class action seminar

FORUM DECISIONSFORUM DECISIONS

FORUM DECISIONSFORUM DECISIONS

Federal vs. State ForumsFederal vs. State Forums Appealability of Certification Appealability of Certification

Grants/DenialsGrants/Denials Approval Requirements for Pre-Approval Requirements for Pre-

Certification DismissalCertification Dismissal Conduct of the Trial/Case Processing Conduct of the Trial/Case Processing

SpeedSpeed

Federal vs. State ForumsFederal vs. State Forums

JudgesJudges Specialty court division handling Specialty court division handling

complex and/or class action casescomplex and/or class action cases Availability and quality of law clerksAvailability and quality of law clerks Case loadCase load Case management styleCase management style Propensity to certifyPropensity to certify Other issues may affect forum Other issues may affect forum

preference, i.e. the mechanics of class preference, i.e. the mechanics of class certification hearingscertification hearings

Appealability of Appealability of Pre-Certification Grants/DenialsPre-Certification Grants/Denials

FederalFederal– Standard in 9Standard in 9thth Circuit for Circuit for

interlocutory review of a certification interlocutory review of a certification decision under Rule 23?decision under Rule 23?

StateState– Standard for interlocutory review of Standard for interlocutory review of

a certification decisiona certification decision

Approval Requirements for Approval Requirements for Pre-Certification DismissalPre-Certification Dismissal

Federal RulesFederal Rules: No court approval : No court approval requiredrequired

State Rules:State Rules: Court approval may be Court approval may be required (CRC 1859 and 1860)required (CRC 1859 and 1860)

Conduct of the Trial Conduct of the Trial Case Processing SpeedCase Processing Speed

Is adequate time permitted?Is adequate time permitted? What are the judges practices What are the judges practices

regarding trial management?regarding trial management?– Size of juriesSize of juries

Unanimity requirementUnanimity requirement– Federal/state difference here can be case Federal/state difference here can be case

dispositivedispositive– Quality of juror pool (Hodge v. Aon)Quality of juror pool (Hodge v. Aon)– Verdicts patterns in each jurisdictionVerdicts patterns in each jurisdiction

SETTLEMENT APPROVALSETTLEMENT APPROVAL

Preliminary ApprovalPreliminary Approval

Final ApprovalFinal Approval

ELECTRONIC DISCOVERYELECTRONIC DISCOVERY

ELECTRONIC DISCOVERYELECTRONIC DISCOVERY

Amendments to the F.R.C.P.Amendments to the F.R.C.P. Cost ShiftingCost Shifting Litigation HoldLitigation Hold

Amendments to the F.R.C.P.Amendments to the F.R.C.P.

Initial DisclosuresInitial Disclosures Rule 26(f) ConferenceRule 26(f) Conference Scheduling ConferenceScheduling Conference Limitations on Duty to Produce Limitations on Duty to Produce

“Inaccessible” Data“Inaccessible” Data Preservation of “Inaccessible” DataPreservation of “Inaccessible” Data Privilege IssuesPrivilege Issues Interrogatories – Option to Produce Electronic Interrogatories – Option to Produce Electronic

RecordsRecords Production FormatsProduction Formats Sanctions/Safe HarborsSanctions/Safe Harbors Third-Party SubpoenasThird-Party Subpoenas


New amendments effective December New amendments effective December 1, 20061, 2006

By order of the Supreme Court, the By order of the Supreme Court, the amendments govern:amendments govern:– all cases filed after 12/1/06, all cases filed after 12/1/06, andand– all cases pending as of that date – unless all cases pending as of that date – unless

the application of the amendments to the application of the amendments to already pending cases would not be just or already pending cases would not be just or practicable.practicable.


