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No. 20-1029 – State of West Virginia ex rel. Health Care Alliance, Inc., and HCFS Health 

Care Financial Services, LLC d/b/a Alcoa Billing Center v. The Honorable 

Eric O’Briant, Judge of the Circuit Court of Logan County, and Kelsey 

Starr

Justice Hutchison, concurring:

The central issue in this class-action case concerns certification-related

discovery to determine whether the plaintiff can meet the prerequisites of Rule 23 of the 

West Virginia Rules of Civil Procedure and, if certification of a class is proper, the 

boundaries of the class and the issues to be resolved in the action. I concur with the 

majority’s opinion, but I write separately to assure the circuit judge below that his decision 

was not wrong but was, instead, likely premature.

This Court has said that a class action may only be certified if the circuit 

court is satisfied, after a rigorous and thorough1

analysis, that the four prerequisites of Rule 

23(a), and at least one of the subdivisions of Rule 23(b), have been satisfied. See Syl. pt. 

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I anticipate that every judge applies a proper legal analysis to every question 

presented in his or her courtroom, and a judge does not need reminders from this Court to 

be “rigorous,” “thorough,” or “reasonable.” When I see Court opinions that rely upon these 

modifiers, I am reminded of a scene in the courtroom drama A Few Good Men (1992). As 

the lawyers are standing in an empty courtroom at the close of proceedings, one lawyer 

chides another lawyer over her failed “strenuous” objection to a witness’s testimony. The 

lawyer (Lieutenant Weinberg) says, sarcastically:

“I strenuously object?” Is that how it works? Hm?

“Objection.” “Overruled.” “Oh, no, no, no [your honor]. No, 

I strenuously object.” “Oh. Well, if you strenuously object 

then I should take some time to reconsider.”

FILED

June 15, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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8, In re W. Va. Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003); Syl. pt. 8, State ex rel. 

Chemtall Inc. v. Madden, 216 W. Va. 443, 607 S.E.2d 772 (2004); Syl. pt. 7, State ex rel. 

Surnaik Holdings of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020). “Whether 

the requisites for a class action exist rests within the sound discretion of the trial court.” 

Syllabus Point 5, Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).

When a plaintiff moves to certify a class and, in so doing, offers detailed and 

undisputed facts, it is easier for a circuit court to determine the existence and boundaries 

of the class under the terms of Rule 23. Having the parties confer and stipulate as to 

relevant facts that are not genuinely disputed also assists a court in assessing whether the 

Rule 23 prerequisites have been met and in refining the issues for class resolution. But 

when the plaintiff has not clearly established the facts regarding class certification in the 

pleadings, or when a party opposing a class action disputes the facts or asserts that the 

claims raise individual issues, then a circuit court must consider whether certificationrelated discovery is needed “to determine if the prerequisites of Rule 23 have been met 

and, if so, how to define the class.” David F. Herr, Annotated Manual for Complex 

Litigation § 21.14 (4th ed. 2021).

This Court approved of precertification discovery in the per curiam opinion 

of Love v. Georgia Pacific Corporation, 214 W. Va. 484, 488, 590 S.E.2d 677, 681 (2003), 

and said that “reasonable discovery related to class certification issues is appropriate, 

particularly where the pleadings and record do not sufficiently indicate the presence or 

absence of the requisite facts to warrant an initial determination of class action status.”
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Other courts have likewise held that “it is essential that a plaintiff be afforded a full 

opportunity to develop a record containing all the facts pertaining to the suggested class 

and its representatives. It is seldom, if ever, possible to resolve class representation 

questions from the pleadings[.]” Int’l Woodworkers of Am., AFL-CIO, CLC v. Chesapeake 

Bay Plywood Corp., 659 F.2d 1259, 1268 (4th Cir. 1981). The leading treatise on classaction law provides that a class-action plaintiff 

must demonstrate that the case meets all of the requirements of 

Rule 23(a), [and] fits into one of the categories of Rule 23(b) . 

. . If facts are contested with regard to any of these issues, the 

plaintiff is entitled to develop those facts through the formal 

discovery process. Correlatively, the defendant is entitled to 

utilize those same discovery devices to demonstrate that the 

facts cut against certification.

William B. Rubenstein, 3 Newberg on Class Actions § 7:14 (5th ed. 2021). See also, Vinole 

v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Our cases stand for 

the unremarkable proposition that often the pleadings alone will not resolve the question 

of class certification and that some discovery will be warranted.”); Landsman & Funk PC 

v. Skinder-Strauss Assocs., 640 F.3d 72, 93 (3d Cir. 2011) (“[A]llowing time for limited 

discovery supporting certification motions may . . . be necessary for sound judicial 

administration.”); Joseph M. McLaughlin, 1 McLaughlin on Class Actions § 3:7 (17th ed. 

2020) (“[I]n most cases discovery into issues relevant to class certification is warranted 

and appropriate.”).

