Sessions et al v. Owens-Illinois, Inc. et al

Filing 187

MEMORANDUM AND ORDER denying defts' motion for leave to take limited discovery from absent class members 149 w/out prejudice to defts' right to seek similar relief after common questions have been adjudicated. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 06/13/11. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT SESSIONS, LINDA
SESSIONS, JOHN ROMAN,
PAT KOVAR, JOHN SAFIAN, and
JOE GREEN,
Plaintiffs,
v.
OWENS-ILLINOIS, INC., et al.,
Defendants

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CIVIL ACTION NO. 1:07-CV-1669
(Judge Conner)

MEMORANDUM
Presently before the court is defendants’ motion (Doc. 149) for leave to take
limited discovery from absent class members, in this class action filed pursuant to
the Employee Retirement Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. In the
above-captioned case, plaintiffs allege that they were entitled to receive enhanced
retirement benefits, under the Eighth Amended and Restated Salary Retirement
Plan for employees of defendant Owens-Illinois, Inc. (“OI”) and its affiliated
employers. Plaintiffs complain that defendants1 wrongfully denied them these
benefits and misled them to believe that they were ineligible for the benefits.

1

The defendants are Owens-Illinois, Inc., the Owens-Illinois Salary
Retirement Plan, the Owens-Illinois Employee Benefits Committee for the OwensIllinois Salary Retirement Plan, and various individually-named members of the
committee. The amended complaint alleges that the committee is the administrator
of the plan and a named fiduciary of the plan, and it alleges that each committee
member had responsibility for administering the plan and was a plan fiduciary.

In the pending motion, defendants seek the court’s leave to depose fifteen
absent class members, and serve related document requests upon these individuals.
For the reasons set forth below, the court will deny defendants’ motion (Doc. 149),
without prejudice to defendants’ right to re-raise the issue after common questions
have been adjudicated.
I.

Background
The factual background of this matter is set forth in greater detail in this

court’s memorandum dated November 4, 2008 (Doc. 67), and in its memorandum
dated April 16, 2010 (Doc. 106), familiarity with which is presumed. The named
plaintiffs in the above-captioned case represent a class of former employees of
Owens-Brockway Plastic Products, Inc. (“OB”). Prior to the events giving rise to
the instant litigation, OB was a wholly-owned subsidiary of OI Plastic Products
FTS, Inc. (“OI Plastic Products”), a subsidiary of defendant OI. Plaintiffs contend
that, as a result of a sale (the “Graham sale”), in which OI Plastic Products sold its
stock in OB to Graham Packaging Company (“Graham”), the class members
became “Terminated Retirees” and were entitled to receive enhanced retirement
benefits under OI’s Salary Retirement Plan (the “plan”). Plaintiffs’ causes of action
in the above-captioned case include failure to provide ERISA benefits and breach of
fiduciary duty. In the pending motion, defendants seek leave to take limited
discovery from fifteen absent class members.

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II.

Discussion
Generally, courts afford considerable latitude in discovery in order to ensure

that litigation proceeds with “the fullest possible knowledge of the issues and facts
before trial.” Hickman v. Taylor, 329 U.S. 495, 501 (1947). Rule 26(b)(1) of the
Federal Rules of Civil Procedure states that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense
. . . . Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.”
FED . R. CIV . P. 26(b)(1). The Third Circuit has explained that there is a “defeasible”
presumption that “all relevant material is discoverable unless an applicable
evidentiary privilege is asserted.” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
Courts must also limit discovery if the discovery sought is unreasonably cumulative,
duplicative, readily obtainable from a more convenient or inexpensive source, or if
the burden or expense of producing the discovery sought outweighs its likely
benefit. FED .R.CIV .P. 26(b)(2)(C).
In a class action, the broad discovery rules set forth above apply to the
named parties in the litigation; however, they do not necessarily apply to individual
class members who are absent from the litigation. When faced with the question of
whether discovery may be taken from absent class members, courts generally
disfavor or limit such discovery. See, e.g., In re Lucent Techs. Sec. Litig., No. 00 CV
621, 2002 WL 32815233 at *2 (D.N.J. July 16, 2002); Gunter v. Ridgewood Energy
Corp., Civ. No. 95-438, 1996 U.S. Dist. LEXIS 22298 at *6-8 (D.N.J. Oct. 16, 1996);
3

