TAKING MEASURE OF “PROPORTIONALITY”: EXAMINING THE IMPLEMENTATION OF THE 2015 FEDERAL RULES AMENDMENTS NINE MONTHS OUT Presented by the American Bar Association Section of Litigation and Center for Professional Development
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The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Section of Litigation or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. © 2016 American Bar Association. All rights reserved. This publication accompanies the audio program entitled “Taking Measure of “Proportionality”: Examining the Implementation of the 2015 Federal Rules Amendments Nine Months Out” broadcast on September 29, 2016 (event code: CE1609TMP).
TABLE OF CONTENTS 1. Presentation Slides 2. Sample Order Setting Rule 16 Conference and Case Management Order from U.S. Magistrate Judge Shirley Padmore Mensah 3. General Order for U.S. District Court for Eastern District of Louisiana regarding changes to Fed.R.Civ.P. 4(m) and 16 4. Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality (August 20, 2016) 5. Roberts v. Clark County. School District—Order (January 11, 2016) 6. Steel Erectors, Inc. v. AIM Steel International, Inc.—Order (January 4, 2016) 7. Robertson v. People Magazine et al.—Opinion & Order (December 16, 2015) 8. Louisiana Crawfish Producers Association-West v. Mallard Basin, Inc.—Order (December 4, 2015) 9. Wilmington Trust Company. et al. v. AEP Generating Company. et al.—Opinion and Order (March 7, 2016) 10. In re: Xarelto (Rivaroxaban) Products Liability Litigation—Order & Reasons (July 21, 2016) 11. In re: Takata Airbag Products Liability Litigation—Order Adopting in Part Report and Recommendation (March 1, 2016) 12. Williams v. American International Group, Inc.—Order (May 2, 2016) 13. Sky Medical Supply Inc. v. SCS Support Claim Services Inc.—Memorandum & Order (September 7, 2016) 14. Allen-Pieroni v. Southwestern Correctional, LLC—Memorandum Opinion and Order Granting in Part and Denying in Part Motion of Plaintiffs for Leave to Take Depositions (August 23, 2016) 15. Gonzalez v. Allied Concrete Industries, Inc.—Memorandum & Order (August 23, 2016) 16. UBS Financial Services, Inc. v. Bounty Gain Enterprises, Inc.—Order Granting UBS Financial Services, Inc.’s Motion for Protective Order Regarding Persons Located in Hong Kong and Incorporated Memorandum of Law (August 4, 2016)
17. A.M. v. American School for the Deaf—Ruling on Plaintiff’s Motion to Compel (Dkt. #86) and on Defendants’ Motion for Protective Order (Dkt. #89) (March 22, 2016) 18. Krantz v. State Farm—Order (January 25, 2016) 19. Pertile v. General Motors, LLC—Order (March 17, 2016) 20. Sprint Communications Company L.P. v. Crow Creek Sioux Tribal Court—Memorandum Opinion and Order (March 22, 2016) 21. Wichansky v. Zowine—Opinion (March 22, 2016) 22. McSwain v. United States of America—Order (August 30, 2016)
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Taking Measure of “Proportionality”: Examining the Implementation of the 2015 Federal Rules Amendments Nine Months Out Thursday, September 29, 2016| 1:00 PM Eastern Sponsored by the Section of Litigation and the ABA Center for Professional Development
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Taking Measure of Proportionality: Examining the Implementation of the 2015 Federal Rules Amendments Ten Months Out
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Welcome • Presented by the Pretrial Practice and Discovery Committee of the ABA Section of Litigation • Please visit our website following this Webinar http://apps.americanbar.org/litigation/committees/pretrial/ about.html
• Those who are not committee members can join on the website—membership is free to all Section members.
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Faculty Members • Robert J. Will-Moderator Lewis Rice St. Louis Missouri • U.S. District Judge Ivan L.R. Lemelle Eastern District of Louisiana-New Orleans, LA • U.S. Magistrate Judge Shirley Padmore Mensah Eastern District of Missouri-St. Louis, MO • Kevin Broughel Paul Hastings New York, NY
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Rule 26(b)(1) Scope of Discovery (Hello “proportionality”) Unless otherwise limited by court order . . . : Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
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Rule 26(b)(1) Scope of Discovery (Goodbye “reasonably calculated”) Deleted from Rule 26(b)(1): — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
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The Judicial Perspective • Judges are changing the way they administer discovery in light of revisions to Rule 26(b)(1). • While proportionality was always supposed to play a role in discovery, the revisions highlight its significance not only in discovery, but throughout the pretrial phase of a case. • Though manner and degree of implementation is far from uniform, change is coming everywhere!
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The Judicial Perspective Quoting Chief Justice John Roberts’ Year-End Report on the Federal Judiciary, the District Court for the District of Nevada noted: The Chief Justice's Year-End Report wrote that the changes that went into effect on December 1, 2015, “may not look like a big deal at first glance, but they are” . . . . The 2015 amendments to Rule 26(b)(1) emphasize the need to impose “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” The fundamental principle of amended Rule 26(b)(1) is “that lawyers must size and shape their discovery requests to the requisites of a case.” The pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary and wasteful discovery. This requires active involvement of federal judges to make decisions regarding the scope of discovery. Roberts v. Clark Cnty. School Dist., 312 F.R.D. 594, 603-604 (D. Nev. 2016) (emphasis added). www.americanbar.org | www.abacle.org
U.S. District Judge Ivan R. L. Lemelle • Eastern District of Louisiana • 2015 Rules Amendments concerning proportionality generally reflect the preamendment practices of most judges • Past experience suggests that formal discovery amendments such as these tend to lead to a slight, but noticeable, increase in the request for discovery sanctions
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U.S. Magistrate Judge Shirley Padmore Mensah
• Eastern District of Missouri • Order Setting Rule 16 – Before: Required parties to discuss nature of claims, settlement, and other requirements of Rule 26(f). • Gave parties a “proportionality” checklist at Rule 16 conference if case involved significant ediscovery.
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U.S. Magistrate Judge Shirley Padmore Mensah – After: Order Setting Rule 16 now requires the parties in every case to discuss the following before Rule 16 -• Preservation, retrieval, review, disclosure and production of relevant information relative to the cost vs. likely benefit • Cost sharing – if appropriate—to reduce discovery costs • Handling of privileged and any confidential information • Will continue Rule 16 conference if it becomes obvious that the foregoing issues are present and parties have not adequately addressed them.
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U.S. Magistrate Judge Shirley Padmore Mensah • Rule 16/CMO – Before: Set deadlines, set a trial date, referred to mediation . . . and often never saw the parties again . . . • In-person conference • In chambers discussion about factual and legal issues parties thought were dispositive • Discussed what discovery was needed and possible snags in discovery (encouraged parties to work out discovery disputes on their own) • Referred to mediation • Set deadlines and set trial date.
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U.S. Magistrate Judge Shirley Padmore Mensah – After: Rule 16 Conference is starting point (not end point) of case management-• First four steps are the same as before. But, trial date is not set at that time. • Set a case management status conference a few weeks before close of discovery. Firm trial date is set at that time. • Require parties who are unable to resolve discovery disputes to request a discovery conference.
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The Practitioners’ Perspective • Practitioners are adapting to the new emphasis on ‘proportionality’ and, in particular, how the concept influences all aspects of pretrial practice – Case Management Orders – Rule 16 Conferences – Discovery objections – ESI preservation and production
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The Practitioners’ Perspective • Best practices: The “Duke Guidelines” – Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality • Cite as Discovery Proportionality Guidelines and Practices, 99 Judicature, no. 3, Winter 2015, at 47–60.
– 2016 Proposed Amendments to the 2015 Duke Conferences Guidelines • Both can be found at https://law.duke.edu/judicialstudies/conferences/publications/
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Kevin P. Broughel •
Meeting your burden under the Rule amendments – Party seeking discovery: Relevance remains front and center • What about the other proportionality factors?
– Party resisting discovery: Conclusory and unsupported arguments will not cut it • Affidavits and other evidence showing burden with specificity the norm
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Where does technology fit in all of this? – Technology can impact the proportionality analysis – Relative access of parties to the requested information – Technology assisted review – Random sampling and sequencing Objections to discovery – “Boilerplate” vs. the specific – how to differentiate between the two www.americanbar.org | www.abacle.org
Cases The following provides a sample of recent cases implementing Rule 26 revisions.
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Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673 (S.D. Ga. 2016) The court rejected Discovery propounded to Defendant to find out if Defendant’s parent company underfunded Defendant or caused it to breach its contract with Plaintiff, as not proportional where Defendant’s interrogatory answer said parent was not involved in construction projects in issue: “Allowing discovery – particularly ‘complicated and complex’ discovery that ‘may involve treaties or agreements with foreign governments’ (doc. 18 at 2) -- based solely on plaintiff's pure speculation and in the face of existing discovery responses indicating no involvement by AIM's parent in the contracts at issue would needlessly increase the expense of this litigation and, in doing so, subvert Rule 26(b)(1)'s goal of ‘guard[ing] against redundant or disproportionate discovery.’ Fed. R. Civ. P. advisory committee note (2015).”
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Robertson v. People Magazine, 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) Race discrimination and harassment claims under Title VII, Section 1981 where Plaintiff claimed that defendant hindered her ability to succeed as a writer. Plaintiff propounded 135 document requests, 36 of which focused on editorial decisions made by defendant. “[T]he 2015 amendment does not create a new standard; rather it serves to exhort judges to exercise their preexisting control over discovery more exactingly.” Lack of proportionality and relevance was then found: “Unlike most discrimination cases where discovery is addressed to allegedly discriminatory conduct and/or comments, Plaintiff here seeks nearly unlimited access to People's editorial files, including all documents covering the mental process of People staff concerning what would or would not be published in the magazine.”
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Robertson v. People Magazine, 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) “To provide a few examples, Plaintiff requests all documents ‘concerning any of People Magazine's regular meetings,’ all documents ‘concerning any meeting at which discussions concerning which content would appear in People Magazine occurred,’ all documents ‘concerning the decision-making process with regard to choosing who would be put on the cover of People Magazine,’ and copies of all of People's covers and published stories dating back to 2005. Those requests (and others) extend far beyond the scope of Plaintiff's claims and would significantly burden Defendants. In addition, what Defendants decided to publish (or not publish) and its editorial decisions (as opposed to its business decisions in personnel hiring, firing, promoting, or demoting) are not relevant to Plaintiff's claims. www.americanbar.org | www.abacle.org
La. Crawfish Producers Ass’n – West v. Mallard Basin, Inc., 2015 WL 8074260 (W.D. La. Dec. 4, 2015) “The plaintiffs seek an order allowing them to enter the private defendants' land to obtain discovery pursuant to Fed.R.Civ.P. 34. More specifically, they seek authorization for a site visit for the purpose of inspection, measuring, surveying, photographing and examining Fisher Lake (a.k.a. Fisher Bottom) and Bayou Cane. The plaintiffs assert that the primary purpose of the intended site visit is to obtain information discoverable and relevant to their NEPA claim, challenging the adequacy of the U.S. Army Corps of Engineers' analysis of the alternatives or impacts associated with the permits at issue in this case. The plaintiffs contemplate a group of approximately ten persons, consisting of four attorneys or legal representatives, two members of the plaintiff organizations, a surveyor, one or two assistants and a hydrologist. The experts will bring surveying and hydrologic equipment and the plaintiffs will bring a camera. They allege that the inspection will take no longer than one day, and will not harm, alter or adversely affect the environmental integrity of the inspected areas.” www.americanbar.org | www.abacle.org
La. Crawfish Producers Ass’n – West v. Mallard Basin, Inc., 2015 WL 8074260 (W.D. La. Dec. 4, 2015) Proportionality analysis: “[T]he issues at stake with respect to the plaintiffs' NEPA claim are extremely important not only to the plaintiffs but to all citizens who visit and enjoy the Atchafalaya Basin area and the discovery appears essential for the resolution of the plaintiffs' NEPA claim. While the defendants have, or have had, access to the area sought to be inspected, the plaintiffs do not enjoy that same access. Moreover, there has been no showing that the parties' (or more specifically the defendants') resources are insufficient to accommodate the plaintiffs' request or that the requested discovery will cause the defendants any expense, much less any undue expense. There has been no showing by the private defendants, who ultimately may bear the burden of any "logistical difficulties in transporting the proposed group" cited by the federal defendants, that the burden of the plaintiffs' requested discovery outweighs its likely benefit.” www.americanbar.org | www.abacle.org
Wilmington Trust Co. et al. v. AEP Generating Co. et al., 2016 WL 860693 (S.D. Ohio Mar. 7, 2016) Proportionality analysis in this breach of contract case: •
Defendants excluded two years of documents for a time period not material to the matter. Plaintiff moved to compel but did not present evidence or persuasive argument why searching in this time period would add “materially to their existing collection of relevant documents.” Motion denied based on proportionality .
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Plaintiffs sought discovery for the four month period after filing of the complaint. Defendants did not present evidence of undue burden, a categorical denial of discovery post-filing is not appropriate (citing a 2013 W.D. Tenn. decision). It allowed the discovery with caveats: just four custodians picked by defendants; no need for a privilege log; and defendants chose the search method.
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In re: Xarelto (Rivaroxaban) Prod. Liab. Litig., 2016 WL 3923873 (E.D. La. July 21, 2016) • • •
MDL in which Plaintiffs’ Steering Committee (“PSC”) requested defendants’ employee-witnesses’ personnel files and custodial files. Defendants asserted personnel files were outside Rule 26(b)’s scope based on proportionality (privacy v. value of personnel files). Defendant Bayer also asserted that personnel files contained “personal data” and production would violate the German Data Protection Act. PSC filed a Motion to Compel regarding Bayer’s German Employees’ personnel files. The court was thus compelled to resolve the “conflict between Rule 26 of the Federal Rules of Civil Procedure and a ‘blocking statute.’”
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In re: Xarelto (Rivaroxaban) Prod. Liab. Litig., 2016 WL 3923873 (E.D. La. July 21, 2016)
Proportionality Analysis Limits Discovery: “After hearing oral argument and reviewing the briefs, the Court issued an Order & Reasons requiring the PSC to provide an ‘individualized showing of relevancy, proportionality, and particularity,’ for each witness whose personnel files they sought. Following the Court's instruction, the PSC noticed depositions of the Janssen employees and made a specific, particularized request for various types of material contained in the personnel files of those witnesses. The Court subsequently required Janssen to produce the files for an in camera examination. The Court then appropriately tailored the scale of production by balancing the relevancy and importance of the material against employee privacy interests.”
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In re: Xarelto (Rivaroxaban) Prod. Liab. Litig., 2016 WL 3923873 (E.D. La. July 21, 2016)
Rule 26 v. German Blocking Statute: •
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“The PSC contends that the German Data Protection Act does not trump the Federal Rules of Civil Procedure concerning the discovery of personnel files such as the ones at issue. R. 2951. The PSC takes the position that the Court has ordered the production of numerous domestic personnel files associated with employees of Janssen, and that the “effect of the so-called German blocking statute” should not lead to a different outcome . . . . The PSC begins by providing a particularized discussion of Dr. Misselwitz and Dr. Kubitza's importance to the litigation.” “Bayer contends that the Court should not require the production of the documents at issue, because production would violate the German Data Protection Act. Bayer recognizes that the illegality of production under foreign law is not dispositive, but argues that the comity interests set forth in Société Nationale weigh against the production of personnel files due to the employee privacy interests involved.” www.americanbar.org | www.abacle.org
In re: Xarelto (Rivaroxaban) Prod. Liab. Litig., 2016 WL 3923873 (E.D. La. July 21, 2016)
Rule 26 v. German Blocking Statute: •
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“Under the Third Restatement, a court in deciding whether to order the production of information protected by a blocking statute should consider: the importance to the ... litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.” “For the aforementioned reasons, the balance of the factors leans towards the production of personnel file materials containing evidence relevant to the argument that Xarelto was rushed to the market. Such evidence may be found in employee performance evaluations and files discussing short term incentive programs or one time bonuses. These documents may be decisive to the PSC's case, and the PSC lacks a viable alternative mechanism to uncover the records at issue.” www.americanbar.org | www.abacle.org
In re: Takata Airbag Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 46206 (S.D.Fla. March 1, 2016)
• Order largely adopts a special master’s report concerning protocols for production of documents and electronically stored information (ESI). • Excellent illustration of the application the concept of proportionality as a limiting factor in discovery, even when potentially relevant information may be withheld as a result
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In re: Takata Airbag Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 46206 (S.D.Fla. March 1, 2016)
• Dispute over two procedures: – Redaction of irrelevant information from responsive documents – Withholding of irrelevant ‘parent’ and other nonattached documents in their entirety
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In re: Takata Airbag Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 46206 (S.D.Fla. March 1, 2016)
• Highlighting Chief Justice Robert’s comments in his 2015 Year-End Report on the Federal Judiciary, the court stated: [A] party is not entitled to receive every piece of relevant information. It is only logical, then, that a party is not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.
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In re: Takata Airbag Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 46206 (S.D.Fla. March 1, 2016)
• Recognizing that highly relevant information could be found in the seven categories identified by the special master subject to redaction pursuant to the special master report, the court limited the redaction of information in those categories by adding the caveat that information concerning airbags could not be redacted.
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Williams v. Am. Int. Grp., Inc., 2016 WL 274020 (M.D. Ala. May 2, 2016) •
Plaintiff filed Motion to Increase Number of Depositions, stating “at least 15 depositions will be required;” granted in part, denied in part, because expense of un-deposed expert witnesses are certain to have information of importance to the litigation, including the amount in controversy . . . . the burden and expense of allowing these two witnesses to sit for deposition does not outweigh the benefit to Plaintiff of obtaining this information.
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“Of primary significance here, this means that the court must be guided by Rule 26(b)(1)'s limitation on the scope of discoverable materials to those which are relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Applying previous versions of Rule 26(b)(1), courts have “generally held that a party seeking to exceed the presumptive number of depositions must make a ‘particularized showing of why the discovery is necessary.’” Bituminous Fire & Marine Ins. Corp. v. Dawson Land Dev. Co., 2003 WL 22012201, at *1 (M.D. Fla. 2003). www.americanbar.org | www.abacle.org
Williams v. Am. Int. Grp., Inc., 2016 WL 274020 (M.D. Ala. May 2, 2016) •
“Here, there has been no particularized showing. In fact, Plaintiff's motion does not even identify the individuals he seeks to depose except for noting that two are expert witnesses for the defense. See Doc. 19 at 2; Doc. 19 at 3 (stating only that it “appears that at least fifteen (15) depositions will be required”). Plaintiff also does not address Rule 26(b)(1)'s proportionality analysis. Nevertheless, the court holds that on the balance the record before it justifies one additional deposition . . . which will allow Plaintiff to depose all of Defendants' expert witnesses.”
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“It is therefore ORDERED that Plaintiff may depose both of Defendants' designated expert witnesses who have not been deposed, for a total of eleven depositions in this case.” This decision was based on both the proportionality analysis required by Rule 26(b)(1) and Rule 26(b)(4) (allowing depositions of experts who will testify to their opinions). www.americanbar.org | www.abacle.org
Sky Med. Supply Inc. v. SCS Support Claim Serv’s., Inc., 2016 WL 4703656 (M.D. Ala. Sept. 7, 2016) •
Great explanation of amendments’ impact in this declaratory judgment action, where both parties had filed discovery motions, most importantly, to compel production:
“Rule 26(b)(1) . . . recognizes that ‘[i]nformation is discoverable . . . if it is relevant to any party's claim or defense and is proportional to the needs of the case.’ Rule 26 Advisory Committee Notes to 2015 Amendments . . . . Notably, although Rule 26 still permits a wide range of discovery based upon relevance and proportionality, the ‘provision authorizing the court ... to order discovery of any matter relevant to the subject matter involved in the action’ has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments. The rationale behind the elimination of this phrase is the reality that it ‘has been used by some, incorrectly, to define the scope of discovery.’ Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule 26(b)(1), as amended, although not fundamentally different in scope from the previous version constitute[s] a reemphasis on the importance of proportionality in discovery but not a substantive change in the law. [S]ee Robertson v. People Magazine, No. 14 Civ. 6759, 2015 WL 9077111 at *2 (S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment [to Rule 26] does not create a new standard; rather it serves to exhort judges to exercise their preexisting control over discovery more exact-ingly.”).” (internal citations and quotation marks omitted).
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Sky Med. Supply Inc. v. SCS Support Claim Serv’s., Inc., 2016 WL 4703656 (M.D. Ala. Sept. 7, 2016) •
Proportionality Analysis:
“In the instant case, based upon the allegations set forth in the SAC, coupled with Plaintiff's proffer that the financial documents sought are necessary to the underlying RICO cause of action and the fraudulent acts of the enterprise, the Court finds that Plaintiff has shown that some of the financial documents sought are relevant . . . . Although such discovery is relevant, it must also be proportional to the needs of the case. After reviewing this request in light of the limited nature and extent of the claims comprising the SAC, the Court finds that as written, the request is overly broad and unduly burdensome in scope. This case has been narrowed to encompass only the 177 insurance claims set forth in the Damages Spreadsheet. In addition, the total damages sought by Plaintiff are approximately $150,000. The vast majority of the 177 claims at issue span a time period of approximately three years (January 2007 through January 2010) as measured from the earliest (November 3, 2006) and latest (January 18, 2010) Dates of Service enumerated in the Damages Spreadsheet. As such, this request needs to be narrowly tailored to encompass financial documents limited in scope to the three-year time period encompassing the 177 claims in this action. To further enlarge this temporal period would result in the burden outweighing the potential benefit which would contravene the requirement that discovery be proportional to the needs of each case. In addition, the categories of documents must be narrowed as well.” (internal citations and quotation marks omitted).
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Allen-Pieroni v. Sw. Correctional, LLC, 2016 WL 4439997 (N.D. Tex. Aug. 23, 2016) •
Proportionality analysis in a primarily tort action where Plaintiff requested additional depositions; granted in part, denied in part.
“Plaintiffs have shown the show the necessity of the depositions that they took in reaching the prescribed 10-deposition limit without leave of court and the necessity of taking the proposed depositions . . . . Under Rules 26(b)(1) and 26(b)(2), the Court determines that these six additional depositions are proportional to the needs of the case, considering the importance of the issues that Plaintiffs seek to address through the testimony sought through these deponents – four of which are named defendants and two of which are Defendants' retained or designated expert witnesses – and the importance of the testimony sought to resolving important issues in the case, particularly where these depositions are critical to Plaintiffs' preparation for trial in light of their lack of access to relevant information from these deponents without this testimony. And Defendants have not shown that any burden or expense of the proposed depositions outweighs their likely benefit.”
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Gonzalez v. Allied Concrete Indust., Inc., 2016 WL 4444789 (E.D.N.Y. Aug. 23, 2016) •
Defendants in a FLSA (and state law/contract) action filed a Motion to Compel Plaintiffs to product ATM receipts and cell phone records; Motion denied.
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“Defendants assert that Plaintiffs' ATM transactions ‘are relevant and likely to lead to the discovery of admissible evidence because they can and will reveal each Plaintiff's whereabouts and activities during hours they claim to have been working’ . . . . In response, Plaintiffs assert that Defendants' request for Plaintiffs' ATM receipts is ‘overbroad, improper and not likely to lead to the discovery of admissible evidence.’” “Defendants here have not offered anything beyond speculation. Consequently, there is no justification for a wholesale fishing expedition in the hopes that six years of ATM receipts might prove to unearth some nugget of relevant information. Put another way, Defendants have failed to set forth a sufficient evidentiary nexus between the en masse discovery sought and a good faith basis to believe that such discovery material is both relevant and proportional to the needs of the case.”
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Gonzalez v. Allied Concrete Indust., Inc., 2016 WL 4444789 (E.D.N.Y. Aug. 23, 2016) •
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“Defendants also seek the release of Plaintiffs' cell phone records in order to ‘reveal whether Plaintiffs engaged in personal activities such as non-work related telephone calls, extended telephone calls, [and] frequent text messaging during times they claim to have worked on Defendant's behalf.’” “Similar to their request for Plaintiffs' ATM receipts, Defendants merely speculate that in light of Plaintiffs' general allegations in their Amended Complaint, somehow their cell phone records for the past six years will lead to promising evidence. However, such an unsupported theory is entirely too speculative to warrant a wholesale intrusion into the private affairs of the Plaintiffs . . . . Further, without a sufficient evidentiary proffer for support, the Court finds that the level of ‘marginal relevance’ which existed in Perry which might otherwise support a sampling of the phone records is absent here.”
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UBS Fin. Servs. V. Bounty Gain Enter., Inc., 2016 WL 4150871 (S.D. Fla. Aug. 4, 2016) •
Declaratory Judgment action in which Plaintiff asserted it was not required to submit to FINRA arbitration with Defendant. Plaintiff files a Motion for Protective Order, to prohibit Defendant from deposing Plaintiff’s former employees who live in Hong Kong. Granting the Motion (insofar as the depositions were then noticed), the court found a lack of proportionality:
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“First, Chiu and Lam, who reside in Hong Kong, are not parties to this action. According to UBSFS, Chiu and Lam live and work in Hong Kong. Second, although once employees for UBSFS, Chiu and Lam no longer work for UBSFS . . . . Third, there is no indication that Chiu or Lam regularly travel to the United States for work or for any other reason. It would be a tremendous expenditure of time and resources to require Chiu and Lam to travel to the United States to give their depositions. Fourth, Bounty Gain has failed to comply with [Rule] 28(b) in noticing the deposition. Rule 28(b) outlines the procedure for taking a deposition in a foreign country.”
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Complex Proportionality Analysis • A.M. v. American School for the Deaf, 2016 WL 1117363 (D. Conn. Mar. 22, 2016). • Krantz v. State Farm, 2016 WL 320148 (M.D. La. Jan. 25, 2016). • Pertile v. General Motors, LLC, 2016 WL 1059450 (D. Colo. Mar. 17, 2016). • Sprint Comm. Co. LP v. Crow Creek Sioux Tribal Court, 2016 WL 782247 (D.S.D. Feb. 2, 2016).
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Rule 1
Scope and Purpose
[These rules] should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
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Wichansky v. Zowine, 2016 U.S. Dist. LEXIS 37065 (D. Ariz. Mar. 22, 2016) The district court rejected a proposed pre-trial order that allowed for 33 trial days, instead allotting 28 hours to plaintiff and 27 hours to defendant: “Despite the ultra-litigious nature of this case, the Court is still striving to achieve Rule 1's goal of a "just, speedy, and inexpensive determination" of this action.… The parties should cooperate during trial to minimize delay and wasted time. Stipulations should be made on matters not disputed and on evidentiary foundations that clearly could be laid but would only consume valuable time before the jury. Each side shall also provide the opposing side with 24 hours' notice of the witnesses who will be called on a given day.”
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McSwain v. United States of America, 2016 WL 4530461 (D. Nev. Aug. 30, 2016) The district court granted, in part, plaintiff’s Motion to Compel Discovery Responses and Stay Discovery Period, after defendant objected (overbreadth, vagueness, confidentiality) to certain productions requests and withheld documents: “[T]he intent of the 2015 amendments to Rule 26(b) . . . to encourage trial courts to exercise their broad discretion to limit and tailor discovery to avoid abuse and overuse, and to actively manage discovery to accomplish the goal of Rule 1 ‘to secure the just, speedy, and inexpensive determination of every action and proceeding’ . . . . The Court directs the parties to meet and confer regarding the submission of a stipulated protective order governing the production and use of SSI (sensitive security information) in this litigation.”
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
IN RE: AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE 4(m) AND 16 GENERAL ORDER Considering the amendment to Federal Rule of Civil Procedure 4(m) reducing the period for effecting service from 120 days to 90 days, and the amendment to Federal Rule of Civil Procedure 16, requiring the judge to issue a scheduling order within 90 days after any defendant has been served or within 60 days after any defendant has appeared, both of which shall take effect on December 1, 2015, IT IS ORDERED the amendment to Fed. R. Civ. P. 4(m) requiring any defendant to be served within 90 days after the filing of the complaint shall apply to all cases filed on or after December 1, 2015, to the extent practicable, unless otherwise ordered by the presiding judge; and IT IS FURTHER ORDERED that the amendment to Fed. R. Civ. P. 16 requiring the issuance of a scheduling order within the earlier of 90 days after any defendant has been served with the complaint or within 60 days after any defendant has appeared shall apply to any case filed on or after December 1, 2015, unless otherwise ordered by the presiding judge. New Orleans, Louisiana, this
day of December , 2015.
___________________________ KURT D. ENGELHARDT Chief United States District Judge
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Discovery Proportionality Guidelines and Practices, 99 Judicature, no. 3, Winter 2015, at 47–60.
Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality Duke Law Center for Judicial Studies August 20, 2016 (Annotated Version)1 I. GUIDELINES Guideline 1: Rule 26(b)(1) defines the scope of discovery as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”1 Proposed discovery must be both relevant2 and proportional to be within the scope that Rule 26(b)(1) permits.3 The Rule 26(b)(1) amendments,4 however, do not alter the parties’ existing discovery obligations or create new burdens.5 Commentary Discovery that seeks relevant and nonprivileged information is within the permitted scope of discovery6 only if it is proportional to the needs of the case.7 As used in Rule 26(b)(1), proportionality describes: (a) the six factors to be considered in allowing or limiting discovery to make it reasonable in relationship to a particular case; (b) the criteria for identifying when the discovery meets that goal; (c) the analytical process of identifying the limits, including what information is needed to decide what discovery to allow and what discovery to defer or deny; 8 and (d) the goal itself.9 COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “Information is discoverable under revised Rule 26(b)(1) if it is relevant to any party’s claim or defense and is proportional to the needs of the case. The considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” “The former provision for discovery of relevant but inadmissible information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is also deleted. The phrase has been used by some, incorrectly, to define the scope of discovery. As the Committee Note to the 2000 amendments observed, use of the ‘reasonably calculated’ phrase to define the scope of discovery ‘might swallow any other limitation on the scope of discovery.’ The 2000 amendments 1
Annotations prepared by Lauren Sanders, 2016 graduate of Duke Law School under oversight of Thomas B. Metzloff, Professor of Law, Duke Law School with assistance from Dustin B. Benham, Associate Professor of Law, Texas Tech University School of Law. Annotations updated monthly. Additions and changes since last month’s annotations noted in color print.
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sought to prevent such misuse by adding the word ‘Relevant’ at the beginning of the sentence, making clear that ‘relevant’ means within the scope of discovery as defined in this subdivision . . . .’ The ‘reasonably calculated” phrase has continued to create problems, however, and is removed by these amendments. It is replaced by the direct statement that ‘Information within this scope of discovery need not be admissible in evidence to be discoverable.’ Discovery of nonprivileged information not admissible in evidence remains available so long as it is otherwise within the scope of discovery.”
Guideline 2: Rule 26(b)(1) identifies six factors for the parties and the judge to consider in determining whether proposed discovery is “proportional to the needs of the case.” 10 As discussed further in Guideline 3, the degree to which any factor applies and the way it applies depend on the facts and circumstances of each case. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “The present amendment restores the proportionality factors to their original place in defining the scope of discovery. This change reinforces the Rule 26(g) obligation of the parties to consider these factors in making discovery requests, responses, or objections.” Guideline 2(A): “Importance of Issues at Stake” — This factor focuses on measuring the importance of the issues at stake in the particular case. This factor recognizes that many cases raise issues that are important for reasons beyond any money the parties may stand to gain or lose in a particular case.11 Commentary A case seeking to enforce constitutional, statutory, or common-law rights, including a case filed under a statute using attorney fee-shifting provisions to encourage enforcement, can serve public and private interests that have an importance beyond any damages sought or other monetary amounts the case may involve.12 COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “The 1983 Committee Note recognized “the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” Many other substantive areas also may involve litigation that seeks relatively small amounts of money, or no money at all, but that seeks to vindicate vitally important personal or public values.”
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Guideline 2(B): “Amount in Controversy” — This factor examines what the parties stand to gain or lose financially in a particular case as part of deciding what discovery burdens and expenses are reasonable for that case.13 The amount in controversy is usually the amount the plaintiff claims or could claim in good faith. Commentary If a specific amount in controversy is alleged in the pleadings and challenged, or no specific amount is alleged and the pleading is limited to asserting that the amount exceeds the jurisdictional minimum, the issue is how much the plaintiff could recover based on the claims asserted and allegations made. When an injunction or declaratory judgment is sought, the amount in controversy includes the pecuniary value of that relief. The amount-in-controversy calculation can change as the case progresses, the claims and defenses evolve, and the parties and judge learn more about the damages or the value of the equitable relief. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “It also is important to repeat the caution that the monetary stakes are only one factor, to be balanced against other factors.” Guideline 2(C): “Relative Access to Information” — This factor addresses the extent to which each party has access to relevant information in the case. 14 The issues to be examined include the extent to which a party needs formal discovery because relevant information is not otherwise available to that party. Commentary In a case involving “information asymmetry” or inequality, in which one party has or controls significantly more of the relevant information than other parties, the parties with less information or access to it depend on discovery to obtain relevant information. Parties who have more information or who control the access to it are often asked to produce significantly more information than they seek or are able to obtain from a party with less. The fact that a party has little discoverable information to provide others does not create a cap on the amount of discovery it can obtain. A party’s ability to take discovery is not limited by the amount of relevant information it possesses or controls, by the amount of information other parties seek from it, or by the amount of information it must provide in return. Discovery costs and burdens may be heavier for the party that has or can easily get the bulk of the essential proof in a case.15 When a case involves information asymmetry or inequality, proportionality requires permitting all parties access to necessary information, but without the unfairness that can result if the asymmetries are leveraged by any party for tactical advantage. Unfairness can occur when a party with significantly less information imposes unreasonable demands on the party who has voluminous information. Unfairness can also occur when a party with significantly more
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information takes unreasonably restrictive or dilatory positions in response to the other party’s requests. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “The direction to consider the parties’ relative access to relevant information adds new text to provide explicit focus on considerations already implicit in present Rule 26(b)(2)(C)(iii). Some cases involve what often is called “information asymmetry.” One party — often an individual plaintiff — may have very little discoverable information. The other party may have vast amounts of information, including information that can be readily retrieved and information that is more difficult to retrieve. In practice these circumstances often mean that the burden of responding to discovery lies heavier on the party who has more information, and properly so.” Guideline 2(D): “Parties’ Resources” — This factor examines what resources are available to the parties for gathering, reviewing, and producing information and for requesting, receiving, and reviewing information in discovery. “Resources” means more than a party’s financial resources.16 It includes the technological, administrative, and human resources needed to perform the discovery tasks.17 Commentary In general, more can be expected of parties with greater resources and less of parties with scant resources, but the impact of the parties’ reasonably available resources on the extent or timing of discovery must be specifically determined for each case. As with all of the factors, this factor is only one consideration. Even if one party has significantly greater resources, this factor does not require that party to provide all or most of the discovery proposed simply because it is able to do so. Nor does it mean that parties with limited resources can refuse to provide relevant information simply because doing so would be difficult for financial or other reasons. 18 A party’s ability to take discovery is not limited by the resources it has available to provide discovery in return. The basic point is what resources a party reasonably has available for discovery, when it is needed. Evaluating the resources a party can reasonably be expected to expend on discovery may require considering that party’s competing demands for those resources. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “So too, consideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party. The 1983 Committee Note cautioned that “[t]he court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.”
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Guideline 2(E): “Importance of Discovery” — This factor examines the importance of the discovery to resolving the issues in the case.19 Commentary One aspect of this factor is to identify what issues or topics are the subject of the proposed discovery and how important those issues and topics are to resolving the case.20 Discovery relating to a central issue is more important than discovery relating to a peripheral issue.21 Another aspect is the role of the proposed discovery in resolving the issue to which that discovery is directed. If the information sought is important to resolving an issue, discovery to obtain that information can be expected to yield a greater benefit and justifies a heavier burden, especially if the issue is important to resolving the case or materially advances resolution. If the information sought is of marginal or speculative usefulness in resolving the issue, the burden is harder to justify, especially if the issue is not central to resolving the case or is unlikely to materially advance case resolution.22 Understanding the importance of proposed discovery may involve assessing what the requesting party is realistically able to predict about what added information the proposed discovery will yield and how beneficial it will be. Guideline 2(F): Whether the Burden or Expense Outweighs Its Likely Benefit — This factor identifies and weighs the burden or expense of the discovery in relation to its likely benefit.23 There is no fixed burden-to-benefit ratio that defines what is or is not proportional. When proportionality disputes arise, the party in the best position to provide information about the burdens, expense, or benefits of the proposed discovery ordinarily will bear the responsibility for doing so. Which party that is depends on the circumstances.24 In general, the party from whom proposed discovery is sought ordinarily is in a better position to specify and support the burdens and expense of responding, while the party seeking proposed discovery ordinarily is in a better position to specify the likely benefits by explaining why it is seeking and needs the discovery. 25 Commentary In general, proposed discovery that is likely to return important information on issues that must be resolved will justify expending more resources than proposed discovery seeking information that is unlikely to exist, that may be hard to find or retrieve, or that is on issues that may be of secondary importance to the case, that may be deferred until other threshold or more significant issues are resolved, or that may not need to be resolved at all. If a party objects that it would take too many hours, consume unreasonable amounts of other resources, or impose other burdens to respond to the proposed discovery, the party should specify what it is about the search, retrieval, review, or production process that requires the work or time or that imposes other burdens.26 If a party objects to the expense of responding to proposed discovery, the party should be prepared to support the objection with an informed estimate of what the expenses would be and how they
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were determined, specifying what it is about the source, search, retrieval, review, or production process that requires the expense estimated. 27 If a party requests discovery and it is objected to as overly burdensome or expensive, the requesting party should be prepared to specify why it requested the information and why it expects the proposed discovery to yield that information.28 Assessing whether the requesting party has adequately specified the likely benefits of the proposed discovery may involve assessing the information the requesting party already has, whether through its own knowledge, through publicly available sources, or through discovery already taken.29 A party with inferior access to discoverable information relevant to the claims or defenses may also have inferior access to the information needed to evaluate the benefit, cost, and burden of the discovery sought.30 Assessing the benefits of proposed discovery may also involve assessing how well the requesting party is able to predict what added information the proposed discovery will yield and how beneficial it will be. Party cooperation is particularly important in understanding the burdens or benefits of proposed discovery and in resolving disputes.31 The parties should be prepared to discuss with the judge whether and how they communicated with each other about those burdens or benefits. The parties should also be prepared to suggest ways to modify the requests or the responses to reduce the burdens and expense or to increase the likelihood that the proposed discovery will be beneficial to the case.32 Rule 26(b)(2)(B) addresses a specific type of burden argument — that discovery should not proceed with respect to a particular source of electronically stored information because accessing information from that source is unduly burdensome or costly. Examples might include information stored using outdated or “legacy” technology or information stored for disaster recovery rather than archival purposes that would not be searchable or even usable without significant effort. Rule 26(b)(2)(B) has specific provisions for discovery from such sources. Those provisions do not apply to discovery from accessible sources, even if that discovery imposes significant burden or cost. COMMITTEE NOTE, RULE 1 (DEC. 1, 2015) “Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure. This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.” COMMITTEE NOTE, RULE 26 (DEC. 1, 2015)
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“The parties may begin discovery without a full appreciation of the factors that bear on proportionality. A party requesting discovery, for example, may have little information about the burden or expense of responding. A party requested to provide discovery may have little information about the importance of the discovery in resolving the issues as understood by the requesting party. Many of these uncertainties should be addressed and reduced in the parties’ Rule 26(f) conference and in scheduling and pretrial conferences with the court. But if the parties continue to disagree, the discovery dispute could be brought before the court and the parties’ responsibilities would remain as they have been since 1983. A party claiming undue burden or expense ordinarily has far better information — perhaps the only information — with respect to that part of the determination. A party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them.33 The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.”
Guideline 3: Applying the six proportionality factors depends on the informed judgment of the parties and the judge, analyzing the facts and circumstances of each case. 34 The weight or importance of any factor varies depending on the facts and circumstances of each case. Commentary The significance of any factor depends on the case. The parties and the judge must consider each factor to determine the degree to which and the way the factor applies in that case. The factors that apply and their weight or importance can vary at different times in the same case, changing as the case proceeds. No proportionality factor has a prescribed or preset weight or significance. No one factor is intrinsically more important or entitled to greater weight than any other.35 The order in which the proportionality factors appear in the Rule text does not signify preset importance or weight in a particular case. The 2015 amendments reordered some of the factors to defeat any argument that the amount in controversy was the most important factor because it was listed first.
Guideline 4: The Rule 26(b)(1) amendments do not require a party seeking discovery to show in advance that the proposed discovery is proportional. Commentary The 2015 amendments to Rule 26(b)(1) do not alter the parties’ existing obligations under the discovery rules. The obligations unchanged by the amendments include obligations under:
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Rule 26(g), requiring parties to consider discovery burdens and benefits before requesting discovery or responding or objecting to discovery requests and to certify that their discovery requests, responses, and objections meet the rule requirements; Rule 34, requiring parties to conduct a reasonable inquiry in responding to a discovery request; and Rule 26(c), Rule 26(f), Rule 26(g), and Rule 37(a), among others, requiring parties to communicate with each other about discovery planning, issues, and disputes. The need for communication is particularly acute when questions concerning burden and benefit arise because one side often has information that the other side may not know or appreciate. The 2015 amendments do not require the requesting party to make an advance showing of proportionality.36 Unless specific questions about proportionality are raised by a party or the judge, there is no need for the requesting party to make a showing of or about proportionality. The amendments do not authorize a party to object to discovery solely on the ground that the requesting party has not made an advance showing of proportionality. The amendments do not authorize boilerplate objections or refusals to provide discovery on the ground that it is not proportional.37 The grounds must be stated with specificity. Boilerplate objections are insufficient and risk violating Rule 26(g). Objections that state with specificity why the proposed discovery is not proportional to the needs of the case are permissible.38 The amendments do not alter the existing principles or framework for determining which party must bear the costs of responding to discovery requests. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality, and the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.” “Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional. The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” COMMITTEE NOTE, RULE 34 (DEC. 1, 2015) “Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection. An objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such
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an objection, the statement of what has been withheld can properly identify as matters “withheld” anything beyond the scope of the search specified in the objection.” Guideline 5: If a party asserts that proposed discovery is not proportional because it will impose an undue burden, and the opposing party responds that the proposed discovery will provide important benefits, the judge should assess the competing claims under an objective reasonableness standard. Commentary In deciding whether a discovery request is proportional to the needs of the case, only reasonable (or the reasonable parts of) expenses or burdens should be considered. Changes in technology can affect the context for applying the objective reasonableness standard. It is appropriate to consider claims of undue burden or expense in light of the benefits and costs of the technology that is reasonably available to the parties.39 It is generally not appropriate for the judge to order a party to purchase or use a specific technology, or use a specific method, to respond to or to conduct discovery. In assessing discovery expenses and burdens and the time needed for discovery, however, it may be appropriate for the judge to consider whether a party has been unreasonable in choosing the technology or method it is using.
II. PRACTICES The following practices suggest useful ways to achieve proportional discovery in specific cases. There is no one-size-fits-all approach. While practices that would advance proportional discovery in one case might hinder it in others, the suggestions may be helpful in many cases and worth considering in most. Although many of these suggestions are framed in terms of judges’ casemanagement practices, they are intended to provide helpful guidance to lawyers and litigants as well.
Practice 1: The parties should engage in early, ongoing, and meaningful discovery planning. 40 The judge should make it clear from the outset that the parties are expected to plan for and work toward proportional discovery. 41 If there are disputes the parties cannot resolve, the parties should promptly bring them to the judge. The judge should make it clear from the outset that he or she will be available to promptly address the disputes.42 Commentary The judge and the parties share responsibility for ensuring that discovery is proportional to the needs of the case.43 The parties are usually in the best position to know which subjects and sources will most clearly and easily yield the most promising discovery benefits. In many cases, the parties use their
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knowledge of the case to set discovery priorities that achieve proportionality.44 When that does not occur, judges play a critical role by taking appropriate steps to ensure that discovery is proportional to the needs of the case.45 Judges have many practices available to work toward proportionality. They include: (1) orders issued early in the case communicating the judge’s expectations about how the parties will conduct discovery;46 (2) setting procedures for the parties to promptly identify disputes and attempt to resolve them, and if they cannot do so to bring them to the judge for prompt consideration; (3) setting procedures to enable the parties to engage the judge promptly and efficiently when necessary; and (4) communicating the judge’s willingness to be available when necessary.47 The practices that follow provide examples of approaches that judges and parties have used to timely and efficiently resolve discovery disputes, ranging from objections to overly expansive requests to objections to obstructive or dilatory responses.48 While the judge has the ultimate responsibility for determining the boundaries of proportional discovery, the process of achieving proportional discovery is most effective and efficient, and the likelihood of achieving it is greatest, when the parties and the judge work together. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “Restoring proportionality as an express component of the scope of discovery warrants repetition of parts of the 1983 and 1993 Committee Notes that must not be lost from sight. The 1983 Committee Note explained that “[t]he rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a selfregulating basis.” The 1993 Committee Note further observed that “[t]he information explosion of recent decades has greatly increased both the potential cost of wide-ranging discovery and the potential for discovery to be used as an instrument for delay or oppression.” What seemed an explosion in 1993 has been exacerbated by the advent of e-discovery. The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.” “Rule 26(b)(2)(C)(iii) is amended to reflect the transfer of the considerations that bear on proportionality to Rule 26(b)(1). The court still must limit the frequency or extent of proposed discovery, on motion or on its own, if it is outside the scope permitted by Rule 26(b)(1).”
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Practice 2: The judge should consider issuing an order in advance of the parties’ Rule 26(f) conference that clearly communicates what the judge expects the parties to discuss at the conference, to address in their Rule 26(f) report, and to be prepared to discuss at a Rule 16 conference with the judge. Commentary The Rule 26(f) conference is a critical first step in achieving proportionality.49 The judge should make clear — by order or other manner the judge chooses — that the parties are expected to have a meaningful discussion and exchange of information during the Rule 26(f) conference and what the parties are expected to cover.50 The judge should also make clear that the Rule 26(f) report will be reviewed and addressed at the Rule 16 conference. Judges following this practice often issue a form order that is routinely sent shortly after the case is filed, along with the order sent to set the date to file the Rule 26(f) report or to hold the Rule 16 conference. In a case in which the judge has a basis to expect that discovery will be voluminous or complex, or in which there is likely to be significant disagreement about discovery, the judge might consider scheduling a conference call with the parties before they hold their Rule 26(f) conference. Some districts address these practices in their local guidelines or rules. Practice 3: The judge should consider holding a “live” Rule 16(b) case-management conference, in person if practical, or by conference call or videoconference if distance or other obstacles make in-person attendance too costly or difficult. Commentary A “live” interactive conference provides the judge and the parties the best opportunity to meaningfully discuss what the discovery will be, where it should focus and why, and how the planned discovery relates to the overall case plan. A live interactive conference allows the judge to ask follow-up questions and probe the responses to obtain better information about the benefits and burdens likely to result from the proposed subjects and sources of discovery. A live interactive conference also provides the judge an opportunity to explore related matters, such as whether an expected summary judgment motion might influence the timing, sequence, or scope of planned discovery. The parties and the judge should take advantage of technology to facilitate live interactive casemanagement and other conferences and hearings when in-person attendance is impractical. In some cases, more than one live case-management conference might be appropriate. In a case in which discovery is likely to be voluminous or complex, or in which there is likely to be significant disagreement about discovery, the judge and parties should consider whether to schedule periodic live conferences or hearings, which can be canceled if not needed. Some districts address this practice in their local guidelines or rules.
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COMMITTEE NOTE, RULE 16 (DEC. 1, 2015) “At the same time, a new provision recognizes that the court may find good cause to extend the time to issue the scheduling order. In some cases it may be that the parties cannot prepare adequately for a meaningful Rule 26(f) conference and then a scheduling conference in the time allowed. Litigation involving complex issues, multiple parties, and large organizations, public or private, may be more likely to need extra time to establish meaningful collaboration between counsel and the people who can supply the information needed to participate in a useful way. Because the time for the Rule 26(f) conference is geared to the time for the scheduling conference or order, an order extending the time for the scheduling conference will also extend the time for the Rule 26(f) conference. But in most cases it will be desirable to hold at least a first scheduling conference in the time set by the rule.” COMMITTEE NOTE, RULE 16 (DEC. 1, 2015) “The provision for consulting at a scheduling conference by “telephone, mail, or other means” is deleted. A scheduling conference is more effective if the court and parties engage in direct simultaneous communication. The conference may be held in person, by telephone, or by more sophisticated electronic means.” Practice 4: The judge should ensure that the parties have considered what facts can be stipulated to or are undisputed and can be removed from discovery. Commentary Discovery about matters that are not in dispute and to which the parties can stipulate is often inherently disproportionate because it yields no benefit. The judge should ensure — through an order, in a Rule 16 conference, or in another manner — that the parties are not conducting discovery into matters subject to stipulation. The judge should also work with the parties to identify matters that are not in dispute and need not be the subject of discovery, even if no formal stipulation is issued. A live interactive case-management conference provides an excellent opportunity for the judge to raise these questions with the parties. Practice 5: In many cases, the parties will initially focus discovery on information relevant to the most important issues, available from the most easily accessible sources. In a case in which the parties have not done so, or in which discovery is likely to be voluminous or complex, or in which there is likely to be significant disagreement about relevance or proportionality, the parties and the judge should consider initially focusing discovery on the subjects and sources that are most clearly proportional to the needs of the case.51 The parties and the judge should use the results of that discovery to guide decisions about further discovery. Commentary
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The information available at the start of the case is often enough to allow the parties to identify subjects and sources of discovery that are both highly relevant and accessible without undue burden or expense.52 Discovery into those subjects and from those sources is usually proportional to the needs of the case because it is likely to yield valuable information with relatively less cost and effort. In many cases, the parties initially focus discovery on these subjects and sources without judicial involvement and without explicitly labeling it as “proportional” or “focused.” If the parties have not thought through discovery, or the discovery is likely to be voluminous or complex, or there is likely to be significant disagreement about relevance or proportionality, the judge should encourage the parties to consider initially focusing discovery on the information central to the most important subjects, available from the most easily accessible sources of that information.53 The parties and the judge can use the information obtained to guide decisions about further discovery.54 For example, the parties can use the information to decide whether to make additional discovery requests or how to frame them. The judge can use the information to help understand and resolve proportionality or other questions that may arise during further discovery. The objective of this approach is to identify good places for discovery to begin, deferring until later more difficult questions about where discovery should end. This approach is sometimes described as conducting discovery into the “low-hanging fruit” and using that information to decide whether more is needed and what that should be.55 The parties are usually in the best position to determine whether and how to focus discovery in their cases.56 In some cases, it is sufficient and preferable for the judge simply to verify that the parties have adequately planned for discovery. In other cases, the judge may need to explore options with the parties to help work toward reaching an agreement. It may make sense for the parties and the judge to focus early discovery on a particular issue, claim, or defense.57 For example, a case may raise threshold questions such as jurisdiction, venue, or limitations that are best decided early because the answers impact whether and what further discovery is needed. In some cases, this may be clear after initial disclosures are exchanged. In other cases, it may be necessary for the parties to exchange more information to identify whether and where early discovery might focus. If the parties have conducted focused early discovery and more discovery is sought, no heightened showing is required. The parties and the judge will have more information to assess proportionality, but the factors and their application do not change simply because some discovery has occurred. A judge who holds a live Rule 16 conference can address with the parties the potential benefits of focusing early discovery and his or her expectations about how the parties will conduct it. The judge can address concerns that one or more parties will misunderstand the process or engage in inappropriate tactics. The judge might consider discussing with the parties what objections typically would or would not be appropriate. If the parties have reached agreement on how to focus early discovery to get the most important information from the most accessible sources, there should be few occasions for objections on relevance or proportionality grounds.
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Judges should consider using other tools designed to facilitate and accelerate the exchange of core information. For example, judges should consider using the Initial Discovery Protocols for Employment Cases Alleging Adverse Action in cases where they apply. Developed jointly by experienced plaintiff and defense attorneys, these protocols are pattern discovery requests that identify documents and information that are presumptively not objectionable and that must be produced at the start of the lawsuit. The self-described purpose of these protocols is to “encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.” The protocols are another way to work toward proportional discovery and have been used effectively in courts around the country. It is expected that work will be undertaken to develop similar subject-specific discovery protocols for other practice areas.
Practice 6: In a case in which discovery will initially focus on particular subjects or sources of information, the judge should consider including guidance in the Rule 16(b) casemanagement order. Commentary While focusing early discovery can advance the goal of proportionality, it can also cause concern to some litigants. Some may worry that it will be used as a tool to restrict discovery, fearing that they will be required to make a special case for proportionality before any additional discovery will be allowed. Others may worry that it will be used as a tool to protract discovery if additional rounds of discovery are viewed as a given regardless of how robust the initial efforts were or what information they yielded. Still others may worry that expressing an interest in focusing early discovery will be mischaracterized or misunderstood as a desire for a rigidly phased or staged discovery process. Absent any guidance from the judge, these and other concerns may lead parties to forego or resist focusing early discovery even when it would make sense to do so. The judge should consider taking steps to avoid misunderstanding and provide clarity. The judge might consider including a statement in the Rule 16(b) case-management order acknowledging that the parties are initially conducting discovery into certain issues or from certain sources and will use the results to guide decisions about further discovery. The judge might consider dividing the discovery period, using an interim deadline for completing early discovery and a later deadline for completing further discovery that is warranted. Whether the judge formally divides the discovery period or simply guides the parties to focus their early discovery, the judge might find it helpful to schedule a discovery status conference or ask for a report after the early discovery is complete. If discovery is focused on particular subjects or sources, the parties and the judge should consider whether this may require some individuals to be deposed more than once, or require the responding party to search a source more than once.58 If so, the parties and the judge should address the issues, whether by adjusting the discovery to avoid repeat efforts, expressly leaving open the possibility of limited additional discovery from the same witness or source, or specifying other appropriate steps.
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If the parties reach agreement on subjects or sources for early focused discovery, a party stipulation or a court order might also specify ways to streamline that discovery, including arranging for the informal exchange of information.
Practice 7: The judge should consider requiring the parties to request a conference before filing a motion relating to discovery, including a motion to compel or to quash discovery or seeking protection from discovery. Commentary A live pre-motion conference is often an effective way to promptly, efficiently, and fairly resolve a discovery dispute. The conference often resolves the dispute, either by leading to an agreed resolution or by providing the judge with the information needed to rule.59 The case remains on track, the parties are saved expense, and the parties and judge are saved the work and time associated with formal motion practice that is often unnecessary. If the pre-motion conference indicates that some briefing or additional information on specific issues would be helpful, the judge can focus further work on the specific issues that require it. The judge might consider requiring the party requesting a pre-motion conference on a discovery dispute to send a short communication — often limited to two pages — describing (not arguing) the issues that need to be addressed and allowing a similarly limited response.60 The judge can include a pre-motion conference requirement and procedure in the casemanagement order issued under Rule 16(b). The procedure can include provisions for using telephone and video conferences if one or more of the parties cannot attend in person. Some districts address this practice in their local guidelines or rules.
COMMITTEE NOTE, RULE 16 (DEC. 1, 2015) “Finally, the order may direct that before filing a motion for an order relating to discovery the movant must request a conference with the court. Many judges who hold such conferences find them an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion, but the decision whether to require such conferences is left to the discretion of the judge in each case.”
Practice 8: When proposed discovery would not or might not be proportional if allowed in its entirety, the judge should consider whether it would be appropriate to grant the request in part and defer deciding the remaining issues. Commentary
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Allowing the proposed discovery in part can further an iterative process. The discovery allowed may be all that is needed, or it may clarify what further discovery is appropriate. Deferring a decision on whether to allow the rest of the proposed discovery gives the judge and parties more information to decide whether all or part of it is proportional. Sampling can be used to determine whether the likely benefits of the proposed discovery, or the burdens and costs of producing it, warrant granting all or part of the remaining request at a later time. If a modified request would be proportional, the judge ordinarily should permit the proportional part of the discovery. However, the judge is under no obligation to do so and may rule on the discovery request as made.
Practice 9: The parties and judge should consider other discovery rules and tools that may be helpful in achieving fair, efficient, and cost-effective discovery. Commentary Other discovery rule changes and tools, not part of the proportionality amendments, should be considered as part of the judge’s and parties’ overall plan for fair, workable, efficient, and costeffective discovery and case resolution.61 Rule 34 is amended to allow a requesting party to deliver document requests to another party before the Rule 26(f) conference. The requests are not considered served until the meeting, and the 30-day period to respond does not start until that date. The early opportunity to review the proposed requests allows the responding party to investigate and identify areas of concern or dispute. The parties can discuss and try to resolve those areas at the Rule 26(f) conference on an informed basis. If disputes remain, the parties should use the Rule 26(f) report and the Rule 16(b) conference to bring them to the court for early resolution. As an alternative to the formal mechanism that now exists under Rule 34, some lawyers may prefer to share draft, unsigned document requests, interrogatories, and requests for admission. Both the formal and informal practices prompt an informed, early conversation about the parties’ respective discovery needs and abilities. Rule 34 is also amended to prohibit boilerplate objections to requested discovery, including objections to proportionality, and to require the responding party to state whether documents are being withheld on the basis of objections.62 A judge’s prompt enforcement of these requirements can be very helpful in managing discovery. Rule 26(c) makes explicit judges’ authority to shift some or all of the reasonable costs of discovery on a good cause showing if a party from whom discovery is sought moves for a protective order.63 A judge may, as an alternative to denying all of the requested discovery, order that some or all of the discovery may proceed on the condition that the requesting party bear some or all of the reasonable costs to respond. The longstanding presumption in federal-court discovery practice is that the responding party bears the costs of complying with discovery requests.64 That presumption
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continues to apply. The 2015 amendments to Rule 26(c) make that authority explicit but do not change the good cause requirement or the circumstances that can support finding good cause. Rule 37(e) is amended to clarify when and how a judge may respond to a party’s inability to produce electronically stored information because it was lost and the party failed to take reasonable steps to preserve it. It provides a nationally uniform standard for when a judge may impose an adverse inference instruction or other serious sanctions. It responds to the concern that some persons and entities were over-preserving out of fear their actions would later be judged under the most demanding circuit standards. Working toward proportionality in preservation is an important part of achieving proportionality in discovery overall. Other rule amendments emphasize the need for careful attention to preservation issues. Rule 26(f) has been amended to add preservation of electronically stored information to the list of issues to be addressed in the parties’ discovery plan. Rule 16(b) is amended to add preservation of electronically stored in formation to the list of issues the case-management order may address. Rule 16(b) and Rule 26(f) have been amended to encourage the use of orders under Rule 502(d) of the Federal Rules of Evidence providing that producing information in the litigation does not waive attorney-client privilege or work-product protection, either in that litigation or in subsequent litigation. Nonwaiver orders under Federal Rule of Evidence 502(d) can promote proportionality by reducing the time, expense, and burden of privilege review and waiver disputes. Questions impacting and approaches to discovery are usually best explored in a live conference between the judge and the parties, preferably before formal discovery-related motions (such as under Rule 26(c) or Rule 37(a)) and accompanying briefs are filed. A live Rule 16 or pre-motion conference enables the judge and the parties to examine how the various discovery tools can best be used to create and implement an effective discovery and case-management plan. COMMITTEE NOTE, RULE 16 (DEC. 1, 2015) “The [Rule 16 scheduling] order also may include agreements incorporated in a court order under Evidence Rule 502 controlling the effects of disclosure of information covered by attorney-client privilege or work-product protection, a topic also added to the provisions of a discovery plan under Rule 26(f)(3)(D).” COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that allocate expenses for disclosure or discovery. Authority to enter such orders is included in the present rule, and courts already exercise this authority. Explicit recognition will forestall the temptation some parties may feel to contest this authority. Recognizing the authority does not imply that costshifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.” “Rule 26(d)(2) is added to allow a party to deliver Rule 34 requests to another party more than 21 days after that party has been served even though the parties have not yet had a required Rule 26(f) conference. Delivery may be made by any party to the party that has been served, and by that party to any plaintiff and any other party that has been served. Delivery does not count as service; the
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requests are considered to be served at the first Rule 26(f) conference. Under Rule 34(b)(2)(A) the time to respond runs from service. This relaxation of the discovery moratorium is designed to facilitate focused discussion during the Rule 26(f) conference. Discussion at the conference may produce changes in the requests. The opportunity for advance scrutiny of requests delivered before the Rule 26(f) conference should not affect a decision whether to allow additional time to respond.” COMMITTEE NOTE, RULE 34 (DEC. 1, 2015) “Rule 34(b)(2)(A) is amended to fit with new Rule 26(d)(2). The time to respond to a Rule 34 request delivered before the parties’ Rule 26(f) conference is 30 days after the first Rule 26(f) conference.” “Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.”
