The nature of a class action requires defendants to think beyond the story or situation posed by one single plaintiff. When facing a lawsuit that potentially challenges a large-scale business practice or procedure, counsel often must focus on big-picture systemic issues that may affect hundreds or thousands of people. Yet sometimes, the deposition of a single person—the proposed class representative, commonly referred to as the “named plaintiff”—can elicit facts that tear the entire class action apart. This post provides examples of how deposition testimony can discredit the named plaintiff and upset his or her chances at obtaining class certification and explains how defense counsel can elicit facts from a plaintiff that will summarily defeat his or her own case.
Deposing the named plaintiff provides defense counsel an opportunity to expose holes in the plaintiff's case at the certification stage.1 Defense counsel should thus take the deposition with an eye toward what the plaintiff must show to satisfy the requirements for class certification. Under Federal Rule of Civil Procedure 23(a), a class representative must be able to prove the four conditions of (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.2 In a case where the class seeks damages, a named plaintiff must also show predominance and superiority.3
The named plaintiff's deposition can provide an opportunity to develop helpful evidence on all these issues. For example, testimony about the plaintiff's own characteristics can help the defense prove that he or she is not an adequate or typical class representative. Defense counsel might use the deposition to establish that the named plaintiff lacks knowledge about key case details, such as facts to support allegations against a particular defendant, costs included with pursuing a lawsuit, or the relevant time period of a case. When combined with an inability or reluctance to attend case events like hearings, such testimony can lead to a finding that a plaintiff is not adequate.4
Answers to questions at deposition may also demonstrate that a plaintiff is atypical as compared to other class members. For example, even if not judged “inadequate,” people who continue to purchase a product after filing a complaint will likely not be typical of the other proposed class members if the class action alleges they would “never have purchased the product” had they known of the product's allegedly harmful characteristics. Deposition testimony may also uncover idiosyncratic circumstances regarding the plaintiff's purchase or use of the at-issue product.5 For example, in a case where a plaintiff alleged that she did not receive any relief or reduction in joint pain or cartilage protection as promised on a bottle of a product, counsel elicited deposition testimony showing that the plaintiff purchased the product based on her arthritis. That testimony, paired with a statement on the box that the product was not intended to treat, cure, or prevent a disease, helped defeat class certification, as the plaintiff's reliance was not typical as other class members.6
Named plaintiffs' depositions can also reveal facts that undermine their own individual claims, which can then be used to argue adequacy or typicality. For example, testimony might show that a plaintiff did not reside in the state under whose consumer protection laws he or she is suing at the time of the purchase. Or it might reveal life events such as a bankruptcy proceeding (because the legal claim might belong to the bankruptcy estate if not disclosed before discharge). Even the most basic questions, such as those about purchase history, can reveal critical facts such as in a situation where the plaintiff never personally bought the item at issue in the lawsuit or—in the most egregious of cases—purchased it at the behest of counsel.
Deposition testimony may also show that a plaintiff experienced a benefit from the product or service at issue—testimony that can be useful later in the case both in terms of damages and Rule 23(b)(3)'s predominance inquiry. A plaintiff whose property was sold after a foreclosure, for example, might have pocketed more money as a result of the foreclosure than from the short sale had the plaintiff proceeded to sell the property him/herself. Or consider the following deposition testimony in a case where the plaintiff alleged that he suffered injury in fact and lost money as a result of deceptive advertising on a cornmeal product:
Q: Right. Did – when you – when you made all of your cornmeal purchases, did you use the product?
Q: Did you enjoy the product?
A: I loved the product. It's a great product.
Q: Did you enjoy the product?
A: Yes, I did.
Q: Okay. And did you feel like you got your money's worth?
A: Well, the product did what I wanted it for everybody to say, “Your cornbread is so good,” you know.
A: So I – it's a great product. It really, really is.
In this case, the witness ultimately admitted that he had only stopped using the cornmeal at the direction of counsel. Such testimony formed the basis for a motion for summary judgment on the ground that there had been no damage because the plaintiff admitted that the product conferred a benefit, and he would have continued to buy the product but for his attorney's advice.
Likewise, the following testimony from a deposition in a slack-fill case helped the defense show that the plaintiff's claims stemmed from her own individualized frustration with Los Angeles traffic rather than a cognizable injury common to the class:
Q: Did you go back to the  Store and ask for a refund?
A: No, I did not.
Q: Did you ask for a refund at all from Krazy Glue?
A: No, I did not.
Q: Why not?
A: I just did not.
Q: Do you want a refund on your Krazy Glue?
A: No, I do not.
Q: Why not?
A: I just don't.
Q: You don't want your money back?
Q: Why not?
A: Because the money wasn't the issue. It was my time.
Q: So that's [why] you're so mad, that you had to go back to the store?
A: Yeah. Correct. Do you live in Los Angeles? Going back and forth in Hollywood isn't what it–it's–getting anywhere is an ordeal, so.
Q: So is it fair to say that what you were upset about was that if you had known the amount of glue in each package, you would have bought more than one the first time; is that right?
