Before
Selya, Circuit Judge,
Souter,** Associate Justice,
and Lipez, Circuit Judge.
SELYA,
Circuit
Judge.
The
management
of
complex
not boundless.
In the case at hand, two case management orders crossed
this line: an order that totally denied plaintiffs' counsel access
to their own clients and an order that prevented the plaintiffs
from seeking plainly relevant discovery.
Accordingly, we vacate
BACKGROUND
The background facts are set out in exegetic detail in a
prior opinion of this court and in the opinion of the court below.
See Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77 (1st Cir.
2010); Cassie M. ex rel. Irons v. Chafee (Cassie III), 16 F. Supp.
3d 33 (D.R.I. 2014). We assume the reader's familiarity with those
narratives and rehearse here only the events that bear directly on
the issues sub judice.
This putative class action was brought on behalf of ten
foster children in the custody of the Rhode Island Department of
Children, Youth and Families (DCYF).
failed
to
in
various
respects
with
the
Adoption
State
moved
to
dismiss
the
complaint,
and
the
the proposed next friends did not satisfy Rule 17's requirements.1
See Sam M. ex rel. Elliott v. Carcieri, 610 F. Supp. 2d 171, 181-84
(D.R.I. 2009).
After
In addition,
plaintiffs as moot.
the
court
dismissed
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the
claims
of
three
94.
On remand, the case was transferred to a different trier.
See D.R.I. R. 105(b).
court
dismissed
as
moot
the
claims
Although the
of
five
more
The
-5-
discovery.
See Cassie M. ex
rel. Irons v. Chafee (Cassie I), No. 07-241, slip op. at 3 (D.R.I.
Dec. 17, 2012) (unpublished).
See id. at 2.
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This
depiction was consistent with the way in which the plaintiffs had
characterized the protective order in their appeal to the district
judge.
Another development transpired while the parties were
sparring over the scope of discovery.
They
would
soon
age
out
of
DCYF
custody.
Following
Acting on her
own suggestion, the judge declared that she would set the case for
trial on the individual claims without awaiting summary judgment
motions.
-7-
The judge
had been able to depose certain DCYF policymakers, she stated that
she "believe[d] that the Plaintiffs had an opportunity and have
received
policies,
evidence
and
procedures,
discovery
[and]
on
the
customs."
question
In
of
regard
[DCYF's]
to
her
The State
See Cassie
Judgment
ANALYSIS
The plaintiffs advance a compendium of claims of error.
without
sufficient
reason
from
meeting
with
their
Access to Counsel.
lawyers.
See
The situation is
complicated where, as here, the minors are foster children who are
suing
the
State.
structural
conflict
As
we
of
previously
interest
when
noted,
it
the
comes
State
to
has
decisions
See Sam
A fundamental principle
See Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 257
(1st Cir. 1986); Potashnick v. Port City Constr. Co., 609 F.2d
1101, 1117-18 (5th Cir. 1980).
-11-
order
counsel's
discussion
of
discovery
1119
(reversing
judgment
where
court
unreasonably
barred
See
Doe, 697 F.2d at 1120; In re Ti.B., 762 A.2d 20, 29-30 (D.C. 2000);
cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02 (1981) (discussing
restrictions on communications with potential class members, and
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The
that's
what
the
next
friends
are
for."
But
this
for access was untimely because it was filed after the close of
discovery.
But
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court that the purpose of the proposed meetings was to prepare for
trial and to determine whether their clients wished to testify.4
At any rate, the plaintiffs' interest in speaking with
their counsel plainly persisted beyond the close of discovery.
Even though there was a legitimate concern that counsel might
obtain and attempt to introduce new information in derogation of
the discovery deadline, the district court had the ability to
prevent the use of such new information without resorting to a
total denial of access.
slay a mouse, and the court could have allowed the meetings to
proceed and simply excluded any newly discovered matter if and when
the plaintiffs attempted to use it at trial.
The
We do not agree.
The
psychological
examinations
served
an
entirely
was
impossible.
That
the
court
allowed
the
evidence that the plaintiffs might suffer any harm from such
meetings.5
the court may make orders that are necessary and appropriate to
protect the child's interests.
Palmolive Co., 199 F.3d 642, 652 (2d Cir. 1999); Dacanay v.
