California Federal Court Reaffirms that Scope of Precertification Discovery in Class Action Lawsuits is Within the Discretion of the Court
A putative class action alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) was filed against a county district attorney and a private company (ACCS) under contract to administer the county’s Bad Check Restitution Program. Del Campo v. Kennedy, 236 F.R.D. 454 (N.D. Cal. 2006). After plaintiff learned that the check she had given a store merchant (Fry’s Electronics) did not clear, she called the store and offered to make full payment: “The store declined her offer because the check had not been entered yet into the computer system.” Id., at 456. Plaintiff later received a letter from the district attorney concerning the crime of writing a bad check, and advising her that she owed not only the amount of the check ($95.02), but a returned item fee ($10), administrative fee ($35), and bad check restitution program fee ($125); plaintiff tendered only the amount of the delinquent check. Id. Upon receiving a demand threatening criminal action if she failed to pay the $170 in additional fees, plaintiff filed the FDCPA class action. Id. Eventually, the class action was consolidated with another lawsuit. Plaintiff then filed subpoenas on two stores (Safeway and Target), and defense attorneys filed a motion to quash the subpoenas or for a protective order.
Defense lawyers argued that the discovery was not relevant. The district court acknowledged that in class actions “discovery is generally limited” prior to the motion seeking class certification, and that precertification discovery is discretionary. Del Campo, at 459. But without much discussion, the federal court denied the defense motion and permitted plaintiff to pursue the discovery. The ruling certainly stretches the concept of “limited discovery,” particularly because one of the subpoenas sought information concerning a bad check program that “is not the subject of either of the consolidated actions” before the court but that is administered by ACCS. Id., at 459-60. The court permitted this discovery based on the representation of plaintiff’s lawyer that plaintiff “intends to file a motion to certify a class to encompass members in California,” id., at 460, presumably making discovery of then-unrelated ACCS-administered bad check programs relevant for class certification purposes.