Initial DisclosuresInitial Disclosures

– Under Rule 26(a), prior to any discovery Under Rule 26(a), prior to any discovery request a party must provide other parties request a party must provide other parties with:with:

““a copy of, or a a copy of, or a description by category and description by category and locationlocation of, all documents electronically of, all documents electronically stored information, and tangible things” in its stored information, and tangible things” in its possession that it may use to support its possession that it may use to support its claims and defensesclaims and defenses


Rule 26(f) ConferenceRule 26(f) Conference– Requires parties to develop a proposed Requires parties to develop a proposed

discovery plandiscovery plan– Practical effects: early discussion and Practical effects: early discussion and

disclosure of preservation and production disclosure of preservation and production strategiesstrategies


Scheduling ConferencesScheduling Conferences– Courts to address electronic discovery in Courts to address electronic discovery in

the Rule 16(b) scheduling order.the Rule 16(b) scheduling order.– Under Rule 16(b), a scheduling order may Under Rule 16(b), a scheduling order may

include:include: provisions for disclosure or discovery or provisions for disclosure or discovery or

electronically stored informationelectronically stored information any agreements the parties reach for asserting any agreements the parties reach for asserting

claims of privilege after productionclaims of privilege after production

– Timing between discovery and cert motionTiming between discovery and cert motion– Timing between cert motion and trialTiming between cert motion and trial


Limitations on Duty to Produce Limitations on Duty to Produce “Inaccessible” Data: Rule 26(b)(2)(B)“Inaccessible” Data: Rule 26(b)(2)(B)– Focus of initial discovery on “accessible” Focus of initial discovery on “accessible”

sources, but possibility of additional discovery sources, but possibility of additional discovery from “inaccessible” sources pursuant to court from “inaccessible” sources pursuant to court order. order.

– Rule 26(b)(2)(B) limits a party’s duty to Rule 26(b)(2)(B) limits a party’s duty to produceproduce

– What data is inaccessible?What data is inaccessible?– Leading case: Leading case: Zubulake v. UBS Warburg LLC, Zubulake v. UBS Warburg LLC,

217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”)217 F.R.D. 309 (S.D.N.Y. 2003) (“Zubulake I”)– What is “What is “Good CauseGood Cause” that might require ” that might require

production of inaccessible data?production of inaccessible data?


Preservation of Inaccessible DataPreservation of Inaccessible Data– Rule 26(b)(2)(B) does Rule 26(b)(2)(B) does NOTNOT alter litigation alter litigation

preservation requirements.preservation requirements.– Although a party does not have to produce Although a party does not have to produce

inaccessible data absent a motion to inaccessible data absent a motion to compel, “a party’s identification of sources compel, “a party’s identification of sources of electronically stored information as not of electronically stored information as not reasonably accessible does not relieve the reasonably accessible does not relieve the party of its common-law or statutory party of its common-law or statutory duties to preserve evidence.”duties to preserve evidence.”


Privilege IssuesPrivilege Issues– Allows parties to “claw back” documents Allows parties to “claw back” documents

identified as privileged after being identified as privileged after being produced. See Rule 26(b)(5).produced. See Rule 26(b)(5).

– In practice, the possibility of a waiver will In practice, the possibility of a waiver will prevent most parties from taking prevent most parties from taking advantage of any perceived assistance advantage of any perceived assistance offered by the new rule.offered by the new rule.


Interrogatories – Option to Produce Interrogatories – Option to Produce Electronic RecordsElectronic Records– Instances when it is sufficient to specify the Instances when it is sufficient to specify the

records from which the answer may be derived or records from which the answer may be derived or ascertained. Rule 33(d).ascertained. Rule 33(d).

– Responding party is required to allow requesting Responding party is required to allow requesting party reasonable opportunity to examine, audit, or party reasonable opportunity to examine, audit, or inspect such records.inspect such records.

– Responding party may be required to provide some Responding party may be required to provide some combination of technical support, information on combination of technical support, information on application software, or other assistance.application software, or other assistance.

– A party that wishes to invoke Rule 33(d) may be A party that wishes to invoke Rule 33(d) may be required to provide direct access to its electronic required to provide direct access to its electronic information systems, but only if that is necessary.information systems, but only if that is necessary.

Amendments to the F.R.C.P.Amendments to the F.R.C.P. Production FormatsProduction Formats

– Rule 34 applies to both documents and “dynamic Rule 34 applies to both documents and “dynamic databases.”databases.”

– If necessary, a responding party must “translate” If necessary, a responding party must “translate” information it produces into a a “reasonably usable information it produces into a a “reasonably usable form.”form.”

