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Pre-Certification Discovery of Absent Class Members

By Regan Hunt Crotty
January 06, 2006

The battle for class certification makes or breaks many lawsuits. Often, the certification decision hinges on whether there are questions of law or fact common to the class and whether the claims and defenses of the representative parties are typical of those of the class as a whole. Because the defense has no opportunity to question the class members themselves and to compare the claims and defenses of the named plaintiffs with those of the absent class members, it faces a big problem overcoming class certification: How is a defendant to know, let alone prove to the court: 1) that the claims of the class as a whole are not common and 2) that the claims of the named plaintiffs are sufficiently dissimilar to those of the class. In order to provide the court with record evidence on which it can base a decision as to whether individual or common issues predominate, parties should be permitted to engage in discovery of absent class members for class certification purposes.

In order to understand courts' positions with regard to this issue, it is first important to understand how courts generally treat two related issues: 1) whether parties to a class action may conduct pre-certification discovery at all (of named and/or unnamed plaintiffs) and 2) whether parties can engage in discovery of absent class members at any stage of litigation (pre- or post-class certification). This article highlights decisions addressing these two issues.

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