class,”
and in Amchem Products, Inc. v. Windsor, 521 U.S. . . . [at] 623 . . . , it said that
the “predominance inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” And in In re Inter-Op Hip Prosthesis
Liability Litigation, 204 F.R.D. 330, 345 (N.D. Ohio 2001), we read that “common
issues need only predominate, not outnumber individual issues.” . . .
As we noted in Carnegie v. Household Int’l., Inc., 376 F.3d 656, 661 (7th Cir.
2004), “the more claimants there are, the more likely a class action is to yield
substantial economies in litigation. It would hardly be an improvement to have in
lieu of this single class 17 million suits each seeking damages of $15 to
$30. . . . The realistic alternative to a class action is not 17 million individual suits,
but zero individual suits, as only a lunatic or a fanatic sues for $30” (emphasis in
original). The present case is less extreme: tens of thousands of class members,
each seeking damages of a few hundred dollars. But few members of such a class,
considering the costs and distraction of litigation, would think so meager a prospect
made suing worthwhile.
There is a single, central, common issue of liability: whether the Sears
washing machine was defective. Two separate defects are alleged, but remember
that this class action is really two class actions. In one the defect alleged involves
mold, in the other the control unit. Each defect is central to liability. Complications
arise from the design changes and from separate state warranty laws, but can be
handled by the creation of subclasses. See, e.g., Johnson v. Meriter Health Services
Employee Retirement Plan, 702 F.3d [364,] 365[ 7th Cir. 2012] (10 subclasses).
Butler v. Sears, Roebuck & Co., 727 F.3d at 801-02 (emphasis in original).18

In addition to articulating the Seventh Circuit’s construction of the predominance inquiry,
Judge Posner addressed Comcast Corp. v. Behrend’s impact on the Seventh Circuit’s case:
18

So how does the Supreme Court’s Comcast decision bear on the rulings . . . in our
first decision?
Comcast holds that a damages suit cannot be certified to proceed as a class
action unless the damages sought are the result of the class-wide injury that the suit
alleges. Comcast was an antitrust suit, and the Court said that “if [the plaintiffs]
prevail on their claims, they would be entitled only to damages resulting from
reduced overbuilder competition, since that is the only theory of antitrust impact
accepted for class-action treatment by the District Court. It follows that a model
purporting to serve as evidence of damages in this class action must measure only
those damages attributable to that theory. If the model does not even attempt to do
that, it cannot possibly establish that damages are susceptible of measurement
across the entire class for purposes of Rule 23(b)(3).” “[A] methodology that
identifies damages that are not the result of the wrong” is an impermissible basis
for calculating class-wide damages. [569 U.S. at 37](emphasis added). “For all we
know, cable subscribers in Gloucester County may have been overcharged because
of petitioners’ alleged elimination of satellite competition (a theory of liability that
is not capable of classwide proof).” And on the next page of its opinion the Court
quotes approvingly from Federal Judicial Center, Reference Manual on Scientific
Evidence 432 (3d ed. 2011), that “the first step in a damages study is the translation
of the legal theory of the harmful event into an analysis of the economic impact of
that event.” (emphasis the [Supreme] Court’s). None of the parties had even
challenged the district court’s ruling that class certification required “that the
damages resulting from . . . [the antitrust violation] were measurable ‘on a classwide basis’ through use of a ‘common methodology.’”

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The United States Court of Appeals for the Sixth Circuit handled essentially the same case
-- a class action against Sears for defective washing machines -- in In re Whirlpool Corp. FrontLoading Washing Products Liability Litigation, 678 F.3d 409 (6th Cir. 2012), and also elected to
certify the mold-based claim.19
[W]e have no difficulty affirming the district court’s finding that common questions
predominate over individual ones and that the class action mechanism is the
superior method to resolve these claims fairly and efficiently. This is especially
true since class members are not likely to file individual actions because the cost of
litigation would dwarf any potential recovery. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 617 (1997)(finding that in drafting Rule 23(b)(3), “the
Advisory Committee had dominantly in mind vindication of ‘the rights of groups
of people who individually would be without effective strength to bring their
opponents into court at all’”). Further, [as] the district court observed, any class
member who wishes to control his or her own litigation may opt out of the class
under Rule 23(b)(3)(A).

