Wednesday, September 4, 2013
Good Hands?: Supreme Court of Montana Discusses Applicability of Rules of Evidence At Class Certification Proceedings
Do the rules of evidence apply to class certification proceedings? This was the question addressed by the Supreme Court of Montana in Jacobsen v. Allstate Ins. Co., 2013 WL 4605274 (Mont. 2013). The court's conclusion was consistent with precedent from across the country. So, what was its holding?In Jacobsen, Robert Jacobsen
filed a motion for class certification on May 7, 2010, proposing a class definition encompassing "all unrepresented individuals who had either third-party claims or first-party claims against Allstate whose claims were adjusted by Allstate in Montana using its CCPR program."
Allstate's CCPR program is its Claim Core Process Redesign program, "a system of claims adjusting guidelines that Allstate implemented in 1995 to fast track settlements and reduce the amount paid out on claims." When the trial court granted class certification after a proceeding held pursuant to Montana Rule of Civil Procedure 23, Allstate appealed, claiming, inter alia, that the district court erred in considering "what Allstate argued was inadmissible evidence during the certification proceedings."
In making this argument, Allstate relied upon Montana Rule of Evidence 101(c), which states:
(c) Rules inapplicable. The rules (other than those with respect to privileges) do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary examinations and proceedings on applications for leave to file informations in criminal cases; sentencing; dispositional hearings in youth court proceedings; granting or revoking probation or parole; issuance of warrants for arrest, criminal summonses and notices to appear, and search warrants; and proceedings with respect to release on bail or otherwise.
(4) Summary proceedings. Proceedings, other than motions for summary judgment, where the court is authorized by law to act summarily.
(5) Other miscellaneous proceedings. Ex parte matters; and proceedings, when authorized by law, which are uncontested or nonadversary.
According to Allstate, because class certification proceedings are not listed in Montana Rule of Evidence 101(c), the Montana Rules of Evidence must apply to such proceedings pursuant to Montana Rule of Evidence 101(a).
Jacobsen cite[d] federal authority stating that courts in Rule 23 proceedings “may consider evidence that may not be admissible at trial.” Alonzo v. Maximus, Inc., 275 F.R.D. 513, 519 (C.D.Cal.2011); see also Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 279 n. 7 (S.D.Ala.2006) (“The Federal Rules of Evidence are not stringently applied at the class certification stage because of the preliminary nature of such proceedings.”). Indeed, federal courts do not generally require the application of the rules of evidence in class certification proceedings. See Dukes v. Wal–Mart Stores, Inc., 603 F.3d 571, 603 n. 22 (9th Cir.2010) (“We are not convinced by the dissent's argument that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial.”) (reversed on other grounds by Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 795, 178 L.Ed.2d 530 (2011)); Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 635 (N.D.Cal.2007) (“At this early stage, robust gatekeeping of expert evidence is not required; rather, the court should ask only if expert evidence is ‘useful in evaluating whether class certification requirements have been met.’ ”); Kelly v. Montgomery Lynch & Assocs., 2007 U.S. Dist. LEXIS 93656, 3–4 (N.D.Ohio 2007) (“The Court declines to grant the Plaintiff's motion to strike, however, because the Federal Rules of Evidence do not strictly apply in evaluating a Rule 23 motion for class certification.”); Bell v. Addus Healthcare, Inc., 2007 U.S. Dist. LEXIS 78950, 5–6 (W.D.Wash.2007) (Thus, “Fed. R. Civ. Pro. 23 does not require admissible evidence in support of a motion for class certification and the Court will not create that standard.”).
The court agreed with Jacobsen, concluding that
Importantly, the federal cases that hold that the Federal Rules of Evidence do not necessarily apply to class certification proceedings do not base their decisions on an application of F.R. Evid. 1101, which, like M.R. Evid. 101(c), enumerates the exceptions to the general applicability of the rules of evidence. Instead, these federal courts based their conclusions on the requirements of the identical F.R. Civ. P. 23, and, as noted, we consider such federal precedent to be instructive. Specifically, these courts have determined that Rule 23 does not require specific proceedings or trial admissible evidence because of the preliminary nature of class certification and trial courts' broad discretion in certification decisions....Indeed, “class certification is not a dispositive motion [like Fed.R.Civ.P. 56] that requires [a] Plaintiff to submit admissible evidence” in support of their arguments for certification, and federal courts have been reluctant to create that requirement....
Because of the preliminary, discretionary nature of class certification questions, every federal circuit but the Seventh has declined to require that a district court must conclusively decide what evidence may be ultimately admissible at trial during the class certification stage....“A court's rulings on class certification issues may evolve” through the course of discovery....The “inherently tentative” nature of these decisions may make final evidentiary decisions unnecessary or inappropriate....