THORNBERRY, Circuit Judge:
Plaintiffs-appellants in this case are present or retired employees of defendant Gulf and claim that Gulf and the defendant unions have discriminated against plaintiffs and similarly situated black employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The district court entered an order prohibiting the parties from communicating with class members and later granted defendants’ motions for summary judgment.
Plaintiffs Bernard, Brown, and Johnson filed charges of discrimination with the EEOC in 1967 against Gulf and the local union.1 The EEOC served copies of the charge on defendants in August, 1967, and issued a finding of reasonable cause in August, 1968. The EEOC actively pursued conciliation efforts with defendants until February, 1975, at which time it sent plaintiffs a notice stating that defendants did not wish to entertain conciliation discussions and advising plaintiffs that they could request a “Notice of Right to Sue” letter at any time.2 The EEOC continued conciliation efforts on the basis of a Commissioner’s charge filed in September 1967, which raised the same issues charged by plaintiffs. These efforts resulted in a conciliation agreement between the EEOC and Gulf in April, 1976. Plaintiffs filed this suit in May, 1976, and requested the Right-to-Sue letters from the EEOC. The EEOC issued the letters to Bernard and Brown in June,3 and plaintiffs amended their complaint to reflect this fact in July, 1976.
[1254]*1254Soon after they filed the complaint, plaintiffs’ attorneys appeared at a meeting of Gulf employees, during which they discussed this case. As a result of this meeting, Gulf requested the court to enter an order restricting the parties’ or counsels’ communication with class members. Gulf accompanied this request with an unsworn assertion that plaintiffs’ attorneys had told the employees at the meeting it would be against their interest to accept the back pay award offered pursuant to the conciliation agreement. Plaintiffs’ attorneys adamantly denied that they had urged the employees to reject the conciliation agreement. The court granted Gulf’s motion without making any findings.4 Defendants then moved to dismiss the complaint. In November, 1976, the court ordered that the motion be treated as a motion for summary judgment, and granted summary judgment for defendants in January, 1977. Plaintiffs raise four issues on this appeal.
I.
The district judge dismissed plaintiffs’ Title VII claim because plaintiffs failed to file suit within 90 days of receiving the first letter, which stated that conciliation efforts had failed and that plaintiffs could request a Notice-of-Right-to-Sue letter. The judge held “that the 90 day period for filing suit begins when the notice of failure of conciliation is sent by the EEOC.” Since the trial court opinion in this case, however, this court has held differently. In Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333 (5 Cir. 1977), a panel of this circuit noted that the statute imposing the 90 day limitation could be read to begin the 90 day period on receipt of a notice that the EEOC has either failed to file a civil action or has not arrived at a conciliation agreement. That court stated, however, that the limitations period does not begin to run until the EEOC has notified the claimant “of both the failure of conciliation and the EEOC’s decision not to sue in order to indicate clearly that the administrative process has been completed.” Id. at 1335. Accord Turner v. Texas Instruments, Inc., 556 F.2d 1349 (5 Cir. 1977); Page v. U. S. Indus., Inc., 556 F.2d 346 (5 Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978). Furthermore, the Zambuto panel held that the final paragraph of the initial letter informed Mrs. Zambuto that “the EEOC was awaiting [her] request for issuance of a right-to-sue letter. Implicit in this latter statement is the assurance that the 90 day period would not commence until this letter was requested and dispatched. Because this paragraph declared that further administrative action was contemplated by EEOC, it failed to furnish Mrs. Zambuto (or AT&T) with the form of notice required under § 2000e-5(f)(l) to start the 90 day period for filing suit.” 544 F.2d at 1335. Because the two-letter procedure allowed the claimant to postpone filing suit, the Zambuto panel declared the procedure invalid. Because the use and wording of the two letters was “patently misleading,” however, that panel made its ruling prospective only.
