Let the Punishment Fit the Crime: Sanctioning Absent Class Members for Failure to Respond to Postcertification Discovery Requests

Abstract

Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions. This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions on absentees. Finally, this Note concludes that courts should generally dismiss opt-out absentees without prejudice, and dismiss opt-in absentees with prejudice.