[co-author: Thaddeus Ewald]

In a reversal of the usual scenario where a plaintiff seeks and a defendant resists class discovery, the Southern District of Ohio granted a defendant’s motion to compel answers to its interrogatory regarding who was included in the putative class.

The named plaintiffs filed a putative class action based on a credit union’s alleged violations of the Real Estate Settlement Procedures Act. The credit union served interrogatories on the named plaintiffs concerning class certification issues, including how the plaintiffs planned to establish the substantive elements of their claims, the plaintiffs’ trial plan, and whether certain categories of individuals were included in the putative class.

One interrogatory asked plaintiffs to describe the putative class they were seeking to represent, specifically inquiring whether it would include (a) individuals currently aware of their alleged rights against the credit union, (b) individuals who received a communication from plaintiffs’ counsel, (c) individuals who were not referred to the title services company to which the credit union allegedly made fraudulent referrals of business, and (d) individuals who were referred to the title company, but who did not receive a kickback or split fee in exchange for the referral.

Plaintiffs objected that the interrogatory sought information protected by the work-product doctrine and that they would provide the information when they moved for class certification. Plaintiffs also provided a partial response that they were unaware—and assumed all other class members were unaware—of the possibility of their claims until plaintiffs’ counsel notified them.

The court ruled that this answer was unresponsive to subparts (c) and (d) and granted the motion to compel in part to require answers to those subparts. In doing so, the court reasoned that the defendant had the right to seek “factual information concerning the contours of the class the named plaintiffs seek to represent.”

Palombaro v. Emery Fed. Credit Union, No. 15-CV-792, 2017 WL 213071 (S.D. Ohio Jan. 17, 2017)