The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART CHIPOTLE'S MOTION TO COMPEL FURTHER ANSWERS TO REQUEST FOR PRODUCTION NO. 12
The general issue before this Court is whether Mr. Antoninetti, the class plaintiff, is an appropriate class representative given his past and present business relationship with class counsel, Ms. Amy Vandeveld, and the brother of class counsel, Mr. Tom Vandeveld, also an attorney. The issue has been presented to the Court in the form of a motion to compel a supplemental answer to Defendant Chipotle's request for production number 12. That request for production seeks "all Documents that evidence, discuss, mention, refer to, reflect or Relate to the amount of income You receive annually as a result of Your participation in lawsuits involving state or federal disability laws as an expert." Chipotle contends this information is discoverable because it bears on the adequacy of Mr. Antoninetti as the class plaintiff. Mr. Antoninetti contends this request offends his privacy rights and is also overbroad and burdensome.
Plaintiff's claims arise under the Americans with Disabilities Act (42 U.S.C. §12131, et seq.), along with certain other state law claims for relief. Jurisdiction is properly in this Court pursuant to 28 U.S.C. Sections 1331 and 1343.
Federal Rule of Civil Procedure 23(a)(4) requires "the representative parties will fairly and adequately protect the interests of the class." Further, Federal Rule of Civil Procedure 26(b) allows "discovery regarding any non-privileged matter that is relevant to any party's claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Today, this Court is not tasked with determining whether Mr. Antoninetti is an adequate class representative; District Judge Barry Ted Moskowitz will ultimately make that determination. Rather, this Court will only decide whether Chipotle is entitled to a supplemental response to its request for production number 12 in an attempt to determine the adequacy of Mr. Antoninetti as a class representative.
One of the key cases dealing with determining the adequacy of a class plaintiff is the Sipper case. Sipper v. Capital One Bank, 2002 WL 398769 (C.D. Cal. 2002). In Sipper, there were two motions before the court. Id. at 1. The plaintiff, the class representative, brought a motion to certify the class. Id. Defendant Capital One opposed the motion for class certification, bringing its own motion to deny the class on the primary ground of allegedly inadequate representation by the class representative and class counsel. Id. at 2. Central to Capital One's theory was the business relationship between class representative Ed Sipper and class counsel Barry Kramer. Id. at 2.
Sipper has come to stand for the following principle: "The existence of a business relationship does not automatically preclude class representation." Id. at 3 (citing Macarz v. Transworld Systems, Inc., 193 F.R.D. 46, 52 (D. Conn. 2000)(where the court refused to deny class certification based solely on relationship without indication of collaboration to generate fees)(emphasis in original)). Four factors influenced the court in Sipper in determining the class plaintiff was not an adequate representative of class because of his business relationship with class counsel. Sipper, at 3. First, Sipper and Kramer "are business partners in a series of real estate deals." Id. Second, "according to Sipper, he depends on Kramer for his involvement in these deals because Kramer supplies the money." Id. Third, "not only are Kramer and Sipper business partners, they have been joint defendants in a California lawsuit." Id. Fourth, "neither Kramer nor Sipper felt the need to disclose this relationship to the court, his other clients in these matters, or Kramer's co-counsel . . . In previous deposition testimony and interrogatories Sipper danced around questions that would have required revealing his relationship with Kramer. Nor has Kramer come forward with this information on his own. Why?" Id.
The Sipper court went on to say:
In sum, the court emphatically disagrees with counsel's relevance argument and is surprised by class counsel's attitude toward a matter of such importance. A central concern of the Rules of Civil Procedure governing class actions is ensuring that the class action format is not hijacked by parties or attorneys to their own ends at the expense of the other class members. Of particular concern, "courts fear that a class representative who is closely associated with the class attorney would allow settlement on terms less favorable to the interest of absent class members."
Id. at 4 (citing Susman v. Lincoln American Corp.,561 F.2d 86, 91 (7th Cir. 1977).
Back to the instant case, Mr. Antoninetti has earned income from an extensive, long-term business relationship with class counsel. Mr. Antoninetti has testified in this case to having worked as an expert or consultant with class counsel in ADA matters approximately 50 times.*fn1 In that capacity, he charged $120 per hour.*fn2 He has a similar, though less extensive, relationship with the second class counsel.*fn3 Mr. Antoninetti worked as an expert with class counsel before the instant lawsuit was filed. He does not currently have any cases with class counsel in which he is serving as a consultant or expert witness. In addition, he may or may not undertake such work with class counsel when the current case has concluded.*fn4
Contrary to Sipper, Mr. Antoninetti is not an attorney and has not served as co-counsel with either class counsel. However, the inquiry into the business relationship between the class representative and class counsel is not limited to those situations where the class representative is also an attorney. The relevant inquiry is whether the business relationship between the class representative and class counsel compromises the ability or willingness of the class representative to faithfully advocate for the interests of the class. Under Sipper, Chipotle has established sufficient basis under Federal Rule of Civil Procedure 26(b)(1) to conduct additional discovery into the past and present business relationship between Mr. Antoninetti and class counsel in support of its claim that Mr. Antoninetti is not an appropriate class representative.
Notwithstanding the above, Chipotle's request for production number 12 is overbroad, as it is unlimited as to time and seeks information not relevant to the business or other relationship between Mr. Antoninetti and class counsel. However, despite its overbreadth, the request does seek documents relevant to a determination of Mr. Antoninetti's adequacy as a class representative. Therefore, some discovery on this subject is warranted. Mr. Antoninetti must produce documents showing any and all income he has received from his work as an ...