Defense Can’t Have it Both Ways: Plaintiffs Need Fair Shot at Discovery Before Defendants Move to Deny Certification
In the ever-evolving field of class action law, defense counsel are becoming more creative with their attempts to defeat class certification. From preemptive motions to strike plaintiffs’ class allegations at the very beginning of the case, to creating a new “ascertainability” standard not found in Rule 23—defendants are creating savvier procedural roadblocks to prevent plaintiffs from getting to the merits of aggregated small-claims cases. Although not “new” by any stretch of the imagination, defendants are aggressively trying to limit the scope of class-wide discovery available to the plaintiffs to prove their claims.
But this strategy didn’t work for the defendants in a consolidated wage rest breaks class action pending in the Northern District of California. In Amey, et al. v. Cinemark USA, Inc., et al., No. 13-cv-05669-WHO (N.D. Cal.), Judge William Orrick recently entered an order denying a theater chain’s motion to deny class certification “[i]n light of the procedural posture of [the] case—including defendants’ refusal to provide any classwide discovery regarding how it has applied its meal/rest break, reporting pay, and off-the-clock policies to the putative class members. . . .” In Amey, the only discovery available to the plaintiffs prior to the defendants’ motion to deny certification concerned the named plaintiffs, themselves—primarily, their own testimony. The court recognized that defendants’ stonewalling tactics were improper, and that “plaintiffs must be given a fair opportunity to gather evidence to support their theories.”
This access to discovery has become increasingly important after the Supreme Court’s ruling in Wal-Mart Stores, Inc. v. Dukes,131 S. Ct. 2541 (2011). As the Supreme Court held, when a court is conducting a “rigorous analysis” to ensure that the requirements of Rule 23 have been met, “[f]requently that ‘rigorous analysis’ will entail some overlaps with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. at 2552. Put simply: courts are requiring more out of plaintiffs at the class certification stage, and plaintiffs should not “hold off” obtaining discovery to prove the merits of their claims.
I’ve previously written about plaintiffs’ access to discovery in class cases prior to certification, and why defendants’ arguments in favor of bifurcating discovery—between “merits-based” and “class-based” discovery—is unworkable in a post-Dukes world. Beyond bifurcation and stonewalling (which, rightly so, did not work in the Amey case), defendants may have a new tactic in their arsenals: proposed changes to the Federal Rules of Civil Procedure were approved by the Judicial Conference on September 16, and provide that discovery sought must be “proportional” to the needs of the litigation. If approved by the Supreme Court, cases like Amey may look quite different in the future.