Practice 10: The parties and the judge should consider using technology to help achieve proportional discovery. Commentary Technology can help proportionality by decreasing the burden or expense, or by increasing the likely benefit, of the proposed discovery. When the discovery involves voluminous amounts of electronically stored information, the parties and judge should consider using technologies designed to categorize or prioritize documents for human review.65 Because technology evolves quickly, the parties and the judge should not limit themselves in advance to any particular technology or approach to using it. Instead, the parties and the judge should consider what specific technology and approach works best for the particular case and discovery. COMMITTEE NOTE, RULE 26 (DEC. 1, 2015) “The burden or expense of proposed discovery should be determined in a realistic way. This includes the burden or expense of producing electronically stored information. Computer-based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information. Courts and parties should be willing to consider the
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opportunities for reducing the burden or expense of discovery as reliable means of searching electronically stored information become available.”
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Scope of Discovery. 1st Cir. Creighton v. City of N.Y., 2016 WL 1178648, at *1 (S.D.N.Y. Mar. 17, 2016) (in cases involving “state statutes [, which] establish confidentiality schemes or privileges that may protect otherwise discoverable information, the Court must balance the need for the discovery against the policies underlying those statutes”); see also Cont'l W. Ins. Co. v. Opechee Constr. Corp., 2016 WL 865232, at *3 (D.N.H. Mar. 2, 2016) (employer is not required to interview former employees for discoverable information because, e.g., it would be disproportional). 2d Cir. Laydon v. Mizuho, Ltd., 2016 WL 1718387, at *11 (S.D. N.Y. Apr. 29, 2016) (U.S. Federal Rules of Civil Procedure, instead of Hague Convention procedures, governed discovery of documents protected under European Data Protection laws after court applied comity analysis). 5th Cir. Rickaby v. Hartford Life & Accident Ins. Co., 2016 WL 1597589, at *2 (D. Colo. Apr. 21, 2016) (in ERISA cases, court must consider goals of ERISA and necessity of discovery, which “militate against broad discovery”); see also Celanese Corp. v. Clariant Corp., 2016 WL 107457, at*6–7 (N.D. Tex. Mar. 18, 2016) (proportionality applies to issuance of nonparty witness subpoena). 6th Cir. State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 2016 WL 3450834, at *2 (E.D. Mich. May 11, 2016) (“Although Rule 26(b) applies equally to discovery of nonparties, the fact of nonparty status may be considered by the court in weighing the burdens imposed in the circumstances”) (quoting Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993)). 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *3 (D.S.D. June 3, 2016) (“scope of discovery under Rule 26(b) is extremely broad”). 9th Cir. MicroTechnologies, LLC v. Autonomy, Inc., 2016 WL 1273266, at *1 (N.D. Cal. Mar. 14, 2016) (deposition pursuant to letter rogatory subject to proportionality). 11th Cir. In re: Subpoena Upon NeJames, P.A., 2016 WL 1599831, at *5 (M.D. Fla. Apr. 21, 2016) (“[i]n every civil case, questions concerning the scope of discovery start with Fed. R. Civ. P. 26(b)”); see also Graham & Co. v. Liberty Mut. Fire Ins. Co., 2016 WL 1319697, at *2 (N.D. Ala. Apr. 5, 2016) (“courts must accord discovery a broad and liberal scope in order to provide parties with information essential to the proper litigation of all relevant facts, to eliminate surprise, and to promote settlement”); Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673 n.4 (S.D. Ga. Jan. 4, 2016) (“It remains true today . . . the court is inclined to err in favor of discovery rather than against it.”). Cf. 1st Cir. Ferring Pharms. Inc. v. Braintree Labs., Inc., 2016 WL 829890, at *7 (D. Mass. Feb. 29, 2016) (judge’s failure to “expressly reference proportionality in her ruling does not render her ruling contrary to law”). 3d Cir. Solid Waster Serv. v. United States, 2016 WL 687182, at *1 n.1 (E.D. Pa. Feb. 19, 2016) (court’s failure to explicitly apply proportionality analysis in IRS enforcement action is not in error when court instead applies Powell factors from United States v. Powell, 379 U.S. 48, 57–58 (1964)). 5th Cir. In re RSM Prod. Corp., 2016 WL 3477244, at *6 (S.D. Tex. June 27, 2016) (finding discovery of information in foreign country in accordance with § 1782 to be overly burdensome and disproportionate). 2
Discovery must be relevant. 5th Cir. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 313 F.R.D. 32, 38 (E.D. La. 2016) (to obtain discovery of employee’s personnel files in advance of depositions, party must demonstrate relevancy on witness-by-witness basis); see also ING Bank N.V. v. M/V Portland, 2016 WL 3365426, at *8 n.12 (M.D. La. June 16, 2016) (“Relevance itself, a discrete and separate yet oft merged requirement, remains a relatively low threshold.”); Williams v. United States Envtl. Servs., LLC, 2016 WL 617447, at *7 (M.D. La. Feb. 16, 2016) (in employment discrimination case, other complaints of discrimination against employer are relevant if limited to: (a) same form of discrimination; (b) same department or agency at which plaintiff worked; and (c) reasonable time before and after discrimination occurred, usually three to five years).
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8th Cir. Leseman, LLC v. Stratasys, Inc., 2016 WL 1117411, at *5 (D. Minn. Mar. 22, 2016) (in patent infringement lawsuit, magistrate judge correctly denied plaintiffs’ motion to compel business records for product that was experimental and limited in use). 9th Cir. Deutsche Bank Nat'l Tr. Co. v. SFR Invs. Pool 1, LLC, 2016 WL 3200104, at *1–2 (D. Nev. June 6, 2016) (finding discovery request for, e.g., two years of defendant’s litigation history irrelevant). 11th Cir. O’Boyle v. Sweetapple, 2016 WL 492655 (S.D. Fl. Feb. 8, 2016) (“Permitting this subpoena to proceed would cause the parties to run down a rabbit hole chasing irrelevant information on collateral matters, resulting in the needless and wasteful expenditure of time and money by the parties”). 3
Proportional discovery continues to be required. 2d Cir. Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016) (amendments to Rule 26(b)(1) restored importance of proportionality factors in defining scope of discovery); see also Robertson v. People Magazine, 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (amendments to Rule 26(b)(1) restored importance of proportionality factors in defining scope of discovery). 3d Cir. Trask v. Olin Corp., 2016 WL 1255302, at *2 n.5 (W.D. Pa. Mar. 31, 2016) (amendments to Rule 26 did not alter importance of considering proportionality and under both new and old versions of Rule 26, “the Court is to consider all of the facts and circumstances of the pending action”); see also Dixon v. Williams, 2016 WL 631356, at *2 (M.D. Pa. Feb 17, 2016) (amendments did not change responsibilities of court and parties in considering proportionality). 4th Cir. Eramo v. Rolling Stone, LLC, 2016 WL 304319, at *2 n.2 (W.D. Va. Jan. 25, 2016) (amendments to Rule 26(b)(1) did not change existing responsibilities of court and parties in considering proportionality). 5th Cir. Cottonham v. Allen, 2016 WL 4035331, at *1 n.2 (M.D. La. July 25, 2016) (result of discovery dispute under amendments to Rule 26(b)(1) would be the same as under previous Rule 26(b)(2)(C)(iii) proportionality provision); see also ING Bank N.V. v. M/V Portland, 2016 WL 3365426, at *8 n.12 (M.D. La. June 16, 2016) (“[w]hile the Rules were amended effective December 1, 2015, the relevance standard for discovery has not changed. Instead, the proportionality factors once set in Rule 26(b)(2)(C) have now been moved into Rule 26(b)(1) so as to reemphasize the fact that evidence's discoverability is subject to the proportionality test first adopted in 1983.”); InforMD, LLC v. DocRX, Inc., 2016 WL 2343854, at *2 n.13 (M.D. La. May 3, 2016) (amendments to Rule 26(b)(1) restored importance of proportionality calculation); see also Braud v. Geo Heat Exchangers, 2016 WL 1274558, at *4 (M.D. La. Mar. 31, 2016) (amendments to Rule 26(b)(1) restored importance of proportionality consideration); Odeh v. City of Baton Rouge/Parish of E. Baton Rouge, 2016 WL 1069663, at *1 n.1 (M.D. La. Mar. 17, 2016) (amendments to Rule 26(b)(1) restored proportionality consideration but did not change existing responsibilities of court and parties to consider proportionality); Williams v. United States Envtl. Servs., LLC, 2016 WL 617447, at *1 n.2 (M.D. La. Feb. 16, 2016) (amendments did not change existing responsibilities of court and parties in considering proportionality). 7th Cir. Garner v. St. Clair Co., 2016 WL 146691, at *1 n.1 (S.D. Ill. Jan. 13, 2016) (amendments to Rule 26(b)(1) did not change factors considered in assessing proportionality); see also Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 2016 WL 1162553, at *25 (S.D. Ind. Mar. 24, 2016) (“relevancy” alone is insufficient). 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *7 (D.S.D. June 3, 2016) (court declined to retreat from earlier position in Gowan, noting that “rule [26], and the case law developed under the rule, have not been drastically altered”); see also Gowan v. Mid-Century Insur. Co., 2016 WL 126746, at *5 (D.S.D. Jan. 11, 2016) (proportionality requirements are “hardly new”). 9th Cir. Wit v. United Behavioral Health, 2016 WL 258604, at *10 (N.D. Cal. Jan. 21, 2016) (amendments “restore[d] and reinforce[d] the focus on proportionality in discovery” but did not change existing responsibilities of court and parties in considering proportionality). 10th Cir. XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, at *12–19 (D.N.M. Apr. 1, 2016) (description of extensive background of Rule 26 amendments, leading up to 2015 amendments); see also Rowan v. Sunflower Elec. Power Corp., 2016 WL 2772210, at *3 (D. Kan. May 13, 2016) (“[t]he consideration of proportionality is not new, as it has been part of the federal rules since 1983”); Pertile v. General Motors, LLC, 2016 WL 1059450, at *2 (D. Colo. Mar. 17, 2016) (amendments did not change duty of court to consider proportionality); Ark. River Power Auth. v. Babcock & Wilson Co., 2016 WL 192269, at *4 (D. Colo. Jan. 15, 2016) (amendments did not change responsibilities of court and parties in considering proportionality). 11th Cir. Herrera v. Plantation Sweets, Inc., 2016 WL 183058, at *4 n.6 (S.D. Ga. Jan. 14, 2016) (amendments to Rule 26(b)(1) elevated proportionality factors in different order).
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D.C. Cir. United States ex rel. Shamesh v. Ca., Inc., 2016 WL 74394, at *7 (D.D.C. Jan. 6, 2016) (amendments did not change court’s responsibility to consider proportionality but instead moved proportionality factors to make “proportionality considerations unavoidable”). “Reasonably calculated to lead to admissible evidence” phrase deleted. 2d Cir. Sibley v. Choice Hotels Int’l, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (“notably absent from the present Rule 26 is the all too familiar, but never correct, iteration of the permissible scope [of] discovery as including all matter that is ‘reasonably calculated to lead to’ the discovery of admissible evidence”); see also Bagley v. Yale, 2015 WL 8750901, at *8 (D. Conn. Dec. 14, 2015) (amendments to Rule 26 deleted “reasonably calculated to lead to admissible evidence” language); see also Henry v. Morgan’s Hotel Grp., Inc., 2016 WL 303114, at *3 (S.D.N.Y. Jan. 25, 2016) (“Defendant has mistakenly invoked the ‘reasonably calculated to lead to the discovery of admissible evidence” standard of the prior version of Rule 26(b)(1). That rule was amended last year and this language, long relied on by counsel to seek wide-ranging discovery, has now been eliminated.”). 4th Cir. In Re American Medical Sys., Inc., MDL No. 2325, 2016 WL 3077904, at *4 (S.D. W. Va. May 31, 2016) “Although the rule was recently amended to remove language permitting the discovery of ‘any matter relevant to the subject matter involved in the action’ (emphasis added) and ‘relevant information ...reasonably calculated to lead to the discovery of admissible evidence,’ the rule in its current form still contemplates the discovery of information relevant to the subject matter involved in the action, as well as relevant information that would be inadmissible at trial”) (emphasis in original). 6th Cir. Quality Mfg. Sys. v. R/X Automation Solutions, 2016 WL 1244697, at *2 (M.D. Tenn. Mar. 30, 2016) (amendments to Rule 26 deleted “reasonably calculated” phrase). 7th Cir. ArcelorMittal Ind. Harbor LLC v. Amex Nooter, LLC, 2016 WL 614144, at *5, 7 (D. Ind. Feb. 16, 2016) (amendments to Rule 26 removed language that relevant information does not need to be admissible if it “is reasonably calculated to lead to the discovery of admissible evidence,” but settlement documents, inadmissible as evidence under Fed. R. Evid. 408, remain discoverable). 8th Cir. Rowan v. Sunflower Elec. Power Corp., 2016 WL 2772210, at *3 (D. Kan. May 13, 2016) (“[t]he amendment deleted ‘reasonably calculated to lead to the discovery of admissible evidence’ phrase, however, because it was often misused to define the scope of discovery and had the potential to ‘swallow any other limitation’”). 9th Cir. Gilead Scis., Inc. v. Merck & Co., 2016 WL 146574, at *1 (N.D. Cal. Jan. 13, 2016) (“[n]o longer is it good enough to hope that the information sought might lead to the discovery of admissible evidence. In fact, the old language to that effect is gone); see also Dao v. Liberty life Assur. Co., 2016 WL 796095, at *2 (N.D. Cal. Feb. 23, 2016) (amendments to Rule 26 deleted language that permitted discovery of any information that “might lead to the discovery of admissible evidence”). 10th Cir. XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, at *12 (D.N.M. Apr. 1, 2016) (“[a] district court is not . . . ‘required to permit plaintiff to engage in a ‘fishing expedition’ in the hope of supporting his claim’”). Cf. 1st Cir. Green v. Cosby, 2015 WL 9594287, at *2 (C.D. Mass. Dec. 31, 2015) (amendments to Rule 26 deleted “reasonably calculated to lead to the discovery of admissible evidence” phrase. “As the Supreme Court has instructed, because discovery itself is designed to help define and clarify the issues, the limits set forth in Rule 26 must be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case”). 2d Cir. LightSquared, Inc. v. Deere & Co., 2015 WL 8675377, at *2 (S.D.N.Y. Dec. 10, 2015) (“relevance is still to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense”). 3d Cir. Haines v. Cherian, 2016 WL 831946, at *3 (M.D. Pa. Feb. 29, 2016) (“discovery need not be confined to items of admissible evidence but may encompass that which appears reasonable calculated to lead to the discovery of admissible evidence”); see also Dixon v. Williams, 2016 WL 631356, at *2 (M.D. Pa. Feb 17, 2016) (discoverable information is item that is “relevant or may lead to the discovery of relevant information”); Wertz v. GEA Heat Exchangers Inc., 2015 WL 8959408, at *1 (M.D. Pa. Dec. 16, 2015) (under Rule 26’s liberal discovery policy, discoverable information is item that is “relevant or may lead to the discovery of relevant information”). 4th Cir. Townsend v. Nestle Healthcare Nutrition, Corp., 2016 WL 1629363, at *3 (S.D. W. Va. Apr. 22, 2016) (“[R]ule 26(b)(1) does not precisely define relevancy . . . Although the rule was recently amended to remove language permitting the discovery of “any matter relevant to the subject matter involved in the action” (emphasis added) and “relevant information . . . reasonably calculated to lead to the discovery of admissible evidence,” the 4
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rule in its current form still contemplates the discovery of information relevant to the subject matter involved in the action, as well as relevant information that would be inadmissible at trial”); see also Fed. & Guar. Life Ins. Co. v. United Advisory Grp., Inc., 2016 WL 632025, at *4 (D. Md. Feb. 17, 2016) (discoverable information must be “reasonably calculated to lead to the discovery of admissible evidence”); Moses H. Cone Mem’l Hosp. Operating Corp. v. Conifer Physician Servs., 2016 WL 430494, at *6 (M.D.N.C. Feb. 3, 2016) (denial of request for tax returns because information would not “reasonably lead to relevant information” pertinent to parties’ claims); White v. Sam’s E., Inc., 2016 WL 205494, at *1 (S.D. W. Va. Jan. 15, 2016) (discoverable information need not be admissible if it is “reasonably calculated to lead to the discovery of admissible evidence”). 5th Cir. La. Crawfish Producers Ass’n- W. v. Mallard Basin, Inc., 2015 WL 8074260, at *2 (W.D. La. Dec. 4, 2015) (relevancy means “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case”). 6th Cir. Bentley v. Highlands Hosp. Corp. 2016 WL 762686, at *1 (E.D. Ky. Feb. 23, 2016) (court should allow plaintiffs access to information necessary for investigating their claims but should also prevent “fishing expeditions”); see also Marsden v. Nationwide Biweekly Admin., Inc., 2016 WL 471364, at *1–2 (S.D. Oh. Feb. 8, 2016) (court must balance party’s “right to discovery with the need to prevent ‘fishing expeditions’”); Hadfield v. Newpage Corp., 2016 WL 427924, at *3 (W.D. Ky. Feb. 3, 2016) (relevance to be “construed broadly to encompass any matter that bears on, or that reasonably cokelleyld lead to other matter that could bear on any party’s claim or defense”). 7th Cir. Elliott v. Superior Pool Prods., LLC, 2016 WL 29243, at *2 (C.D. Ill. Jan. 4, 2016) (relevancy refers to requirement that discoverable information must be “reasonably calculated to lead to the discovery of relevant information”). 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *3 (D.S.D. June 3, 2016) (“Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy . . . encompass[es] ‘any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case’); see also Cor Clearing, LLC v. Calissio Res. Grp., Inc., 2016 WL 2997463, at *2 (D. Neb. May 23, 2016) (“The United States Supreme Court has held that discovery under Rule 26 should be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case’”); Hodges v. Pfizer, Inc., 2016 WL 1222229, at *2 (D. Minn. Mar. 28, 2016) (discoverable information is “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case”). 9th Cir. Gibson v. SDCC, 2016 WL 845308, at *4 (D. Nev. Mar. 2, 2016) (relevant information is “information reasonably calculated to lead to the discovery of admissible evidence”). 10th Cir. Navajo Nation Human Rights Comm'n v. San Juan Cnty., 2016 WL 3079740, at *3 (D. Utah May 31, 2016) (“Relevance is ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party's claim or defense”); see also XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, at *17 (D.N.M. Apr. 1, 2016) (“[r]elevance is still [post-2015 amendments] to be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on’ any party’s claim or defense”). D.C. Cir. United States ex rel. Shamash v. CA, Inc., 2016 WL 74394, at *6–7 (D.D.C. Jan. 6, 2016) (amendments to Rule 26 deleted “reasonably calculated to lead to the discovery of admissible evidence” phrase because it was “often misconstrued to define the scope of discovery,” But “relevance is still to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense”).
Rule does not change parties’ existing discovery burdens. 1st Cir. Cont’l W. Insur. Co. v. Opechee Constr. Corp., 2016 WL 865232, at *1 (D.N.H. Mar. 2, 2016) (“party seeking an order compelling discovery responses over the opponent’s objection bears the initial burden of showing that the discovery requested is relevant . . . Once a showing of relevance has been made, the objecting party bears the burden of showing that discovery request is improper”). 2d Cir. A.M. v. Am. Sch. for the Deaf, 2016 WL 1117363, at *2 (D. Conn. Mar. 22, 2016) (“[t]he burden of demonstrating relevance remains on the party seeking discovery, and the newly-revised rule ‘does not place on the party seeking discovery the burden of addressing all proportionality considerations . . . Conversely, the ‘party resisting discovery has the burden of showing undue burden or expense.’”); see also Torcasio v. New Caanan Bd. of Educ., 2016 WL 299009, at *2 (D. Conn. Jan. 25, 2016) (party resisting discovery has burden of showing why discovery should be denied); LightSquared, Inc. v. Deere & Co., 2015 WL 8675377, at *5 (S.D.N.Y. Dec. 10, 5
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2015) (party that seeks to compel discovery from additional custodians “bears the burden of establishing the relevance of the documents it seeks from those custodians”); Robertson v. People Magazine, 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (“2015 amendment does not create a new standard”). 3d Cir. Haines v. Cherian, 2016 WL 831946, at * 3 (M.D. Pa. Feb. 29, 2016) (party resisting discovery has burden to show why discovery should be denied). 5th Cir. Mir v. L-3 Commuc’ns Integrated Sys., L.P., 2016 WL 3959009, at *4 (N.D. Tex. July 22, 2016) (“amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery”); see also Hightower v. Grp. 1 Auto., Inc., 2016 WL 3430569, at *3 (E.D. La. June 22, 2016) (“[T]he 2015 amendments to the Rule did not change the law. Permissible discovery extends only to that which is nonprivileged, relevant to claims and defenses in the case and within the Rule's proportionality limits”) (emphasis in original); Richmond v. SW Closeouts, Inc., 2016 WL 3090672, at *4 (N.D. Tex. June 2, 2016) (“[T]he amendments to Rule 26(b) do not alter the basic allocation of the burden on the party resisting discovery to – in order to successfully resist a motion to compel – specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable”); Gondola v. USMD PPM, LLC, 2016 WL 3031852, at *3 (N.D. Tex. May 27, 2016) (amendments to Rule 26(b) did not alter existing discovery burdens); McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 3033544, at *4 (N.D. Tex. May 26, 2016) (“the amendments to Rule 26 do not alter the burdens” set out in Rules 26 and 45); Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784, at *24 (N.D. Tex. Apr. 18, 2016) (“[b]ut the amendments to Rule 26(b) and Rule 26(c)(1) do not alter the basic allocation of the burden on the party resisting discovery to . . . specifically object and show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable”); Harrison v. Wells Fargo Bank, N.A., 2016 WL 1392332, at *4 (N.D. Tex. Apr. 8, 2016) (“amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery”); Celanese Corp. v. Clariant Corp., 2016 WL 107457, at *3 (N.D. Tex. Mar. 18, 2016) (amendments did not change burdens on party resisting discovery); Robinson v. Dallas County Cmty. College Dist., 2016 WL 1273900, at *2 (N.D. Tex. Feb.18, 2016) (“amendments to Rule 26 do not alter the burdens imposed on the party resisting discovery”); McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603, at *3 (N.D. Tex. Jan. 8, 2016) (amendments did not alter burdens placed on party resisting discovery. Party resisting discovery must show that “requested discovery was overbroad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”); Nguyen v. Versacom, LLC, 2015 WL 8316436, at *5 (N.D. Tex. Dec. 9, 2015) (amendments did not change burden placed on party resisting discovery to show that discovery request is not relevant or proportional or “otherwise objectionable”); Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. Dec. 7, 2015) (party resisting discovery must show why discovery request is not relevant or “otherwise objectionable, as, for example, overly broad, burdensome, or oppressive”) 7th Cir. In re Cook Med., 2016 WL 2854169, at *1 (S.D. Ind. May 12, 2016) (party moving for protective order has burden to show that discovery request is burdensome); see also Design Basics LLC v. Best Built Inc., 2016 WL 1060253, at *3 (E.D. Wis. Mar. 15, 2016) (“amendment of Rule 26(b) to make the proportionality requirement explicit does not relieve the responding party of the burden to explain how a discovery request is burdensome”). 8th Cir. Cor Clearing, LLC v. Calissio Res. Grp., Inc., 2016 WL 2997463, at *2 (D. Neb. May 23, 2016) (quoting pre-amendment case law for the proposition that a “party seeking discovery must satisfy some threshold showing of relevancy before discovery is required.” But “[o]nce that threshold has been met, the resisting party ‘must show specifically how . . . each . . . [request for production] is not relevant or how the discovery is overly broad, burdensome, or oppressive”); see also Zurich Am. Ins. Co. v. Andrew, 2016 WL 2350115, at *2 (D. Neb. May 4, 2016) (“[m]ere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity the information they hope to obtain and its importance to their case”); Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247, at *5 (D.S.D. Feb. 26, 2016) (requesting party must show that “requested information falls within the scope of discovery under Rule 26(b)(1). . . . Once the requesting party has satisfied its threshold showing, the burden then shifts to the party resisting discovery to show specific facts demonstrating that the discovery is irrelevant or disproportional”). 9th Cir. Stoba v. Saveology.com, LLC, 2016 WL 3356796, at *2 (S.D. Cal. June 3, 2016) (“Once the party seeking discovery establishes that the request meets this broadly-construed relevancy requirement, ‘the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections’”); see also Dao v. Liberty life Assur. Co., 2016 WL 796095, at *3 (N.D. Cal. Feb. 23, 2016) (“while the language of the Rule has changed, the amended rule does not actually place a greater burden on the parties with respect to their discovery obligations, including the obligation to consider
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proportionality, than did the previous version of the Rule”); Clymore v. FRA, 2015 WL 7760086, at *2 (E.D. Cal. Dec. 2, 2015) (party requesting discovery has burden of showing that it has satisfied the requirements of Rule 26). 10th Cir. Bd. of Comm’rs of Shawnee County v. Daimler Trucks N. Am., LLC, 2015 WL 8664202, at *2 (D. Kan. Dec. 11, 2016) (“where the relevance of a particular request is not readily apparent, the proponent of a discovery request must, in the first instance, show the relevance of the requested information to the claims or defenses in the case. Where relevance is apparent, or the proponent of the evidence has shown it is relevant, the burden then shifts to the objecting party to establish a lack of relevance by demonstrating that the requested discovery either does not come within the scope of relevance as defined by Rule 26(b)(1) or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad discovery”). D.C Cir. United States ex rel. Shamesh v. Ca., Inc., 2016 WL 74394, at *8 (D.D.C. Jan. 6, 2016) (“Once the relevancy of the materials being sought has been established, the objecting party then bears the burden of ‘showing why discovery should not be permitted’”). 6
Federal rules contemplate liberal discovery. 2d Cir. Am. Fed'n of Musicians v. Sony Music Entm't, Inc., 2016 WL 2609307, at *3 (S.D.N.Y. Apr. 29, 2016) (“2015 amendments did not alter the underlying concept of relevance, which ‘is a matter of degree, and the standard is applied more liberally in discovery than it is at trial’”). 4th Cir. In Re American Medical Sys., Inc., 2016 WL 3077904 (S.D.W. Va. May 31, 2016) (“[N]otwithstanding Rule 26(b)(1)'s recent amendment placing an emphasis on the proportionality of discovery, the discovery rules, including Rule 26, are still ‘to be accorded broad and liberal construction’”). 5th Cir. ING Bank N.V. v. M/V Portland, 2016 WL 3365426, at *2 (M.D. La. June 16, 2016) (“[T]he scope of discovery under the Federal Rules of Civil Procedure is broad, bounded by a few construed limits”). 8th Cir. Zurich Am. Ins. Co. v. Andrew, 2016 WL 2350115, at *2 (D. Neb. May 4, 2016) (“relevance is to be broadly construed for discovery purposes”). 7
Proportionality related to relevance. 2d Cir. Am. Fed'n of Musicians v. Sony Music Entm't, Inc., 2016 WL 2609307, at *5 (S.D.N.Y. Apr. 29, 2016) (producing party need not present evidence addressing burdens of broad discovery, if requested information is not relevant); see also Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *14 (S.D.N.Y. Feb. 16, 2016) (discovery that is relevant is more likely to be proportionate). 3d Cir. CDK Glob., LLC v. Tulley Auto. Grp., Inc., 2016 WL 1718100, at *8 (D.N.J. Apr. 29, 2016) (Magistrate judge found “a nexus between the requested information” and defendant’s counterclaims after weighing proportionality factors in denying plaintiff’s motion to quash non-party subpoenas). 6th Cir. Waters v. Drake, 2016 WL 4264350 (S.D. Ohio Aug. 12, 2016) (court found discovery request was not proportional because it was not relevant to plaintiff’s claims). 7th Cir. Elliott v. Superior Pool Prods., LLC, 2016 WL 29243, at *2 (C.D. Ill. Jan. 4, 2016) (“application of the concept of proportionality often turns on how ‘central’ (or relevant) the proposed discovery may be to overcome any number of objections”). 11th Cir. Noveshen v. Bridgewater Assocs. LP, 2016 WL 3902542 (S.D. Fla. Feb. 22, 2016) (court found discovery request to be relevant, proportional, and not burdensome); see also Flynn v. Square One Distrib., Inc., 2016 WL 2997673, at *4 (M.D. Fla. May 25, 2016) (court noted that to be discoverable information on development of product warning label must be relevant and proportional); Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673 (S.D. Ga. Jan. 4, 2016) (court denied plaintiff’s motion to compel irrelevant material to prevent needless litigation costs, which would defeat Rule 26(b)(1)’s goal of proportionality). 8
Proportionality considerations include effects on non-parties. 5th Cir. Hahn v. Hunt, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (“[N]on-parties have greater protections from discovery, and … burdens on non-parties . . . impact the proportionality analysis.” (citing E. Laporte & J. Redgrave, A Practical Guide to Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9 FED. CTS. L. REV. 57 (2015))). 9th Cir. D.F. v. Sikorsky Aircraft Corp., 2016 WL 3360515, at *7 (S.D. Cal. June 13, 2016) (court did not require third party to produce privilege log or otherwise “assemble a formal, detailed privilege claim” while questioning whether associated burden and expense outweighed benefits).
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11th Cir. Williams v. Am. Int'l Grp., Inc., 2016 WL 3156066, at *2 (M.D. Ala. June 3, 2016) (discovery of nonparties’ HIPPA-protected health information was disproportional considering limited relevance of information). 9
Proportionality distinct from grounds for issuing Rule 26(c) protective order. MicroTechnologies, LLC v. Autonomy, Inc., 2016 WL 1273266, at *2 (N.D. Cal. Mar. 14, 2016) (question of proportionality is distinct from grounds for issuing Rule 26(c) protective order, including oppression). 10
Proportionality depends on needs of case. Morrison v. Quest Diagnostics Inc., 2016 WL 355120, at *1–2 (D. Nev. Jan. 27, 2016) (under amended Rule 26(b)(1), “lawyers must size and shape their discovery requests to the requisites of a case”). 11
Proportionality addresses whether discovery would assist in vindicating personal or public values. 1st Cir. Doe v. Trs. of Boston Coll., 2015 WL 9048225, at *1 (D. Mass. Dec. 16, 2015) (court should consider whether discovery would assist in resolving issues that vindicate personal or public values). 3d Cir. Vay v. Huston, 2016 WL 1408116, at *6 (W.D. Pa. Apr. 11, 2016) (court considered public value of vindicating constitutional rights). 12
Public policy considerations. Perez v. Mueller, 2016 WL 3360422, at *1 (E.D. Wis. May 27, 2016) (in ERISA case by Secretary of Labor, court considered cost of litigation to public in determining proportionality of defendants’ discovery requests). 13
Weight of amount in controversy. First Niagara Risk Mgmt. v. Folino, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016) (court found that amount-incontroversy factor weighed in favor of party resisting discovery because amount was unknown at time of request and resisting party maintained that “unknown damages cannot justify exorbitant discovery requests”); Bell v. Reading Hosp., 2016 WL 162991, at *3 (E.D. Pa. Jan. 14, 2016) (amount-in-controversy factor weighs in favor of discovery when discovery costs would certainly not exceed amount in controversy). 14
Relative access to information.
1st Cir. Cont'l W. Ins. Co. v. Opechee Constr. Corp., 2016 WL 865232, at *3 (D.N.H. Mar. 2, 2016) (information requested of former employees was “not proportional to needs of the case … given the parties' relative access to the requested information and their respective resources”). 3d Cir. Vay v. Huston, 2016 WL 1408116, at *5 (W.D. Pa. Apr. 11, 2016) (defendant’s greater access to information weighed in favor of finding extensive discovery to be proportional). 6th Cir. Albritton v. CVS Caremark Corp., 2016 WL 3580790, at *4 (W.D. Ky. June 28, 2016) (court held that information in the sole possession of defendant is a fact weighing in favor of proportionality; the “touchstone” of revised scope of discovery); see also Kelley v. Apria Healthcare, Inc., 2016 WL 737919, at *4 (E.D. Tenn. Feb. 2, 2016) (court considered defendant’s lack of access to confidential final settlement agreement in ordering production subject to protective order). 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *6 (D.S.D. June 3, 2016) (court determined that defendant insurance company’s greater access to proof weighed in favor of finding that plaintiff’s discovery requests were proportional); see also Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513, at *6 (W.D. Mo. May 9, 2016) (court considered defendant’s “national presence, with sophisticated access to data” in ordering that it answer plaintiff’s interrogatories). 10th Cir. Digital Ally, Inc. v. Util. Assocs., 2016 WL 1535979, at *4 (D. Kan. Apr. 15, 2016) (plaintiff argued that discovery was proportional because information was “easy to search or locate, either electronically or in paper files”). 11th Cir. Williams v. Am. Int'l Grp., Inc., 2016 WL 3456927, at *2 (M.D. Ala. June 21, 2016) (court found proportionality analysis weighed in favor of compelling plaintiff to authorize disclosure of private social security disability records because only plaintiff had access to them). 15
Ease of Access to Information. 2d Cir. Patient A v. Vt. Agency of Human Servs., 2016 WL 880036, at *3 (D. Vt. Mar. 1, 2016) (court found plaintiff’s discovery request proportional because defendant healthcare service admitted to possessing some
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responsive data and was obligated under its contract with the state to “track and report information that [was] responsive to certain elements of the proposed deposition topic”). 11th Cir. Pilver v. Hillsborough Cnty., 2016 WL 4129282, at *3 (M.D. Fla. Aug. 3, 2016) (court found discovery request to be disproportional because it sought information that “can be obtained from some other source that is more convenient, less burdensome, or less expensive,” i.e., records in PACER). Cf. 4th Cir. In Re NC Swine Farm Nuisance Litig. 2016 WL 3661266, at *3 (E.D.N.C. July 1, 2016) (court held defendant did not have possession, custody, or control of information and never reached defendant’s argument that plaintiffs’ request for discovery for documents in control of non-party with parent-subsidiary relationship was not proportional because information could be better accessed through subpoenas to third party). 16
Unduly burdensome. Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *6 (S.D. Oh. Dec. 9, 2015) (court should limit scope of discovery only when compliance would “prove unduly burdensome, not merely expensive or time-consuming”). 17
Burden on personnel resources. Marsden v. Nationwide Biweekly Admin., Inc., 2016 WL 471364, at *1–2 (S.D. Oh. Feb. 8, 2016) (expenditure of significant personnel resources to comply with unsupported discovery request outweighs benefits of production). Parties’ resources not determinative. 9th Cir. Salazar v. McDonald Corp., 2016 WL 736213, at *4 (N.D. Cal. Feb. 25, 2016) (“consideration of the parties’ resources does not foreclose discovery requests addressed to an impecunious party, nor justify unlimited discovery requests addressed to a wealthy party”); see also Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369 (N.D. Cal. Feb. 4, 2016) (“although it is a concern, the defendant’s financial wherewithal is not decisive” in producing requested discovery). Cf. 3d Cir. Vay v. Huston, 2016 WL 1408116, at *5 (W.D. Pa. Apr. 11, 2016) (defendant’s greater resources weighed in favor of finding extensive discovery to be proportional). 18
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Importance of discovery to resolving case. 2d Cir. Creighton v. City of N.Y., 2016 WL 1178648, at *1 (S.D.N.Y. Mar. 17, 2016) (“[e]ven where relevance may be established, proportionality considerations concerns look to, inter alia, ‘the importance of the discovery in resolving the issues’ in the case”). 3d Cir. In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 2016 WL 3519618, at *7 (E.D. Pa. June 27, 2016) (discovery was proportional where information went to “heart” of one theory of liability). 4th Cir. Holcombe v. Helena Chem. Co., 2016 WL 2897942, at *3 (D.S.C. May 18, 2016) (court permitted two additional interrogatory questions beyond maximum because, e.g., information sought was probative of plaintiff’s liability theory). 5th Cir. La. Crawfish Producers Ass’n- W. v. Mallard Basin, Inc., 2015 WL 8074260, at *4 (W.D. La. Dec. 4, 2015) (on-site inspection appropriate in case concerning environmental-impact of permits issued by U.S. Army Corps of Engineers). 8th Cir. Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513, at *5 (W.D. Mo. May 9, 2016) (despite defendant’s claims that answering interrogatories would involve large amounts of time and high costs, court found that discovery was not disproportional because it involved “critical information” to resolution of issues). 10th Cir. Boone v. TFI Family Servs., Inc., 2016 WL 3124850, at *2 (D. Kan. June 3, 2016) (denying request for protective order in case involving death of child in custody of family services where, e.g., defendant “failed to establish that its resources or burden of the potential expense outweigh[ed] the undeniably important nature of the issues at stake in th[e] case”). 11th Cir. Herman v. Seaworld Parks & Entm't, 2016 WL 3746421, at *3 (M.D. Fla. July 13, 2016) (denying defendant’s motion to compel disclosure of undisputed, unrelated contracts, as irrelevant and, correspondingly, disproportional because they had “no ‘importance’ or ‘likely benefit’ in resolving” contract dispute). Cf. 7th Cir. AVNET, Inc. v. MOTIO, Inc., 2016 WL 3365430, at *3 (N.D. Ill. June 15, 2016) (denying plaintiffs’ motion to strike expert reports in part and rejecting plaintiff’s argument that expert reports that are duplicative and
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cumulative of earlier expert reports run counter to purpose of proportionality rule and “would inexorably lead to needless increase in cost of litigation”). 20
Discovery for purposes of class-action certification. 3d Cir. Bell v. Reading Hosp., 2016 WL 162991, at *2 (E.D. Pa. Jan. 14, 2016) (discovery was not disproportionate because information would assist in determining whether final certification of class was appropriate); see also In re Riddell Concussion Reduction Litig., 2016 WL 4119807 (D.N.J. July 7, 2016) (discovery request was proportional because, e.g., information was “relevant to important class certification requirements”). 8th Cir. Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513, at *4 (W.D. Mo. May 9, 2016) (“Eighth Circuit Court of Appeals has generally endorsed broad discovery prior to class certification.”); see also 9th Cir. O’Connor v. Uber Techs., Inc., 2016 WL 107461, at *4 (N.D. Cal. Jan. 11, 2016) (defendant’s request for names and contact information of class members, and communications between class members and class counsel was disproportional because discovery lacked importance to resolution of issues). 11th Cir. Hankinson v. R.T.G. Furniture Corp., 2016 WL 1182768 (S.D. Fla. Mar. 28, 2016) (court determined that discovery of non-party online and out-of-state affiliates was not proportional at pre-class-action certification stage). 21 Discovery related to central issue more important than discovery related to peripheral issue. 9th Cir. Van v. Language Line Servs., ___WL___ (N.D. Cal. Mar. 2, 2016) (party was not required to answer requests for production that sought “low-probative-value information”). 11th Cir. Flynn v. Square One Distrib., Inc., 2016 WL 2997673, at *4 (M.D. Fla. May 25, 2016) (“[R]equested information must also satisfy the proportionality requirement meaning it must be more than tangentially related to the issues that are actually at stake in the litigation”). 22
Marginal utility discovery. 2d Cir. Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *14 (S.D.N.Y. Feb. 16, 2016) (“[p]roportionality focuses on the marginal utility of the discovery sought”). 4th Cir. Dwoskin v. Bank of Am., N.A., 2016 WL 3955932, at *2 (D. Md. July 22, 2016) (court denied plaintiffs’ request for additional discovery because plaintiffs failed to show that discovery would contradict evidence already produced); see also Eramo v. Rolling Stone, LLC, 2016 WL 304319, at *3–6 (W.D. Va. Jan. 25, 2016) (Party resisting discovery may show that requested information is not relevant or is “of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption of broad discovery”). 9th Cir. Santoyo v. Howmedica Osteonics Corp., 2016 WL 2595199, at *3 (W.D. Wash. May 5, 2016) (“[i]n light of the slight relevance at this point, the amount in controversy, and the vast amount of discovery sought,” court granted protective order denying discovery request). 10th Cir. Ark. River Power Auth. v. Babcock & Wilson Co., 2016 WL 192269, at *4 (D. Colo. Jan. 15, 2016) (“Once the discovery sought appears relevant, the party resisting discovery has the burden to establish lack of relevance or that the information is of such marginal relevance that the potential harm occasioned by the discovery outweighs the benefit of production”). 11th Cir. Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673 (S.D. Ga. Jan. 4, 2016) (court denied discovery request, which was “based solely on plaintiff’s speculation” that information was relevant in face of contrary evidence in discovery responses). 23
Burden or expense outweighing benefits of discovery. 1st Cir. Wal-Mart P.R., Inc. v. Zaragoza-Gomez, 2016 WL 259704, at *4 (D.P.R. Jan. 21, 2016) (burden of producing discovery is not outweighed by benefits when party is able to “deliver a paper copy of the discovery to the court approximately two and one-half hours after [the court] ordered its production for in camera review). 3d Cir. Capetillo v. Primecare Med., Inc., 2016 WL 3551625, at *3, n.2 (E.D. Pa. June 28, 2016) (finding discovery request for inmate medical care complaints over 5-10 year period unduly burdensome and limiting it to 18-months and by subject matter because it triggered onerous manual review of database); see also GuerridoLopez v. City of Allentown, 2016 WL 1182158, at *1 (E.D. Pa. Mar. 28, 2016) (court denied plaintiff’s motion for reconsideration because court had “impos[ed] reasonable limits on Plaintiff's boundless discovery requests that permit[ed] the discovery of evidence the Plaintiff needs to prove his case without unnecessarily expanding the burden and cost of production”).
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4th Cir. White v. Sam’s E., Inc., 2016 WL 205494, at *1 (S.D. W. Va. Jan. 15, 2016) (in case alleging violations of state law, plaintiff’s discovery requests for nationwide discovery were overbroad). 5th Cir. Duvall v. Bopco, 2016 WL 1268343, at *2 (E.D. La. April 1, 2016) (court denied plaintiff’s request to inspect and test barge equipment because steps were “unduly burdensome, hazardous and disruptive of defendant's operations”). 6th Cir. Arthur J. Gallagher & Co. v. Anthony, 2016 WL 2997599, at *1 (N.D. Ohio May 24, 2016) (court denied plaintiff’s motion for expedited responses to subpoena duces tecum from third party because request was overly broad and plaintiff “had ample opportunity to conduct discovery with [third party]… and this late request for expedited production of text messages, cell phone records, and metadata would be unduly burdensome to produce”); see also Marsden v. Nationwide Biweekly Admin., Inc., 2016 WL 471364, at *1–2 (S.D. Oh. Feb. 8, 2016) (expenditure of significant financial and personnel resources to comply with unsupported discovery request outweighs benefits of production); Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *6 (S.D. Oh. Dec. 9, 2015) (court should limit scope of discovery only when compliance would “prove unduly burdensome, not merely expensive or time-consuming”). 8th Cir. Vallejo v. Amgen, Inc., 2016 WL 2986250, at *4 (D. Neb. May 20, 2016) (court affirmed magistrate judge’s finding that plaintiff’s discovery request was disproportional based on “a variety of factors – including the volume of reports Plaintiff's requests would return, the amount of irrelevant information likely to be included, and the number of employees who would have to be questioned”); Perez v. KDP Hosp., LLC, 2016 WL 2746926, at *3 (W.D. Mo. May 6, 2016) (in FSLA case, court denied defendants’ request for immigration status of informers and claimants because “potential damage and prejudice” outweighed relevance of information). 9th Cir. Gilead Scis., Inc. v. Merck & Co., 2016 WL 146574, at *2 (N.D. Cal. Jan. 13, 2016) (cost and delay outweighed benefits of discovery when requests were for information that was irrelevant to disputes in case); see also ChrisMar Systems v. Cisco Systems, 312 F.R.D. 560, 564 (N.D. Cal. Jan. 12, 2016) (amendments to Rule 26 balance proportionality needs of case considering burdens involved). 10th Cir. Echon v. Sackett, 2016 WL 943485, at *2 (D. Colo. Jan. 27, 2016) (defendants’ discovery requests were overbroad because defendants did not provide court with information about people and entities from whom discovery was sought, requests were not limited to claims or defenses, and some requests were “outright offensive”). Cf. 9th Cir. Wilson v. Wal-Mart Stores, Inc., 2016 WL 526225, at *3 (D. Nev. Feb. 9, 2016) (defendant’s argument that videotaping worksite was burdensome was not persuasive). Court may rely on counsel’s representations. 11th Cir. Hunter v. Corr. Corp. of Am., 2016 WL 943752, at *2 (S.D. Ga. Feb. 5, 2016) (court generally may rely on counsel’s representations about availability of responsive documents, absent suspicion that representation is false). Cf. 7th Cir. Elliott v. Superior Pool Prods., LLC, 2016 WL 29243, at *6 (C.D. Ill. Jan. 4, 2016) (defense counsel’s “factual contentions concerning the completeness of their document production to the Plaintiff have sufficient evidentiary support”). 24
25
Burdens on each party. 2d Cir. State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (amendments did not alter burdens on parties. Party seeking discovery must show that item is relevant, and party resisting discovery must show “undue burden or expense”). 4th Cir. Eramo v. Rolling Stone, LLC, 2016 WL 304319, at *3–6 (W.D. Va. Jan. 25, 2016) (party who moves to compel discovery has initial burden of showing that information is discoverable. Party resisting discovery then has burden of proving that court should not grant motion to compel. Party resisting discovery may show that requested information is not relevant or is “of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption of broad discovery”). 10th Cir. Ark. River Power Auth. v. Babcock & Wilson Co., 2016 WL 192269, at *4 (D. Colo. Jan. 15, 2016) (party seeking discovery has burden of establishing that “information sought is relevant to a claim or defense in the case. Once the discovery sought appears relevant, the party resisting discovery has the burden to establish lack of relevance or that the information is of such marginal relevance that the potential harm occasioned by the discovery outweighs the benefit of production”).
28
11th Cir. Bright v. Frix, 2016 WL 1011441, at *1 (M.D. Fl. Jan. 22, 2016) (party who moves to compel discovery has initial burden of proving that requested information is relevant). 26
Consideration of burdens other than expense typically incurred in discovery. 5th Cir. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 313 F.R.D. 32, 38 (E.D. La. 2016) (request for employees’ personnel files maintained by HR department, as opposed to employees’ custodial files, raised privacy concerns and required “individualized showing of relevancy, proportionality, and particularity”); see also McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 2609994, at *11 (N.D. Tex. May 6, 2016) (court denied plaintiff’s motion to squash subpoena for deposition finding that payment of attorney’s fees in connection with deposition is “not an undue burden under the circumstances”). 11th Cir. Williams v. Am. Int'l Grp., Inc., 2016 WL 2747020, at *2 (M.D. Ala. May 2, 2016) (HIPPA privacy “concerns tip the scales of proportionality against disclosure” of third-party health information). 27
Affidavits or other evidentiary proof showing burden with specificity required. 2d Cir. Knight v. Local 25 IBEW, __ WL __ (E.D.N.Y. Mar. 31, 2016) (defendant’s conclusory argument that redacting social security numbers on standard reports was burdensome was not persuasive). 4th Cir. Ashmore v. Allied Energy, Inc. 2016 WL 301169, at *3 (D. S.C. Jan. 25, 2016) (court denied defendant’s claim that discovery was not proportional because defendant failed to “submit any documentation that either establishes the proposed cost of production or a cost estimate for an alternative form of production”). 5th Cir. McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603, at *3 (N.D. Tex. Jan. 8, 2016) (party resisting discovery must show that “requested discovery was overbroad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden”). 8th Cir. Vallejo v. Amgen, Inc., 2016 WL 2986250, at *3, n. 6 (D. Neb. May 20, 2016) (court retains discretion to find discovery request not proportional when neither party provided “substantial and reasonable guidance” forcing court “‘to wade through generalized and conflated arguments of need, burden, and relevance’”). 9th Cir. Santoyo v. Howmedica Osteonics Corp., 2016 WL 2595199, at *3 (W.D. Wash. May 5, 2016) (court noted that party resisting discovery should provide more specific proof of cost of discovery beyond estimates based on lawyer’s similar prior litigation experiences). 10th Cir. Fish v. Kobach, 2016 WL 893787, at *1 (D. Kan. Mar. 8, 2016) (“[o]bjections based on undue burden must be clearly supported by an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request”). 11th Cir. In re: Subpoena Upon NeJame Law, P.A., 2016 WL 1599831, at *5 (M.D. Fla. Apr. 21, 2016) (requested discovery was seemingly overbroad, but court nonetheless ordered it because party failed to provide evidence of any burden in retrieving, reviewing, or producing it). 28
Party requesting discovery may need to make showing. 2d Cir. Blodgett v. Siemens Indus. Inc., 2016 WL 4203490, at *3 (E.D.N.Y. Aug. 9, 2016) (court denied discovery request because requesting party failed to provide any “basis beyond speculation to believe that relevant information is likely to be uncovered as a result of requiring Defendant to undertake an additional search for the proposed three month period”). 5th Cir. McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603, at *3 (N.D. Tex. Jan. 8, 2016) (in opposition to resisting party’s showing, party seeking discovery “may well need to make its own showing of many or all of the proportionality factors, including the importance of the issues at stake in the litigation, the amount in controversy, the parties’ relative access to relevant information”). 29
Unsupported assertions insufficient. 2d Cir. LightSquared, Inc. v. Deere & Co., 2015 WL 8675377, at *5 (S.D.N.Y. Dec. 10, 2015) (court denied plaintiff’s request to search files of additional custodians based on plaintiff’s unsupported assertions). 9th Cir. Dao v. Liberty life Assur. Co., 2016 WL 796095, at *5 (N.D. Cal. Feb. 23, 2016) (court found that plaintiff failed to show value of her case that exceeded actual damages and therefore burden and expense of broad discovery outweighed its likely benefits). 30
Inferior access to information.
29
Duvall v. Bopco, 2016 WL 1268343, at *3 (E.D. La. April 1, 2016) (court denied plaintiff’s request to inspect and test barge equipment despite inferior access to information when Rule 34 inspection had already occurred and plaintiff retained engineering expert). 31
Party cooperation. 6th Cir. Rui He v. Rom, 2016 WL 909405, at *6 (N.D. Ohio Mar. 10, 2016) (court noted that “parties and their counsel ha[d] not made a sincere attempt to cooperate in pretrial discovery and thus encourage[d] all case participants to try to minimize further needless frustration, time, and expense associated with the discovery process”); see also Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *7 (S.D. Oh. Dec. 9, 2015) (court urged parties to “engage in further cooperate dialogue in an effort to come to an agreement regarding proportional discovery”). 9th Cir. Martinelli v. Johnson & Johnson, 2016 WL 1458109, at *1 (E.D. Cal. Apr. 13, 2016) (parties agreed to ESI protocol, which provided that “counsel's zealous representation of them is not compromised by conducting discovery in a cooperative manner”); see also Wichansky v. Zowine, 2016 U.S. Dist. LEXIS 37065, at *5 (D. Ariz. March 22, 2016) (“‘parties share the responsibility’ to achieve Rule 1’s goal, and emphasizes that ‘[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use’ of the rules of procedure. The parties should cooperate during trial to minimize delay and wasted time.”); Roberts v. Clark County Sch. Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016) (Chief Justice Robert’s Year-End report said that “Rule 1 was expanded . . . to emphasize ‘the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.’”). 32
Lawyers should work together. 9th Cir. D.F. v. Sikorsky Aircraft Corp., 2016 WL 3360515, at *7 (S.D. Cal. June 13, 2016) (in light of thirdparty’s cooperation and good-faith attempts to provide requested information, court declined to require submission of formal privilege log or affidavit evidence to support privilege claim); Roberts v. Clark County Sch. Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016) (Chief Justice Robert’s Year-End report stated that lawyers representing adverse parties “have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes”). 10th Cir. Digital Ally, Inc. v. Util. Assocs., 2016 WL 1535979, at *2 (D. Kan. Apr. 15, 2016) (parties “engaged in discussions to resolve the issues of whether the information sought was, in fact, responsive to the previous discovery and whether Defendant was required to produce it. Those communications between the parties led to resolution of six categories of requests”). 33 Burden on party seeking more than presumptive number of depositions. Williams v. Am. Int'l Grp., Inc., 2016 WL 2747020, at *1 (M.D. Ala. May 2, 2016) (“party seeking to exceed the presumptive number of depositions must make a ‘particularized showing of why the discovery is necessary’” and “address Rule 26(b)(1)’s proportionality analysis”). Court’s failure to reference proportionality. 1st Cir. Ferring Pharms. Inc. v. Braintree Labs., Inc., 2016 WL 829890, at *7 (D. Mass. Feb. 29, 2016) (failure of judge to “expressly reference proportionality in her ruling does not render her ruling contrary to law”). 2d Cir. Patient A v. Vt. Agency of Human Servs., 2016 WL 880036, at *3 (D. Vt. Mar. 1, 2016) (“[c]ourt is not obligated to make formal and explicit findings regarding each of the[se] factors,” (quoting Meeker v. Life Care Ctrs. of Am., Inc., 2015 WL 7882695, at *3 (D. Colo. Dec. 4, 2015)). 3d Cir. CDK Glob., LLC v. Tulley Auto. Grp., Inc., 2016 WL 1718100, at *8 (D.N.J. Apr. 29, 2016) (district judge rejected plaintiff’s motion that magistrate judge failed to consider proportionality factors in denying discovery request). 34
35
No priority among proportionality factors. 3d Cir. Capetillo v. Primecare Med., Inc., 2016 WL 3551625, at *2 (E.D. Pa. June 28, 2016) ((“no single factor is designed to outweigh the other factors in determining whether the discovery sought is proportional”) (quoting Bell v. Reading Hosp., 2016 WL 162991, at *2 (E.D. Pa. Jan. 14, 2016)). 36
Requesting party does not have responsibility to make advance showing of proportionality.
30
2d Cir. State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015) (Committee Note to 2015 amendment explains that rule “does not place on the party seeking discovery the burden of addressing all proportionality considerations”). 5th Cir. Hightower v. Grp. 1 Auto., Inc., 2016 WL 3430569, at *3 (E.D. La. June 22, 2016) (considering plaintiff’s argument, citing Duke Law Proportionality Guidelines and Practices, Guideline 2(F), that there is no requirement to make advance showing of proportionality). 37
Boilerplate objections insufficient. 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *7 (D.S.D. June 3, 2016) (“[B]oilerplate ‘general objections’ fail to preserve any valid objection at all because they are not specific to a particular discovery request”); see also Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247, at *5 (D.S.D. Feb. 26, 2016) (“Amended Rule 34(b) now prohibits boilerplate objections”). 9th Cir. Gibson v. SDCC, 2016 WL 845308, at *6 (D. Nev. Mar. 2, 2016) (boilerplate objections insufficient to show discovery should not be allowed). Cf. 3d Cir. Haines v. Cherian, 2016 WL 831946, at *7 (M.D. Pa. Feb. 29, 2016) (court sustained boilerplate objection that request was overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence). 38
Objection to discovery- request must be specific. 4th Cir. Raab v. Smith & Nephew, Inc., 2016 WL 2587188, at *4 (S.D. W. Va. May 4, 2016) (defendant failed to provide specific objection to discovery requests). 5th Cir. Allen-Pieroni v. Sw. Corr., LLC, 2016 WL 1750325, at *4 (N.D. Tex. May 2, 2016) (“[p]arty seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information to address”); see also Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784, at *24 (N.D. Tex. Apr. 18, 2016) (same); Holmes v. N. Tex. Health Care Laundry Coop. Ass’n, 2016 WL 1366269, at *5 (N.D. Tex. Apr. 6, 2016) (party resisting discovery “bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b)”); Robinson v. Dallas County Cmty. College Dist., 2016 WL 1273900, at *3 (N.D. Tex. Feb.18, 2016) (“party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable”). 8th Cir. Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247, at *5 (D.S.D. Feb. 26, 2016) (objecting party must “state with specificity the grounds for objecting, including the reasons” and “whether any responsive materials are being withheld”). 10th Cir. N.U. v. Wal-Mart Stores, Inc., 2016 WL 3654759, at *2 (D. Kan. July 8, 2016) (granting plaintiff’s motion to compel in part because defendant relied on “conclusory assertions that the scope of the requests [was] too broad without adequately demonstrating that responding to the requests would pose an undue burden or that the scope of the requests encompasse[d] irrelevant information”); see also Digital Ally, Inc. v. Util. Assocs., 2016 WL 1535979, at *4 (D. Kan. Apr. 15, 2016) (court overruled defendant’s objections to discovery requests because defendant failed to expound upon objections to discovery’s proportionality and relevance); Fish v. Kobach, 2016 WL 893787, at *1 (D. Kan. Mar. 8, 2016) (“[o]bjections based on undue burden must be clearly supported by an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request”). 39
Technology can affect proportionality analysis. 9th Cir. Bank of Am., N.A. v. Auburn & Bradford at Providence Homeowners' Ass'n, __ WL __ (D. Nev. Aug. 1, 2016) (motion for protective order granted, requiring Rule 30(b)(6) deposition to be video-conferenced in Dallas, location of corporate designees, to avoid unnecessary expense). 40
Prioritization of discovery. Loop AI Labs Inc v. Gatti, 2016 WL 1273914, at *1 (N.D. Cal. Feb. 5, 2016) (court ordered parties to “prioritize determining what can be provided without controversy first, and then produce that material expeditiously, rather than using formalistic discovery disputes and objections at the margins as an excuse to delay any production”). 41
Ordering parties to meet-and-confer.