As with any deposition, defense counsel develops this potentially damning testimony through methodical curiosity toward, and a thoughtful approach to, the witness. Strong defense counsel will know the legal framework of the case but also focus on the witness's demeanor, asking appropriate follow-up questions tailored toward understanding both the strengths and weaknesses of the case. In the cornbread example above, follow up questions about the witness's community involvement with an organization that had a community-wide bake sale could lead a witness to further expound on the topic of his beneficial cooking. But it is a careful balance; spending time on such questions could also tip off a witness to the attorney's interest. Taking a deposition is an art and not a science, and counsel must read the verbal and non-verbal cues of the witness through active listening throughout the deposition.
Another effective tactic can be asking the witness to bring tangible things to the deposition. For example, in a clothing case where a plaintiff alleged that she relied on “Made in the U.S.A.” label allegations, the plaintiff was asked to bring any jeans that she owned to her deposition. She brought 32 pairs of jeans with her and testified about the fact she had purchased them, but 29 of them had labels indicating they were made outside the United States. Paired with testimony indicating that the plaintiff did not always look at clothing labels before she purchased them, along with other facts related to familial relationships and history with plaintiffs' counsel, the defense established that the plaintiff was an illegitimate “shill” plaintiff.8
Another key question for counsel is when to take the named plaintiff's deposition. In many cases, there are clear advantages of taking the named plaintiff's deposition as early as possible. Even if the deposition testimony does not completely sink the plaintiff's case, the testimony can narrow the issues or help establish potential sub-classes that can be addressed in separate categories at a settlement conference or mediation. Counsel can also follow up on statements that are made at deposition with requests for documents admission. In the cooking example above, a request for admission about the value of the plaintiff's cornbread could reveal that this plaintiff had actually earned money by competing in a contest using the defendant's product.
Alternatively, waiting until a later stage—such as immediately before a plaintiff files for class certification—may put additional pressure on a plaintiff because more time has passed in which the plaintiff's post-suit actions may be relevant. For example, if defense counsel has reason to believe that the witness may continue making purchases while the class action is pending, then those additional purchases may undermine their case theories. Additionally, if the time has passed to amend a complaint, it can be harder for plaintiffs' counsel to find another plaintiff to substitute if there are issues with class representative adequacy. Similarly, securing the proposed class representative's depositions after the filing of the class certification can be strategically fruitful if there are indications that the plaintiff will testify inconsistently with the case theory constructed by proposed class counsel. Regardless of when defense counsel takes the deposition, the discovery device of plaintiff's deposition is a critical tool to establish facts that support the defense's case.
1 Deposition testimony may also help defense counsel at the summary judgment stage. For example, where a plaintiff alleged violation of the Telephone Consumer Protection Act but admitted that he welcomed calls from the defendant “as a paid investigator aiding his counsel in the preparation of TCPA lawsuits,” the plaintiff was found to have no standing, and summary judgment was granted for defense. Leyse v. Bank of Am., Nat'l Ass'n, No. CV117128SDWSCM, 2020 WL 1227410, at *4 (D.N.J. Mar. 13, 2020), aff'd, 856 F. App'x 408 (3d Cir. 2021), cert. denied, 211 L. Ed. 2d 108, 142 S. Ct. 241 (2021).
2 Fed. R. Civ. P. 23(a) (“One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”).
3 Fed. R. Civ. P. 23(b)(3); see also Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 593, 117 S. Ct. 2231, 2235, 138 L. Ed. 2d 689 (1997).
4 See, e.g., Ogden v. AmeriCredit Corp., 225 F.R.D. 529, 533 (N.D. Tex. 2005) (further examination of Ogden's deposition testimony indicates that there are many instances in which she has little or no knowledge outside of that given to her by her attorneys).
5 See, e.g., Ritti v. U-Haul Int'l, Inc., 2006 WL 1117878, at *7 (E.D. Pa. Apr. 26, 2006) (finding that typicality was not met where “Plaintiff's deposition testimony confirms the likelihood that his claim will be smallject to a ‘unique defense.'”).
6 See Moheb v. Nutramax Lab'ys Inc., No. CV 12-3633-JFW JCX, 2012 WL 6951904, at *4 (C.D. Cal. Sept. 4, 2012) (“Plaintiff apparently purchased and used Cosamin with the expectation that it would cure her arthritis. Thus, Plaintiff's reliance was not typical of other members of the Class, and her claims do not share a common core of facts with them.”)
7 Spacone v. Sanford, L.P., No. 2:17-CV-02419-AB-MRW, 2018 WL 4139057, at *4 (C.D. Cal. Aug. 9, 2018).
8 Citizens of Human., LLC v. Hass, 46 Cal. App. 5th 589, 601, 259 Cal. Rptr. 3d 380, 390–91 (2020) (“This deposition testimony further supports Citizens's claim that Clark did not care where her jeans were made and would not have purchased the Citizens jeans simply to wear. Rather, she purchased them to serve as a plaintiff in a mislabeling case for the Del Mar Attorneys, like she had several times previously.”).
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