Putting Proponents to Their Proof: Evidentiary Rules at Class Certification


Linda S Mullenix

82 George Washington Law Review 606


As is well-known, 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. At class certification hearings both proponents in support of and adversaries opposing certification equally are subjected to the “no rules of evidence” rule. As a consequence, parties have dumped large quantities of non-admissible junk into class certification records, and no one knows the extent to which judges rely on or are persuaded by such stuff in class certification decisions.

In the past two decades federal courts increasingly have tightened the requirements for class certification derived from the Supreme Court’s admonition that judges conduct a “rigorous analysis” prior to determining whether a proposed class action can be maintained under Rule 23. In a series of cases from the Second, Third, Fifth, and Seventh Circuits, federal judges have redefined and given content to what actions a judge must comply with in conducting a rigorous analysis. The former era of drive-by class certifications or certifications on the pleadings alone, then, is long past. In addition, many courts now require “evidentiary” hearings (of varying duration) prior to a judicial ruling on the certification issue.

With the increased use of class certification hearings, many courts also have imported Daubert hearings as part of the  gate-keeping function to assure the reliability of expert witness testimony offered in support or opposition to class certification. In addition, many appellate courts require that trial judges, in issuing their class certification orders, report their findings of fact and conclusions of law based on the class certification record.

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 be applied at class certification hearings. Under current practice we have evidentiary hearings without reference to the rules of evidence.

Although compelling arguments may be marshaled against imposing such a requirement, imposing evidentiary rules at class certification is the logical extension of importing the Daubert gatekeeping function into the certification process. The trend over two decades has been to make class certification process a more serious affair, against the backdrop of the consequences of the class certification decision. Imposing evidentiary rules at class certification will enhance professional responsibility on class certification motions.

And, imposing evidentiary rules, on balance, most likely will not increase expense or delay because litigants already undertake pre-certification discovery. Evidentiary standards at class certification simply will require class action attorneys to clean up their acts. In addition, requiring evidentiary rules will enhance the judicial function and responsibilities, by inducing 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 enhance the sense of justice and fairness in class certification decisions.


Full Citation

Linda S. Mullenix, Putting Proponents to Their Proof: Evidentiary Rules at Class Certification, 82 George Washington Law Review 606 (2014).