31
9th Cir. Timothy v. Oneida Cnty., 2016 WL 2910270, at *5 (D. Idaho May 18, 2016) (court “expect[ed] counsel to meet immediately and confer in good faith to identify a limited number of examples where the parties disagree as to whether certain discovery is or is not relevant and proportional to the needs of the case”); see also Bank of Am., N.A. v. Sfr Invs. Pool 1 LLC, 2016 WL 2843802, at *1 (D. Nev. May 12, 2016) (court ordered parties to meet and confer to discuss whether defendant could seek “supplementation of . . . written responses, conduct a follow-up Rule 30(b)(6) deposition, or possibly both”); FTC v. DIRECTV, Inc., 2016 WL 1741137, at *2 (N.D. Cal. May 3, 2016) (court ordered parties to meet-and-confer to determine if they could agree on narrower production). 42
Chief Justice Roberts urges greater judicial-case management. 6th Cir. Waters v. Drake, 2016 WL 4264350 (S.D. Ohio Aug. 12, 2016) (agreeing with Chief Justice’s report, “court believes that implementation of the new discovery rules will require improved case management by district judges, a culture of cooperation among lawyers, and active and early involvement by judges to fashion discovery that is proportional to the needs of the case”). 7th Cir. Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 2016 WL 1162553, at *4 (S.D. Ind. Mar. 24, 2016) (amendments designed to emphasize judicial management of discovery process, “especially for those cases in which the parties do not themselves effectively manage discovery”). 8th Cir. Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247, at *4 (D.S.D. Feb. 26, 2016) (Chief Justice Robert’s Year-End report on the federal judiciary addresses 2015 amendments). 9th Cir. Roberts v. Clark County Sch. Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016) (as explained by Chief Justice Roberts in his Year-End Report, amendments “may not look like a big deal at first glance, but they are.” He went on to say that accomplishing the amendments’ goals will only occur “if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change”); see also Gibson v. SDCC, 2016 WL 845308, at *4 (D. Nev. Mar. 2, 2016) (“Chief Justice Roberts asked federal judges [in his Year-End report] ‘to take on a stewardship role, managing their cases from the onset rather than allowing parties alone to dictate the scope of discovery’ and to actively engage in case management to ‘identify the critical issues, determine the appropriate breadth of discovery, and curtail dilatory tactics, gamesmanship, and procedural posturing’”). 10th Cir. XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171, at *18 (D.N.M. Apr. 1, 2016) (Chief Justice Roberts explained that proportionality “assessment may, as a practical matter, require ‘judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information’”). D.C. Cir. United States ex rel. Shamesh v. Ca., Inc., 2016 WL 74394, at *7 (D.D.C. Jan. 6, 2016) (Rule 26 proportionality factors “‘encourage judges to be more aggressive in identifying and discouraging discovery overuse and to make proportionality considerations unavoidable’”). 43
Court and parties share responsibility for ensuring discovery is proportional. 7th Cir. Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 2016 WL 1162553, at *4 (S.D. Ind. Mar. 24, 2016) (courts and parties share responsibility for applying proportionality requirements to discovery requests). 9th Cir. Salazar v. McDonald Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016) (“[u]nder the Court’s reading, the revised rule places a shared responsibility on all parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts”); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at *4 (N.D. Cal. Feb. 4, 2016) (“parties and the court have a collective responsibility to consider proportionality of all discovery and consider it in resolving discovery disputes”). 44
Lawyers should rely on common-sense concept of proportionality. Roberts v. Clark County Sch. Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016) (Chief Justice Robert’s Year-End report said that “fundamental principle of amended Rule 26(b)(1) is that ‘lawyers must size and shape their discovery requests to the requisites of the case’”). 45
Court should consider proportionality in absence of motion. 5th Cir. Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784, at *23 (N.D. Tex. Apr. 18, 2016) (court must consider proportionality in absence of motion); see also Harrison v. Wells Fargo Bank, N.A., 2016 WL 1392332, at *4 (N.D. Tex. Apr. 8, 2016) (same); Holmes v. N. Tex. Health Care Laundry Coop. Ass’n, 2016 WL 1366269, at *5 (N.D. Tex. Apr. 6, 2016) (same); Areizaga v. ADW Corp., 2016 WL 1305065, at *4 (N.D. Tex. Apr. 4, 2016) (same); Curtis v. Metro. Life Ins. Co., 2016 WL 687164, at *3 (N.D. Tex. Feb. 19, 2016) (same).
32
7th Cir. Arcelormittal Ind. Harbor LLC, v. Amex Nooter, LLC, 2016 WL 4077154 (N.D. Ind. July 8, 2016) (“[c]ourt's consideration of the controlling, applicable Federal Rule of Civil Procedure on the issue directly before the Court does not constitute making ‘a decision outside the adversarial issues presented by the parties’”). 10th Cir. Rowan v. Sunflower Elec. Power Corp., 2016 WL 2772210, at *4 (D. Kan. May 13, 2016) (even if parties do not mention proportionality, court has “obligation to limit the frequency or extent of discovery” where, e.g., it is disproportional); see also Rowan v. Sunflower Elec. Power Corp., 2016 WL 3087810, at *3 (D. Kan. June 2, 2016) (same); Navajo Nation Human Rights Comm'n v. San Juan Cnty., 2016 WL 3079740, at *4 (D. Utah May 31, 2016) (same). Cf. 11th Cir. City of Jacksonville v. Shoppes of Lakeside, Inc., 2016 WL 3447383, at *4 n.8 (M.D. Fla. June 23, 2016) (parties did not address proportionality and court found no reason to limit discovery on its own based on proportionality). 46
Establishing ESI-production protocols. 9th Cir. Martinelli v. Johnson & Johnson, 2016 WL 1458109, at *1 (E.D. Cal. Apr. 13, 2016) (court established protocols to “facilitate the just, speedy, and inexpensive completion of discovery of ESI and hardcopy documents and to promote, whenever possible, the early resolution of disputes, including any disputes pertaining to scope or costs regarding the discovery of ESI without Court intervention”). 47
Court should communicate its availability to resolve discovery disputes. 9th Cir. In re AutoZone, Inc., 2016 WL 4136520 (N.D. Cal. May 16, 2016) (court stated directed parties to set status conference if parties were unable to come to a resolution); see also Timothy v. Oneida Cnty., 2016 WL 2910270, at *5 (D. Idaho May 18, 2016) (court explained that it would be “available for a short conference with counsel in an effort to create more meaningful guidelines” after parties conferred on discovery disputes). 48
Approaches to timely and efficiently resolving discovery disputes. 3d Cir. Vay v. Huston, 2016 WL 1408116, at *5 (W.D. Pa. Apr. 11, 2016) (court gave parties “myriad opportunities” to “meet and confer and resolve [discovery disputes] amicably”). 6th Cir. Waters v. Drake, __ WL __ (S.D. Ohio Aug. 12, 2016) (court lists tools to implement proportionality amendments, including: “case management conferences early in the litigation; requiring parties to submit joint discovery plans; the judge being available to timely resolve disputes; regular discovery conferences or hearings; stays of discovery to resolve pure legal issues; the use of affidavits to determine whether more costly avenues of discovery, such as depositions, would be justified; and the rolling submission of information produced during discovery to the court so that it can better evaluate the need for additional discovery in light of the discovered facts); see also Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *7 (S.D. Oh. Dec. 9, 2015) (court urged parties to “engage in further cooperate dialogue in an effort to come to an agreement regarding proportional discovery”). 7th Cir. Amarei v. City of Chi., 2016 WL 3693425, at *1, n.1 (N.D. Ill. July 12, 2016) (court lamented that discovery disputes resolved by mutual party consent at court hearing could have been resolved before hearing if the parties had held proper meet-and-confer meeting). 9th Cir. 24/7 Customer, Inc. v. Liveperson, Inc., 2016 WL 4054884, at *3 (N.D. Cal. July 29, 2016) (court denied request to compel response to interrogatory on grounds that response was premature because “benefit is not only minimal, but is surely outweighed by the burden imposed by responding to 122 claims when the claims are in the process of being whittled down”). 49
Face-to-face discussions with opposing counsel better than email exchanges. 7th Cir. Infowhyse GmbH v. Fleetwood Grp., 2016 WL 4063168, at * (N.D. Ill. July 29, 2016) (local rule requires parties to “make ‘good faith attempts to resolve differences’ over discovery issues through ‘consultation in person or by telephone’” for Rule 26(f) meet-and-confer purposes).
“Threat” of unannounced participation by judge in Rule 26(f) meet-and–confer employed as prophylactic case-management technique to lessen frequency of lawyer disputes. Loop AI Labs Inc v. Gatti, 2016 WL 1273914, at *1 (N.D. Cal. Feb. 5, 2016) (parties ordered to “provide the Court . . . dial-in information and an agenda for the standing meet-and-confer teleconference 24 hours before each call” so that “Court may join these calls at any time without notice to monitor the parties' conduct”). 50
33
51
Targeted discovery. 2d Cir. Sibley v. Choice Hotels Int’l, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (court defined disputed issues and provided for “limited targeted discovery” that was “proportional to the needs of the case”). 5th Cir. ING Bank N.V. v. M/V Portland, 2016 WL 3365426, at *10 (M.D. La. June 16, 2016) (granting motion to compel disclosures limited to determining jurisdiction where party failed to produce evidence that discovery would be unnecessarily burdensome or futile). 9th Cir. Oracle Am., Inc. v. Google, Inc., 2015 WL 7775243, at *2 (N.D. Cal. Dec. 3, 2015) (because parties represented that they needed “limited targeted discovery” and failed to address proportionality factors, court allowed plaintiff to choose ten additional custodians from its original list of 22 custodians to search for relevant information); see also O’Connor v. Uber Techs., 2016 WL 107461, at *4 (N.D. Cal. Jan. 11, 2016) (court denied defendant’s overly broad discovery request, noting however, that defendant would have been entitled to targeted discovery). 52
Identifying discoverable information available at beginning of case. 6th Cir. Waters v. Drake, 2016 WL 4264350 (S.D. Ohio Aug. 12, 2016) (“adoption of certain protocols or measures will advance” discovery amendments, including “rolling submission of information produced during discovery to the court so that it can better evaluate the need for additional discovery in light of the discovered facts”). 8th Cir. Design Basics LLC v. Ahmann Design, Inc., 2016 WL 4251076 (N.D. Iowa Aug. 10, 2016) (before permitting additional discovery, plaintiff limited to eight-hour inspection of defendant’s paper files in banker boxes, containing 1,100 custom home-design plans over 23-year period, for evidence that defendant had engaged in copyright infringement); see also Meeker v. Life Care Ctrs. Of Am., 2016 WL 1403335, at *7 (D. Colo. Apr. 11, 2016) (court explained that had defendant identified information available at beginning of case, “the court could have used its judicial resources expended in the informal discovery conferences discussing and evaluating concrete facts about the burdens and benefits of the requested discovery, instead of generalities”). 53
Court may order focused discovery.
5th Cir. Hahn v. Hunt, 2016 WL 1587405, at *3 (E.D. La. Apr. 20, 2016) (court limited discoverable information from third party, including information from his deposition, to materials relevant to disputed issues). 6th Cir. Arthur J. Gallagher & Co. v. Anthony, 2016 WL 4076819 (N.D. Ohio June 22, 2016) (limiting scope of subpoena for production of documents from third party); see also Wilmington Trust Co. v. AEP Generating Co., 2016 WL 860693, at *3 (S.D. Ohio Mar. 7, 2016) (court ordered defendants “to search the records of the four persons they believe to be the most likely to have such records”). 7th Cir. Robinson v. Gateway Tech. Coll., 2016 WL 344959, at *4 (E.D. Wis. Jan. 26, 2016) (“[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable”). 8th Cir. In re Fluoroquinolone Prods. Liab. Litig., 2016 WL 4045414, at *1 (D. Minn. July 20, 2016) (court limited search in MDL action to existing databases and central repositories, but left open possibility of searching individual custodial files “if the information available in these structured databases turns out to be insufficient”). 10th Cir. Meeker v. Life Care Ctrs. Of Am., 2016 WL 1403335, at *2 (D. Colo. Apr. 11, 2016) (court ordered defendants to search for emails using list of relevant search terms). 54
Early focused discovery may make full discovery request unnecessary. 8th Cir. Schultz v. Sentinel Ins. Co., 2016 WL 3149686, at *12 (D.S.D. June 3, 2016) (court compels search of insurance claim file database to retrieve claims “first made within the last ten years” in lieu of broader request). 9th Cir. Wide Voice, LLC v. Sprint Commc’ns. Co. L.P., 2016 WL 155031, at *2 (D. Nev. Jan. 12, 2016) (“[t]he parties and court should consider sequencing discovery to focus on those issues with the greatest likelihood to resolve the case, and the biggest bang-for the buck at the outset, with more discovery, later, as the case deserves”) (quoting Laurence Pulgram, ABA). 55
Court may order random sampling. FTC v. Directtv, Inc., 2016 WL 3351945, at *2 (N.D. Cal. June 9, 2016) (finding that random sampling of electronic documents to identify relevant materials early in discovery process “would achieve Rule 26’s demand for proportionality”).
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56
Defendant requested targeted discovery. LightSquared, Inc. v. Deere & Co., 2015 WL 8675377, at *2 (S.D.N.Y. Dec. 10, 2015) (defendants asked court to order “initial, targeted discovery” concerning one element of cause of action). 57
Court may order sequenced discovery. 6th Cir. Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548, at *7 (S.D. Oh. Dec. 9, 2015) (court scheduled discovery conference to discuss whether discovery would proceed in phases). 9th Cir. Wide Voice, LLC v. Sprint Commc’ns. Co. L.P., 2016 WL 155031, at *2 (D. Nev. Jan. 12, 2016) (court ordered sequenced discovery to focus on issues that are most likely to resolve case). 58
Deposing same individual twice. 7th Cir. Babjak v. Arcelormittal USA, LLC, 2016 WL 4191050 (N.D. Ind. Aug. 9, 2016) proposed deposition of individual under Rule 30(b)(6) after being deposed as fact witness was not duplicative and did not violate Rule 26 proportionality requirements “because depositions given by individuals on their own behalf and depositions given by organizations’ designees are qualitatively different”). 9th Cir. Salazar v. McDonald Corp., 2016 WL 736213, at *4 (N.D. Cal. Feb. 25, 2016) (court denied request for second deposition because it was made too late in litigation, acknowledging that “second deposition may have made sense months ago”); see also Cisco Sys. V. Arista Networks, Inc., 2016 632000, at *2 (N.D. Cal. Feb. 17, 2016) (court denied request to depose witnesses exceeding ten permitted by rule because defendant failed to show particularized need). 10th Cir. Merlin v. Crawford, 2016 WL 814580, at *3 (D. Colo. Mar. 2, 2016) (court denied defendants’ motion to depose non-party witnesses second time so as to videotape their testimony for use at trial because burden outweighed likely benefits). 59
Preference for pre-motion conference over motion practice. 2d Cir. Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *3-7 (S.D.N.Y. Feb. 16, 2016) (court held multiple discovery conferences with parties to resolve discovery disputes). 3d Cir. CDK Glob., LLC v. Tulley Auto. Grp., Inc., 2016 WL 1718100, at *2 (D.N.J. Apr. 29, 2016) (magistrate judge held telephone conference on quashing subpoena seeking discovery); Vay v. Huston, 2016 WL 1408116, at *10 (W.D. Pa. Apr. 11, 2016) (lawyers’ “reliance on email communications is unavailing,” as substitute for conferences under local practices); see also Bell v. Reading Hosp., 2016 WL 16299, at *1 (E.D. Pa. Jan. 14, 2016) (court held telephone discovery conference). 5th Cir. InforMD, LLC v. DocRX, Inc., 2016 WL 2343854, at *2 (M.D. La. May 3, 2016) (court held in-court status conference to consider discovery issues); see also Krantz v. State Farm Fire & Cas. Co., 2016 WL 320148, at *1 (M.D. La. Jan. 25, 2016) (parties held discovery conference). 8th Cir. Perez v. KDP Hosp., LLC, 2016 WL 2746926, at *1 (W.D. Mo. May 6, 2016) (court held telephone conference to hear argument on disputed discovery issues). 9th Cir. Wichansky v. Zowine, 2016 U.S. Dist. LEXIS 37065, at 3 (D. Ariz. March 22, 2016) (“The Court, which seeks to avoid delay and expense by hearing discovery disputes in telephone conferences without the filing of motions (allowing expedited briefing where needed), has held 10 separate discovery dispute conference calls with parties.”). 10th Cir. Meeker v. Life Care Ctrs. Of Am., 2016 WL 1403335, at *7 (D. Colo. Apr. 11, 2016) (court held several informal discovery conferences). Cf. 5th Cir. Crawfish Producers Ass’n- W. v. Mallard Basin, Inc., 2015 WL 8074260, at *3 (W.D. La. Dec. 4, 2015) (court ordered that “all proposed specific discovery requests not agreed to by the Defendants shall first be presented to the Magistrate Judge with a request and justification for the allowance of the discovery.” Defendants had not followed practice ordered by judge). 60 Pre-motion conference informal letter in lieu of motion and brief. 3d Cir. Bell v. Reading Hosp., 2016 WL 16299, at *1 (E.D. Pa. Jan. 14, 2016) (plaintiffs submitted “informal motion to compel”). 9th Cir. Loop AI Labs Inc v. Gatti, 2016 WL 1273914, at *1 (N.D. Cal. Feb. 5, 2016) (court ordered parties to submit briefs of “no more than 5 pages regarding the Court's authority to require the parties to bear the cost of a
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discovery Special Master absent the parties' agreement to do so”); Salazar v. McDonald Corp., 2016 WL 736213, at *1 (N.D. Cal. Feb. 25, 2016) (parties filed joint letter addressing failure to respond to discovery requests). 61
Alternative discovery tools may be less expensive. 4th Cir. Brown v. Mountainview Cutters, LLC, 2016 WL 3045349, at *4 (W.D. Va. May 27, 2016) (court quashed defendant’s subpoena duces tecum as being overly broad and instead ordered plaintiff to produce answers to interrogatories, which was “the least burdensome source” for information). 8th Cir. Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513, at *5 (W.D. Mo. May 9, 2016) (party ordered to respond to interrogatories in lieu of producing documents, which it claimed would be burdensome).9th Cir. Ballentine v. Las Vegas Metro. Police Dep't, 2016 WL 2743504, at *7 (D. Nev. May 9, 2016) (“[w]here responsive information can be provided more accurately and with less burden through one method of discovery, that method should be used”). 10th Cir. Hinzo v. N.M. Corr. Dep't, 2016 WL 3156071, at *4 (D.N.M. May 19, 2016) (court determined that plaintiff’s request to interview prison staff and inmates was acceptable method of gathering factual information to be used in forming and offering an expert opinion” in lieu of depositions); Cf. 9th Cir. Gilbert v. Money Mut., LLC, 2016 WL 3196605, at *7 (N.D. Cal. June 9, 2016) (denying motion to depose attorney only where party did not establish that discovery had not, or could not, be obtained by other means). 10th Cir. Fasesin v. Henry Indus., 2016 WL 3654740, at *5 (D. Kan. July 8, 2016) (ordering parties to obtain free tax-return transcripts instead of requested completed tax returns because of cost concerns). 62
Party must state if documents being withheld. 8th Cir. Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247, at *5 (D.S.D. Feb. 26, 2016)(objecting party must “state with specificity the grounds for objecting, including the reasons” and “whether any responsive materials are being withheld”). 9th Cir. Brown v. Dobler, 2015 WL 9581414, at *4 (D. Idaho Dec. 29, 2015) (party must state if there are documents withheld because of objections to discovery requests). 10th Cir. Echon v. Sackett, 2016 WL 943485, at *4 (D. Colo. Jan. 27, 2016) (party must state if there are documents withheld because of objections to discovery requests). 63
Court may order cost-shifting. 4th Cir. Ashmore v. Allied Energy, Inc. 2016 WL 301169, at *2 (D. S.C. Jan. 25, 2016) (court may order costshifting under Rule 26(c)). 7th Cir. Knauf Insulation, LLC v. Johns Manville Corp., 2015 WL 7089725, at *3 (S.D. Ind. Nov. 13, 2015) (court ordered plaintiff to bear costs of responding to discovery request from 38 email custodians if search did not yield at least 500 relevant documents). 10th Cir. Navajo Nation Human Rights Comm'n v. San Juan Cnty., 2016 WL 3079740, at *4 (D. Utah May 31, 2016) (court ordered plaintiffs to bear cost of expedited document discovery because information was available from other less expensive sources, such as previously provided e-mail responses). Cf. 11th Cir. Graham & Co. v. Liberty Mut. Fire Ins. Co., 2016 WL 1319697, at *11 (N.D. Ala. Apr. 5, 2016) (court refused to order cost-shifting and “defer[ed] to the parties to work out payment of complying with discovery costs”). 64
Presumption that responding party bears costs of complying with discovery requests. 4th Cir. Ashmore v. Allied Energy, Inc. 2016 WL 301169, at *2 (D. S.C. Jan. 25, 2016) (“[i]n determining whether to shift the costs of discovery to the requesting party, factors to consider include: (1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefit to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.”). 7th Cir. Knauf Insulation, LLC v. Johns Manville Corp., 2015 WL 7089725, at *3 (S.D. Ind. Nov. 13, 2015) (“presumption is that the responding party pays for discovery requests”).
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8th Cir. Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513, at *5 (W.D. Mo. May 9, 2016) (because of its interest in keeping its computer system secret, defendant was ordered to bear “cost of doing any additional programming to pull out the information required by the [plaintiff’s] interrogatories”). 64
Technology assisted review. 2d Cir. Hyles v. New York City, 2016 WL 4077114, at *3 (S.D.N.Y. Aug. 1, 2016) (although court believes that TAR “is the best and most efficient search tool” and that “there may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR,” it declined to compel defendant to use it instead of key-word searching
TABLE OF CASES 1st Circuit Cont’l W. Insur. Co. v. Opechee Constr. Corp., 2016 WL 865232 (D.N.H. Mar. 2, 2016) (DiClerico, Jr., D.J.) Doe v. Trs. of Boston Coll., 2015 WL 9048225 (D. Mass. Dec. 16, 2015) (Bowler, M.J.) Ferring Pharms. Inc. v. Braintree Labs., Inc., 2016 WL 829890 (D. Mass. Feb. 29, 2016) (Gorton, D.J.) Green v. Cosby, 2015 WL 9594287 (C.D. Mass. Dec. 31, 2015) (Hennessey, M.J.) Wal-Mart P.R., Inc. v. Zaragoza-Gomez, 2016 WL 259704 (D.P.R. Jan. 21, 2016) (Fuste, D.J.) 2d Circuit A.M. v. Am. Sch. for the Deaf, 2016 WL 1117363 (D. Conn. Mar. 22, 2016) (Margolis, M.J.) Am. Fed'n of Musicians v. Sony Music Entm't, Inc., 2016 WL 2609307 (S.D.N.Y. Apr. 29, 2016) (Moses, M.J.) Bagley v. Yale, 2015 WL 8750901 (D. Conn. Dec. 14, 2015) (Haight, D.J.) Blodgett v. Siemens Indus., 2016 WL 4203490 (E.D.N.Y. Aug. 9, 2016) (Tomlinson, M.J.) Creighton v. City of N.Y., 2016 WL 1178648 (S.D.N.Y. Mar. 17, 2016) (Freeman, M.J.) Henry v. Morgan’s Hotel Grp., Inc., 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) (Cott, M.J.) Hyles v. New York City, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) (Peck, M.J.) Knight v. Local 25 IBEW, __ WL __ (E.D.N.Y. Mar. 31, 2016) (Thomlinson, M.J.) Laydon v. Mizuho, Ltd., 2016 WL 1718387 (S.D.N.Y. Apr. 29, 2016) (Pitman, M.J.) LightSquared, Inc. v. Deere & Co., 2015 WL 8675377 (S.D.N.Y. Dec. 10, 2015) (Francis, IV, M.J.) Patient A v. Vt. Agency of Human Servs., 2016 WL 880036 (D. Vt. Mar. 1, 2016) (Crawford, D.J.) Robertson v. People Magazine, 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) (Crotty, D.J.) Sibley v. Choice Hotels Int’l, 2015 WL 9413101 (E.D.N.Y. Dec. 22, 2015) (Shields, M.J.) State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037 (S.D.N.Y. Dec. 3, 2015) (Francis, IV, M.J.) Torcasio v. New Caanan Bd. of Educ., 2016 WL 299009 (D. Conn. Jan. 25, 2016) (Merriam, M.J.) Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386 (S.D.N.Y. Feb. 16, 2016) (Pitman, M.J.) 3d Circuit Bell v. Reading Hosp., 2016 WL 162991 (E.D. Pa. Jan. 14, 2016) (Perkin, M.J.) Capetillo v. Primecare Med., Inc., 2016 WL 3551625 (E.D. Pa. June 28, 2016) (Hey, M.J.) CDK Glob., LLC v. Tulley Auto. Grp., Inc., 2016 WL 1718100 (D.N.J. Apr. 29, 2016) (McNulty, D.J.) Dixon v. Williams, 2016 WL 631356 (M.D. Pa. Feb 17, 2016) (Mehalchick, M.J.) First Niagara Risk Mgmt. v. Folino, 2016 WL 4247654 (E.D. Pa. Aug. 11, 2016) (Dalzell, D.J.) Guerrido-Lopez v. City of Allentown, 2016 WL 1182158 (E.D. Pa. Mar. 28, 2016) (Heffley, M.J.) Haines v. Cherian, 2016 WL 831946 (M.D. Pa. Feb. 29, 2016) (Saporito, Jr., M.J.) In re Riddell Concussion Reduction Litig., 2016 WL 4119807 (D.N.J. July 7, 2016) (Schneider, M.J.) In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 2016 WL 3519618 (E.D. Pa. June 27, 2016) (Goldberg, D.J.) Solid Waster Serv. v. United States, 2016 WL 687182 (E.D. Pa. Feb. 19, 2016) (Jones, II, D.J.) Trask v. Olin Corp., 2016 WL 1255302 (W.D. Pa. Mar. 31, 2016) (Fischer, D.J.) Vay v. Huston, 2016 WL 1408116 (W.D. Pa. Apr. 11, 2016) (Fischer, D.J.) Wertz v. GEA Heat Exchangers Inc., 2015 WL 8959408 (M.D. Pa. Dec. 16, 2015) (Mehalchick, M.J.) 4th Circuit
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Ashmore v. Allied Energy, Inc. 2016 WL 301169 (D. S.C. Jan. 25, 2016) (Childs, D.J.) Brown v. Mountainview Cutters, LLC, 2016 WL 3045349 (W.D. Va. May 27, 2016) (Conrad, D.J.) Dwoskin v. Bank of Am., N.A., 2016 WL 3955932 (D. Md. July 22, 2016) (Blake, D.J.) Eramo v. Rolling Stone, LLC, 2016 WL 304319 (W.D. Va. Jan. 25, 2016) (Conrad, D.J.) Fed. & Guar. Life Ins. Co. v. United Advisory Grp., Inc., 2016 WL 632025 (D. Md. Feb. 17, 2016) (Gallagher, M.J.) Holcombe v. Helena Chem. Co., 2016 WL 2897942 (D.S.C. May 18, 2016) (Duffy, D.J.) In Re American Medical Sys., Inc., 2016 WL 3077904 (S.D. W. Va. May 31, 2016) (Eifert M.J.) In Re NC Swine Farm Nuisance Litig. 2016 WL 3661266 (E.D.N.C. July 1, 2016) (Jones, Jr., M.J.) Moses H. Cone Mem’l Hosp. Operating Corp. v. Conifer Physician Servs., 2016 WL 430494 (M.D.N.C. Feb. 3, 2016) (Webster, M.J.) Raab v. Smith & Nephew, Inc., 2016 WL 2587188 (S.D. W. Va. May 4, 2016) (Eifert, M.J.) Townsend v. Nestle Healthcare Nutrition, Corp., 2016 WL 1629363 (S.D. W. Va. Apr. 22, 2016) (Eifert, M.J.) White v. Sam’s E., Inc., 2016 WL 205494 (S.D. W. Va. Jan. 15, 2016) (Aboulhosn, M.J.) 5th Circuit Allen-Pieroni v. Sw. Corr., LLC, 2016 WL 1750325 (N.D. Tex. May 2, 2016) (Horan, M.J.) Areizaga v. ADW Corp., 2016 WL 1305065 (N.D. Tex. April 4, 2016) (Horan, M.J.) Braud v. Geo Heat Exchangers, 2016 WL 1274558 (M.D. La. Mar. 31, 2016) (Bourgeois, Jr., M.J.) Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. Dec. 7, 2015) (Horan, M.J.) Celanese Corp. v. Clariant Corp., 2016 WL 107457, (N.D. Tex. Mar. 18, 2016) (Horan, M.J.) Cottonham v. Allen, 2016 WL 4035331 (M.D. La. July 25, 2016) (Bourgeois, Jr., M.J.) Crawfish Producers Ass’n- W. v. Mallard Basin, Inc., 2015 WL 8074260 (W.D. La. Dec. 4, 2015) (Hanna, M.J.) Curtis v. Metro. Life Ins. Co., 2016 WL 687164 (N.D. Tex. Feb. 19, 2016) (Horan, M.J.) Duvall v. Bopco, 2016 WL 1268343 (E.D. La. April 1, 2016) (Wilkinson, M.J.) Gondola v. USMD PPM, LLC, 2016 WL 3031852 (N.D. Tex. May 27, 2016) (Horan, M.J.) Hahn v. Hunt, 2016 WL 1587405 (E.D. La. Apr. 20, 2016) (Wilkinson, M.J.) Harrison v. Wells Fargo Bank, N.A., 2016 WL 1392332 (N.D. Tex. Apr. 8, 2016) (Horan, M.J.) Hightower v. Grp. 1 Auto., Inc., 2016 WL 3430569 (E.D. La. June 22, 2016) (Wilkinson, M.J.) Holmes v. N. Tex. Health Care Laundry Coop. Ass’n, 2016 WL 1366269 (N.D. Tex. Apr. 6, 2016) (Horan, M.J.) InforMD, LLC v. DocRX, Inc., 2016 WL 2343854 (M.D. La. May 3, 2016) (Wilder-Doomes, M.J.) ING Bank N.V. v. M/V Portland, 2016 WL 3365426 (M.D. La. June 16, 2016) (DeGravelles, D.J.) In re RSM Prod. Corp., 2016 WL 3477244 (S.D. Tex. June 27, 2016) (Miller, D.J.) In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 313 F.R.D. 32 (E.D. La. 2016) (Fallon, D.J.) Krantz v. State Farm Fire & Cas. Co., 2016 WL 320148 (M.D. La. Jan. 25, 2016) (Bourgeois, Jr., M.J.) McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 98603 (N.D. Tex. Jan. 8, 2016) (Horan, M.J.) McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 2609994 (N.D. Tex. May 6, 2016) (Horan, M.J.) McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 2016 WL 3033544 (N.D. Tex. May 25, 2016) (Horan, M.J.) Mir v. L-3 Communs. Integrated Sys., L.P., 2016 WL 3959009 (N.D. Tex. July 22, 2016) (Horan, M.J.) Nguyen v. Versacom, LLC, 2015 WL 8316436 (N.D. Tex. Dec. 9, 2015) (Horan, M.J.) Odeh v. City of Baton Rouge/Parish of E. Baton Rouge, 2016 WL 1069663 (M.D. La. Mar. 17, 2016) (Bourgeois, Jr., M.J.) Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) (Horan, M.J.) Richmond v. SW Closeouts, Inc., 2016 WL 3090672 (N.D. Tex. June 2, 2016) (Horan, M.J.) Robinson v. Dallas County Cmty. College Dist., 2016 WL 1273900 (N.D. Tex. Feb.18, 2016) (Horan, M.J.) Williams v. United States Envtl. Servs., LLC, 2016 WL 617447 (M.D. La. Feb. 16, 2016) (Bourgeois, Jr., M.J.) 6th Circuit Albritton v. CVS Caremark Corp., 2016 WL 3580790 (W.D. Ky. June 28, 2016) (Stivers, D.J.) Arthur J. Gallagher & Co. v. Anthony, 2016 WL 4076819 (N.D. Ohio June 22, 2016) (Gwin, D.J.) Arthur J. Gallagher & Co. v. Anthony, 2016 WL 2990961 (N.D. Ohio May 24, 2016) (Gwin, D.J.) Bentley v. Highlands Hosp. Corp. 2016 WL 762686 (E.D. Ky. Feb. 23, 2016) (Atkins, M.J.) Hadfield v. Newpage Corp., 2016 WL 427924 (W.D. Ky. Feb. 3, 2016) (Russell, D.J.) Kelley v. Apria Healthcare, Inc., 2016 WL 737919 (E.D. Tenn. Feb. 2, 2016) (Guyton, M.J.) Marsden v. Nationwide Biweekly Admin., Inc., 2016 WL 471364 (S.D. Oh. Feb. 8, 2016) (Ovington, M.J.)
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Rui He v. Rom, 2016 WL 909405 (N.D. Ohio Mar. 10, 2016) (Gwin, D.J.) Siriano v. Goodman Mfg. Co., L.P., 2015 WL 8259548 (S.D. Oh. Dec. 9, 2015) (Deavers, M.J.) State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 2016 WL 3450834 (E.D. Mich. May 11, 2016) (Goldsmith, D.J.) Quality Mfg. Sys. v. R/X Automation Solutions, 2016 WL 1244697 (M.D. Tenn. Mar. 30, 2016) (Bryant, M.J.) Waters v. Drake, __ WL __ (S.D. Ohio Aug. 12, 2016) (Graham, D.J.) Wilmington Trust Co. v. AEP Generating Co., 2016 WL 860693 (S.D. Ohio Mar. 7, 2016) (Kemp, M.J.) 7th Circuit Amarei v. City of Chi., 2016 WL 3693425 (N.D. Ill. July 12, 2016) (Weisman, M.J.) Arcelormittal Ind. Harbor LLC v. Amex Nooter, LLC, 2016 WL 4077154 N.D. Ind. July 8, 2016) (Cherry, M.J.) ArcelorMittal Ind. Harbor LLC v. Amex Nooter, LLC, 2016 WL 614144 (D. Ind. Feb. 16, 2016) (Cherry, M.J.) AVNET, Inc. v. MOTIO, Inc., 2016 WL 3365430 (N.D. Ill. June 15, 2016) (Schenkier, M.J.) Babjak v. Arcelormittal USA, LLC, 2016 WL 4191050 (N.D. Ind. Aug. 9, 2016) (Cherry, M.J.) Design Basics LLC v. Best Built Inc., 2016 WL 1060253 (E.D. Wis. Mar. 15, 2016) (Griesbach, D.J.) Elliott v. Superior Pool Prods., LLC, 2016 WL 29243 (C.D. Ill. Jan. 4, 2016) (Schanzle-Haskins, M.J.) Garner v. St. Clair Co., 2016 WL 146691 (S.D. Ill. Jan. 13, 2016) (Wilkerson, M.J.) Infowhyse Gmbh v. Fleetwood Grp., 2016 WL 4063168 (N.D. Ill. July 29, 2016) (Cole, M.J.) In re Cook Med., 2016 WL 2854169 (S.D. Ind. May 12, 2016) (Baker, M.J.) Knauf Insulation, LLC v. Johns Manville Corp., 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015) (Dinsmore, M.J.) Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 2016 WL 1162553 (S.D. Ind. Mar. 24, 2016) (Lynch, M.J.) Perez v. Mueller, 2016 WL 3360422 (E.D. Wis. May 27, 2016) (Randa, D.J.) Robinson v. Gateway Tech. Coll., 2016 WL 344959 (E.D. Wis. Jan. 26, 2016) (Randa, D.J.) 8th Circuit COR Clearing, LLC v. Calissio Res. Grp., Inc., 2016 WL 2997463 (D. Neb. May 23, 2016) (Strom, D.J.) Design Basics v. Ahmann Design, __ WL __ (N.D. Iowa Aug. 10, 2016) (Scoles, M.J.) Gowan v. Mid-Century Insur. Co., 2016 WL 126746 (D.S.D. Jan. 11, 2016) (Duffy, M.J.) Hodges v. Pfizer, Inc., 2016 WL 1222229 (D. Minn. Mar. 28, 2016) (Montgomery, D.J.) In re Fluoroquinolone Prods. Liab. Litig., 2016 WL 4045414 (D. Minn. July 20, 2016) (Tunheim, D.J.) Leseman, LLC v. Stratasys, Inc., 2016 WL 1117411 (D. Minn. Mar. 22, 2016) (Nelson, D.J.) Labrier v. State Farm Fire & Cas. Co., 2016 WL 2689513 (W.D. Mo. May 9, 2016) (Laughrey, D.J.) Perez v. KDP Hosp., LLC, 2016 WL 2746926 (W.D. Mo. May 6, 2016) (Harpool, D.J.) Schultz v. Sentinel Ins. Co., 2016 WL 3149686 (D.S.D. June 3, 2016) (Duffy, M.J.) Sprint Communs. Co. L.P. v. Crow Creek Sioux Tribal Court, 2016 WL 782247 (D.S.D. Feb. 26, 2016) (Schreier, D.J.) Vallejo v. Amgen, Inc., 2016 WL 2986250 (D. Neb. May 20, 2016) (Camp, D.J.) Zurich Am. Ins. Co. v. Andrew, 2016 WL 2350115 (D. Neb. May 4, 2016) (Gossett, M.J.) 9th Circuit Ballentine v. Las Vegas Metro. Police Dep't, 2016 WL 2743504 (D. Nev. May 9, 2016) (Foley, Jr., M.J.) Bank of Am., N.A. v. Auburn & Bradford at Providence Homeowners' Ass'n, __ WL __ (D. Nev. Aug. 1, 2016) (Koppe, M.J.) Bank of Am., N.A. v. Sfr Invs. Pool 1 LLC, 2016 WL 2843802 (D. Nev. May 12, 2016) (Foley, Jr., M.J.) Brown v. Dobler, 2015 WL 9581414 (D. Idaho Dec. 29, 2015) (Dale, M.J.) ChrisMar Systems v. Cisco Systems, 312 F.R.D. 560 (N.D. Cal. Jan. 12, 2016) (James, M.J.) Cisco Sys. V. Arista Networks, Inc., 2016 632000 (N.D. Cal. Feb. 17, 2016) (Freeman, D.J.) Clymore v. FRA, 2015 WL 7760086 (E.D. Cal. Dec. 2, 2015) (Synder, M.J.) Dao v. Liberty life Assur. Co., 2016 WL 796095 (N.D. Cal. Feb. 23, 2016) (Laporte, M.J.) Deutsche Bank Nat’l Tr. Co. v. SFR Invs. Pool 1, LLC, 2016 WL 3200104 (D. Nev. June 6, 2016) (Ferenbach, M.J.) D.F. v. Sikorsky Aircraft Corp., 2016 WL 3360515 (S.D. Cal. June 13, 2016) (Crawford, M.J.) FTC v. Directv, Inc., 2016 WL 3351945 (N.D. Cal. June 9, 2016) (James, M.J.) FTC v. DIRECTV, Inc., 2016 WL 1741137 (N.D. Cal. May 3, 2016) (James, M.J.) Gibson v. SDCC, 2016 WL 845308 (D. Nev. Mar. 2, 2016) (Leen, M.J.) Gilbert v. Money Mut., LLC, 2016 WL 3196605 (N.D. Cal. June 9, 2016) (Beeler, M.J.) Gilead Scis., Inc. v. Merck & Co., 2016 WL 146574 (N.D. Cal. Jan. 13, 2016) (Grewal, M.J.)
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Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369 (N.D. Cal. Feb. 4, 2016) (Beeler, M.J.) In re AutoZone, Inc., 2016 WL 4136520 (N.D. Cal. May 16, 2016) (Corley, M.J.) Loop AI Labs Inc v. Gatti, 2016 WL 1273914 (N.D. Cal. Feb. 5, 2016) (Gilliam, Jr., D.J.) Martinelli v. Johnson & Johnson, 2016 WL 1458109 (E.D. Cal. Apr. 13, 2016) (England, Jr., D.J.) MicroTechnologies, LLC v. Autonomy, Inc., 2016 WL 1273266 (N.D. Cal. Mar. 14, 2016) (Lloyd, M.J.) Morrison v. Quest Diagnostics Inc., 2016 WL 355120 (D. Nev. Jan. 27, 2016) (Leen, M.J.) O’Connor v. Uber Techs., 2016 WL 107461 (N.D. Cal. Jan. 11, 2016) (Ryu, M.J.) Oracle Am., Inc. v. Google, Inc., 2015 WL 7775243 (N.D. Cal. Dec. 3, 2015) (Ryu, M.J.) Roberts v. Clark County Sch. Dist., 312 F.R.D. 594 (D. Nev. Jan. 11, 2016) (Leen, M.J.) Salazar v. McDonald Corp., 2016 WL 736213 (N.D. Cal. Feb. 25, 2016) (James, M.J.) Santoyo v. Howmedica Osteonics Corp., 2016 WL 2595199 (W.D. Wash. May 5, 2016) (Settle, D.J.) Stoba v. Saveology.com, LLC, 2016 WL 3356796 (S.D. Cal. June 3, 2016) (Stormes, M.J.) Timothy v. Oneida Cnty., 2016 WL 2910270 (D. Idaho May 18, 2016) (Winmill, D.J.) 24/7 Customer, Inc. v. Liveperson, Inc., 2016 WL 4054884 (N.D. Cal. July 29, 2016) (Westmore, M.J.) Van v. Language Line Servs., 2016 WL (N.D. Cal. Mar. 2, 2016) (Lloyd, M.J.) Wichansky v. Zowine, 2016 U.S. Dist. LEXIS 37065 (D. Ariz. March 22, 2016) (Campbell, D.J.) Wide Voice, LLC v. Sprint Commc’ns. Co. L.P., 2016 WL 155031 (D. Nev. Jan. 12, 2016) (Ferenbach, M.J.) Wilson v. Wal-Mart Stores, Inc., 2016 WL 526225 (D. Nev. Feb. 9, 2016) (Ferenbch, M.J.) Wit v. United Behavioral Health, 2016 WL 258604 (N.D. Cal. Jan. 21, 2016) (Spero, M.J.) 10th Circuit Ark. River Power Auth. v. Babcock & Wilson Co., 2016 WL 192269 (D. Colo. Jan. 15, 2016) (Wang, M.J.) Bd. of Comm’rs of Shawnee County v. Daimler Trucks N. Am., LLC, 2015 WL 8664202 (D. Kan. Dec. 11, 2016) (Sebelius, M.J.) Boone v. Tfi Family Servs., Inc., 2016 WL 3124850 (D. Kan. June 3, 2016) (Gale, M.J.) Digital Ally, Inc. v. Util. Assocs., 2016 WL 1535979 (D. Kan. Apr. 15, 2016) (Birzer, M.J.) Echon v. Sackett, 2016 WL 943485 (D. Colo. Jan. 27, 2016) (Wang, M.J.) Fasesin v. Henry Indus., Inc., 2016 WL 3654740 (D. Kan. July 8, 2016) (Birzer, M.J.) Fish v. Kobach, 2016 WL 893787 (D. Kan. Mar. 8, 2016) (O’Hara, M.J.) Hinzo v. N.M. Corr. Dep't, 2016 WL 3156071 (D.N.M. May 19, 2016) (Molzen, M.J.) Meeker v. Life Care Ctrs. Of Am., 2016 WL 1403335 (D. Colo. Apr. 11, 2016) (Wang, M.J.) Merlin v. Crawford, 2016 WL 814580 (D. Colo. Mar. 2, 2016) (Wang, M.J.) Navajo Nation Human Rights Comm'n v. San Juan Cnty., 2016 WL 3079740 (D. Utah May 31, 2016) (Wells, M.J.) N.U. v. Wal-Mart Stores, Inc., 2016 WL 3654759 (D. Kan. July 8, 2016) (Sebelius, M.J.) Pertile v. General Motors, LLC, 2016 WL 1059450 (D. Colo. Mar. 17, 2016) (Wang, M.J.) Rickaby v. Hartford Life & Accident Ins. Co., 2016 WL 1597589 (D. Colo. Apr. 21, 2016) (Wang, M.J.) Rowan v. Sunflower Elec. Power Corp., 2016 WL 3087810 (D. Kan. June 2, 2016) (James, M.J.) Rowan v. Sunflower Elec. Power Corp., 2016 WL 2772210 (D. Kan. May 13, 2016) (James, M.J.) XTO Energy, Inc. v. ATD, LLC, 2016 WL 1730171 (D.N.M. Apr. 1, 2016) (Browning, D.J.) 11th Circuit Bright v. Frix, 2016 WL 1011441 (M.D. Fl. Jan. 22, 2016) (Pizzo, M.J.) City of Jacksonville v. Shoppes of Lakeside, Inc., 2016 WL 3447383 (M.D. Fla. June 23, 2016) (Richardson, M.J.) Graham & Co. v. Liberty Mut. Fire Ins. Co., 2016 WL 1319697 (N.D. Ala. Apr. 5, 2016) (Hancock, J.) Flynn v. Square One Distrib., Inc., 2016 WL 2997673 (M.D. Fla. May 25, 2016) (Smith, M.J.) In re: Subpoena Upon NeJame Law, P.A., 2016 WL 1599831 (M.D. Fla. Apr. 21, 2016) (Smith, M.J.) Hankinson v. R.T.G. Furniture Corp., 2016 WL 1182768 (S.D. Fla. Mar. 28, 2016) (Seltzer, M.J.) Herrera v. Plantation Sweets, Inc., 2016 WL 183058 (S.D. Ga. Jan. 14, 2016) (Smith, M.J.) Hunter v. Corr. Corp. of Am., 2016 WL 943752 (S.D. Ga. Feb. 5, 2016) (Epps, M.J.) Noveshen v. Bridgewater Assocs., __ WL __ (S.D. Fla. Feb. 22, 2016) (Matthewman, M.J.) O’Boyle v. Sweetapple, 2016 WL 492655 (S.D. Fl. Feb. 8, 2016) (Matthewman, M.J. Pilver v. Hillsborough Cnty., 2016 WL 4129282 (M.D. Fla. Aug. 3, 2016) (Sneed, M.J.) Steel Erectors, Inc. v. AIM Steel Int’l, Inc., 312 F.R.D. 673 (S.D. Ga. Jan. 4, 2016) (Smith, M.J.) Williams v. Am. Int'l Grp., Inc., 2016 WL 3456927 (M.D. Ala. June 21, 2016) (Borden, M.J.) Williams v. Am. Int'l Grp., Inc., 2016 WL 2747020 (M.D. Ala. May 2, 2016) (Borden, M.J.)
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D.C. Circuit United States v. All Assets Held at Bank Julius Baer & Co., 2016 WL 3149455 (D.D.C. June 3, 2016) (Harvey, M.J.) United States ex rel. Shamesh v. Ca., Inc., 2016 WL 74394 (D.D.C. Jan. 6, 2016) (Kay, M.J.)
TABLE OF JUDGES 1st Circuit Bowler, M.J.; DiClerico, Jr., D.J.; Fuste, D.J.; Gorton, D.J.; Hennessey, M.J. 2d Circuit Cott, M.J.; Crotty, D.J.; Francis, IV, M.J.; Freeman, M.J.; Haight, J.; Margolis, M.J.; Merriam, M.J.; Moses, M.J.; Peck, M.J.; Pitman, M.J. ; Shields, M.J.; Tomlinson, M.J. 3d Circuit Dalzell, D.J.; Fisher, D.J.; Goldberg, D.J.; Heffley, M.J.; Hey, M.J.; Jones, II, D.J.; McNulty, D.J.; Mehalchick, M.J.; Perkin, M.J.; Saporito, Jr., M.J.; Schneider, M.J.; Walls, D.J. 4th Circuit Aboulhosn, M.J.; Blake, D.J.; Childs, D.J., Conrad, D.J.; Duffy, D.J.; Eifert, M.J.; Gallagher, M.J.; Jones, Jr., M.J.; Webster, M.J.
5th Circuit Bourgeois, Jr., M.J.; DeGravelles, D.J.; Fallon, D.J.; Hanna, M.J.; Horan, M.J.; Miller, D.J.; Wilder-Doomes, M.J.; Wilkinson, M.J. 6th Circuit Atkins, M.J.; Deavers, M.J.; Goldsmith, D.J.; Graham, D.J.; Guyton, M.J ; Gwin, D.J.; Kemp, M.J.; Ovington, C.M.J.; Russell, D.J.; Stivers, D.J. 7th Circuit Baker, M.J.; Cherry, M.J.; Cole, M.J.; Dinsmore, M.J.; Griesbach, D.J.; Lynch, M.J.; Randa, J.; Schanzle-Haskins, M.J.; Schenkier, M.J.; Weisman, M.J.; Wilkerson, M.J. 8th Circuit Camp, D.J.; Duffy, M.J.; Gossett, M.J.; Harpool, D.J.; Laughrey, D.J.; Montgomery, D.J.; Nelson, D.J.; Schreier, D.J.; Scoles, M.J.; Strom, D.J.; Tunheim, D.J. 9th Circuit Beeler, M.J.; Campbell, D.J ; Crawford, M.J.; Dale, M.J.; England, Jr., D.J.; Ferenbach, M.J.; Foley, Jr., M.J.; Freeman, D.J.; Gilliam, Jr., J.; Grewal, M.J.; James, M.J.; Koppe, M.J.; Laporte, M.J.; Leen, M.J.; Lloyd, M.J.; Ryu, M.J.; Settle, D.J.; Spero, M.J.; Stormes, M.J.; Synder, M.J.; Westmore, M.J.; Winmill, D.J. 10th Circuit Birzer, M.J.; Browning, D.J.; Gale, M.J.; James, M.J.; Molzen, M.J.; O’Hara, M.J.; Sebelius, M.J.; Wang, M.J.; Wells, M.J. 11th Circuit Borden, M.J.; Epps, M.J.; Hancock, D.J.; Matthewman, M.J.; Pizzo, M.J.; Richardson, M.J.; Seltzer, M.J.; Smith, M.J.; Sneed, M.J. D.C. Circuit
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Harvey; M.J.; Kay, M.J.
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5
Roberts v. Clark County School District, 312 F.R.D. 594 (2016)
Reprinted with permission of Thomson Reuters.
93 Fed.R.Serv.3d 1182, 327 Ed. Law Rep. 340
Ordered accordingly. 312 F.R.D. 594 United States District Court, D. Nevada. Bradley Roberts, Plaintiff, v. Clark County School District, Defendant. Case No. 2:15-cv-00388-JAD-PAL | Filed 01/11/2016 Synopsis Background: Transgender school police officer, who was born biologically female but who was in process of formally transitioning to male, filed state court suit against school alleging gender discrimination and retaliation, in violation of state and federal law, and asserted state tort claims for negligent selection, training, supervision. and retention. Following removal, school moved to compel officer's responses to discovery and for a qualified protective order to allow it to subpoena officer's medical records directly from providers, and both sides moved for attorney fees.
Holdings: The District Court, Peggy A. Leen, United States Magistrate Judge, held that: [1] production of officer's medical files outlining the state of his genitalia or the intimate details of his transgender transition would not be compelled; [2] request for all medical files was overly broad, despite school's claim that records were needed to defend against emotional distress claim; [3] since school's request for all of officer's personal email addresses and social networking websites was overly broad, court would limit request; [4] officer would be required to produce any documents evidencing his garden-variety emotional distress claim; and [5] neither party was entitled to attorney fees or costs.
Attorneys and Law Firms *597 Jason Maier, Danielle J. Barraza, Maier Gutierrez Ayon, Kathleen J. England, England Law Office, Margaret A. McLetchie, McLetchie Shell LLC, Las Vegas, NV, for Plaintiff. Bruce C. Young, Ethan Thomas, Patrick H. Hicks, Littler Mendelson, PC, Las Vegas, NV, for Defendant.
ORDER PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE Before the court is Defendant's Motion to Compel (Dkt. #57) and request for Qualified Protective Order (Dkt. #60). The court has considered the motions, Plaintiff's Oppositions (Dkt. #75, #76), Defendant's Reply in Support of Motion to Compel Discovery and Responses and Request for Qualified Protective Order (Dkt. #79, #80), and the arguments of counsel at a hearing conducted December 8, 2015. Kathleen J. England appeared on behalf of the Plaintiff, and Bruce Young and Ethan Thomas appeared on behalf of the Defendant.
BACKGROUND I. The Amended Complaint The complaint and amended complaint in this case were filed in state court and removed (Dkt. #1) March 4, 2015. Roberts has asserted claims for gender discrimination, retaliation in violation of state and federal law and a state tort claim for negligent selection, training supervision and/or retention. Plaintiff Bradley Roberts (“Roberts”) is a transgender man currently employed by Defendant Clark County School District (“CCSD”) as a police officer. Amended Complaint ¶ 14. He started as a parttime campus monitor in 1992 and was hired as a school police officer in March 1994. Id. ¶¶ 15–16. He was born biologically female and identified as female until late-2009 when he began formally transitioning to male. Id. ¶ 17. By the beginning of the 2011 school year, he was identifying himself as a male transgender person. Id.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Roberts v. Clark County School District, 312 F.R.D. 594 (2016) 93 Fed.R.Serv.3d 1182, 327 Ed. Law Rep. 340
Since then Roberts has been subjected to harassment and humiliation in his CCSD work place that began when he asked to have his records changed. Id. ¶ 18. Roberts believes CCSD had no policies or procedures in place for his request to be handled in a respectful and dignified manner, or that supervisory or managerial personnel were ignorant of any policies and procedures. Id. Roberts was subjected to inappropriate comments pertaining to his sexuality and experience, and to overly intrusive and unnecessary demands for information about his gender and genitalia by CCSD employees including supervisors and managers. Id. ¶ 19. There were numerous meetings in the workplace in October and November 2011, with CCSD personnel. Id. ¶ 20. Roberts was sometimes given conflicting directions and was told others were complaining about him. Id. ¶ 21. CCSD allowed complaints to continue, did not address them, and demanded that Roberts produce overly intrusive medical and personal documentation. Id. Roberts believed that if he did not comply with the requests he would not be permitted to “function and present himself as male.” Id. CCSD's actions interfered with his ability to properly perform his duties as a police officer and created troublesome situations that were blamed on him. Id. ¶ 22. At one point, Roberts was told he would be required to use the female restroom. Id. To avoid this awkward situation, Roberts was told to avoid and did avoid using any CCSD restroom facilities. Id. For a period of time he was *598 forced to use outside commercial facilities. Id. CCSD's actions resulted in unnecessary disclosure of Roberts' private, personal and/or medical information to his supervisors and co-workers which subjected him to harassment and hostile work environment. Id. ¶ 23. In 2012, CCSD issued or instituted policies and procedures directed at transgender persons. Id. The policies seemed to be targeting Officer Roberts. Id. A memo prohibited CCSD police department employees from using children's restrooms unless prior authorization was secured from the school principal. Id. Officer Roberts was summoned to CCSD police department headquarters and required to sit and read the memo. Id. Roberts is aware of no other CCSD police department employee who was required to do so. Id.
II. CCSD's Motion to Compel/ Request for Qualified Protective Order
CCSD seeks an order compelling Roberts to respond to a first set of interrogatories and first set of requests for production served April 22, 2015. Roberts responded to both sets of requests June 5, 2015, after receiving an extension. CCSD also seeks an order compelling Roberts to respond to a second set of requests for production of documents served August 3, 2015. Roberts served responses to these requests September 16, 2015. Specifically, CCSD seeks to compel Roberts to provide supplemental Responses to the First Set of Requests for Production of Documents Nos. 9, 17, and 19, and Interrogatory Nos. 13, 14 and 16. Request for Production of Documents No. 9 requests copies of all documents which describe or relate to his diagnosis or treatment for any injury or condition for which Roberts seeks compensation from CCSD. Interrogatory No. 13 requests Roberts to identify every healthcare provider who has examined or treated Roberts for the last ten years regarding his gender transition. During the meet-and-confer process, CCSD offered to narrow the time period from 2009 to the present. Interrogatory No. 14 seeks identification of any healthcare provider Roberts consulted or treated for emotional distress damages claimed in the complaint. Interrogatory No. 16 asks Roberts to identify all email addresses and social networking websites. Request for Production of Document No. 17 requests production of all documents including medical records pertaining to any surgeries Roberts has had performed and/or drug or hormone therapy undergone related to gender transition. Request for Production of Document No. 19 requests execution of authorization releases to obtain medical, employment, administrative and tax records. During the meet-and-confer process, and in arguments to the court, defense counsel explained that these requests were calculated to lead to the discovery of relevant evidence for several reasons. First, the discovery would set a timeline of when Roberts actually began to transition, and when various phases of his transition occurred. Second, CCSD seeks to discover if there is evidence of Roberts' alleged emotional distress. Third, CCSD seeks discovery of the severity of the alleged emotional distress. Fourth, CCSD seeks discovery of whether its actions were the cause of any alleged emotional distress. Fifth, the discovery is relevant to “whether other aspects of Roberts' life contributed to any alleged emotional distress.” Counsel for CCSD argues that the discovery
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is especially relevant because Roberts has admitted that the only significant damage he claims to have suffered is emotional distress. CCSD contends that Roberts is attempting to wield his transgender status “as both a sword for pursuing the significant emotional distress damages requested and as a shield to prevent discovery of relevant information about Roberts' alleged emotional distress based on that same status.” With respect to CCSD's Second Request for Production of Documents, CCSD seeks an order compelling Roberts to respond to Request for Production of Documents No. 23 which requests all documents that describe, relate, or evidence Roberts' alleged garden-variety emotional distress suffered from October *599 2011 to the present. Roberts responded indicating it was possible that all documents produced by Roberts so far in the litigation and all documents produced by CCSD are responsive to this request. CCSD believes the response is evasive and that Roberts should be required to state specifically and precisely which documents will provide the desired information. CCSD also seeks an order compelling Roberts to supplement Request for Production of Documents No. 26 which requests all documents or recordings provided to Roberts or Roberts' counsel from CCSD police officer Mike Thomas in relation to this lawsuit. Counsel for Roberts indicated she was willing to make a thumb drive with the audio file of the December 17, 2012 recording of Officer Thomas' interview available for copying by an outside copy service. CCSD argues that it should not be required to incur the unnecessary expense of having a thumb drive copied by a third party service. Roberts' response to this request for production also disclosed that counsel had arranged to have a transcript of the audio file prepared by a certified court reporter and was willing to provide a copy to CCSD if it would share half of the cost. During oral argument, counsel for Roberts explained that she had always been willing to make a copy of the audio file available. She believed CCSD already had it. She requested that counsel for CCSD make arrangements for an outside copy service to copy it so that she could not be accused of destroying or altering the original. She offered a copy of the transcript if CCSD would share half the cost as a courtesy. Finally, CCSD seeks a qualified protective order to allow it to subpoena Roberts' medical records directly
from providers. Roberts has refused to provide written authorizations for the release of his medical records in response to CCSD's Request for Production No. 19. 45 C.F.R. § 164.512(e)(l)(i), a regulation enacted pursuant to the Health Information Portability Accountability Act (“HIPAA”), 42 U.S.C. § 299(b)-2, provides the means for obtaining relevant medical records for purposes of litigation via a qualified protective order when a party refuses to execute a HIPAA compliant authorization. Because Roberts has made broad emotional distress damages claims, CCSD is entitled to obtain all of the medical records sought. CCSD seeks attorney's fees and costs for the necessity of filing this motion.
