The defendant in Katz v. Liberty Power Corp. faced a common dilemma: the prospect of expense class discovery even though the named plaintiff’s individual claims appear weak. See No. 18-cv-10506, 2019 U.S. Dist. LEXIS 30901, 2019 WL 957129 (D. Mass. Feb. 27, 2019). The defendant responded to this dilemma by requesting that discovery on individual claims proceed first, and that discovery relevant to class certification only proceed if the individual claims survive summary judgment. The district court agreed, and put off class discovery until after summary judgment on the individual claims.
The defendant no-doubt made the decision that the cost of class discovery easily trumps that of individual discovery and dispositive motions. And that is often the case. But there is a downside to pursuing individual discovery and merits before class certification, and it is potentially a major one: waiving the rule against one-way intervention.
Typically, a class-action defendant can invoke the rule against one-way intervention to prevent unnamed class members from waiting to see how merits issues will be resolved before deciding whether to join a class. Essentially, the rule prevents a named plaintiff from seeking a ruling on the merits before seeking certification. Otherwise, unnamed class members can avoid being bound by unfavorable merits rulings while taking advantage of favorable merits rulings. But when the defendant seeks merits rulings before certification, it is much more difficult to raise one-way intervention objections if the merits are decided in the plaintiff’s favor. For example, a TCPA defendant could be stuck with an unfavorable ATDS or consent ruling before class discovery even commences. That makes the plaintiff’s job on certification much easier.
Bifurcating discovery and pursing summary judgment can, of course, be a prudent strategy in the correct case. But class-action defendants need to proceed with caution and be careful not to make the plaintiff’s job easier in the hope of avoiding the costs of class discovery.
As an aside, the Katz case also involved an interesting discovery battle over records related to the plaintiff’s Google Voice account. The defendant believed that the plaintiff was forwarding calls between residential lines and his Google Voice number essentially to manufacture TCPA claims. The court recognized that the manner in which the plaintiff actually used his Google Voice numbers and other phone numbers is relevant, and ordered a broad production of all documents related to them. The progress of that discovery fight, and what ultimately comes of the Google Voice data, will be interesting to monitor as professional plaintiffs continue to be responsible for an outsized percentage of TCPA class actions.