Unlike the situation in Comcast, there is no possibility in this case that
damages could be attributed to acts of the defendants that are not challenged on a
class-wide basis; all members of the mold class attribute their damages to mold and
all members of the control-unit class to a defect in the control unit.
Sears argues that Comcast rejects the notion that efficiency is a proper basis
for class certification, and thus rejects our statement that “predominance” of issues
common to the entire class, a requirement of a damages class action under Rule
23(b)(3), “is a question of efficiency.” But in support of its argument Sears cites
only the statement in the dissenting opinion in Comcast that “economies of time
and expense” favor class certification, -- a statement that the majority opinion does
not contradict. Sears is wrong to think that anything a dissenting opinion approves
of the majority must disapprove of.
Sears compares the design changes that may have affected the severity of
the mold problem to the different antitrust liability theories in Comcast. But it was
not the existence of multiple theories in that case that precluded class certification;
it was the plaintiffs’ failure to base all the damages they sought on the antitrust
impact -- the injury -- of which the plaintiffs were complaining. In contrast, any
buyer of a Kenmore washing machine who experienced a mold problem was
harmed by a breach of warranty alleged in the complaint.
Furthermore and fundamentally, the district court in our case, unlike
Comcast, neither was asked to decide nor did decide whether to determine damages
on a class-wide basis. As we explained in McReynolds v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 672 F.3d 482, 491-92 (7th Cir. 2012), a class action limited
to determining liability on a class-wide basis, with separate hearings to determine - if liability is established -- the damages of individual class members, or
homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often
be the sensible way to proceed.
Butler v. Sears, Roebuck & Co., 727 F.3d at 799-800 (emphasis in Butler v. Sears, Roebuck & Co.
but not Comcast Corp. v. Behrend, except as noted)(citations omitted).
The Sixth Circuit’s class “did not involve the other claim in [the Seventh Circuit’s] case,
the control unit claim.” Butler v. Sears, Roebuck & Co., 727 F.3d at 802.
19

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In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 678 F.3d at 421 (citation
omitted). That case was also vacated after Comcast Corp. v. Behrend, and, like the Seventh
Circuit, the Sixth Circuit reaffirmed its prior decision, fleshing out the predominance inquiry in
more detail than it had done in its prior opinion:
Whirlpool does not point to any “fatal dissimilarity” among the members of
the certified class that would render the class action mechanism unfair or inefficient
for decision-making. Instead, Whirlpool points to “a fatal similarity -- [an alleged]
failure of proof as to an element of the plaintiffs’ cause of action.” That contention,
the Supreme Court instructs, “is properly addressed at trial or in a ruling on a
summary-judgment motion. The allegation should not be resolved in deciding
whether to certify a proposed class.” Tracking the Supreme Court’s reasoning, we
conclude here that common questions predominate over any individual ones.
Simply put, this case comports with the “focus of the predominance inquiry” -- it
is “sufficiently cohesive to warrant adjudication by representation.”
In re Whirlpool Corp. Front-Loading Washing Prods. Liab. Litig., 722 F.3d 838, 859 (7th Cir.
2013)(citations omitted). The Seventh Circuit and Sixth Circuit, thus, define predominance in
much the same way: if the district court can design a mechanism for trying the case that is fair to
the defendants and more efficient than individual litigation of the same dispute, then predominance
is satisfied. See Butler v. Sears, Roebuck & Co., 727 F.3d at 802. This styling of the predominance
inquiry is in keeping with that given, many years earlier, by a leading class-action treatise:
[A] court addressing predominance must determine whether the evidence about the
putative class representative’s circumstances and the opposing evidence from the
defense will enable a jury to make across-the-board “yes” or “no” factual
determinations that fairly resolve the claims of the entire class. Where the right to
recover for each class member would “turn . . . on facts particular to each individual
plaintiff,” class treatment makes little sense. If the resolution of the common issues
devolves into an unmanageable variety of individual issues, then the lack of
increased efficiency will prohibit certification of the class.
The predominance and efficiency criteria are of course
intertwined. When there are predominant issues of law or fact,
resolution of those issues in one proceeding efficiently resolves
those issues with regard to all claimants in the class. When there are
no predominant issues of law or fact, however -- as in the instant
case -- class treatment would be either singularly inefficient, as one
court attempts to resolve diverse claims from around the country in
its own courtroom, or unjust, as the various factual and legal nuances
of particular claims are lost in the press to clear the lone court’s
docket.
McLaughlin on Class Actions § 5:23 (11th ed. 2016)(omission in original)(footnotes omitted).
Although the Seventh Circuit and the Sixth Circuit may agree about the definition of
predominance, the Third Circuit, Tenth Circuit, and United States Court of Appeals for the
Eleventh Circuit stake out a different test.