III. Roberts' Response Roberts opposes the request for a qualified protective order and the motion to compel on various grounds. Roberts responds by way of factual background that he is a 22-year veteran of CCSD police department. He changed his gender and name in 2011–2012, and asked CCSD to accept the change. His request resulted in multiple hurdles over many months. He was prohibited from using male restrooms at CCSD facilities. He was asked for medical records showing genital surgery even after he provided a new driver's license and the order for his name change. He endured taunting ridicule. On May 3, 2012, the Nevada Equal Rights Commission found that CCSD's restroom policy was illegal. However, CCSD did nothing to change its policy until October 2012. Roberts filed a motion for partial summary judgment on October 27, 2015, because he claims it is undisputed that CCSD subjected him to illegal discrimination and retaliation from October 2011 until October 2012 based on his transgender status. On the merits, Roberts argues that the discovery in dispute CCSD seeks is overly intrusive information that exceeds the bounds of what is discoverable under federal law in this case. Roberts argues that CCSD's Interrogatory Nos. 13 and 14, and Request for Production of Documents Nos. 9, 17 and 19 are overbroad and intrusive requests for years of medical records and healthcare history. CCSD is seeking the same medical information in litigation it illegally demanded of Roberts in 2011 in the employment context. Roberts argues he has a right to medical privacy under state and federal law despite bringing this lawsuit. He is entitled to assert the doctor-patient and psychotherapist-patient privilege, and to the protection *600 afforded by HIPAA, 42 U.S.C. §
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299(b)-2. Citing Powell v. Schriver, 175 F.3d 107, 111 (2d Cir.1999), Roberts argues that medical information about the anatomical status of his gender change is protected by recognized privacy rights. Roberts reiterates arguments raised during the meet-andconfer process that the right to privacy is heightened here because CCSD is Roberts' current employer. Roberts contends that discovery in this case should be more closely scrutinized because it involves an employer seeking to discover the private medical information of a current employee. CCSD was unable to cite any case law authorizing an employer-defendant to conduct discovery on a transgender employee's medical records in a discrimination case. It cited In re: Consol. RNC No. 127, 2009 WL 130178 at *12 (S.D.N.Y. Jan. 8, 2009), which did not involve a transgender employee suing a current employer for discrimination violations, but a transgender individual suing the City of New York for civil rights violations for false arrest, false imprisonment, and malicious prosecution. Roberts disputes that he is attempting to use his gender status as both a sword and a shield as CCSD claims. Rather, he is seeking to protect his medical privacy on issues that stem directly from CCSD's illegal attempts to require him to “prove” his gender by medical records as a precondition for CCSD to accept him as male and allow him to use the men's restroom at work. Roberts also maintains that all of his medical records are not relevant where, as here, he has only alleged a gardenvariety emotional distress claim under Title VII. He cites a number of Ninth Circuit cases for the proposition that emotional distress damages awards need not be supported by objective medical evidence, and that testimonial evidence alone is sufficient. Roberts has not automatically put his medical or mental condition at issue simply by alleging garden-variety emotional distress. CCSD will have the opportunity to depose Roberts to ascertain the extent and nature of his past emotional distress, and this is a more reasonable method of discovering this information in a garden-variety emotional distress claim. CCSD relies heavily on EEOC v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D.Cal.2009), to support its position that medical records should be disclosed. However, in that case, the court only allowed discovery of the employee's medical records after the employee revealed at her deposition that she was still undergoing
medical treatment for depression which raised a valid concern about the possibility of multiple causes of the employee's anxiety. The court should require CCSD to pursue the less-intrusive route of simply asking Officer Roberts about his distress at a deposition before seeking highly private medical documents and history, including records pertaining to gender reassignment surgery and/or his usage of drug or hormone therapy. The opposition cites a number of other decisions that have held that a garden-variety mental anguish or emotional distress claim for employment discrimination does not waive the physician and psychologist privileges. Counsel for Roberts also argues that CCSD has a history of being careless with Roberts' privacy rights and tolerant of workplace gossip concerning his transgender status. If the court is inclined to require production of the medical records, Roberts requests that the court conduct an in camera review and limit who may review any documents produced in discovery. Roberts opposes CCSD's request for his social medial or email addresses conceding that in general, public social media content is neither privileged nor protected by any right of privacy. However, Roberts argues that filing a lawsuit does not give CCSD the right to rummage at will through information Roberts has limited from public view, and that CCSD should be required to make a threshold showing that the information sought is reasonably calculated to lead to the discovery of admissible evidence to avoid a proverbial fishing expedition. Roberts cites a number of *601 decisions in which courts have questioned whether social media activity is a probative reflection of a plaintiff's emotional state. Additionally, Roberts argues that compelling him to identify his email addresses and social networking websites will allow CCSD to view all content on his social media accounts. Citing Kregg v. Maldonado, 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301, 302 (2012), Roberts claims that the proper means to obtain disclosure of relevant information in social media should be a narrowlytailored discovery request seeking only the social media information that relates to the claimed injuries arising from the complaint. Finally, Roberts argues that his responses to Request for Production of Documents Nos. 23 and 26 were accurate and adequate. Roberts asks for an award of attorney's fees
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and costs pursuant to Fed. R. Civ. P. 37(a)(5)(B) for the necessity of opposing the motion to compel. Roberts' opposition to CCSD's request for qualified protective order essentially asserts the same arguments concerning the privacy of Roberts' personal and private medical records and information. If the court is inclined to order production of a portion of Roberts' medical records and history, Roberts requests that the court order CCSD to limit the disclosure of the information disclosed to specified individuals on CCSD's litigation team, and order that they not disclose the information to anyone who might be influenced or have responsibility for making employment decisions about him. Roberts also requests that the court warn CCSD that dissemination of this information directly or indirectly is strictly prohibited, and that CCSD as an employer is not entitled to have the information at all. Specifically, Roberts wants to preclude in-house legal counsel for CCSD, Jon Okazaki and Scott Greenberg, from obtaining Roberts' private medical information. These are the attorneys who allegedly formulated the discriminatory and illegal policy that prohibited Roberts from using the male restrooms at work and told him he was prohibited from using the men's room unless he provided medical proof of his gender change.
IV. CCSD's Reply CCSD replies that it recognizes that its requests for medical information and documentation implicate Roberts' privacy rights. However, the right to privacy is not absolute. A number of courts have held that enforcing restroom use practices based on biological gender is not unlawful. Therefore, “permitting discovery of this critical area of Plaintiff's alleged damages is neither improper nor a ratification of CCSD management's past conduct as Roberts alleges in his attempt to thwart the relevant request to discovery.” CCSD reasserts arguments that Roberts brought his mental, emotional, and physical condition into question by filing the lawsuit. “Despite this fact, Plaintiff continues to act as if this case is different from other employment discrimination cases because he is transgender.” A protective order is in place that identifies medical records or information as confidential and limits the purposes and persons to whom the information is disclosed. The protective order is adequate to protect Roberts' privacy interests. The reply reiterates arguments that Roberts has not invoked the psychotherapist-patient privilege. However,
even if Roberts had asserted the psychotherapist-patient privilege, the records should be disclosed even if he is asserting a garden-variety emotional distress claim. CCSD must be free to test the truth of Roberts' emotional distress allegations. To prevent CCSD from discovering Roberts' prior medical and psychological history while permitting him to testify regarding non-economic damages would deprive CCSD of a fair trial. Finally, CCSD argues that in camera review is not necessary, and that the court should grant its motion for a qualified protective order to allow CCSD to obtain Roberts' medical and other records directly from the custodians of those records.
DISCUSSION I. Fed. R. Civ. P. 26 [1] Fed. R. Civ. P. 26(b)(1) permits “discovery regarding any nonprivileged matter *602 that is relevant to any party's claim or defense.” Discovery is not limited to admissible information. Id. However, “[a]ll discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” [2] In deciding whether to restrict discovery under Rule 26(b)(2)(C) “the court should consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truth-seeking function in the particular case before the court.” Smith v. Steinkamp, 2002 WL 1364161, at *6 (S.D.Ind. May 22, 2002) (quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir.2002) (internal quotations omitted)). See also Rowlin v. Alabama Dep't. of Pub. Safety, 200 F.R.D. 459, 461 (M.D.Ala.2001) (“courts have the duty to pare down overbroad discovery requests under Rule 26(b)(2) ... The court should consider the totality of the circumstances, weighing the value of the material sought against the burden of providing it, discounted by society's interest in furthering the truth-seeking function”) (citing Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir.1990)). [3] Since the late 1970s, the Supreme Court and the Advisory Committee on the Civil Rules have encouraged trial courts to exercise their broad discretion to limit and tailor discovery to avoid abuse and overuse. The trial courts have been urged to actively manage discovery to accomplish the goal of Rule 1 of the Federal Rules of Civil
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Procedure—“to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Procedure 26, Federal Judicial Center (Mar. 30, 1998) at 44.
In 1983, Rule 26 was amended to add subsection (g), which provides that a lawyer filing a discovery request, response or objection certifies by signing the document that it is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 26(g)(1)(B) (ii). A lawyer signing a discovery document also certifies that it is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1(B)(iii).
[5] In 1998, the Supreme Court wrote that “Rule 26 vests the trial judge with broad *603 discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Crawford–El v. Britton, 523 U.S. 574, 599, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). The Supreme Court recognized that under Rule 26(b)(2), the trial court may, on its own motion, limit the frequency or extent of use of discovery methods if it determines the burden or expense of proposed discovery outweighs its likely benefits. Id. Rule 26(c) gives the trial court authority on motion, or on its own initiative, to limit the time, place, and manner of discovery, or bar discovery altogether on certain subjects, as required “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. Similarly, under Rule 26(d), the court may set the timing and sequence of discovery. Id. The Crawford–El decision emphasized that the trial court has broad discretion under Rule 26 in managing discovery “to facilitate prompt and efficient resolution of the lawsuit.” Id.
[4] The Advisory Committee Notes for the 1983 amendments to Rule 26 emphasize that the elements of Rule 26(b)(1)(iii) were intended to address the problems of disproportionate discovery. Federal judges were urged to evaluate the nature of the case, the limitations on a financially weak litigant to bear the burden of expensive discovery, and the need to prevent discovery from becoming a “war of attrition or as a device to coerce a party, whether financially weak or affluent.” 97 F.R.D. 165, 218 (1983). Rule 26(g) was added to address the reluctance of judges to impose sanctions on attorneys who abuse the discovery rules. See Brasil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980). As one well-respected treatise observed, “Rule 26(b) was amended in 1983 to promote judicial limitation of the amount of discovery on a case-by-case basis to avoid abuse or overuse of discovery through the concept of proportionality.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2008.1 (3d ed. 2015). The Advisory Committee notes reported that “Ruled 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court's inherent power.” (citation omitted.) By 1997, nearly one-third of the lawyers surveyed by the Federal Judicial Center endorsed narrowing the scope of discovery as a means of reducing litigation expense. See D. Stienstra, Implementation of Disclosure in United States District Courts, with Specific Attention to Courts' Responses to Selected Amendments to Federal Rule of Civil
In 2000, Rule 26 was again amended to call attention to the limitations of Rule 26(b)(2)(C). The Advisory Committee Notes indicate that the Advisory Committee was repeatedly told “that courts have not implemented these limitations with the vigor that was contemplated.” 192 F.R.D. 340, 390 (2000). Thus, Rule 26 was amended to add an “otherwise redundant cross-reference ... to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery.” Id. (citing Crawford–El, 523 U.S. at 598, 118 S.Ct. 1584). Recently, Chief Justice John Roberts issued his Year-End Report on the Federal Judiciary in which he addressed the 2015 amendments to the Federal Rules of Civil Procedure at length. 1 The Chief Justice traced the “elaborate and time-consuming” procedure for promulgating and amending the rules which began in 2010 when the Advisory Committee on the Civil Rules sponsored a symposium on civil litigation attended by federal and state judges, law professors, plaintiff and defense lawyers, and representatives from business, government, and public interest organizations. The symposium identified the need for procedural reforms to: (1) encourage greater cooperation; (2) focus discovery on what is truly needed to resolve cases; (3) engage judges in early and active case
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management; and (4) address serious problems associated with vast amounts of electronically stored information. Id. at 4–5. The Chief Justice's Year-End Report wrote that the changes that went into effect on December 1, 2015, “may not look like a big deal at first glance, but they are.” Id. at 5. It was the reason he decided to highlight them in his report. Rule 1 was expanded to add eight words to emphasize “the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation.” Id. at 5–6. Rule 1 now directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Id. at 6 (emphasis in original). Chief Justice Roberts stated that lawyers representing adverse parties “have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes.” Id.
II. Analysis and Decision A change in the legal culture that embraces the leave no stone unturned and scorched earth approach to discovery is long overdue. Discovery overuse and abuse is depriving ordinary citizens, even those with considerable means, of having their cases heard in federal court. Discovery is more often than not too expensive and time consuming to result in an efficient and just result. Heeding the call to actively manage and engineer a change in this legal culture, CCSD's motion to compel is granted in part and denied in part as described below. The motion for a qualified protective order is denied.
The gravamen of Roberts' claims in this case is that he was subjected to unlawful sex discrimination in violation of Nevada law and Title VII when he informed CCSD that he had transitioned, and asked to have his records changed to reflect he was male. He made this request after a court of competent jurisdiction entered an order changing his [6] [7] The 2015 amendments to Rule 26(b)(1) emphasize name, and the Nevada Department of Motor Vehicles issued a driver's license in his new name which recognized the need to impose “reasonable limits on discovery his male transgender status. Roberts claims CCSD caused through increased reliance on the common-sense concept him emotional distress by the way it handled his request of proportionality.” Id. The fundamental principle of for a records change; because it refused to allow him to amended Rule 26(b)(1) is “that lawyers must size and use the men's restroom until he provided medical evidence shape their discovery requests to the requisites of a case.” that he was biologically or anatomically male; and by Id. at 7. The pretrial process must provide parties with employees and supervisors asking questions about his efficient access to what is needed to prove a claim or genitalia. In this motion to compel, CCSD essentially defense, but eliminate unnecessary or wasteful discovery. argues that Roberts must provide proof of his genitalia, This requires active involvement of federal judges to make and the details of his transgender treatment and stages decisions regarding the scope of discovery. in the process to prove CCSD violated Title VII and/ [8] Chief Justice Roberts observed that the 2015 or caused him emotional distress. The court categorically rejects this position. The phrase “private parts” has been amendments to the civil rules “are a *604 major stride in my vocabulary for more than 50 years for good and towards a better federal court system,” but accomplishing common sense reasons. It is difficult to fathom a subject the goal of Rule 1 will only occur “if the entire legal more likely to cause embarrassment than requesting proof community, including the bench, bar, and legal academy, of one's genitalia. step up to the challenge of making real change.” Id. at 9. He appealed to judges “to take on a stewardship role, Roberts is not claiming that his emotional distress is managing their cases from the onset rather than allowing caused by his transgender status as CCSD seems to claim parties alone to dictate the scope of discovery” and to in its motion to compel. See Motion at 13:13–15 (arguing actively engage in early case management to “identify Plaintiff is attempting to use his “transgender status both the critical issues, determine the appropriate breadth of as a sword for pursuing the significant emotional distress discovery, and curtail dilatory tactics, gamesmanship, and damages requested and as a shield to prevent discovery procedural posturing.” Id. at 10–11. He beseeched judges of relevant information about Plaintiff's alleged emotional and lawyers to “engineer a change in our legal culture that distress based on that same status.”) (emphasis added). To places a premium on the public's interest in speedy, fair, the contrary, counsel for Roberts made it clear during and efficient justice.” Id. at 11. oral argument that Roberts will testify how pleased he is © 2016 Thomson Reuters. No claim to original U.S. Government Works.
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that he went through the transgender transition process. Roberts' claim is that CCSD employees, supervisors and in-house counsel caused him emotional distress by the manner in which they responded to his request for a change in his personnel file to reflect he is a transgender male, instructions not to use the male restrooms, demands for proof of male anatomy, and by questions asked by employees and supervisors about his genitalia. The Nevada Legislature amended Nevada's antidiscrimination statute in 2011, to specifically prohibit discrimination based on “gender identity or expression.” See NRS 16.330(1)(a). The statute went into effect October 1, 2011. Roberts made the requests at issue beginning on October 4, 2011. On May 2, 2012, the Nevada Equal Rights Commission (“NERC”) found that CCSD engaged in sex discrimination within the meaning *605 of NRS 613.310 by telling Roberts at a meeting on November 14, 2011, that he could not use the male restroom until he had provided legal documentation stating he had changed his gender from female to male. NERC also found that at another meeting on November 22, 2011, CCSD reiterated its position that Roberts could not use the male restroom until he had a sex change surgical procedure. See NERC determination letter, attached as Exhibit A to Plaintiff's opposition. According to the NERC determination letter, CCSD did not offer any explanation for its policy “other than a previous case in which the court found that requiring a pre-operative male to female transgender to use gender-neutral or single occupant restroom was not unlawful discrimination.” Id. NERC acknowledged that courts had recognized the legitimacy of restrooms segregated on the basis of sex. However, it found probable cause to support the charge of discrimination based on gender identity or expression in violation of NRS 613.310 because “to create restrooms for each sex, but then to require Roberts to prove conformity with respondent's [CCSD's] expectations regarding the male anatomy in order to use the men's bathrooms violates Nevada's antidiscrimination law.” Id. In oral argument on the motion to compel, and in its response to Roberts' motion for partial summary judgment, CCSD argues that Nevada's antidiscrimination statute goes further than Title VII in providing protection from sex discrimination to transgender individuals. On April 20, 2012, the U.S.
Equal Opportunity Commission (“EEOC”) issued its opinion in Macy v. Holder, 2012 WL 1435995 (2012). The Commission accepted the appeal to resolve confusion regarding this recurring legal issue and to clarify the Commission's position “that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition.” Id. at *4. The Commission cited Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir.2000), Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir.2004), and Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011) to support its determination. Relying on these cases, the Commission found that Title VII's prohibition on sex discrimination “proscribes gender discrimination and not just discrimination on the basis of biological sex.” Id. at *6. It found that the term “gender” includes “not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity.” Id. The EEOC also relied on the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), which held that gender discrimination occurs anytime an employer treats an employee differently for failing to conform to any gender-based expectations or norms. In Macy the EEOC concluded “that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on...sex’ and such discrimination therefore violates Title VII.” CCSD argues it is entitled to the discovery it seeks because Roberts is attempting to assert a Title VII discrimination claim based on his transgender status and has therefore put his anatomy and the medical records that establish the details of his transition at issue. In its opposition to Roberts' motion for partial summary judgment CCSD argues that the EEOC's interpretation and opinion in Macy should not be given deference because it is unpersuasive and because there is contrary Ninth Circuit authority directly on point. CCSD cites Kastl v. Maricopa County Community College District, 325 Fed.Appx. 492 (9th Cir.2009) to support this proposition. The court disagrees. In Kastl, the Ninth Circuit upheld the district court's grant of summary judgment to the employer on plaintiff's gender discrimination claims under Title VII and Title IX. There, the employer banned Kastl, who is transsexual, from using the women's restroom until she could prove completion of sex reassignment surgery.
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Kastl identified and presented full-time as female, and argued to her employer that the men's room was not only inappropriate, but also potentially dangerous to her. *606 Citing Hopkins, the Ninth Circuit commented that the Supreme Court has found that “gender stereotyping is direct evidence of sex discrimination prohibited by Title VII.” Id. Citing its own decision in Schwenk, the Ninth Circuit noted that it had held that, in the context of the Gender Motivated Violence Act (“GMVA”), 42 U.S.C. § 13981(c), “transgender individuals may state viable sex discrimination claims on the theory that the perpetrator was motivated by the victim's real, or perceived nonconformance to socially-constructed gender norms.” Id. The Kastl court stated that “after Hopkins and Schwenk, it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer's expectations for men or women.” Id. It therefore found that Kastl had stated a prima facie case of gender discrimination under Title VII under the theory that impermissible stereotypes were a motivating factor in the employer's actions against her. However, the employer proffered evidence that it banned Kastl from using the women's restrooms for safety reasons. Kastl did not come forward with evidence demonstrating that the employer was motivated by her gender, and therefore, “her claim is doomed at the third McDonald-Douglas stage.” Id. Although Kastl lost her case, the Ninth Circuit clearly held that she had stated a prima facie claim of Title VII gender discrimination as a transgender individual who was told she could not use the women's restroom based on the employer's expectations about men and women and gender stereotypes. [9] Here, it is undisputed that CCSD asked for medical evidence of Roberts' transgender transition in response to his request to change his records to reflect he was a transgender male. It is undisputed that CCSD told Roberts he would not be permitted to use the men's room unless and until he provided proof that he was biologically male. It is undisputed that Roberts declined to provide medical evidence of the nature of the procedures and treatments he had received or medical records establishing his genital anatomy. The court finds CCSD simply does not need to know the intimate details of his transgender transition process to defend itself on these claims. If the district judge finds Roberts was required to provide the evidence CCSD demanded before he could change his records, be recognized as a transgender male, or use the
men's restroom, and prevent employees and supervisors from asking about his genitalia, Roberts will lose his Title VII claim. If the district judge finds Roberts was not required to disclose this information, CCSD never had and still has no legitimate need for this extremely private information. CCSD claims it has a legitimate interest in obtaining medical records discovery to establish the timeline of Roberts' transition. Roberts' complaint alleges that he began his transition in 2009. He began presenting as male and made the request to change his records to reflect he was a transgender male in 2011. CCSD does not dispute that he began presenting as male and made his request for a records change in 2011 after NRS 613.330 went into effect. Rather, CCSD asks for the names, addresses, and dates of consultation of each health care provider who examined, treated or with whom Roberts has consulted for the last ten years regarding his gender transition. During the meet-and-confer process, CCSD agreed to limit the time period requested for Interrogatory No. 13 to 2009, to the present. CCSD's requested medical discovery is essentially seeking proof of whether Roberts is biologically male, and when he developed male anatomy to support its defense that it did not discriminate against him. Unless and until the district judge finds he is required to provide this evidence, the court will not require Roberts to disclose the state of his genitalia or the intimate details of his transgender transition. CCSD also asks for broad discovery of Roberts' medical records asserting the records are relevant or may lead to the discovery of relevant evidence concerning Roberts' emotional distress claim. Specifically, CCSD argues the records may contain evidence of Roberts' emotional distress, the severity of *607 Roberts' emotional distress, whether CCSD's actions are responsible for his emotional distress, and whether other aspects of his life contribute to his emotional distress. For example, CCSD speculates that Roberts may have experienced significant emotional distress undergoing the transgender transition. Roberts answered Interrogatory No. 14, which asked him to identify any health care provider he consulted or received treatment from as a result of any alleged damages, including emotional distress damages he claims was caused by CCSD. Roberts' answer to Interrogatory No. 14 indicated “none are necessary for Plaintiff who is seeking Title VII compensatory damages for garden-
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Roberts v. Clark County School District, 312 F.R.D. 594 (2016) 93 Fed.R.Serv.3d 1182, 327 Ed. Law Rep. 340
variety emotional distress caused by CCSD's handling of the matter of his gender transition.” However, he identified Jane Heenan as a therapist and community activist for transgender individuals who attended meetings with CCSD and Roberts. Request for Production of Documents No. 9 requested copies of any and all documents describing or relating to a diagnosis or treatment for any illness, injury, or condition for which Roberts was seeking compensation from CCSD. Roberts responded that, to the extent the request was seeking medical records “there are none and none are necessary” for Plaintiff to recover garden-variety emotional distress damages. Roberts answered this request for production. He has stated under penalty of Rule 26(g) that there are no such records. He will be precluded from supporting his claim with any evidence or testimony not timely disclosed in motion practice, at trial, or for any other purpose.
[12] The court agrees with counsel for Roberts that CCSD's requests for medical evidence are overbroad because CCSD claims they might possibly contain some reference to Roberts' emotional distress or state of mind. The requests are not narrowly tailored to obtain this information. In fact, CCSD is requesting that the court not only compel the identification of all health care providers, but enter a qualified protective order so that CCSD can directly obtain all of Roberts' medical records from all of Roberts' health care providers who were involved in or consulted in connection with his transgender transition from 2009 to the present.
CCSD will have the opportunity to depose Roberts to learn exactly what his emotional distress claims are. CCSD will have the opportunity to test Roberts' claims under oath, explore the alleged severity of his distress, any physical or emotional manifestations of his The court will compel Roberts to clarify what counsel distress, whether any other stressors in his life may have represented in oral argument—that he has not consulted contributed to his distress, including the transition process with any health care provider to receive treatment for itself. CCSD may fully inquire whether he treated or emotional distress. Rather, he intends to rely upon his *608 sought treatment from any provider, counselor, or own testimony about how CCSD's actions and inactions advisor to cope with stress he attributes to CCSD, whether caused him emotional distress. If he intends to rely on he has any prior history of emotional distress, depression, Heenan's testimony or any other person's testimony to anxiety and related disorders, and any witnesses who support his emotional distress claim, he will be required to may support his claims. However, the court will not disclose the name of any witness and provide a summary compel Roberts to disclose and produce all of his medical description of the expected testimony. records from 2009 to the present on the speculation they may contain references to his mental state or emotional [10] [11] Garden-variety emotional distress has been distress. He has answered under penalty of Rule 26(g) described by one court as “ordinary or common place that he has not received treatment for emotional distress emotional distress,” which is “simple or usual.” Fitzgerald and is only asserting a garden-variety emotional distress v. Cassil, 216 F.R.D. 632, 637 (N.D.Cal.2003). It is claim. His counsel has assured the court that he does not contrasted to emotional distress that “ ‘may be complex, intend to rely on any medical records or expert testimony such as that resulting in a specific psychiatric disorder’.” to support his claim. However, Roberts will be precluded Id. (quoting Ruhlmann v. Ulster County Dep't of Soc. from introducing or using evidence of emotional distress Servs., 194 F.R.D. 445, 449 n. 6 (N.D.N.Y.2000)). A damages in motion practice, at trial, or for any other number of courts in the Ninth Circuit have held that the purpose, that he does not disclose. physician-patient privilege is not waived where a plaintiff alleges “garden-variety” emotional distress and does not [13] The court will also not require Roberts' to identify rely on medical records or medical expert testimony for all of his personal email addresses and social networking proof at trial. See, e.g., EEOC v. Wal–Mart Stores, websites with account name and corresponding addresses. Inc., 276 F.R.D. 637, 640–41 (E.D.Wash.2011) (collecting Interrogatory No. 16 is overbroad and not narrowly cases and finding that the physician-patient privilege was tailored to obtain discoverable information on social not waived as to plaintiff's medical records because she media about Roberts' emotional distress relevant to intended to support her garden-variety emotional distress this lawsuit, or other factors in his life that may have damages through evidence other than medical records or contributed to his emotional distress during the time expert testimony). period in dispute. However, to avoid a future dispute over a subsequent discovery request, the court will require
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counsel for Roberts to identify all of the social media sites on which Roberts has had an account from 2011 to the present. The court will also require counsel for Roberts to review the content of those accounts from January 2011, to the present, and to produce any content that contains a reference to this lawsuit, CCSD's response to Plaintiff's transgender transition, Roberts' state of mind, emotional or physical response or reaction to his transgender transition, and the manner in which he was treated by CCSD employees, managers, supervisors, and counsel. The supplemental response will be signed with the certification required by Rule 26(g)(1)(A). Request for Production of Documents No. 17 asks for all documents including medical records pertaining to any surgeries Roberts has had performed and/or any drug or hormone therapy undergone related to gender transition. For the reasons explained in this order, the court will deny the request to compel further response to Request for Production No. 17. The court will also deny CCSD's request to require Roberts to produce executed authorizations to obtain medical, employment, administrative, and tax records. Roberts has been employed by CCSD for 22 years. CCSD knows what he makes. It knows what is in his personnel file. CCSD has articulated no legitimate reason why it needs all of Roberts' administrative records, educational records, tax records and protected health information to defend this case. The discovery sought is grossly out of proportion to what CCSD legitimately needs to know to defend itself from claims CCSD discriminated against Roberts and caused him garden-variety emotional distress and will be denied. [14] The court will compel Roberts to supplement and clarify his response to Request for Production No. 23. It asks Roberts to produce documents that describe, relate, or evidence his garden-variety emotional distress from October 2011 to the present, which Roberts alleges was caused by CCSD. Roberts responded that it is possible that all documents he has produced and all the documents CCSD has produced so far may be responsive to this request. The court finds this response evasive and nonresponsive. If Plaintiff knows of any specific documents that are evidence of his garden-variety emotional distress claim, he must identify and disclose the documents. If the documents have already been disclosed in discovery, he must identify which documents he claims are evidence of his emotional distress.
Finally, the court will deny CCSD's motion to compel Request for Production of Documents No. 26 which asks for all documents and recordings provided to Roberts or his counsel from CCSD Police Officer Mike *609 Thomas related to this lawsuit. Plaintiff responded that he was willing to make the thumb drive of the audio file available for copying with a third-party copy service. CCSD moved to compel because it does not believe it should have to incur the expense of having the audio file copied from a thumb drive. Counsel for Roberts explained that she wanted an outside service of CCSD's choice to copy it so that she could not be accused of altering or destroying the original. This dispute borders on the ridiculous. It is clear to the court that counsel for Roberts was not trying to cause CCSD unnecessary expense. She was trying to avoid accusations she may have destroyed or altered original evidence in this very contentious case. During oral argument, counsel for Roberts offered to have the thumb drive copied herself, and produced to defense counsel. The court will require her to live up to her offer. [15] [16] Finally, the court will deny CCSD's request for attorney's fees and costs as a sanction for the necessity of filing these motions. The court will also deny Roberts' request for attorney's fees and costs for the necessity of opposing both motions. The court will not order monetary or other sanctions when it finds that a position was substantially justified in that the parties had a genuine dispute on matters on which reasonable people could differ as to the appropriate outcome. See Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). With the exception of the dispute over the audio file, the parties had substantial disputes on which reasonable minds could differ. Under these circumstances, sanctions are not warranted. For the reasons explained in this decision, IT IS ORDERED that: 1. Defendant's Motion to Compel (Dkt. #57) is GRANTED in part and DENIED in part consistent with this order. Plaintiff will be required to supplement discovery responses for which the motion was granted no later than January 25, 2016. 2. Plaintiff will be precluded from supporting his claims with any evidence or testimony not timely disclosed in motion practice, at trial, or for any other purpose.
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Roberts v. Clark County School District, 312 F.R.D. 594 (2016) 93 Fed.R.Serv.3d 1182, 327 Ed. Law Rep. 340
3. CCSD's Motion for a Qualified Protective Order (Dkt. #60) is DENIED. 4. The parties' requests for sanctions are denied. 5. Any request for relief not specifically addressed in this order is DENIED.
All Citations 312 F.R.D. 594, 93 Fed.R.Serv.3d 1182, 327 Ed. Law Rep. 340
Footnotes
1
John Roberts, 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015), available at http://www.supremecourt.gov/ publicinfo/year-end/2015year-endreport.pdf
End of Document
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Steel Erectors, Inc. v. AIM Steel International, Inc., 312 F.R.D. 673 (2016)
Reprinted with permission of Thomson Reuters.
93 Fed.R.Serv.3d 786
312 F.R.D. 673 United States District Court, S.D. Georgia, Savannah Division. Steel Erectors, Inc., for the use and benefit of the United States of America, Plaintiff, v. AIM Steel International, Inc., Defendant. Case No. CV415-208 | Signed January 4, 2016 Synopsis Background: Subcontractor brought action alleging that contractor breached parties' contract by failing to pay for work it performed on two construction projects. Subcontractor moved to compel contractor to supplement its corporate disclosure statement and its interrogatory responses by naming its foreign parent, and contractor moved to seal.
Holdings: The District Court, G.R. Smith, United States Magistrate Judge, held that: [1] contractor had to disclose identity of its corporate parent; [2] discovery into relationship between contractor and its corporate parent was not warranted; and [3] subcontractor was not entitled to recover its expenses.
Motions granted in part and denied in part.
Attorneys and Law Firms *674 J. Stephen Lewis, Beckmann & Lewis, LLP, Savannah, GA, for Plaintiff. Mark Benson Carter, Taylor English Duma, LLP, Atlanta, GA, for Defendant.
ORDER
G.R. SMITH, UNITED STATES MAGISTRATE JUDGE, SOUTHERN DISTRICT OF GEORGIA Several weeks ago, the Court deferred ruling on plaintiff's motion to compel defendant to supplement its Fed. R. Civ. P. 7.1 corporate disclosure statement (doc. 11) by naming its foreign parent company. Doc. 15. Plaintiff offered poor reasons to compel, but, given Rule 7.1's mandate (parties must file disclosure statements) and AIM's failure to address the proper legal standard (Local Rule 79.7) for shielding its statement from plaintiff, the Court elected to give AIM additional time to move to seal. Id. It has now done so. Doc. 17. In addition, plaintiff's original motion to compel (doc. 11) remains pending, as well as a motion to compel AIM to supplement its interrogatory responses by naming its foreign parent (doc. 16). Finally, the parties jointly move for an extension of time to complete discovery. Doc. 18.
A. AIM's Motion to Seal [1] [2] Under Local Rule 79.7, “[a]ny person desiring to have any matter placed under seal shall present a motion setting forth the grounds why the matter presented should not be available for public inspection.... The burden rests upon the moving party to justify ... sealing.... [That party] must rebut the presumption of the openness derived from the First Amendment by showing that closure is essential to preserve some higher interest 1 and is narrowly tailored to serve that interest.” “[G]eneral assertions,” however, “are not enough. The party wishing to seal a court record must be specific because permanent sealing (sought here) must be narrow.” United States v. Bradley, 2007 WL 1703232 at *3 (S.D.Ga. June 11, 2007) (footnote added). AIM's “higher interest” is decreasing competition in the international steel fabrication market in which it competes. See doc. 17 at 4. That market, says AIM, has very high entry barriers because of costs “associated with initial organization, [and] startup.” Id. at 3. AIM entered the market because its parent company (a foundation based in Panama) located funding for the venture. Id. Keeping private “the identity and sources of initial *675 investment of its parent company,” will, AIM says, “keep the barrier of entry ... high, [and] thereby decreas[e] the competition between and among USAbased steel fabricators.” Id. Hence, AIM concludes, “its privacy interests outweigh the public's right of access.” Id. In plaintiff's view, however, anti-competitive business
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Steel Erectors, Inc. v. AIM Steel International, Inc., 312 F.R.D. 673 (2016) 93 Fed.R.Serv.3d 786
interests, absent a recognized privilege or some other legitimate purpose, cannot outweigh the public's interest in the openness of judicial proceedings. Doc. 19 at 3. [3] The Court agrees. AIM, a foreign corporation owned by a foreign parent, seeks to shield itself from disclosure obligations ordinarily facing any domestic corporation. Take, for example, a Georgia corporation owned by a Delaware parent. Nothing enables the Georgia company to avoid including the parent in its Rule 7.1 disclosure statement. Indeed, the Rule specifically mandates disclosure of “any parent corporation.” Fed. R. Civ. P. 7.1(a)(1) (emphasis added). More importantly, AIM offers no reason why its business interests outweigh 2 the public interest in disclosure of companies with whom a federal judge may have a conflict of interest. 3 Instead, it states that (1) entering the international steel market requires much capital; (2) its parent company provided that capital; and (3) revealing the identity of its parent would, somehow, allow other companies access to capital sufficient to enter the international steel market and in doing so reduce AIM's market share. Doc. 17 at 2-3. That all may be true, but nowhere in that reasoning does AIM explain why its interest exceeds the public's interest in disclosure, particularly when, as here, “public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. Co. v. Sup. Ct. of Cal. for Riverside Cty., 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Put differently, AIM sufficiently describes its interest, but fails to explain the weight of its interest vis-à -vis the public's. That's not enough. Every party wishing to seal a filing cares deeply about preventing disclosure and many describe their interest in detail. But only those whose interest is more important than the public's interest in disclosure receive sealing consideration. AIM has not shown that its interest rises to that level. Its motion to seal (doc. 17) therefore is DENIED and plaintiff's first motion to compel is GRANTED (doc. 11). AIM must file, within 7 days of the date this Order is served, an unredacted corporate disclosure statement that lists “any parent corporation,” whether foreign or domestic. Fed. R. Civ. P. 7.1(a)(1).
B. Plaintiff's Motion to Compel Interrogatory Responses
In a related motion to compel, plaintiff seeks more a more detailed response to its interrogatory asking AIM to reveal its foreign parent. Doc. 16. Specifically, plaintiff wants to know the identity of AIM's parent, its contact information, how it has participated in the construction projects underlying this lawsuit, and how much (if any) funding it has provided with respect to the projects. Doc. 16 at 1-2. AIM objected to identifying its parent on relevancy grounds, but revealed that it “has had no participation in either of the two projects,” and “has provided no funding.” Id. at 2. Because the Court today requires AIM to identify its parent in its Rule 7.1 statement, *676 and because AIM already provided adequate responses to portions of plaintiff's interrogatory (its parent played no role in and provided no funding for the projects at issue), all that remains to compel (or not) is its parent's contact information. Motions to compel are governed by the rules of discovery, which: ‘require the disclosure of all relevant information so that ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts....' Gonzalez v. ETourandTravel, Inc., 2014 WL 1250034 at *2 (M.D.Fla. Mar. 26, 2014) (quotes and cite omitted). Hence, ‘[t]he scope of discovery under [Fed. R. Civ. P. 26(b)(1)] is broad and includes ‘discovery regarding any matter, not privileged, which is relevant to the claims or defense of any party involved in the pending action.’ Hickman v. Taylor, 329 U.S. 495, 507–08, 67 S.Ct. 385, 91 L.Ed. 451 (1947).' Id. Those resisting discovery must ‘show specifically how the objected-to request is unreasonable or otherwise unduly burdensome.’ Id. Claims and defenses determine discovery's scope. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th Cir.1997). ‘Evidence is relevant if it has any tendency to make the existence of any fact or consequence more or less probable than it would be without the evidence.’ United States v. Capers, 708 F.3d 1286, 1308 (11th Cir.2013).' Gonzalez, 2014 WL 1250034 at *2. Daniel Def., Inc. v. Remington Arms Co., LLC, 2015 WL 6142883 at *2 (S.D.Ga. Oct. 19, 2015). 4
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Steel Erectors, Inc. v. AIM Steel International, Inc., 312 F.R.D. 673 (2016) 93 Fed.R.Serv.3d 786
Plaintiff claims that AIM breached a contract by failing to pay for work plaintiff performed on two construction projects for the federal government. See doc. 1 at 2-3. If, says plaintiff, AIM's parent company underfunded AIM or otherwise caused AIM to breach its contracts, plaintiff may have a claim against the parent. Doc. 16 at 3. It wants contact information ostensibly so it can propound discovery aimed at uncovering whether such a claim exists. Id. at 4.
Plaintiff's Complaint contains two run-of-the-mill breach of contract claims against AIM. AIM's parent, however, apparently played no role in either alleged breach. See doc. 16 at 2 (“[T[he foreign entity that owns AIM ... was not involved in any way with ... had no participation in ... [and] provided no funding with respect to the two projects which are the subject of this lawsuit.”). Allowing discovery —particularly “complicated and complex” discovery that “may involve treaties or agreements with foreign governments” (doc. 18 at 2)—based solely on plaintiffs
Its parent's identity (and thus parental contact info), argues AIM, is not relevant to plaintiffs claims because “[t]here has not been a single piece of information in this matter referring or implying any involvement by ATM's parent organization.” Doc. 20 at 3. Indeed, “AIM has testified that the parent organization that owns AIM had no participation in either of the projects that are the subject of this lawsuit, and further that the parent organization that owns ATM provided no funding with respect to either of the projects.” Id.
pure speculation 5 and in the face of existing discovery responses indicating no involvement by AIM's parent in the contracts at issue would needlessly increase the expense of this litigation and, in doing so, subvert Rule 26(b)(1)'s goal of “guard[ing] against redundant or disproportionate discovery.” Fed. R. Civ. P. advisory committee note (2015). Hence, plaintiffs motion to compel interrogatory responses is DENIED. Doc. 16.
Too, says AIM, for the same reasons its identity is irrelevant, “[t]he identity of AIM's parent organization is not proportional to the needs of this case.” Id. at 4. Because “AIM's parent organization has not been identified in any way as having any involvement in the issues in this lawsuit,” it cannot possibly have information relevant to “the simple breach of contract issues between the parties.” Id. Allowing discovery into the parentchild relationship thus would, according to AIM, impose a disproportionate (and thus unwarranted) “financial burden on the parties in this simple breach of contract lawsuit.” Id. at 5. [4] Given AIM's existing response to plaintiffs interrogatory—that its parent company *677 had no involvement with and provided no funding for the construction projects at issue—further discovery into the parent-child relationship is not relevant or “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
C. Conclusion [5] Because AIM's Rule 7.1 statement must include its parent, plaintiffs motion to compel (doc. 11) is GRANTED 6 and AIM's motion to seal is DENIED. Doc. 17. AIM must file, within 7 days of the date this Order is served, an unredacted corporate disclosure statement that lists “any parent corporation,” whether foreign or domestic. Plaintiff's motion to compel interrogatory responses (doc. 16), however, is DENIED. The parties' joint motion to extend discovery 75 days also is DENIED. 7 Doc. 18. SO ORDERED, this 4 th day of January, 2016.
All Citations 312 F.R.D. 673, 93 Fed.R.Serv.3d 786
Footnotes
1 2
Defining what constitutes a “higher interest” furthered by sealing proves difficult, but one court has characterized it as disclosure that would not promote the values associated with public scrutiny of the judicial process. See United States v. Sattar, 471 F.Supp.2d 380, 388 (E.D.N.Y.2007). Recall that parties wishing to seal filings “must rebut the presumption of the openness derived from the First Amendment by showing that closure is essential to preserve some higher interest and is narrowly tailored to serve that interest.” L.R. 7.1.1 (emphasis added). AIM's interests thus must “outweigh” or “exceed” the public's.
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Steel Erectors, Inc. v. AIM Steel International, Inc., 312 F.R.D. 673 (2016) 93 Fed.R.Serv.3d 786
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4
5
6
7
Corporate disclosure statements exist “to assist district judges in determining whether they might have a financial interest in a corporate entity that is related to a corporate party in a case before them and therefore requires their recusal.” 5 WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 1197 (3d ed. 2010). Recusal issues involve “[t]he operations of the courts and the judicial conduct of judges,” and thus are “matters of utmost public concern.” Bradley, 2007 WL 1703232 at * 1 (quoting Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir.2007)). The recent changes to the Federal Rules of Civil Procedure (in particular, Rule 26), although substantive and substantial, do not change the definition of relevance. Instead, they reemphasize and highlight requirements already present in the Rules, like proportionality. See Fed. R. Civ. P. 26. advisory committee note (2015) (“Restoring the proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities of the court and the parties to consider proportionality.... Sibley v. Choice Hotels Int'l, 2015 WL 9413101 at *2 (E.D.N.Y. Dec. 22, 2015) (“While proportionality factors have now been incorporated into the Rule 26(b)(1) definition, those factors were already a part of Federal discovery standards, appearing in Rule 26(b)(2)(C)(iii).”). It remains true today both that claims and defenses provide discovery's outer bounds and that “the court is inclined to err in favor of discovery rather than against it.' McCleod v. Nat'l R.R. Passenger Corp., 2014 WL 1616414 at *3 (S.D.Ga. Apr. 22, 2014) (quotes and citation omitted).” Remington, 2015 WL 6142883 at *2. Plaintiff contends that it “may have claims against the parent entity of [AIM], if Plaintiff can show that the parent made a financial decision not to properly fund [AIM] and allowed [AIM] to default on its subcontracts, or other acts of commission or omission took place.” Doc. 16 at 3. That's nothing more than a hypothetical without any support in the record, or connection to the Complaint's allegations. Speculation should never bait a relevancy hook, especially here, where potentially expensive international discovery would ensue. Under Fed. R. Civ. P. 37(a)(5), when a party's motion to compel succeeds, courts “must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” unless “the opposing party's nondisclosure, response, or objection was substantially justified[,] or ... other circumstances make an award of expenses unjust.” Although plaintiff technically prevailed on its Rule 7.1-related motion to compel (doc. 11), the Court awards no expenses. AIM, though ultimately a loser, made a good faith argument for not disclosing its parent's identity. Perhaps more importantly, the Court's decision to compel disclosure rested on First Amendment and public interest principles, not on any arguments plaintiff made in support of its motion. Reflecting that rationale, granting plaintiffs motion to compel is simply a corollary of denying AIM's motion to seal and not a product of any independent merit plaintiffs motion possessed. An award of expenses therefore would be unjust. The parties sought a discovery extension in case the Court allowed further inquiry into AIM's parent's identity. Doc. 18 at 1. Although it has compelled AIM to file an unredacted Rule 7.1 statement that includes its parent, the Court refuses to compel AIM to respond to plaintiff's parent-based interrogatory. It did so on relevancy and proportionality grounds, which means that any future discovery plaintiff aims at AIM's parent as a result of the Rule 7.1 disclosure quite likely would fall on the same sword should AIM move for a protective order or plaintiff to compel (again). Put differently, this Order likely obviates the need for further discovery into AIM's parent and thus also the need for a discovery extension. If that's not the case, the parties remain free to file additional downwind motions.
End of Document
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Robertson v. People Magazine, Not Reported in F.Supp.3d (2015)
2015 WL 9077111 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Tatsha Robertson, Plaintiff, v. People Magazine et al. Defendants. 14 Civ. 6759 (PAC) | Signed 12/16/2015 Attorneys and Law Firms David Evan Gottlieb, Michael John Willemin, Thompson Wigdor LLP, New York, NY, for Plaintiff. Jeffrey Dean Pollack, Timothy Harris Wolf, Mintz & Gold LLP, Nyc, NY, for Defendant.
OPINION & ORDER HONORABLE PAUL A. CROTTY, United States District Judge Plaintiff Tatsha Robertson, a former senior editor at People Magazine (“People”), brings claims against Defendants People, Time Inc. and Betsy Gleick, her superior at People, for unlawful race discrimination and harassment in violation of 42 U.S.C. § 1981, Title VII, and the New York City Human Rights Law. Plaintiff alleges that she was subjected to a discriminatory work environment and ultimately terminated due to her race. Plaintiff moves now to compel discovery of documents concerning People's editorial discussions and decisions on articles to be published (or not published). Defendants object. The Court holds that the discovery requests are burdensome, disproportionate to the needs of the case, and irrelevant to Plaintiff's claims. Even if the requests were relevant, Plaintiff has failed to overcome the qualified reporter's privilege. The motion to compel is DENIED.
Reprinted with permission of Thomson Reuters.
As alleged, Plaintiff worked at Time Inc. publications for eight years until her termination in 2014 due to a purported workforce restructuring. Amended Compl., Dkt. 31 ¶¶ 2, 91. From 2006 to 2009, she worked as a news editor at Essence Magazine, where she received numerous awards, conducted high-profile interviews, and received positive performance reviews. 1 Id. ¶¶ 12-23. Based on her success at Essence, People recruited Plaintiff and she accepted a position as a senior editor in 2009. Id. ¶¶ 24-26. Plaintiff was the only black editor at People, and she alleges that she was discriminated against by Betsy Gleick, who is white and apparently was Plaintiff's superior. Plaintiff alleges that Gleick gave her a negative performance evaluation and told Plaintiff: “You need to talk like everyone else here. You're not at Essence anymore.” Id. ¶ 31. Plaintiff alleges that that remark had racial undertones, and meant that Plaintiff was “somehow not 'White enough.”' Id. ¶ 32. Plaintiff alleges that Gleick hindered her ability to succeed at People by cancelling or skipping meetings at which Plaintiff was scheduled to pitch article ideas, intentionally excluding Plaintiff from important emails, assigning to white editors stories within Plaintiff's area of the magazine, and insisting that “the only types of stories she and People Magazine were interested in printing were those concerning: 'White middle-class suburbia.”' Id. ¶¶ 34-43. Further, Plaintiff alleges that Gleick made racially offensive comments, often in the context of stories pitched by Plaintiff about African-Americans. Id. ¶¶ 44-56. In May 2014, Plaintiff was terminated as part of a larger restructuring. Id. ¶ 91. Plaintiff alleges that she was terminated due to her race, as she was the only senior editor and only direct report of Gleick who was terminated, and she was replaced by a less qualified white employee. Id. ¶¶ 94-95. *2 On October 30, 2014, Plaintiff served her First Request for Production of Documents, containing 135 document requests. See Decl. of Michael J. Willemin, Dkt. 23 Ex. C. Defendants generally object to the document requests on grounds of relevance, burden and editorial privilege. See id. Ex. D at 3, Defendants specifically object to 36 document requests on the grounds that they concern “editorial decisions,” are “burdensome,” and are “designed to harass.” See Def Mem., Dkt. 26, at 4.
BACKGROUND
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Robertson v. People Magazine, Not Reported in F.Supp.3d (2015)
DISCUSSION Federal Rule of Civil Procedure 26 governs the scope and limits of discovery. Prior to the adoption of recent amendments, Rule 26(b)(1) permitted “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense,” including any discovery “reasonably calculated to lead to the discovery of admissible evidence.” But discovery was limited where “the burden or expense of the proposed discovery outweighs its likely benefit,” Fed. R. Civ. P. 26(b)(2)(C) (iii), and by the background principle that the Rules be construed to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. On December 1, 2015, Rule 26(b)(1) was amended to require that discovery be “proportional to the needs of the case.” While the amendment codified a proportionality requirement, courts in this Circuit have long had discretion to limit discovery requests that are disproportionate to the needs of the case, dating at least as far back as the 1983 amendments to Rule 26. See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (“Of course, as in all matters relating to discovery, the district court has broad discretion to limit discovery in a prudential and proportionate way.”); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D.N.Y. 2003) (discussing the “proportionality test” embodied in Rule 26(b)(2)); Advisory Comm. Notes to 1983 Amendment (explaining that the amendment is intended to “address the problem of discovery that is disproportionate to the individual lawsuit”). As such, the 2015 amendment does not create a new standard; rather it serves to exhort judges to exercise their preexisting control over discovery more exactingly. See Advisory Comm. to 2015 Amendment (explaining that the “present amendment restores the proportionality factors to their original place in defining the scope of discovery” (emphasis added) and stressing the “need for continuing and close judicial involvement” in ensuring proportionality). The Court has no trouble concluding that Plaintiff's discovery requests are burdensome and disproportionate. Unlike most discrimination cases where discovery is addressed to allegedly discriminatory conduct and/or comments, Plaintiff here seeks nearly unlimited access to People's editorial files, including all documents covering
the mental process of People staff concerning what would or would not be published in the magazine. To provide a few examples, Plaintiff requests all documents “concerning any of People Magazine's regular meetings,” all documents “concerning any meeting at which discussions concerning which content would appear in People Magazine occurred,” all documents “concerning the decision-making process with regard to choosing who would be put on the cover of People Magazine,” and copies of all of People's covers and published stories dating back to 2005. Decl. of Michael J. Willemin, Dkt. 23 Ex. C at ¶¶ 51, 52, 61, 86, 79, 80. Those requests (and others) extend far beyond the scope of Plaintiffs claims and would significantly burden Defendants. In addition, what Defendants decided to publish (or not publish) and its editorial decisions (as opposed to its business decisions in personnel hiring, firing, promoting, or demoting) are not relevant to Plaintiff's claims. See Fenner v. News Corp., No. 09 cv 9832 (LGS), 2013 WL 6244156, at *16 (S.D.N.Y. Dec. 2, 2013) (rejecting employment discrimination claims by former New York Post employees based on the Post's “editorial decisions about the types of stories it sought to publish”). *3 Even if documents concerning Defendants' editorial discussions and decisions were relevant, these documents would be protected by a qualified editorial privilege that Plaintiff has not overcome. A qualified reporter's privilege is recognized under the First Amendment, federal common law, and the New York Shield Law, codified at New York Civil Rights Law § 79-h. See Schoolcraft v. City of New York, No. 10 cv 6005 (RWS), 2014 WL 1621480, at *2-3 (S.D.N.Y. Apr. 22, 2014). “The privilege, which exists to support the press's important public service function to seek and reveal truthful information, protects newsgathering efforts from the burdensome wholesale production of press files that risk impeding the press in performing its duties.” Id. at 2. Disclosure of nonconfidential editorial documents requires a showing that the materials at issue “are of likely relevance to a significant issue in the case” and “are not reasonably obtainable from other available sources.” Gonzales v. Nat'l Broad, Co., 194 F.3d 29, 36 (2d Cir. 1999). Disclosure of confidential editorial documents requires a “clear and specific showing” that the materials at issue are “highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” In re
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Petroleum Prod. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982). Plaintiff has not even attempted to demonstrate compliance with the privilege standards. Indeed, the document requests seek precisely the “burdensome wholesale production of press files” that the privilege is intended to guard against. Schoolcraft, 2014 WL 1621480, at *2; see also Gonzales, 194 F.3d at 35 (explaining that the privilege serves to prevent litigants from “sift [ing] through press files in search of information supporting their claims”). Since Plaintiff's document requests are overbroad, disproportionate, burdensome and privileged, the motion to compel is denied. The denial is without prejudice, and does not bar Plaintiff from seeking a
more narrowly tailored set of documents, provided such requests comply with the Federal Rules of Civil Procedure and the reporter's privilege.
CONCLUSION Plaintiff's motion to compel discovery is DENIED. The Clerk is directed to terminate the motion at Docket 21. SO ORDERED.
All Citations Not Reported in F.Supp.3d, 2015 WL 9077111
Footnotes
1
Essence describes itself as “the premiere lifestyle, fashion and beauty magazine for African-American women”, About Essence Communications Inc., www.essence.com/about (last visited Dec. 14, 2015).
End of Document
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Louisiana Crawfish Producers Association-West v. Mallard..., Not Reported in...
2015 WL 8074260 Only the Westlaw citation is currently available. United States District Court, W.D. Louisiana. Louisiana Crawfish Producers Association-West, et al. v. Mallard Basin, Inc., et al. CIVIL NO. 6:10-1085 c/w 6:11-0461 | Signed December 4, 2015 Attorneys and Law Firms Joseph R. Joy, III, Joseph Joy & Assoc, Lafayette, LA, Lisa Westenberger Jordan, Tulane Environmental Law Clinic, New Orleans, LA, Adam L. Babich, Tulane Environmental Law Clinic, New Orleans, LA, for Louisiana Crawfish Producers Association-West, et al. Carmen M. Rodriguez, Gary J. Russo, Nadia De La Houssaye, Jones Walker et al, Lafayette, LA, Stanley A. Millan, Jones Walker et al, New Orleans, LA, Eileen T. McDonough, Barbara M.R. Marvin, Kenneth Dean Rooney, Mark Arthur Brown, Barbara M.R. Marvin, US Dept of Justice Env & Natural Resources, Washington, DC, for Mallard Basin, Inc., et al.
ORDER PATRICK J. HANNA, MAGISTRATE JUDGE
UNITED
STATES
*1 Before the Court is the Motion for Discovery filed by the Louisiana Crawfish Producers Association-West, the Atchafalaya Basinkeepers and the Louisiana Environmental Action Network (collectively, “the plaintiffs”). [rec. doc. 179]. Mallard Basin, Inc., Whiskey Bay Island, LLC, and Atchafalaya Investments, LLC, (collectively, “the private defendants”) and the U.S. Army Corps Engineers, Thomas P. Bostick and Robert L. Van Antwerp (collectively, “the federal defendants”) have filed Objections [rec. docs. 191 and 193], to which the plaintiffs have filed a Reply [rec. doc. 195]. The Motion was originally set to be heard on December 22, 2015. [rec. doc. 181]. However, the Court thereafter advised the
Reprinted with permission of Thomson Reuters.
parties that the Motion would be determined without oral argument. [rec. doc. 190]. The plaintiffs seek an order allowing them to enter the private defendants' land to obtain discovery pursuant to Fed.R.Civ.P. 34. More specifically, they seek authorization for a site visit for the purpose of inspection, measuring, surveying, photographing and examining Fisher Lake (a.k.a. Fisher Bottom) and Bayou Cane. The plaintiffs assert that the primary purpose of the intended site visit is to obtain information discoverable and relevant to their NEPA claim, challenging the adequacy of the U.S. Army Corps of Engineers' analysis of the alternatives or impacts associated with the permits at issue in this case. The plaintiffs contemplate a group of approximately ten persons, consisting of four attorneys or legal representatives, two members of the plaintiff organizations, a surveyor, one or two assistants and a hydrologist. The experts will bring surveying and hydrologic equipment and the plaintiffs will bring a camera. They allege that the inspection will take no longer than one day, and will not harm, alter or adversely affect the environmental integrity of the inspected areas. A draft Rule 34 Request is attached to the Motion. [rec. doc. 179-2]. On October 8, 2015, the plaintiffs emailed counsel for the private defendants asking if they would agree to allow entry on to their land to obtain discovery. Attached to that email was a draft proposed Rule 34 Request, setting forth the details of the proposed site visit. The email explained that they were seeking agreement pursuant to the December 10, 2014 Order by the district court, and given that the defendants had previously objected, they wished to obtain the defendants' response to the proposal before bringing the issue by Motion to this Court. The plaintiffs additionally expressly requested if there were any conditions under which the defendants would agree to the visit. The plaintiffs further advised that if the defendants agreed, or the Court ordered the discovery, they would formally request the discovery as outlined in their draft. [rec. doc. 179-3]. When no response was forthcoming, on October 20, 2015, plaintiffs' counsel sent a follow-up email requesting a response, attached to which was an “updated draft” of a proposed Rule 34 Request (presumably the same draft attached to the instant Motion). Defense counsel again apparently did not respond. Another email was sent by
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plaintiffs' counsel on November 3, 2015, advising that if no response was forthcoming, a motion seeking the proposed discovery would be filed. That same date, defense counsel emailed that she would contact Dr. Schumacher and advise of the response the next day. On November 4, 2015, without providing any specific objections to the proposed request which had been emailed to her, or any alternative conditions under which the discovery could proceed, defense counsel responded that she had “discussed the scope of [the] proposed site visit with Dr. Schumacher and we can not agree to same.” [See rec. doc. 179-3, (email chain) and 179-2 (Rule 34 Notice) ]. Accordingly, pursuant to the district court's December 10, 2014 Order, the instant Motion was filed. [See rec. doc. 175]. *2 In opposition to the Motion, the federal and private defendants contend that the plaintiffs' request for entry onto their private property should not be permitted because the plaintiffs have failed to comply with this Court's February 19, 2014 and August 25, 2014 Orders, allegedly requiring formal service of a Rule 34 Notice before bringing a motion to compel. The federal defendants additionally argue that the requested discovery is inappropriate because the evidence which may be produced by such visit goes beyond the scope of review permitted in NEPA cases, and hence will not lead to the discovery of admissible evidence. The private plaintiffs similarly argue that the proposed visit amounts to a “crawfishing expedition” to search for new alleged violations because they are unhappy with the Corps of Engineer's ruling on the permits. The private defendants further assert that the proposed inspection will not lead to relevant evidence, since the Corps of Engineers' ruling at issue in the lead action citizen suit filed by the Louisiana Environmental Action Network has mooted plaintiffs' allegations against them. Finally, both the private and federal defendants argue that the scope of the proposed site inspection is overbroad because the visit will produce evidence regarding negative impacts to cypress trees and flora which will be inadmissible with respect to their NEPA claim, and excessive and unreasonable, because the visit will present logistical difficulties in transporting the proposed group to the site and is not geographically limited to the permitted work area. In the event the Court should order an inspection, however, the private defendants request that the number of attendees be limited to two attorneys (Mr. Joy and Ms. Jordan) and one “consultant” to visually examine
and presumably photograph the permitted work, and both the private and federal defendants request that the inspection likewise be geographically limited to the “permitted work”, defined by the private defendants as “the water control structure, the levee near the water control structure, and the pump and northern dredge ditch” and the federal defendants as “the water control structure and the pump and northern dredged ditch.” Neither party disputes that Rule 34 allows entry upon land as a means of discovery. Rule 34 generally governs procedures for inspection of property and provides that a party may request “within the scope of Rule 26(b)” entry onto property possessed or controlled by the responding party, so that the requesting party may “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Rule 34(a)(2). The request must be reasonably specific. It “must describe with reasonable particularity each item or category of items to be inspected” and “specify a reasonable ... manner for the inspection and for performing the related acts.” Rule 34(b) (1)(A) and(B). As amended, Rule 34 requires the party to whom the request is directed to respond in writing as follows: “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Further, Rule 34 must be applied in connection with Rule 26(b). Federal courts have long embraced a policy of broad and liberal discovery. Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Dollar v. Long Mfg. N.C., Inc. 561 F.2d 613, 616 (5th Cir. 1977); United States v. McWhirter, 376 F.2d 102, 106 (5th Cir. 1967). That policy is reflected in Rule 26(b). As amended, effective December 1, 2015, Rule 26(b)(1) permits broad discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. ...” Rule 26(b)(1). 1 The term “relevant” in Rule 26 is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Accordingly, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1).