At oral argument, defendants conceded that the present case is directly controlled by Zambuto and the cases following it. Plaintiffs filed suit before the Zambuto decision, and the letters plaintiffs received are indistinguishable from those involved in Zambuto, Page, and Turner. As in Turner and Page, the first letter plaintiffs received informed them only that conciliation efforts had failed; it did not indicate that the EEOC had decided not to sue. Also, as in Page and Zambuto, the concluding paragraph of the first letter assured plaintiffs that the 90 day period would not commence until plaintiffs received the second letter. Because the letters to the plaintiffs in this case were as “patently misleading” as those in prior cases, the 90 day period for filing suit did not begin until receipt of the second letter. Plaintiffs filed suit within this period. Therefore, the district court erred in dismissing the individual Title VII claims of Bernard and Brown. Also, because the claims of these class representatives are [1255]*1255properly before the court, the district court erred in dismissing the class claims and the claims of the other named plaintiffs who did not file a complaint with the EEOC. Wheeler v. American Home Prod., 563 F.2d 1233 (5 Cir. 1977); Oatis v. Crown Zeller-bach Corp., 398 F.2d 496 (5 Cir. 1968).
II.
The district judge also granted summary judgment in favor of defendants on plaintiffs’ § 1981 claim. The trial judge found that plaintiffs’ complaint alleged only “the identical pattern of discrimination which was the subject of the Bernard, Brown and Johnson EEOC complaint, which pattern has long since been eliminated.” In addition, the court found as a fact that there were no continuing acts of discrimination.
Defendants make two arguments in support of this holding. First they assert that the trial court properly granted summary judgment in their favor because plaintiffs failed to respond properly to defendants’ summary judgment motion. Plaintiffs assert that defendants have discriminated in the past and presently continue to discriminate against blacks in hiring, assignment, promotion, training, recruiting, discipline, and discharge. Defendants argue that “appellants wholly failed to offer factual support for their assertions.” Defendants-appellees brief at 18. Defendants misunderstand the summary judgment practice. Under Fed.R.Civ.P. 56, the moving party has the initial burden of proving that there is no genuine issue of material fact. If the movant wishes to dispute the allegations of the complaint, he must do so through affidavits, documents, or other evidence. Unless and until the movant initially provides factual support for the summary judgment motion, the opposing party has no duty to respond to the motion or to present opposing evidence. Boazman v. Economics Lab., Inc., 537 F.2d 210 (5 Cir. 1976). In the present case, defendants presented a great number of affidavits with their summary judgment motion, but in none of the affidavits did defendants deny that they are discriminating against blacks. Therefore, the trial judge’s ruling that there were no instances of continuing discrimination was unsupported by the summary judgment record. Defendants, as the parties requesting summary judgment, failed to meet their burden of showing the absence of any material issue of fact.
Defendants also argue that even if the facts plaintiffs allege are true, we must dismiss plaintiffs’ § 1981 claim. In support of this contention, defendants argue primarily that the applicable statute of limitations is that provided by Tex.Rev.Civ. Stat.Ann. art. 5526, Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379 (5 Cir. 1974), and that under Texas law, the statute of limitations begins to run when the elements necessary for the cause of action first coalesce, regardless of whether defendants later commit other acts of the same nature. Under defendants’ theory, the statute of limitations would have expired on plaintiffs’ claim two years after defendants began discriminating against blacks, even if defendants continued such discrimination to the time plaintiffs filed this action. This argument is frivolous. Under both Texas and federal law, the relevant date for the purposes of the statute of limitations is the last date on which defendants improperly harmed plaintiffs. Furthermore, plaintiffs may collect damages for any wrongful acts defendants committed within the limitations period. E. g., Marlowe v. Fisher Body, 489 F.2d 1057,1063 (6 Cir. 1973); Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69, 77, 478 F.2d 979, 987 (1973); United States v. Georgia Power Co., 474 F.2d 906, 924 (5 Cir. 1973); Alexander & Polley Const. Co. v. Spain, 477 S.W.2d 301 (Tex.Civ.App.—Tyler 1972 no writ); Goldman v. Ramsay, 62 S.W.2d 176 (Tex.Civ.App.—Texarkana 1933 error dism’d). Defendants’ reliance on Kittrell v. City of Rockwall, 526 F.2d 715 (5 Cir.), cert. denied, 426 U.S. 925, 96 S.Ct. 2636, 49 L.Ed.2d 379 (1976), is unfounded. That case turned on the rule, peculiar to trespass cases, that the statute of limitations begins to run on the date when the trespassers first entered the land, even if [1256]*1256they continue to use the land after that date. Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564 (1948). This rule cannot be applied when defendants, as in this case, continue to violate plaintiffs’ rights with new and distinct actions.
