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LEARNING CENTER
CLASS ACTION
A Class Act
One of the reasons I enjoy class actions and complex litigation is they
force you to be disciplined. Take the simple task of
organizing and interviewing percipient witnesses.
In individual cases, you have a list of witnesses, you interview or
depose them as seems appropriate and it's pretty much a
simple process. In class actions, you need a system or
things can get out of hand pretty quick.
One of my favorite parts of prosecuting a class action is getting a
contact list for the potential (we call them "putative")
class members and conducting the initial interviews that
tell me just what it is that I have on my plate.
 Getting the list isn't always a simple deal. In the wage and hour cases
I've litigating during the past several years, I've seen
both extremes. Sometimes the defense will give up the list
almost upon request. Usually this means they are feeling
pretty good about their prospects. Sometimes, the defense
fights tooth and nail, withholding the list until ordered by the court. Usually this means they are feeling insecure
and then prepare for a bloody discovery battle.
Happily, the law on getting class lists - especially in
wage and hour matters where I've spent most of my time - is
reasonably favorable for plaintiffs. The primary objection
is usually witness privacy, but so long as there is a
general protective order in place, that really shouldn't
pose much of a barrier. Putative class members, after all,
are percipient witnesses and there is a notion that if the
defense only discloses the whereabouts of witnesses they
think are going to be good for them, that's inherently
unfair. Some good cases on this are: Tierno v. Rite Aid
Corp., 2008 WL 3287035(N.D.Cal. July 31, 2008);
Wiegele v. Fedex Ground Package System, 2007 WL 628041 (S.D.Cal.
Feb. 8, 2007); Crab Addison, Inc. v. Superior Court,
169 Cal. App. 4th 958 (2008); Lee v. Dynamex, Inc.,
166 Cal. App. 4th 1325 (2008); Puerto v. Superior Court,
158 Cal. App. 4th 1242 (2008); Putnam v. Eli Lilly and
Co., 508 F.Supp.2d 812 (C.D. Cal. 2007); Hoffman-LaRoche
v. Sperling, 493 U.S. 165, 170 (1989).
Once you have the class list, though, the challenge is using it to
gather information without wasting a lot of time and
effort. That means, you need to have a system and you have
to be disciplined in sticking with it.
Truthfully, coming to grips with this fact did not come
easily to me. When I first started working on class actions
as a regular deal, I was used to litigating single shot
cases where I had a high degree of autonomy. So, I
conducted class member interviews and gathered information
in the same way I always had: cryptic notes with no real
form or format. Since I had no system for gathering
information in systematic fashion, I couldn't share what I
knew effectively with other attorneys or paralegals on the
plaintiff team. It doesn't do much good to be thinking
brilliant thoughts if you aren't sharing them with the
people who matter.
On one of
our cases we tried to solve that problem by creating a
questionnaire encouraging putative class members to fill out
and return the forms. Of course the defense got wind of
what we were doing and started demanding the raw
questionnaires, which we successfully withheld, since under
California law, there is an attorney client privilege
between class counsel and putative class members. Even so,
I left that experience thinking there had to be a better
way.
After much
trial and error, I've concluded that the best way to conduct
the information gathering process is to create an interview
form that can be filled in during telephone interviews. That way I can do some test interviews, fine tune the form
and then share it with the other attorneys and paralegals on
the plaintiff team. I like this approach because, as we
learn more information in discovery, we can update the form
by adding or eliminating areas of inquiry.
Once there
is a standard information gathering format, the process
becomes much more manageable and we spend much less time
translating individual assessments and more time digesting
and strategizing on our next move in prosecuting the case.
Of course,
in order to get to the happy state of having to organize
class interviews, you need to have the class list. In
federal court, where your substantial class will often land
under the Class Action Fairness Act
(CAFA), there is
generally a scheduling order that puts you under tight time
constraints from the moment discovery is opened. Timing is
controlled by Federal Rules of Civil Procedure Rule 26(d)(1)
and it is generally tight. You must, as the infomercials
urge, act quickly.
We generally ask for a class list as soon as discovery opens
and we ask in at least three different ways: As a
FRCP Rule
33 (Civ.Proc.Code § 2030.010 et seq.) special interrogatory,
as a Rule 34 (CCP § 2031.010 et seq.) request for production
and as a Rule 34 document request attached to a personal
most knowledgeable deposition notice under
Rule 30(b)(6)
(CCP § 2025.230). The thinking is that this tees up a
potential motion to compel in each of the three key
discovery areas (interrogatory, document request and
deposition), so that if a motion to compel does become
necessary, there isn't unnecessary delay.
Chances are, interviews with the putative
class will lead to witness declarations in support of your
motion for class certification and help you identify
potential witnesses during summary judgment and trial. Good
organization will help you make the most of this important
resource.
I like the discipline part the best, though. Gives me that
uplifting Zen feeling. Ooommmmm.
**
Bill Daniels | Law Offices,
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