– The addition of “testing and sampling” to Rule 34(a)The addition of “testing and sampling” to Rule 34(a)– Requesting party may specify the format for Requesting party may specify the format for

production. Responding party may object and production. Responding party may object and specify what format it intends to use. Requesting specify what format it intends to use. Requesting party may then file a Rule 37(a) motion to compel.party may then file a Rule 37(a) motion to compel.

– E-discovery in the form in which responding party E-discovery in the form in which responding party maintains its data is allowable.maintains its data is allowable.

– Information maintained in a searchable form must Information maintained in a searchable form must be produced in a manner that maintains the ability be produced in a manner that maintains the ability to search the informationto search the information


Sanctions for Failure to ProduceSanctions for Failure to Produce– Rule 37(f) creates a “safe harbor” for Rule 37(f) creates a “safe harbor” for

parties failing to produce responsive parties failing to produce responsive electronic documents or information.electronic documents or information.

– Obligation to preserve electronic systemsObligation to preserve electronic systems– Specific examples of practices that might Specific examples of practices that might

fall within the scope of Rule 37(f):fall within the scope of Rule 37(f): programs that recycle short term disaster programs that recycle short term disaster

recovery mediarecovery media automatic overwriting of information that has automatic overwriting of information that has

been deletedbeen deleted programs that change metadata to reflect the programs that change metadata to reflect the

latest access to electronically stored datalatest access to electronically stored data programs that automatically discard information programs that automatically discard information

that has not been accessed within a defined that has not been accessed within a defined period of timeperiod of time


Third Party SubpoenasThird Party Subpoenas– Rule 45 amended to apply to electronically Rule 45 amended to apply to electronically

stored information.stored information.– Amendments designed to keep Rule 45 in Amendments designed to keep Rule 45 in

accord with amendments addressed accord with amendments addressed above, including principally production above, including principally production formats and limits on producing formats and limits on producing information not reasonably accessible.information not reasonably accessible.


Amendments – Key PointsAmendments – Key Points– Amendments codify many existing best Amendments codify many existing best

practices.practices. Get started earlyGet started early Reach agreement earlyReach agreement early Get the courts involved earlyGet the courts involved early Get experts (IT and external consultants) Get experts (IT and external consultants)

involved earlyinvolved early– Amendments provide some relief from Amendments provide some relief from

producing “inaccessible” documentsproducing “inaccessible” documents– Safe harbor under Rule 37(f) – neither Safe harbor under Rule 37(f) – neither

safe, nor a harborsafe, nor a harbor– Don’t play game, e.g., if producing party Don’t play game, e.g., if producing party

maintains the information in searchable maintains the information in searchable form, produce it in searchable form.form, produce it in searchable form.

Electronic Discovery – Cost Electronic Discovery – Cost ShiftingShifting


Shifting Costs for Electronic Discovery Shifting Costs for Electronic Discovery – Zubulake I– Zubulake I– Cost shifting is NOT an appropriate Cost shifting is NOT an appropriate

consideration in every case, but may be consideration in every case, but may be applied when the discovery imposes an applied when the discovery imposes an undue burden or expense.undue burden or expense.

– ““Undue burden” turns primarily whether Undue burden” turns primarily whether data is kept in accessible or inaccessible data is kept in accessible or inaccessible format, because this “corresponds closely format, because this “corresponds closely to the expense of production.”to the expense of production.”


Zubulake Cost Shifting FactorsZubulake Cost Shifting Factors1.1. Extent to which the request is narrowly tailored to Extent to which the request is narrowly tailored to

discover relevant information;discover relevant information;

2.2. Availability of information from other sources;Availability of information from other sources;

3.3. Cost of production, compared to amount in Cost of production, compared to amount in controversy;controversy;

4.4. Cost of production, compared to each party’s Cost of production, compared to each party’s resources;resources;

5.5. Relative ability of each party to control costs and Relative ability of each party to control costs and its incentive to do so;its incentive to do so;

6.6. Importance of the issues at stake in the litigation; Importance of the issues at stake in the litigation; andand

7.7. Relative benefits to the parties of obtaining the Relative benefits to the parties of obtaining the information.information.

