The Federal Class Action Practice Manual

Chapter 8: Discovery in Class Action Litigation

[§46] Discovery Prior to the Filing of a Motion for Certification

Generally, discovery in federal class actions is governed by Rules 26-37, FRCP. Further, discovery in such proceedings may be subject to the mandatory provisions of Rule 16. Precertification discovery should focus on "an early certification decision while furthering efficient and economical discovery on the merits." Manual for Complex Litigation, Third § 30.12 (1995).

In order to rule on an application for class certification, a court must ensure that an adequate factual basis exists for a full evaluation of each of the four criteria set out in Rule 23 of the Federal Rules of Civil Procedure: numerosity, typiClass Action Litigationty, commonality of question, and adequacy of representation. See Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571, cert. denied, 459 U.S. 838, 74 L. Ed. 2d 80, 103 S. Ct. 86 (1982); Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library Inc., 586 F.2d 962, 966 (2d Cir. 1978). Courts have, therefore, allowed defendants to take the depositions of proposed class representatives prior to ruling on plaintiffs' applications. See, e.g., Robertson v. Seidman & Seidman, Fed. Sec. L. Rep. (CCH) P 97,524 (S.D.N.Y. May 28, 1980).

Among issues properly subject to discovery is manageability. The court may, and often does, permit discovery relating to the issues involved in maintainability, [of the action as a class action] and a preliminary evidentiary hearing may be appropriate or essential as a part of the vital management role which the trial judge must exercise in class actions to assure they are both meaningful and manageable. Windham v American Brands, Inc., 565 F.2d 59, 64 n5 (4th Cir. 1977); Doctor v Seaboard Coast Line Rwy , 540 F.2d 699, 707 (4th Cir. 1976). The ultimate scope and conduct of discovery are within the sound discretion of the district court. Lewis v Bloomburg Mills, Inc., 608 F.2d 971, 973 (4th Cir. 1979); NC Ass’n of Black Lawyers v NC Bd of Exam, 538 F.2d 547 (4th Cir. 1976).

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[§47] Scope of Discovery Prior to Certification

Although in a rare case, limiting discovery to issues of certification may be proper, generally it makes no sense to limit precertification discovery to "certification issues" only. In the event a case is not certified as a class, it will have to proceed as an individual action, and discovery will still be needed on the merits of the remaining individual case. Limiting discovery to "certification issues" only unduly and without reason delays ultimate resolution of the merits, whether the case is resolved as a class action or a singular case.

Further, proof of liability is usually intertwined with proofs for certification. Limiting discovery to "certification issues" only provides a license to the party opposing the class to enter numerous objections to the production of documents and testimony. Thus, an order limiting discovery fosters disputes between counsel, delays the process of case preparation while motions must be set for hearing, and almost inevitably requires the court’s monitoring of discovery on a near-daily basis. See Manual for Complex Litigation, Third § 30.12 (1995); see also Gray v First Winthrop Corp., 133 F.R.D. 39, 41 (ND Cal 1990).

The plaintiff is generally entitled to discovery prior to certification on issues pertaining to class certification and the merits of the claims asserted. Motions to limit discovery pending a class certification ruling should generally be denied. It has been held to be reversible error for a district court to deny certification without affording an appropriate opportunity for the plaintiff to conduct discovery to prove the prerequisites for class certification are met by the case. Morrison v Booth, 730 F.2d 642 (11th Cir. 1984). Defendants generally have the right to conduct appropriate discovery of named class representatives regarding their adequacy to represent the class, and the basis for their claims asserted. Discovery conducted by a defendant should be legitimate and not for the purpose of harassment.

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[§48] Discovery of Absent Class Members

The general rule of law regarding the taking of discovery of absent class members is well settled. Generally, such discovery is improper and should not be permitted. First, Rules 33 and 34, Fed. R. Civ. P. do not provide for discovery against absent class members as a matter of course. Second, Rules 33 and 34 generally apply to parties, therefore, interrogatories may not be served on a person not a party. See 4 A. J. Moore, Moore's Federal Practice, 933.06 at 33-33 (2d ed. 1982); Andrulonis v. United States, 96 F.R.D 43 (NDNY 1982). Third, several courts have recognized that absent class members are not parties within the meaning of Rule 23, Fed. R. Civ. P. Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 63 L. Ed. 2d 427 , 100 S. Ct. 1166 (1980).

In Cox v. American Cast Iron Pipe Company, 784 F.2d 1546 (11th Cir. 1986), the Court declined to permit discovery of absent class members. The Court decided that the discovery was not necessary and therefore improper and should not have been permitted by the trial court. In Fischer v. Wolfinbarger, 55 F.R.D. 129 (WD Ky. 1971) discovery of absent class members was disallowed in a Rule 10B(5) action. The Court decided that:

Discovery proceedings, such as the proposed interrogatories, are improper, directed as they are to members of the class who are not named plaintiffs. The class action is designed for the situation, as Rule 23(a)(1) specifically contemplates where "the class is so numerous that joinder of all members is impracticable." It is designed to provide a fair and efficient procedure for handling claims where the claims or defenses of the parties are typical of the claims or defenses of the class, where there are questions of law or fact common to the class, and where it is fair to conclude that the representative parties will fairly and adequately protect the interests of the class. It is not intended that members of the class should be treated as if they were parties plaintiff, subject to the normal discovery procedures, because if that were permitted, then the reason for the rule would fail.
Prior to certification, in rare instances appropriate discovery of absent members of the class may be conducted by either plaintiffs or defendants. However, the timing, manner and purpose of the discovery sought should be appropriate. Courts considering the scope of discovery against absent class members have granted discovery via interrogatories or document requests (1) where the information requested is relevant to the decision of common questions, (2) when the discovery requests are tendered in good faith and are not unduly burdensome and (3) when the information is not available from the class representative parties. Dellums v. Powell, 184 App. D.C. 275, 566 F.2d 167 (D.C. Cir. 1977); United States v. Trucking Employers, Inc., 72 F.R.D. 101 (D.D.C. 1976);

Discovery after certification of a class which is directed to individual absent class members should be permitted only to the extent absolutely necessary, and should be limited to ensure a legitimate purpose is served. The court should ensure discovery is not abused or used for purposes of harassment. See Manual for Complex Litigation, Third 30.232 (1995); see also Clark v Universal Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974). Demands for discovery of absent class members can easily be used as a vehicle for intimidation or the solicitation of opt outs harmful to the proceedings.

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