It is relatively rare for defendants to take discovery from non-named members of the putative class, which generally requires court approval. But such discovery can be quite useful in opposing class certification by highlighting differences in experience and viewpoints among putative class members. Where depositions of a sample of putative class members turn up information that would be relevant at trial, the defendant may have a strong argument that if a class were certified it would have to depose every member of the putative class, making a class action unmanageable.
A recent post by Andrew Trask on his Class Action Countermeasures blog brought to my attention a recent decision by the Northern District of California in Antoninetti v. Chipotle, Inc., 2011 U.S. Dist. LEXIS 54854 (S.D. Cal. May 23, 2011). This is an Americans with Disabilities Act case that appears to be premised on a claim that the defendant’s Mexican restaurants are constructed in a manner that does not allow handicapped customers to watch their food being prepared (because of the height of internal walls), while non-handicapped customers can do so. The plaintiff filed, with her motion for class certification, 41 declarations signed by non-named members of the putative class. The defendants sought leave to take depositions of 20 of these people, limited to one hour. The court granted the motion, allowing the depositions with the one-hour limitation, and requiring that they be videotaped (apparently to aid the court in evaluating any inappropriate conduct during the depositions). The court found it significant that the individuals had “injected themselves into the litigation” by signing the declarations. The defendant submitted proposed questions, plaintiff’s counsel objected, and the court ruled on the objections in an appendix to its opinion, overruling the vast majority of the objections.
This type of discovery can be useful in insurance claims-related class actions to help illustrate why class treatment is improper, and why the facts of each putative class member’s claim matter in resolving the merits. It does not seem fair that in this case the only people being deposed are individuals who were hand-picked by plaintiff’s counsel. That may result in a skewed presentation to the court, even after these depositions are taken. I think a more appropriate procedure would be to let each side select a sample of putative class members to depose, or to have only the defendant select them if the plaintiff did not wish to take any such depositions, or to use a random selection process. While this will be an imposition on people who may not have expressed a desire to participate in the litigation, it would be a relatively small number of people, would be a small imposition on their time, and would aid the court in evaluating class certification. One might analogize this involuntary but rare participation in the court system as similar to jury service. Alternatively, the defendant (or both sides, where permitted) could contact people and depose only those who agreed to give depositions.