Therefore, the district judge erred in holding that the statute of limitations totally barred plaintiffs’ § 1981 claim. Plaintiffs’ cause of action and any recovery they may receive, however, must be limited to those violations occurring within the two year period immediately preceding the filing of the complaint or thereafter.
III.
In addition to holding that statutes of limitations barred plaintiffs’ claims, the district court “acknowledge[d] a most compelling argument for the equitable doctrine of laches in this particular case . . . .” Because we disagree with the court’s ruling on the legal defenses, we find it necessary to discuss this alternative theory in support of the judgment below. Lowe v. Pate Stevedoring Co., 558 F.2d 769, 770 n. 2 (5 Cir. 1977).
In Franks v. Bowman Transp. Co., 495 F.2d 398, 406 (5 Cir. 1974), rev’d on other grds., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), this court held that the doctrine of laches is applicable to Title VII and § 1981 actions brought by private plaintiffs, even if the legal limitations periods have not run. To apply laches in a particular case, the court must find both that the plaintiff delayed inexcusably in bringing the suit and that this delay unduly prejudiced defendants. Save Our Wetlands, Inc. v. U.S. Army Corps of Engineers, 549 F.2d 1021, 1026 (5 Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). We conclude that the evidence before the court on this summary judgment motion does not allow a finding that either of these elements exists.5 Defendants argue that plaintiffs were aware of their cause of action at least as early as 1967 when they filed their initial charges against defendants with the EEOC. They also assert that plaintiffs could have requested a Notice of Right to Sue from the EEOC and filed a private action in 1970. 35 Fed.Reg. 10006 (June 18, 1970) (currently at 29 C.F.R. 1601.256 (1977)). Defendants therefore argue that plaintiffs’ failure to file a complaint with the district court until 1976 “shows conclusively that they have slept on their rights.” Defendants-appellees’ brief at 28. The only justification plaintiffs offer for this nine-year delay in filing suit is their asserted right to await the completion of the EEOC administrative process.-- ThfT\ jssüe before us, Therefore,' is whether plaintiffs’ failure to file a private action until after the termination of the EEOC’s active, continuing administrative process is unreasonable. _ - ...... .......
The Supreme Court in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), discussed a similar issue. The employer-defendant in Occidental Life claimed that either federal or state statutes barred the EEOC from initiating suit more than three years after a claimant had filed a charge with the EEOC. In language particularly applicable to the present" case,' 'the'''C'óuTTTridica’ted :“When Congress first’enacted Title VII in 19,64.it selected ‘[cjoopérátion and voluntary compliance.............as the’preferred, means for 'achieving’ the goal of equality of employment opportunities.” Id., 97 S.Ct. at 2455. ' A legislative analysis of the 1972 amendméñts’to Title VII is similar:
It is hoped that recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the of[1257]*1257fices of the EEOC or the Attorney General, as appropriate. However, as the mdi-vidual's right to redress are paramount under the provisions of Title VII it is necessary that all avenues be left open for quick and effective relief.
