Defending Class Actions Using Absent Class Member Discovery

Evaluating Whether to Seek Discovery of Putative Class Members; Leveraging Evidence at Certification, Settlement and Trial

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

Conducted on Thursday, March 2, 2017
Recorded event now available

This CLE webinar will prepare defense counsel to evaluate whether and how to pursue discovery of absent class members in class litigation. The panel will discuss the courts’ varying positions on permitting absent class member discovery, when to request discovery from putative class members, the type of discovery to request, how many absent class members to seek out for discovery, and strategies to leverage evidence obtained during certification, settlement and trial.


One of defense counsel’s main objectives during class certification is to identify differences between putative class members in order to demonstrate a lack of commonality and typicality within the class and ultimately defeat certification. Conducting discovery of absent or putative class members can be an effective defense tool for eliciting this information.

During settlement negotiations and trial, absent class member discovery is critical to disprove liability, injury or damages to each and every member of the class.

Courts differ on allowing absent putative class member discovery since putative class members are not official parties in the case. Defense counsel considering conducting discovery of absent class members must evaluate when to request it, whether to use depositions or written interrogatories to obtain information, and the risks of pursuing it at all.

Listen as our authoritative panel of class litigators examines current trends in seeking discovery of putative class members and considerations for defense counsel in conducting absent class member discovery, and leveraging the evidence obtained during certification, settlement and trial.


  1. Evaluating whether and how to seek discovery of absent class members
    1. When to request discovery
    2. Type of discovery to request
    3. How many absent class members to seek out for discovery
    4. Ethical and privilege considerations with absent class member discovery
  2. Leveraging evidence from putative class members during certification, settlement and trial


The panel will review these and other key issues:

  • When are absent class members considered “parties” for the purpose of discovery?
  • What factors should defense counsel weigh when evaluating whether and when to conduct discovery of absent class members?
  • How can evidence obtained from absent class members be most effectively used during class certification, settlement and trial?


Wystan M. Ackerman, Partner
Robinson & Cole, Hartford, Conn.

Mr. Ackerman is Chair of the firm's Class Action Team. He has defended major insurers across the country in class actions and has prevailed on dispositive motions in numerous cases. In addition to insurer representation, Mr. Ackerman has defended cases involving products liability, financial services, consumer contracts, and securities. He is a frequent author and lecturer on class action topics.

Andrew J. Trask, Senior Counsel
McGuire Woods, Los Angeles

Mr. Trask has defended more than 100 class actions, involving all stages of the litigation process. While his work has concentrated on products liability and consumer fraud cases, he has also defended class actions involving telecommunications products, business contracts, securities, ERISA, the U.S. antitrust laws and environmental claims, among others. In addition to his class action practice, Mr. Trask has defended mass tort cases involving financial regulations, patent misuse cases, and government investigations into allegations of automotive defects and breach of privacy regulations.


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Class Action Law Advisory Board

Thomas Allen


Reed Smith

Steve Berman


Hagens Berman Sobol Shapiro

Brian Boyle


O'Melveny & Myers

H. Douglas Hinson


Alston & Bird

Daniel R. Karon


Karon LLC

Robert S. Kitchenoff


Weinstein Kitchenoff & Asher

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Akin Gump Strauss Hauer & Feld

Michael McCluggage


Eimer Stahl

W. Ray Persons


King & Spalding

William B. Rubenstein


Harvard Law School

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