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*3 Neither Rule 34 nor Rule 26, however, automatically authorize discovery and the court retains discretion to determine that a discovery request is too broad and oppressive. Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978). A court must limit discovery otherwise allowed by the Federal Rules of Civil Procedure when “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i). With respect to service of discovery requests, “unless the court orders otherwise”, Rule 5 provides for various forms of service upon the attorney for represented parties including by hand delivery, mail, “electronic means if the person consented in writing” or “delivering it by any other means that the person consented to in writing.” On February 19, 2014, this Court deferred ruling on the plaintiffs' prior motion to compel entry onto land to allow the plaintiffs to confect and serve an appropriate Rule 34 Notice, to which the defendants could lodge objections. [rec. doc. 148]. Because the Court had not been made aware of service of such a notice or the lodging of objections to any such notice, by ruling dated August 25, 2014, this Court denied the plaintiffs' prior motion to compel entry onto land without prejudice, assuming that the issues presented in the motion had been amicably resolved, or otherwise rendered moot. In that same ruling with respect to the defendants' motion to limit review of the plaintiffs' claims to the administrative record, the Court found that “[s]ince the duty imposed by NEPA is to develop a comprehensive environmental analysis, extrarecord evidence is often necessary to compare with the administrative record and determine whether the agency has 'adequately considered the environmental impact under NEPA of a particular project.”' Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River Authority. v. U.S. Department of Interior, 951 F.2d 669, 678 (5th Cir. 1992); Coliseum Square Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006). [rec. doc. 165 at pg. 9]. In denying the defendants' appeal of the undersigned's ruling, the district court agreed that “[d]iscovery is allowed in NEPA cases” but acknowledged that “what discovery is actually appropriate remains somewhat vague.” Given the “pattern ... of skipping around the edges of the discovery issue”, the delays in obtaining discovery and the obvious
lack of professional courtesy and cooperation in discovery between the parties, in order “to satisfy the several burdens on the taking of discovery in this case” the district court implemented a specific procedure for discovery in this case. “Going forward, all proposed specific discovery requests not agreed to by the Defendants shall first be presented to the Magistrate Judge with a request and justification for the allowance of the discovery. Defendants shall have ten (10) days to file objections and their justification for not allowing discovery. The Magistrate Judge shall rule in due course.” [rec. doc. 175]. With respect to the defendants' argument regarding service of a formal Rule 34 request, as correctly noted by the plaintiffs in their reply, the defendants miss the import of the district court's ruling. Judge Drell sought to speed the discovery process and minimize the need for judicial intervention by implementing a procedure whereby discovery issues could be amicably resolved. Under this procedure, the Court contemplated that a party would present their proposed discovery request to the opposing parties for agreement or objection prior to serving a formal discovery request. In the absence of such agreement, the party requesting discovery was to bring the proposal and the objections before the Court to obtain an order allowing the discovery. This is exactly what the plaintiffs have attempted to do. Thus, the defendants objections based on lack of proper service is unfounded. *4 Furthermore, even if formal service could be considered a prerequisite to the filing of the instant Motion for Discovery, the Court notes that unlike the situation presented by the plaintiffs prior Motion to Compel, the defendants have already electronically received a detailed discovery request. While such notice perhaps not technically in conformity with the dictates of Rule 5, certainly provides more than adequate notice of the plaintiffs' intentions, which the Code of Professionalism would suggest not be ignored by the defendants. Nevertheless, since the Court will allow the proposed site inspection as requested in their draft Rule 34 notice, the plaintiffs will be ordered to properly serve this Rule 34 Notice on the defendants, setting the site inspection for a date on or before January 31, 2016. The defendants' arguments against permitting the requested discovery are unconvincing. This Court has repeatedly advised the parties that a site inspection was appropriate in this case and would be ordered. Indeed,
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the Court cannot envision a more appropriate form of discovery than that requested. They seek to obtain and develop evidence to compare to that contained in the administrative record to demonstrate inadequacies in the Corps' analysis and to determine whether the Corps took a “hard look” at the environmental consequences of its permitting decision, the duty imposed upon the Corps under NEPA, thereby showing that an uninformed or unreasoned decision was made. 2 Nevertheless, the defendants continue to resist the plaintiffs' reasonable request for discovery on tenuous grounds, asserting essentially the same arguments which were made, and implicitly rejected by this Court in connection with their motion to limit review to the administrative record and for a protective order. [See rec. doc. 165, pg. 4-11; 143 and 161]. *5 If this Court's prior ruling was in any way ambiguous, the Court now expressly holds that discovery regarding the environmental impact of the permitting decision, including that necessary to prepare post-decisional expert reports beyond the reports and testimony already contained in the record will be permitted. Such evidence is clearly relevant to the plaintiffs' NEPA claim as it may be used to compare with the administrative record and aid this Court's determination as to whether the Corp “adequately considered the environmental impact under NEPA” of their permitting decision. See Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 678 (5th Cir. 1992); Coliseum Square Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006). That is not to say that any or all of this extra-record evidence developed through this discovery will be otherwise admissible for review. At this stage, however, admissibility is not at issue. See Rule 26(b)(1). Rather, at this stage, the Court simply reviews the request for relevance and proportionality. Id. With respect to the former, the Court cannot say that the requested discovery will not “encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc., 437 U.S. at 351. With respect to the latter, the Court cannot conclude that the requested discovery is disproportional to the needs of the case. To the contrary, the issues at stake with respect to the plaintiffs' NEPA claim are extremely important not only to the plaintiffs but to all citizens who visit and enjoy the Atchafalaya Basin area and the discovery appears
essential for the resolution of the plaintiffs' NEPA claim. While the defendants have, or have had, access to the area sought to be inspected, the plaintiffs do not enjoy that same access. Moreover, there has been no showing that the parties' (or more specifically the defendants') resources are insufficient to accommodate the plaintiffs' request or that the requested discovery will cause the defendants any expense, much less any undue expense. There has been no showing by the private defendants, who ultimately may bear the burden of any “logistical difficulties in transporting the proposed group” cited by the federal defendants, that the burden of the plaintiffs' requested discovery outweighs its likely benefit. Finally, the Court finds no reason to limit the scope of the discovery as requested by the defendants. Although the federal defendants cite “logistical difficulties in transporting the proposed group” to the inspected area as justification for limiting the number of persons who may attend the inspection, there has been no showing by the private defendants that they would, in fact, be unable to accommodate the requested group of nine to ten persons. Rather, the private defendants provide no argument or any explanation whatsoever as to why the number of attendees should be limited. Instead, arbitrarily and in a conclusory fashion, they state that only two attorneys, of their choosing (Mr. Joy and Ms. Jordan), and one “consultant” should be permitted on their land. Likewise, this Court finds no reason to geographically limit the site inspection to “permitted work”, that is “the water control structure, the levee near the water control structure, and the pump and northern dredge ditch.” The relevant area of discovery with respect to the plaintiffs' NEPA claim is the area affected by the permitted work, and is not limited, as the defendants suggest to solely to the area where “permitted work” was performed. There has been no showing that the affected area does not include Fisher Lake (a.k.a. Fisher Bottom) and Bayou Cane, or related areas requested to be inspected by the plaintiffs. For these reasons, the plaintiffs' Motion for Discovery [rec. doc. 179] is granted. The plaintiffs are permitted to perform a Rule 34 site inspection in accordance with the terms and details set forth in their draft Rule 34 Request attached to the Motion. [rec. doc. 179-2]. Within seven (7) days, the parties shall agree on a mutually convenient date for the inspection. The inspection shall be performed no later than January 31, 2016. The plaintiffs may serve a
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Rule 34 Request/Notice on the defendants incorporating the agreed upon inspection date. THUS DONE AND SIGNED, in chambers, in Lafayette, Louisiana, on this 4th day of December, 2015.
All Citations Not Reported in F.Supp.3d, 2015 WL 8074260
Footnotes
1
2
The Amendments to Rule 26(b)(1) are designed to promote discovery tailored to meet the reasonable needs of the case, “considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” By prior Ruling this Court explained the necessity of discovery in NEPA cases as follows: ... NEPA is strictly procedural. The statute does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a “hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, (1976)). “Indeed, NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects' environmental consequences.” Sabine River Authority. v. U.S. Department of Interior, 951 F.2d 669, 676 (5th Cir. 1992). “Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed—rather than unwise—agency action.” Id. (quoting Robertson, 490 U.S. 351). NEPA requires, among other things, the preparation of a comprehensive environmental impact statement (EIS) whenever proposals for legislation or other major Federal actions significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502. This includes exploration and objective evaluation of all reasonable alternatives to the proposed action. The Court's evaluation of the adequacy of an EIS includes: “(1)whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action and alternatives; (2) whether the EIS provides detail sufficient to allow those who did not participate in its preparation to understand and consider the pertinent environmental influences involved; and (3) whether the EIS explanation of alternatives is sufficient to permit a reasoned choice among different courses of action.” Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 174-75(5th Cir. 2000). Since the duty imposed by NEPA is to develop a comprehensive environmental analysis, extra-record evidence is often necessary to compare with the administrative record and determine whether the agency has “adequately considered the environmental impact under NEPA of a particular project “adequately considered the environmental impact under NEPA of a particular project.” Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River Authority, 951 F.2d at 678. Coliseum Square Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006). [rec. doc. 165, at pg. 7-11].
End of Document
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Wilmington Trust Company v. AEP Generating Company, Slip Copy (2016) Reuters.
2016 WL 860693 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Eastern Division. Wilmington Trust Company, et al., Plaintiffs, v. AEP Generating Company, et al., Defendants. Case No. 2:13-cv-01213 | Filed 03/07/2016 Terence P. Kemp, United States Magistrate Judge OPINION AND ORDER *1 This order will address Plaintiffs' motion to compel (Doc. 143), which asks the Court to order Defendants to conduct an additional search for electronically stored documents covering two time frames excluded from the initial search. The motion is fully briefed. For the following reasons, the motion will be granted in part and denied in part.
I. Background The issue raised by the motion to compel can be stated simply. Plaintiffs have served several sets of document requests. Most of the responsive documents were maintained in electronic form, meaning that some type of electronic search protocol was necessary to identify them. Defendants ran such a search for documents in certain time frames. Those time frames did not include calendar years 2009 and 2010 (with the exception of documents maintained by four records custodians during the second half of 2010), and they did not include any dates after the complaint was filed in this case (July 26, 2013). The parties differ on the propriety of those exclusions. Plaintiffs also claim that Defendants did not timely object to searching these particular time periods, while Defendants argue that Plaintiffs waited too long to express their objections to the limitations of the search. Leaving these issues aside –each party has a colorable argument, and the Court will not resolve this issue on the basis
of timeliness on either side – the question devolves into an inquiry about relevance and undue burden (as many discovery disputes do). Plaintiffs argue that it is simply inconceivable that Defendants stopped discussing or communicating about matters relevant to the case for two years (or eighteen months) beginning on January 1, 2009, or that the same thing magically occurred the date the lawsuit was filed. The low chance of that having actually occurred, coupled with the production of a few documents from the excluded time frames which are relevant to the case, is enough, in Plaintiffs' view, for them to satisfy their burden of showing that they are seeking to compel the production of relevant documents. Defendants counter with the argument that they spent much time planning their response to the document requests, ultimately deciding that because the key events in this case included, after the negotiation of the contract, the 2007 consent decree issued by this Court and the 2013 modification, that it would be a waste of resources to search for any documents in the 2009-10 time frame because nothing of significance was happening then. Their interviews with the likely document custodians led them to conclude that four of them might have been working on something relevant to this case in the latter half of 2010, and those individuals' documents generated in that time frame were searched (a search which produced a handful of documents, including ones relied on by Plaintiffs to show that there were some relevant communications occurring then). Defendants also claim that, given that Plaintiffs' claims are based on contractual breaches which were supposedly complete when the complaint was filed, no documents created after that time could possibly be relevant. As to that latter category, Plaintiffs assert that they want only an additional four months of documents, and that it is again illogical to conclude that all relevant communications ceased just because a complaint had been filed.
II. Discussion *2 Plaintiffs make a valid point that, if relevant documents were created in calendar year 2008 and again in calendar year 2011 – which Defendants do not dispute – it stands to reason that some volume of responsive documents was created in 2009 or 2010. However, given
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the representations made by Defendants about how and why they restricted their search in a way that excluded, for the most part, 2009 and 2010, it seems likely that the volume of documents is small. It is also apparent that it will be very costly and time-consuming to search that database, to conduct a privilege review, and to prepare the documents for production. Defendants estimate, based on the way in which the search proceeded for other years, that as many as a million pages of documents will have to be searched, and that the search might produce 200,000 pages of documents which will have to be reviewed manually. Plaintiffs do not suggest that these numbers are inaccurate. Clearly, the question of proportionality is raised by this scenario (see Fed.R.Civ.P. 26(b)(1)), which now describes the proper scope of discovery as encompassing (“any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action...and whether the burden or expense of the proposed discovery outweighs its likely benefit”). Plaintiffs do not really address the proportionality issue other than by arguing that since they met their initial obligation to show that the search would produce some relevant documents, it is up to Defendants to show that it would be unduly burdensome to do the search. Courts have, in evaluating the proportionality issue, suggested that both parties have some stake in addressing the various relevant factors. See, e.g., Oracle America, Inc. v. Google, Inc., 2015 WL 7775243, *2 (N.D. Cal. Dec. 3, 2015) (observing that “[n]either party submitted a proper analysis of the Rule 26 proportionality factors” and that the moving party, Oracle, “did not fully address any of the proportionality factors, including the importance of the requested discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit” – leaving the court in the position of having to “make its best judgment based on the limited information before it”). Certainly, a responding party still must meet its burden of explaining how costly or time-consuming responding to a set of discovery requests will be, because that information is ordinarily better known to the responder than the requester. However, once that information is presented, there is no reason why both sides should not be required to address the issue of proportionality, especially since the requesting party can explain as well as the responder –and perhaps better – why the information it is seeking is important to resolving the
case and why it would be a good use of the other party's resources to search for it. Plaintiffs are undoubtedly correct that the search they propose would turn up some relevant documents. Defendants, however, have already produced a mound of relevant documents, and have explained why they do not think it likely that any great volume of relevant documents would be uncovered by the proposed search, and why any such documents would not be nearly as relevant as ones created at other times. That explanation is logical in light of the issues raised in this case. For their part, Plaintiffs have not presented anything – either evidence or persuasive argument – showing that this search would materially add to their existing collection of relevant documents. They do not suggest, for example, that there are gaps in the already-produced set of documents which can only be filled in by documents from 2009 or 2010, or that there is some element of their claim for relief which they may be hampered from proving without additional documents. Given this state of the record, the Court concludes that ordering Defendants to go back and search the 2009 and 2010 documents would violate the rule of proportionality, and it will not order that search. The post-complaint documents stand in a different posture, however. It would be less costly for Defendants to undertake that search, and the Court is not persuaded that the date on which the complaint was filed is some sort of talismanic date after which no relevant documents could possibly have been produced. It is not uncommon for a document to refer to events which occurred days, months, or even years before, so even if the filing date of a complaint represents the last date on which relevant actions were taken, it does not necessarily represent the last date on which relevant documents were created. In other words, making such a categorical judgment is simply not possible, nor does it comport with reality. See First Horizon Nat'l Corp. v. Certain Underwriters at Lloyd's, 2013 WL 11090763, *3 (W.D. Tenn. Feb. 27, 2013), where the court “decline[d] to adopt a wholesale exclusion from discovery for materials created after the filing of the...complaint,” citing Douglas C. Rennie, Why the Beginning Should Be the End: The Argument for Exempting Postcomplaint Materials from Rule (26)(b) (5)(A)'s Privilege Log Requirement, 85 Tul. L.Rev. 109, 145–46 (2010).
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*3 Further, as to these documents, Defendants have not presented any specific argument about undue burden, apart from their general assertion that they have disassembled their review teams. That is a consideration, and the Court is not persuaded that, as Plaintiffs assert, Defendants did so unilaterally and without considering whether additional document review might be necessary. Especially as to post-complaint documents, it appears that Plaintiffs have been on notice for some time that Defendants would not produce these, and their motion as to these documents appears fairly late in the day. However, given the fact that a categorical approach to post-complaint documents is not appropriate, the Court will direct that some further effort be made to locate and produce any responsive documents created in the fourmonth time frame after July 26, 2013. Defendants are therefore directed to search the records of the four persons they believe to be the most likely to have such records. Since many post-complaint documents will be privileged communications between counsel and client, and it would be time-consuming to create a log for these documents, Defendants are excused from the obligation to perform that task. Defendants may choose the most efficient search method to use. The Court will direct that they produce any additional responsive documents within thirty days of the date of this order.
III. Conclusion
For the reasons stated in this Opinion and Order, Plaintiff's motion to compel (Doc. 143) is granted in part and denied in part as set forth above. Defendants are directed to comply with the Court's directives concerning post-complaint documents and to produce any additional documents within thirty days.
IV. Motion to Reconsider Any party may, within fourteen days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1) (A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due fourteen days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law. This order is in full force and effect even if a motion for reconsideration has been filed unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
All Citations Slip Copy, 2016 WL 860693
End of Document
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Civil Procedure...–––– 2016 WL 3923873 Only the Westlaw citation is currently available. United States District Court, E.D. Louisiana. In re: Xarelto (Rivaroxaban) Products Liability Litigation. This Document Relates To: All Cases. MDL NO. 2592 | Signed 07/20/2016 | Filed 07/21/2016
i. The Presence of Personal Data...–––– ii. Consent of the Data Subject...–––– iii. Exceptions to the Transfer and Purpose Restrictions on Personal Data...–––– C. Analysis of the Société Nationale Factors ...–––– i. The Sought Information and the Privacy Logs...–––– ii. Application of the Standard...–––– 1. The Importance of the Requested Discovery to the Litigation...–––– 2. The Degree of Specificity of the Request...––––
ORDER & REASONS Eldon E. Fallon, UNITED STATES DISTRICT JUDGE *1 Before the Court is the PSC’s Motion to Compel Discovery of Defendants’ German Employees’ Personnel Files. R. 2951. Having reviewed the parties’ briefs, the applicable law, and the matters raised during oral argument the Court now issues this Order & Reasons. TABLE OF CONTENTS I. BACKGROUND...–––– II. THE PRESENT MOTION...–––– A. The PSC’s Motion...–––– B. Bayer’s Opposition...–––– C. The PSC’s Reply...–––– III. DISCUSSION ...–––– A. Applicable Law ...–––– i. The Relationship between the Federal Rules of Civil Procedure and Foreign Blocking Statutes...–––– ii. The German Data Protection Act...–––– B. Analysis of the Potential Conflict between the German Data Protection Act and the Federal Rules of
3. Whether the Information Originated in the United States...–––– 4. The Availability of Alternative Means of Securing the Information...–––– 5. The Balancing of National Interests...–––– iii. Weighing the Factors...–––– D. Timeliness of the Request...–––– IV. CONCLUSION...–––– I. BACKGROUND This matter arises from damages Plaintiffs claim to have suffered from the manufacture, sale, distribution, and/or use of the medication known as Xarelto, an anti-coagulant used for a variety of blood-thinning medical purposes. The Plaintiffs have filed suits in federal courts throughout the nation against Defendants, Bayer Corporation, Bayer HealthCare LLC, Bayer HealthCare Pharmaceuticals Inc., Bayer HealthCare AG, Bayer Pharma AG, and Bayer AG (collectively, Bayer), Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, Janssen Ortho LLC, and Johnson & Johnson (collectively, Janssen). The Plaintiffs allege that they or their family members suffered severe bleeding and other injuries due to Xarelto’s allegedly inadequate warning label, among other things, as well as Xarelto’s purported lack of reliance on regular blood monitoring. The Judicial Panel on Multidistrict Litigation determined
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that the Plaintiffs’ claims involved common questions of fact, and that centralization under 28 U.S.C. § 1407 would serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Therefore, on December 12, 2014, the Judicial Panel on Multidistrict Litigation consolidated the Plaintiffs’ Xarelto claims into a single multidistrict proceeding (“MDL 2592”). MDL 2592 was assigned to Judge Eldon E. Fallon of the United States District Court for the Eastern District of Louisiana to coordinate discovery and other pretrial matters in the pending cases. Subsequent Xarelto cases filed in federal court have been transferred to this district court to become part of MDL 2592 as “tag along” cases. The Court has appointed committees to represent the parties, and discovery has commenced. The Court adopted a discovery plan and set bellwether trials to begin in February 2017. *2 In anticipation of the deposition phase of discovery, the PSC requested the production of the custodial files and the personnel files of Defendants’ employee-witnesses. Custodial files are maintained by the employee and include documents generated or received by the employee concerning the employee’s work. R. 1922 at 2. In contrast, personnel files are maintained by the Human Resources department of an employer, and are likely to contain confidential employer evaluations which the employee may have never seen. R. 1922 at 2. The personnel file may also include sensitive information such as salary, physical or mental health data, alimony and child support garnishment, tax records, and drug test results. See Williams v. Roy O. Martin Lumber Co. LLC, 51 Fed.Appx. 483, at *6 (5th Cir. 2002). On January 14, 2016, the Court ordered the parties to file briefing concerning the deposition protocol, so that a Pretrial Order could be issued for the purpose of setting guidelines in advance of the deposition phase of discovery. R. 1914. Both the PSC and Defendants timely filed memoranda in support of their positions on the protocol. R. 1920, 1922. In the briefing, the parties contested the discoverability of employee personnel files. Neither Janssen nor Bayer resisted production of custodial files. However, both Janssen and Bayer asserted that personnel files did not fall within the scope of Rule 26(b), because the privacy interests of the deponent-employees outweighed the PSC’s interest in discovery. R. 1922 at 5. Bayer also objected to the production of personnel files on the grounds that the personnel files contained “personal data,” and production of such data would constitute a violation of the German Data Protection Act. R. 1922 at 10. After hearing oral argument and reviewing the briefs, the
Court issued an Order & Reasons requiring the PSC to provide an “individualized showing of relevancy, proportionality, and particularity,” for each witness whose personnel files they sought. R. 1987 at 8. Following the Court’s instruction, the PSC noticed depositions of the Janssen employees and made a specific, particularized request for various types of material contained in the personnel files of those witnesses. The Court subsequently required Janssen to produce the files for an in camera examination. The Court then appropriately tailored the scale of production by balancing the relevancy and importance of the material against employee privacy interests. The Court delayed ruling on the German law issue raised by Bayer, finding that the parties failed to present sufficient briefing for the Court to determine whether a “blocking statute” such as the German Data Protection Act could trump the Federal Rules of Civil Procedure. R. 1987 at 8 n.1. However, at the request of the parties, the Court later provided guidance on the German law issue at a telephonic discovery conference, and the parties jointly agreed to revisit the applicability of the German Data Protection Act at a later date. R. 2048. Meanwhile, the parties began exchanging documents and taking depositions of Janssen witnesses.
II. THE PRESENT MOTION The present motion returns to the discovery issues presented by the German Data Protection Act. On April 1, 2016, the PSC filed a Motion to Compel Discovery of Defendants’ German Employees’ Personnel Files, In Its Entirety. R. 2951. The motion specifically addresses the discovery of deponents Frank Misselwitz, MD, PhD, and Dagmar Kubitza, MD. The PSC seeks to compel Xarelto-related documents associated with these witnesses’ performance reviews, self-reviews, annual compensation, incentives and bonuses, or, in the alternative, to produce these documents to the Court for in camera inspection. R. 1951-1 at 1. *3 The Court issued an Order & Reasons on May 16, 2016 that ordered Bayer to produce a privacy log of the employee personnel files. R. 3237. In light of the considerable comity interests at issue, the Court sought to better understand the “character, nature, and quantity of the personal data contained in the files,” R. 3237 at 10, before evaluating the legality of production under the German Data Protection Act or conducting a balancing of interests pursuant to Société Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa. 482 U.S. 522, 548 (1987). Bayer filed a Notice of Filing of Privacy Logs on June 6,
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2016. R. 3384. The PSC filed a Reply to Bayer’s privacy logs on May 16, 2016. R. 3560.
A. The PSC’s Motion (R. 2951) The PSC contends that the German Data Protection Act does not trump the Federal Rules of Civil Procedure concerning the discovery of personnel files such as the ones at issue. R. 2951. The PSC takes the position that the Court has ordered the production of numerous domestic personnel files associated with employees of Janssen, and that the “effect of the so-called German blocking statute” should not lead to a different outcome. R. 2951-1 at 2. The PSC begins by providing a particularized discussion of Dr. Misselwitz and Dr. Kubitza’s importance to the litigation. Opening with the former, the PSC notes that Dr. Misselwitz is the Vice President at Bayer AG, and leads the Cardiovascular Therapeutic Area in Wuppertal, Germany. R. 2951-1 at 4. Dr. Misselwitz directed other Xarelto development leaders, including Bayer’s Thrombosis Head, Bayer’s Cardiovascular Head, Bayer’s Hematology Head, and Bayer’s Lead for Pediatric Development. R. 2951-1 at 4. Dr. Misselwizt has a long history with Xarelto. He joined Bayer’s Strategic Drug Development—Cardiovascular Team on April 1, 2002. R. 2951-1 at 5. Dr. Misselwitz worked closely with Janssen leadership in the course of the Xarelto partnership between Bayer and Janssen. R. 2951-1 at 5. Dr. Misselwitz also acted as a public voice for Xarelto during its development by meeting with investors and authoring publications. R. 2951-1 at 5. The PSC asserts that Dr. Misselwitz was one of the two primary drivers behind the selection of once-a-day dosing for Xarelto. Lastly, the PSC points out that Dr. Misselwitz supported the use of project-specific bonuses to incentivize Bayer employees working on projects such as Xarelto. R. 2951-1 at 6–7. With the preceding in mind, the PSC takes the position that Dr. Misselwitz’s personnel files will likely contain material that reveals “strategic plans for [sic] which Dr. Misselwitz and/or his superiors felt to be of critical importance to Xarelto development.” R. 2951-1 at 7–8. The PSC next describes in particularity Dr. Kubitza’s role at Bayer. Dr. Kubitza’s high-level leadership role at Bayer began in 2007, when she was promoted to Group Leader Acute Care within Clinical Pharmacology. R. 2951-1 at 8. Dr. Kubitza was crucial to the assessment of the pharmacodynamics profile of Xarelto, and consulted with others at Bayer concerning inquiries involving Xarelto raised by regulatory bodies, both foreign and domestic. Dr. Kubitza participated in discussions concerning the
financial consequences of potential dosing regimens in response to inquiries made by investment banking firms. R. 2951-1 at 9. The PSC also contends that Dr. Kubitza was the second primary driver of once-a-day dosing for Xarelto. Dr. Kubitza continues to be involved with Xarelto. She attends conferences and forums which discuss the ongoing debate concerning the need to measure plasma concentrations of Xarelto in an effort to appropriately dose all patients. The PSC argues that Dr. Kubitza’s personnel files may provide evidence of bias, and could bring to light additional discoverable information. R. 2951-1 at 10. *4 The PSC lastly turns to the German Data Protection Act and claims that it is inapplicable to the deposition requests at bar. The PSC concedes that the German Data Protection Act prohibits the transfer of “personal data” to any jurisdiction that does not provide the same level of privacy protections as the European Union. R. 2951-1 at 11. However, the PSC takes the position that the personnel files fall into an exception which allows the sharing of personal data where “the transfer is necessary or legally required on important public interest grounds, or for the establishment, exercise, or defense of legal claims.” R. 2951-1 at 11. Arguing in the alternative, the PSC cites the Supreme Court’s opinion in Société Nationale Industrielle Aerospatiale v. U. S. Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 546 (1987), and argues that the Société Nationale factors weigh in favor of disclosure even if disclosure is prohibited by German law. R. 2951-1 at 12.
B. Bayer’s Opposition (R. 3146) Bayer contends that the Court should not require the production of the documents at issue, because production would violate the German Data Protection Act. Bayer recognizes that the illegality of production under foreign law is not dispositive, but argues that the comity interests set forth in Société Nationale weigh against the production of personnel files due to the employee privacy interests involved. Bayer begins by asserting that personnel files are subject to heightened protection under the German Data Protection Act, and that no exceptions to the Act allow for production. Bayer notes that the German Constitution provides for a “right to informational self-determination,” and argues that the German Data Protection Act buttresses the values of said right. R. 3146 at 8. The Defendant leans heavily on the affidavit of its German law expert, Dr. Henning Moelle. R. 3146-1. Citing Moelle, Bayer takes
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the position that production of personal data could “subject [Bayer] to administrative or criminal penalties, including fines and imprisonment for up to two years, and to civil liability.” R. 3146 at 8 (citing R. 3146-1 at 9). Before addressing the German Data Protection Act itself, Bayer attempts to distinguish the “1.1 million German-stored documents” they have already produced from the documents currently sought by the PSC. R. 3146 at 9. Bayer concedes that most, if not all, of the documents produced by Bayer contain some personal data within the scope of the German Data Protection Act. R. 3146 at 9. Bayer distinguishes the files by arguing that German law recognizes a distinction between custodial files and personnel files. According to Bayer, custodial files are employee-maintained documents that were “generated or received by the employee concerning the employee’s work.” R. 3146 at 10. In contrast, Bayer characterizes personnel files as a unique “compilation of personal data” that are maintained by an employer’s Human Resources department. R. 3146 at 10 (quoting R. 3146-1 at 4). In justifying this uniqueness, Moelle contends that personnel files are “massive compilation[s] of personal data of the employee,” and that they necessarily include personal and sensitive material. R. 3146-1 at 4– 5, 9. Turning to the text of the German Data Protection Act, Bayer contends that the Act calls for a balancing of interests whenever the production of personnel files is at issue. “Under the...balancing test, the employees’ interest in protecting their personnel records from what would be a massive personal-data dump is extraordinarily high, even when weighed against any litigation interest.” R. 3146 at 11. Somewhat contradicting its assertion that a balancing test applies, Bayer also asserts that the Act provides that personnel files may only be disclosed “for a legitimate purpose of the employment relationship.” R. 3146 at 11 (citing R. 3146-1 at 7). *5 Moelle’s affidavit clarifies this matter. According to Moelle, the German Data Protection Act’s “legitimate purpose of the employment relationship” language does not alter the exceptions applicable to the transfer of personnel records for business purposes. R. 3146-1 at 7– 8. Instead, Moelle contends that this section of the Act provide contextual evidence of the “great weight that should be afforded employee privacy interests.” Moelle takes the position that the personal records at issue may be transferred without violating the Act if the employer has a legitimate interest in transfer, and “there is no reason to assume that the data subjects have an overriding interest against such processing and transfer of their data.” R. 3146-1 at 8.
Following their discussion of German law, Bayer addresses the Supreme Court’s Société Nationale balancing test. Bayer concedes that this Court has the authority to compel the production of the German files, even if production violates the German Data Protection Act. R. 3146 at 13. However, Bayer correctly states that the Court must first conduct a Société Nationale comity analysis before ordering Bayer to violate a foreign blocking statute. Bayer takes the position that the balancing test weighs against production. Bayer interprets Société Nationale to call for the use of the five factors of the Restatement (Third) of Foreign Relations. Bayer addresses each in turn, emphasizing their position that the personnel files contain highly sensitive employee data and that the PSC may find the evidence it seeks in the 1.1 million documents already produced by Bayer or by asking the witnesses at deposition. R. 3146 at 13– 17. Lastly, Bayer argues that the PSC’s motion for Dr. Kubitza’s file is untimely. Dr. Kubitza was deposed in Amsterdam on February 29 and March 1, 2016. Bayer contends that the PSC did not raise at deposition any of the issues they now argue are crucial to their case, and are therefore barred from seeking Dr. Kubitza’s personnel files.
C. The PSC’s Reply (R. 3173) The PSC timely replies. R. 3173. The PSC refines two of its arguments in response to the Defendants’ Opposition and the affidavit of Bayer’s German law expert. The PSC contends that the German Data Protection Act does not prevent the disclosure of the personnel files at issue. The PSC avers that Bayer’s German law expert conceded that section 4(c)(1)(3) of the Act is an exception that allows for the transfer of personal data in this case. R. 3173-1 at 3–4. The PSC further argues that Bayer wrongly distinguishes between personnel files and custodial files under German law. According to the PSC, “Personnel files are not the test; personal data is.” R. 3173-1 at 4. The PSC then cites case law where domestic courts found that personal data should be compelled despite the objections of German defendants. R. 3173-1 at 4. The PSC also provides its Société Nationale comity analysis. R. 3173-1 at 4–9. Addressing the five factors of the Third Restatement of the Law of Foreign Relations, § 442 (Am. Law Inst. 1987), the PSC contends that all but one of the factors—whether the information originated in
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the United States—points towards the production of the personnel files. R. 3173-1 at 4–9. And with respect to this one adverse factor, the PSC emphasizes the fact that Bayer voluntarily chose to engage in extensive commerce with the United States, and avers that Bayer should not be able to hide behind German discovery protections when it purposefully availed itself of United States markets. R. 3173-1 at 7–9.
III. DISCUSSION A. Applicable Law The present matter presents a conflict between Rule 26 of the Federal Rules of Civil Procedure and a “blocking statute,” the German Data Protection Act. In seeking a resolution of this conflict that respects the discovery rights and defenses of the parties as well as the comity concerns of the United States and Germany, a review of American and German civil procedure as well as the law concerning blocking statutes is appropriate.
*6 i. The Relationship between the Federal Rules of Civil Procedure and Foreign Blocking Statutes The PSC seeks the production of deponent employees’ personnel files. The PSC claims that these files likely contain information regarding compensation, performance bonuses, and other incentives that rewarded conduct which caused Xarelto to be prematurely rushed to the marketplace. Because this is a discovery issue, Rule 26 of the Federal Rules of Civil Procedure applies. Rule 26(b)(2) defines the scope of discovery as “any nonprivileged matter that is relevant to the party’s claim or defense and proportionate to the needs of the case.... unless otherwise limited by a court order.” The rules of discovery are to be interpreted with a “liberal spirit.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (quoting Burns v. Thiokol Chem. Corp., 483 F.2d 300, 305 (5th Cir. 1973)). At the outset, the Court notes that despite the broad scope of discovery, personnel files are generally treated with special care in the Fifth Circuit. In Coughlin v. Lee, the circuit court held that a district court must consider specific factors in weighing the competing privacy and discovery interests presented by a request for the production of personnel files. Id. at 1155–57. The Fifth Circuit adopted ten factors outlined in Frankenhauser v.
Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. 1973), six of which are relevant in a civil case against a private defendant such as Bayer: (1) “the impact upon persons who have given information of having their identities disclosed;” (2) “whether the information sought is factual data or evaluative summary;” (3) “whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question;” (4) “whether the plaintiff’s suit is non-frivolous and brought in good faith;” (5) “whether the information sought is available through other discovery or from other sources; and” (6) “the importance of the information sought to the plaintiff’s case.” Id. The court emphasized the importance of particularity, calling for a “case to case” balancing of the variables before the court. Id. Furthermore, the production of discovery material such as personnel files sometimes carries civil or criminal consequences abroad. Through the use of so-called “blocking statutes,” foreign states may “prohibit[ ] the disclosure, copying, inspection, or removal of documents located in the territory of the enacting state in compliance with the orders of foreign authorities.” Restatement (Third) of Foreign Relations Law § 442 (Am. Law Inst. 1987). Countries such as France, China, Malaysia, the Netherlands, Canada, and Germany have enacted blocking statutes, and thereby indirectly affect the relatively broad scope of American discovery. See id.; John T. Yip, Addressing the Costs and Comity Concerns of International E-Discovery, 87 Wash. L. Rev. 595, 615 (2012). The Supreme Court last addressed the relationship between blocking statutes and American discovery procedures in Société Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa. 482 U.S. 522, 548 (1987); see also Société Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204–06 (1958). In Société Nationale, a foreign litigant argued that American discovery procedures must yield to the discovery procedures of the Hague Convention, as required by French penal law. See Société Nationale, 482 U.S. at 526. The Court disagreed and adopted a balancing “comity analysis,” reasoning that “foreign tribunals will recognize that the final decision on the evidence to be used in litigation conducted in American courts must be made by those courts.” Id. at 542, 544 n.28. The Court declined to articulate the factors of the test. Id. at 546. *7 In the wake of Société Nationale, courts have devised numerous mechanisms for performing the Court’s unarticulated “comity analysis.” See Geoffrey Sant,
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Court-Ordered Law Breaking U.S. Courts Increasingly Order the Violation of Foreign Law, 81 Brook. L. Rev. 181, 186–87 (2015). Some courts use a three-factor test. For example, the District of Connecticut examines whether: “(1) the examination of the particular facts of the case, particularly with regard to the nature of the discovery requested; (2) the sovereign interests in issue; and (3) the likelihood that the [foreign discovery] procedures will prove effective.”1 Valois of America, Inc. v. Risdon Corp., 283 F.R.D. 344, 346 (D. Conn. 1997); see also In re Aircrash Disaster Near Roselawn, Ind., October 31, 1994, 172 F.R.D. 295, 309 (N.D. III. 1997) (employing the same factors). Others, such as the Second Circuit, have used a four-factor test, examining “(i) the competing interests of the nations whose laws are in conflict; (ii) the hardship that compliance would impose on the party or witness from whom discovery is sought; (iii) the importance to the litigation of the information and documents requested; and (iv) the good faith of the party resisting discovery.” First Am. Corp. v. Price Waterhouse LLP, 154 F.3d 16, 22 (2d Cir. 1998) (citing Minpeco, S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517, 523) (S.D.N.Y. 1987). But see Strauss v. Credit Lyonnais, S.A., 242 F.R.D. 199, 211 (E.D.N.Y. 2007) (applying the five factors of the Restatement (Third) of the Law of Foreign Relations as well as two additional factors). The majority of lower courts, however, perform the five-factor test used in the Restatement (Third) of the Law of Foreign Relations § 442 (Am. Law Inst. 1987) (the “Third Restatement”), citing the Court’s favorable reference to the Third Restatement in a footnote in Société Nationale. See, e.g., Pershing Pacific West, LLC v. Marinemax, Inc., Civ. No. 10-1345, 2013 WL 941617, at *6–7 (S.D. Cal. Mar. 11, 2013); see also Sant, supra, at 186–87 (taking the position that “a greater number” of lower courts employ this test). Under the Third Restatement, a court in deciding whether to order the production of information protected by a blocking statute should consider: the importance to the ... litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of
the state where the information is located. Restatement (Third) of Foreign Relations Law § 442 (Am. Law Inst. 1987). These five factors expand to seven in the Ninth Circuit. Relying on Société Nationale’s holding that the Third Restatement’s factors are not exhaustive, the Ninth Circuit also considers “[1] the extent and the nature of the hardship that inconsistent enforcement would impose upon the person, and [2] the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (citing Société Nationale, 357 U.S. at 543–44 n.28). One year after the Supreme Court’s holding in Société Nationale, the Fifth Circuit adopted a three-factor comity analysis. “The district court is only directed to determine whether [foreign discovery procedures] are appropriate after ‘scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to these procedures would prove effective.’ ” In re Anschuetz & Co., GmbH, 838 F.2d 1362, 1364 (5th Cir. 1988) (quoting Société Nationale, 357 U.S. at 545). The Fifth Circuit’s formulation of the comity analysis emphasizes the sovereignty interests of foreign states. In particular, the circuit court found that district courts should “consider, with due caution, that many foreign countries, particularly civil law countries, do not subscribe to our open-ended views regarding pretrial discovery, and in some cases may even be offended by our pretrial procedures.” Id. The Anschuetz opinion does not cite the Third Restatement. *8 Despite the Anschuetz court’s adoption of a three-factor comity analysis, district courts in the Fifth Circuit routinely use the five-factor test of the Third Restatement. For example, the Northern District of Texas recently employed the five factors of the Third Restatement, adding to the comity analysis a discussion of the hardship of compliance as well as the good faith of the party resisting discovery. See S.E.C. v. Stanford Int’l Bank, Ltd., 776 F. Supp. 2d 323, 330 (N.D. Tex. 2011). The Eastern District of Texas has also addressed the question, finding that the five factors of the Third Restatement provide the proper framework for a comity analysis. See Seoul Semiconductor Co. v. Nichia Corp., 590 F. Supp. 2d 832, 834 (E.D. Tex. 2008). While there is no district court opinion from the Eastern District of Louisiana on this subject, one magistrate judge has applied the five factors of the Third Restatement. See Adams v. Unione Mediterranea Di Sicurta, No..94-1954, 2002 WL 472252, at *2–3 (E.D. La. Mar. 28, 2002). Before embarking on any comity analysis, however, it is
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appropriate to consider the German Data Protection Act to determine whether the Act is applicable and if so whether there are any exceptions which may apply.
ii. The German Data Protection Act The blocking statute at issue is the German Data Protection Act.2 The roots of the Act stretch back to 1990 when the Act was first codified to protect “the individual against his right to privacy being impaired through the handling of personal data.” Bundesdatenschutzgesetz [BDSG] [Civil Code], § 1(3), translation at http://www.gesetze-im-internet.de/englisch_bdsg/englisch _bdsg.html#p0008 (Ger.). The Act was updated in 1995 in order to comply with the European Council and Parliament’s passage of Directive 95/46/EC (“EC Directive 95”). Council Directive 95/46, 1995 O.J. (L 281). EC Directive 95 protects the privacy of personal data within the European Union. As a member of the European Union, Germany was compelled to enact privacy protection laws that enabled the EC Directive’s principles. The amended Act includes civil and criminal penalties for parties who unlawfully disclose protected data. BDSG, § 44(1). Violation of the Act may result in up to two years of imprisonment. Id. As its name implies, the German Data Protection Act limits the disclosure of personal data. The Act defines “personal data” as any “information concerning the personal or material circumstances” of a natural person. Id. § 3(1). The Act does not specifically address personnel files, but scholars believe that the scope of the Act covers telephone numbers, addresses, jobs, familial status, credit information, and medical history (among others), and some of this information may well be contained in the personnel files. See Oliver Förster & Osama Almughrabi, Managing the Conflict Between U.S. E-Discovery and the German Data Protection Act, 36 Hastings Int’l & Comp. L. Rev. 111, 119 (2013). The Data Protection Working Party, an independent agency tasked with advisory authority concerning EC Directive 95, has signaled that personal data should be interpreted to include subjective personal data such as “opinions or assessments.” Article 29 Data Protection Working Party, Opinion 4/2007 on the Concept of Personal Data, at 6, 01248/07/EN/Final WP 136 (June 20, 2007). In a 2007 advisory document, the Working Party provided several examples of subjective personal data, including “Titius is a reliable borrower,” “Titius is not expected to die soon,” and most pertinently “Titius is a good worker and merits promotion.” Id.; see also Article 29 Data Protection Working Party, Opinion 8/2001 on the Processing of Personal Data in the
Employment Context, at 2 n.5, 5062/01/EN/Final WP 48 (Sept. 13, 2001) (“Examples of employment records usually involving the processing of personal data ... [include] [p]ayroll and tax information ... [a]nnual appraisal/assessment records, [and] [r]ecords relating to promoting, transfer, [t]raining, [and] disciplinary matters ....”). Thus the material in the personnel files would appear to be covered by the German Data Protection Act. *9 Two obstacles impact the production of employee personal data for purposes of compliance with United States discovery procedures. EC Directive 95 places restrictions on both the transfer of personal data to countries outside the EU as well as on the purpose for which personal data may be used. See Opinion 8/2001 on the Processing of Personal Data in the Employment Context, supra, at 26. The transfer restriction appears in Article 25 of the EC Directive, and the purpose restrictions appear in Articles 6, 7, and 8. Council Directive 95/46, art. 6–8, 25, 1995 O.J. (L 281). In harmony with EC Directive 95, the German Data Protection Act also places restrictions on both the international transfer of personal data (“the transfer restriction”) as well as the purposes for which collected personal data may be used (“the purpose restriction”). See Förster, supra, at 119. The transfer restriction is contained in section 4b of the Act, and provides that “Transfer shall not be effected [to foreign bodies] in so far as the data subject has a legitimate interest in excluding transfer, in particular if an adequate level of data protection is not guaranteed at the bodies stated in the first sentence of this sub-section.” BDSG § 4b(2). Enumerated exceptions to the transfer restriction are contained in section 4c of the Act. In turn, the purpose restriction is located in section 28 of the Act. “The ... use [of personal data] as a means of fulfilling one’s own business purposes shall be admissible ... in so far as this is necessary to safeguard justified interests of the controller of the filing system and there is no reason to assume that the data subject has an overriding legitimate interest in his data being excluded from processing or use....”3 BDSG § 28(1). Exceptions to the purpose restriction are also found in section 28. Upon review of the transfer and purpose restrictions as well as their applicable exceptions, the Court identifies two possible legal mechanisms4 which may allow for the disclosure of the at-issue personnel files. Both data subject consent and the dual use of the “legal claims” and “justified interests of the controller” exceptions may allow for the litigation-related transfers at issue.
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The first mechanism, data subject consent, is an exception found in section 4(c)(1)(1) of the German Data Protection Act. Under this provision, the written consent of the data subject is sufficient to negate both the transfer and purpose limitations of the Act. BDSG 4(c)(1)(1); see also Förster, supra, at 119–20. This exception is the simplest of the available options, but it also hinges on matters outside of the data holder’s control. The second mechanism uses the “legal claims” exception of section 4(c)(1)(4) to nullify the transfer restriction, and the “justified interests of the controller” exception found in section 28(1)(2) to overcome the purpose restriction. Both Bayer and its German law expert concede that the “legal claims” exception is applicable to the instant matter.5 See R. 3146 at 10, 3146-1 at 6–7. Thus, only the “justified interests of the controller” exception must be examined in detail. Section 28(1)(2) provides that: *10 “The collection, storage, modification, or transfer of personal data... shall be admissible ... insofar as this is necessary to safeguard justified interests of the controller of the filing system and there is no reason to assume that the data subject has an overriding legitimate interest in his data being excluded from processing or use ....”6 BDSG 28(1)(2). Thus, under this exception, two matters are at issue: (1) the processing and transfer of the data must be necessary to safeguard a legitimate interest of the data controller; and (2) the data subject must not have an overriding legitimate interest in preventing processing or transfer. Bayer’s German law expert describes this exception as a balancing test. R. 3146-1 at 7–9. The Data Protection Working Party provides support for this interpretation; the corresponding component of EC Directive 95 is also characterized as a balancing test. See Opinion 8/2001 on the Processing of Personal Data in the Employment Context, supra, at 5 (citing Council Directive 95/46, art. 7.f, 1995 O.J. (L 281)).
B. Analysis of the Potential Conflict between the German Data Protection Act and the Federal Rules of Civil Procedure *11 If Defendants may release the German personnel files without violating the German Data Protection Act, then there is no conflict with the Federal Rules of Civil Procedure. The Court therefore must first determine whether the personnel files contain “personal data,” and if any exceptions allowing for disclosure apply in the present circumstances.
i. The Presence of Personal Data The Court has had an opportunity to review the privilege log. Despite the PSC’s assertion to the contrary, at least some of the information in the sought personnel files qualifies as personal data for purposes of the German Data Protection Act. The personnel files contain objective personal data such as the deponents’ salary information, job titles, and email addresses. The personnel files also contain subjective personal data such as performance reviews, evaluations for promotion, and the data subject’s own self-assessments. Both objective and subjective personal data are protected under the Act. See Förster, supra, at 118–19; Opinion 4/2007 on the Concept of Personal Data, supra, at 6. Therefore, unless an exception applies, the German Data Protection Act and the Federal Rules of Civil Procedure are in conflict.
ii. Consent of the Data Subject The German Data Protection Act allows for the processing and transfer of information by a data holder with the consent of the data subject. BDSG, § 4(a). However, “[c]onsent shall be effective only when based on the data subject’s free decision. Data subjects shall be informed of the purpose of collection, processing or use and, in so far as the circumstances of the individual case dictate or upon request, of the consequences of withholding consent.” Id. There is no indication in the record that any party has sought the consent of the specific Bayer employees at issue in this matter. The Defendants’ German law expert, Henning Moelle, takes the position that German employers may not ask an employee to grant their consent. The Court finds Moelle’s interpretation unpersuasive. Under the BDSG, an employer may not request consent in a manner that impedes the ability of the data subject to make a “free decision.” Id. However, aside from Moelle’s ipse dixit, no document before the Court suggests that a mere request for consent overrides the capacity of an employee to make a free decision for purposes of section 4a. On the contrary, the text of the German Data Protect Act provides safeguards and procedures for requesting consent. The data subject must be informed of the proposed use of the data and the consequences, if any, of withholding consent. Id. The consent must be given in writing. Id. And, most importantly, the data subject’s choice to consent must be a “free decision,” i.e., free of
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undue pressure. See Opinion 8/2001 on the Processing of Personal Data in the Employment Context, supra, at 23 (“If it is not possible for the worker to refuse it is not consent.”). These safeguards are adequate to provide for meaningful consent in the context of the employer-employee relationship. The German parliament has also suggested in committee reports that employees may consent to the transfer of their personal data under the proper circumstances. See Beschlussempfehlung und Bericht des Innenausschusses, Deutscher Bundestag: Drucksache [BT] 16/13657, http://dip21.bundestag.de/dip21/btd/16/136/1613657.pdf (Ger.). *12 Drs. Frank Misselwitz and Dagmar Kubitza are sophisticated, high-level employees of a pharmaceutical company. They are capable of meaningfully providing consent for the purposes of the German Data Protection Act in the context of this litigation. See Pershing, 2013 WL 941617, at *9 (“[Defendant] can, and allegedly has begun to, obtain consent of its [German] employees for disclosure of documents containing the personal information.”). Therefore, the Court finds that a good faith request for data subject consent is appropriate under Bayer’s discovery obligations. If the deponents refuse to consent to such disclosures, this may raise credibility issues or at least serve as a basis for such an argument.
iii. Exceptions to the Transfer and Purpose Restrictions on Personal Data Because the PSC seeks the international transfer of personal data, the German Data Protection Act will block unconsented production unless exceptions exist to both section 4(b)’s transfer restriction and section 28’s purpose restriction. See F_ rster, supra, at 117–20. The former exception is easily met. As the Defendants concede, they may transfer data pursuant to section 4(c)(1)(4) “for the establishment, exercise or defense of legal claims.” The Court agrees with this interpretation of German law. However, the purpose restriction requires a more in-depth discussion. The PSC seeks the production of employee personal data for commercial purposes. Section 28(1) of the German Data Protection Act provides a few exceptions to the general proposition that personal data may only be used for the purpose for which it was collected. Of the enumerated exceptions, the Court finds that section 28(1)(2) provides the only plausible candidate for the lawful unconsented transfer of personal data under the Act. Section 28(1)(2) allows for the use of
employment-related personal data for commercial purposes if such use “is necessary to safeguard justified interests of the controller ... and there is no reason to assume that the data subject has an overriding legitimate interest in his data being excluded from processing or use.” BDSG, § 28(1)(2). Bayer’s German law expert concedes that Bayer has a “generally legitimate interest,” R. 3146-1 at 7, so the Court must determine whether the data subject’s interests in privacy override Bayer’s interest in compliance with foreign discovery practices.7 German employees possess a presumptively legitimate interest in the nondisclosure of personal data to residents of countries with non-equivalent personal data protection standards. See In re Vitamins Antitrust Litig., No. 99-197TFH, 2001 WL 1049433, at *9 (D.D.C. June 20, 2001). The Court cannot unilaterally certify that its data protection orders are sufficient to meet the standards of German law. The German governmental entity responsible for determining whether a receiving entity affords an “adequate level of protection,” the Bundesbeauftragte für den Datenschutz und die Infomationsfreiheit, has not given an opinion regarding this Court’s Pretrial Order. BDSG, § 4(c)(2). The European Commission has certified that some non-EU countries provide adequate levels of protection under EC Directive 95, but the United States does not currently qualify. See F_ rster, supra, at 121–22. Therefore, the presumption in favor of the privacy interests of Drs. Misselwitz and Kubitza stands. *13 Germany has expressed heightened concerns for the personal data interests of employees. The German Constitution contains a “right to informational self-determination.” In re: Census Act, 30 BVerfGE 1, 42–43 (Dec. 15, 1983). But see In re Vitamins, 2001 WL 1049433, at *7 n.12 (finding that the right to informational self-determination embodied in the German constitution does not exceed the privacy rights codified in the BDSG). The German parliament addressed this value in the context of the employer-employee relationship in 2009. Responding to data protection scandals involving a number of large corporations, the German parliament amended the German Data Protection Act to strengthen employee rights regarding the usage of their personal data. See Franz-Josef Düwell, Das Gesetz zur Änderung datenschutzrechtlicher Vorschriften, Neues Aus Der Gesetzgebung, Aug. 14, 2009, http://www.hss.de/fileadmin/media/downloads/Berichte/0 9-9_FA_Gesetzgebung.pdf. While this amendment does not directly change the applicability of the section 28(1)(2) exception,8 it further supports the notion that German law recognizes heightened privacy interests for personal data collected in the employment context. Lastly,
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while the German government has been silent in this litigation, the Court finds it highly significant that the Federal Republic of Germany submitted an amicus curiae brief urging the Vitamins court to defer to Germany’s privacy laws and prevent the disclosure of “employee discharge, discipline, suspension, termination, and retirement records.” In re Vitamins, 2001 WL 1049433, at *6; see also Volkswagen, A.G. v. Valez, 909 S.W.2d. 900, 903 (Tex. 1995) (finding it relevant that Germany filed an amicus curiae brief arguing that its interests would be undermined if Volkswagen were forced to produce personal data in a corporate telephone book). The German government’s efforts to intercede on behalf of German employee privacy interests, as well as the text of the German Constitution and recent amendments to the German Data Protection Act, indicate that the Court should as a matter of comity vigilantly safeguard a German employee’s interest in the nondisclosure of personal information. When considering the aforementioned privacy interests, as well as the German government’s repeated efforts to support and strengthen protections for personal data in the employment context, the Court finds that the wholesale production of the personnel files to the PSC would violate the German Data Protection Act. The transfer restriction of section 4(b) is satisfied by the “defence of legal claims” exception of section 4(c)(1)(4). However, there is no viable exception to the Act’s purpose restriction. See BDSG § 28(1). Bayer has a “justified interest” in promoting its legal defense by complying with United States discovery procedures, but this interest fails to override Dr. Kubitza and Dr. Misselwitz’s weighty interests in informational self-determination. See BDSG § 28(1)(2). Because the purpose restriction is not satisfied, production under these circumstances would violate German law. Thus there is a clear conflict between the federal discovery rules and the German Data Protection Act.
C. Analysis of the Société Nationale Factors Having found a conflict between a German “blocking statute” and the Federal Rules of Civil Procedure, the Court must now perform a Société Nationale comity analysis.
i. The Sought Information and the Privacy Logs
Before turning to the factors of the balancing test, the Court finds it appropriate to frame the PSC’s request alongside Bayer’s privacy logs of the personnel files. The PSC seeks “performance reviews and self-reviews, and compensation, incentive and bonus information for the purpose of evaluating each witness’s credibility and potential bias.” R. 2951-1 at 3. The PSC also contends that the personnel files are relevant to its “rush to the market” theory of liability, and “will provide Bayer’s internal assessment and valuation of these employees’ contributions, as well as reflect the challenges and motivations Bayer faced in bringing Xarelto to market without a monitoring requirement and with a once-daily dosing regimen.” R. 2951-1 at 3. At times, it also appears that the PSC views the personnel files as a document review shortcut. “Stated simply, this information will point Plaintiffs to those areas of inquiry—both in document review and in preparing for and following up on the depositions of Drs. Misselwitz and Kubitza—which are most important and likely to lead to the discovery of relevant evidence ....” R. 2951-1 at 4. *14 The Court has extensively reviewed the privacy logs, the Declaration of Gudrun Lohkamp, Head of Bayer’s German Human Resources Department, and the exemplar personnel files attached to Lohkamp’s Declaration. R. 3384-1, 3384-2, 3384-3. However, the Court finds that its understanding of the privacy interests at stake would be greatly improved by an in camera review of the personnel files. The Court therefore turns to the question of whether the United States’ interest in the in camera review of the personnel files as bounded by the PSC’s asserted rationale for production outweighs Germany’s interests in protecting data subjects from the privacy concerns raised by in camera review.
ii. Application of the Standard At the outset, the Court finds that the five factors of the Third Restatement provide the applicable framework for the present comity analysis. The Court is cognizant of the Fifth Circuit’s command that “[a] district court is only directed to determine whether [foreign discovery procedures] are appropriate after ‘scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to these procedures would prove effective.’ ” In re Anschuetz & Co., GmbH, 838 F.2d 1362, 1364 (5th Cir. 1988) (quoting Société Nationale, 357 U.S. at 545). District courts in the Fifth Circuit have consistently implemented this command by applying the five factors of the Third Restatement. See S.E.C. v. Stanford Int’l Bank, Ltd., 776 F. Supp. 2d 323, 330 (N.D. Tex. 2011);
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Seoul Semiconductor Co. v. Nichia Corp., 590 F. Supp. 2d 832, 834 (E.D. Tex. 2008); Adams v. Unione Mediterranea Di Sicurta, No. 94-1954, 2002 WL 272252, at *2–3 (E.D. La. Mar. 28, 2002). The Court joins these opinions. The five factors of the Third Restatement flesh out the Supreme Court’s language in Société Nationale, and are applicable to the present matter.9
1. The Importance of the Requested Discovery to the Litigation Jurists evaluating the “importance” of the requested discovery to the litigation have offered different formulations of the “importance” prong. Some circuits articulate an exceedingly high bar. For instance, the Ninth Circuit hesitates to compel production unless the outcome of litigation “stand[s] or fall[s] on the present discovery order.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475, (9th Cir. 1992) (quoting In re Westinghouse Elec. Corp. Uranium Contracts Litig., 563 F.2d 992, 999 (10th Cir. 1977)). Courts in the District of Columbia evaluate whether the sought materials are “absolutely essential” to the case. In re Vitamins Antitrust Litig., No. 99-197TFH, 2001 WL 1049433, at *9 (D.D.C. June 20, 2001). The Fifth Circuit has not provided guidance regarding the degree of “importance” necessary to assuage comity concerns under Société Nationale, but the Eastern District of Texas has used language suggesting that the sought evidence must “be critical or compelling.” Seoul Semiconductor Co. v. Nichia Corp., 590 F. Supp. 2d 832, 835 (E.D. Tex. 2008). The Court finds it appropriate to rely on in-circuit persuasive authority, and accordingly shall determine whether the PSC seeks “critical or compelling” evidence in its discovery request. Id. *15 The PSC essentially requests the following: evidence of employee bias due to high rates of compensation, evidence that Xarelto was rushed to the market, evidence of Bayer’s assessments of employees on the Xarelto team, and evidence that will better prepare the PSC for information which may be gleaned from document review and deposition. Turning to applicable precedent, the PSC’s request for the production of evidence relevant to a “rush to the market” theory of liability is comparable to other cases where courts compelled the disclosure of foreign discovery materials. For example, in In re Vitamins, a district court was asked to produce German “employee discharge, discipline, suspension, termination, and retirement records.” In re Vitamins Antitrust Litig., No. 99-197TFH, 2001 WL 1049433, at *9 (D.D.C. June 20, 2001). The Plaintiffs asserted that the documents were
necessary “to identify and question key conspirators and...to identify and elucidate the substance of meetings with competitors and to determine how defendants dealt with conspirator-employees.” Id. at *8. The district court found that the files were highly relevant in this context. Id. The PSC’s request for personnel files is similar. Evidence of how Bayer management “dealt with” Drs. Misselwitz and Kubitza is best gleaned from the personnel files, and this information is crucial to the PSC’s theory of the case. Id. at *8. Guided by the holding in In re Vitamins, the Court finds that the first factor weighs in favor of disclosing files containing Bayer’s assessment of its employees. Pershing, cited by the PSC, is also similar to the PSC’s request. Pershing Pacific West, LLC v. MarineMax, Inc., Civ. No. 10–cv–1345–L (DHB), 2013 WL 941617 (S.D. Cal. Mar. 11, 2013). In Pershing, the plaintiffs sought rescission and damages stemming from the sale of a yacht that was allegedly defective at the time of sale. Id. at *1. The plaintiffs moved for the discovery of documents relating to vessels with similar engines and fuel delivery systems that were also sold by the defendant. Id. The defendant argued that a German blocking statute prevented disclosure, and that the information was not relevant. The district court resolved the dispute by applying the factors of the Third Restatement, and found that the first factor, the importance of the documents to the litigation, weighed in favor of disclosure. Id. at *7. The court justified its holding by noting that “courts have often permitted a showing that, under similar circumstances, similar products manufactured or sold by the defendant have had similar failures to the product at issue.” Id. So too here. The PSC contends that the personnel files at issue may contain highly probative evidence that Xarelto was rushed to the market. This evidence is typically admitted in products liability cases such as the one at bar, because it may be the linchpin of the case. Therefore, as in Pershing, this type of evidence is critical and compelling. The Court is skeptical of the PSC’s search for bias evidence in the personnel files. Even without evidence of compensation, skilled practitioners may find other mechanisms to suggest that a high-ranking employee of an international pharmaceutical company may be biased in favor of his or her employer. As for the PSC’s argument that the personnel files will provide for more efficient document review and depositions, these interests fall far short of the “critical or compelling” showing required by the first prong of the comity analysis. See Seoul, 590 F. Supp. 2d at 835. In sum, the Court finds that some materials in the
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personnel files may provide critical evidence in support of the PSC’s claims that Xarelto was rushed to the market. The Court is hesitant to deny in camera review when the files may contain evidence of a skewed bonus compensation scheme or disciplinary files chastising guarded approaches to research and development. This type of critical information would be relevant to a finding of compelling support of the PSC’s theory of the case. Therefore, the first factor of the comity analysis weighs in favor of the in camera production of files containing information relevant to performance evaluations, short term incentive programs, and one-time bonuses.