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“Whether an issue predominates can only be determined after considering
what value the resolution of the class-wide issue will have in each class member’s
underlying cause of action.” Common issues of fact and law predominate if they
“‘ha[ve] a direct impact on every class member’s effort to establish liability’ that
is more substantial than the impact of individualized issues in resolving the claim
or claims of each class member.” If “after adjudication of the classwide issues,
plaintiffs must still introduce a great deal of individualized proof or argue a number
of individualized legal points to establish most or all of the elements of their
individual claims, [their] claims are not suitable for class certification under Rule
23(b)(3).”
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Serv., Inc., 601 F.3d 1159, 1170
(11th Cir. 2010)(emphasis in original)(citations omitted).20 The Eleventh Circuit, however,

20

The Eleventh Circuit first adopted this test -- relying on district court decisions -- in 2004
in Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004), and gave renewed articulations of the
test in 2009 in Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009), and in 2010, in Sacred
Heart Health Systems, Inc. v. Humana Healthcare Services, Inc. In each case, the Eleventh Circuit
made some reference to additionally adopting a United States Court of Appeals for the Fifth Circuit
rule-of-thumb test:
An alternate formulation of this test was offered in Alabama v. Blue Bird
Body Co., 573 F.2d 309 (5th Cir. 1978). In that case, we observed that if common
issues truly predominate over individualized issues in a lawsuit, then “the addition
or subtraction of any of the plaintiffs to or from the class [should not] have a
substantial effect on the substance or quantity of evidence offered.” Put simply, if
the addition of more plaintiffs to a class requires the presentation of significant
amounts of new evidence, that strongly suggests that individual issues (made
relevant only through the inclusion of these new class members) are important.
Alabama v. Blue Bird Body Co., 573 F.2d at 322 (“If such addition or subtraction
of plaintiffs does affect the substance or quantity of evidence offered, then the
necessary common question might not be present.”). If, on the other hand, the
addition of more plaintiffs leaves the quantum of evidence introduced by the
plaintiffs as a whole relatively undisturbed, then common issues are likely to
predominate.
Klay v. Humana, Inc., 382 F.3d at 1255. See Sacred Heart Health Sys., Inc. v. Humana Military
Healthcare Serv., Inc., 601 F.3d at 1170 (“In practical terms, while ‘[i]t is not necessary that all
questions of fact or law be common,’ ‘the addition or subtraction of any of the plaintiffs to or from
the class [should not] have a substantial effect on the substance or quantity of evidence offered.’”);
Vega v. T-Mobile USA, Inc., 564 F.3d at 1270 (quoting the above portion of Klay v. Humana,
Inc.).
The Fifth Circuit, however, was not setting forth a test for when predominance is satisfied
so much as a test for when an issue is common versus individualized. The Fifth Circuit’s full quote
-- without the Eleventh Circuit’s alterations -- is:
We only point out that in a situation wherein one seeks to represent a
nationwide class in order to obtain redress for harm done from a nationwide
conspiracy consideration should be given to whether the addition or subtraction of
any of the plaintiffs to or from the class will have a substantial effect on the
substance or quantity of evidence offered. If such addition or subtraction of
plaintiffs does affect the substance or quantity of evidence offered, then the
necessary common question might not be present.
Alabama v. Blue Bird Body Co., 573 F.2d at 322 (footnote omitted).

