Class Actions 101: Frequently Asked Questions about Class Discovery
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This article is intended to help attorneys working on their first class action understand the impact of class action issues on discovery and on strategic approaches that counsel take on discovery.
People talk about bifurcating discovery. What is that?
At the class-certification stage, the relevant issues are whether the plaintiff proved his or her compliance with Federal Rule of Civil Procedure 23; in other words, only if the plaintiff proves that Rule 23’s requirements are satisfied may a class be certified. The U.S. Supreme Court has repeatedly reminded litigants and courts that it requires courts to “probe behind the pleadings” and that evidence is required to prove that Rule 23 is in fact satisfied, which sometimes involves some overlap with the merits of the plaintiff’s claim. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982). But the issues are also somewhat different in many ways; for example, the merits of the plaintiff’s claim are unlikely to turn on whether the plaintiff is an adequate representative of a class, whereas that is of critical importance at the class-certification stage (and, indeed, is one of the four Rule 23(a) requirements). Given that, parties often phase discovery and focus on the issues relevant to each stage of the case. And, indeed, the courts have recognized this: The parties are required at the mandatory Rule 26(f) conference to discuss whether it is beneficial to phase discovery. See Fed. R. Civ. P. 26(f)(3)(B).
Read original articleTags: Class Action, Class Actions, Federal Rule of Civil Procedure
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