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Class Action Defense Cases-Hubbard v. Potter: Federal Magistrate Grants Defense Motion To End Pre-Certification Discovery In Labor Law Class Action But Denies As Untimely Defense Motion To Designate Rebuttal Expert

Plaintiffs in Labor Law Class Action Failed to Establish that Defense Failed to Properly Respond to Pre-Certification Discovery and Defense failed to Establish Good Cause for Untimely Designation of Rebuttal Expert District of Columbia Federal Magistrate Holds

Plaintiffs, five deaf employees of the United States Postal Service (USPS), filed a putative class action alleging that they were “denied a qualified sign language interpreter at safety meetings and mandatory work meetings” and that this “prevented from performing their duties safely, which they contend is an essential function of their job.” Hubbard v. Potter, 247 F.R.D 27, 2008 WL 43867, *1 (D.D.C. 2008). Plaintiffs alleged that a class action could be certified under either Rule 23(b)(2) or (b)(3), and sought pre-certification discovery to support a motion for class action certification. Id. Defense attorneys moved to terminate pre-certification discovery and for leave to designate a rebuttal expert witness, id. The federal magistrate granted the first motion but denied the second.

With respect to their first motion, defense attorneys argued that plaintiffs had been given sufficient time to conduct the discovery necessary to file for class action certification, and that further discovery was inappropriate pre-certification because “Plaintiffs either (a) have the evidence they need for class certification and are attempting to collect that which they need for trial on the merits, or (b) have failed in their attempts to meet the class certification requirements following this Court’s dismissal of their first class complaint and are trying to squeeze every last document out of the Postal Service in a vain attempt to piece together a plausible class certification theory for their second amended complaint.” Hubbard, at *1. Plaintiffs’ opposition “raised legitimate concerns regarding the discovery that has been thus far produced by defendant,” characterizing USPS’s discovery responses as “grossly insufficient and manifestly incomplete.” Id.

The magistrate characterized plaintiffs’ opposition as “seek[ing] another round of discovery” aimed at “‘meta-discovery,’ i.e., discovery about the discovery”; the thrust of their argument is that additional discovery was warranted because of “the paucity of the documents” produced by USPS. Hubbard, at *2. The magistrate concisely summarized the standard for granting such a request at page *2: “Speculation that there is more will not suffice; if the theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end. Instead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed. [Citations.]” Plaintiffs failed to meet that burden here. After summarizing the “three inferences” plaintiffs argued “may be drawn from the alleged ‘paucity’ of defendant’s document production,” the magistrate observed “that there is a fourth and equally likely possibility that the designated officials kept the records they were supposed to and turned them over to plaintiffs when asked to do so.” Id. In other words, USPS simply had no additional documents to produce, id. Plaintiffs’ speculation that there should be more documents “is simply of no moment,” as it is nothing more than “a hunch of plaintiffs’ part.” Id., at *3

With respect to the defense motion for leave to designate a rebuttal expert, defense counsel argued that their request was “necessitated by the filing of a second report by plaintiffs’ expert.” Hubbard, at *5. The federal magistrate summarily disposed of the motion by noting that the proposed designation “comes too late,” as it the district court had ordered expert disclosures by March 3, 2006 and rebuttal designations by March 31, 2006, and defense counsel had already filed motions challenging the supplemental expert report. Id. In response, the magistrate “fashioned a practical solution” that provided USPS with “ample opportunity to address the issues raised by plaintiffs’ expert’s supplemental report.” Id. Accordingly, the magistrate denied the motion for late designation of a rebuttal expert.

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