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imposes a different, more rigorous, second step: the district court’s trial plan must spend more time
adjudicating the common questions than it does adjudicating the individual questions. The
Eleventh Circuit’s test may not be the greatest -- the Court sees little reason why negative-value
cases that can be fairly and efficiently adjudicated via class action should not be certified 21 -- but
In fairness to the Eleventh Circuit, Judge Posner’s test merges the predominance and
superiority inquiries -- effectively reading out predominance -- in negative-value cases. Thus, the
Eleventh Circuit’s test is truer to rule 23’s text than Judge Posner’s. “Predominate,” the word that
rule 23 uses, means “[t]o be of greater quantity or importance; preponderate.” Predominate, The
American Heritage Dictionary of the English Language, (5th ed. 2019),
https://www.ahdictionary.com/word/search.html?q=predominate (last visited January 22, 2019).
Rule 23’s text thus arguably suggests a direct comparison of common and individual issues, and
not -- as Judge Posner suggests -- an indirect comparison that decides the predominance question
on the basis of a fancy economic analysis. There are, however, two other rule 23 provisions whose
impact on predominance is not often discussed: (i) the issue class-action clause, see Fed. R. Civ.
P. 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with
respect to particular issues.”); and (ii) the subclassification clause, see Fed. R. Civ. P. 23(c)(5)
(“When appropriate, a class may be divided into subclasses that are each treated as a class under
this rule.”). These provisions are unfortunate for those who wish to read rule 23 as containing the
seeds of its own destruction. Rule 23(c)(4) allows for adjudication of common issues, even if these
issues do not add up to a common claim. Rule 23(c)(5) allows for collective adjudication, even if
it falls short of being completely “classwide” adjudication. Judge Posner’s test explicitly admits
of subclasses and issue classes. Even if it had not allowed for these classes, their impact in Judge
Posner’s analysis would be obvious: the district court uses the tools of subclassification and issue
classification -- along with other management tools, such as polyfurcation -- to design a classaction management plan, and then decide whether the plan is more or less efficient than separate
trials.
The impact that these provisions have on the Eleventh Circuit’s approach is less clear. The
Eleventh Circuit’s best discussion of subclasses comes from Sacred Heart Health Systems, Inc. v.
Humana Military Healthcare Services, Inc.:
21

[W]e cannot accept the district court’s proposal to use subclasses
corresponding to the hospitals’ six categories of payment clauses. We recognize
the long and venerated practice of creating subclasses as a device to manage
complex class actions, but the six subclasses proposed here mask a staggering
contractual variety. The sixth proposed subclass -- a miscellaneous residue of
numerous payment clauses that are insusceptible of ready classification -- alone is
fatal to predominance. When this “potpourri” subclass, as Humana has termed it,
is broken down into its disparate component parts, the illusion of uniformity gives
way to nearly thirty subclasses.
Common sense tells us that “[t]he necessity of a large number of subclasses
may indicate that common questions do not predominate,” Manual for Complex
Litigation § 21.23 (4th ed. 2004); see also Harding v. Tambrands Inc., 165 F.R.D.
623, 630 (D. Kan. 1996)[(Theis, J.)](“The potential for numerous different
subclasses weighs against a finding of predominance of common issues.”). Here,
the necessary recourse to a “miscellaneous” subclass readily indicates the lack of a
predominant question.
Ultimately, after examining the many individualized payment clauses
contained in the network agreements, we perceive a “distinct possibility that there
was a breach of contract with some class members, but not with other class
members.” Subclasses are no answer to this problem, meaning that the efficiency
of a class action will be lost entirely unless the hospitals are allowed “to stitch
together the strongest contract case based on language from various [contracts],
with no necessary connection to their own contract rights. The hospitals, however,