Mendoza,
573
F.2d
1075,
1079
(9th
Cir.
1978).
Withal,
the
We hold,
of
that
magnitude
is
imposed
Where, as here, a
without
substantial
-17-
It follows
B.
Protective Order.
We
We will disturb a
& Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989).
Though this
See Ji v. Bose Corp., 626 F.3d 116, 122 (1st Cir. 2010);
The parties and the court below appear to use the terms
"policies and customs," "policies, practices, and customs," and
"policies and practices" interchangeably. For ease in exposition,
we refer throughout to policy and custom discovery.
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that the plaintiffs must prove that a policy or custom of the State
contributed to the alleged violations of federal law in order to
prevail.
Here, moreover,
Devaughn, 594 F.3d 1188, 1197-98 (10th Cir. 2010); see also Helling
v. McKinney, 509 U.S. 25, 33-34 (1993) (explaining that injunction
may issue to remedy constitutional violation without waiting for
manifested harm).
Against this backdrop, we examine the protective order.
The
lack
of
separate
document
embodying
the
terms
of
the
have.
The
rescript.
the
magistrate
judge
made
his
protective
order
as
limiting
ruling
in
written
discovery
to
"nonprivileged
order,
see
Id. at 2.
Fed.
R.
P.
72(a),
plausibly
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and
custom
discovery
(which
it
argued
should
not
be
allowed).
The
district
judge
upheld
the
proscription.
She
concluded that the protective order was in line with her decision
to
resolve
the
individual
claims
before
addressing
class
protective order.
The
of
district
court
order
can
sometimes
best
be
Thus,
1985)
(finding
abuse
of
discretion
when
court
limited
Given the
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That
is
exactly
what
happened:
the
district
judge
It is,
unpersuasive.
The State begins with a suggestion that any failure to
obtain policy and custom evidence is the plaintiffs' fault.
It
maintains that the magistrate judge's decision left the door open
for policy and custom discovery, and the plaintiffs had they
elected to do so could have walked through that portal.
The
State's
argument
emphasizes
statement
in
the
magistrate judge's December 17, 2012 rescript to the effect that "a
reasonable range of discovery focused on the [plaintiffs] and the
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But
any
ambiguity
created
by
this
language
was
[the
discovery").
plaintiffs]
from
seeking
policy
or
practice
After
all, the plaintiffs did introduce some policy and custom evidence
at trial.
-23-
The
only thing about which we can be certain is that policy and custom
discovery was completely off limits after the magistrate judge
issued the protective order.8
Finally, the State exhorts us to affirm the protective
order on the ground that the plaintiffs failed to specify what
policy and custom information they were seeking when they moved to
reopen discovery prior to trial.
the
magistrate
judge
and
the
district
judge
expressed
balance
competing
considerations
of
relevance
and
Class Certification.
the
proceedings
below,
the
plaintiffs
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this
case
must
be
remanded
for
further
We
The
Price
Litig.),
588
F.3d
24,
40
(1st
Cir.
2009)
-26-
wait to certify the class until the court feels it understands the
case and the issues it raises"); Wright v. Schock, 742 F.2d 541,
543 (9th Cir. 1984) (similar).
Class certification decisions are context-specific, and
each case must be viewed in terms of its own facts.
As a general
Bridgestone Retail Operations, LLC, 751 F.3d 888, 896 (8th Cir.
2014); Curtin v. United Airlines, Inc., 275 F.3d 88, 93 (D.C. Cir.
2001); Cowen v. Bank United of Tex., 70 F.3d 937, 941 (7th Cir.
1995);
Wright,
742
F.2d
at
543-44.
In
such
situation,
may
prove
inefficient;
substantial prejudice.
at
worst,
doing
so
may
create
552, 558-59 (8th Cir. 1982); Stastny v. S. Bell Tel. & Tel. Co.,
628 F.2d 267, 275 (4th Cir. 1980); see also Rodriguez v. Banco
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staging a case in this manner puts the cart before the mule.
With
these
considerations
in
mind,
we
counsel
the
CONCLUSION
We need go no further.
field.
Here,
however,
the
two
errors
that
we
have
the
imposition
of
an
overly
broad
protective
order
Consequently, we must
vacate the judgment and remand the case for further proceedings
consistent with this opinion.
the plaintiffs.
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