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If I am automatically opted into a class action suite (against the Arizona Department of Revenue in this case) is the burden of discovery enforceable According to the notice "As a Class member" you must provide documents upon written request of the defendant.

The potential of significant burden of proof at potentially a great time and processing cost to me is imposed. This seems very unusual to me. Every class action I have previously been opted into basically states that if I don't provide any documentation of personal damages, I simply am not entitled any. That is NOT the way this document reads at all. It very simply and clearly states the following:

  1. I am automatically opted in and would have had to opt out (typical).
  2. As a member I MUST comply with document requests (not typical).

Maybe as a followup question, what would happen if I didn't comply? Would I be in contempt of court?

  • Is this hypothetical case filed in federal court or AZ state court? – D M Dec 7 '17 at 20:54
  • @DM It is not hypothetical. It is "Superior Court of the State of Arizona in the Arizona Tax Court" – maplemale Dec 7 '17 at 20:56
  • Here is a link to the publicly accessible notice in case anyone is interested. azdor.gov/Portals/0/ClassActionNotices/… – maplemale Dec 7 '17 at 21:05
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It very simply and clearly states the following:

I am automatically opted in and would have had to opt out (typical). As a member I MUST comply with document requests (not typical).

It is certainly permissible to subject class members to discovery obligations like a party in any other lawsuit. Also, even if you were not a party, any party to the action could subpoena you anyway. Membership in the class is notable because it subjects you to the jurisdiction of the court, so the subpoena or discovery rule equivalent could be imposed by the primary court rather than with the cooperation of another court with jurisdiction over you using "letters rogatory" or the extended subpoena jurisdiction of the federal courts relative to state courts.

The fact that you are a member of the class unless you opt out, and hence didn't affirmatively consent, is also not very material. People are involuntarily named as defendants and required to comply with discovery requests all the time (although arguably defendants can default and have a judgment enter against them rather than contesting liability which exposes them to discovery).

Maybe as a followup question, what would happen if I didn't comply? Would I be in contempt of court?

It depends upon the nature of the discovery request.

Normally, Arizona Rule of Civil Procedure 37 governs the sanctions for non-compliance with discovery and those include many possible sanctions other than contempt of court in particular situations for particular kinds of defaults, although there are circumstances when defying a court order related to discovery such as a motion to compel could give rise to contempt of court sanction. I don't know if the Arizona Tax Court has special rules on this subject. I've never heard of a class action brought in a state tax court.

Contempt of court sanctions are the pretty much exclusive remedy when a non-party fails to comply with a subpoena issued by a party.

  • I think that makes sense, just to clarify: A non-party member would have to be subpoenaed, correct? Just curious... – maplemale Dec 8 '17 at 0:44
  • @maplemale Yes. A non-party member would have to be subpoenaed which must be personally served under Rule 45, while a member could be served by mail under Rule 5 with, e.g., a request to produce or notice of deposition. – ohwilleke Dec 8 '17 at 18:28
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According to the Rules of Civil Procedure for the Superior Courts of Arizona:

"A party may move for an order compelling disclosure or discovery." If that order is granted, and you don't comply, then presumably this applies:

(2) Sanctions by the Court Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(b)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 35 or 37(a), the court where the action is pending may enter further just orders. They may include the following:
(i) directing that the matters described in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment, in whole or in part, against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

So yes, it is possible that you would be found in contempt.

But if, as you say, "The potential of significant burden of proof at potentially a great time and processing cost to me is imposed", also keep in mind this rule:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or alternatively, on matters relating to a deposition, the court in the county where the deposition will be taken. Subject to Rule 26(c)(4), the court may, for good cause, enter an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...

  • "Class actions should only be certified if "the claims or defenses of the representative parties are typical of the claims or defenses of the class", and if discovery is needed for all members, then it seems to me that it's not a very good case for class action." I wonder if the main goal of this provision is for the class members through their attorney to consent to disclosure of their state Department of Revenue files in connection with the litigation, notwithstanding the ordinary rule that they are confidential. – ohwilleke Dec 7 '17 at 22:07
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    Actually, after reading the thing, it's not actually saying there IS discovery, just that there MIGHT be. So I think I'll just delete that paragraph. – D M Dec 7 '17 at 22:27
  • That's a good point about it being kind of a shaky case for class action if discovery was needed for all members! And true enough, it is in effect saying that discovery MIGHT occur. This just seems non-typical for a class action to me. One would assume that by opting out, that burden is less likely to fall on a non-member since that would require a subpoena? All so odd to me. – maplemale Dec 8 '17 at 0:47

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