118 Cong.Rec. 7565 (1972).
These statements clearly mdicate that the private remedy allowed by 42 U.S.C. § 2000e-5(f)(1) is only an alternative method for a plaintiff to obtain relief from discrimination. A plaintiff cannot be penalized for choosing to forgo this alternative and electing instead the legislatively and judicially favored method of relying on the administrative proc~s~spf the EEOC.6 We therefore hold that plaintiffs' failure i~o~ file their Title VII claim until completion of the EEOC process was not inexcusable de-~, lay and could not support the application of : laches.
Plaintiffs' § 1981 claim is in a slightly different posture. We have already decided that the state statute of limitations prevents plaintiffs from asserting claims arising more than two years before the filing of the complaint. Therefore, any delay occurring before that period is irrelevant to the § 1981 claim. Defendants have not alleged that plaintiffs delayed inexcusably in asserting the claims arising within those two years. Therefore, it is unnecessary for us to consider whether laches could be invoked to bar those claims arising within the legal limitations period.
We also conclude that, on the evidence presented, any prejudice suffered by defendants was caused not by plaintiffs' delay but by defendants' own actions. In the only affidavit supporting this element of defendants' summary judgment motion, the personnel director of Gulf indicated that since the date when plaintiffs allege the violations began, defendant Gulf has made several personnel changes, a number of management personnel have retired, and two personnel managers have deceased. These statements are insufficient grounds on which to base a finding of prejudice. The fact that there have been personnel changes or that employees have retired is irrelevant unless those employees are unavailable. Akers v. State Marine Lines, Inc., 344 F.2d 217, 221 (5 Cir. 1965).
The affidavit does indicate that two former personnel managers have died and that those employees' knowledge is irreplaceable. Gulf asserts the live tetimony of these employees is necessary, how ever, only because it has destroyed the writ ten records of the personnel decisions made from 1965 through 1974. Defendants argue that they cannot now adequately defend against plaintiffs' charges without refer ence to these destroyed records. The EEOC informed defendants of the charges in 1967. Pursuant to its normal document retention plan, Gulf retained documents for only four years. Thus, Gulf did not destroy the documents relevant to the claims arising in 1965 until 1969, two years after Gulf learned of the charges. A party cannot assert the defense of laches merely because it has failed to preserve evidence despite knowledge of a pending claim. American Marine Corp. v. Citizens Cas. Co., 447 F.2d 1328 (5 Cir. 1971).7 This rule is of even greater [1258]*1258validity in this case than in most. Since 1966, the EEOC has maintained a regulation prohibiting those charged with Title VII violations from destroying records relevant to the charge. 31 Fed.Reg. 2833 (Feb. 17, 1966) (currently at 29 C.F.R. 1602.14 (1977)). Therefore, defendants’ argument that plaintiffs’ delay prejudiced defendants is without merit. Insofar as defendants have been prejudiced, the evidence before the court shows that defendants’ own negligence and disregard of EEOC regulations caused the prejudice.8 We conclude that the present facts do not allow findings of either unreasonable delay or prejudice. Therefore the doctrine of laches is inapplicable.
IV.
Because we are remanding this case for further action, it is necessary that we consider the propriety of an order the district judge entered restricting the parties’ communication with the members of the putative class. Judge Steger, in Chief Judge Fisher’s absence, originally entered an order generally prohibiting all communication without exception. Chief Judge Fisher later modified the order. It is of this later order that plaintiffs complain on appeal. The modified order was explicitly modeled on those suggested by the Federal Judicial Center in the Manual for Complex Litigation, Part 2, § 1.41 (1977).9 Plaintiffs [1259]*1259argue that the order was improper for several reasons. First, they assert that it is inconsistent with the policies of Rule 23 of the Federal Rules of Civil Procedure and therefore beyond the powers of the district court. We reject that argument and hold that the order was a permissible exercise of the trial court’s discretionary power in controlling a class action.
