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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MARY GUTIERREZ and SHAWN )

POLK, on their own behalfs and on behalf )

of a class of those similarly situated, )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:16-CV-111-JVB-PRC

)

CITY OF EAST CHICAGO and the )

HOUSING AUTHORITY OF THE CITY )

OF EAST CHICAGO, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion to Compel Discovery [DE 59], filed

by Plaintiffs Mary Gutierrez and Shawn Polk on behalf of the certified class on January 6, 2017. 

Defendant Housing Authority of the City of East Chicago (“ECHA”) filed a response on January 

20, 2017. Plaintiffs filed their reply on January 25, 2017. 

BACKGROUND

On October 5, 2016, the Court granted Plaintiffs’ Motion for Preliminary Injunction,

issuing a preliminary injunction prohibiting ECHA from conducting warrantless, non-consensual 

searches of tenant apartments when there are no exigent circumstances and requiring ECHA to 

obtain consent from the tenant or, if consent is not given or cannot be obtained, to obtain a warrant 

for all administrative searches that are not based on exigent circumstances. The Court also issued 

a preliminary injunction requiring ECHA and the City of East Chicago to end their warrantless 

drug search policy using drug-sniffing dogs as well as all other warrantless searches without 

exigent circumstances or consent. The same date, the Court granted Plaintiffs’ Motion for Class 
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Certification under Federal Rule of Civil Procedure 23(b)(2), certifying a class consisting of “all 

current and future tenants of properties owned and managed by the East Chicago Housing 

Authority (ECHA).” (ECF 54, p. 2). The Court found that the class consisted of approximately 

645 members. 

On November 17, 2016, Plaintiffs served Defendant ECHA with their First Interrogatory,

requesting “the names and mailing addresses of all tenants currently residing in properties owned 

and managed by ECHA” as well as the addresses of unoccupied units owned and managed by 

ECHA.

On December 21, 2016, ECHA served a written response, objecting that the interrogatory 

is unreasonably overbroad. ECHA also objected that the Federal Rules of Civil Procedure do not 

mandate that class members be addressed by name and that “sufficient notice can be provided to 

all tenants without addressing them by name.” (ECF 59-2). ECHA proposed providing the 

addresses of current residents, but not the names.

The following day, counsel conferred telephonically in an attempt to resolve the dispute.

Counsel for Plaintiffs explained that Plaintiffs sought the names of the tenants not only for 

purposes of notification of the preliminary injunction but also to identify individuals who, by virtue 

of being subject to ECHA’s search and inspection policy, had information relevant to Plaintiffs’ 

claims. The parties were unable to reach an agreement. On January 6, 2017, Plaintiffs filed the

instant Motion to Compel Discovery. 

ANALYSIS

Plaintiffs seek to compel Defendant ECHA to release the names and mailing addresses of 

all current residents and a list of the unoccupied units in buildings owned and managed by 

Defendant ECHA. Plaintiffs argue that the information is required for Plaintiffs’ counsel to provide 
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adequate notice of the preliminary injunction and to assist Plaintiffs’ counsel in the discovery 

process by identifying relevant witnesses and facts about ECHA’s warrantless search policy. 

Federal Rule of Civil Procedure 37(a)(3)(B) provides, in relevant part, that a “party seeking 

discovery may move for an order compelling an answer . . . if . . . a party fails to answer an 

interrogatory submitted under Rule 33.” Fed. R. Civ. P. 37(a)(3)(B)(iii). ECHA, the objecting 

party, bears the burden of showing why the discovery request is improper. McGrath v. Everest 

Nat’l Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008). The Court addresses each of Plaintiffs’ 

bases for seeking this discovery in turn.

First, Plaintiffs argue that the names and addresses of tenants currently living in an ECHA 

owned property, as well as a list of vacant properties, are necessary to provide adequate notice to 

the members of the certified class of their rights and of the content of the Preliminary Injunction 

issued by the Court. In informal discussions, ECHA communicated its belief that Plaintiffs can 

sufficiently contact the class members without using their names. Plaintiffs argue that Federal Rule 

of Civil Procedure 23(c)(2)(B) requires “the best notice that is practicable under the circumstances, 

including individual notice to all members who can be identified through reasonable effort.” Fed. 