2. The Degree of Specificity of the Request The PSC’s requests are highly specific. The personnel files of a limited number of Bayer employees are at issue. The PSC does not seek the entirety of the personnel files—the PSC instead requests the production of easily identifiable materials from the witnesses’ personnel files such as “Xarelto-related performance reviews and self-reviews, and compensation, incentive and bonus information.” R. 2951-1 at 3. The Defendants respond that they fear that production of the personnel files would lead to a “massive personal-data dump.” R. 3146 at 11. But this specter of invasive American discovery is unfounded. The Court has taken, and continues to take, all procedural efforts possible to individualize the production of the PSC’s already-specific request. The in camera production of the personnel files at issue is another safeguard of specificity. See In re Vitamins, 2001 WL 1049433, at *9. Bayer presents no persuasive argument to the contrary, such as a claim that it would be burdensome to determine which documents in the personnel files comply with the PSC’s request. See Richmark, 959 F.2d 1468 at 1475. For these reasons, the Court finds that this factor also weighs in favor of production.
3. Whether the Information Originated in the United States *16 All of the documents at issue originated outside of the United States. The documents were produced by a German entity, Bayer. The compensation information and performance evaluations of German employees are contained within the documents. And, most importantly, the documents were created in the ordinary course of business in a country that grants extensive protection to the personal data of its employees. Thus, this factor
weighs against production. See In re Baycol Prod. Litig., No. MDL1431, 2003 WL 22023449, at *6 (D. Minn. Mar. 21, 2003). However, the Court concludes that this factor carries limited weight. Defendant Bayer voluntarily entered into a commercial partnership with an American corporation, Janssen. Bayer significantly benefited from availing itself of United States markets. Xarelto is sold and used extensively in the United States, so the personnel files of the German Xarelto team have developed a somewhat international flavor. Bayer should not be caught unawares on this point—Bayer first contested the production of German personnel files in the Baycol litigation in 2003. See id. In sum, while the flow of personal data to the United States is highly contested, the transfer of blockbuster profits to Germany continues unabated. The balancing of this factor deserves minimal weight.
4. The Availability of Alternative Means of Securing the Information The PSC’s request is inappropriate “if the information sought can easily be obtained elsewhere.” Pershing, 2013 WL 941617, at *8 (quoting Richmark, 959 F.2d at 1475). The Court adopts the Ninth Circuit’s formulation of this factor, and finds that the alternative means “must be substantially equivalent” to the requested discovery. Id. This articulation conforms to in-circuit precedent. See Seoul, 590 F. Supp. 2d at 835 (finding a viable alternative means of securing information where defendants sought one deponent, and another accessible deponent could provide the same information). The PSC seeks evidence of employee bias as well as information suggesting that Xarelto was rushed to the market. R. 2951-1 at 3–4. The PSC also believes that the personnel files will lead to more efficient document review and depositions. R. 2951-1 at 4. Only the rush to the market evidence is cognizable under this factor. The PSC possesses no other viable method of uncovering evidence of rush to the market liability that may be contained in the personnel files. The quantity of documents already held by the PSC is irrelevant. “[T]he focus is whether the documents, if relevant, can be obtained from another source.” Brightedge, 2014 WL 3965062, at *5; see also Pershing, 2013 WL 941617, at *8. Bayer holds the personnel files at issue, and they may contain highly probative materials. Accordingly, to the extent that the PSC seeks evidence of rush to the market liability in materials such as performance evaluations and bonus compensation documents, this factor weighs in
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favor of an in camera review to better weigh the interests at issue. In contrast, the bias and employee evaluation evidence sought by the PSC should be obtainable through depositions. See In re Baycol Prod. Litig., No. MDL1431, 2003 WL 22023449, at *6 (D. Minn. Mar. 21, 2003) (“Nor can Plaintiffs show that they cannot otherwise obtain the information they need, as they may ask the Bayer A.G. employees for the information they seek in depositions.”). However, the Court notes that deponents have refused to provide salary information in at least one deposition. See R. 3146-1 at 29. The PSC has not presented sufficient information for the Court to conclude that the salary information is unobtainable by deposition, but the Court finds troubling the possibility of further evasive responses by deponents and weighs this possibility accordingly. As to the efficiency of document review and deposition preparation, the PSC fails to show that the 1.1 million documents already produced by Bayer in this litigation cannot satisfy their interest in devising efficient document review and deposition strategies.
*17 5. The Balancing of National Interests As befits a comity analysis, the balancing of national interests carries the most weight. See Richmark, 959 F.2d at 1476. The interests of the foreign state may be signified by “expressions of interest by the foreign state,” “the significance of disclosure in the regulation ... of the activity in question,” and “indications of the foreign state’s concern for confidentiality prior to the controversy.” Richmark, 959 F.2d at 1476 (citing Restatement (Third) of Foreign Relations Law § 442 cmt. c (Am. Law Inst. 1987)). American courts must also be cognizant that “many foreign countries, particularly civil law countries, do not subscribe to our open-ended views regarding pretrial discovery, and in some cases may even be offended by our pretrial procedures.” In re Anschuetz & Co., GmbH, 838 F.2d 1362, 1364 (5th Cir. 1988). As discussed supra in the context of the applicability of the German Data Protection Act to the present discovery request, the Court finds that Germany has a weighty national interest in protecting the personal data of German citizens in their capacity as employees. The German Constitution contains a general “right to informational self-determination.” In re: Census Act, 30 BVerfGE 1, 42–43 (Dec. 15, 1983). Germany’s expressions of interest in employee privacy stretch back over fifteen years. In 2001, the Federal Republic of Germany addressed the matter presently before the Court by entering the In re
Vitamins litigation. The foreign government submitted an amicus curiae brief urging the Vitamins court to defer to Germany’s privacy laws and prevent the disclosure of “employee discharge, discipline, suspension, termination, and retirement records.” See In re Vitamins, 2001 WL 1049433, at *6. More recently, in 2009 the German parliament amended the German Data Protection Act to provide greater protection to personal data collected for employment-related purposes. See Franz-Josef Düwell, Das Gesetz zur Änderung datenschutzrechtlicher Vorschriften, Neues Aus Der Gesetzgebung, Aug. 14, 2009, http://www.hss.de/fileadmin/media/downloads/Berichte/0 9-9_FA_Gesetzgebung.pdf. Still, these interests are limited. The presence of a clearly compelling state interest such as national security or state secrecy weighs most heavily under this factor. See Seoul, 490 F. Supp. 2d at 836–37 (finding significant foreign national interests where the discovery request implicated a citizen who was employed by an agency of a foreign government); see also Richmark, 959 F.2d at 1477; Reinsurance Co. of Am., Inc. v. Administratia Asigurarilor de Stat (Admin. Of State Ins.), 902 F.2d 1275, 1280 (7th Cir. 1990). While Germany may have an unusually strong interest in protecting the personal data of its citizens, the quantity and character of the personal data at issue partially mitigates these concerns. The personnel files of a small number of German citizens are at issue. The Court imposed meaningful protective measures to ensure the confidential status of produced data. Many irrelevant categories of personal data such as addresses, health information, and biometric data may be redacted prior to transfer. As a matter of judicial comity, Germany may recognize the United States judiciary’s interest in personally reviewing at-issue personal data before ruling whether the balance of the equities weighs for or against production. See Société Nationale, 482 U.S. at 544 n.28 (reasoning that “foreign tribunals will recognize that the final decision on the evidence to be used in litigation conducted in American courts must be made by those courts”). And, if eventually produced, evidentiary hurdles such as Rules 401 and 403 of the Federal Rules of Evidence will prevent the admissibility of irrelevant or unduly prejudicial information at trial. Under these circumstances, Germany’s interest in nonproduction is inherently curtailed. *18 The criminal and civil penalties contained in the German Data Protection Act are also relevant to this analysis. In order for the prospect of criminal or civil penalties to weigh in favor of non-disclosure, the possibility of enforcement by the foreign nation must be more than “slight or speculative.” BrightEdge, 2014 WL
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3965062, at *5 (quoting NML Capital, Ltd. v. Republic of Arg., No. 03 Civ. 8845 (TPG), 2013 WL 491522, at *11). Defendants carry the burden of providing evidence that Germany has enforced the German Data Protection Act when German personal data has been produced pursuant to a United States court order. See Gucci Am., Inc. v. Curveal Fashion, 2010 WL 808639, at *7 (S.D.N.Y. Mar. 8, 2010) (citing Minpeco S.A. v. Conticommodity Servs. Inc., 116 F.R.D. 517, 526–27 (S.D.N.Y. 1987). Bayer failed to meet this burden. When questioned at oral argument, counsel for Bayer failed to cite any examples of a German entity being civilly or criminally prosecuted for the production of personal data pursuant to a United States discovery order. The Court finds this telling, as United States courts have compelled the production of German personal data over the objection of counsel in the past. See BrightEdge, 2014 WL 3965062, at *5–6; Pershing, 2013 WL 941617, at *10; In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2014 U.S. Dist. LEXIS 10718 (S.D. Ill. Jan. 29, 2014)) (ordering the production of name-redacted custodial files); cf Sant, supra, at 221 (“Foreign governments...have usually not punished companies that obey a U.S. court order and produce documents in violation of the law”). Thus, the interests of Germany appear to be strong, but short of overwhelming. Turning to domestic interests, the United States has a substantial interest in “vindicating the rights of American plaintiffs.” Pershing, 2013 WL 941617, at *8 (citing Richmark, 949 F.2d at 1477). As this is a nationwide MDL, the rights of thousands of American citizens hinge on the timely production of materials that fall within the scope of the Federal Rules of Civil Procedure. The rights of the states and state court Xarelto plaintiffs are implicated as well. It is no secret that federal MDL proceedings may influence the resolution of cases outside of the federal courts. Short of the United States entering this litigation or matters of national security being at issue, few changes to the facts could result in greater United States interests in document production. Some of the PSC’s asserted reasons for production raise greater United States interests than others. Materials that are “vital to the case-in-chief” produce more substantial national interests than ancillary materials. See Reinsurance, 902 F.2d at 1280. The PSC seeks documents such as performance evaluations and self-evaluations for the purpose of obtaining evidence that Xarelto was rushed to the market. The PSC also moves to produce the personnel files so that it may discover whether an aggressive bonus compensation scheme created incentives for Xarelto to be rushed to the market. Such evidence would certainly be relevant to the PSC’s case-in-chief.
However, the PSC also seeks the personnel files for less compelling reasons such as obtaining evidence of employee bias. This rationale for production raises weaker national interests. For example, evidence that a high-level employee of an international pharmaceutical company is well-compensated supports a finding that the employee may be biased, but denying the production of such evidence would not lead to a grave domestic injustice. And to the extent that the PSC seeks the materials in order to more efficiently prepare for deposition and conduct document review, the United States’ interest is at its nadir. The federal courts value the efficient and inexpensive resolution of disputes, see Fed. R. Civ. P. 1, but these interests pale in comparison to Germany’s asserted interests in the protection of personal data. After reviewing the interests of both Germany and the United States, the Court finds that Germany’s interests outweigh the interests of the United States regarding the following categories: materials which may contain evidence of bias; (2) materials which may aid document review; and (3) materials which will better prepare the PSC for deposition. German law favors the privacy of German employees, and the German government proved its commitment to these rights by entering United States litigation numerous times. See In re Vitamins, 2001 WL 1049433, at *7; Volkswagen, A.G. v. Valez, 909 S.W.2d. 900, 903 (Tex. 1995). Pursuant to the Fifth Circuit’s guidance in Anschuetz, 838 F.2d at 1364, the Court also considers the fact that Germany does not provide for pre-trial discovery, see Zivilprozeßordnung [ZPO] [German Rules of Civil Procedure], 1877, Reichsgesetzblatt [RGBl.], at 97, as amended, § 355 (Ger.), and that Germany may be offended by the breadth of the United States’ asserted discovery interests. *19 However, Germany’s interests cannot override the United States’ interest in obtaining the discovery of evidence relevant to the PSC’s case-in-chief when the claims of thousands of United States citizens hang in the balance. Simply put, Drs. Misselwitz and Kubitza’s personnel files may contain some evidence relevant to the argument that Bayer management pressured or aggressively incentivized its employees to unsafely accelerate the Xarelto research and development timeline. The production of a relative handful of sensitive documents may be critical to a just outcome in this matter. Germany’s interests are also mitigated to the extent that this Court is merely conducting an in camera review of the personal data, and has already issued protective orders
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which take into account the strong foreign interests at issue. The Court may further limit intrusions on employee privacy by ordering the redaction of irrelevant personal data prior to transfer. With these safeguards in place, the United States may vindicate its interests without unduly disturbing German rights.
iii. Weighing the Factors For the aforementioned reasons, the balance of the factors leans towards the production of personnel file materials containing evidence relevant to the argument that Xarelto was rushed to the market.10 Such evidence may be found in employee performance evaluations and files discussing short term incentive programs or one time bonuses. These documents may be decisive to the PSC’s case, and the PSC lacks a viable alternative mechanism to uncover the records at issue. In camera review by the Court is proper pursuant to Coughlin v. Lee, 946 F.2d 1152, 1157–60 (5th Cir. 1991), and will ensure that only appropriate materials are produced.
D. Timeliness of the Request The PSC has not waived its right to request portions of Dr. Kubitza’s personnel files under Rule 26(b). The PSC may have declined to ask questions concerning the personnel files because they have encountered non-answers or incomplete answers to these questions in other depositions. See R. 3146-1 at 24–29. More importantly, declining to investigate a matter at deposition is not a waiver of the right to discoverable information under the plain language of Rule 26(b), and the Defendants point to no positive law that suggests otherwise. The PSC’s request is therefore timely.
IV. CONCLUSION For the aforementioned reasons, IT IS ORDERED that the PSC’s Motion to Compel is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED insofar as it requests in camera review of the following personnel files. The Court DEFERS JUDGMENT on the PSC’s Motion to Compel insofar as it requests delivery of the personnel files to the PSC. IT IS FURTHER ORDERED that Bayer shall produce the following documents from Dr. Kubitza’s personnel
file for in camera review on or before Wednesday, July 27, 2016: (1) all Performance Management Process forms for calendar years 2006–2016; (2) the April 1, 2015, information letter regarding short term incentives; (3) the April 1, 2016, information letter regarding short term incentives; (4) the April 1, 2016, merit increase information letter; (5) the November 29, 2005, application for one time payment, (6); the December 9, 2005, information letter regarding one time payment; (7) the February 21, 2008, information letter regarding one time payment; and the November 27, 2014, information letter regarding one time payment. *20 IT IS FURTHER ORDERED that Bayer shall produce the following documents from Dr. Misselwitz’s personnel file for in camera review on or before Wednesday, July 27, 2016: (1) all Performance Management Process forms for calendar years 2006–2016; (2) the November 10, 2005, agreement on additional incentive opportunity11; (3) all letters, applications, emails and screenshots identified in the privacy log regarding one time payments to Dr. Misselwitz; (4) the June 25, 2003, agreement regarding retention program; (5) the August 12, 2005, email regarding promotion; (6) the August 17, 2005, merit increase approval; (7) the December 22, 2005, email regarding merit increase; (8) the June-September 2007 emails and supporting documentation regarding salary proposal; (9) the September 3, 2007, approval of salary proposal; (10) the September 19, 2007, merit increase information letters; (11) the May 30, 2008, agreements on salary increase and additional incentives; (12) the April 2010 information letter regarding short term incentive (yearly bonus); (13) the May 2010 merit increase information letter; (14) the September 2011 merit increase information letter; (15) the June 2013 merit increase information letter; and (16) the July 2011, July 2012, and July 2013 notional salary increase notifications. IT IS FURTHER ORDERED that prior to in camera production that Bayer shall redact all addresses, social security numbers, health information, biometric data, monthly or annual salary calculations, and pension information from the above-referenced personnel files. IT IS FURTHER ORDERED that Bayer shall request that Dr. Kubitza and Dr. Misselwitz consent to the transfer and production of their personnel files. The request shall not through duress or other inappropriate means interfere with Dr. Kubitza and Dr. Misselwitz’s ability to make a “free decision” as to their employee privacy rights. The request shall in all respects comply with the requirements of the German Data Protection Act. See BDSG, § 4(a).
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All Citations New Orleans, Louisiana, this 20th day of July, 2016. Slip Copy, 2016 WL 3923873
Footnotes 1
This formulation of the comity analysis is drawn from language in Société Nationale. See Société Nationale, 357 U.S. at 545 (suggesting that a district court should consider “the particular facts, sovereign interests, and [the] likelihood that resort to...[foreign discovery] procedures will prove effective”).
2
The direct translation of “Bundesdatenschutzgesetz” is “Federal Data Protection Act.” For the sake of clarity, the Court refers to the German law as the “German Data Protection Act.”
3
Section 28(1)’s reference to transfers generally is not to be confused with the distinct restrictions on international transfers found in section 4(b)(2). BDSG §§ 4(b)(2), 28(1).
4
The Court finds that section 4(c)(2)’s “adequate level of protection” exception does not provide a viable method for avoiding conflict with the German Data Protection Act in this case. BDSG § 4(c)(2). This exception cannot be satisfied by a mere protective order—only a “competent [German] supervisory authority” may certify that this level of protection exists. BDSG § 4(c)(2); see also Förster, supra, at 121–22.
5
Despite the plain language of the legal requirement exception, some argue that an obligation to produce protected data pursuant to a United States discovery order does not qualify as “legally required.” BDSG 4(c)(1)(1). Germany may not consider compliance with an unrecognized, foreign discovery practice to be “legally required” under the terms of its own narrow discovery laws. See Förster, supra, at 120–22. The Data Protection Working Party also concludes that “legally required” transfers pursuant to EC Directive 95 are those transfers required by an EU domestic transferor state (Germany) rather than by a foreign transferee state (the United States). The Court does not find these arguments persuasive. The plain meaning of “defense of legal claims” does not exclude international claims, and the German Data Protection Act contemplates international transfers throughout its text. Further, if the exception did not apply, the burden on international discovery would be excessive. In this litigation alone, over 1.1 million discovery documents have been produced pursuant to section (4)(c)(1)(4). A Société Nationale comity analysis would not look favorably upon such a weighty bar to discovery.
6
Section 32 of the German Data Protection Act, entitled “Data Collection, Processing, and Use for Employment-related Purposes,” does not supersede the exceptions in section 28. Moelle concedes this point in his affidavit. R. 3146-1 at 7–8. Section 32 governs the processing and use of employee personal data for employment-related purposes. Section 32 does not prevent the use of employee personal data for commercial purposes under appropriate circumstances, which is governed by section 28. “[Section 32] does not per se exclude the possibility that, under the circumstances of an individual case, a processing of certain personal data contained in the Personnel Records may be justified for a legitimate purpose of the employer outside the employment relationship.” R. 3146-1 at 8; see also Beschlussempfehlung und Bericht des Innenausschusses, Deutscher Bundestag: Drucksache [BT] 16/13657, http://dip21.bundestag.de/dip21/btd/16/136/1613657.pdf (Ger.); Franz-Josef Düwell, Das Gesetz zur Änderung datenschutzrechtlicher Vorschriften, Neues Aus Der Gesetzgebung, Aug. 14, 2009, http://www.hss.de/fileadmin/media/downloads/Berichte/09-9_FA_Gesetzgebung.pdf (discussing the effects of the 2009 amendments on section 28 of the BDSG).
7
Upon review of the German Data Protection Act and the relevant secondary sources, the Court finds that German law does not recognize a procedural distinction between the production of personnel files and custodial files. Contrary to the Defendants’ assertion, custodial files containing personal data must meet the same exceptions under the German Data Protection Act as personnel files containing personal data. There is only one meaningful distinction between the two categories outside of section 32 of the BDSG: the nature of personnel files suggests that they will, on the whole, contain more sensitive personal data than custodial files. An employee’s work-related emails will raise fewer privacy concerns than his or her health records, salary information, and performance reviews. For this reason, custodial files may be transferred en masse pursuant to sections 4(b) and 28(1)(2) of the German Data Protection Act.
8
To quote the PSC, “Personnel files are not the test; personal data is.” R. 3173-1 at 4. Section 32 of the German Data Protection Act regulates some aspects of personal data collected in the scope of the employer-employee relationship. However, even the Defendants’ German law expert concedes that “[t]his does not per se exclude the possibility that, under the circumstances of an individual case, a processing of certain personal data contained in the Personnel
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Records may be justified for a legitimate purpose of the employment relationship [as provided for by section 28(1)(2) ].” R. 3146-1 at 8. 9
The Court does not consider the five factors of the Third Restatement to be exhaustive. The Court is mindful that the Fifth Circuit chose not to adopt the Third Restatement standard wholesale. More importantly, the Société Nationale Court declined to “articulate specific rules to guide this delicate task of adjudication,” in the same opinion in which it favorably cited the Third Restatement. See Société Nationale, 482 US. at 544 n. 28, 446. If the Supreme Court had intended the Third Restatement to be the definitive mechanism for “scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to [foreign discovery procedures] would prove effective,” the Court would have adopted the Restatement rather than citing it in a footnote. Therefore, the use of additional factors may be prudent under appropriate circumstances. See, e.g., Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992) (citing Société Nationale, 357 U.S at 543–44 n.28) (applying the Third Restatement as well as two additional factors); S.E.C. v. Stanford Int’l Bank, Ltd., 776 F. Supp. 2d 323, 330 (N.D. Tex. 2011).
10
The Court notes that at least one deponent has evaded answering questions regarding salary information. See R. 3146-1 at 29. If this behavior persists, it may indicate that, contrary to Baycol, there is no alternative means for the PSC to obtain this evidence of bias. See In re Baycol Prod. Litig., No. MDL 1431, 2003 WL 22023449, at *6 (D. Minn. Mar. 21, 2003) (“Nor can Plaintiffs show that they cannot otherwise obtain the information they need, as they may ask the Bayer A.G. employees for the information they seek in depositions.”). Presently the Court will not require the production of salary information in the personnel files. But if deponents continue to refuse to answer these questions without explanation as to cause, the Court may entertain a request to revisit the comity analysis.
11
The privacy log indicates that Dr. Misselwitz’s employment contract was modified twice within months of this agreement. The Court may order the production of the 2005 contract and its amendments following review of the substance of the 2005 agreement on additional incentive opportunity.
End of Document
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Reprinted with permission from LexisNexis. Neutral As of: August 11, 2016 12:52 PM EDT
In re Takata Airbag Prods. Liab. Litig. United States District Court for the Southern District of Florida, Miami Division February 29, 2016, Decided; March 1, 2016, Entered on Docket MDL No. 2599; Master File No. 15-2599-MD-MORENO; 14-24009-CV-MORENO; 15-20664-CV-MORENO Reporter 2016 U.S. Dist. LEXIS 46206
IN RE: TAKATA AIRBAG PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT RELATES TO ALL CASES Prior History: In re Takata Airbag Prods. Liab. Litig., 2015 U.S. Dist. LEXIS 177387 (S.D. Fla., Dec. 8, 2015)
Core Terms redactions, documents, responsive, producing, categories, parties, recommended, discovery, issues, irrelevant information, irrelevance, families, withhold, information pertaining, highly relevant, de novo
For Robert Barto, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For John Meiser, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Regina M. Reilly, Plaintiff (1:15-md-02599-FAM): Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen [*2] Crow Methvin Portis & Miles PC, Montgomery, AL; H. Clay Barnett, III, LEAD ATTORNEY, Beasley, Allen, Crow, Methvin, Portis & MIles, P.C., Montgomery, AL; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
Counsel: [*1] For John Delionado, Special Master (1:15-md02599-FAM): John Delionado, LEAD ATTORNEY, Hunton & Williams, Miami, FL.
For Charles & Vickie Burd, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Daniel S. Silva, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Charles & Dana Talamantes, Plaintiff (1:15-md-02599FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For James Herron, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Eugene Sinclair, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Mary Hasley, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Quarnos Auto Salvage, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Megan Sayre-Scibona, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Daniel Thies, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Leslie Flaherty, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Camila G. Corteleti, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Pamela Wilsey, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Rebecca Lew, Plaintiff (1:15-md-02599-FAM): Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; H. Clay Barnett, III, LEAD ATTORNEY, Beasley, Allen, Crow, Methvin, Portis & MIles, P.C., Montgomery, AL; W Daniel Miles, III, LEAD ATTORNEY, [*3] Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Holly Ruth, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For M&K Used Auto Parts, Inc., Plaintiff (1:15-md-02599FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
Barbara Follensbee-Moore
Page 2 of 39 2016 U.S. Dist. LEXIS 46206, *3 For Rigsby's Auto Parts & Sales, Inc., Plaintiff (1:15-md02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Darla Spies, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Vickie Burd, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Dana Talamantes, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Alicia Benton, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Justin S. Birdsall, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Doreen Dembeck, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Helen Klemer, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Loren Petersen, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton [*5] Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Michael P. Thornton, LEAD ATTORNEY, Thornton Law Firm, LLP, Boston, MA; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Stephen Frederick Rosenthal, Podhurst Orseck Josefsberg et al, Miami, FL.
For Plaintiffs Lead Counsel, Plaintiff (1:15-md-02599-FAM): Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL.
For Pam Koehler, Consol Plaintiff (1:15-md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, [*6] III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA.
For Craig Dunn, Consol Plaintiff (1:15-md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD
For Zulemarie Rivera, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD
For Lisa Peterson, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Eric Rosson, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Carla [*4] Thompson, Plaintiff (1:15-md-02599-FAM): Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; H. Clay Barnett, III, LEAD ATTORNEY, Beasley, Allen, Crow, Methvin, Portis & MIles, P.C., Montgomery, AL; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Teresa Woodard, Plaintiff (1:15-md-02599-FAM): Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
Barbara Follensbee-Moore
Page 3 of 39 2016 U.S. Dist. LEXIS 46206, *6 ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., [*7] Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Tru Value Auto Malls LLC, Consol Plaintiff (1:15-md02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, [*8] LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For David M. Jorgensen, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO
HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, [*9] New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Anna Marie Brechtell Flattmann, Consol Plaintiff (1:15md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. [*10] Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Robert Redfearn, Jr., Consol Plaintiff (1:15-md-02599FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD
Barbara Follensbee-Moore
Page 4 of 39 2016 U.S. Dist. LEXIS 46206, *10 ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., [*11] Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Tasha R. Siverio, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, [*12] Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Kenneth G. Desie, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark
Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew [*13] Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Gregory McCarthy, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, [*14] Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Nicole Peaslee, Consol Plaintiff (1:15-md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD
Barbara Follensbee-Moore
Page 5 of 39 2016 U.S. Dist. LEXIS 46206, *14 ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, [*15] Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Karen Switkowski, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo [*16] Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Anthony D. Dark, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron &
Budd, PC, [*17] Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Lemon Auto Sales, Inc., Consol Plaintiff (1:15-md02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, [*18] Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Nathan Bordewich, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin [*19] A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New
Barbara Follensbee-Moore
Page 6 of 39 2016 U.S. Dist. LEXIS 46206, *19 York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Kathleen Wilkinson, Consol Plaintiff (1:15-md-02599FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton [*20] Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA. For Haydee Masini, Consol Plaintiff (1:15-md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, [*21] LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA.
For Nancy Barnett, Consol Plaintiff (1:15-md-02599-FAM): Aaron Samuel Podhurst, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; J. Burton LeBlanc, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Baton Rouge, LA; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Pablo Orozco, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, [*22] CA. For Ellen Bonet, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; John Scarola, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Keile Allen, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley [*23] Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
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Page 7 of 39 2016 U.S. Dist. LEXIS 46206, *23 For Gerson Joseph, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL. For Idotenyin Umoh, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Charles Edward Whorton, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD ATTORNEY, [*24] Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL. For Meliza Gurian, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL. For Angela Ruffin, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Howard Mitchell Bushman, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Lance August Harke, LEAD ATTORNEY, Harke Clasby & Bushman LLP, Miami Shores, FL; Tal J Lifshitz, LEAD [*25] ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak
Tropin & Throckmorton, P.A., Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Deborah Morgan, Consol Plaintiff (1:15-md-02599FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Thomas A. Tucker Ronzetti, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Harley Shepard Tropin, Kozyak Tropin & Throckmorton, Coral Gables, FL; Robert J Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Peter Breschnev, Consol Plaintiff (1:15-md-02599-FAM): Bryan L. Clobes, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel, LLP, Philadelphia, PA; Ellen Meriwether, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel, LLP, Philadelphia, PA; Kelly L. Tucker, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel, LLP, Philadlephia, PA; Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst [*26] Orseck, P.A., Miami, FL. For Avis Scott, Consol Plaintiff (1:15-md-02599-FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI. For Howard Morris, Consol Plaintiff (1:15-md-02599-FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Adam Wishkovsky, Consol Plaintiff (1:15-md-02599FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Cyndee Wishkovsky, Consol Plaintiff (1:15-md-02599FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Coleman Haklar, Consol Plaintiff (1:15-md-02599-FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, [*27] LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY;
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Page 8 of 39 2016 U.S. Dist. LEXIS 46206, *27 Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Thomas D. Haklar, LEAD ATTORNEY, Thomas D. Haklar, San Diego, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Susan Nattrass, Consol Plaintiff (1:15-md-02599-FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst [*28] Orseck, P.A., Miami, FL. For David Takeda, Consol Plaintiff (1:15-md-02599-FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Teresa Lemke, Consol Plaintiff (1:15-md-02599-FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, [*29] Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY;
Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For William Dougherty, Consol Plaintiff (1:15-md-02599FAM): David Fernandes, LEAD ATTORNEY, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Katherine R. Ryan, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, Labaton Sucharow, LLP, New York, NY; Michael W. Stocker, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, [*30] P.A., Miami, FL. For Timothy Archer, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Terri Gamino, Consol Plaintiff (1:15-md-02599-FAM): Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, LLP, Wasington, DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei, LLP, Washington, DC; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Barbara Mulroy, Consol Plaintiff (1:15-md-02599-FAM): Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, LLP, Wasington, DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei, LLP, Washington, DC; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Susana Zamora, Consol Plaintiff (1:15-md-02599-FAM): On Behalf of Herself and Those Similarly Situated Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, LLP, Wasington, [*31] DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei,
Barbara Follensbee-Moore
Page 9 of 39 2016 U.S. Dist. LEXIS 46206, *31 LLP, Washington, DC; Jeffrey Miles Ostrow, LEAD ATTORNEY, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, LEAD ATTORNEY, Kopelowitz Ostrow, Fort Lauderdale, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Jorge Pimentel, Consol Plaintiff (1:15-md-02599-FAM): On Behalf of Hisself and Those Similarly Situated Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, LLP, Wasington, DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei, LLP, Washington, DC. For Dan Peoples, Consol Plaintiff (1:15-md-02599-FAM): On Behalf of Hisself and Those Similarly Situated Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, LLP, Wasington, DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei, LLP, Washington, DC; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Henry Collins, Consol Plaintiff (1:15-md-02599-FAM): On Behalf of Hisself and Those Similarly Situated Anna Haac, LEAD ATTORNEY, Tycko & Zavareei, [*32] LLP, Wasington, DC; Hassan A. Zavareei, LEAD ATTORNEY, Tycko & Zavarreel, LLP, Washington, DC; Jeffrey D. Kaliel, LEAD ATTORNEY, Tycko & Zavareei, LLP, Washington, DC. For Melissa Teisl, Consol Plaintiff (1:15-md-02599-FAM): Amy L. Marino, LEAD ATTORNEY, Sommers Schwarz PC, Southfield, MI; John P. Kristensen, LEAD ATTORNEY, Kristensen Weisberg LLP, Los Angeles, CA; Jonathan R. Voegele, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; R. Bryant McCulley, LEAD ATTORNEY, McCulley McCluer PLLC, Sullivans Island, SC; Richard Drubel, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; Stephen N. Zack, LEAD ATTORNEY, Boies Schiller & Flexner, Miami, FL; Stuart H. McCluer, LEAD ATTORNEY, McCulley McCluer PLLC, Oxford, MS; Mark Jurgen Heise, Boies Schiller & Flexner, LLP, Miami, FL. For Michael Sanchez, Consol Plaintiff (1:15-md-02599FAM): Jason Henry Alperstein, LEAD ATTORNEY, Robbins Geller Rudman & Dowd LLP, Boca Raton, FL; Scott Adam Edelsberg, LEAD ATTORNEY, Kopelowitz Ostrow, Ft. Lauderdale, FL; Jeffrey Miles Ostrow, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, Kopelowitz Ostrow, Fort Lauderdale, FL. For David Kopelman, Consol Plaintiff (1:15-md-02599FAM): [*33] Jason Henry Alperstein, LEAD ATTORNEY,
Robbins Geller Rudman & Dowd LLP, Boca Raton, FL; Scott Adam Edelsberg, LEAD ATTORNEY, Kopelowitz Ostrow, Ft. Lauderdale, FL; Jeffrey Miles Ostrow, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, Kopelowitz Ostrow, Fort Lauderdale, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Jina Bae, Consol Plaintiff (1:15-md-02599-FAM): Donald H. Slavik, LEAD ATTORNEY, Robinson Calcagnie Robinson Shapiro Davis, Inc., Newport Beach, CA; Mark P. Robinson, Jr., LEAD ATTORNEY, Robinson Calcagnie Robinson Shapiro Davis Inc, Newport Beach, CA; Patrick E. Bailey, LEAD ATTORNEY, Bailey and Partners APC, Santa Monica, CA; Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Valerie M Nannery, Consol Plaintiff (1:15-md-02599FAM): Donald H. Slavik, LEAD ATTORNEY, Robinson Calcagnie Robinson Shapiro Davis, Inc., Newport Beach, CA; Mark P. Robinson, Jr., LEAD ATTORNEY, Robinson Calcagnie Robinson Shapiro Davis Inc, Newport Beach, CA; Patrick E. Bailey, LEAD ATTORNEY, Bailey and Partners APC, Santa Monica, CA; Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL; Peter Prieto, [*34] Podhurst Orseck, P.A., Miami, FL. For John Considine, Consol Plaintiff (1:15-md-02599-FAM): Aaron M Swift, LEAD ATTORNEY, Leavengood,Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Ian Richard Leavengood, LEAD ATTORNEY, Leavengood, Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL. For Michael Karolak, Consol Plaintiff (1:15-md-02599FAM): Aaron M Swift, LEAD ATTORNEY, Leavengood,Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Ian Richard Leavengood, LEAD ATTORNEY, Leavengood, Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL. For Kristen Parker, Consol Plaintiff (1:15-md-02599-FAM): Aaron M Swift, LEAD ATTORNEY, Leavengood,Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Ian Richard Leavengood, LEAD ATTORNEY, Leavengood, Dauval, Boyle & Meyer, PA, St. Petersburg, FL; Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, [*35] PC, San Diego, CA; J. Andrew
Barbara Follensbee-Moore
Page 10 of 39 2016 U.S. Dist. LEXIS 46206, *35 Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL.
ATTORNEY, Criden & Love PA, South Miami, FL; Robert Cecil Gilbert, LEAD ATTORNEY, Miami, FL.
For Michael McLeod, Consol Plaintiff (1:15-md-02599FAM): Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Steven P. Schneider, Consol [*37] Plaintiff (1:15-md02599-FAM): Kevin Bruce Love, LEAD ATTORNEY, Criden & Love PA, South Miami, FL; Michael Elliot Criden, LEAD ATTORNEY, Criden & Love PA, South Miami, FL; Robert Cecil Gilbert, LEAD ATTORNEY, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Gwendolyn Cody, Consol Plaintiff (1:15-md-02599FAM): Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Christopher D Johnston, Consol Plaintiff (1:15-md02599-FAM): Catherine H. McElveen, LEAD ATTORNEY, Richardson Patrick Westbrook, et al., Mount Pleasant, SC.
For Kostan Lathouris, Consol Plaintiff (1:15-md-02599FAM): Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Kristen Go, Consol Plaintiff (1:15-md-02599-FAM): Aron K. Liang, LEAD ATTORNEY, Minamit Tamaki, LLP, San Francisco, CA; Derek G. Howard, LEAD ATTORNEY, Minami Tamaki LLP, San Francisco, CA; Jack W. Lee, LEAD ATTORNEY, Minami Tamaki, LLP, San Francisco, [*36] CA; Manfred Patrick Muecke, Jr., LEAD ATTORNEY, Bonnett Fairbourn Friedman and Balint, PC, San Diego, CA; Sean Tamura-Sato, LEAD ATTORNEY, Minami Tamaki, LLP, San Francisco, CA; J. Andrew Meyer, Leavengood, Dauval, Boyle & Meyer, P.A., St. Petersburg, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Richard Clow, Consol Plaintiff (1:15-md-02599-FAM): Brian Hugh Barr, LEAD ATTORNEY, Levin Papantonio Thomas Mitchell Rafferty Proctor PA, Pensacola, FL; Kimberly Lambert Adams, LEAD ATTORNEY, Levin Papantonio Thomas Mitchell Echsner & Procter, Pensacola, FL; C. Richard Newsome, Newsome Law Firm, Orlando, FL. For Ryvania Mercedes Fuentes, Consol Plaintiff (1:15-md02599-FAM): Kevin Bruce Love, LEAD ATTORNEY, Criden & Love PA, South Miami, FL; Michael Elliot Criden, LEAD ATTORNEY, Criden & Love PA, South Miami, FL; Robert Cecil Gilbert, LEAD ATTORNEY, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Lidice C. Santos, Consol Plaintiff (1:15-md-02599FAM): Kevin Bruce Love, LEAD ATTORNEY, Criden & Love PA, South Miami, FL; Michael Elliot Criden, LEAD
For Hartman Law Firm PA, Consol Plaintiff (1:15-md-02599FAM): Catherine H. McElveen, LEAD ATTORNEY, Richardson Patrick Westbrook, et al., Mount Pleasant, SC. For Luke Hooper, Consol Plaintiff (1:15-md-02599-FAM): Andrew E. Brashier, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Benno B. Ashrafi, LEAD ATTORNEY, Weitz and Luxenberg, PC, Los Angeles, CA; Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Curt D. Marshall, LEAD ATTORNEY, Weitz & Luxenberg, PC, New York, NY; David S. Stellings, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser [*38] Heimann & Bernstein, San Francisco, CA; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robin L. Greenwald, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Charlotte Whitehead, Consol Plaintiff (1:15-md-02599FAM): Andrew E. Brashier, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Benno B. Ashrafi, LEAD ATTORNEY, Weitz and Luxenberg, PC, Los Angeles, CA; Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Curt D. Marshall, LEAD ATTORNEY, Weitz & Luxenberg, PC, New York, NY; David S. Stellings, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser Heimann &
Barbara Follensbee-Moore
Page 11 of 39 2016 U.S. Dist. LEXIS 46206, *38 Bernstein, San Francisco, CA; H. Clay Barnett, [*39] III, LEAD ATTORNEY, Beasley, Allen, Crow, Methvin, Portis & MIles, P.C., Montgomery, AL; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robin L. Greenwald, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Melinda Tingle, Consol Plaintiff (1:15-md-02599-FAM): Andrew E. Brashier, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Benno B. Ashrafi, LEAD ATTORNEY, Weitz and Luxenberg, PC, Los Angeles, CA; Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Curt D. Marshall, LEAD ATTORNEY, Weitz & Luxenberg, PC, New York, NY; David S. Stellings, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser Heimann [*40] & Bernstein, San Francisco, CA; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robin L. Greenwald, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Suketu Dalal, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Anthony Palmieri, Consol Plaintiff (1:15-md-02599FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter [*41] Prieto, Podhurst Orseck, P.A., Miami, FL.
For Richard Klinger, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Kaiulani Muna, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Kathryn Tillisch, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Lyle Moore, Consol Plaintiff (1:15-md-02599FAM): [*42] Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Robin Spence, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Robin Holt, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Brooks Weisblat, Consol Plaintiff (1:15-md-02599FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ;
Barbara Follensbee-Moore
Page 12 of 39 2016 U.S. Dist. LEXIS 46206, *42 James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart [*43] & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Samuel Olds Patmore, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Donna Bader, Beach, Consol Plaintiff (1:15-md-02599FAM): Alexander E. Papaefthimiou, LEAD ATTORNEY, Megan A. Richmond, APC, San Diego, CA; Alexandra A. Hamilton, LEAD ATTORNEY, Cotchett Pitre and McCarthy, Burlingam, CA; Ara Ray Jabagchourian, LEAD ATTORNEY, Cotchett Pitre & McCarthy, LLP, Burlington, CA; Christopher Lavorato, LEAD ATTORNEY, Cotchett Pitre and McCarthy, LLP, Burlingame, CA; Frank M. Pitre, LEAD ATTORNEY, Cotchette Pitre [*44] & McCarthy, Burlington, CA; Megan A. Richmond, LEAD ATTORNEY, Megan Richmond Law Offices APC, Sand Diego, CA; Stewart Ryan Pollock, LEAD ATTORNEY, Cotchett, Pire & McCarthy, LLP, Burlington, CA. For Cathryn Tanner, Consol Plaintiff (1:15-md-02599-FAM): Joseph P. Guglielmo, LEAD ATTORNEY, Scott & Scott, LLP, New York, NY; Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Marita Murphy, Consol Plaintiff (1:15-md-02599-FAM): Joseph P. Guglielmo, LEAD ATTORNEY, Scott & Scott, LLP, New York, NY; Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For John S Zielinski, Consol Plaintiff (1:15-md-02599-FAM): Brian LaCien, LEAD ATTORNEY, Power Rogers & Smith, PC, Chicago, IL; Joseph A. Power, Jr., LEAD ATTORNEY, Power Rogers & Smith, Chicago, IL; Todd A. Smith, LEAD ATTORNEY, Power Rogers & Smith, Chicago, IL; Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
Godfrey LLP (NYC), New [*45] York, NY; Marc M. Seltzer, LEAD ATTORNEY, Susman Godfrey, LLP, Los Angeles, CA; Seth D. Ard, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Steven G. Sklaver, LEAD ATTORNEY, Susman Godgrey, LLP, Los Angeles, CA; Tamar Lusztig, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; William Christopher Carmody, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY. For Lauryn Sanchez, Consol Plaintiff (1:15-md-02599-FAM): Arun Srinivas Subramanian, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Marc M. Seltzer, LEAD ATTORNEY, Susman Godfrey, LLP, Los Angeles, CA; Seth D. Ard, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Steven G. Sklaver, LEAD ATTORNEY, Susman Godgrey, LLP, Los Angeles, CA; Tamar Lusztig, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; William Christopher Carmody, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY. For Chanteil Walter, Consol Plaintiff (1:15-md-02599-FAM): Arun Srinivas Subramanian, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Marc M. Seltzer, LEAD ATTORNEY, Susman Godfrey, LLP, Los Angeles, CA; Seth D. Ard, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Steven G. Sklaver, LEAD ATTORNEY, Susman Godgrey, [*46] LLP, Los Angeles, CA; Tamar Lusztig, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; William Christopher Carmody, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY. For John Zion, Consol Plaintiff (1:15-md-02599-FAM): Arun Srinivas Subramanian, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Marc M. Seltzer, LEAD ATTORNEY, Susman Godfrey, LLP, Los Angeles, CA; Seth D. Ard, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Steven G. Sklaver, LEAD ATTORNEY, Susman Godgrey, LLP, Los Angeles, CA; Tamar Lusztig, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; William Christopher Carmody, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY. For Kathryn Commiciotto, Consol Plaintiff (1:15-md-02599FAM): Alexandra A. Hamilton, LEAD ATTORNEY, Cotchett Pitre and McCarthy, Burlingam, CA; Christopher Lavorato, LEAD ATTORNEY, Cotchett Pitre and McCarthy, LLP, Burlingame, CA; Frank M. Pitre, LEAD ATTORNEY, Cotchette Pitre & McCarthy, Burlington, CA.
For Amir Bishara, Consol Plaintiff (1:15-md-02599-FAM): Arun Srinivas Subramanian, LEAD ATTORNEY, Susman Barbara Follensbee-Moore
Page 13 of 39 2016 U.S. Dist. LEXIS 46206, *46 For Linda Commiciotto, Consol Plaintiff (1:15-md-02599FAM): Alexandra A. Hamilton, LEAD ATTORNEY, Cotchett Pitre and McCarthy, Burlingam, CA; Christopher Lavorato, LEAD ATTORNEY, Cotchett Pitre and McCarthy, LLP, Burlingame, [*47] CA; Frank M. Pitre, LEAD ATTORNEY, Cotchette Pitre & McCarthy, Burlington, CA. For Elena E Obis, Consol Plaintiff (1:15-md-02599-FAM): Alexandra A. Hamilton, LEAD ATTORNEY, Cotchett Pitre and McCarthy, Burlingam, CA; Christopher Lavorato, LEAD ATTORNEY, Cotchett Pitre and McCarthy, LLP, Burlingame, CA; Frank M. Pitre, LEAD ATTORNEY, Cotchette Pitre & McCarthy, Burlington, CA. For Lisa Marie Duke, Consol Plaintiff (1:15-md-02599FAM): Edward W onkyu Choi, LEAD ATTORNEY, Law Offfices of Choi and Associates, APLC, Los Angeles, CA; Jae Kook Kim, LEAD ATTORNEY, McCune Wright LLP, Redlands, CA; Paul M. Yi, LEAD ATTORNEY, Choi and Associates APLC, Los Angeles, CA; Richard D. McCune, Jr., LEAD ATTORNEY, McCune Wright LLP, Redlands, CA. For Julie Mi Ok Nam, Consol Plaintiff (1:15-md-02599FAM): Edward W onkyu Choi, LEAD ATTORNEY, Law Offfices of Choi and Associates, APLC, Los Angeles, CA; Jae Kook Kim, LEAD ATTORNEY, McCune Wright LLP, Redlands, CA; Paul M. Yi, LEAD ATTORNEY, Choi and Associates APLC, Los Angeles, CA; Richard D. McCune, Jr., LEAD ATTORNEY, McCune Wright LLP, Redlands, CA. For Alex M Oh, Consol Plaintiff (1:15-md-02599-FAM): Edward W onkyu Choi, LEAD ATTORNEY, Law Offfices of Choi [*48] and Associates, APLC, Los Angeles, CA; Jae Kook Kim, LEAD ATTORNEY, McCune Wright LLP, Redlands, CA; Paul M. Yi, LEAD ATTORNEY, Choi and Associates APLC, Los Angeles, CA; Richard D. McCune, Jr., LEAD ATTORNEY, McCune Wright LLP, Redlands, CA. For Patrick Bryans, Consol Plaintiff (1:15-md-02599-FAM): Edward W onkyu Choi, LEAD ATTORNEY, Law Offfices of Choi and Associates, APLC, Los Angeles, CA; Jae Kook Kim, LEAD ATTORNEY, McCune Wright LLP, Redlands, CA; Paul M. Yi, LEAD ATTORNEY, Choi and Associates APLC, Los Angeles, CA; Richard D. McCune, Jr., LEAD ATTORNEY, McCune Wright LLP, Redlands, CA. For Kelly Ritter, Consol Plaintiff (1:15-md-02599-FAM): Daniel E. Gustafson, LEAD ATTORNEY, Gustafson Gluek PLLC, Minneapolis, MN; Nicole Lavallee, LEAD ATTORNEY, Berman DeValerio, San Francisco, CA; Rosemary F. Luzon, LEAD ATTORNEY, Shepard Finkelman Miller and Shah, LLP, San Diego, CA; Todd Seaver, LEAD ATTORNEY, Berman DeValerio, San
Francisco, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Michael Cunningham, Consol Plaintiff (1:15-md-02599FAM): Amy L. Marino, LEAD ATTORNEY, Sommers Schwarz PC, Southfield, MI; John P. Kristensen, LEAD ATTORNEY, Kristensen Weisberg LLP, Los Angeles, [*49] CA; Jonathan R. Voegele, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; R. Bryant McCulley, LEAD ATTORNEY, McCulley McCluer PLLC, Sullivans Island, SC; Richard Drubel, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; Stuart H. McCluer, LEAD ATTORNEY, McCulley McCluer PLLC, Oxford, MS. For Erik Boone, Consol Plaintiff (1:15-md-02599-FAM): Amy L. Marino, LEAD ATTORNEY, Sommers Schwarz PC, Southfield, MI; John P. Kristensen, LEAD ATTORNEY, Kristensen Weisberg LLP, Los Angeles, CA; Jonathan R. Voegele, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; R. Bryant McCulley, LEAD ATTORNEY, McCulley McCluer PLLC, Sullivans Island, SC; Richard Drubel, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; Stuart H. McCluer, LEAD ATTORNEY, McCulley McCluer PLLC, Oxford, MS; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Susan Teisl, Consol Plaintiff (1:15-md-02599-FAM): Amy L. Marino, LEAD ATTORNEY, Sommers Schwarz PC, Southfield, MI; John P. Kristensen, LEAD ATTORNEY, Kristensen Weisberg LLP, Los Angeles, CA; Jonathan R. Voegele, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; R. Bryant McCulley, LEAD ATTORNEY, McCulley McCluer PLLC, Sullivans Island, SC; Richard Drubel, [*50] LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; Stuart H. McCluer, LEAD ATTORNEY, McCulley McCluer PLLC, Oxford, MS. For Veronica Stewart, Consol Plaintiff (1:15-md-02599FAM): Amy L. Marino, LEAD ATTORNEY, Sommers Schwarz PC, Southfield, MI; John P. Kristensen, LEAD ATTORNEY, Kristensen Weisberg LLP, Los Angeles, CA; Jonathan R. Voegele, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; R. Bryant McCulley, LEAD ATTORNEY, McCulley McCluer PLLC, Sullivans Island, SC; Richard Drubel, LEAD ATTORNEY, Boies Schiller & Flexner, Hanover, NH; Stuart H. McCluer, LEAD ATTORNEY, McCulley McCluer PLLC, Oxford, MS. For Laura Killgo, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens
Barbara Follensbee-Moore
Page 14 of 39 2016 U.S. Dist. LEXIS 46206, *50 Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Dennis Hubbard, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, [*51] LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Howard Singer, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL. For Judith Hollywood, Consol Plaintiff (1:15-md-02599FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Frances Osterhout, Consol Plaintiff (1:15-md-02599FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, [*52] FL. For Shaun Taylor, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA; Seth Eric Miles, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Arlene Rosenstock, Consol Plaintiff (1:15-md-02599FAM): Christopher A. Seeger, LEAD ATTORNEY, Seeger Weiss, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Ann Xiaoyan Chen, Consol Plaintiff (1:15-md-02599FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb &
Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Judy Rumlik, Consol Plaintiff (1:15-md-02599-FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb & Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA. For Laura Gerhart, Consol Plaintiff [*53] (1:15-md-02599FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb & Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA. For John Huebner, Consol Plaintiff (1:15-md-02599-FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb & Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Thomas Williams, Consol Plaintiff (1:15-md-02599FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb & Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA. For Kangyi Chen, Consol Plaintiff (1:15-md-02599-FAM): Kenneth J. Grunfeld, LEAD ATTORNEY, Golomb & Honik, PC, Philadelphia, PA; Richard Golomb, LEAD ATTORNEY, Golomb & Honik, P.C., Philadelphia, PA; Ruben Honik, LEAD ATTORNEY, PRO HAC VICE, Golomb & Honik PC, Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Corene L Quirk, Consol [*54] Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC.
Barbara Follensbee-Moore
Page 15 of 39 2016 U.S. Dist. LEXIS 46206, *54 For Kimberly Horton, Consol Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Joyce M Wichmann, Consol Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, [*55] SC. For David Neto, Consol Plaintiff (1:15-md-02599-FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For David Bear McLaughlin, Consol Plaintiff (1:15-md02599-FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Mary B Johnston, Consol Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles [*56] Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Mary Christine Rapoza, Consol Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles
Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Richard E H Howells, Consol Plaintiff (1:15-md-02599FAM): Brian Morris Knowles, LEAD ATTORNEY, Knowles Law Firm, Summerville, SC; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Robert E. Weisberg, Colson Hicks Eidson, Consol Plaintiff (1:15-md-02599-FAM): Curtis Bradley Miner, [*57] LEAD ATTORNEY, Colson Hicks Eidson, Coral Gables, FL; Lewis S. Eidson, Colson Hicks Eidson, Coral Gables, FL; Natalie Marie Rico, Colson Hicks Eidson, Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Angelina C Sujata, Consol Plaintiff (1:15-md-02599FAM): Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kathryn Ashby Waites, LEAD ATTORNEY, Motley Rich (Ch), Charleston, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; William Taylor Carpentier Lacy, LEAD ATTORNEY, Motley Rice, Mt. Pleasant, SC; Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Sherrey Cioffi, Consol Plaintiff (1:15-md-02599-FAM): Joseph I. Marchese, LEAD ATTORNEY, Bursor & Fisher, P.A., Hollywood, FL; Neal Jamison Deckant, LEAD ATTORNEY, Bursor & Fisher PA, New York, NY; Scott A Bursor, LEAD ATTORNEY, Bursor & Fisher, P.A., New York, NY; Yitzchak Kopel, LEAD ATTORNEY, Bursor & Fisher, P.A., New York, NY. For Robert E Lyon, Jr, Consol Plaintiff (1:15-md-02599FAM): [*58] Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kathryn Ashby Waites, LEAD ATTORNEY, Motley Rich (Ch), Charleston, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; William Taylor Carpentier Lacy, LEAD ATTORNEY, Motley Rice, Mt.
Barbara Follensbee-Moore
Page 16 of 39 2016 U.S. Dist. LEXIS 46206, *58 Pleasant, SC; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Henry Pham, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Rafael A. Garcia, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Jeffrey Miles Ostrow, LEAD ATTORNEY, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, LEAD ATTORNEY, Kopelowitz Ostrow, Fort Lauderdale, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Racquel Hudson, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, [*59] Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY. For James Johnson, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY. For Byong T. Choi, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY. For Antonio Rosado, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY. For Oswald C. Tessier, Sr., Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Devon Rideout, Consol Plaintiff (1:15-md-02599-FAM): Arthur Camden Lewis, LEAD ATTORNEY, Lewis Babcock
and Griffin, Columbia, SC; Larry E. Coben, LEAD ATTORNEY, Anapol [*60] Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Michael Schafle, Consol Plaintiff (1:15-md-02599-FAM): Arthur Camden Lewis, LEAD ATTORNEY, Lewis Babcock and Griffin, Columbia, SC; Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Sian Schafle, Consol Plaintiff (1:15-md-02599-FAM): Arthur Camden Lewis, LEAD ATTORNEY, Lewis Babcock and Griffin, Columbia, SC; Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Christopher W. Pedersen, Consol Plaintiff (1:15-md02599-FAM): Benjamin L. Bailey, LEAD ATTORNEY, Bailey & Glasser, LLP, Chalreston, WV; Christopher S. Morris, LEAD ATTORNEY, Bailey & Glasser LLP, Charleston, WV; Eric B. Snyder, LEAD ATTORNEY, PRO HAC VICE, Bailey & Glasser LLP, Charleston, WV; Jonathan D. Boggs, LEAD ATTORNEY, Bailey & Glasser LLP, Charleston, WV; Katherine E. Charonko, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV; Robert P. Lorea, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Jonathan W. Knight, Consol Plaintiff [*61] (1:15-md02599-FAM): Benjamin L. Bailey, LEAD ATTORNEY, Bailey & Glasser, LLP, Chalreston, WV; Eric B. Snyder, LEAD ATTORNEY, PRO HAC VICE, Bailey & Glasser LLP, Charleston, WV; Jonathan D. Boggs, LEAD ATTORNEY, Bailey & Glasser LLP, Charleston, WV; Katherine E. Charonko, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV; Robert P. Lorea, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Laura S. Boggess, Consol Plaintiff (1:15-md-02599FAM): Benjamin L. Bailey, LEAD ATTORNEY, Bailey & Glasser, LLP, Chalreston, WV; Eric B. Snyder, LEAD ATTORNEY, PRO HAC VICE, Bailey & Glasser LLP, Charleston, WV; Jonathan D. Boggs, LEAD ATTORNEY, Bailey & Glasser LLP, Charleston, WV; Katherine E. Charonko, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV; Robert P. Lorea, LEAD ATTORNEY, Bailey & Glasser, Charleston, WV. For Robert Anthony Rich, Consol Plaintiff (1:15-md-02599FAM): Wayne Scott Kreger, LEAD ATTORNEY, Law Offices of Wayne Kreger, New York, NY.
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Page 17 of 39 2016 U.S. Dist. LEXIS 46206, *61 For Matthew Lawrence, Consol Plaintiff (1:15-md-02599FAM): Jeffrey Miles Ostrow, LEAD ATTORNEY, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, LEAD ATTORNEY, Kopelowitz [*62] Ostrow, Fort Lauderdale, FL; Wayne Scott Kreger, LEAD ATTORNEY, Law Offices of Wayne Kreger, New York, NY. For Robert Paul Rich, Consol Plaintiff (1:15-md-02599FAM): Wayne Scott Kreger, LEAD ATTORNEY, Law Offices of Wayne Kreger, New York, NY. For John Lee, Consol Plaintiff (1:15-md-02599-FAM): Wayne Scott Kreger, LEAD ATTORNEY, Law Offices of Wayne Kreger, New York, NY. For Jena Napp, Consol Plaintiff (1:15-md-02599-FAM): Wayne Scott Kreger, LEAD ATTORNEY, Law Offices of Wayne Kreger, New York, NY. For Richard A. Alexander, Consol Plaintiff (1:15-md-02599FAM): David A. Straite, LEAD ATTORNEY, Kaplan Fox & Kilsheimer LLP, New York, NY; Frederic S. Fox, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, New York, NY; Laurence D. King, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, San Francisco, CA; Linda M. Fong, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, LLP, San Francisco, CA; Robert N. Kaplan, LEAD ATTORNEY, Kaplan Fox & Kilsheimer LLP, New York, NY. For Thomas J. Faber, Consol Plaintiff (1:15-md-02599FAM): David A. Straite, LEAD ATTORNEY, Kaplan Fox & Kilsheimer LLP, New York, NY; Frederic S. Fox, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, New York, NY; Laurence D. King, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, [*63] San Francisco, CA; Linda M. Fong, LEAD ATTORNEY, Kaplan Fox & Kilsheimer, LLP, San Francisco, CA; Robert N. Kaplan, LEAD ATTORNEY, Kaplan Fox & Kilsheimer LLP, New York, NY. For Thomas Dunleavy, Consol Plaintiff (1:15-md-02599FAM): Arun Srinivas Subramanian, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; John Domenick Zaremba, LEAD ATTORNEY, Zaremba Brownell & Brown PLLC, New York, NY; Marc M. Seltzer, LEAD ATTORNEY, Susman Godfrey, LLP, Los Angeles, CA; Seth D. Ard, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; Steven G. Sklaver, LEAD ATTORNEY, Susman Godgrey, LLP, Los Angeles, CA; Tamar Lusztig, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; William Christopher Carmody, LEAD ATTORNEY, Susman Godfrey LLP (NYC), New York, NY; David John Zack, Coffey Burlington, Miami, FL.
