Division 7. Civil Case Management · Chapter 6. Management of Class Actions · Last amended 2007 · Last verified July 29, 2026
In one sentenceRule 3.768 lets parties depose unnamed class members by subpoena without a court order, but requires a court order before serving interrogatories on them, and it lists the factors a court weighs in deciding how much discovery from absent class members to allow.
(a)Types of discovery permitted The following types of discovery may be sought, through service of a subpoena and without a court order, from a member of a class who is not a party representative or who has not appeared:
(1)An oral deposition;
(2)A written deposition; and
(3)A deposition for production of business records and things.
(b)Motion for protective order A party representative, deponent, or other affected person may move for a protective order to preclude or limit the discovery.
(c)Interrogatories require court order A party may not serve interrogatories on a member of a class who is not a party representative or who has not appeared, without a court order.
(d)Determination by court In deciding whether to allow the discovery requested under (a) or (c), the court must consider, among other relevant factors:
(1)The timing of the request;
(2)The subject matter to be covered;
(3)The materiality of the information being sought;
(4)The likelihood that class members have such information;
(5)The possibility of reaching factual stipulations that eliminate the need for such discovery;
(6)Whether class representatives are seeking discovery on the subject to be covered; and
(7)Whether discovery will result in annoyance, oppression, or undue burden or expense for the members of the class. (Subd (d) amended effective January 1, 2007.)
Plain-English Summary
Unnamed class members occupy an odd position: they are bound by whatever happens in the case, but they never chose to be parties. Rule 3.768 balances that by treating deposition-style discovery differently from interrogatories. A party can serve a subpoena on a class member who is not a representative and has not appeared, and use it to take an oral deposition, a written deposition, or a deposition for production of business records and things — all without asking the court first. Anyone affected by that subpoena, including the class member, can move for a protective order to block or narrow it.
Interrogatories work differently. A party cannot serve interrogatories on an unnamed, non-appearing class member without a court order first, which puts an extra check on a discovery tool that could otherwise become a way to pressure people who are not actively litigating.
Whether the court allows discovery under either avenue turns on a list of factors: how the timing lines up with the case, what subject matter is involved, how material the information is, how likely class members are to have it, whether a stipulation could eliminate the need for the discovery altogether, whether the named class representatives are already pursuing the same information, and whether the request would create annoyance, oppression, or undue burden or expense for the class members targeted.
Frequently Asked Questions
Can I depose a class member who is not a named plaintiff?
Yes. Rule 3.768 allows an oral deposition, a written deposition, or a deposition for production of business records and things against an unnamed, non-appearing class member by subpoena, without a court order.
Do I need the court’s permission to send interrogatories to an unnamed class member?
Yes. Unlike the deposition-based discovery tools, interrogatories require a court order before they can be served on a class member who is not a party representative and has not appeared.
Can an unnamed class member push back against discovery aimed at them?
Yes. A party representative, the deponent, or another affected person can move for a protective order to preclude or limit the discovery.
What does a court look at before allowing discovery from absent class members?
Among other factors, the timing of the request, the subject matter, how material the information is, the likelihood class members have it, whether stipulations could avoid the need for it, overlap with discovery the class representatives are already pursuing, and the burden on the class members involved.
Amendment History
Rule 3.768 amended and renumbered effective January 1, 2007; adopted as rule 1858 effective January 1, 2002.
Source & verification. Rule text is reproduced verbatim from
the Judicial Council of California. Adopted by the Judicial Council of California.
Last verified July 29, 2026.
· Official source
Also known as:deposing unnamed class members californiadiscovery from absent class membersinterrogatories on class members require court orderprotective order against class member discovery