Legal Memorandum: Certification of a Proposed Class

Issue: What specialized or particular discovery may be needed to support an opposition to certification of a proposed class in a matter in Louisiana?

Area of Law: Litigation & Procedure, Personal Injury & Negligence
Keywords: Discovery; Class certification; Requirements for certification
Jurisdiction: Federal, Louisiana
Cited Cases: 669 F.2d 328; 417 U.S. 156; 552 F.2d 149
Cited Statutes: 42 U.S.C. § 1988
Date: 05/01/2011

Discovery is available for class-certification issues.  Generally, courts may not conduct a preliminary inquiry on the merits of the case in order to decide whether to certify a class action.  Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).  On certification issues, however, the issue is not whether the plaintiff has stated a valid claim for relief or will prevail on the merits.  Instead, the issue is whether the proposed class action and class representative meet the requirements for certification under Rule 23(a) and (b). 

The Eisen rule does not mean that courts are limited to the pleadings to determine whether the requirements for class certification have been met.  Instead, whether the suit is appropriate for class resolution must be demonstrated, not merely alleged.  Courts may allow discovery and hear evidence in order to make the required factual determinations.


5 Moore’s Federal Practice § 23.84[2].  See also id. § 23.85[1] (“Typically, district courts will allow discovery relevant to determining whether the requirements of Rule 23(a) are satisfied and whether the action is maintainable under one of the categories listed in Rule 23(b).”). 

The court permitting pre-certification discovery should limit it to discovery that would be “necessary or helpful” to the certification decision.  Stewart v. Winter, 669 F.2d 328, 331 (5th Cir. 1982).  In most cases “a certain amount of discovery is essential in order to determine the class action issues and the proper scope of […]

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