Gerson H. Smoger and David M. Arbogast · October 2014
82 GEO. WASH. L. REV. ARGUENDO 104 (2014)
The Dukes “rigorous analysis” blurs the line between “certification” and “merits” discovery in class action litigation. Without adequate discovery, class counsel risk finding themselves without a sufficient record to survive appellate review of class certification orders. Class counsel must be aware of how commonality challenges based on the merits of the class allegations can defeat certification. Therefore, class counsel must anticipate merit-based challenges and develop a discovery strategy that will enable a sufficient demonstration to the appellate courts that common issues predominate in the case.
After surveying current case law, this article provides class counsel and the judiciary with recommendations regarding requirements for pre-certification discovery.