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may not lawfully “amalgamate” their disparate claims in the name of convenience.
The Rules Enabling Act, 28 U.S.C. § 2072 -- and due process -- prevents the use of
class actions from abridging the substantive rights of any party. Yet, from the
record before us, an abridgment of the defendant’s rights seems the most likely
result of class treatment. By glossing over the striking differences in the material
terms of the agreements, the district court created an “unnecessarily high risk,” of
such unlawful results, and thereby abused its discretion.
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d at 1176
(citations omitted). These statements imply that, but for the sixth “category” of payment clauses
-- really a catchall for all contracts that did not fit into one of the five real categories -- the class
would be certifiable. The only “abridgement of the defendant’s rights” that the district court’s
plan would produce would be the “amalgamat[ion]” of different contractual language into a single
category -- the sixth category. 601 F.3d at 1176 (internal quotation marks ommitted). That case,
thus, leaves open the question whether subclassification and issue certification can aid in satisfying
predominance, or if these techniques are separate from the predominance inquiry.
The Fifth Circuit staked out a clear answer to this question in its much-discussed Castano
v. American Tobacco Company, 84 F.3d 734 (5th Cir. 1996), case, deciding the issue in a way one
might expect:
Severing the defendants’ conduct from reliance under rule 23(c)(4) does not
save the class action. A district court cannot manufacture predominance through
the nimble use of subdivision (c)(4). The proper interpretation of the interaction
between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must
satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping
rule that allows courts to sever the common issues for a class trial. Reading rule
23(c)(4) as allowing a court to sever issues until the remaining common issue
predominates over the remaining individual issues would eviscerate the
predominance requirement of rule 23(b)(3); the result would be automatic
certification in every case where there is a common issue, a result that could not
have been intended.
84 F.3d at 745 n.21 (citations omitted). This logic is hardly unassailable. Namely, the result of
reading rules 23(c)(4) and (c)(5) as bearing on the predominance inquiry would not be “automatic
certification in every case where there is a common issue,” because superiority must still be
satisfied. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. If a proposed class action is superior
-- e.g., if it lacks the value to be brought on an individual basis -- and individual issues can be
pared away via rules 23(c)(4) and (c)(5) then it is not clear why certification “could not have been
intended” by the rule. Castano v. Am. Tobacco Co., 84 F.3d at 745 n.21. Moreover, it is a poor
reading of the rule’s text. Presumably, even if rules 23(c)(4) and (c)(5) are mere “housekeeping
rule[s],” they would still alleviate “likely difficulties in managing a class action.” Castano v. Am.
Tobacco Co., 84 F.3d at 745 n.21; Fed. R. Civ. P. 23(b)(3)(D). Because rule 23 directs that “[t]he
matters pertinent to these findings [predominance and superiority] include: . . . the likely
difficulties in managing a class action,” the Court, if it were writing on a clear slate would think
that rules 23(c)(4) and (c)(5) would play a part in the predominance determination, Fed. R. Civ. P.
23(b)(3), and that this result thus “could not have been intended.” Castano v. Am. Tobacco Co.,
84 F.3d at 745 n.21. The Fifth Circuit’s approach attracted the adherence of a revered jurist on the
Fourth Circuit -- although not the Fourth Circuit itself. The Honorable Paul V. Niemeyer, United
States Circuit Judge for the Fourth Circuit, endorsed the Fifth Circuit’s view in an opinion
concurring in part and dissenting in part from an opinion in which the Fourth Circuit adopted the
opposing view:
Despite the overwhelming predominance of these individualized issues and
claims over the common issue that the majority now certifies for class treatment,
the majority has adopted an inventive approach to Rule 23 that allows certification
of a class where the predominance requirement of Rule 23(b)(3) is admittedly
unmet in the context of the case as a whole. According to the majority, to require
the certified issue in this case to predominate over the individualized issues in the