Electronic Discovery -- Litigation Electronic Discovery -- Litigation HoldHold

Notification ObligationsNotification Obligations– When litigation becomes reasonably When litigation becomes reasonably

foreseeable, counsel should take steps to foreseeable, counsel should take steps to ensure that discoverable documents are ensure that discoverable documents are preservedpreserved

– ““Litigation Hold Notice”Litigation Hold Notice”– Notify the key players of litigation holdNotify the key players of litigation hold


What data sources should be covered?What data sources should be covered?- voice mail messages/files- voice mail messages/files - voice mail - voice mail

backupbackup- e-mail messages/files - e-mail messages/files - e-mail backup - e-mail backup - data filesdata files - program files- program files- backup and archival tapesbackup and archival tapes - temporary files- temporary filessystem history filessystem history files - web site - web site

informationinformation- web site log filesweb site log files - cache files- cache files- cookiescookies - other electronically - other electronically

recorded recorded informationinformation

Super Film of Am., Inc. v. UCB Films, Inc.Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 49 , 219 F.R.D. 49 (D.Kan. 2004)(D.Kan. 2004)

Data found on:Data found on:– active storage devices (computers, PDAs, voice mail)active storage devices (computers, PDAs, voice mail)– removable active storage devices (CD ROMS, floppy disks, removable active storage devices (CD ROMS, floppy disks,

USB devices)USB devices)– archive storage systems (backup tapes)archive storage systems (backup tapes)– employee-owned devicesemployee-owned devices


Communicating the NoticeCommunicating the Notice– Maximize the chance that it will be receivedMaximize the chance that it will be received– preservation notification should be preservation notification should be

conveyed by company personnel with conveyed by company personnel with sufficient seniority and visibility within the sufficient seniority and visibility within the company to enhance the likelihood that the company to enhance the likelihood that the message will be received with the message will be received with the appropriate level of seriousnessappropriate level of seriousness

– Notification obligations continue under Notification obligations continue under Zubulake VZubulake V

– Consequences of failing to meet notification Consequences of failing to meet notification obligationsobligations

DRAFTING CLASS ACTION DRAFTING CLASS ACTION NOTICES AND RESPONSESNOTICES AND RESPONSES

Drafting Pre-Certification Drafting Pre-Certification NoticeNotice

Parris v. Lowes, Parris v. Lowes, 109 Cal.App.4109 Cal.App.4thth 285 (2003) 285 (2003) Belaire-West Landscape, Inc.Belaire-West Landscape, Inc. v. The Superior v. The Superior

Court of Los Angeles CountyCourt of Los Angeles County, 149 Cal.App.4, 149 Cal.App.4th th 544 (2007)544 (2007)

Pioneer Electronics (USA), Inc. v. The Pioneer Electronics (USA), Inc. v. The Superior Court of Los AngelesSuperior Court of Los Angeles, 40 Cal.4, 40 Cal.4thth 360 360 (2007)(2007)

Tien v. Superior CourtTien v. Superior Court (Tenet Healthcare (Tenet Healthcare Corp.), 139 Cal.App.4Corp.), 139 Cal.App.4thth 528 (2006) 528 (2006)

Pre-Certification Pre-Certification Communication with Class Communication with Class

MembersMembers

Parris v. Lowes, Parris v. Lowes, 109 Cal.App.4109 Cal.App.4thth 285 285 (2003)(2003)– HoldingsHoldings

A court’s limitation of parties’ pre-A court’s limitation of parties’ pre-certification communications with class certification communications with class members constitutes an unconstitutional members constitutes an unconstitutional prior restraint of speech.prior restraint of speech.

A trial court may rule on the propriety of A trial court may rule on the propriety of pre-certification communications only if pre-certification communications only if the opposing party seeks an injunction, the opposing party seeks an injunction, protective order, or other relief.protective order, or other relief.

If such a motion is brought, the trial court If such a motion is brought, the trial court may impose restrictions on such may impose restrictions on such communications only by a showing of communications only by a showing of direct, immediate, and irreparable harm.direct, immediate, and irreparable harm.

