Article by John Randall Whaley, Craig M. Freeman, and Richard J. Arsenault
Precertification discovery constitutes the critical phase of any class action. Because many cases brought as class actions either settle (in the case of certification) or die (in the case of denial of certification), the critical stage of precertification discovery is rightly the subject of the parties' time, effort, and money. There are a myriad of issues that arise during this critical stage. The parties may disagree not only on what discovery should be done and how long it should last, but also on whether any should be done at all. The requested formal discovery may range from written interrogatories, requests for production of documents, and deposition testimony to a simple request for identifying information about putative class members. Alternatively, the parties may desire to engage in less formal means of discovery, such as interviews with the proposed class members.
The reasons for the requested discovery is, likewise, varied. Sometimes the defendant believes that formal precertification discovery of putative class members will provide hard evidence that one of the required Rule 23 factors is absent, thereby defeating class certification. A class representative may desire to depose the defendant's employees who were responsible for the alleged wrong to gain information about the common issue of liability. The class representative will wish to capture formal discovery to bolster her argument that she is an adequate class representative, that her claims are typical of the absent class, that all members of the class share common issues and theories, that those common issues predominate over any individual issues, and that the class action procedure is a superior method to adjudicate common issues.
In situations in which a class action defendant possesses identifying information about its customers or policyholders, a class action plaintiff may desire the names and addresses of putative class members to inform them of the existence and litigation of a class action that may affect their rights. Sometimes one or both parties requests permission to engage in other types of discovery of or about unnamed and unrepresentative class members. The defendant may seek limits on precertification discovery through court orders limiting the type and amount of discovery or through bifurcation, in which only “class certification” issues are the subject of discovery before the class certification decision.
This Article discusses precertification discovery issues. The Article begins with a discussion of the role class actions play in our society, the relevant Rule 23 factors, and the role of “putative” and “absent” class members in class action litigation. Next, this Article discusses the various protections granted to class members, the relationship between absent and putative class members and class counsel, and the scope of discovery before class certification hearings. Finally, it focuses on specific instances in which precertification discovery is sought and the standards by which such requests should be evaluated.
About the Author
John Randall Whaley. Associate, Neblett, Beard & Arsenault. J.D. 1998, Louisiana State University; B.A. 1993, Louisiana State University.
Craig M. Freeman. Assistant Professor, Manship School of Mass Communication, Louisiana State University. J.D., Louisiana State University; B.A., Johns Hopkins University.
Richard J. Arsenault. Senior Partner, Neblett, Beard & Arsenault. J.D. Louisiana State University; B.A. State University of New York, Albany, New York.
Citation
80 Tul. L. Rev. 1827 (2006)