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Consumer Class Actions: 8.1.3 Rule 26(f) Conference and Stipulations

Federal Rule of Civil Procedure 26(f) requires the parties to “confer as soon as practicable” regarding the litigation and to formulate a discovery plan.30 During the Rule 26(f) conference, counsel should discuss a proposed schedule for discovery and class certification, which likely will drive the plaintiff’s discovery plan.

Consumer Class Actions: 8.1.4.1 Generally

Both plaintiffs and defendants have a duty to preserve potentially relevant evidence.45 Each party is under a duty to preserve what it knows, or reasonably should know, is relevant in the action regardless of whether it would be admissible at trial, reasonably likely to be requested during discovery, or the subject of a pending discovery request.46 The duty to preserve arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evid

Consumer Class Actions: 8.1.4.3 Plaintiff’s Duty to Preserve: Avoiding Sanctions for Spoliation

Plaintiffs as well as defendants have a duty to preserve evidence that may be relevant to current or potential litigation. Plaintiff’s counsel should instruct their clients to preserve potentially relevant documents and ESI at the outset of the litigation. With the rise of social media, counsel should specifically instruct plaintiffs to preserve social media webpages, posts, comments and messages, and ESI such as email and computer files, in addition to paper documents traditionally requested by defendants during discovery.64

Consumer Class Actions: 8.1.5 Scope of Electronically Stored Information (ESI) Discovery Requests

Developing a plan to manage ESI discovery at the outset of the litigation is one of the most important aspects of class action discovery today. Because defendants typically have the larger volume of potentially relevant ESI, it is up to plaintiff’s counsel to develop a strategy for obtaining the most crucial ESI without becoming overwhelmed by the sheer magnitude of the defendant’s possible production. To that end, the parties should discuss ESI issues during the Rule 26(f) conference or hold a series of such discussions, if necessary.

Consumer Class Actions: 8.1.6 Search Terms and Custodians

In addition to obtaining information about the defendant’s data and computer systems, the formulation of an ESI discovery plan will also require the plaintiff’s counsel to confer with the opposing counsel regarding custodians and likely sources of relevant ESI, “key players” in the litigation (a concept which is discussed below), the date range of information to be searched, and the formulation of search terms.76

Consumer Class Actions: 8.1.7 Technology Assisted Review (TAR)

In the last decade, defendants have increasingly requested that the parties agree to defendants’ use of machine-learning applications or predictive coding to review and produce relevant ESI. The preferred term of art for such methods is technology assisted review (TAR). The TAR process involves the interplay of humans and computers to identify documents in a collection that are responsive to a production request, or to identify documents that should be withheld as privileged.83

Consumer Class Actions: 8.1.8 Form of Production

The majority of defendants in consumer class action cases now maintain records in electronic form.96 If a defendant keeps documents in electronic as well as paper form, it does not satisfy its burden under Federal Rule of Civil Procedure 34 by merely making the paper copies available for inspection and copying.97 In such cases, the plaintiff should request that the ESI be produced. ESI is easier to manage than paper documents and allows for electronic searching and categorizing.

Consumer Class Actions: 8.1.9.2.1 Can the class be certified without formal discovery?

Plaintiff’s counsel must first consider whether discovery is necessary to secure class certification. This decision will hinge on the nature of the case and the extent of the information that has been or can be obtained through informal investigation. As discussed later in this subsection, whether discovery is necessary may also depend on the jurisdiction in which the case is brought.

Consumer Class Actions: 8.1.9.2.2 Are the allegations of the complaint sufficient for certification?

In the first several decades of practice under the modern version of Federal Rule of Civil Procedure 23, courts generally held that the substantive allegations of the complaint should be taken as true in resolving a class certification motion.112 Under such rulings, if the plaintiff offered a reasonable theory of the case supporting a classwide cause of action, the validity of that theory was in and of itself the predominant common question justifying class certification.113 A class action d

Consumer Class Actions: 8.1.9.4 Discovery Directed to Proving Numerosity

To meet the burden of showing numerosity, the plaintiff should try to discover the approximate class size through a direct interrogatory to the defendant asking how many class members there are and through a production request for class members’ files or other data relating to class members (for example, call records in a TCPA class action).

Consumer Class Actions: 8.1.9.5 Discovery Directed to Proving Common Issues

To show that common questions of law or fact predominate for each class member’s transaction, the plaintiff should request that the defendant produce all documents describing or evidencing the defendant’s policies and procedures for the transactions at issue. For example, in a case challenging such standard form documents as Truth in Lending Act disclosure statements or consumer credit contracts, the plaintiff should request:

Consumer Class Actions: 8.1.11 Effective Use of Requests for Admission

Requests for admissions of facts and of the genuineness of documents are underused and often overlooked.156 When effectively crafted, requests for admissions can be used to narrow the number of factual issues and documents the plaintiff ultimately will be required to prove and authenticate, and requests can cover any matter subject to discovery under Rule 26(b)(1).

Consumer Class Actions: 8.1.12 Discovery from Third Parties

One of the most useful discovery tools for plaintiff’s counsel is to subpoena discoverable information directly from third parties. Under Federal Rule of Civil Procedure 45,162 third parties can be subpoenaed to testify at a deposition, to produce documents and ESI,163 or to permit inspection of materials or premises.

Consumer Class Actions: 8.2.1 Overview

It is usually in a defendant’s interest to delay the progress of any litigation, and there is generally even more incentive to do so and more ways to accomplish this in a class action. Therefore, the plaintiff always should anticipate delay or even obstructionist tactics on the part of a class action defendant. Identifying obstructionist discovery tactics and developing ways to overcome them are discussed below.

Consumer Class Actions: 8.2.2 Efforts to Bifurcate Discovery Between “Class Issues” and “Merits Issues”

Plaintiff’s counsel normally should oppose a defendant’s motion to bifurcate discovery between issues relating to class certification and those relating to the merits, limiting the initial stage of discovery to class issues.207 As discussed below, whether the requirements of Rule 23 are met often involves consideration of issues overlapping with the merits of plaintiff’s claims. Bifurcation can also be inefficient for the parties if the same witnesses must be deposed twice.

Consumer Class Actions: 8.2.4.1 Motions for Protective Orders

A defendant may seek a protective order in lieu of responding or objecting to discovery requests, which may be a tactic to delay or avoid supplying the plaintiff with information, documents, or ESI.228 A protective order also may be sought during a deposition in limited circumstances, discussed at the end of this subsection.

Consumer Class Actions: 8.2.4.2 Stipulated Protective Orders and Confidentiality Agreements

Defendants will often refuse to produce documents unless the parties enter into an agreement regarding the treatment of the defendant’s “confidential” information. This is typically accomplished through a stipulated protective order entered by the court, or a confidentiality agreement. Such a position is contrary to the presumption in favor of the public’s right of access.248 Moreover, confidentiality allows defendants to continue to hide evidence of their unlawful acts from public view.