This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits. Here, we begin a discussion of the use of expert testimony.
Occasionally, outside counsel may need to take discovery from third parties—for example, auto mechanics who have serviced plaintiffs’ vehicles. But, more often than not, the company can obtain most of what will be needed for certification purposes directly from the plaintiffs themselves or through informal investigation.
Courts are permitting defendants more frequently to offer expert testimony in opposition to class certification. The company may wish to use its own employees who have the necessary expertise, or outside counsel may need to retain an outside expert. Employees may be viewed more favorably than paid experts, so it is desirable to offer current or former employees as witnesses, even when outside experts are used. Also consider retaining a consulting expert who will not testify but who can guide the defense while not being subject to discovery.
The Perils of Identifying Witnesses
Identifying witnesses is more perilous than some counsel realize. Some jurisdictions require that all potential witnesses be disclosed early in a case and will bar a party from calling any witness not identified. If the defense team is not thinking early and often about trial, it is more likely to omit a needed witness. Conversely, over-listing witnesses can be just as dangerous. Class counsel are likely to depose every witness listed in hopes of finding a weak or unprepared witness, or creating inconsistencies. Also, opposing class certification usually requires one or more affidavits from company fact witnesses and experts on issues that might seem collateral to the merits. But testimony offered during discovery and motions on class certification will be fair game later on the merits or at trial.
A common mistake is to offer an affidavit from a company employee on one issue, only to later learn that the witness has unfavorable opinions on other material issues. The defense team should vet every potential witness or affiant thoroughly on every possible issue before listing them or offering any testimony from them. Inside counsel’s prior experiences with company witnesses in other cases or in settings other than litigation can be invaluable to this process.
If permitted by local practice, it may be advisable to retain an expert, for purposes of opposing class certification, who will not testify on the merits if the class action is certified or the plaintiffs proceed to trial on their individual claims. This is because the roles of these experts may differ materially, and also because if the company loses the issue of class certification, it may not wish to proceed to trial with an expert whose testimony has already been rejected or even discredited by the court.
Our next post will discuss the roles of the expert witness at the class certification stage.
 Cf., e.g., In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 17 (1st Cir. 2008) (“[W]eighing whether to certify a plaintiff class may inevitably overlap with some critical assessment regarding the merits of the case. It would be contrary to the rigorous analysis of the prerequisites established by Rule 23 before certifying a class to put blinders on as to an issue simply because it implicates the merits of the case.” (internal citations and quotation marks omitted)); Williams v. Ford Motor Co., 192 F.R.D. 580, 584 (N.D. Ill. 2000) (substantially similar).