For Hassan Ahmadi, Consol Plaintiff (1:15-md-02599-FAM): Andrew H.R. Brown, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Greensboro, NC; James Robert Faucher, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Grennsboro, NC; Jeffrey K. Peraldo, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Greensboro, NC; Jordan Reid Wagner, LEAD ATTORNEY, Kibbey | Wagner, PLLC, Stuart, FL. For John Henry Ellis, III, [*64] Consol Plaintiff (1:15-md02599-FAM): Andrew H.R. Brown, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Greensboro, NC; James Robert Faucher, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Grennsboro, NC; Jeffrey K. Peraldo, LEAD ATTORNEY, Benson Brown & Faucher, PLLC, Greensboro, NC; Jordan Reid Wagner, LEAD ATTORNEY, Kibbey | Wagner, PLLC, Stuart, FL. For Richard H. Sayler, Consol Plaintiff (1:15-md-02599FAM): Daniel Frech, LEAD ATTORNEY, Spangenberg, Shibley & LIber, Cleveland, OH; Jeffrey Miles Ostrow, LEAD ATTORNEY, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, LEAD ATTORNEY, Kopelowitz Ostrow, Fort Lauderdale, FL; Stuart E. Scott, LEAD ATTORNEY, Spangenberg Shibley & Liber LLP, Cleveland, OH; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Thomas R. Rickert, Consol Plaintiff (1:15-md-02599FAM): Alexander H. Schmidt, LEAD ATTORNEY, Wolf, Haldenstein, Adler, Freeman & Herz, LLP, New York, NY; Janine L. Pollack, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Malcolm T. Brown, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Richard Jason Lantinberg, LEAD ATTORNEY, The Wilner Firm, P.A., Jacksonville, [*65] FL; Stacey Kelly Breen, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY. For Robert Schmidt, Consol Plaintiff (1:15-md-02599-FAM): Alexander H. Schmidt, LEAD ATTORNEY, Wolf, Haldenstein, Adler, Freeman & Herz, LLP, New York, NY; Janine L. Pollack, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Malcolm T. Brown, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Richard Jason Lantinberg, LEAD ATTORNEY, The Wilner Firm, P.A., Jacksonville, FL; Stacey Kelly Breen, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
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Page 18 of 39 2016 U.S. Dist. LEXIS 46206, *65 For Christopher Paul Day, Consol Plaintiff (1:15-md-02599FAM): Alexander H. Schmidt, LEAD ATTORNEY, Wolf, Haldenstein, Adler, Freeman & Herz, LLP, New York, NY; Janine L. Pollack, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Malcolm T. Brown, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Richard Jason Lantinberg, LEAD ATTORNEY, The Wilner Firm, P.A., Jacksonville, FL; Stacey Kelly Breen, LEAD ATTORNEY, Wolf Haldenstein Adler Freeman & Herz, LLP, New York, NY; Peter Prieto, Podhurst [*66] Orseck, P.A., Miami, FL. For Linsey Meade, Consol Plaintiff (1:15-md-02599-FAM): Adam T. Schnatz, LEAD ATTORNEY, The Miller Law Firm, Rochester, MI; Edward W. Ciolko, LEAD ATTORNEY, PRO HAC VICE, Kesller, Topaz, Meltzer & Check, LLP, Radnor, PA; Joseph H. Meltzer, LEAD ATTORNEY, PRO HAC VICE, Barroway Topaz Kessler Meltzer & Check LLP, Radnor, PA; Marc L. Newman, LEAD ATTORNEY, The Miller Law Firm, Rochester, MI; Peter A. Muhic, LEAD ATTORNEY, Kessler, Topaz, Meltzer & Check, LLP, Radnor, PA. For Joseph Przybyszewski, Consol Plaintiff (1:15-md-02599FAM): Adam T. Schnatz, LEAD ATTORNEY, The Miller Law Firm, Rochester, MI; Edward W. Ciolko, LEAD ATTORNEY, PRO HAC VICE, Kesller, Topaz, Meltzer & Check, LLP, Radnor, PA; Joseph H. Meltzer, LEAD ATTORNEY, PRO HAC VICE, Barroway Topaz Kessler Meltzer & Check LLP, Radnor, PA; Marc L. Newman, LEAD ATTORNEY, The Miller Law Firm, Rochester, MI; Peter A. Muhic, LEAD ATTORNEY, Kessler, Topaz, Meltzer & Check, LLP, Radnor, PA. For Erin K. Meiser, Consol Plaintiff (1:15-md-02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Caroline B. McLean, LEAD ATTORNEY, Ward and Smith PA, Asheville, [*67] NC; Gary J. Rickner, LEAD ATTORNEY, Ward and Smith PA, Raleigh, NC; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Lynwood P. Evans, LEAD ATTORNEY, Ward and Smith PA, Greenville, NC; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA. For Marjorie Michelle Avery, Consol Plaintiff (1:15-md02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Caroline B. McLean, LEAD ATTORNEY, Ward and Smith PA, Asheville, NC; Gary J. Rickner, LEAD
ATTORNEY, Ward and Smith PA, Raleigh, NC; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Lynwood P. Evans, LEAD ATTORNEY, Ward and Smith PA, Greenville, NC; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Sonya A (Tipton) Leonard, Consol Plaintiff (1:15-md02599-FAM): [*68] Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Caroline B. McLean, LEAD ATTORNEY, Ward and Smith PA, Asheville, NC; Gary J. Rickner, LEAD ATTORNEY, Ward and Smith PA, Raleigh, NC; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Lynwood P. Evans, LEAD ATTORNEY, Ward and Smith PA, Greenville, NC; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Charles Fishman, Consol Plaintiff (1:15-md-02599FAM): Christopher A. Seeger, LEAD ATTORNEY, Seeger Weiss, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Donna Bourne, Consol Plaintiff (1:15-md-02599-FAM): Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Donald A. Soutar, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY. For Daniel K. Back, Consol Plaintiff (1:15-md-02599-FAM): Andrew W. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS; Deborah B. McIlhenny, LEAD ATTORNEY, Hutton & [*69] Hutton Law Firm, Wichita, KS; Mark B. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS. For John Warren Burge, Consol Plaintiff (1:15-md-02599FAM): Andrew W. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS; Deborah B. McIlhenny, LEAD ATTORNEY, Hutton & Hutton Law Firm, Wichita, KS; Mark B. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS. For Lynndon Bais, Consol Plaintiff (1:15-md-02599-FAM): Andrew W. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS; Deborah B. McIlhenny, LEAD
Barbara Follensbee-Moore
Page 19 of 39 2016 U.S. Dist. LEXIS 46206, *69 ATTORNEY, Hutton & Hutton Law Firm, Wichita, KS; Mark B. Hutton, LEAD ATTORNEY, Hutton & Hutton Law Firm LLC, Wichita, KS. For Gilbert Art, LLC, Consol Plaintiff (1:15-md-02599FAM): Bruce Kingsdorf, LEAD ATTORNEY, Barrios, Kingsdorf & Casteix, LLP, New Orleans, LA; Dawn M. Barrios, LEAD ATTORNEY, Barrios Kingsdorf & Casteix, New Orleans, LA; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Leonard A. Davis, Herman, Herman & Katz, LLC, New Orleans, LA; Russ M. Herman, Herman Middleton Casey & Kitchens, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. Miguel A Morales Ramos, Consol Plaintiff, Pro [*70] se, San Sebastian, PR. For Miguel A Morales Ramos, Consol Plaintiff (1:15-md02599-FAM): Alan H. Rolnick, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Andres Rivero, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Charles Edward Whorton, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Daniel Alvarez Sox, Rivero Mestre LLP, Coral Gables, FL. For Amber Hodgson, Consol Plaintiff (1:15-md-02599FAM): Matthew Lee Dameron, LEAD ATTORNEY, Williams Dirks Dameron LLC, Kansas City, MO; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Jason Moehlman, Consol Plaintiff (1:15-md-02599FAM): Matthew Lee Dameron, LEAD ATTORNEY, Williams Dirks Dameron LLC, Kansas City, MO; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Jann Holland, Consol Plaintiff (1:15-md-02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Gregory W. Aleshire, LEAD ATTORNEY, Aleshire Robb, P.C., Springfield, MO; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, [*71] Kilpatrick, Morrison & Norwood PC, Atlanta, GA. For Russ Holland, Consol Plaintiff Caroline G. McGlamry, LEAD McGlamry, Kilpatrick, Morrison & GA; Gregory W. Aleshire, LEAD Robb, P.C., Springfield, MO; Jay
(1:15-md-02599-FAM): ATTORNEY, Pope, Norwood PC, Atlanta, ATTORNEY, Aleshire Forbes Hirsch, LEAD
ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Daniel Marino, Consol Plaintiff (1:15-md-02599-FAM): Edwin J. Kilpela, LEAD ATTORNEY, Carlson Lynch LTD, Pittsburgh, PA; Gary F. Lynch, LEAD ATTORNEY, Carlson Lynch Sweet & Kilpela LLP, New Castle, PA. For Sandeep Dewan, Consol Plaintiff (1:15-md-02599-FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, [*72] Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Joseph Aliscio, Consol Plaintiff (1:15-md-02599-FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, [*73] LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ.
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Page 20 of 39 2016 U.S. Dist. LEXIS 46206, *73 For David Gunther, Consol Plaintiff (1:15-md-02599-FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller [*74] Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Kimberly Holmes, Consol Plaintiff (1:15-md-02599FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, [*75] P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Lonee Cataldo, Consol Plaintiff (1:15-md-02599-FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum
Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Kathy Liberal, Consol Plaintiff (1:15-md-02599-FAM): Donald A. Ecklund, LEAD ATTORNEY, [*76] Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Barbara Courtney, Consol Plaintiff (1:15-md-02599FAM): Donald A. Ecklund, LEAD ATTORNEY, Carella, Byrne, Cecchi, Olstein, Brody & Agnello, PC, Roseland, NJ; James E. Cecchi, LEAD ATTORNEY, PRO HAC VICE, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, [*77] NJ; Jamie E. Weiss, LEAD ATTORNEY, Quantum Legal, LLC, Highland Park, IL; Jay Brian Shapiro, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Lindsey H. Taylor, LEAD ATTORNEY, Carella Byrne Bain Gilfillan Cecchi Stewart & Olstein, Roseland, NY; Mary Barzee, LEAD ATTORNEY, Stearns Weaver Miller, et al., Miami, FL; Richard J. Burke, LEAD ATTORNEY, Quantum Legal LLC, St. Louis, MO; Samuel Olds Patmore, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Miami, FL; Veronica Louise De Zayas, LEAD ATTORNEY, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, FL; Zachary Scott Bower, Carella Byrne Cecchi Olstein Brody & Agnello, Roseland, NJ. For Shelley Shader, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Tal J Lifshitz, LEAD
Barbara Follensbee-Moore
Page 21 of 39 2016 U.S. Dist. LEXIS 46206, *77 ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Connie Collins, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL; Peter Prieto, Podhurst Orseck, [*78] P.A., Miami, FL. For Barry Balmuth, Consol Plaintiff (1:15-md-02599-FAM): Adam M. Moskowitz, LEAD ATTORNEY, Kozyak Tropin & Throckmorton, Coral Gables, FL; Tal J Lifshitz, LEAD ATTORNEY, Kozyak Tropin Throckmorton, Miami, FL. For Gail Markowitz, Consol Plaintiff (1:15-md-02599-FAM): Dawn M. Barrios, LEAD ATTORNEY, Barrios Kingsdorf & Casteix, New Orleans, LA; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robert L. Lieff, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Maureen Rash, Consol Plaintiff (1:15-md-02599-FAM): Dawn M. Barrios, LEAD ATTORNEY, Barrios Kingsdorf & Casteix, New Orleans, LA; Elizabeth J. Cabraser, LEAD ATTORNEY, [*79] Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robert L. Lieff, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Zachary L. Wool, LEAD ATTORNEY, Barrios, Kingsdorf & Casteiz, LLP, New Orleans, LA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Kurt Scheuerman, Consol Plaintiff (1:15-md-02599FAM): Dean Gresham, LEAD ATTORNEY, Dean Gresham PC, Dallas, TX; Laurence Matthew Rosen, The Rosen Law Firm, New York, NY.
For Jennifer Burch, Consol Plaintiff (1:15-md-02599-FAM): Val Patrick Exnicios, LEAD ATTORNEY, Liska, Exnicios & Nungesser, New Orleans, LA. For Keith Gauchet, Consol Plaintiff (1:15-md-02599-FAM): Val Patrick Exnicios, LEAD ATTORNEY, Liska, Exnicios & Nungesser, New Orleans, LA. For Monte Leger, Consol Plaintiff (1:15-md-02599-FAM): Bradley Landon Leger, LEAD ATTORNEY, Leger Adkins LLP, Houston, [*80] TX; Eugene Roger Egdorf, LEAD ATTORNEY, Lanier Law Firm PC, Houston, TX; Pierce Michael Adkins, LEAD ATTORNEY, Leger Adkins LLP, Houston, TX; W. Mark Lanier, LEAD ATTORNEY, Lanier Law Firm, Houston, TX. For David W. Cambron, Jr., Consol Plaintiff (1:15-md-02599FAM): Ronald Richard Parry, LEAD ATTORNEY, Strauss Troy, Cincinnati, OH; Tad Thomas, LEAD ATTORNEY, Thomas Law Office PLLC, Louisville, KY. For Claire W Thompson, Consol Plaintiff (1:15-md-02599FAM): Amy Hunt, LEAD ATTORNEY, Strauss Troy, Cincinnati, OH; Joseph J. Braun, LEAD ATTORNEY, Strauss & Troy, Cincinnati, OH; Ronald Richard Parry, LEAD ATTORNEY, Strauss Troy, Cincinnati, OH. For Yessica Martinez, Consol Plaintiff (1:15-md-02599FAM): Brett Elliott von Borke, LEAD ATTORNEY, Buckner + Miles, Miami, FL; David Buckner, LEAD ATTORNEY, Buckner+Miles, Miami, FL; Seth Eric Miles, LEAD ATTORNEY, Buckner + Miles, Miami, FL; Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Eric Anthony Rosson, Consol Plaintiff (1:15-md-02599FAM): Brett Elliott von Borke, LEAD ATTORNEY, Buckner + Miles, Miami, FL; David Buckner, LEAD ATTORNEY, Buckner+Miles, Miami, FL; Seth Eric Miles, LEAD [*81] ATTORNEY, Buckner + Miles, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Richard Daniel Arnold, Jr., Consol Plaintiff (1:15-md02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Kimberly Jean Johnson, LEAD ATTORNEY, Pope McGlamry Kilpatrick Morrison & Norwood, P.C., Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta,
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Page 22 of 39 2016 U.S. Dist. LEXIS 46206, *81 GA; Thomas P. Willingham, LEAD ATTORNEY, Law Offices of Thomas P. Willingham PC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Trey Watley, Consol Plaintiff (1:15-md-02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Kimberly Jean Johnson, LEAD ATTORNEY, Pope McGlamry Kilpatrick Morrison & Norwood, P.C., Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices [*82] of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Thomas P. Willingham, LEAD ATTORNEY, Law Offices of Thomas P. Willingham PC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Ms. Bonnie W Young, C/O The Overholt Law Firm, PC, Consol Plaintiff (1:15-md-02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; H. Scott Overholt, LEAD ATTORNEY, Overholt Law Firm, PC, Wilmington, NC; Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Mr. Charles E. Calhoun, Sr., C/O The Overholt Law Firm, PC, Consol Plaintiff (1:15-md-02599-FAM): Caroline G. McGlamry, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; H. Scott Overholt, LEAD ATTORNEY, Overholt Law Firm, PC, Wilmington, NC; Jay Forbes Hirsch, LEAD [*83] ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Michael L. McGlamry, LEAD ATTORNEY, Law Offices of Pope, McGlamry, Kulpatrick, et al., Atlanta, GA; R. Timothy Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA. For Nicole Fisch, Consol Plaintiff (1:15-md-02599-FAM): Elaine T. Byszewski, LEAD ATTORNEY, Hagens Berman Sobol Shapiro LLP, Pasadena, CA; Robert C. Hilliard, LEAD ATTORNEY, Hilliard Munoz Gonzales, LLP, Corpus Christi, TX; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA.
For Michael Byrne, Consol Plaintiff (1:15-md-02599-FAM): Jason A. Zweig, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, New York, NY; Robert C. Hilliard, LEAD ATTORNEY, Hilliard Munoz Gonzales, LLP, Corpus Christi, TX. For Kevin Boyd, Consol Plaintiff (1:15-md-02599-FAM): Camilo K. Salas, III, LEAD ATTORNEY, Salas & Co, L.C., New Orleans, LA; Daniel E. Becnel, Jr., LEAD ATTORNEY, Becnel Law Firm LLC, Reserve, LA; Matthew B. Moreland, LEAD ATTORNEY, Becnel Law Firm LLC, Reserve, LA; Salvadore Christina, Jr., LEAD ATTORNEY, Becnel Law Firm, LLC, [*84] Rserve, LA. For Automotive Dismantlers and Recyclers Association, Inc., Consol Plaintiff (1:15-md-02599-FAM): Andrew Bryan Zelmanowitz, LEAD ATTORNEY, Aronovitz Law, Miami, FL; Barbara Perez, LEAD ATTORNEY, Aronovitz Law, Miami, FL; Peter A. Muhic, LEAD ATTORNEY, Kessler, Topaz, Meltzer & Check, LLP, Radnor, PA; Tod N. Aronovitz, LEAD ATTORNEY, Aronovitz Law, Miami, FL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Diana Rennie, Consol Plaintiff (1:15-md-02599-FAM): Andrew E. Brashier, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Curt D. Marshall, LEAD ATTORNEY, Weitz & Luxenberg, PC, New York, NY; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA; Robin L. Greenwald, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY; Sean Christopher Domnick, LEAD ATTORNEY, Domnick Law, Palm Beach Gardens, FL; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser [*85] Heimann & Bernstein, LLP, San Francisco, CA; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL. For Richard Lee, Consol Plaintiff (1:15-md-02599-FAM): Andrew E. Brashier, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Archie I. Grubb, II, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles PC, Montgomery, AL; Christopher B. Dalbey, LEAD ATTORNEY, Weitz & Luxenberg PC, Los Angeles, CA; Curt D. Marshall, LEAD ATTORNEY, Weitz & Luxenberg, PC, New York, NY; Elizabeth J. Cabraser, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, San Francisco, CA; Phong-Chau G. Nguyen, LEAD ATTORNEY, Lieff Cabraser Heimann & Bernstein, LLP, San
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Page 23 of 39 2016 U.S. Dist. LEXIS 46206, *85 Francisco, CA; Robin L. Greenwald, LEAD ATTORNEY, Weitz & Luxenberg PC, New York, NY; Sean Christopher Domnick, LEAD ATTORNEY, Domnick Law, Palm Beach Gardens, FL; Todd A. Walburg, LEAD ATTORNEY, Lief Cabraser Heimann & Bernstein, LLP, San Francisco, CA; W Daniel Miles, III, LEAD ATTORNEY, Beasley Allen Crow Methvin Portis & Miles, Montgomery, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Claribel Del Carmen Nunez, Consol Plaintiff (1:15-md02599-FAM): Jason Scott Turchin, LEAD [*86] ATTORNEY, Law Offices of Jason Turchin, Weston, FL. For Dianne L. Moulton, Consol Plaintiff (1:15-md-02599FAM): Craig Hilborn, LEAD ATTORNEY, Hilborn & Hilborn, PC, Birmingham, MI; David M. Kramer, LEAD ATTORNEY, Hilborn & Hilborn, PC, Birmingham, MI; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kathryn Ashby Waites, LEAD ATTORNEY, Motley Rich (Ch), Charleston, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC; William Taylor Carpentier Lacy, LEAD ATTORNEY, Motley Rice, Mt. Pleasant, SC. For Mimi Primeaux, Consol Plaintiff (1:15-md-02599-FAM): Chad Joseph Primeaux, LEAD ATTORNEY, The Dugan Law Firm, APLC, New Orleans, LA; James R. Dugan, II, LEAD ATTORNEY, Dugan Law Firm, New Orleans, LA. For Annie McAdam, Consol Plaintiff (1:15-md-02599-FAM): Chad Joseph Primeaux, LEAD ATTORNEY, The Dugan Law Firm, APLC, New Orleans, LA; James R. Dugan, II, LEAD ATTORNEY, Dugan Law Firm, New Orleans, LA. For Lee Gori, Consol Plaintiff (1:15-md-02599-FAM): D. Todd Mathews, LEAD ATTORNEY, Gori, Julian & Associates, [*87] PC, Edwardsville, IL; Eric D. Holland, LEAD ATTORNEY, Holland Groves Schneller & Stolze LLC, St. Louis, MO; Randall Seth Crompton, LEAD ATTORNEY, Holland, Groves, Schneller & Stolze, St. Louis, MO. For Marc C. Raiken, Consol Plaintiff (1:15-md-02599-FAM): Eric Lechtzin, LEAD ATTORNEY, Berger & Montague PC, Philadelphia, pA; Russell D. Paul, LEAD ATTORNEY, Berger & Montague PC, Philadelphia, PA; Sherrie R. Savett, LEAD ATTORNEY, Berger & Montague, P.C., Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Michael Walker, JR., Consol Plaintiff (1:15-md-02599FAM): Eric Lechtzin, LEAD ATTORNEY, Berger & Montague PC, Philadelphia, pA; Russell D. Paul, LEAD ATTORNEY, Berger & Montague PC, Philadelphia, PA; Sherrie R. Savett, LEAD ATTORNEY, Berger & Montague, P.C., Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Helen Pokiniewski, Consol Plaintiff (1:15-md-02599FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Ted Pepin, Consol Plaintiff (1:15-md-02599-FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, [*88] PA. For James Thompson, Consol Plaintiff (1:15-md-02599FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Stephen Pokiniewski, Consol Plaintiff (1:15-md-02599FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Nancy Wade, Consol Plaintiff (1:15-md-02599-FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For James McDonough, Consol Plaintiff (1:15-md-02599FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Karen Serrano, Consol Plaintiff (1:15-md-02599-FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Ruth Thompson, Consol Plaintiff (1:15-md-02599-FAM): Larry E. Coben, LEAD ATTORNEY, Anapol Schwartz, Scotsdale, AZ; Sol H. Weiss, LEAD ATTORNEY, Anapol Schwartz, Philadelphia, PA. For Mickey Vukadinovic, Consol Plaintiff (1:15-md-02599FAM): Dianne M. Nast, LEAD ATTORNEY, [*89] PRO HAC VICE, NastLaw, LLC, Philadelphia, PA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
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Page 24 of 39 2016 U.S. Dist. LEXIS 46206, *89 For Janet McFarland, Consol Plaintiff (1:15-md-02599FAM): Gary F. Lynch, LEAD ATTORNEY, Carlson Lynch Sweet & Kilpela LLP, New Castle, PA. For Crystal Pardue, Consol Plaintiff (1:15-md-02599-FAM): Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Roy Martin, Consol Plaintiff (1:15-md-02599-FAM): Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Billy Richardson, Consol Plaintiff (1:15-md-02599FAM): Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Mario Cervantes, Consol Plaintiff (1:15-md-02599FAM): Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Carolyn Miller, Consol Plaintiff (1:15-md-02599-FAM): Richard S. Frankowski, LEAD ATTORNEY, The Frankoski Firm LLC, Birmingham, AL. For Joana Corticeiro, Consol Plaintiff (1:15-md-02599-FAM): Gerald H. Clark, LEAD ATTORNEY, Clark Law [*90] Firm PC, Belmar, NJ. For Miranda Perez, Consol Plaintiff (1:15-md-02599-FAM): Howard S. Hershenhorn, LEAD ATTORNEY, Gair, Gair, Conaason, Steigman & Mackauf, New York, NY. For Robert F. Goodwin, Consol Plaintiff (1:15-md-02599FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Teddy K. Veser, Consol Plaintiff (1:15-md-02599-FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI. For Kalpna Chauhan, Consol Plaintiff (1:15-md-02599FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI. For Gerdgene Karl Veser, Consol Plaintiff (1:15-md-02599FAM): Patrick E. Cafferty, LEAD ATTORNEY, Cafferty Clobes Meriwether & Sprengel LLP, Ann Arbor, MI; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Tina Herring, Consol Plaintiff (1:15-md-02599-FAM): Allan Kanner, LEAD ATTORNEY, PRO HAC VICE, Kanner & Whiteley LLC, New Orleans, LA; Conlee S. Whiteley, LEAD ATTORNEY, PRO HAC VICE, Kanner & Whiteley LLC, New Orleans, LA; Wilfred K. Wright, Jr., LEAD ATTORNEY, Wright Law, Claremore, OK. For Denise Raposo, Consol Plaintiff [*91] (1:15-md-02599FAM): Christian Daniel Walled, LEAD ATTORNEY, Raposo | Walled, P.L., Miami, FL; Jose Antonio Raposo, Jr., Raposo | Walled P.L., Miami, FL. For Jack Bowen, Consol Plaintiff (1:15-md-02599-FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Marisa Moore, Consol Plaintiff (1:15-md-02599-FAM): Gary F. Lynch, LEAD ATTORNEY, Carlson Lynch Sweet & Kilpela LLP, New Castle, PA. For David G. Thomas, Consol Plaintiff (1:15-md-02599FAM): Brian R. Denney, LEAD ATTORNEY, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach, FL. For Margaret Bace, Consol Plaintiff (1:15-md-02599-FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, [*92] LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Howard G. Frey, Consol Plaintiff (1:15-md-02599-FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Scott T. Strachan, Consol Plaintiff (1:15-md-02599FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi
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Page 25 of 39 2016 U.S. Dist. LEXIS 46206, *92 Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Macy A. Flett, Consol Plaintiff (1:15-md-02599-FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, [*93] Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For David W. Ellis, Sr., Consol Plaintiff (1:15-md-02599FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Amanda J. Revelia, Consol Plaintiff (1:15-md-02599FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, [*94] Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Philip Bace, Consol Plaintiff (1:15-md-02599-FAM): Jeffrey Louis Haberman, LEAD ATTORNEY, Schlesinger Law Offices, Fort Lauderdale, FL; Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC; Jonathan Gdanski, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount
Pleasant, SC; Scott P. Schlesinger, LEAD ATTORNEY, Sheldon J. Schlesinger PA, Fort Lauderdale, FL. For Milton Diaz Soto, Consol Plaintiff (1:15-md-02599FAM): Andres Rivero, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Charles Edward Whorton, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Daniel Alvarez Sox, Rivero Mestre LLP, Coral Gables, FL. For America Diaz Vega, Consol Plaintiff (1:15-md-02599FAM): Andres Rivero, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Charles Edward Whorton, LEAD [*95] ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Daniel Alvarez Sox, Rivero Mestre LLP, Coral Gables, FL. For Juan E. Diaz Diaz, Consol Plaintiff (1:15-md-02599FAM): Andres Rivero, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Charles Edward Whorton, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Daniel Alvarez Sox, Rivero Mestre LLP, Coral Gables, FL. For Isabel N. Diaz Diaz, Consol Plaintiff (1:15-md-02599FAM): Andres Rivero, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Charles Edward Whorton, LEAD ATTORNEY, Rivero Mestre LLP, Coral Gables, FL; Daniel Alvarez Sox, Rivero Mestre LLP, Coral Gables, FL. For Cira Montoya, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY. For Corine Shearer, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY. For Patti [*96] Rowe, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY. For Angel Figuerora, Consol Plaintiff (1:15-md-02599-FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC,
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Page 26 of 39 2016 U.S. Dist. LEXIS 46206, *96 New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY.
Brian Cosgrove, LEAD ATTORNEY, LEON COSGROVE, LLC, Coral Gables, FL.
For Jerzy Wieczorek, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Jeffrey Miles Ostrow, LEAD ATTORNEY, The Kopelowitz & Ostrow Firm PA, Fort Lauderdale, FL; Jonathan Marc Streisfeld, LEAD ATTORNEY, Kopelowitz Ostrow, Fort Lauderdale, FL; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY.
For Beverly Whiddon, Consol Plaintiff (1:15-md-02599FAM): Catherine D. Tobin, LEAD ATTORNEY, Hilliard Munoz Gonzales, LLP, Corpus Christi, TX; Marion Reilly, LEAD ATTORNEY, Hilliar Munoz Gonzales, LLP, Corpus Christi, TX; Robert C. Hilliard, LEAD ATTORNEY, Hilliard Munoz Gonzales, LLP, Corpus Christi, TX; Rudy Gonzales, Jr., LEAD ATTORNEY, Hilliard Munoz Gonzales, LLP, Corpus Christi, TX; Seth Eric Miles, LEAD ATTORNEY, Buckner + Miles, Miami, FL; Steve W. Berman, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, LLP, Seattle, WA; Thomas E. Loeser, LEAD ATTORNEY, Hagens Berman Sobol Shapiro, Seattle, WA.
For Howard Campbell, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation [*97] Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY. For Constantine Kazos, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Cindy Tiemeyer, Consol Plaintiff (1:15-md-02599-FAM): Dianne M Serrano, LEAD ATTORNEY, Bodiford Law Group, Orlando, FL. Andrew J Kampuries, Consol Plaintiff, Pro se, Massapequa Park, NY. For Marc Seals, Consol Plaintiff (1:15-md-02599-FAM): Brian John Lechich, LEAD ATTORNEY, Coral Gables, FL; Jose Antonio Ortiz, LEAD ATTORNEY, Herron Ortiz, Miami, FL. [*99]
For Katherine E. Shank, Consol Plaintiff (1:15-md-02599FAM): Anne Melissa Seelig, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; C.K. Lee, LEAD ATTORNEY, PRO HAC VICE, Lee Litigation Group PLLC, New York, NY; Shanshan Zheng, LEAD ATTORNEY, Lee Litigation Group PLLC, New York, NY; Peter Prieto, Podhurst Orseck, P.A., Miami, FL.
For Patricia Payeur, Consol Plaintiff (1:15-md-02599-FAM): Charles A. Bonner, LEAD ATTORNEY, Law Offices of Bonner and Bonner, Sausalito, CA.
For Jasmine Briant, Consol Plaintiff (1:15-md-02599-FAM): Michael Charles Darnell, LEAD ATTORNEY, Murray, Darnell & Associates, LLC, New Orleans, LA.
For William R Wilson, LA, Consol Plaintiff (1:15-md-02599FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC.
For Adeline Cadit, Consol Plaintiff (1:15-md-02599-FAM): John Bruce Ostrow, LEAD ATTORNEY, John B. Ostrow, P.A., Miami, FL.
For Sabra M. Wilson, LA, Consol Plaintiff (1:15-md-02599FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC.
For Joan Schwebel, Consol Plaintiff (1:15-md-02599-FAM): John Bruce Ostrow, LEAD ATTORNEY, John B. Ostrow, P.A., Miami, FL.
For Cedric Walton, Consol Plaintiff (1:15-md-02599-FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC.
For Clark Stanley Dube, Consol Plaintiff [*98] (1:15-md02599-FAM): Alec Huff Schultz, LEAD ATTORNEY, Leon Cosgrove LLC, Coral Gables, FL; Jared Reed Kessler, LEAD ATTORNEY, Leon Cosgrove, LLC, Coral Gables, FL; Scott
For Amy Patterson, Consol Plaintiff (1:15-md-02599-FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC.
For Joel Brightbill, Consol Plaintiff (1:15-md-02599-FAM): Charles A. Bonner, LEAD ATTORNEY, Law Offices of Bonner and Bonner, Sausalito, CA.
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Page 27 of 39 2016 U.S. Dist. LEXIS 46206, *99 For Jerry Adler, Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL.
For Mary Saucedo, Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL.
For Julie Shmil, Consol Plaintiff (1:15-md-02599-FAM): Brian Douglas Penny, LEAD ATTORNEY, Goldman Scarlato & Karon, P.C., Conshohocken, PA.
For Jossellin M. Resto, Consol Plaintiff (1:15-md-02599FAM): Andrew Parker Felix, LEAD ATTORNEY, Morgan, Morgan, P.A., Orlando, FL; Martin J. Jaffe, LEAD ATTORNEY, Morgan & Morgan, P.A., Orlando, FL; Timothy Michael Morgan, LEAD ATTORNEY, Morgan & Morgan PA, Orlando, FL.
For Dorry Taylor, Consol Plaintiff (1:15-md-02599-FAM): Diandra Debrosse Zimmermann, LEAD ATTORNEY, Zarzaur Mujumdar & Debrosse, Birmingham, [*100] AL; James Matthew Stephens, LEAD ATTORNEY, McCallum Methvin and Terrell PC, Birmingham, AL. For Law Ngee Chiong, Consol Plaintiff (1:15-md-02599FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC. For Daree Sutton, Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL; Yelena Shneyderman, LEAD ATTORNEY, Yelena Shneyderman, P.A., Hollywood, FL. For Sara Baker, Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL; Yelena Shneyderman, LEAD ATTORNEY, Yelena Shneyderman, P.A., Hollywood, FL. For Gina Johnson, Consol Plaintiff (1:15-md-02599-FAM): Henry Nicholas Didier, Jr., LEAD ATTORNEY, Didier Law Firm, P.A., Orlando, FL. For Lesley Klein, Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL; Yelena Shneyderman, LEAD ATTORNEY, Yelena Shneyderman, P.A., Hollywood, FL. For Marna S Chapman, Consol Plaintiff (1:15-md-02599FAM): Thomas David Hoyle, LEAD ATTORNEY, Motley Rice LLC, Mt. Pleasant, SC. For Clyde K Chapman, Consol Plaintiff (1:15-md-02599FAM): Thomas David Hoyle, LEAD ATTORNEY, [*101] Motley Rice LLC, Mt. Pleasant, SC. For Tina Tran Dang, Consol Plaintiff (1:15-md-02599-FAM): Henry Nicholas Didier, Jr., LEAD ATTORNEY, Didier Law Firm, P.A., Orlando, FL; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC. For E. S., Consol Plaintiff (1:15-md-02599-FAM): Jason Scott Turchin, LEAD ATTORNEY, Law Offices of Jason Turchin, Weston, FL.
For Annette Reid, Consol Plaintiff (1:15-md-02599-FAM): John Denis Sheppard, LEAD ATTORNEY, Morrow & Sheppard, LLP, Houston, TX; Nicholas Albert Morrow, LEAD ATTORNEY, Morrow & Sheppard, LLP, Houston, TX; Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL. For Sumatee Ramroop, Consol Plaintiff (1:15-md-02599FAM): Jay Forbes Hirsch, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; R. Timothy [*102] Morrison, LEAD ATTORNEY, Pope, McGlamry, Kilpatrick, Morrison & Norwood PC, Atlanta, GA; Thomas David Hoyle, Motley Rice LLC, Mt. Pleasant, SC. For Dawne Hodge, Consol Plaintiff (1:15-md-02599-FAM): Timothy J. Donahue, LEAD ATTORNEY, Timothy J. Donahue Law Offices, Orange, CA. For Candido Orlando Francisco Rodriguez, Consol Plaintiff (1:15-md-02599-FAM): John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Peter Prieto, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL. For Juan Falcon-Cosme, Consol Plaintiff (1:15-md-02599FAM): Carlos A Romero, LEAD ATTORNEY, Jr., Post, Romero, coral gables, FL; Curtis Bradley Miner, LEAD ATTORNEY, Colson Hicks Eidson, Coral Gables, FL; Latoya Crystal Brown, Colson Hicks Eidson, Coral Gables, FL. For Heidi Lantier Mauro, Consol Plaintiff (1:15-md-02599FAM): Curtis Bradley Miner, LEAD ATTORNEY, Colson Hicks Eidson, Coral Gables, FL; Latoya Crystal Brown, Colson Hicks Eidson, Coral Gables, FL. For FCA US LLC, Defendant (1:15-md-02599-FAM): Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Scott M. Sarason, Rumberger Kirk & Caldwell, Miami, FL.
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Page 28 of 39 2016 U.S. Dist. LEXIS 46206, *102 For Inflation Systems [*103] Inc., Defendant (1:15-md02599-FAM): Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL. For Takata Corporation, Consol Defendant (1:15-md-02599FAM): Giovanna Tarantino Bingham, LEAD ATTORNEY, Hartline Dacus et al, Dallas, TX; Keith A. Teel, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Kyle Harold Dreyer, LEAD ATTORNEY, Hartline Dacus Barger Dreyer LLP, Dallas, TX; Lanny A. Breuer, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Larry Don Grayson, LEAD ATTORNEY, Hartline Dacus et al., Dallas, TX; Michael X. Imbroscio, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Paul W. Schmidt, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, Washington, DC; Shankar Duraiswamy, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling LLP, Washington, DC; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL; Susan J. Pope, Frost Brown Todd LLC - Lexington, Lexington, KY. For TK Holdings, Inc., Consol Defendant (1:15-md-02599FAM): Alex P. Tilling, LEAD ATTORNEY, Leake & Anderson LLP, New Orleans, LA; Benjamin W. Allen, [*104] LEAD ATTORNEY, Johnson, Trent, West & Taylor LLP, Houston, TX; Benjamin R. Barnett, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; Christopher J. York, LEAD ATTORNEY, McGahren Gaskill & York, LLC, Norcross, GA; Cristin Fitzgerald Bordelon, LEAD ATTORNEY, Leake & Andersson, LLP (New Orleans), New Orleans, LA; Cynthia A. Hawkins, LEAD ATTORNEY, Cynthia Hawkins, PA, Orlando, FL; Damien Arthur Orato, LEAD ATTORNEY, Rumberger, Kirk & Caldwell, Orlando, FL; Daniel John Kissane, LEAD ATTORNEY, Cole, Scott & Kissane, Jacksonville, FL; David M. Bernick, LEAD ATTORNEY, Kirkland & Ellis, Chicago, IL; Frank David Hosley, LEAD ATTORNEY, Bowman and Brooke LLP, Lake Mary, FL; Frederick Rom, LEAD ATTORNEY, Womble Carlyle Sandridge & Rice, Reserch Traingle Park, NC; Garth Thomas Yearick, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL; Giovanna Tarantino Bingham, LEAD ATTORNEY, Hartline Dacus et al, Dallas, TX; Hope S. Freiwald, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; James B. Hood, LEAD ATTORNEY, Hood Law Firm, LLC, Charleston, SC; Jerry L. Saporito, LEAD ATTORNEY, Leake & Anderson, LLP, New Orleans, LA; John O'Connor Radeck, Jr., LEAD ATTORNEY, Hood Law Firm, Charleston, [*105] SC; Keith A. Teel, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Kyle Harold Dreyer, LEAD ATTORNEY, Hartline Dacus Barger Dreyer LLP, Dallas, TX; Lanny A. Breuer,
LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Larry Don Grayson, LEAD ATTORNEY, Hartline Dacus et al., Dallas, TX; Lena Marguerite Mirilovic, LEAD ATTORNEY, Rumberger, Kirk & Caldwell, P.A., Orlando, FL; Loren William Fender, LEAD ATTORNEY, Bowman and Brooke LLP, Miami, FL; Matthew J. Stanczyk, LEAD ATTORNEY, Plunkett Cooney, Detroit, MI; Michael Daniel Begey, LEAD ATTORNEY, Rumberger Kirk & Caldwell, Orlando, FL; Michael X. Imbroscio, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, LLP, Washington, DC; Michelle Hart Yeary, LEAD ATTORNEY, Dechert LLP, Princeton, NJ; Nathan E. Hoffman, LEAD ATTORNEY, Dechert LLP, Chicago, IL; Nathan M. McClellan, LEAD ATTORNEY, Dechert LLP, Los Angeles, CA; Nhan T. Lee, LEAD ATTORNEY, Seipp, Flick & Hosley LLP, Lake Mary, FL; Paul W. Schmidt, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling, Washington, DC; Quinn Colleen Shean, LEAD ATTORNEY, Dechert LLP, Chicago, IL; Robert C. Heim, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; Robert J. [*106] Hoffman, LEAD ATTORNEY, Bryan Cave LLP KC, Kansas City, MO; Shankar Duraiswamy, LEAD ATTORNEY, PRO HAC VICE, Covington & Burling LLP, Washington, DC; Stephen J. Krigbaum, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL; Sterling Gardner Culpepper, III, LEAD ATTORNEY, Rogers & Hardin, LLP, Atlanta, GA; T. Christopher Trent, LEAD ATTORNEY, Johnson, Trent, West & Taylor, LLP, Houston, TX; Thomas Meeks, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., Miami, FL; William L. Kirk, Jr., LEAD ATTORNEY, Rumberger Kirk & Caldwell, Orlando, FL; William W. Oxley, LEAD ATTORNEY, PRO HAC VICE, Orrick Herrington & Sutcliff, Los Angeles, CA; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Susan J. Pope, Frost Brown Todd LLC Lexington, Lexington, KY. For Highland Industries, Inc., Consol Defendant (1:15-md02599-FAM): Benjamin W. Allen, LEAD ATTORNEY, Johnson, Trent, West & Taylor LLP, Houston, TX; Benjamin R. Barnett, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; David M. Bernick, LEAD ATTORNEY, Kirkland & Ellis, Chicago, IL; Frederick Rom, LEAD ATTORNEY, Womble Carlyle Sandridge & Rice, Reserch Traingle Park, NC; Giovanna Tarantino Bingham, LEAD ATTORNEY, [*107] Hartline Dacus et al, Dallas, TX; Hope S. Freiwald, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; James B. Hood, LEAD ATTORNEY, Hood Law Firm, LLC, Charleston, SC; Jerry L. Saporito, LEAD ATTORNEY, Leake & Anderson, LLP, New Orleans, LA; John O'Connor Radeck, Jr., LEAD ATTORNEY, Hood Law Firm, Charleston, SC; Kyle Harold Dreyer, LEAD ATTORNEY, Hartline Dacus Barger Dreyer LLP, Dallas, TX; Larry Don
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Page 29 of 39 2016 U.S. Dist. LEXIS 46206, *107 Grayson, LEAD ATTORNEY, Hartline Dacus et al., Dallas, TX; Lena Marguerite Mirilovic, LEAD ATTORNEY, Rumberger, Kirk & Caldwell, P.A., Orlando, FL; Michelle Hart Yeary, LEAD ATTORNEY, Dechert LLP, Princeton, NJ; Nathan M. McClellan, LEAD ATTORNEY, Dechert LLP, Los Angeles, CA; Robert C. Heim, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; Robert J. Hoffman, LEAD ATTORNEY, Bryan Cave LLP - KC, Kansas City, MO; Stephen J. Krigbaum, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL; Sterling Gardner Culpepper, III, LEAD ATTORNEY, Rogers & Hardin, LLP, Atlanta, GA; T. Christopher Trent, LEAD ATTORNEY, Johnson, Trent, West & Taylor, LLP, Houston, TX; Thomas Meeks, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., Miami, FL; William W. Oxley, LEAD ATTORNEY, PRO HAC VICE, Orrick [*108] Herrington & Sutcliff, Los Angeles, CA; Susan J. Pope, Frost Brown Todd LLC - Lexington, Lexington, KY. For Honda Motor Company, LTD, Consol Defendant (1:15md-02599-FAM): Joel H. Smith, LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC; Martin Leonard Steinberg, LEAD ATTORNEY, Hogan Lovells US, LLP, Miami, FL; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For American Honda Co., Inc., Consol Defendant (1:15-md02599-FAM): Armando Pedro Rubio, LEAD ATTORNEY, Fields Howell, Miami, FL; Catherine Valerio Barrad, LEAD ATTORNEY, Sidley Austin LLP, Los Angeles, CA; Courtney Crook Shytle, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Daniel John Kissane, LEAD ATTORNEY, Cole, Scott & Kissane, Jacksonville, FL; Ellyce R. Cooper, LEAD ATTORNEY, Sidley Austin LLP, Los Angeles, CA; Eric S. Mattson, LEAD ATTORNEY, Sidley Austin LLP, Chicago, IL; Mark Douglas Campbell, LEAD ATTORNEY, Sidley Austin LLP, Los Angeles, CA; Michael C. Andolina, LEAD ATTORNEY, Sidley Austin LLP, Chicago, IL; Michael L. Mallow, LEAD ATTORNEY, Sidley Austin LLP, Los Angeles, CA; Sean [*109] A. Commons, LEAD ATTORNEY, Sidley Austin LLP, Los Angeles, CA; Thomas E. Scott, Jr., LEAD ATTORNEY, Cole Scott & Kissane, Miami, FL. For BMW of North America, LLC, Consol Defendant (1:15md-02599-FAM): Christopher J. Dalton, LEAD ATTORNEY, PRO HAC VICE, Buchanan, Ingersoll & Rooney, PC, New York, NY; Eric Y. Kizirian, LEAD ATTORNEY, Lewis Brisbois Bisgaard and Smith, LLP, Losa Angeles, CA; Jeffrey Arthur Mowers, LEAD ATTORNEY, Lewis Brisbois Bisgarrd & Smith, LLP, Ft. Lauderdale, FL;
Michael Keith Grimaldi, LEAD ATTORNEY, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA; Philip Semprevivo, Jr., LEAD ATTORNEY, Biedermann HoenigSemprevivo, New York, NY; Rosemary Joan Bruno, LEAD ATTORNEY, PRO HAC VICE, Buchanan, Ingersoll & Rooney, PC, Newark, NJ; Thomas P. Branigan, LEAD ATTORNEY, PRO HAC VICE, Bowman and Brooke, LLP, Bloomfield Hills, MI; Jesse H. Diner, Buchanan Ingersoll & Rooney PC, Fort Lauderdale, FL; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Stephen Carey Villeneuve, Buchanan Ingersoll & Rooney, Ft. Lauderdale, FL. For BMW Manufacturing Co., [*110] LLC, Consol Defendant (1:15-md-02599-FAM): Christopher J. Dalton, LEAD ATTORNEY, PRO HAC VICE, Buchanan, Ingersoll & Rooney, PC, New York, NY; Eric Y. Kizirian, LEAD ATTORNEY, Lewis Brisbois Bisgaard and Smith, LLP, Los Angeles, CA; Jeffrey Arthur Mowers, LEAD ATTORNEY, Lewis Brisbois Bisgarrd & Smith, LLP, Ft. Lauderdale, FL; Michael Keith Grimaldi, LEAD ATTORNEY, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA; Rosemary Joan Bruno, LEAD ATTORNEY, PRO HAC VICE, Buchanan, Ingersoll & Rooney, PC, Newark, NJ; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Stephen Carey Villeneuve, Buchanan Ingersoll & Rooney, Ft. Lauderdale, FL. For Ford Motor Company, Consol Defendant (1:15-md02599-FAM): Deborah J. Bullion, LEAD ATTORNEY, Gascoyne & Bullion, Sugarland, TX; Edward Colin Thompson, LEAD ATTORNEY, DLA Piper LLP (US), Tampa, FL; Fredrick Howard Lebron McClure, LEAD ATTORNEY, DLA Piper LLP (US), Tampa, FL; J Trumon Phillips, LEAD ATTORNEY, DLA Piper, Tampa, FL; Jeffrey Yeatman, LEAD ATTORNEY, DlA Piper LLP (US), Baltimore, MD; Jill Crawley Griset, LEAD ATTORNEY, PRO HAC VICE, McGuire Woods LLP, Charlotte, [*111] NC; Joel A. Dewey, LEAD ATTORNEY, DLA Piper, LLP (US), Baltimore, MD; Perry W. Miles, IV, LEAD ATTORNEY, PRO HAC VICE, McGuire Woods, LLP, Richmond, VA; R. Kent Warren, LEAD ATTORNEY, PRO HAC VICE, McGuire Woods, LLP, Charlotte, NC; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Toyota Motor Corporation, Consol Defendant (1:15-md02599-FAM): Robert Mark Brochin, LEAD ATTORNEY,
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Page 30 of 39 2016 U.S. Dist. LEXIS 46206, *111 Morgan, Lewis & Bockius LLP, Miami, FL; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Toyota Motor Sales, U.S.A., Inc., Consol Defendant (1:15-md-02599-FAM): Donald Arthur Blackwell, LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; John Carl Seipp, Jr., LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; Robert Mark Brochin, LEAD ATTORNEY, Morgan, Lewis & Bockius LLP, Miami, FL; Terri Steinhaus Reiskin, LEAD ATTORNEY, Dykema Gossett PLLC, Washington, DC; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, [*112] Miami, FL. For Toyota Motor Engineering & Manufacturing North America, Inc., Consol Defendant (1:15-md-02599-FAM): Derek S. Whitefield, LEAD ATTORNEY, Dykema Gossett LLP, Los Angeles, CA; Dommond E. Lonnie, LEAD ATTORNEY, Dykema Gossett LLP, Los Angeles, CA; Donald Arthur Blackwell, LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; John Carl Seipp, Jr., LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; Robert Mark Brochin, LEAD ATTORNEY, Morgan, Lewis & Bockius LLP, Miami, FL; Tamara A. Bush, LEAD ATTORNEY, Dykema Gossett LLP, Los Angeles, CA; Terri Steinhaus Reiskin, LEAD ATTORNEY, Dykema Gossett PLLC, Washington, DC; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Chrysler Group LLC, Consol Defendant (1:15-md-02599FAM): Armando Gustavo Hernandez, LEAD ATTORNEY, Rumberger, Kirk and Caldwell, PA, Miami, FL; John W. Rogers, LEAD ATTORNEY, Thomson Coburn, LLP, St. Louis, MO; Scott M. Sarason, LEAD ATTORNEY, Rumberger Kirk & Caldwell, Miami, FL. For American Honda Motor Co., Inc.,, Consol Defendant (1:15-md-02599-FAM): Armando Pedro Rubio, LEAD ATTORNEY, Fields [*113] Howell, Miami, FL; Courtney Crook Shytle, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Daniel John Kissane, LEAD ATTORNEY, Cole, Scott & Kissane, Jacksonville, FL; Frank David Hosley, LEAD ATTORNEY, Bowman and Brooke LLP, Lake Mary, FL; Joel H. Smith, LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC; Lori P. Lustrin, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, LLP, Miami, FL; Martin Leonard Steinberg, LEAD ATTORNEY, Hogan Lovells US, LLP, Miami, FL; Mary T. Novacheck, LEAD ATTORNEY, PRO HAC VICE, Bowman & Brooke,
Minneapolis, MN; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Michael Brian Shortnacy, LEAD ATTORNEY, Sidley Austin, LLP, Los Angeles, CA; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Nhan T. Lee, LEAD ATTORNEY, Seipp, Flick & Hosley LLP, Lake Mary, FL; P. Michael Freed, LEAD ATTORNEY, Lewis Brisbois Bisgaard & Smith, LLP, Atlanta, GA; Paul G. Cereghini, LEAD ATTORNEY, PRO HAC VICE, Bowman and Brooke, LLP, Phoenix, AZ; Rafael Rodrigues Ribeiro, LEAD ATTORNEY, Hogan Lovells, Miami, FL; Thomas Michael Klein, LEAD ATTORNEY, Bowman & Brooke, LLP, Phoenix, AZ; Kimberly A. Cook, Sedgwick LLP, Miami, [*114] FL. For Nissan Motor Co., Ltd, Consol Defendant (1:15-md02599-FAM): Kimberly A. Cook, Sedgwick LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Nissan North America, Inc., Consol Defendant (1:15-md02599-FAM): Christopher J. M. Collings, LEAD ATTORNEY, Sedgwick LLP, Miami, FL; E. Paul Cauley, Jr., LEAD ATTORNEY, PRO HAC VICE, Sedgwick, LLP, Dallas, TX; Jia-Ming Shang, LEAD ATTORNEY, Sedgwick LLP, San Francisco, CA; Kimberly A. Cook, LEAD ATTORNEY, Sedgwick LLP, Miami, FL; Natassia Kwan, LEAD ATTORNEY, Sedgwick LLP, San Francisco, CA; Paul Riehle, LEAD ATTORNEY, Sedgwick, LLp, San Francisco, CA; S. Vance Wittie, LEAD ATTORNEY, Sedgwick LLP, Dallas, TX; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Ramon A. Abadin, Abadin Jaramillo Cook et al, Miami, FL. For Mazda Motor of America, Inc., Consol Defendant (1:15md-02599-FAM): Cari K. Dawson, LEAD ATTORNEY, PRO HAC VICE, Alston & Bird, Atlanta, GA; Daniel C. Norris, LEAD ATTORNEY, Alston & Bird, LLP, Atlanta, GA; Jason Rottner, LEAD ATTORNEY, PRO HAC VICE, Alston & Bird, LLP, Atlanta, GA; Michael Ross Tein, LEAD [*115] ATTORNEY, Lewis Tein, Coconut Grove, FL; Scott A. Elder, LEAD ATTORNEY, Alston & Bird, LLP, Atlanta, GA; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Subaru of America, Inc., Consol Defendant (1:15-md02599-FAM): Jeffrey L. Chase, LEAD ATTORNEY, Herzfeld & Rubin, P.C., New York, NY; Michael B. Gallub, LEAD ATTORNEY, Herzfeld & Rubin, P.C., New York, NY; Robert Donald Wike Landon, III., LEAD ATTORNEY,
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Page 31 of 39 2016 U.S. Dist. LEXIS 46206, *115 Kenny Nachwalter, P.A., Miami, FL; Ryan C. Zagare, LEAD ATTORNEY, Kenny Nachwalter, P.A., Miami, FL; Stanley Howard Wakshlag, LEAD ATTORNEY, Kenny Nachwalter, P.A., Miami, FL; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Honda R&D Co Ltd, Consol Defendant (1:15-md-02599FAM): Joel H. Smith, LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC; Martin Leonard Steinberg, LEAD ATTORNEY, Hogan Lovells US, LLP, Miami, FL; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin [*116] Sumberg Baena Price & Axelrod, Miami, FL. For Honda of America Mfg., Inc., Consol Defendant (1:15md-02599-FAM): Courtney Crook Shytle, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Frank David Hosley, LEAD ATTORNEY, Bowman and Brooke LLP, Lake Mary, FL; Joel H. Smith, LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC; Mary T. Novacheck, LEAD ATTORNEY, PRO HAC VICE, Bowman & Brooke, Minneapolis, MN; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC; Michael Brian Shortnacy, LEAD ATTORNEY, Sidley Austin, LLP, Los Angeles, CA; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Nhan T. Lee, LEAD ATTORNEY, Seipp, Flick & Hosley LLP, Lake Mary, FL; Paul G. Cereghini, LEAD ATTORNEY, PRO HAC VICE, Bowman and Brooke, LLP, Phoenix, AZ; Thomas Michael Klein, LEAD ATTORNEY, Bowman & Brooke, LLP, Phoenix, AZ; Daniel John Kissane, Cole, Scott & Kissane, Jacksonville, FL; Martin Leonard Steinberg, Hogan Lovells US, LLP, Miami, FL. For Fuji Heavy Industries, Ltd., Consol Defendant (1:15-md02599-FAM): Stanley Howard Wakshlag, LEAD ATTORNEY, Kenny Nachwalter, P.A., Miami, FL; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Mitchell Edward Widom, Bilzin [*117] Sumberg Baena Price & Axelrod, Miami, FL. For Mazda Motor Corporation, Consol Defendant (1:15-md02599-FAM): Jason Rottner, LEAD ATTORNEY, PRO HAC VICE, Alston & Bird, LLP, Atlanta, GA; Kimberly A. Cook, Sedgwick LLP, Miami, FL; Michael Ross Tein, Lewis Tein, Coconut Grove, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For International Mall Motor Company, Consol Defendant (1:15-md-02599-FAM): Armando Pedro Rubio, LEAD
ATTORNEY, Fields Howell, Miami, FL; Daniel John Kissane, LEAD ATTORNEY, Cole, Scott & Kissane, Jacksonville, FL. For Morse Operations, Inc, a Florida Corporation, doing business as Ed Morse Automotive Group, Consol Defendant (1:15-md-02599-FAM): Jeffrey C. Dwyer, LEAD ATTORNEY, Dwyer Law Group, Fort Lauderdale, FL. For Honda R & D Co., Ltd., Consol Defendant (1:15-md02599-FAM): Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For Craig Dunn, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, [*118] III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Pam Koehler, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, [*119] LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin
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Page 32 of 39 2016 U.S. Dist. LEXIS 46206, *119 A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Zulemarie Rivera, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, [*120] LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Tru Value Auto Malls LLC, Plaintiff (1:14-cv-24009FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, [*121] LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For David M. Jorgensen, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD
ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, [*122] NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Anna Marie Brechtell Flattmann, Plaintiff (1:14-cv24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Robert [*123] Redfearn, Jr., Plaintiff (1:14-cv-24009FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP,
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Page 33 of 39 2016 U.S. Dist. LEXIS 46206, *123 New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Tasha R. Siverio, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, [*124] PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Kenneth G. Desie, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, [*125] III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD
ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Gregory McCarthy, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. [*126] Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Nicole Peaslee, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis [*127] Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Karen Switkowski, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP,
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Page 34 of 39 2016 U.S. Dist. LEXIS 46206, *127 New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, [*128] LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Anthony D. Dark, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, [*129] NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Lemon Auto Sales, Inc., Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC
VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Nathan Bordewich, [*130] Plaintiff (1:14-cv-24009FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Kathleen Wilkinson, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC [*131] VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO
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Page 35 of 39 2016 U.S. Dist. LEXIS 46206, *131 HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Haydee Masini, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD [*132] ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Nancy Barnett, on behalf of themselves and all those similarly situated, Plaintiff (1:14-cv-24009-FAM): David Fernandes, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, PC, Encino, CA; Eric D. Gottlieb, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Gregory S. Asciolla, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; John Gravante, III, LEAD ATTORNEY, Podhurst Orseck, P.A., Miami, FL; Katherine R. Ryan, LEAD ATTORNEY, PRO HAC VICE, Labaton [*133] Sucharow LLP, New York, NY; Lawrence A. Sucharow, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Mark Pifko, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Martis Alex, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow, LLP, New York, NY; Matthew Weinshall, LEAD ATTORNEY, Podhurst Orseck, Miami, FL; Michael W. Stocker, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Robin A. van der Meulen, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Roland Tellis, LEAD ATTORNEY, PRO HAC VICE, Baron & Budd, P.C., Encino, CA; Peter Prieto, Podhurst Orseck, P.A., Miami, FL. For Plaintiffs Lead Counsel, Plaintiff (1:14-cv-24009-FAM): Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL; John Gravante, III, Podhurst Orseck, P.A., Miami, FL.
For Dorry Taylor, Consol Plaintiff (1:14-cv-24009-FAM): James Matthew Stephens, McCallum Methvin and Terrell PC, Birmingham, AL. For TAKATA CORPORATION, Defendant (1:14-cv-24009FAM): Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL. For TK HOLDINGS, INC., Defendant (1:14-cv-24009FAM): Benjamin R. Barnett, LEAD ATTORNEY, PRO HAC VICE, Dechert LLP, Philadelphia, PA; David [*134] M. Bernick, LEAD ATTORNEY, PRO HAC VICE, Kirkland & Ellis, Chicago, IL; Hope S. Freiwald, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL. For Highland Industries, Inc., Defendant (1:14-cv-24009FAM): Benjamin R. Barnett, LEAD ATTORNEY, PRO HAC VICE, Dechert LLP, Philadelphia, PA; David M. Bernick, LEAD ATTORNEY, PRO HAC VICE, Kirkland & Ellis, Chicago, IL; Hope S. Freiwald, LEAD ATTORNEY, Dechert LLP, Philadelphia, PA; Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL. For Honda Motor Company, LTD, Defendant (1:14-cv24009-FAM): Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For American Honda Co., Inc., Defendant (1:14-cv-24009FAM): Daniel John Kissane, LEAD ATTORNEY, Cole, Scott & Kissane, Jacksonville, FL; Eric S. Mattson, LEAD ATTORNEY, PRO HAC VICE, Signey Austin, LLP, Chicago, IL; Mark Douglas Campbell, LEAD ATTORNEY, PRO HAC VICE, Loeb & Loeb LLP, Los Angeles, CA; Michael C. Andolina, LEAD ATTORNEY, Sidley Austin LLP, Chicago, IL; Michael L. Mallow, LEAD ATTORNEY, Sidley Austin, LLP, Los Angeles, CA; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin [*135] Sumberg Baena Price & Axelrod, Miami, FL; Armando Pedro Rubio, Fields Howell, Miami, FL; Thomas E. Scott, Jr., Cole Scott & Kissane, Miami, FL. For BMW of North America, LLC, Defendant (1:14-cv24009-FAM): Eric Y. Kizirian, LEAD ATTORNEY, PRO HAC VICE, Lewis Brisbois Bisgaard and Smith, LLP, Los Angeles, CA; Jeffrey Arthur Mowers, LEAD ATTORNEY, Lewis Brisbois Bisgarrd & Smith, LLP, Ft. Lauderdale, FL; Jesse H. Diner, Buchanan Ingersoll & Rooney PC, Fort Lauderdale, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For BMW Manufacturing Co., LLC, Defendant (1:14-cv24009-FAM): Eric Y. Kizirian, LEAD ATTORNEY, PRO
Barbara Follensbee-Moore
Page 36 of 39 2016 U.S. Dist. LEXIS 46206, *135 HAC VICE, Lewis Brisbois Bisgaard and Smith, LLP, Los Angeles, CA; Jeffrey Arthur Mowers, LEAD ATTORNEY, Lewis Brisbois Bisgarrd & Smith, LLP, Ft. Lauderdale, FL; Jesse H. Diner, Buchanan Ingersoll & Rooney PC, Fort Lauderdale, FL. For FORD MOTOR COMPANY, Defendant (1:14-cv-24009FAM): Edward Colin Thompson, LEAD ATTORNEY, DLA Piper LLP (US), Tampa, FL; Fredrick Howard Lebron McClure, LEAD ATTORNEY, DLA Piper LLP (US), Tampa, FL; J Trumon Phillips, LEAD ATTORNEY, DLA Piper, Tampa, FL; Perry W. Miles, IV, LEAD ATTORNEY, PRO HAC VICE, McGuire Woods, LLP, [*136] Richmond, VA; R. Kent Warren, LEAD ATTORNEY, PRO HAC VICE, McGuire Woods, LLP, Charlotte, NC; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL. For TOYOTA MOTOR SALES, U.S.A., INC., Defendant (1:14-cv-24009-FAM): John Carl Seipp, Jr., LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; Terri Steinhaus Reiskin, LEAD ATTORNEY, PRO HAC VICE, Dykema Gossett PLLC, Washington, DC; Donald Arthur Blackwell, BOWMAN AND BROOKE LLP, Miami, FL. For TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC., Defendant (1:14-cv-24009-FAM): John Carl Seipp, Jr., LEAD ATTORNEY, BOWMAN AND BROOKE LLP, Miami, FL; Terri Steinhaus Reiskin, LEAD ATTORNEY, PRO HAC VICE, Dykema Gossett PLLC, Washington, DC; Donald Arthur Blackwell, BOWMAN AND BROOKE LLP, Miami, FL. For American Honda Motor Co., Inc., Defendant (1:14-cv24009-FAM): Martin Leonard Steinberg, LEAD ATTORNEY, Hogan Lovells US, LLP, Miami, FL; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Rafael Rodrigues Ribeiro, LEAD ATTORNEY, Hogan Lovells, Miami, FL. For Honda of America Mfg., Inc., Defendant (1:14-cv-24009FAM): Martin Leonard Steinberg, LEAD ATTORNEY, Hogan Lovells US, LLP, Miami, [*137] FL; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL; Rafael Rodrigues Ribeiro, LEAD ATTORNEY, Hogan Lovells, Miami, FL. For Mazda Motor Corporation, Defendant (1:14-cv-24009FAM): Jason Rottner, LEAD ATTORNEY, PRO HAC VICE, Alston & Bird, LLP, Atlanta, GA; Michael Ross Tein, Lewis Tein, Coconut Grove, FL; Mitchell Edward Widom, Bilzin Sumberg Baena Price & Axelrod, Miami, FL.
