## Facts

- Consumers sued a health-club chain in a putative nationwide class action, alleging deceptive practices that hindered or prevented membership cancellations.
- After partial denial of a motion to dismiss, plaintiffs sought extensive pre–class-certification discovery, including large-scale ESI.
- Discovery burdens were highly asymmetrical: plaintiffs had few documents, while the defendant maintained millions of documents and ESI items.
- The defendant had already produced substantial discovery at its own expense.
- Plaintiffs moved to reopen and expand discovery to support class certification; the defendant opposed and requested that any additional expansive production be conditioned on plaintiffs paying the costs.
- The dispute concerned cost allocation for additional pre-certification discovery and court management of discovery scope and sequencing.

## Issues

1. Whether, under Federal Rule of Civil Procedure 26(c), a court may condition additional pre–class-certification discovery on the requesting plaintiffs’ payment of the associated costs where the requested discovery is very extensive and expensive.
2. Whether the court may limit and phase pre-certification discovery through a structured “discovery fence” to avoid undue burden or expense before a class-certification ruling.

## Decision

- The court required plaintiffs to pay the costs of additional, extensive pre-certification discovery they requested, absent compelling equitable circumstances to the contrary.
- The court concluded the cost burden otherwise would fall almost entirely on the defendant largely because plaintiffs sought class certification and broad class-related discovery.
- The court implemented a discovery “fence” to confine and sequence pre-certification discovery, focusing on materials necessary to decide class certification and controlling further expansion.

## Legal Principles

- The default rule is that the responding party bears discovery compliance costs, but a court may issue protective orders under Rule 26(c) to protect against undue burden or expense, including conditioning discovery on the requesting party’s payment of costs.
- When (1) class certification is pending and (2) plaintiffs seek very extensive discovery that will be very expensive, plaintiffs should pay for that discovery absent compelling equitable circumstances to the contrary.
- Courts may manage pre-certification discovery by limiting, phasing, and focusing discovery to what is needed for class-certification issues, and may condition broader discovery on cost-sharing to address severe asymmetry and expense.

## Conclusion

The court allocated the costs of additional, expansive pre-certification discovery to the plaintiffs and imposed a phased discovery structure, holding that Rule 26(c) permits cost-shifting and tight judicial control where class-certification-driven discovery would otherwise impose disproportionate and expensive burdens on the defendant.


Boeynaems v. LA Fitness Int'l, LLC, 285 F.R.D. 331 (E.D. Pa. 2012)