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action as a whole ignores Rule 23(c)(4)(A), which it appears to view as a fourth
avenue for class certification, on equal footing with Rules 23(b)(1), 23(b)(2), and
23(b)(3). In doing so, the majority glorifies Rule 23(c)(4)(A) -- a housekeeping
rule that authorizes a court to certify for class treatment “particular issues” in a case
that otherwise satisfies Rule 23(a) and 23(b) -- with the effect of materially
rewriting Rule 23 such that Rule 23(b)(3)’s requirements no longer need be applied
to “[a]n action,” see Fed. R. Civ. P. 23(b), but rather to any single issue, no matter
how small.
Not only does the majority’s approach expand Rule 23 beyond its intended
reach, but it also creates a direct conflict with the Fifth Circuit which has held:
A district court cannot manufacture predominance through
the nimble use of subdivision (c)(4). The proper interpretation of
the interaction between subdivisions (b)(3) and (c)(4) is that a cause
of action, as a whole, must satisfy the predominance requirement of
(b)(3) in that (c)(4) is a housekeeping rule that allows courts to sever
the common issues for a class trial.
Castano v. Am. Tobacco Co., 84 F.3d [at ]745 n.21 . . . .
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003)(Niemeyer, J., concurring
in part and dissenting in part). Despite Judge Niemeyer’s concern with creating a split among the
Courts of Appeals, the United States Court of Appeals for the Second Circuit, the United States
Court of Appeals for the Ninth Circuit, and, of course, the Seventh Circuit have all held that
subclasses can be used to satisfy predominance concerns since at least 2001, two years before
Gunnells v. Healthplan Services, Inc. See Zinser v. Accufix Research Inst., Inc. 253 F.3d 1180,
1189-90, 1192 n.8 (9th Cir. 2001). See Robinson v. Metro-North Commuter R.R., 267 F.3d 147,
167-69 (2d Cir. 2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999).
The Eleventh Circuit has refrained from taking a side on this question:
Some have been critical of the piecemeal certification of class action status
for claims within a case. See Gunnells v. Healthplan Servs., Inc., 348 F.3d . . . 44647 . . . (arguing that the predominance requirement in Fed. R. Civ. P. 23(b) applies
to the action as a whole, not to individual subclasses or claims); Castano v. Am.
Tobacco Co., 84 F.3d . . . 745 n.21 . . . (“The proper interpretation of the
interaction between [Fed. R. Civ. P. 23] subdivisions (b)(3) and (c)(4) is that a cause
of action, as a whole, must satisfy the predominance requirement of (b)(3) and that
(c)(4) is a housekeeping rule that allows courts to sever the common issues for a
class trial.”). We did not directly address the propriety of such partial certification
in Klay.
Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n.5 (11th Cir. 2010)(alterations
in original). The Tenth Circuit also appears to have refrained from taking a side:
Plaintiffs urge us to consider a “hybrid” certification whereby the liability
stage might be certified for class treatment under Rule 23(b)(2) even if the damages
stage does not qualify for such treatment. See Robinson v. Metro-North Commuter
R.R., 267 F.3d 147, 167-69 (2d Cir. 2001). Compare Lemon v. Int’l Union of
Operating Engr’s, Local No. 139, AFL-CIO, 216 F.3d 577, 581 (7th Cir. 2000), and
Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999), with Allison v.
Citgo Petroleum Corp., 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to
rule on a hybrid possibility because in the instant case, the liability stage does not
satisfy either Rules 23(b)(2) or 23(b)(3). The district court’s ruling that plaintiffs
did not allege a sufficient policy, practice or pattern of discrimination to warrant
class treatment for liability determination is not an abuse of discretion.
Monreal v. Potter, 367 F.3d at 1237 n.12.

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it is commendable in that it is a test that district courts can use, rather than yet another meaningless
recitation, see CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1087 (10th Cir. 2014)(“[T]he
predominance prong ‘asks whether the common, aggregation-enabling, issues in the case are more
prevalent or important than the non-common, aggregation defeating, individual issues.’” (quoting
William B. Rubenstein, Newberg on Class Actions § 4:49 (5th ed. 2017)(“Newberg”))), circular
axiom, see, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. at 623 (“The Rule 23(b)(3)
predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.”), obvious guidepost, see Reed v. Bowen, 849 F.2d at 1309 (“Each
case must be decided on its own facts, on the basis of ‘practicalities and prudential
considerations.’”), self-evident comparison, see Monreal v. Potter, 367 F.3d at 1237 (“[T]he
predominance criterion of Rule 23(b)(3) [i]s ‘far more demanding’ tha[n] the Rule 23(a)
commonality requirement.” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. at 623-24)), or
worthless slogan, see Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir.
2012)(exhorting district courts to examine claims “‘through the prism’ of Rule 23(b)(3)” (quoting
In re DVI, Inc. Sec. Litig., 639 F.3d 623, 630 (3d Cir. 2011)).
The Tenth Circuit followed the Eleventh Circuit’s approach in CGC Holding Co., LLC v.
Broad and Cassel.
Predominance regularly presents the greatest obstacle to class certification,
especially in fraud cases. Accordingly, the issues disputed in this case are not
unusual. And given our obligation to ensure that the district court did not err in
conducting its rigorous analysis, we must characterize the issues in the case as
common or not, and then weigh which issues predominate. Here, that task requires
us to survey the elements of the class’s RICO claims to consider (1) which of those
elements are susceptible to generalized proof, and (2) whether those that are so
susceptible predominate over those that are not. Stated another way, consideration
of how the class intends to answer factual and legal questions to prove its claim -and the extent to which the evidence needed to do so is common or individual -will frequently entail some discussion of the claim itself.
In this context, it is worth reiterating that our review on appeal is limited.
For the purposes of class certification, our primary function is to ensure that the
requirements of Rule 23 are satisfied, not to make a determination on the merits of
the putative class’s claims. But it is impractical to construct “an impermeable wall”
that will prevent the merits from bleeding into the class certification decision to
some degree. So, although class certification does not depend on the merits of the
suit, “[e]valuation of many of the questions entering into determination of class
action questions is intimately involved with the merits of the claims.”
With these legal principles in mind, “[c]onsidering whether ‘questions of
law or fact common to class members predominate’ begins, of course, with the
elements of the underlying cause of action.” For this limited purpose, we consider
the proposed class’s claim for a RICO conspiracy.

