Roberts v. C.R. England, 2:12-cv-00302

Plaintiffs (approximately 14,708 drivers) brought a class action alleging C.R. England and related entities fraudulently misrepresented expected income, inducing drivers to lease trucks and enter independent-contractor relationships.
Judge Shelby granted class certification in part, concluding a class-wide inference (not a legal presumption) of reliance and causation was warranted for Rule 23(b) purposes; ultimate proof of reliance/causation remains for trial.
Defendants moved to amend the scheduling order to take 100 depositions of absent class members and extend fact discovery, arguing depositions are needed to rebut the inference and show individual damages disparities.
Plaintiffs opposed, characterizing the request as a veiled attempt to gather evidence to decertify the class and arguing absent-member discovery is disfavored and requires a special showing.
The magistrate judge analyzed the distinct legal standards for a class-wide inference versus a presumption, found absent-member discovery may be permitted where a strong showing is made, and applied a multi-factor test adapted from circuit precedent.
The court granted the motion in part: depositions may proceed after the opt-in/opt-out period and the discovery deadline was extended, but defendants must propose a statistically justified sample size supported by an expert within 60 days.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether depositions of absent class members may be taken	Such discovery is disfavored, amounts to harassment, and seeks to obtain evidence to decertify the class	Necessary to rebut class-wide inference of reliance/causation and to probe individual damages/reliance	Permitted in part; court allowed depositions but limited by conditions (see below)
Standard required to justify absent-member discovery	A strong showing is required and cases like Plascencia/Low bar such discovery	The burden should be relaxed here because this case involves an inference (not a presumption) of reliance	Court required a strong showing but relaxed it somewhat for inference cases; defendants must justify sample statistically
Whether the requested sample (100 depositions) is appropriate	Number is excessive and unsupported; imposes undue burden	100 is a statistically significant sample and each side could pick 50; depositions should occur after opt-in/out	Rejected 100 as unsupported; allowed depositions but ordered defendants to submit expert-supported sample size
Timing and proportionality of discovery	Immediate depositions would chill class participation and be unduly burdensome	Depositions should be allowed and occur after opt-in/out; discovery is proportional to stakes and class size	Discovery is proportional given case size and stakes; depositions must occur after opt-in/out and within extended schedule

CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076 (10th Cir. 2014) (distinguishes a class-wide inference from a legal presumption of reliance for class-certification purposes)
Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir. 1974) (articulates the court’s duty to ensure necessity and absence of motive to take undue advantage when seeking depositions of absent class members)
In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 283 F.R.D. 623 (D. Colo. 2012) (sets a three-factor test for absent-member discovery: necessity to class-wide issues, unavailability from other sources, and burden/improper purpose)
McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514 (S.D. Cal. 2008) (denied extensive absent-member discovery as overly burdensome and unnecessary where other means to rebut reliance existed)
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (explains protections and procedural safeguards for absent class members in class actions)
Basic Inc. v. Levinson, 485 U.S. 224 (1988) (discusses securities-law presumption of class-wide reliance as a contrasting doctrine to an inference)
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (district courts must monitor class certification and ensure continued satisfaction of Rule 23 requirements)