R. Civ. P. 23(c)(2)(B); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 349 (1978).

However, the citation to Rule 23(c)(2)(B) is inapposite for two reasons. First, Plaintiffs are 

not asking for the class members’ names and addresses to provide class-wide notice within the 

meaning of Rule 23(c)(2)(A), which governs classes certified under Rule 23(b)(2), as in this case. 

For a Rule 23(b)(2) class, the “court may direct appropriate notice to the class.” Fed. R. Civ. P. 

23(c)(2)(A). The Court has not done so in this case. Rather, Plaintiffs use the term “notice” to 

mean their intention to communicate with class members on important developments in their case, 

including the Court’s entry of the Preliminary Injunction.
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Second, even if Plaintiffs were seeking formal notice, Rule 23(c)(2)(B) and its notice 

requirement of “best notice that is practicable,” cited by Plaintiffs, applies only to a class certified 

under Rule 23(b)(3). Again, the class in this case was certified under Rule 23(b)(2) and is governed 

by the notice provision of Rule 23(c)(2)(A), which does not include the “best notice that is 

practicable” language of Rule 23(c)(2)(B). The United States Supreme Court has recognized that 

members of a class certified under Rule 23(b)(2) are not entitled to notice or opt out rights as are 

members of a class certified under Rule 23(b)(3). Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

360, 362-63 (2011).

Although Plaintiffs’ reliance on the notice requirements of Rule 23(c)(2)(B) is misplaced, 

counsel’s desired intent to communicate with the class is well taken, especially to make them 

aware of the Preliminary Injunction. 1 The class in this case has already been certified, and ECHA 

offers no argument why class counsel should not be in communication with the members of the 

class regarding the preliminary injunction and the ongoing litigation. The Court finds that the 

discovery request is appropriate in order for class counsel to communicate with the members of 

the certified class.

Separately, Plaintiffs are entitled to the list of names and addresses because the information 

requested is relevant and discoverable, which is Plaintiffs’ second basis for seeking the 

information. Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain 

discovery regarding any nonprivileged matter that is relevant to the party’s claim or defense and 

proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The relevance standard 

encompasses “any matter that bears on, or that reasonably could lead to other matter[s] that could 

 1 In their opening brief, Plaintiffs also cite cases addressing conditional certification of collective actions under the 

Fair Labor Standards Act, which are equally inapposite for purposes of the instant motion because, under Section 

216(b), class members must opt in to the class. See (ECF 60, p. 5).
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bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 

340, 351 (1978).

In opposing this discovery, Defendants cite Oppenheimer for its holding that a request to 

obtain the names and addresses of class members “[could] not be forced into the concept of 

‘relevancy’” when the party seeking the information has not provided a use for the information 

other than to provide notice to the certified class. (ECF 61, p. 2) (quoting Oppenheimer, 437 U.S. 

at 350-52). In Oppenheimer, which dealt with a Rule 23(b)(3) class, the petitioners requested that 

the respondent bear the cost of compiling a list of all class members on whom notice should be 

served under Rule 23. The Supreme Court held that, because the request was made only to enable 

the sending of class notice and not for any other purpose, the request was governed by Federal 

Rule of Civil Procedure 23(d) and not the relevancy standard of Rule 26(b)(1). Oppenheimer, 437 

U.S. at 350.2

Defendants also cite, Swelnis v. Universal Fidelity L.P., in which the plaintiff requested

the names and addresses of potential class members only to establish numerosity under Rule 23(a). 

No. 2:13-CV-104, 2014 WL 1571323, at *3 (N.D. Ind. Apr. 17, 2014). The Court in Swelnis

followed the holding in Oppenheimer that “the names and addresses of potential class members 

do not fall within the scope of allowable discovery” because plaintiff provided no other use for the 

information that would allow for discovery under other methods, such as Federal Rule of Civil 

Procedure 26. Id. at *2. Therefore, names and addresses were not discoverable. Id. at *3. Swelnis

was also concerned with a Rule 23(b)(3) class.