Belaire-West Landscape, Inc.Belaire-West Landscape, Inc. v. The v. The Superior Court of Los Angeles CountySuperior Court of Los Angeles County, , 149 Cal.App.4149 Cal.App.4th th 544 (2007) 544 (2007)– Pre-certification opt-out notice to Pre-certification opt-out notice to

employers’ current and former employees, employers’ current and former employees, requiring them to object in writing in order requiring them to object in writing in order to prevent contact information about them to prevent contact information about them from being disclosed, adequately from being disclosed, adequately protected plaintiffs’ privacy rights.protected plaintiffs’ privacy rights.

– Pioneer Electronics (USA), Inc. v. The Superior Pioneer Electronics (USA), Inc. v. The Superior Court of Los AngelesCourt of Los Angeles, 40 Cal.4, 40 Cal.4thth 360 (2007) 360 (2007) holds holds the same in the consumer context.the same in the consumer context.

Pre-Certification Pre-Certification Communication with Class Communication with Class

MembersMembers

Pre-Certification NoticePre-Certification Notice Not a court Not a court

endorsementendorsement

This Correspondence is Being Sent to You Pursuant to an Order of the Los Angeles Superior Court. The Order of the Court Does Not Constitute an Endorsement by the Court of Any of the Statements Contained Herein. The Court has Not Rendered an Opinion as to the Merits of this Case.

This Correspondence is Being Sent to You Pursuant to an Order of the Los Angeles Superior Court. The Order of the Court Does Not Constitute an Endorsement by the Court of Any of the Statements Contained Herein. The Court has Not Rendered an Opinion as to the Merits of this Case.


endorsementendorsement Plaintiff’s Plaintiff’s

AllegationsAllegations

Plaintiff’s AllegationsPlaintiff’s Allegations



AllegationsAllegations Request for Request for

assistanceassistance

Plaintiffs’ counsel would like to have your address and telephone number to help in their investigation. The Plaintiffs’ lawyers would like to contact you to obtain your input as to whether the Plaintiffs’ allegations in their lawsuit are accurate.

Plaintiffs’ counsel would like to have your address and telephone number to help in their investigation. The Plaintiffs’ lawyers would like to contact you to obtain your input as to whether the Plaintiffs’ allegations in their lawsuit are accurate.




assistanceassistance Opt Out Opt Out

OpportunityOpportunity

THEREFORE, IF YOU DO NOT WANT YOUR ADDRESS AND TELEPHONE NUMBER TO BE PROVIDED TO THE PLAINTIFFS’ ATTORNEYS, YOU MUST complete and return THE ENCLOSED POST CARD to the address listed on the postcard.

THEREFORE, IF YOU DO NOT WANT YOUR ADDRESS AND TELEPHONE NUMBER TO BE PROVIDED TO THE PLAINTIFFS’ ATTORNEYS, YOU MUST complete and return THE ENCLOSED POST CARD to the address listed on the postcard.





OpportunityOpportunity Identity of Identity of

Plaintiffs’ Plaintiffs’ attorneysattorneys

You may contact any of the following Plaintiffs’ attorneys: . . .You may contact any of the following Plaintiffs’ attorneys: . . .





OpportunityOpportunity Identity of Identity of

Plaintiffs’ Plaintiffs’ attorneysattorneys

No obligationNo obligation

You a re under no obligation to provide information to or discuss this matter with the Plaintiffs’ attorneys or any person representing the former employees.

You are also under no obligation to provide information to or discuss this matter with Belaire-West or any of its agents or attorneys.

You a re under no obligation to provide information to or discuss this matter with the Plaintiffs’ attorneys or any person representing the former employees.

You are also under no obligation to provide information to or discuss this matter with Belaire-West or any of its agents or attorneys.

Pre-Cert CommunicationPre-Cert Communication

Tien v. Superior CourtTien v. Superior Court (Tenet (Tenet Healthcare Corp.), 139 Cal.App.4Healthcare Corp.), 139 Cal.App.4thth 528 528 (2006)(2006)– Disclosure of names of those putative Disclosure of names of those putative

class members who contacted plaintiffs’ class members who contacted plaintiffs’ counsel does not violate the attorney work counsel does not violate the attorney work product doctrine.product doctrine.