Kline v. First W. Gov’t Secs., Civ. No. 83-1076, 1996 WL 122717 at *2-3 (E.D. Pa.
Mar. 11, 1996). Although the Third Circuit has not directly addressed this issue, our
sister districts within the Third Circuit have endorsed an approach under which
written discovery—such as interrogatories or document requests—against absent
class members is permitted under the following circumstances: “(1) where the
information requested is relevant to the decision of common questions, (2) when the
discovery requests are tendered in good faith and are not unduly burdensome[,]
and (3) when the information is not available from the class representative parties.”
Gunter, 1996 U.S. Dist. LEXIS 22298 at *7-8;2 Kline, 1996 WL 122717 at *3.
Applying this standard to the instant case, the court finds that it would be
inappropriate to grant defendants leave to take discovery from a sampling of absent
class members at this time. Defendants have failed to satisfy the first requirement
listed above,3 because the information they seek is not relevant to common
questions. Indeed, defendants characterize the discovery they seek as
“individualized,” and they make no attempt to argue that it is relevant to common

2

The Gunter court also noted that the requested discovery should not pertain
to matters already known to the party requesting discovery. 1996 U.S. Dist. LEXIS
22298 at *8.
3

Plaintiffs have not argued that defendants are seeking the discovery at issue
in bad faith, or that the requests are unduly burdensome. Nor do plaintiffs contend
that the requested information would be available from the named plaintiffs in the
above-captioned case. Hence, it appears that the second and third requirements
are satisfied. Nevertheless, defendants’ failure to satisfy the first requirement leads
the court to conclude that their motion should be denied.
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questions.4 Furthermore, defendants’ moving papers make explicit references to
issues that are clearly individual, not common, in nature. For instance, their stated
reason for seeking to depose a sampling of absent class members—as opposed to
seeking written discovery—is that “discovery by means of deposition is the sole
method of allowing Owens-Illinois to evaluate the credibility of class members’
testimony on reliance.” (Doc. 150 at 16). Credibility of absent class members’
testimony is certainly an individualized issue; in no sense could it be considered
common to the class.
Therefore, the court concludes that defendants are not entitled to take
discovery from absent class members under the circumstances of the instant case
as they presently exist. It may be appropriate for the parties to collect
individualized evidence on certain issues—such as reliance, for instance—after
common questions have been more fully litigated; however, the court declines to
opine on this matter at this juncture. For the reasons discussed above, the court

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Rather than citing or applying the standard set forth above, defendants set
forth two different reasons why the court should grant them leave to take discovery
from absent class members. First, according to defendants, plaintiffs articulated a
need for discovery from defendants concerning certain individual class members.
Second, defendants argue that individualized evidence of detrimental reliance—an
element of the breach of fiduciary duty claim—is pertinent to an essential issue in
the case.
The court need not address these issues at this juncture, however, because
defendants have essentially conceded that they seek discovery pertaining to
individual issues, not common issues. In the interests of judicial economy and
efficiency, the parties should litigate issues common to the class first. Then, if
individual issues remain, the court will address those matters and make individual
findings at a later phase of the litigation.
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will deny defendants’ motion without prejudice. Defendants are free to seek similar
relief at a later phase of the litigation.
III.

Conclusion
Defendants’ motion for leave to take limited discovery from absent class

members is denied without prejudice.
An appropriate order will issue.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

June 13, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT SESSIONS, LINDA
SESSIONS, JOHN ROMAN,
PAT KOVAR, JOHN SAFIAN, and
JOE GREEN,
Plaintiffs,
v.
OWENS-ILLINOIS, INC., et al.,
Defendants

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CIVIL ACTION NO. 1:07-CV-1669
(Judge Conner)

ORDER
AND NOW, this 13th day of June, 2011, upon consideration of defendants’
motion (Doc. 149) for leave to take limited discovery from absent class members,
and for the reasons set forth in the accompanying memorandum, it is hereby
ORDERED that defendants’ motion (Doc. 149) is DENIED, without prejudice to
defendants’ right to seek similar relief after common questions have been
adjudicated.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge