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 Wednesday, May 30, 2018

Recorded event now available

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Program Materials

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 primary objectives during class certification is to identify differences between putative class members 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 a useful defense tool for eliciting this information.

During settlement negotiations and trial, absent class member discovery is critical to disprove liability, injury or damages to 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 discovery with 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 crucial issues:

  • When are absent class members considered “parties” for 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 used for optimal impact during class certification, settlement and trial?


Ackerman, Wystan
Wystan M. Ackerman

Robinson & Cole

Mr. Ackerman chairs the firm's Class Action Team and has a national class action defense practice. He has been...  |  Read More

Trask, Andrew
Andrew J. Trask

Senior Counsel
McGuire Woods

Mr. Trask has defended more than 100 class actions, involving all stages of the litigation process. While his work has...  |  Read More

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