– Disclosure of names of those putative Disclosure of names of those putative class members who contacted plaintiffs’ class members who contacted plaintiffs’ counsel does not violate the attorney counsel does not violate the attorney client privilege.client privilege.

Pre-Cert CommunicationPre-Cert Communication

Tien v. Superior CourtTien v. Superior Court (Tenet Healthcare (Tenet Healthcare Corp.), 139 Cal.App.4Corp.), 139 Cal.App.4thth 528 (2006) 528 (2006)– Disclosure would violate the plaintiff’s Disclosure would violate the plaintiff’s

constitutional privacy rights.constitutional privacy rights. Privacy rights of class members outweigh any Privacy rights of class members outweigh any

interest an employer had in learning their identity, interest an employer had in learning their identity, in so much as employer already knew the identity in so much as employer already knew the identity of all class members and it knew how it of all class members and it knew how it compensated its employee, while the privacy compensated its employee, while the privacy rights of class members was significant. rights of class members was significant. specifically, the plaintiff’s privacy right in specifically, the plaintiff’s privacy right in consulting an attorney in an atmosphere of “trust consulting an attorney in an atmosphere of “trust and serenity.”and serenity.”

Post-Certification NoticePost-Certification Notice

Governed by Rule Governed by Rule 3.766 of 3.766 of California California Rules of CourtRules of Court


Brief statement of Brief statement of case with case with contentions and contentions and denials of the partiesdenials of the parties

WHAT IS THE LITIGATION ABOUT? . . .WHAT IS THE LITIGATION ABOUT? . . .



The court will The court will exclude class exclude class member if member member if member so requests by a so requests by a specific datespecific date

If you wish, the Court will exclude you from the class if you so request by _______. If you wish to be excluded from the class, you must send correspondence to the following class counsel: . . .

If you wish, the Court will exclude you from the class if you so request by _______. If you wish to be excluded from the class, you must send correspondence to the following class counsel: . . .



The court will The court will exclude class exclude class member if member member if member so requests by a so requests by a specific datespecific date

Opt out procedureOpt out procedure Your request must be in writing. You must state that you wish to be excluded from the class, and you must provide your name, address and social security number. Your request to be excluded must be postmarked no later than _______.

Your request must be in writing. You must state that you wish to be excluded from the class, and you must provide your name, address and social security number. Your request to be excluded must be postmarked no later than _______.

Post-Certification NoticePost-Certification Notice Brief statement of Brief statement of

case with contentions case with contentions and denials of the and denials of the partiesparties

The court will exclude The court will exclude class member if class member if member so requests member so requests by a specific dateby a specific date

Opt out procedureOpt out procedure Statement that Statement that

judgment will bind judgment will bind members who do not members who do not request exclusionrequest exclusion

Statement that any Statement that any member who does not member who does not request exclusion, if request exclusion, if the member so the member so desires, enter an desires, enter an appearance through appearance through counselcounsel

If you do not choose to exclude yourself from the class, any judgment rendered, whether favorable or not, will be binding upon you. If you do not choose to exclude yourself from the class, you may, if you so desire, enter an appearance through counsel of your choice.

If you do not choose to exclude yourself from the class, any judgment rendered, whether favorable or not, will be binding upon you. If you do not choose to exclude yourself from the class, you may, if you so desire, enter an appearance through counsel of your choice.

Costs of Pre-Cert NoticeCosts of Pre-Cert Notice

Typically, the party seeking class Typically, the party seeking class certification must initially bear the certification must initially bear the expense of preparing and distributing expense of preparing and distributing class notice. See class notice. See Eisen v. Carlyisle & Eisen v. Carlyisle & JackquelinJackquelin, 417 U.S. 156 (1974); see , 417 U.S. 156 (1974); see also also Oppenheimer Fund, Inc. v. SandersOppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 355 N.22 (1978) , 437 U.S. 340, 355 N.22 (1978) (noting, however, that courts may (noting, however, that courts may order defendants to assist in identifying order defendants to assist in identifying and giving notice to the class)and giving notice to the class)

Costs of Class NoticesCosts of Class Notices

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rule 26b5

production formats rule

responding party

initial disclosures

court approval

new amendments effective

certification decision