M.D. Ala.: E-Discovery Consultant's Database Review Insufficient to Certify Class

Last week, Judge Royce Lamberth issued a decision, McCullough v. City of Montgomery, No. 2:15-cv-463-RCL, 2020 U.S. Dist. LEXIS 241634 (M.D. Ala. Dec. 23, 2020) denying the Plaintiffs' motion for class certification.


In order to assist them in ascertaining the class members, the Plaintiffs engaged an e-discovery consultant who was tasked with reviewing data in court databases tracking the probation records of a municipal court and a probation services company. The Plaintiffs' suits alleges that the Due Process Clause, the Equal Protection Clause, and 42 U.S.C. § 1983 (which provides a right to sue state governments for civil rights violations) were violated when traffic offenders were jailed for failing to pay fines.


The database records did not show whether or not plaintiffs whose sentences were commuted from fines to jail time actually served that jail time, or if the probation service which is a co-defendant in the case was responsible for supervising that probation. The databases only tracked when fines had been commuted to jail time. Judge Lamberth noted that transcripts and release orders often did not make clear if offenses resulted in actual jail time, or if probationers would have served the same amount of jail time for other offenses for which the commuted time would have been served concurrently. He concluded that:

"The work and testimony of plaintiffs' expert Mr. Rubens [the e-discovery consultant] confirms that the class is not ascertainable. At the class certification hearing, Mr. Rubens repeatedly told the Court that the plaintiffs' attorneys had to make 'judgment calls' about whether or not to include people on the class lists when his work did not produce a definite answer. During direct examination, Mr. Rubens analogized this attorney review process to document review in discovery where a consultant may filter documents before an attorney makes a legal judgment about whether the document is responsive or non-responsive. But that analogy does not hold for the application of objective fact-based criteria like class parameters. If applying class parameters requires legal judgment, then the class has not been objectively defined." Id. at *45-46.


The Court further faulted Rubens for being unable to explain at a hearing why certain individuals who should have been members of the defined class were omitted, and criticized his methodology because exhibits showed it was inconclusive in establishing whether or not some individuals were class members. The Plaintiffs thus could not certify a class for their civil rights claim.


The Plaintiffs also sought to certify a class for an abuse of process claim for probationers who paid less than the minimum monthly requirement. Rubens relied on a field in a database that tracked the minimum amount. Judge Lamberth rejected this approach because, "the plaintiffs' method for defining the class does not necessarily turn on the content of the probation orders. Perhaps that data will match the Municipal Court's records; perhaps it will not." Id. at *51.













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