Bifurcated Discovery in Class Litigation: Navigating the Blurred Lines Before and After Certification

Evaluating "Merits Discovery" vs. "Class Discovery," Addressing Damages Issues, Preparing Defendants for Depositions When Bifurcation is Permitted

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, June 11, 2014

Recorded event now available

Program Materials

This CLE webinar will examine how class litigators and the courts are addressing the issue of bifurcated discovery in class litigation, the tricky issues raised by separating class discovery from merits discovery, and strategies for plaintiff and defense counsel to successfully obtain or oppose discovery bifurcation.

Description

The two-step nature of class litigation, i.e., class certification followed by a trial on the merits, creates unique discovery issues. Defense counsel often seek to bifurcate discovery so that merits discovery occurs only after a class is certified. Plaintiffs' counsel frequently oppose bifurcation due to the delay it causes and because some merits issues are key in determining whether a class should be certified.

The lines are sometimes blurred between "merits discovery" vs. "class discovery," making it difficult for defense counsel to determine when it makes strategic sense to seek bifurcation of merits discovery pre-certification and how to phrase their request for bifurcation. There are certain cases in which merits discovery may be helpful during class certification and others in which the merits are irrelevant to the class certification decision.

In the wake of the Comcast decision, class counsel are forced to navigate a grey area with regard to damages issues. Since plaintiffs must now match their damages theories to their liability theories at the class certification stage, are damages issues now "class discovery" issues rather than "merits discovery" issues? Counsel are also facing challenges in determining how to prepare corporate defendants for depositions when merits discovery is bifurcated.

Listen as our authoritative panel of class litigators reviews the latest case law and practice trends impacting bifurcated discovery in class litigation. The panel will review the grey areas that arise when evaluating whether and how to request bifurcated discovery and discuss best practices when pursuing or opposing bifurcation.

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Outline

  1. Defining "merits discovery" vs. "class discovery"
  2. Recent case trends regarding bifurcating discovery in class litigation
  3. Dealing with damages issues in light of Comcast—appropriate for class discovery or merits discovery?
  4. Preparing corporate defendants for depositions when discovery is bifurcated
  5. Determining whether and how to use absent class member discovery

Benefits

The panel will review these and other key questions:

  • Under what circumstances might defense counsel seek bifurcation of discovery in class litigation?
  • In what types of cases might merits discovery be helpful during class certification?
  • What arguments are plaintiffs' counsel making to oppose bifurcation?
  • In the wake of Comcast, is the determination of damages now an issue for class discovery rather than merits discovery?
  • What impact does bifurcating discovery have on how defense counsel prepares corporate defendants for depositions?
  • When and how should defense counsel seek discovery of absent class members?

Faculty

Jennifer L. Liu
Jennifer L. Liu

Outten & Golden

Ms. Liu represents employees in litigation and negotiation in all areas of employment law, with a focus on executive...  |  Read More

Katherine F. Murray
Katherine F. Murray

Of Counsel
Paul Hastings

Ms. Murray concentrates her practice on complex business litigation matters. She has significant experience litigating...  |  Read More