As one noted treatise states:
Because class actions tend to be extremely complicated and protracted, their management and disposition frequently require the exercise of considerable judicial control and ingenuity in the framing of orders relating to various aspects of the case. Rule 23(d) provides the trial court with extensive discretion in achieving this objective and offers some guidance as to the types of problems the district judge is likely to encounter.
7A C. Wright & A. Miller, Federal Practice & Procedure § 1791 at 193 (1972).10
We believe the trial judge could have easily concluded that his interest in and duty of controlling the suit in this manner outweighed any interest plaintiffs’ attorneys may have in communicating with members of the putative class without the prior approval of the court. Rule 23 imposes on the trial judge the duty of assuring that a class action is an appropriate way to resolve the controversy, the representative parties will fairly and adequately protect the interests of the class, the pleading and trial of the case is conducted fairly and efficiently, and any settlement or compromise is not unfavorable to the class.11 The [1260]*1260present order could be helpful in exercising many of these duties, especially those of assuring fairness and efficiency. Any communication between the parties and class members may mislead the class members by appearing to reflect the opinion of the court rather than that of the party making the communication. This danger exists “simply because of references to the title of the court, the style of the action, the name of the judge, and to official processes.” Manual for Complex Litigation, Part 1, § 1.41 at 27 (C. Wright & A. Miller ed. 1977). The trial court should therefore have the power to examine any communication in order to assure that class members will not be misled in this manner. Even apart from any references to the court, communications to potential class members by the parties may unfairly represent facts or issues relevant to the action. When those communications are sent during a limited period in which class members may opt out of the class, or, as here, in which they may accept a back pay offer pursuant to a conciliation agreement, any misleading statement may be irreparable. The trial judge may also believe that requiring prior approval of communications will reduce the risk of the class members becoming confused by an avalanche of notices, inquiries, and arguments directed to them by each of the parties to this action. Thus, there are many substantial reasons a trial judge may believe that an order such as that suggested in the Manual for Complex Litigation is justified.12
Plaintiffs assert their interests outweigh these concerns of the trial judge. Plaintiffs argue that to conduct the action adequately they must be allowed to contact class members in order both to discover their case and to inform class members of their civil rights. They allege that the order prevents them from performing those functions. This is not true; the order only prohibits contact with class members without prior approval of the court. Therefore, only plaintiffs’ interest in unrestrained communications is to be balanced against the court’s interests in requiring court approval of all communications sent to class members.
Plaintiffs’ ability to discover their case is in no way reduced by the requirement that the court approve any contact. It is expected that the trial judge will exercise “minimal judicial control of these communications . . . .” and freely allow discovery. Manual for Complex Litigation, Part 1, § 1.41 at 29 (C. Wright & A. Miller ed. 1977). The trial judge should refuse to allow only those attempts at discovery that would clearly affect the fairness or efficiency of the litigation adversely. Plaintiffs have not shown that this “minimal control” would prejudice them in any way. Therefore, we do not believe plaintiffs have any significant interest in seeking discovery without the prior approval of the court. Similarly, to the extent that Rule 23 implicitly provides plaintiffs with a right to “encourag[e] common participation in the litigation of [plaintiffs’ race] discrimination claim,” Coles v. Marsh, 560 F.2d 186, 189 (3 Cir.), cert. denied sub nom., Blue Cross v. Marsh, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977), that same rule’s explicit grant of authority to the trial court to control the conduct and settlement of the action outweighs plaintiffs’ right. Therefore, although there may be other methods of achieving similar results,13 Rule 23 does not prohibit a trial court’s discretionary use of [1261]*1261an order requiring prior approval of communications with class members.14
Plaintiffs next argue that the order is an unconstitutional prior restraint on their communication with the class and is especially egregious in this case in which plaintiffs are represented by an organization highly regarded as an effective opponent of discrimination. This argument is considered and rejected in the recent revision of the Manual for Complex Litigation, Part 1, § 1.41 at 1-3 (C. Wright & A. Miller ed. 1978 Cum.Supp.) and in Waldo v. Lake-shore Estates, Inc., 433 F.Supp. 782 (E.D. La.1977). We find it unnecessary, however, to decide whether the interests discussed above would also justify the prior restraint of any constitutionally protected communication. The order in the present case, unlike those in Rodgers v. United States Steel Corp., 508 F.2d 152 (3 Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), Waldo or the Manual, explicitly exempts communications that a party or counsel asserts are constitutionally protected from prior restraint.
