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Defending Class Actions Using Absent Class Member Discovery

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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, September 14, 2023

Recorded event now available

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This CLE webinar will prepare defense counsel to evaluate whether and how to pursue discovery from and about 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 discovery to request, how many absent class members to seek for discovery, and strategies to leverage evidence obtained during certification, settlement, and trial.


During class certification, one of defense counsel's primary objectives is to identify differences between putative class members to demonstrate a lack of commonality and predominance 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. 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.

Listen as our authoritative panel of class litigators examines current trends in seeking discovery of putative class members, 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 from absent class members be leveraged 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
Shook Hardy & Bacon

Mr. Trask focuses his practice on class action and complex litigation in various industries, including the automotive...  |  Read More

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