USA Law and Practice Contributed by: John Desmond, Alexis Taitel, Alice Samberg, Mackenzie Robinson and Peter Dragovich, Dickinson Wright PLLC
Supreme Court has held that class arbitration is not permissible if the contract governing the parties’ dis- pute waives the parties’ right to class arbitration or is silent on the issue of class arbitration. 7.5 Trends Historically, federal class action lawsuits in the United States tended to be securities and employment dis- putes. However, the number of federal class action lawsuits surged in 2025, and it appears that con- sumer protection and privacy-related lawsuits drove this growth. One of the especially fast-growing areas in class action litigation is data breach filings, which have increased in frequency by more than 200% since 2022. Not only are more class action lawsuits getting filed, but courts certified class actions at a consist- ently high rate in 2025 – roughly 68%. When a judge “certifies” a putative class, they essentially give the class their stamp of approval, permitting the class to move the case forward as a group and seek group relief. There are many stringent requirements a puta- tive class must prove to receive certification, indicat- ing that judges in 2025 were fairly receptive to mass claims. Parties to litigation have a duty to disclose certain categories of information to their opponent, including: • contact information of individuals likely to have relevant and non-privileged information that the disclosing party may use to support its claims or defences; • documents that the disclosing party may use to support its claims or defences; • a rough estimate of the damages that the disclos- ing party seeks to recover in the litigation and the documents that support the estimate; and • all insurance agreements under which an insurer may be liable to satisfy all or part of a potential judgment or to reimburse or indemnify a payment that a party may make in satisfaction of a potential judgment. 8. Evidence 8.1 Disclosure
A party to litigation must disclose these categories of documents at the outset of the lawsuit, even if the opponent never asks for them. In addition, a party to litigation has an obligation to provide their opponent with all documents that the opponent requests, so long as the requested docu- ments are: • relevant to the parties’ claims and defences; • proportional to the needs of the case; and • not protected from disclosure by a privilege recog- nised in the court’s jurisdiction, such as the attor- ney–client privilege. Documents that meet these three requirements are “discoverable” and fair game for a party to demand from their opponent, and vice versa. 8.2 Privilege Various jurisdictions within the United States recog- nise different privileges. For example, federal common law recognises certain privileges, while all 50 states have their own laws that set forth the privileges recog- nised in their respective jurisdictions. There are some especially “common” privileges that are, by and large, albeit not completely, recognised across the coun- try and throughout the many jurisdictions within the United States: • attorney–client privilege; • accountant–client privilege; • doctor–patient privilege; • marital communications exchanged between spouses during their marriage; and • clergy–penitent privilege. • Ultimately, the privileges that may be invoked in a particular lawsuit will depend upon the laws gov- erning the parties’ claims and defences. 8.3 Confidentiality The various jurisdictions within the United States recognise the right of a party to litigation to withhold documents from other parties on grounds of privilege. All privileged documents are confidential and may not be disclosed absent an applicable exception. That said, exceptions will vary from one type of privilege to the next (eg, attorney–client privilege versus doc-
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