Many employers who are familiar with class actions know that merits-based discovery is generally impermissible before a class has been certified. As a result, these employers often push back – without much forethought – on merits-based discovery that they consider to be “invasive” during the pre-certification stage. At the same time, with respect to discovery regarding the class itself, these same employers often take the exact opposite approach and give away far too much information. This change in attitude is presumably based on the premise that class discovery, regardless of its requested scope, is per se proper because it may go to one or more of the certification elements under Rule 23 of the Federal Rules of Civil Procedure.
As it happens, this is not the case, and employers can take advantage of limitations on class discovery. Indeed, many trial courts – even those in more pro-plaintiff parts of the country like California – have used their discretion to force named plaintiffs to first prove why the violations they are alleging extend beyond the given plaintiff’s particular store, branch, office, or retail location before opening the floodgates to more expansive class-wide discovery. See, e.g., Franco v. Bank of America 2009 U.S. Dist. LEXIS 111873, *10-11 (S.D. Cal. 2009) (court limited scope of discovery to branch offices where plaintiff worked because plaintiff had “not provided sufficient facts to support his claim of a company-wide policy and practice by [the defendant] to withhold regular and overtime wages from its employees”); Martinet v. Spherion Atlantic Enterprises, LLC 2008 U.S. Dist. LEXIS 48113, *2 (S.D. Cal. 2008) (limiting discovery to office where plaintiff worked until such time plaintiff could show evidence of company-wide violations); Nguyen v. Baxter Healthcare Corp. 275 F.R.D. 503, 507-508 (C.D. Cal. 2011) (limiting plaintiff’s pre-certification discovery of defendant’s employee records solely to the local facility where plaintiff worked because plaintiff never worked out of any other location and had no knowledge of the pay issues, policies, or practices at any location other than his local facility).
Based on these cases and the narrow approach towards class discovery which they adopted, employers should carefully scrutinize what discovery they provide – even during the pre-certification stage – because there may be strategic ways to narrow the scope of the class and make the burden of establishing class certification that much more difficult for plaintiffs and their counsel.