honor this is craig card down on behalf of william sonoma and i would like to reserve five minutes of my time for rebuttal or so consistent with the court's order to focus on the propriety of the of the district court's order granting discovery of a customer list for purposes of plaintiff's counsel solicitation of those customers to pursue the california claims i will focus on that issue as opposed to the choice of law issue i would like to address that at some point if the court is party in interest has not contested the other the other factors so i will focus on that with respect to the discovery order with respect to the discovery order i think it is it is important to identify what it is not add to it to really talk about what it is it is not an order that has authorized this discovery for any purpose for rule twenty three dollars for class discovery it is not similarly a mixed order where it purports to order it partially for that and partially to identify a new class of plaintiff the district court was clear in this said it is authorizing this discovery for the limited purpose of identifying a new plaintiff that is distinct from all of the cases that have been cited in the plaintiff's answer to the petition all of those cases where class discovery was authorized priest certification any class action it tied it to rule twenty three dollars and class discovery issues whether that be typicality commonality or some other issue the authority we have cited which is close to i believe it's eighteen or so district court cases in the six circuit decision and gallery versus countrywide is pervasive and consistent that the federal rules do not are not so expansive as to permit this purpose or discovery and that really is the crux of this it's the purpose of the discovery and we're in a situation where the district court's order was was in a perfectly clear on that it's for this one purpose with respect to that the diff the plaintiffs or the real party in interest here has said but the court has a duty to protect the putative class there are cases that go both ways on that at what point that duty might or might not attach but assuming for purposes of argument here that a duty does attach at some point that duty may only be exercised within the authority granted by the federal rules why doesn't the district court have authority under twenty three d do did here the rule twenty three dollars and that's that's that's an interesting that case right where we're talking about the notice provisions and they're under i'm talking about twenty three dollars d where your honor rule twenty three d to the extent we're talking about discovery is still bounded by rule twenty secs so in this situation where we are talking about what is the and this flows i think it's helpful to flow from and it flows from an interactive torrie so it flows from a vehicle authorized by rule atory requested william sonoma as customer list this was never presented to the court in connection with a motion to compel it was raised it was never presented in the fifty six d request which the court rejected it was only presented in the context that oral argument were counsel said at the end of oral argument we had previously asked for this we'd like a customer list to pursue new plaintiffs  discussion of this all focused around its ability to authorize this discovery under twenty three dollars d i would not classify that as as authorizing any discovery discovery is bounded by rule twenty six dollars which is how the clear air then it's clear error because the authorization for this is bounded by rule twenty six and the decisions that have addressed this have all said it is and then actually the decisions don't just say rule twenty six t decisions of said it is impermissible for plaintiffs counsel to use the federal rules of civil procedure to go fishing through the customer list and that fishing language comes from date of douglas vs talk america these courts have also used some of usual twenty six specifically others have been much more broad in saying to it is impermissible to use the federal rules of civil procedure those rules well twenty three d says conducting the action in general in conducting an action the district courts have a lot of authority in how they handle class actions they have a lot of authority in how to handle active class actions in this situation there was not an active plaintiff that had any ability to pursue the california claims and i think that's the difference only because you were successful in persuading the court that with the kentucky law applied director r and this plane could only maintain a claim based on kentucky law it that is correct nevertheless so as i understood the district court's order the district court didn't think that this was a frivolous claim or a bad faith claim or no merit to it or anything like that it's just that you were successful in and persuading the court that kentucky law applied and as to the plaintiff's claim it's going to have to be judged on kentucky law and i as i understand kentucky law you can't have a consumer case like this you can't maintain a class action you can't get class white relief under direct and so that he they started out trying to rely on california law with a proposed was harmed under california law and now they're in this situation where the representative can't represent such a class correct your honor and if the if the class council or a purported class council proposed class council were to come forward and say we have a california plaintiff who would like to join this case then that would be within the court's discretion to decide whether to accept that or not and based on what we've seen here it sounds like that the district court would do that here so i don't see why the court you know in in exercising its own obligations or responsibilities towards the class and counsel's own obligations toward this class the court couldn't ok we're going to a little the sky every narrow discovery on this issue because the court's discretion the court's authority is not boundless the court can't do anything it wants under twenty three d in terms of discovery it's bounded by rule twenty six th is a i think there's a policy issue here is well which what we really end up with it's one thing for the for the plaintiff to come forward and say we've got a new person we want to substitute and it's another