Linda S. Mullenix · May 2014
82 GEO. WASH. L. REV. 606 (2014)
One of the most often cited precepts at class certification hearings—when courts hold such hearings—is that the rules of evidence do not apply. Since 1966, virtually every federal and state judge has fallen back on this trope to wave off objections to materials offered by counsel during class certification hearings. Class certification hearings, then, often resemble some sort of Kabuki theatre, where, upon an offer of proof, the opposing party rises to object to the materials on evidentiary grounds, only to be rebuffed by the judge’s invocation of the “no rules of evidence apply” mantra.
In light of the evolving rigorous analysis standard for class certification and the increased use of evidentiary hearings, courts ought to recognize that rules of evidence should be applied at class certification hearings. Under cur- rent practice, we have evidentiary hearings without reference to the rules of evidence. Although compelling arguments may be marshaled against impos- ing such a requirement, imposing evidentiary rules at class certification is the logical extension of importing the Daubert gatekeeping function into the certi- fication process. The trend over two decades has been to make the class certi- fication process a more serious affair, against the backdrop of the consequences of the class certification decision, which usually impels defend- ants to settle the case rather than to continue litigation. Imposing evidentiary rules at class certification will enhance professional responsibility on class certification motions. Additionally, imposing evidentiary rules, on balance, most likely will not increase expense or delay because litigants already undertake precertification discovery. Evidentiary standards at class certification simply will require class action attorneys to clean up their acts. In addition, requiring evidentiary rules will enhance judicial functions and responsibilities by induc- ing judges to make deliberative decisions in the shadow of possible appellate reversal for reliance on inadmissible materials. In the end, a class certification framework that imports evidentiary rules into the certification process will en- hance the sense of justice and fairness in class certification decisions.
