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Absent Class Member Discovery Is Rarely AppropriateJeremy N. Nash

Defendants in class actions sometimes seek to take discovery of “absent” class members. Those are members of a proposed or certified class who are not directly involved with the litigation. This type of discovery is generally not allowed. After all, one of the principal advantages of class actions over massive joinder or consolidation would be lost if all class members were routinely subject to discovery. Most courts thus limit discovery against unnamed class members, but do not forbid it altogether.

So, when is absent class member discovery appropriate?

In the Third Circuit, defendants must satisfy a “heightened standard” to win the right. In re Modafinil Antitrust Litig., 837 F.3d 238, 256 (3d Cir. 2016); see also Clark v. Universal Builders, Inc., 501 F.2d 324, 341 (7th Cir. 1974) (“The taking of depositions of absent class members is—as is true of written interrogatories—appropriate in special circumstances.”).

The contours of that standard vary depending on where a case is pending. Here, in the District of New Jersey, courts generally consider the follow four factors—

1. Is the information requested available from the class representatives?
2. Is the information requested already known to the defendants?
3. Is the information requested relevant to common questions?
4. Would responding impose an undue burden on absent class members?

See In re Bristol-Myers Squibb Securities Litig., No. 00-cv-1990, Dkt. No. 195 at 8–12 (D.N.J. Nov. 18, 2004); Easton & Co. v. Mut. Ben. Life Ins. Co., No. 91-cv-4012, 1994 WL 248172, at *3 (D.N.J. May 18, 1994).

The first two considerations are straightforward. There is no need to trouble absent class members for information that the parties already possess. The other two merit explanation.

In the world of class actions, what it means for a question to be “common” to a class is well established. What matters is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (emphasis added).

Accordingly, to establish that proposed absent class member discovery seeks information relevant to common questions requires demonstrating that responses would have the capacity to resolve claims, issues, or defenses on a classwide basis. See, e.g., In re Lucent Techs. Inc. Sec. Litig., No. 00-cv-621, 2002 WL 32815233, at *2 (D.N.J. July 16, 2002) (finding requested discovery “would not meaningfully aid” defendant and affirming magistrate judge conclusions that “discovery as to the investment behavior of the 41 named, non-lead plaintiffs is not probabtive of the question of class-wide reliance on the market” in case involving hundreds of thousands of class members).

The last consideration generally turns on whether absent class members would require the assistance of an attorney, accountant, or some other type of expert to respond the proposed discovery. If so, responding would impose an “undue burden.” See, e.g., In re Bristol-Myers Squibb Securities Litig., Dkt. No. 195 at 13–14 (denying defendants’ motion for discovery where requests “raised the not unreasonable concern that the proposed discovery will require class members to obtain personal legal counsel or technical advice from an expert); Kline v. First W. Gov’t, No. 83-cv-1076, 1996 WL 122717, at *5 (E.D. Pa. Mar. 11, 1996) (denying defendants’ motion for discovery of absent class members and noting discovery would be impractical as class members would need to consult an attorney or an accountant).

Even if a defendant satisfies this heightened standard, courts may still deny absent class member discovery where defendants have waited too long to seek it. In In re Bristol-Myers Squibb Securities Litig., for example, “timing [wa]s the critical factor.” Dkt. No. 195 at 14. There, the Court denied defendants request in large part because the defendants had “waited until the final days of the litigation to propose sending a multi-part questionnaire to literally tens of thousands of absent class members.” Id. at 14–15. It concluded that “the questionnaire represent[ed] an untimely request for discovery by arriving at a point in the litigation which would serve to confound, rather than facilitate, a just resolution.” Id. at 15.

Absent class member discovery is thus rarely granted.