McGuireWoods Richmond associate Cole Geddy and Charlottesville partner Brian Jackson analyzed a new cost-effective approach to class action discovery in a June 2, 2020, Law360 article.
In the article, Geddy and Jackson explored how the economic slowdown has increased pressure to manage litigation costs for defendants and propose re-evaluating the traditional approach to conducting class action discovery.
While courts traditionally have split discovery into class and merits stages based on the notion that narrow class discovery will preserve resources until a class is certified, the authors wrote that “this benefit often proves misleading as plaintiffs undertake, and courts allow, broad class discovery that substantially overlaps with the merits of the action.”
Defendants should be mindful to use a single discovery period as part of a larger strategy to conduct cost-effective litigation, the authors explained. “Businesses facing class actions should consider arguing for a single discovery period covering all issues,” they wrote. “This approach allows the court to hear summary judgment before or with class certification, forcing plaintiffs to make a stronger evidentiary showing than a bifurcated schedule would require.”
“A single phase requires an investment in full discovery but eliminates costly duplication and gives defendants an opportunity to prevail on the merits of some or all claims before facing potential class certification,” the authors concluded.