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 made.¹⁷⁰ However, there isn’t “always a bright line between the two. Courts have recognized that information about the nature of the claims on the merits and the proof that they require is important in deciding certification.”¹⁷¹ The Manual for Complex Litigation suggests that allowing merit-based discovery during the pre-certification period “is generally more appropriate for cases that are large and likely to continue even if not certified.”¹⁷² “On the other hand, in cases that are unlikely to continue if not certified, discovery into aspects of the merits unrelated to certification delays the certification decision and can create extraordinary and unnecessary expense and burden.”¹⁷³

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Notes:

^[166] See Spano v. The Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001) (“Before deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23.”)).

^[167] Annotated Manual for Complex Litigation, supra note 154, § 21.14.

^[168] Id.

^[169] Beverly J. Westbrook, Discovery for Purposes of Determining Whether Class Action Requirements Under Rule 23(a) and (b) of the Federal Rules of Civil Procedure Are Satisfied, 24 A.L.R. Fed. 872 (1975).

^[170] Annotated Manual for Complex Litigation, supra note 154, § 21.14.

^[171] Id.

^[172] Id.

^[173] Id.