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CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d at 1087-88.
ANALYSIS
The Court will grant the requests in the Plaintiffs’ Letter in part and deny them in part. The
parties indicated that they have resolved the dispute about the prior pay data, and so the Court will
not order that Sandia Labs produce such information. See Tr. at 4:19-23 (Levin-Gesundheit); id.
at 5:4-10 (Court, Katzenstein). Rule 26 limits discovery’s scope to “any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” Fed. R.
Civ. P. 26(b)(1). The Court will order Sandia Labs to produce policy documents from 2018 and
ESI related to the vice president of human resources, because the discovery is relevant and
proportional. Fed. R. Civ. P. 26(b)(1).
The Court first concludes that discovery post-dating April, 2017, is relevant. Before a class
certification decision, a party generally may seek “controlled discovery into the ‘merits,’ limited
to those aspects relevant to making the certification decision on an informed basis.” Rule 23
(c)(1)(A) advisory committee’s notes. As the First Amended Complaint evidences, the Plaintiffs
bring claims against Sandia Labs’ current practices. See, e.g., First Amended Complaint ¶¶ 2040, at 5-9. Throughout the First Amended Complaint, the Plaintiffs write their allegations in the
present tense, which suggests that the discriminatory activities did not cease at the transition. See,
e.g., First Amended Complaint ¶ 26, at 6 (“Sandia uses common procedures for evaluating
employee performance that apply to all employees in all Divisions.”); id. ¶ 34, at 8 (“Sandia
assigns merit increases and bonuses within centrally-prescribed ranges based on uniform criteria
that fail to credit performance and disadvantage women. Sandia thus gives male employees larger
merit increases and bonuses than similarly-situated female employees . . . .”); id. ¶ 38, at 8
(“Employee cannot apply for a level promotion. Instead, an employee’s manager must nominate
him or her for a promotion. The promotion must then be affirmatively approved by the employee’s
Group Senior Manager, Center Director, and Division Vice President.”). The Plaintiffs similarly
describe their grounds for relief in the present tense. See, e.g., First Amended Complaint ¶ 95, at
23 (“Sandia’s reliance on illegitimate and unvalidated systems and criteria to set compensation,
select individuals for promotion, and determine other terms and conditions of employment, have
an adverse impact on female employees in violation of Title VII and are not, and cannot be,
justified by business necessity.”).

Moreover, the Plaintiffs seek to enjoin the ongoing

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discrimination of which they complain. See First Amended Complaint ¶ 108(d), at 25. As an
injunction cannot affect past and terminated practices, the demand illustrates the Plaintiffs’ foci on
current and continuing practices. Because the Plaintiffs allege ongoing discrimination, Sandia
Labs’ current policies and practices relate to and are relevant to the Plaintiffs’ claims. See State
Farm Mut. Auto. Ins. v. Fayda, 2015 WL 7871037, at *2 (“Relevance is still to be ‘construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on’ any party’s claim or defense.” (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. at 351)).
Sandia Labs’ arguments for the discovery’s irrelevancy do not convince the Court. See Tr.
at 23:5-7 (Katzenstein). Sandia Labs contends that the named Plaintiffs did not work long, if at
all, under National Technology, and that other women from “2014 forward,” Tr. at 13:12
(Katzenstein) -- the dates by which the Plaintiffs define their class22 -- never worked under
National Technology. See Tr. at 12:21-15:15 (Katzenstein). These facts trouble Sandia Labs,
because it contends that National Technology’s management lacked connections to the alleged
discriminatory actions. See Tr. at 23:19-25 (Katzenstein). In Sandia Labs’ view, the Plaintiffs
cannot draw connections between employment under Sandia Corporation and under National
Technology. See Tr. at 13:18-24 (Katzenstein). Three of the named Plaintiffs, however, worked
for some time under National Technology, and the Plaintiffs attack Sandia Labs’ practice of using
prior pay data to set initial salaries -- a practice which continues to effect individuals throughout
their careers. See Reply at 1-2. Moreover, in their pursuit to define a class -- particularly a class
seeking injunctive relief, the Plaintiffs likely need to identify whether Sandia Labs’ discriminatory
activities continue under National Technology. See Reply at 1. The Court concludes, therefore,
that Sandia Labs’ current policies and practices are relevant to the Plaintiffs’ allegations.
Second, the Court addresses whether the discovery is proportional. Sandia Labs contends
that the Plaintiffs seek burdensome discovery. See Tr. at 15:22-16:22 (Katzenstein). The Court,
however, concludes that the solution developed at the hearing does not disproportionately burden
Sandia Labs. Rule 26(b)(1) advises courts to consider in determining discovery’s proportionality:

