Northern District Rejects Defendant’s Motion to Communicate Ex Parte With Class Members

by charlesjung

Streets of San Francisco

Image by Frank Kehren via Flickr

The Northern District denied a class defendant’s request to communicate ex parte with class members.  Kirola v. City and County of San Francisco, No. C 07-03685 SBA, 2010 WL 3505041 (N.D. Cal. Sept. 7, 2010). Defendant City and County of San Francisco (“City”) brought an administrative motion, seeking authorization to communicate with eight specific class members.  Id. The City contended that free communication with these individuals is essential to allow the City to prepare adequately for trial.  Id. The City sought to “present their testimony at trial in order to establish its policies and practices regarding physical access, which is the core issue in this case.” Id.

The court noted that “the applicable rules of Professional Conduct prohibit communications by an attorney with a represented client without express consent of the attorney, including communications with individual class members once a class action has been certified.” Id. (citing Cal. Rules of Prof. Conduct Rule 2-100; ABA Rule 4.2; Resnick v. American Dental Ass’n, 95 F.R.D. 372, 377 (D.C. Ill. 1982)).

The court denied the City’s motion:

Here, the City does not explain why the discovery process was unavailable or ineffective in allowing access to the information it needs. Indeed, Plaintiffs represent that the City failed to include all but one of these eight individuals in its Rule 26 disclosures. Nor has the City identified any specific reason that would warrant excepting these class members from the well-established rules of Professional Conduct, other than a nebulous need to “prepare for trial.” In sum, the City has failed to justify the extraordinary relief that it has requested.

Id. *2.


District Judge Saundra Brown Armstrong.


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