Defendants face a dilemma when dealing with absent class members. On the one hand, they often have valuable information about a case, either as sources for variations that would defeat certification or as trial witnesses. On the other hand, plaintiffs will vigorously oppose any contact with absent class members, even if it is for a proper business purpose (like, say, responding to customer inquiries), as an improper attempt to either influence or harass members of the proposed class. So how should defendants handle taking discovery of absent class members?
Carefully. Today's case, Antoninetti v. Chipotle, Inc., 2011 U.S. Dist. LEXIS 54854 (S.D. Cal. May 23, 2011), was an ADA class action. The plaintiffs alleged that Chipotle denied them the ability to see their food being prepared because they were unable to stand (presumably the counters blocked their lines of sight). To support their class certification motion, the plaintiffs declarations from 41 witnesses, each of whom plaintiffs had identified as witnesses in their supplemental disclosures.
Chipotle sought to take the depositions of 20 of those witnesses. When the plaintiffs refused to allow the depositions, Chipotle sought an order from the court. The plaintiffs' opposition to that motion used all of the arguments traditionally used against discovery of absent class members:
Plaintiff contends this Court should not grant Chipotle leave to depose unnamed class members because: (1) Chipotle has failed to show the necessity of such discovery, (2) Chipotle has failed to show the relevance of such discovery, and (3) Chipotle's proposed deposition questions are designed to confuse, mislead and discourage class participation.
The court's decision to allow the depositions turned on the fact that, by signing declarations and agreeing to be witnesses, these absent class members had "injected themselves into the litigation on two fronts." The court also noted that taking discovery of absent class members who are customers is different than taking discovery of class members who are employees.
The Court notes that under certain circumstances depositions of absent class members could have a chilling effect on their willingness to be part of the class. However, that concern has little impact in this case for several reasons. First, the proposed deponents are not employees of Chipotle; rather, they are customers. Therefore, they are not under the pressure employees would face being deposed by their employer. Chipotle cannot directly or impliedly threaten the putative class members with loss or reduction of employment or some other adverse action affecting the work environment. Indeed, a case can be made that Chipotle is more dependent on the putative class members than they are dependent on Chipotle. In fact, part of Chipotle's motivation is to maintain or restore its corporate image with the demographic represented by the putative class members.
(Emphasis added.) Finally, the court pointed out that Chipotle had agreed to limit each deposition to an hour, and had submitted its proposed questions in advance for court approval. (The court very helpfully included those questions as an appendix to its opinion, providing budding defense lawyers with a list of questions that have passed muster in at least one case.)
The lesson defense lawyers can take from this case is a simple one: if you want to take the depositions of absent class members, be prepared to show why they're relevant to your class certification opposition, and be prepared to accept appropriate limits on the questions you ask.