thing for the court to actively say i am going to assist you in finding a new person by permitting this type of discovery into private and confidential information now the my opponents have said this isn't that important information it's contact information it's not just i mean i think that that's fundamental ways that fundamentally different i think the issue of notice under rule twenty three is fundamentally distinct from discovery so than the notice and that's why all the cases that discuss this talk about pre certified cation discovery the notice is fundamentally different in that it's not a vehicle for someone to say if i don't say i don't want to hear from you some lawyer is going to call me and ask me if i want to join a lawsuit it's simply a notice that sent out to the individual with no response required from them and nothing happens to them afterwards this is fundamentally different because it is an effort to solicit new clients by a private law firm and that's why i think we crossed the line in this starts to look like more of an inquisitorial system than an adversarial system and that's why again i come back to the pervasiveness and the consistency of the rulings here let me let me ask you this say anything at all about the federal rules of civil procedure correct correct though if there is any clear why isn't it just clear that he that the district court relied on well i think we were relaunching that that california that the california authority is not a political there is no reference to the federal there is no reference to the federal rules even the california authorities under california already with st american title and even pioneer don't go this direction so pioneer said a pioneer notice is appropriate for complaining customers this is about non complaining customers that have a higher level of privacy interest then do complaining customers so i agree with your honor that california maybe persuasive an advisory to some degree but it is not controlling here notwithstanding the fact that this was removed under katha clearly we are operating under the federal rules i have about three minutes left if i could reserve that good morning your honour's katherine honaker on behalf of mr rushing the real party and interest in this case and also attending with member ak mr richard baker i'd like to address the issues that the court raised and actually in reviewing all the materials for this here and i had the same thought about rule twenty three d i think the problem for the briefing at least was that the court's order did refer to it as pre certified patient discovery but then didn't refer to any specific rule so i think that left us to brief that issue only referred to get he relied on cash right exactly light on that and i also believe that if you would like us to brief twenty three dollars d i mean the parties would be happy to supplement the briefing on that topic right think the court was right and looking at the california court opinions because the california courts have determined that absent class members or punitive class members have an interest in the cases they have an interest in these cases and the court's duty is to protect the interest of those feud of class members or absent class members and he has that interest from day one and so when he asks you all of these balancing tests he looks at those interests and then he looks at the case that he knows he's been with this case for over two years it's been even longer now but he's gone through two motions to dismiss they were very detailed none of which brought up kentucky law so we're pursuing the claims under california law the entire time all of the all of the discovery is under california law and we're not even looking at needing another plaintiff because that's not in our in our sights at this point right so i think the court was correct and looking at california law for that and then bringing it into the federal procedural aspect because we have substantive issues and since this was removed under cappa we would look to california law for that and then bringing in obviously the procedural rules you know under rule twenty six dollars twenty three cents d and even eighty three dollars to issue an order to make it so we can actually execute its duties and make sure that the class is represented and i think it's also relevant and i'm going to traditional relevancy because one of the issues in the case is can we have a class can we have a class that is represented by an adequate  should have looked to federal law for guidance well he did in his motion to reconsider opinion he actually did discuss that he said yes i looked at california law here's why but also the result would be the same under federal law and he looked at cases like hatch and hatch talks about the discretion to do this in that case they found that the discretion to deny it was appropriate and they also made a note at the very beginning of that case that you have to look at the facts  to figure out why the outcome was what it was and the outcome was that the court was ok and exercise discretion find just fine in denying it because that was a ten think ten year nine or ten year saga of people in contempt of court filing cases that they should have been filing in all sorts of things the court found that that attorney in the case could not represent his own plaintiff well let alone a class and he shouldn't even have filed the case so it was completely appropriate so if you have discretion to deny it and that's the most egregious case possible to deny it you have to have discretion to grant it so the court used hatch as its authority and again you reminded the petitioners that this is a writ of mandamus and we understand that we could go through this entire case and then an appeal could come in this could all be changed but on a writ of mandamus the question is not the same as on appeal as on appeal the question is is there clear air clear abuse of discretion depending on the standard and we need to look at  controlling precedent petitioner's attorney mentioned that they listed twenty some odd district court cases and one court opinion from another circuit that's not controlling precedent the court you know below he were furred to some opinions in the th circuit and also district court opinions and reflected that that shows again that he has discretion because parts look at the case