If certification-related discovery is needed, then the extent of that discovery 

is at the discretion of the circuit court. See Heerwagen v. Clear Channel Commc’ns, 435 
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F.3d 219, 233 (2d Cir. 2006) (“The amount of [class] discovery is generally left to the trial 

court’s considerable discretion.”); Baldwin & Flynn v. Nat’l Safety Assocs., 149 F.R.D. 

598, 600 (N.D. Cal. 1993) (“[T]he extent of pre-certification discovery is at the discretion 

of the trial court.”); 5 Moore’s Federal Practice § 23.85[1] (“District courts have 

considerable discretion to determine whether, and to what extent, to allow discovery with 

respect to class certification issues.”). When the circuit court cannot fairly assess the 

propriety of class certification without discovery, it is an abuse of discretion to deny it. 

Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1312 (9th Cir. 1977) (“It is clear that under 

some circumstances the failure to grant discovery before denying class treatment is 

reversible error.”).

There is a theoretical distinction between discovery on the “merits” of a class 

action and discovery into “certification issues,” but that distinction is often blurred in 

practice:

Courts often bifurcate discovery between certification issues 

and those related to the merits of the allegations. Generally, 

discovery into certification issues pertains to the requirements 

of Rule 23 and tests whether the claims and defenses are 

susceptible to class-wide proof; discovery into the merits 

pertains to the strength or weaknesses of the claims or defenses 

and tests whether they are likely to succeed. There is not 

always a bright line between the two. Courts have recognized 

that information about the nature of the claims on the merits 

and the proof that they require is important to deciding 

certification. Arbitrary insistence on the merits/class discovery 

distinction sometimes thwarts the informed judicial assessment 

that current class certification practice emphasizes.

Annotated Manual for Complex Litigation, § 21.14.
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In the instant case, the plaintiff sought certification-related discovery from 

the defendants regarding the existence and parameters of the class action. However, the 

plaintiff also sought medical bills concerning individuals who are not parties – individuals 

some cases call “putative class members” or “putative parties” – and sought the names, 

addresses, and account information of those individuals. The circuit judge’s instinct that 

this information is often discoverable was not entirely wrong. Let me explain.

Newberg’s treatise on class action law offers the following discussion 

regarding the scope of certification-related discovery:

The certification motion requires a court to look at 

issues of numerosity, commonality, typicality, adequacy of 

representation, counsel’s adequacy, and, depending upon the 

type of class suit, issues such as the limitations of a fund, the 

need for injunctive relief, or the predominance of common 

issues and the superiority of the class device.

Any of these inquiries may involve contested factual 

questions. In developing those facts, the basic parameters of 

Rule 26 apply in the first instance: the parties may discover any 

relevant information that is not privileged.

3 Newberg on Class Actions § 7:16.

Rule 26(b) of our Rules of Civil Procedure provides that the “[p]arties may 

obtain discovery regarding any matter, not privileged, which is relevant to the subject 

matter involved in the pending action[.]” Unfortunately, on the facts of this case and, more 

significantly, at this stage in the case, the plaintiff has not shown how the names, addresses, 

and account information of the non-party individuals—that is, the putative class 

members—were relevant. Specifically, the plaintiff sought to show that there were 
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numerous putative class members in West Virginia who received allegedly fraudulent 

billings from the defendants, so many that joinder of those individuals in one case would 

be impractical; that there was some question of law or fact common to the plaintiff and 

those putative class members; and that the plaintiff’s claims were typical of the claims 

those putative class members could assert. See Rule 23(a). However, the names of these 

other non-party individuals, these putative class members, would do nothing to prove these 

elements. Aside from those persons’ residency in West Virginia, their actual addresses 

would not prove these elements. Moreover, the sort of medical procedure they received, 

or the name of the doctor who provided the medical service, is irrelevant to the factors in 

Rule 23(a). The same goes for the three elements in Rule 23(b).

Our opinion in this case finds that the circuit judge’s discovery orders are not 

“reasonable.” This is not because the information is not generally discoverable, but 

because it is not discoverable at this stage of the proceedings. As I said, the circuit judge’s 

instinct in requiring the defendant to provide this information was not wholly off the mark. 

“The disclosure of names, addresses, and telephone numbers is a common practice in the 

class action context.” Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011). The 

United States Supreme Court has recognized the importance of permitting class counsel to 

communicate with potential class members for the purposes of gathering information, even 

prior to class certification. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 102-03 (1981). “[A]s 

a general rule, before class certification has taken place, all parties are entitled to equal 

access to persons who potentially have an interest in or relevant knowledge of the subject 
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of the action, but who are not yet parties.” Koo v. Rubio’s Restaurants, Inc., 135 Cal. Rptr. 

2d 415, 428 (Cal. App. 2003).

But, at this early stage of the proceedings, the plaintiff failed to show how 

the personal, medically related information sought is relevant to the circuit court’s 

assessment of whether to certify a class action. Given the manner in which the plaintiff 

has framed her case, she has failed to show an entitlement to the information. Hence, 

although it was a close call, it was an abuse of discretion for the circuit court to have 

required its production. Whether that information becomes discoverable down the road 

remains to be seen.

I otherwise concur with the majority’s opinion.