Class actions rarely go to trial, so it’s rare to learn anything from published decisions about how a class action gets tried. However, in Pierce v. County of Orange, the Ninth Circuit had to grapple with several evidentiary issues unique to class action. In Pierce, several prisoners in Orange County’s prison system filed a class action that challenged a number of prison practices, including an alleged deprivation of opportunities for exercise, limitation of prisoners’ access to common areas, and restrictions on their ability to practice religion. The cases were consolidated, certified for class treatment under Rules 23(b)(2) and (b)(3), and eventually tried in a six-day bench trial. (Was that too little time to try plaintiffs’ claims? The appellate court said no.)

The appellate court ruled on a few evidentiary issues that affect defendants.

• It affirmed the exclusion of survey evidence that the plaintiffs had collected. (However, in doing so, it ruled that since two other experts relied on the survey, the exclusion of the evidence was harmless.)
• It allowed the defendant to rely on the statements of absent class members to challenge the named plaintiffs’ testimony.
• It also upheld the decertification of the Rule 23(b)(3) damages class, leaving only the injunctive relief class.

The most interesting of these rulings from a strategic standpoint is the admission of the statements of absent class members. The defendants tried to enter the evidence as adverse party interest statements, an exception to the hearsay doctrine under Rule 801(d)(2). The plaintiffs argued that doing so was not allowable because the absent class members were not representatives of the class – so they could not be parties. The Ninth Circuit ultimately ruled that

For an absent member of a Rule 23(b)(2) class to be treated as a party-and, hence, as a party representative of the class as a whole-for Rule 801 purposes there must be some mechanism to ensure that he or she will represent the interests of the class.

On July 1, 2004, plaintiffs disclosed the identities of forty-five inmates they expected to have testify regarding prison conditions. At least eighteen of the twenty-four statements that the County sought to introduce under Rule 801(d)(2) were taken from detainees on that list. We are satisfied that, on the facts of this case, reliance on statements by detainees who had been disclosed by plaintiffs’ counsel as potential witnesses adequately protected the class from the risk of having the class’s interests undermined by unrepresentative class members.

So what’s the lesson for defendants? First, statements of absent class members at trial are likely hearsay, and need to be treated as such. But, if the defendant can get them admitted, absent-class-member statements can be powerful evidence against supposed classwide problems.