itself to figure out if it's appropriate to order this discovery and in our case he made this numerous findings about that well when he pointed out specifically in footnote ten on page one hundred and thirty nine that the class members had an interest in this case it had been actively litigated for two years including in our one of our later versions of the complaint we put in all of the testing results from testing these products so even that is in there so it's all been established in the complaint and the also the court also found that  mr rushing had standing under california law which he repeatedly said over and over but for the fact that he can't exercise that standing due to policy reasons that dictate choice of law and he also asserted plausible claims there was no though that is a great question so there isn't as a case all on your all four squares but it's perhaps gives recognizes discretion and we have even oppenheimer i will say that even helps him because in that case we had the court issuing just ordering classless discovery there were two issues really but only one that ended up being a real issue one was you know were going to order the defendant to produce a classless the nd was that they order the defendant to pay for that class list the only real would be produced to plaintiff counsel was not a concern and also the idea of solicitation to play as counsel i think that's different here we have a protective order and usually a protective order is enough you don't even need a pioneer notice but the protective order means that we cannot take this list and go out and solicit clients for other cases we can only use it for one purpose in this case to substitute the california class class rap potential class rap in this case so it's very different than saying we're soliciting clients all over the place and that this is an egregious act these are individuals where we've alleged that they cannot tell that they've been defrauded because the bed sheet thread counts here you just cannot tell that with your naked eye you have to go through testing and destroy the product so most people have no idea that they have been defrauded and the amount at issue isn't just a couple dollars most of these bedding products are doubled in price so we're talking about mr rushing in the materials we say that you know he paid over seven hundred dollars once it was all shipped to him that's a lot using else do you have a question at all with regard to the court's jurisdiction because i don't think the court has an issue with your stiction after the choice of law finding but if if you like to talk about that i'd be happy  would also just one final point i'm sorry just remember again that the court this court can uphold the district court's reasoning and his opinion for any reason it doesn't have to be simply because he listed pre surgery cation discovery under rule twenty six it could be under r twenty six under rule twenty three d under rule eighty three any of those reasons are fine for upholding the court's determination and so i would ask the court to please not grant that writ of mand reply you're on a referenced cash call that the district court relied upon the district court really relied upon cash call for the substantive issue of weighing the privacy interests and one was proper to protect the privacy interests in that case it didn't  any way address what i would say is that distinct procedural issue which is is this authorized by the federal rules and i think that it's important to think about that distinctly between that weighing of the privacy interest and the actual authority to grant this discovery of the concept that that twenty three d allows a court to supersede the authorization of twenty six of rule twenty six again i think is is does not exist in our jurispruden there are limits in rule twenty six as to matters that are relevant to the claims and defenses of the parties this is not relevant to any claims or defenses of mr rushing because it seeking identities of california individuals where mr rushing has no california cause of action open however seems to be your best case i think it's the it's the clearest case that there are there are boundaries to rule twenty six in twenty of the court's opinion the court said we do not know who that class members names and addresses can never be obtained under the discovery rule correct there are all sorts of situations where they are where it's relevant for rule twenty three discovery issues for commonality for typicality there may be instances where this information could be relevant to issues that arise under rule twenty three or where a party has reason to believe that communication with some members of the class could yield information bearing on these or others or other issues that's correct and that's exactly the language that the other cases look at when they're talking about discovery authorized for an active rule twenty three classification issue which isn't present here the court has made this very clear it's for the limited purpose of replacing a plaintiff in addition again oppenheimer you are correct ruled on certification so technically oppenheimer's opposed certification case but it is autarky about situations where class discovery is appropriate i'm not saying it's never appropriate there are all sorts of cases where it has been there has never been a case where it has been determined appropriate for this purpose and i don't believe plaintiff has offered any reason or thora he to establish that this court should be the st one to authorize it for that purpose with respect to hatch it doesn't really get anyone there hatch said i have to i have discretion not to grant this discovery so it was really a weighing again of the need for discovery rather than a question of the authorization to actually grant it so any time again that the court is acting outside of its authorization this goes i guess to the standard of review i would say at that point we are talking about a do novo review rather than an abuse of discretion standard because we're really interpret ing what the scope of the federal rules are and we've  the republic of ecuador case for that proposition unless the court has any further questions thank you thank you counsel interesting case matters submitted at this time and i believe that's our last case for today so that ends our session thank you all very much