 2 Rule 23(d) permits the court, in conducting an action under Rule 23, to issue orders “that . . . require . . . giving 

appropriate notice to some or all class members . . . at any step in the action . . . .” Fed. R. Civ. P. 23(d)(1)(B). At 

this time, the Court has not issued such an order in this case.
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In this case, which concerns a Rule 23(b)(2) class, Plaintiffs’ request differs from those in 

Oppenheimer and Swelnis because the request is not based solely on a desire to give notice to the 

members of a Rule 23(b)(3) class or for class certification. In addition to the desire to communicate 

with the class members, Plaintiffs seek the names and addresses of current tenants to identify and 

contact individuals and potential witnesses who have knowledge about Defendants’ search and 

inspection policy and practice, to which all tenants are subject. See In re FedEx Ground Package 

Sys., Inc., 3:05-MD-527 (MDL-1700), 2007 WL 79312, at * 3 (N.D. Ind. Jan. 5, 2007) (allowing

discovery of the names of individual employees of Fedex to gain witnesses who could testify about 

their employment relationship); see also Taylor v. Universal Auto Group I, Inc., No. 1:14-MC-50, 

2015 WL 2406071, at *4-5 (S.D. Ohio May 20, 2015) (allowing list of names and contact 

information to be exchanged in pre-certification discovery for class action (citing Kane v. Nat’l 

Action Fin. Servs., Inc., No. 11-11505, 2012 WL 1658643, at *7 (E.D. Mich. May 11, 2012))). 

This information is central to Plaintiffs’ claims concerning the constitutionality of Defendants’ 

policy. For example, Plaintiffs argue that the information is relevant to discover how, in practice, 

Defendants conduct the searches and inspection and whether Defendants routinely combine 

criminal and administrative searches without the knowledge of the tenants. ECHA tenants have 

relevant information concerning most aspects of Plaintiffs’ claims. In its response brief, ECHA 

ignores this relevance argument and, thus, does not contest the relevance of the discovery. The 

Court finds that a list with tenant names and addresses is relevant to an “issue that is or may be in 

the case,” Oppenheimer, 437 U.S. at 351, and discoverable.

In its response brief, ECHA argues that, absent a court order, it cannot disclose personally 

identifiable information furnished by tenants, such as names and addresses, because they fall 

within the definition of the Federal Privacy Act. The instant Order, which finds the discovery 
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relevant, now requires ECHA to produce the names and addresses. In addition, as discussed by 

Plaintiffs in footnote 5 of their reply brief, a protective order may be an adequate remedy to balance 

Plaintiffs’ need to access this information while protecting the privacy rights of ECHA residents. 

The Court orders the parties to confer as to whether ECHA seeks a protective order regarding this 

discovery. If so, the Court orders the parties to file a Motion for Agreed Protective Order, with the 

proposed Agreed Protective Order attached as an exhibit.

Finally, Plaintiffs request their reasonable expenses incurred in making this motion. 

Federal Rule of Civil Procedure 37(a)(5)(A) provides that, if a motion to compel is granted, “the 

court must, after giving an opportunity to be heard, require the party or deponent whose conduct 

necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s 

reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 

37(a)(5)(A). However, the court must not order the payment if “(i) the movant filed the motion 

before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the 

opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other 

circumstances make an award of expenses unjust.” Id. Having considered the parties’ arguments, 

the Court finds that imposing an award of reasonable expenses would be unjust in light of ECHA’s 

concerns regarding the tenants’ privacy.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS Plaintiff’s Motion to Compel 

Discovery [DE 59] but denies Plaintiff’s request for attorney’s fees made therein. 

Should ECHA request a Protective Order as to this discovery, the Court ORDERS the 

parties to FILE on or before March 16, 2017, a Joint Motion for Agreed Protective Order (with 

the proposed Agreed Protective Order attached as an exhibit).
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The Court further ORDERS Defendant Housing Authority of the City of East Chicago to 

serve a complete response to Plaintiffs’ First Interrogatory on or before March 30, 2017, but after 

the Agreed Protective Order is entered, if any.

SO ORDERED this 2nd day of March, 2017. 

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES MAGISTRATE JUDGE