Despite this provision, plaintiffs argue that the order chills their free exercise of protected activities because they can never be certain that the district court will agree with their assertion that the communication is protected.15 As an example of such a disagreement, plaintiffs rely on an incident in the trial court. Plaintiffs submitted a document to the court for approval asserting that it was constitutionally protected. The judge refused to allow plaintiffs to send the document to the class members. Plaintiffs argue that if they had sent the document without submitting it they may have been subject to a contempt order. This argument is without merit. The exemption applies when the parties make any communication they assert is protected, not merely when the trial judge agrees with that assertion. Thus, as long as a party or counsel makes any unapproved contact with class members in the good faith belief that the contact is constitutionally shielded, he may not be punished for violating the court’s order. Once plaintiffs submitted the proposed communication to the district judge, however, the exemption for communications they asserted were constitutionally protected was no longer relevant. At that point the issue became whether the Constitution, in fact, protected the communication rather than whether the plaintiffs had distributed it in the good faith belief that it was constitutionally protected. Plaintiffs have not argued on appeal that the trial judge erred in deciding that he could properly prohibit the distribution of that particular document nor have they alleged his determination was untimely. They have alluded to the incident only as an example of the alleged “chill” the order prohibiting unapproved communication placed on the exercise of their first amendment rights, notwithstanding the exception for communications they asserted to be constitutionally protected. Therefore, we need not decide whether the judge properly prohibited dissemination of this particular notice after plaintiffs submitted it for his approval. We note, however, that even though the prohibition on unapproved communications is permissible, the judge’s sepa[1262]*1262rate decisions approving or disapproving particular communications would normally be proper subjects for appellate review.
We conclude that the present order adequately safeguards the first amendment rights of the parties and counsel because even if the prohibitions of the order are vague or overbroad, the parties can avoid them if they assert a good faith belief that a particular communication is constitutionally protected. Cf. Screws v. United States, 325 U.S. 91, 101-02, 65 S.Ct. 1031, 1035-36, 89 L.Ed. 1495 (1945): “the requirement of specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.”
Plaintiffs’ final contention is that the order violates their right to equal protection of the laws. This claim is based on the assertion that the order allows defendants to offer back pay settlements to the class members and to contact class members in the ordinary course of defendants’ business without allowing plaintiffs similar rights. This argument is invalid because it is based on an incorrect reading of the order. The order prohibits defendants as well as plaintiffs from contacting the class members regarding back pay settlements. Rather than allowing further contact by either party, it directs the court clerk to distribute a notice to class members informing them that they have 45 days within which to accept the back pay award to which they are entitled under the conciliation agreement negotiated by the EEOC and directs them not to accept the award if they wish to participate in any recovery secured by plaintiffs in this action. Further, the provision allowing communication with class members in the regular course of business applies equally to all parties and counsel, not merely to defendants. It could be argued that allowing contact in the regular course of business would tend to favor defendants in practice because of their greater day-to-day contact with the employees. Any management discussion of the merits of the suit with class members, however, would not be in the regular course of business. Therefore, although defendants may have greater day-to-day contact with the class members, the order does not allow defendants any greater freedom than plaintiffs in discussing the suit with class members.
We therefore conclude that the district court’s order of June 22,1976, is a permissible exercise of the court’s power to control class action litigation and is prohibited by neither the first nor fifth amendments to the Constitution.
The judgment of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion.