A magistrate judge in Kansas denied the defendant's request to conduct discovery of putative class members via a voluntary questionnaire.
Plaintiff Hapka filed a class action against home health care provider CareCentrix stemming from a 2016 data breach of employees' personal information, including wage and tax statements. Plaintiff alleged a fraudulent tax return was filed in her name following the cyberattack and that she continued to be at a heightened risk for tax fraud and identity theft.
Defendant CareCentrix filed a motion seeking to conduct putative class discovery by sending a "simple, voluntary questionnaire" to the nearly 2,000 individuals whose private information was stolen. Defendant argued this discovery was necessary to test whether anyone else in the class shares plaintiff's fear of future increased risk of identity theft and fraud. This information, defendant contended, was necessary to evaluate whether the plaintiff is typical of the class she claims to represent.
The court began its analysis by stating that while putative class discovery directed at absent class members is "neither prohibited not sanctioned" by the Federal Rules of Civil Procedure, it is "generally disfavored." However, the court indicated there may be circumstances when putative class discovery would be allowed, and in considering the propriety of such requests, courts look at (1) whether the information sought is necessary for trial preparation; and (2) whether the discovery requests made to class members are designed to be a tactic to take undue advantage of or otherwise limit the number of class members.
The court was not swayed by the defendant's arguments, stating the typicality requirement is satisfied if there are common questions of law or fact, and differing fact situations or damages calculations will not defeat typicality. Moreover, the court reasoned that the proposed putative class discovery was improper because an individualized damages inquiry is unnecessary and irrelevant to class-wide issues, particularly where the plaintiff had represented that she intended to show class-wide injury through the use of expert testimony.
The court concluded that CareCentrix failed to meet its burden to show the information sought was necessary at this stage of the proceedings and denied the motion.
Hapka v. Carecentrix, Inc., 16-2372-CM-KGG (Kan. Aug. 7, 2017).
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