Strategically Managing Discovery in Class Litigation: Tactics for Defense Counsel

For class action counsel, getting through discovery efficiently and cost-effectively is an ongoing challenge because most class actions do settle. One approach is to limit discovery to the essentials and to focus and use offensive and defensive motions—to stay discovery pending resolution of a motion to dismiss, to bifurcate class certification versus merits discovery, to narrow the class definition, and to shift costs to the party requesting discovery. Knowing how to leverage these motions successfully can be the key to reigning in discovery costs.

Another approach is to view discovery as just one leg on the journey to trial on the merits, an approach being taken more frequently. Better outcomes have sometimes been achieved by taking the road less traveled and letting trial themes and strategies, rather than cost alone, inform how much to disclose pre-certification, which witnesses to depose, and to develop a robust record to fortify expert testimony. When the plaintiff's case is weak, a single phase of discovery and then moving for summary judgment could be the best option. Signaling to plaintiffs that settlement is not a forgone conclusion could have a prophylactic effect on future cases.

Listen as our experienced class action defense counsel panel outlines strategic approaches to managing discovery costs.