The Plaintiffs describe the class as “all female employees employed by Sandia in the
United States at any time from February 20, 2014 through the resolution of this action.” See First
Amended Class Action Complaint ¶ 41, at 9.
22

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“[(i)] the importance of the issues at stake in the action, [(ii)] the amount in controversy, [(iii)] the
parties’ relative access to relevant information, [(iv)] the parties’ resources, [(v)] the importance
of the discovery in resolving the issues, and [(vi)] whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Here, first, the Plaintiffs
complain about widespread discrimination in Sandia Labs, and, second, the Plaintiffs demand
injunctive relief and damages for the class. See First Amended Complaint ¶¶ 108(a)-(o), at 24-26.
Such complaints and damages requests are significant and will effect many people and practices
within Sandia Labs. Third, the Plaintiffs seek information to which they otherwise have no access.
Fourth, the desired information may be necessary to determine Sandia Labs’ current policies and
practices. Fifth, Sandia Labs, a corporation, likely has access to the resources to complete the
discovery. Sixth, the discovery’s burden will likely not outweigh the importance of obtaining
accurate information here or the above-mentioned benefits to the Plaintiffs. Producing ten to
twelve policy documents should not significantly burden Sandia Labs. See Tr. at 18:23 (LevinGesundheit). Sandia Labs did not describe as burdensome the ESI discovery related to the vice
president, see Tr. at 23:3-8 (Katzenstein), and the Court does not believe that this more limited
discovery should disproportionately burden Sandia Labs. Accordingly, the Court will grant the
Plaintiffs’ requests in part and deny them in part. The Court will order Sandia Labs to produce
policy documents from 2018 and ESI related to the vice president of human resources.
IT IS ORDERED that: (i) the requests in Plaintiffs’ Letter from Anne B. Shaver, Lieff,
Cabraser, Heimann & Bernstein, LLP, to the Court (dated December 6, 2018), filed December 6,
2018 (Doc. 194), are granted in part and denied in part; and (ii) Defendant Sandia Corporation
d/b/a Sandia National Laboratories will produce policy documents from 2018 and electronically
stored information related to the vice president of human resources.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Gretchen Mary Elsner
Elsner Law & Policy, LLC
Santa Fe, New Mexico
--and-Rachel Bien

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Outten & Golden LLP
San Francisco, California
--and-Adam T. Klein
Cheryl-Lyn D. Bentley
Elizabeth V. Stork
Outten & Golden LLP
New York, New York
--and-David Lopez
Outten & Golden LLP
Washington, D.C.
--and-Kelly Maureen Dermody
Anne Brackett Shaver
Lin Yee Chan
Tiseme Gabriella Zegeye
Michael Ian Levin-Gesundheit
Shira J. Tevah
Lieff Cabraser Heimann & Bernstein, LLP
San Francisco, California
Attorneys for the Plaintiffs
Justin E. Poore
Cindy Jean Lovato-Farmer
Sandia Corporation
Albuquerque, New Mexico
--and-Grace E. Speights
Michael S. Burkhardt
Krissy A. Katzenstein
Morgan, Lewis & Bockius LLP
Washington, D.C.
--and-Scott D. Gordon
Theresa W. Parrish
Jeffrey L. Lowry
Paola Jaime Saenz
Stephanie L. Latimer
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Albuquerque, New Mexico
Attorneys for the Defendant

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