Chapter § 5.07 Discovery in the Pre-Certification Period

• Jurisdiction: United States
• Publication year: 2020

§ 5.07 Discovery in the Pre-Certification Period

The judge presiding over a proposed class action has the discretion to permit discovery in the pre-certification period relevant to whether the requirements for a class action are met.¹⁶⁶ Discovery prior to certification of the class may be necessary when the parties dispute the facts relevant to the certification requirements.¹⁶⁷ For instance, the parties may need pre-certification discovery when the defendant opposes certification on the grounds that proof of the claims or defenses will unavoidably raise individual issues.¹⁶⁸ In addition, the court may permit pre-certification discovery into whether the named plaintiff (or class counsel) can meet the requirement that class representatives fairly and adequately protect the interests of the class.¹⁶⁹

Accordingly, discovery in the pre-certification period will ordinarily be limited to certification issues, with discovery related to the merits of the allegations reserved for after the certification decision is...