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. 

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.