For Angelina C Sujata, Plaintiff (1:15cv20664): Jodi Westbrook Flowers, LEAD ATTORNEY, Motley Rice, LLC, Mount Pleasant, SC USA; Joseph F. Rice, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC USA; Kathryn Ashby Waites, LEAD ATTORNEY, Motley Rich (Ch), Charleston, SC USA; Kevin R. Dean, LEAD ATTORNEY, Motley Rice LLC, Mount Pleasant, SC USA; William Taylor Carpentier Lacy, LEAD ATTORNEY, Motley Rice, Mt. Pleasant, SC USA; Curtis Bradley Miner, Colson Hicks Eidson, Ph, Coral Gables, FL USA. For Plaintiffs Lead Counsel, Plaintiff (1:15cv20664): Carlos A Romero, Jr., Post, Romero, Coral Gables, FL USA; Curtis Bradley Miner, Colson Hicks Eidson, Ph, Coral Gables, FL USA. For Takata Corporation, Defendant (1:15cv20664): Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West [*138] Palm Beach, FL USA. For Tk Holdings Inc., Defendant (1:15cv20664): James B. Hood, LEAD ATTORNEY, Hood Law Firm, LLC, Charleston, SC USA; John O'Connor Radeck, Jr., LEAD ATTORNEY, Hood Law Firm, Po Box 1508, Charleston, SC USA; Stephen J. Krigbaum, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL USA; William L. Kirk, Jr., LEAD ATTORNEY, Rumberger Kirk & Caldwell, Orlando, FL USA; Michael Daniel Begey, Rumberger Kirk & Caldwell, Orlando, FL USA. For Highland Industries, Inc., Defendant (1:15cv20664): James B. Hood, LEAD ATTORNEY, Hood Law Firm, LLC, Charleston, SC USA; John O'Connor Radeck, Jr., LEAD ATTORNEY, Hood Law Firm, Po Box 1508, Charleston, SC USA; Stephen J. Krigbaum, LEAD ATTORNEY, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL USA. For Honda Motor Co. Ltd., Defendant (1:15cv20664): Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL USA. For Honda R&D Co Ltd, Defendant (1:15cv20664): Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL USA. For American Honda Motor Co. Inc., Defendant (1:15cv20664): Courtney Crook Shytle, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC USA; Joel H. Smith, [*139] LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC USA; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC USA; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL USA.
Barbara Follensbee-Moore
Page 37 of 39 2016 U.S. Dist. LEXIS 46206, *139 For Honda of America Mfg., Inc., Defendant (1:15cv20664): Courtney Crook Shytle, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC USA; Joel H. Smith, LEAD ATTORNEY, Bowman & Brooke, LLP, Columbia, SC USA; Matthew Brooks Miller, LEAD ATTORNEY, Bowman and Brooke, Columbia, SC USA; Mitchell Edward Widom, LEAD ATTORNEY, Bilzin Sumberg Baena Price & Axelrod, Miami, FL USA.
information; 2) parts, suppliers, or costs; 3) design, development, and engineering; 4) marketing and business strategy; 5) other makes and models; 6) non-U.S. products; and 7) service and quality issues. As to the second issue, the Special Master [*141] recommended that a producing party be allowed to withhold irrelevant parent documents.
For Inflation Systems Inc., Defendant (1:15cv20664): Stephen J. Krigbaum, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL USA.
The Parties disagree about which standard of review should apply to the Court's review of the Special Master's Report.
Judges: FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE. Opinion by: FEDERICO A. MORENO
Opinion ORDER ADOPTING RECOMMENDATION
IN
PART
REPORT
AND
THIS CAUSE comes before the Court pursuant to the Special Master's Report and Recommendation Regarding Disputed Provision of Proposed Stipulated Order Regarding the Protocol Governing Production of Document and Electronically Stored Information ("Report") [D.E. 873]. The Court has reviewed the Report, Plaintiffs' Objections, Defendants' Response, and Plaintiffs' [*140] Reply. The Court held oral argument on this matter on February 16, 2016 and is duly advised. I. BACKGROUND The parties disagree on two issues concerning the protocol governing production of documents and electronically stored information: 1) the procedure for redacting irrelevant information from responsive documents, and 2) whether irrelevant parent documents and other documents that are not attachments, from responsive document families can be withheld entirely.1 The Special Master approved of Defendants' proposal for both matters. Specifically, as to the first issue, the Special Master recommended that a producing party be allowed to redact information pertaining to seven categories of information deemed irrelevant: 1) pricing, profits, non-public financial
II. LEGAL STANDARD
Rule 53 of the Federal Rules of Civil Procedure governs matters related to Special Masters. The Court must decide de novo all objections to findings of fact, unless otherwise stipulated by the parties and approved by the Court. Fed. R. Civ. P. 53(f)(3). Similarly, the Court must decide de novo all objections to conclusions of law. Fed. R. Civ. P. 53(f)(4). The Court may set aside a master's ruling on procedural matters only for an abuse of discretion, unless otherwise stated in the appointment order. Fed. R. Civ. P. 53(f)(5). The Appointment Order here expressly states the Court "will apply the standard of review indicated in Rule 53 in deciding whether to adopt the Special Master's Report and Recommendation." (D.E. 453, at 1). Plaintiffs contend the Court should review the Report de novo because the report contains legal conclusions and findings of fact. Plaintiffs argue the Special Master's conclusion that the Federal Rules permit redaction of irrelevant information from responsive documents is a legal conclusion and the conclusion that Defendants' proposed redaction categories appear [*142] to be irrelevant is a mixed question of law and fact. (D.E. 878, at 10). Defendants argue that this Report concerns the process for the production of documents, redaction of irrelevant information from responsive documents, and the identification of redacted information to the receiving party, and because these are procedural matters, the Court should review the Report for abuse of discretion. (D.E. 893, at 7-8). Plaintiffs respond that even if the Court reviews the Report for abuse of discretion, legal determinations are reviewed de novo. (D.E. 896, at 2-3). Because Rule 26(b)(1) of the Federal Rules of Civil Procedure, governing the scope of discovery, has been amended since the Special Master issued the Report, the Court reviews the Report de novo. III. ANALYSIS A. Irrelevance Redactions
1 Regarding
the second issue, the parties have agreed to allow a producing party to withhold irrelevant attachments from within responsive document families, pursuant to certain conditions.
Plaintiffs object to the redaction of information pertaining to the seven proposed categories and argue that the Report: is
Barbara Follensbee-Moore
Page 38 of 39 2016 U.S. Dist. LEXIS 46206, *142 based on an inaccurate premise that Plaintiffs consented to irrelevance redactions in responsive documents; is inconsistent with the Federal Rules of Civil Procedure in allowing irrelevance redactions that will potentially allow redaction of highly relevant information from responsive documents; will impair Plaintiffs' discovery [*143] efforts; and will lead to unnecessary litigation over the redactions. Defendants raise the concern that without irrelevance redactions, they would have to produce copious amounts of information, potentially disclosing competitively sensitive information with no bearing on this case. Despite the protective orders in this case, Defendants worry that this competitively sensitive information will be disclosed, perhaps to their competitors, perhaps to the media. The recently amended Rule 26(b)(1) of the Federal Rules of Civil Procedure crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality." Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (2015). Specifically, Rule 26(b)(1) states:
in this case — another of the seven categories — could also be highly relevant. Because the seven categories proposed by the Special Master could contain highly relevant [*145] information, the Court modifies the Report's seven categories as follows, the producing party may redact information pertaining to the seven categories proposed by the Special Master — 1) pricing, profits, non-public financial information; 2) parts, suppliers, or costs; 3) design, development, and engineering; 4) marketing and business strategy; 5) other makes and models; 6) non-U.S. products; and 7) service and quality issues — so long as that information does not concern airbags. This decision balances the producing parties' desire to protect their competitively sensitive information, with the importance of the issues at stake in this action and the importance of the discovery in resolving the issues at hand. As the Special Master recommended, the producing party shall stamp the redacted document in substance "irrelevant material redacted" and indicate the category/type of irrelevant information redacted.
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
B. Withholding Irrelevant Documents From Responsive Families
Fed. R. Civ. P. 26(b)(1). As the [*144] Chief Justice's comments highlight, a party is not entitled to receive every piece of relevant information. It is only logical, then, that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.
Thus, the Court adopts the Report as it pertains to allowing the producing party to withhold irrelevant documents2 from responsive families. The parties shall follow the Batesnumbering procedure set forth in the Report and shall produce a list or slip sheet for the removed documents, as set forth in the Report. Further, the producing party shall provide contextual information for any withheld parent document, as provided in the Report.
Here, the Court finds Defendants have provided a persuasive reason for allowing them to redact certain irrelevant information: that disclosing such information could provide its competitors with competitively sensitive information to the ultimate detriment of each Defendant. However, the Court finds that the seven categories proposed by the Special Master could contain highly relevant information. For instance, one of these categories is-non-U.S. products." Yet information pertaining to the decision to use, or not use, ammonium-nitrate airbags in those vehicles could be highly relevant to the case. Similarly, the same decisions made in the context of "other makes and models" not at issue
As noted by the Special Master, the ruling allowing certain irrelevance redactions largely moots the second issue: whether the producing party can withhold irrelevant parent documents from responsive families. Indeed, it [*146] would make little difference if the producing party provides a fully redacted document or does not provide the document at all.
IV. CONCLUSION Accordingly, the Court ADOPTS IN PART the Report [D.E. 873], as to the withholding of irrelevant documents from responsive families, as discussed above. The Court modifies the Report's recommendation as to irrelevance redactions, such that a producing party may redact only information
2 An
irrelevant document is a document falling within one of the seven categories listed above, so long as it contains no information related to airbags.
Barbara Follensbee-Moore
Page 39 of 39 2016 U.S. Dist. LEXIS 46206, *146 pertaining to the above-mentioned seven categories, so long as that information does not concern airbags.
/s/ Federico A. Moreno FEDERICO A. MORENO
DONE AND ORDERED in Chambers, Miami, Florida, this 29th day of February, 2016. [*147]
UNITED STATES DISTRICT JUDGE
End of Document
Barbara Follensbee-Moore
12
Williams v. American International Group, Inc., Slip Copy (2016)
2016 WL 2747020 Only the Westlaw citation is currently available. United States District Court, M.D. Alabama, Northern Division. Fredrick R. Williams, Plaintiff, v. American International Group, Inc., et al., Defendants. Case No. 15–cv–554–JDW–GMB | Signed May 2, 2016 Attorneys and Law Firms Frank Howard Hawthorne, Jr., Randle Al Myers, Hawthorne & Myers LLC, Montgomery, AL, for Plaintiff. John William Dodson, Michael Hagel Gregory, Dodson Gregory, LLP, Aziz David Fawal, Katherine T. Powell, Carol Thetford Montgomery, Butler Snow LLP, Birmingham, AL, for Defendants.
ORDER Gray M. Borden, UNITED STATES MAGISTRATE JUDGE *1 Pending before the court is Plaintiff's Motion to Increase the Number of Depositions Allowed to the Plaintiff Under the Discovery Plan (Doc. 19). Defendants have filed a joint response in opposition to that motion (Doc. 24). On the basis of the filings, Plaintiff's Motion is GRANTED in part and DENIED in part, as set out below. Absent a stipulation, Federal Rule of Civil Procedure 30 requires leave of court for a party to take more than ten depositions in any case. Fed.R.Civ.P. 30(a)(2)(A) (i). Courts are cautioned, however, to grant leave only “to the extent consistent with Rule 26(b)(1) and (b)(2).” Fed.R.Civ.P. 30(a)(2). Of primary significance here, this means that the court must be guided by Rule 26(b)(1)'s limitation on the scope of discoverable materials to those which are
Reprinted with permission of Thomson Reuters.
relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(1) (2015). Applying previous versions of Rule 26(b)(1), courts have “generally held that a party seeking to exceed the presumptive number of depositions must make a ‘particularized showing of why the discovery is necessary.’ ” Bituminous Fire & Marine Ins. Corp. v. Dawson Land Dev. Co., 2003 WL 22012201, at *1 (M.D.Fla. 2003) (quoting Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 586 (D.Minn. 1999)). Here, there has been no particularized showing. In fact, Plaintiff's motion does not even identify the individuals he seeks to depose except for noting that two are expert witnesses for the defense. See Doc. 19 at 2; Doc. 19 at 3 (stating only that it “appears that at least fifteen (15) depositions will be required”). Plaintiff also does not address Rule 26(b)(1)'s proportionality analysis. Nevertheless, the court holds that on the balance the record before it justifies one additional deposition beyond the ten provided in Rule 30(a)(2) and the Joint Report of Parties' Planning Meeting, Doc. 11 at 3, which will allow Plaintiff to depose all of Defendants' expert witnesses. See Doc. 19 at 2. 1 This ruling is based in part on the court's independent assessment of the Rule 26(b)(1) factors and in part on Federal Rule of Civil Procedure 26(b)(4). Plaintiff's core theory in this case is that Defendants “willfully and wantonly delayed” their approval of his surgery in an attempt to coerce him to settle his claims under a workers' compensation insurance policy. Doc. 1–4 at 6. In as much as they have been identified as trial witnesses by Defendants, the two un-deposed expert witnesses are certain to have information of importance to the litigation, including the amount in controversy. Defendants have exclusive access to their retained experts' information absent depositions or some other form of
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1
Williams v. American International Group, Inc., Slip Copy (2016)
discovery, and the burden and expense of allowing these two witnesses to sit for deposition does not outweigh the benefit to Plaintiff of obtaining this information and testing the witnesses' theories and opinions prior to trial. 2 Perhaps more critically, the Federal Rules of Civil Procedure specifically provide that “[a] party may depose any person who has been identified as an expert whose opinions may be presented at trial.” Fed.R.Civ.P. 26(b)(4). The court must effectuate this rule, and cannot ignore the crucial role of expert witnesses in modern civil litigation. It is therefore ORDERED that Plaintiff may depose both of Defendants' designated
expert witnesses who have not been deposed, for a total of eleven depositions in this case. *2 Accordingly, it is ORDERED that Plaintiff's Motion to Increase the Number of Depositions Allowed to the Plaintiff Under the Discovery Plan (Doc. 19) is GRANTED in part, as further set out above. The Motion is DENIED in all other respects. 3
All Citations Slip Copy, 2016 WL 2747020
Footnotes
1 2
3
Plaintiff has conducted nine depositions to date, including one of three expert witnesses designated by Defendants. See Doc. 19 at 2; Doc. 24 at 4–5. Admittedly, this conclusion requires some measure of supposition since Plaintiff has not described the expert witnesses' areas of anticipated testimony. The court nevertheless finds that the two experts' depositions are appropriate for the reasons stated herein. Defendants also offer that Plaintiff has not deposed a corporate representative for AIG Claims, Inc. Doc. 24 at 5. However, Plaintiff makes no reference to a corporate representative in his motion, and there is no evidence before the court that a Fed.R.Civ.P. 30(b)(6) request has even been made. Under these circumstances, the court has insufficient information on which to conclude that the contemplated corporate representative's deposition would be relevant to the parties' claims and defenses or proportional to the case's needs, and thus cannot make the requisite findings under Fed.R.Civ.P. 26(b)(1) and 30(a)(2)(A)(i). The parties are, of course, free to stipulate to this deposition pursuant to Fed.R.Civ.P. 30(a)(2)(A). Defendants' joint response references the impending discovery deadline, see Doc. 24 at 6, but there is no motion before the court requesting a continuance of pretrial or other deadlines.
End of Document
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© 2016 Thomson Reuters. No claim to original U.S. Government Works.
2
13
Sky Medical Supply Inc. v. SCS Support Claim Services, Inc., Slip Copy (2016)
2016 WL 4703656 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Sky Medical Supply Inc., Plaintiff, v. SCS Support Claim Services, Inc., Patient Focus Medical Examinations, PC d/b/a All Borough Medical, PC, Nationwide Management Inc., BAB Management Inc., Management Company A, Mana Gement Company B, Management Company C, Management Company D, Management Company E, Benjamin Osiashvili a.k.a Veniamin Osiashvili, Mikael Osiashvili a.k.a Michael Osiashvili, Svetlana Osiashvili, Aleksey Vayner a.k.a Alex Vayner, Eitan Dagan, Manager Defendant A, Manager Defendant B, Manager Defendant C, Manager Defendant D, Manager Defendant E, Tatiana Sharahy, MD, Mitchell Ehrlich, MD, Joseph C. Cole, MD, Julio Westerband, MD, William A. Ross, MD, Renat R. Sukhov, MD, William S. Kritzberg, MD, Robert A. Sohn, DC, Stanley Ross, MD, Mitchell L. Weisman, MD, Mark Weber, MD, Gary J. Florio, MD, Antonio Martins, MD, Damion A. Martins, MD, M.S., Dante Brittis, MD, Christopher Ferrante, DC, Brian Freindlich, DC, Wayne Kerness, MD, Denis Mann, DC, Andrew Miller, MD, Andrew Bazos, MD, Drew Stein, MD, Linda Ackerman and Evgeniya Vakidova, Defendants. CV 12-6383 (JFB) (AKT) | Signed 09/07/2016
MEMORANDUM & ORDER A. KATHLEEN TOMLINSON, Magistrate Judge I. PRELIMINARY STATEMENT *1 Plaintiff Sky Medical Supply Inc. (“Plaintiff” or “Sky Medical”) brings the instant action against SCS Support Claim Services, Inc., Patient Focus Medical Examinations, PC d/b/a All Borough Medical, PC, Nationwide Management Inc., BAB Management Inc., Management Company A, Management Company B,
Reprinted with permission of Thomson Reuters.
Management Company C, Management Company D, Management Company E, Benjamin Osiashvili a.k.a Veniamin Osiashvili, Mikael Osiashvili a.k.a Michael Osiashvili, Svetlana Osiashvili, Aleksey Vayner a.k.a Alex Vayner, Eitan Dagan, Manager Defendant A, Manager Defendant B, Manager Defendant C, Manager Defendant D, Manager Defendant E, Tatiana Sharahy, MD, Mitchell Ehrlich, MD, Joseph C. Cole, MD, Julio Westerband, MD, William A. Ross, MD, Renat R. Sukhov, MD, William S. Kritzberg, MD, Robert A. Sohn, DC, Stanley Ross, MD, Mitchell L. Weisman, MD, Mark Weber, MD, Gary J. Florio, MD, Antonio Martins, MD, Damion A. Martins, MD, M.S., Dante Brittis, MD, Christopher Ferrante, DC, Brian Freindlich, DC, Wayne Kerness, MD, Denis Mann, DC, Andrew Miller, MD, Andrew Bazos, MD, Drew Stein, MD, Linda Ackerman and Evgeniya Vakidova (collectively, the “Defendants”). Plaintiff seeks monetary damages based upon the following causes of action: (1) declaratory judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, declaring that all peer reviews and all IME reports issued by the Defendants are null and void; (2) mail fraud under the Federal Racketeering Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962(c); (3) mail fraud under the RICO Act, 18 U.S.C. § 1962 (d) against the Nationwide Defendants; (4) mail fraud under the RICO Act, 18 U.S.C. § 1962 (c) against the GW Defendants; (5) mail fraud under the RICO Act, 18 U.S.C. § 1962 (c) against the GW Defendants; (6) mail fraud under the RICO Act, 18 U.S.C. § 1962 (d) against the Nationwide Defendants; (7) mail fraud under the RICO Act, 18 U.S.C. § 1962 (d) against the Nationwide Defendants; (8) mail fraud under the RICO Act, 18 U.S.C. § 1962 (d) against the GW Defendants; (9) mail fraud under the RICO Act, 18 U.S.C. § 1962 (d) against the GW Defendants; (10) common law fraud; (11) aiding and abetting fraud against the GW Defendants; (12) unjust enrichment; and (13) tortious interference. See generally Second Amended Complaint (“SAC”) [DE 294]. Presently before the Court are multiple discovery motions filed by both parties. Specifically, these include: (1) the GW Defendants' 1 motion to compel Plaintiff to produce documents consistent with the requirements of Rule 34 [DE 428]; (2) the Nationwide Defendants' 2 motion to compel Plaintiff to produce documents responsive to specific document requests [DE 432]; (3) Plaintiff's motion to compel the GW Defendants to provide complete responses to specific interrogatories and document
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Sky Medical Supply Inc. v. SCS Support Claim Services, Inc., Slip Copy (2016)
requests [DE 433]; and (4) Plaintiff's motion to compel the Nationwide Defendants to provide complete responses to specific interrogatories and document requests [DE 434].
II. APPLICABLE LEGAL STANDARDS A. Rule 26 *2 Rule 26(b)(1), as amended on December 1, 2015, recognizes that “[i]nformation is discoverable ... if it is relevant to any party's claim or defense and is proportional to the needs of the case.” Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley v. Choice Hotels Int'l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (recognizing that “the current version of Rule 26 defines permissible discovery to consist of information that is, in addition to being relevant ‘to any party's claim or defense,’ also ‘proportional to the needs of the case.’ ”) (internal citation omitted); Denim Habit, LLC v. NJC Boston, LLC, No. 13 CV 6084, 2016 WL 2992124, at *3 (E.D.N.Y. May 23, 2016). Notably, although Rule 26 still permits a wide range of discovery based upon relevance and proportionality, the “provision authorizing the court ... to order discovery of any matter relevant to the subject matter involved in the action” has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley, 2015 WL 9413101, at *2 (internal citation omitted). The rationale behind the elimination of this phrase is the reality that it “has been used by some, incorrectly, to define the scope of discovery.” Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule 26(b)(1), as amended, although not fundamentally different in scope from the previous version “constitute[s] a reemphasis on the importance of proportionality in discovery but not a substantive change in the law.” Vaigasi v. Solow Mgmt. Corp., No. 11 CIV 5088, 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016); see Robertson v. People Magazine, No. 14 Civ. 6759, 2015 WL 9077111 at *2 (S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment [to Rule 26] does not create a new standard; rather it serves to exhort judges to exercise their preexisting control over discovery more exact-ingly.”). Notwithstanding the foregoing principles, however, “[t]he party seeking discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition.” Barbara v. MarineMax, Inc., No. 12 Civ. 368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10, 2013) (citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5 (D. Conn. Mar. 4, 2009));
Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12, 1994)); Denim Habit, LLC, 2016 WL 2992124, at *3. In general, “[a] district court has broad latitude to determine the scope of discovery and to manage the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara, 2013 WL 1952308, at *3 (“Courts afford broad discretion in magistrates' resolution of discovery disputes.”); Coggins v. Cnty. of Nassau, No. 07 Civ. 3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb. 6, 2014) (A district court has “broad discretion to determine whether an order should be entered protecting a party from disclosure of information claimed to be privileged or confidential.”) (internal quotation omitted); see also Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016) (“[m]otions to compel are left to the court's sound discretion.”); Liberty Mut. Ins. Co. v. Kohler Co., No. 08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“[A] motion to compel is entrusted to the sound discretion of the district court.”).
B. Rule 34 Rule 34(a) of the Federal Rules of Civil Procedure delineates the type of items that a requesting party may “inspect, copy, test or sample” when such items are in the “responding party's possession, custody, or control [.]” Fed. R. Civ. P. 34(a). The overall scope of Rule 34 is broad and includes “information that is fixed in a tangible form and to information that is stored in a medium from which it can be retrieved and examined. At the same time, a Rule 34 request for production of ‘documents' should be understood to encompass, and the response should include, electronically stored information....” Fed. R. Civ. P. 34 (Advisory Committee Notes to 2006 Amendments). Rule 34(b)(2)(E) governs the manner in which production of documents or electronically stored information (“ESI”) must be made. The Rule states as follows: (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: *3 (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
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Sky Medical Supply Inc. v. SCS Support Claim Services, Inc., Slip Copy (2016)
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. Fed. R. Civ. P. 34(b)(2)(E). By it terms, Rule 34(b)(2) (E)(i) and (ii), concerning the production of documents or ESI respectively, permits the producing party, unless otherwise ordered by the Court, to choose which method to produce the items sought by the requesting party. 3 See Rule 34(b)(2)(E)(i) (“A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.”) (emphasis added); Rule 34(b)(2)(E)(ii) (“a party must produce [ESI] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”) (emphasis added). Thus, “under the provisions of Rule 34(b)(2) a responding party clearly controls the manner in which production will occur, and specifically which of the two prescribed methods of production will be employed.” Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008); see Hill v. Stewart, No. 10CV538S, 2011 WL 4439445, at *5 (W.D.N.Y. Sept. 23, 2011) (“[D]efendants are not obligated under the Federal Rules to organize their records to suit plaintiff's discovery demands and plaintiff cites no authority to the contrary. Rule 34(b)(2)(E) gives the responding party the option either to produce the documents in the manner they usually keep the records or produce them in the categories sought; that rule does not require the responding party to alter their record keeping to meet the movant's discovery categories.”). With regard to documents produced in accordance with Rule 34(b)(2)(E)(i), where a producing party elects to produce such documents as they are kept in the usual course of business, a party “must do more than merely represent to the court that the party complied with Rule 34(b)(2)(E)(i).” Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893, 2013 WL 1339536, at *5 (E.D.N.Y. Mar. 29, 2013). Instead, courts generally require the party to explain how its documents are organized in the ordinary course of business and what steps the party took to search and produce the documents. Id. see, e.g., Century Jets Aviation LLC v. Alchemist Jet Air LLC, No. 08–CV–9892, 2011 WL 724734, at *3–4
(S.D.N.Y. Feb. 8, 2011); Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365, 371 n. 9 (D. Vt. 2009); Pass & Seymour, Inc., 255 at 333– 38 (N.D.N.Y. 2008) (collecting cases); see also Schrom v. Guardian Life Ins. Co. of Am., No. 11 CIV. 1680, 2012 WL 28138, at *6 (S.D.N.Y. Jan. 5, 2012) (“Where massive numbers of documents are involved, it may be necessary for the producing party to provide a complete explanation of its information management structure if it wishes to produce those documents in the manner that they are ordinarily stored.”). However, the “rule does not require the responding party to alter their record keeping to meet the movant's discovery categories. Hill, 2011 WL 4439445, at *5; see In re Adelphia Communications Corp., 338 B.R. 546, 551 (S.D.N.Y. 2005) (citing cases). Further, “[t]he most obvious means of complying with the requirement of Rule 34(b) to produce documents as they are kept in the usual course of business is to permit the requesting party to inspect the documents where they are maintained, and in the manner in which they are organized by the producing party.” Pass & Seymour, Inc., 255 F.R.D. at 336.
III. GW DEFENDANTS' MOTION TO COMPEL [DE 428] *4 The GW Defendants have filed a motion requesting that Plaintiff be directed to “produce documents in a manner consistent with Rule 34 of the Federal Rules of Civil Procedure....” DE 428 at 1. Specifically, the GW Defendants assert that the production remains deficient because “the documents were produced on two CD Discs, without any reasonable means for the GW Defendants to determine the documents' relevance to the Parties' claims and defenses....” Id. According to the GW Defendants, “each of the electronic folders are simply labeled with a combination of names and numbers without any connection to the GW Defendants' document demands ... [and] have no apparent correlation to the claim numbers listed on the Damages Spreadsheet which [ ] encompasses the totality of Plaintiff's alleged damages.” Id. at 2. Further, although the GW Defendants concede that they “could inspect the documents on the hard drive located at Plaintiff's counsel's office” they claim that “any in-person inspection ... would still require the painstaking and time consuming comparison of 230,000 documents to claim numbers listed on the Spreadsheet.” Id. at 3. As such, the GW Defendants request that the Court “order Plaintiff to organize and label its document production” so that it corresponds to the categories in the request. Id.
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In response, Plaintiff asserts that: (1) “the discovery documents were located in electronic format on our office server and immediately available for inspection;” (2) “the pertinent files could be copied by [the GW Defendants] onto flash drives or DVDs;” and (3) “the case management system is searchable by, among other identifiers, the insurance claim number corresponding to the fraudulent peer/IME reports, which would allow Defendants to quickly locate those cases that are in the system and that they seek to inspect, and to ignore those documents that they deem irrelevant.” DE 431 at 1. Plaintiff claims that the GW Defendants' objections to its production and its offer to permit inspection are without merit since the GW Defendants “made no effort to actually try to access the requested documents as they are ordinarily maintained” and that if an inspection was undertaken, it would be apparent that the documents relating to each of the 177 claims on the Damages Spreadsheet are “located on the server [and] are already organized and identifiable by claim number.” Id. at 2 (emphasis in original). As such, to efficiently access the documents sought, Plaintiff states that the GW Defendants need only “execute ‘claim number’ searches for the claims sought, and then download the documents from the search onto whatever media they prefer.” Id. Thus, according to Plaintiff, the “most efficient and best option that both fulfills the requirements of Rule 34 and allows Defendants access to the documents they demanded is for Defendants to come to Plaintiff's counsel's offices and inspect the database and retrieve the documents related to each of the 177 claims at issue.” Id. at 3. In support of its position that the database is searchable by the insurance claim number that corresponds to the “claim number” identified on the Damages Spreadsheet, Plaintiff has provided supporting documentation in the form of screenshots related to two searches they performed. See DE 431-2, 431-3. Specifically, Plaintiff conducted a search query utilizing each of the first two claim numbers on the Damages Spreadsheet — 0260911110101022 and 0291298980101016. See DE 431-2, 431-3; see also SAC, Ex. 7 (Damages Spreadsheet identifying the 177 claims at issue by Claim Number). The first screenshot contained in both DE 431-2 and 431-3, shows that the search query used is the field “Ins Claim #” which corresponds to each of the first two Claim Numbers in the Damages Spreadsheet. See DE 431-2, 431-3. The third screenshot
shows the “Documents Tree” which appears to show all case documents corresponding to the particular claim number at issue. Id. In addition, the first eight digits following the document description identify the year, month and day that each document was uploaded to the database. Id. Based upon this documentation, it appears to the Court that the GW Defendants would, despite their position to the contrary, be able to query each of the 177 claims for which they seek documents without the need to compare each of the 230,000 documents to the 177 claim numbers at issue. Having considered Plaintiff's explanation as to the functioning of its database in conjunction with the supporting documentation provided — which establishes that the Plaintiff's database is searchable by each insurance claim number — and in the absence of supporting materials from Defendants which undermines Plaintiff's position in any way, the Court finds that Plaintiff's production meets the requirements of Rule 34. *5 As stated above, Plaintiff is not “obligated under the Federal Rules to organize [its] records to suit [Defendants'] discovery demands and [Defendants] cite [ ] no authority to the contrary. Rule 34(b)(2)(E) gives the responding party the option either to produce the documents in the manner they usually keep the records or produce them in the categories sought; that rule does not require the responding party to alter their record keeping to meet the movant's discovery categories.” Hill, 2011 WL 4439445, at *5. Further, although courts generally require a party to provide some detail as to how its documents are organized in the usual course of business, see Century Jets Aviation LLC, 2011 WL 724734, at *3–4; Synventive Molding Solutions, Inc., 262 F.R.D. 365, 371 n. 9; Pass & Seymour, Inc., 255 at 333–38, the Court is satisfied that Plaintiff has done so here. Despite the GW Defendants' generalized objections, the Court does not find these objections persuasive, especially since no onsite inspection has, to date, been undertaken. Thus, to the extent the GW Defendants claim that such an inspection would be fruitless since it would be both “painstaking and time consuming,” see DE 428 at 3, such an assertion is unsupported by any convincing evidence in the record. Typically, “[t]he most obvious means of complying with the requirement of Rule 34(b) to produce documents as they are kept in the usual course of business is to permit the requesting party to inspect the documents where they are maintained, and in the manner in which they are
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organized by the producing party.” Pass & Seymour, Inc., 255 F.R.D. at 336. In the instant case, Plaintiff has offered to permit such an on-site inspection. See DE 431 at 3. Unless and until such an inspection is undertaken by Defendants and is shown to be unduly burdensome or otherwise inefficient (i.e., because searches cannot be queried by the Claim Numbers identified on the Damages Spreadsheet), the Court finds — based on the submissions, Plaintiff's supporting documentation and the prevailing case law — that Plaintiff's offer to permit an inspection of the database comports with both the letter and the spirit of Rule 34. See Rule 34(b)(2)(B) (providing for inspection of documents or ESI, or, in the alternative, production of such materials “instead of permitting inspection”). As such, the Court directs the parties to participate in a further meet-and-confer session in order to schedule a mutually agreeable date and time for the inspection to take place. The inspection is to be conducted by September 29, 2016. After the inspection takes place, if the GW Defendants have a good faith basis to believe that the production is still deficient, they may file an appropriate letter motion at that time. Any such motion must be filed by October 12, 2016. Based upon the foregoing analysis, the GW Defendants' motion is DENIED.
IV. NATIONWIDE DEFENDANTS' MOTION TO COMPEL [DE 432] The Nationwide Defendants have filed a letter motion “joining in the GW Defendants' letter motion [DE 428], and to bring to the Court's attention some further insufficiencies in plaintiff's document production....” See DE 432 at 1. Specifically, the Nationwide Defendants have set forth specific instances where plaintiff has failed to produce documents and they ask this Court “to direct plaintiff to rectify” these alleged deficiencies in its production. The Court will address each alleged deficiency in turn. Id.
A. Document Request No. 9 Document Request No. 9 seeks “[a]ll documents constituting or otherwise concerning plaintiff's receipt or recoupment of any monies in connection with any of the Claims.” DE 432 at 1. Plaintiff asserts that it is entitled to these documents since “the receipt or recoupment of any monies is directly related to, inter alia, the amount of plaintiff's supposed damages and mitigation of any
such supposed damages. Plaintiff cannot, on the one hand claim that it was ‘damaged’ in a certain amount with respect to a given Claim, while, on the other hand, refuse to provide defendants with information concerning the amount that plaintiff has already received as payment for that Claim.” Id. at 2. *6 In response, Plaintiff maintains that the “Complaint explicitly states that damages sued for are already reduced by offsets, if any, that occurred [ ] during the litigation in the state actions. They are not at issue. Moreover, as the vast majority of claims listed on the ‘Damages Spreadsheet’ had no offsetting, there are no judgments, awards, settlements, etc., of any kind to disclose for those matters.” DE 436 at 1. As stated above, Rule 26(b)(1), as amended on December 1, 2015, recognizes that “[i]nformation is discoverable ... if it is relevant to any party's claim or defense and is proportional to the needs of the case.” Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley, 2015 WL 9413101, at *2; Denim Habit, LLC, 2016 WL 2992124, at *3. Despite Plaintiff's assertion that Document Request No. 9 is “irrelevant” [DE 432 at 1], the Court finds the proffered rationale unavailing. According to the Plaintiff, the Damages Spreadsheet, see SAC, Ex. 7, purportedly has taken into account any offsets from payments received on specific insurance claims. Notwithstanding that argument, the Court finds that the underlying documentation substantiating these offsets or recoupments is relevant and proportional to Plaintiff's damages claims. Defendants should appropriately be given the means and opportunity to probe the veracity of Plaintiff's assertions as to the existence and amount of any such offsets or recoupments. In addition, in their Answer to the SAC, the Nationwide Defendants assert that Plaintiff's damages “are barred, in whole or in part, by plaintiff's failure to mitigate its purported damages.” Nationwide Defendants' Answer to Second Amended Complaint and Counterclaims [DE 382] (“Nationwide Defs.' Answer”) ¶ 317. As such, the extent of any offsets or recoupments received by Plaintiff is relevant to this defense. See Mitsubishi Elec. Corp. v. Westcode, Inc., No. 315CV505, 2016 WL 3855180, at *9 (N.D.N.Y. July 12, 2016) (noting that “any information that [defendant] seeks to obtain ... would be available to it through discovery for its offset and recoupment counterclaim and defenses”); see also Banks v. Corr. Servs. Corp., 475 F. Supp. 2d 189, 202 (E.D.N.Y. 2007) (recognizing availability of “discovery as
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to measure of damages” in an action for money damages). Thus, to extent these documents are in Plaintiff's custody or control and are not otherwise privileged, Plaintiff is directed to produce them to the Defendants no later than September 26, 2016.
B. Document Request No. 10 Document Request No. 10 seeks “[a]ll documents constituting or otherwise concerning any settlement or other agreement entered into with, or any monies paid to plaintiff by, any defendant named, or formerly named, in this action.” DE 432 at 2. The Nationwide Defendants assert the same rationale for this demand as they did in support of Document Request No. 9. See DE 432 at 2. In response, Plaintiff states that “as the vast majority of claims listed on the ‘Damages Spreadsheet’ had no offsetting, there are no judgments, awards, settlements, etc., of any kind to disclose for those matters.” DE 436 at 1. “Prevailing authority within this Circuit holds that the discovery of settlement-related information is governed by [Rule 26(b)(1) ], and that no heightened showing of relevance need be made in order to justify the disclosure of a settlement agreement.” ABF Capital Mgt. v. Askin Capital Mgt., Nos. 96 Civ. 2978, 95 Civ. 8905, 97 Civ. 1856, 97 Civ. 4335, 98 Civ. 6178, 98 Civ. 7494, 2000 WL 191698, at *1 (S.D.N.Y. Feb. 10, 2000); see Salgado v. Club Quarters, Inc., No. 96 Civ. 383, 1997 WL 269509, at * 1 (S.D.N.Y. May 20, 1997) (holding that no privilege attaches to settlement agreements and that no heightened showing need be made to justify discovery of settlement agreement [s]; Rates Tech. Inc. v. Cablevision Sys. Corp., No. 05-CV-3583 DRH WDW, 2006 WL 3050879, at *3 n. 3 (E.D.N.Y. Oct. 20, 2006) (same); Gen. Elec. Co. v. DR Sys., Inc., No. CV06-5581, 2007 WL 1791677, at *1 (E.D.N.Y. June 20, 2007) (recognizing that “Rule 26's relevancy standard applies to the disclosure of settlement documents” and no heightened showing is required); see also Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 1996 WL 71507, at *3 (S.D.N.Y. Feb. 20, 1996) (“Chase misperceives the policy underlying Rule 408. The rule is not designed to lock away settlement documents, forever shielding them from view by those not a party to the agreement.”) *7 Although the information sought in the instant request appears, at least in part, to be encompassed within Document Request No. 9, to the extent such
information is not so included, the Court finds that such information should be produced to the Nationwide Defendants where it is not otherwise privileged and is in Plaintiff's custody and / or control. See Johnson Matthey, Inc. v. Research Corp., No. 01-CV-8115, 2003 WL 24136087, at *3 (S.D.N.Y. June 16, 2003) (finding that “no special showing must be made” apart from that required under Rule 26 and ordering production of settlement agreement); Rates Tech. Inc., No. 05-CV-3583, 2006 WL 3050879, at *4 (directing plaintiff “to produce all documents concerning any ... settlement agreements”); Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D. 559, 564 (S.D.N.Y. 1977) (permitting post-judgment discovery of settlement agreement where privilege did not apply). Similar to Document Request No. 9, the instant request is relevant in that it seeks documents which would tend to establish whether an agreement or settlement was reached with any defendants regarding the 177 claims at issue as set forth on the Damages Spreadsheet. Further, where any such settlement was reached, the amount of any offset / recoupment bears directly on the amount of damages Plaintiff is claiming in this case and is thus relevant to the claims and defenses being asserted. Therefore, Defendant should have the opportunity to verify the nature and extent of any such agreements or otherwise establish, through such production, what monies have been paid to Plaintiff by defendants concerning the claims at issue. Thus, to extent these documents are in Plaintiff's custody and / or control and are not otherwise privileged, Plaintiff is directed to produce them to the Defendants no later than September 26, 2016.
C. Document Request No. 11 Document Request No. 11 seeks “[a]ll documents constituting or otherwise concerning any settlement or other agreement entered into with, or any monies paid to plaintiff by, any Third Party concerning any of the claims.” DE 432 at 2. Both the Nationwide Defendants and Plaintiff rely on the same arguments interposed with regard to Document Requests 9 and 10. See DE 432 at 3; DE 436 at 1. Notably, in its initial response to this Document Request, Plaintiff stated that it would “produce [the documents sought in this request] to the extent such documents are not subject to any privilege or confidentiality agreement. Specifically, Plaintiff will produce the settlement stipulations, including amounts, of any Claim litigated in Civil Court or before any arbitrator to the extent such stipulations are not subject
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to a confidentiality agreement.” DE 432 at 3. Despite such apparent acquiescence, the Nationwide Defendants claim that “the CDs provided do not in fact appear to contain [this information.]” Id. at 4. Plaintiff does not address this argument in its opposition papers. Similar to Document Request No. 10, the instant request appears to be, at least in part, encompassed within Document Request No. 9. However, to the extent this request can be interpreted to include documents that may not be responsive to Document Request No. 9, and for the reasons previously stated and the case law already cited, see supra at 14, the Court finds that such documents would be relevant and the request is proportional to the claims and defenses at issue and are therefore discoverable unless otherwise privileged. 4 See Rates Tech. Inc., No. 05CV-3583, 2006 WL 3050879, at *4; Conopco, Inc. v. Wein, No. 05 CIV. 9899, 2007 WL 1040676, at *6 (S.D.N.Y. Apr. 4, 2007) (finding settlement agreement relevant and directing production while noting that “the simple fact that the parties to the settlement agreement agreed to its confidentiality does not shield it from discovery”) (internal citation omitted). Plaintiff is therefore directed to produce these documents no later than September 26, 2016. To the extent any documents are being withheld on the grounds of privilege or because they are “subject to a confidentiality agreement,” Plaintiff is to produce a proper privilege log by September 26, 2016 as well.
D. Document Request No. 6 *8 Document Request 6 seeks “[w]ith respect to each of the Claims, all documents constituting or otherwise concerning plaintiff's first discovering that such Claim or any Report concerning such Claim was allegedly fraudulent, false, deceptive, or otherwise in any way improper.” DE 432 at 3. According to the Nationwide Defendants, Plaintiff responded “will produce.” DE 432 at 4. The Nationwide Defendants assert that they are “inarguably entitled to production of such documents, which bear directly on the statute of limitations issue in this case[.]” DE 436 at 4. Plaintiff has not addressed Document Request No. 6 at all in its opposition. The Nationwide Defendants have asserted that “[t]he SAC is barred in whole or in part by the statute of limitations.” Nationwide Defs.' Answer ¶ 306. Since the Nationwide Defendants are challenging the viability of some or all of Plaintiff's claims on statute of limitations grounds,
this issue is relevant to the instant case. Further, the documents requested, which appear to bear upon such statute of limitations issues, are proportional to the needs of the case. As such, these documents are to be produced to the extent they are in Plaintiff's possession, custody or control and are not otherwise privileged. See Zimmerman v. Poly Prep Country Day Sch., 888 F. Supp. 2d 317, 327 (E.D.N.Y. 2012) (permitting discovery “to allow plaintiffs to investigate whether they have a basis to equitably estop [defendant] from asserting a statute of limitations defense; In re Zyprexa Products Liab. Litig., 549 F. Supp. 2d 496, 531 (E.D.N.Y. 2008) (permitting discovery on statute of limitations issue). Based upon the foregoing analysis, the Nationwide Defendants' motion is GRANTED to the extent set forth above.
V. PLAINTIFF'S MOTION TO COMPEL DOCUMENTS FROM THE GW DEFENDANTS AND THE NATIONWIDE DEFENDANTS [DE 433, 434] A. Background Relating to Scope of Discovery 1. August 7, 2014 Status Conference On August 7, 2014, the Court held a Status Conference with the parties. See generally August 7, 2014 Transcript of the Status Conference before the Hon. A. Kathleen Tomlinson [DE 325] (“Aug. 7, 2014 Tr.”). Specifically, the Court reviewed the scope of discovery in light of the SAC which contained allegations related to 177 claims. See SAC, Ex. 7 (Damages Spreadsheet identifying the 177 insurance claims at issue). Specifically, the Court stated that one of my jobs here is to ensure that whatever discovery is conducted, that there's some proportionality here. And based on what I'm hearing about the purported damages that were noted in the Amended Complaint, it gives me pause based on what I heard your description of what you're asking for in discovery. So, I will tell you right now that based on what I've heard today, particularly with the Motion pending, whatever claims they're down to at this point is the scope of discovery you're allowed to ask about.
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I'm not going to preclude you from serving additional discovery if the Motion gets dismissed and if I find out that the parameters here are broader than what I'm limiting you to right now. So if that means a second wave of discovery, then we'll worry about a second wave of discovery. But for now, I'm cautioning you. I don't want to see any and all describing what I just heard a short time ago based on what I just heard from the Defendants. You know, you're all seasoned practitioners here. You're to focus on the claims that we know about right now that deal specifically with the damages that you're claiming as a result of what you filed in your Amended Complaint. And as I said, I'm not going to prejudice you or preclude you from conducting further discovery, paper discovery if it gets down to that –– once the Motion's decided, I'm not going to prejudice you in that regard at all. Your rights are preserved, but for now, these requests better be very narrowly tailored. And I just want to make sure everybody understands where we're going here. *9 Aug. 7, 2014 Tr. at 18-19.
2. December 11, 2015 Status Conference On December 11, 2015 the Court held a further Status Conference in which it again discussed the overall parameters of discovery in this action. See generally DE 420. The Court advised counsel that discovery [is going to be] conducted in the most expeditious, but also economically feasible manner. And from what I see here given the claims that have been knocked out and the fact that we continue to talk about these 177 claims, which according to the defendants the damages now are reduced to the sum of $149,000, we're going to manage discovery in that framework. December 11, 2015 Transcript of the Status Conference before the Honorable A. Kathleen Tomlinson (“Dec. 11, 2015 Tr.”) at 6-7. In addition, based upon the universe of discovery potentially sought by Plaintiff, the Court further clarified that “the scope of these damages, the amount that it's going to cost, the projections from what I'm hearing
from you, it's got to be narrowed more than it sounds like its being narrowed at the moment.” Id. at 14. With regard to discovery related to the 177 claims as set forth in the Damages Spreadsheet, the Court set a discovery schedule with a fact discovery deadline of April 29, 2016. In addition, all expert depositions were to be completed by July 29, 2016. 5
B. Plaintiff's Motion to Compel Documents from the GW Defendants [DE 433] Plaintiff filed a letter motion seeking to compel the GW Defendants to “provide complete and verified responses to Plaintiff's discovery demands and supplemental demands.” DE 433 at 1. The letter motion itself consists of a “non-exhaustive sample of discovery demands that have not yet been complied with by Defendants.” Plaintiff seeks Court intervention to compel such production. Id. at 2-3. In response, the GW Defendants assert that “[i]n contravention of the Court's directives, Plaintiff served document demands and interrogatories that vastly expand the scope of discovery beyond the 177 claims on Exhibit 7 [of the SAC] by, for example, seeking documents related to the ‘sample’ claims included in Exhibit 1 [of the SAC], as well as other documents that have no bearing on Plaintiff's claimed damages.” DE 438 at 2. Further, although the GW Defendants state that they “would produce documents in their possession, custody and control that relate solely to the 177 claims ... Plaintiff's counsel ... made it clear that Plaintiff would not be satisfied with such a limited response....” Id. at 3. The GW Defendants acknowledge that Plaintiff's letter motion “for the first time ... appears to limit [ ] its document demands ... to claims listed in Exhibit 7. If that is the case, the GW Defendants state that they “will produce relevant documents ... limited to the claims included in Exhibit 7 and subject to the GW Defendants' general and specific objections to those demands.” Id. at 3. *10 The Court initially points out that it does not intend to adjudicate similar discovery disputes in a piecemeal fashion. Specifically, Plaintiff represents in its letter motion that the two document requests and one interrogatory at issue represent only a “non-exhaustive sample of discovery demands that have not yet been complied with by Defendants.” DE 433 at 2. However, Plaintiff makes no mention as to the overall depth and breadth of any other alleged deficiencies in document
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production or interrogatory responses other than to state that “it has not received a single document from any of the thirteen GW Defendants.” Id. As such, it appears the primary issue is the wholesale production of documents and interrogatory responses by the GW Defendants in response to Plaintiff's document demands. Thus, for the Court to issue a ruling solely with respect to the three instances of alleged non-compliance highlighted in Plaintiff's letter motion is altogether inefficient where any such ruling would, in all likelihood, lead to subsequent motions seeking further partial relief. Such an approach is an altogether inefficient use of the Court's limited judicial resources and does not promote judicial economy. See, e.g., Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir. 1980) (recognizing that “Judicial economy will best be served by [waiting] until all issues can be confronted by this court in a unified package.”). Further, the Court is not in a position to rule on discovery issues that are not properly before it. Plaintiff's complaint that it has not “received a single document from any of the thirteen GW Defendants,” id., while setting forth in its letter motion what appears to be a very small sampling of the alleged incomplete document requests and interrogatories, does little to place the purported universal discovery deficiency before the Court. In any event, based upon the Court's directives issued at both the August 7, 2014 and December 11, 2015 Status Conferences regarding Plaintiff's permissible scope of the discovery — which is limited to the 177 claims contained in the Damages Spreadsheet (SAC, Ex. 7) — any discovery requests made by Plaintiff and any responses interposed by Defendants are required to be appropriately limited. The GW Defendants have agreed to “produce relevant documents ... limited to the claims included in Exhibit 7 [of the SAC],” DE 438 at 3. In light of the fact that such responses would conform to the scope of discovery set by the Court, the GW Defendants are directed to respond to Plaintiff's discovery demands within 10 days of the entry of this Order. 6 All responses and / or document production are to be limited in scope to the 177 claims at issue. If the Court finds that either party is not acting in good faith, further action will be taken. Based upon the foregoing analysis, Plaintiff's motion to compel production from the GW Defendants is GRANTED, in part, and DENIED, in part.
C. Plaintiff's Motion to Compel Documents from the Nationwide Defendants [DE 434] On January 13, 2016, Plaintiff filed a motion seeking to compel the Nationwide Defendants to provide “complete responses to Plaintiff's discovery demands and to produce documents responsive to those demands.” DE 434 at 1. Specifically, Plaintiff has set forth three document requests and four interrogatories for which it asserts that the Nationwide Defendants' responses are insufficient. See generally id. The Court will review each in turn.
1. Document Request No. 1 Document Request No. 1 seeks “[a]ny and all documents identified in Defendants' Rule 26 Disclosures.” DE 434 at 2. Plaintiff asserts that as part of the Nationwide Defendants' Initial Disclosures, they represented that they were in possession of documents responsive to this request. Id. In addition, Plaintiff claims such documents are relevant since “they will be used to support Nationwide Defendants' defenses” and thus Nationwide should be compelled to produce these documents. Id. at 3. In response, the Nationwide Defendants state that at the time they served their Initial Disclosures in September 2014, they conducted a “thorough search and investigation of their records, which revealed that the[y] ... in fact did not have such documents, because [they] had no role with respect to those specific claims.” DE 437 at 2 (emphasis in original). Further, the Nationwide Defendants claim that they alerted Plaintiff to this fact in January 2015 “as part of [their] discovery responses.” Id. *11 Although Plaintiff takes issue with the “boilerplate” and “nonspecific objections” [DE 434 at 3] interposed by the Nationwide Defendants, the Court will not require production in light of the representations made by the Nationwide Defendants that they are not in possession of any documents responsive to this request. To be sure, “defendants cannot be faulted for failing to produce records they do not have.” R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 40 (S.D.N.Y. 2010), opinion adopted, 271 F.R.D. 55 (S.D.N.Y. 2010); see Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“[A] party is not obliged to produce, at the risk of sanctions, documents that it does not possess or cannot obtain.”); see also Golden Trade, S.r.L. v. Lee Apparel
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Co., 143 F.R.D. 514, 525 (S.D.N.Y. 1992) (“[A] party can be compelled to produce documents only if it has either possession of the documents or ‘control’ of them, which is customarily interpreted as requiring that the party have ‘the legal right to obtain the documents requested on demand.’ ”) (internal citations omitted). Further, the Nationwide Defendants are not required to create documents responsive to Plaintiff's request. See Universal Acupuncture Pain Servs., P.C. v. State Farm Mut. Auto. Ins. Co., No. 01 CIV. 7677, 2002 WL 31309232, at *4 (S.D.N.Y. Oct. 15, 2002) (“It is well-established ... that courts may not compel the creation of documents to comply with a discovery demand.”); In re Air Crash Near Clarence Ctr., N.Y., No. 09-CV-769S, 2013 WL 6073635, at *4 (W.D.N.Y. Nov. 18, 2013) (“Plaintiff is not required ... to create an asset or valuation list, or any other documents, in response to [defendants' discovery] demand.”). In the instant case, counsel for the Nationwide Defendants has represented that no documents responsive to Plaintiff's request are in the possession of his clients. See DE 437 at 2. Based on that representation, the Court will require the client (or a supervisory employee of the client with first-hand knowledge) to provide an affidavit setting forth (1) the specific details of the search undertaken for these materials; (2) what was discovered as a result of the search; and (3) to the extent the Nationwide Defendants maintain that no responsive materials were found, the defendants' particularized explanation as to why no materials were uncovered. The affidavit is to be filed with the Court within 14 days of the entry of this Order.
2. Document Request No. 3 Document Request No. 3 seeks “[a]ny and all financial documents, including corporate books, 1099s, W-2s, W-3s, tax returns, canceled checks, bank records, and/ or accounting records regarding Nationwide.” DE 434 at 3. Plaintiff argues that this information is relevant in light of the RICO allegations in the Complaint. See id. Specifically, Plaintiff states that these financial documents are necessary in order to: (a) assess the financial relationship and structure of the RICO enterprise; (b) measure the extent and scope of Defendants' fraud; (c) determine the financial relationship between the members of the RICO enterprise and third parties;
(d) prove Defendants' motive; (e) identify witnesses or other persons involved in the fraudulent scheme; and (f) prove Plaintiff's damages.” Id. In addition, based on the allegation that “Defendants participated in an extensive fraudulent scheme to manufacture fraudulent peer review and IME reports universally recommending that insurance claims be denied,” id., Plaintiff seeks disclosure of this financial information in order to illustrate “that Defendants personally benefitted from their participation in this scheme.” Id. According to Plaintiff, tax returns and bank records would serve as evidence of the Defendants' financial stake in the continuing fraud. Plaintiff also intends to use the financial records to outline the financial relationships between Defendants and to demonstrate Defendants' participation in a common fraudulent scheme.” Id. In response, the Nationwide Defendants assert that the request is “grossly overbroad and improper, calling for the production of every single financial document, including tax returns, from the entire history of Nationwide.” DE 437 at 2. Specifically, the Nationwide Defendants claim that the discovery sought here “is utterly disproportional to the scope and needs of this case ... [and is] a classic fishing expedition ... [and that in any event] plaintiff has failed to demonstrate a valid no less compelling, reason for production.” Id. *12 The SAC alleges that Nationwide Management, Inc. is “owned and managed by Manager Defendants Svetlana Osiashvili, Benjamin Osiashvili and Mikhael Osiashvili.” SAC ¶ 14. In addition, Plaintiff claims that this entity “is used by its owners as an instrument to control Patient Focus [Medical Examinations, PC d/b/a All Borough Medical (a named defendant) ] and to funnel money to them.” Id. Patient Focus Medical Examinations, PC (“Patient Focus”) in turn is alleged to have provided back office and clerical services to peer review and IMEs vendors that operate in New York's no-fault and workers' compensation industries. At all relevant times, PATIENT FOCUS managed an IME practice under its d/b/a name “All Borough” and split fees with licensed medical consultants who performed IMEs. According to the NYS Department of State, PATIENT FOCUS is owned by
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Defendant Tatiana Sharahy, MD. However, PATIENT FOCUS is in fact a Mallela corporation doing business in violation of the Business Corporation Laws of New York. PATIENT FOCUS utilizes various management companies to direct money to the PC's true owners who, in actuality, own and control the company in violation of New York law. The true owners of PATIENT FOCUS are Defendants Svetlana Osiashvili, Benjamin Osiashvili, Mikael Osiashvili, Aleksey Vayner, and the remaining abovecaptioned Manager Defendants and Management Company Defendants. Id. ¶ 13. Further, Plaintiff asserts that the Nationwide Defendants participated in the conduct of SCS's affairs through a pattern of racketeering activity. Said pattern includes intentionally causing to be prepared and mailed fraudulent peer review and IME reports on a continuous basis for several years, causing claims for reimbursement submitted by Plaintiff to be denied. The reports are the result of pre-ordained decisions, are the work product of non-licensed entities, and deemed the medical services at issue to be not medically necessary on a predetermined basis regardless of the merits of the claims. ... By filing numerous fraudulent reports in an ongoing scheme, the [Nationwide] Defendants engaged in a pattern of racketeering activity within the meaning of 18 U.S.C. § 1962(c). Id. ¶¶ 147, 153; see ¶¶ 161-176; 209-240. As previously observed, Rule 26(b)(1) requires that the discovery sought is both relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1); Sibley, 2015 WL 9413101, at *2. When determining proportionality, the court balances “the value of the requested discovery against the cost of its production.” In re Weatherford Int'l Sec. Litig., No. 11 CIV. 1646, 2013 WL 2355451, at *5 (S.D.N.Y. May 28, 2013);
see Pippins v. KPMG LLP, 279 F.R.D. 245, 256 (S.D.N.Y. 2012). Once the requesting party has made a prima facie showing of relevance, In re Weatherford Int'l Sec. Litig., 2013 WL 2355451, at *3; Barbara, 2013 WL 1952308, at *2, “it is up to the responding party to justify curtailing discovery.” Fireman's Fund Insurance Co. v. Great American Insurance Co. of New York, 284 F.R.D. 132, 134 (S.D.N.Y. 2012). However, “conclusory objections as to relevance, overbreadth, or burden are insufficient to exclude discovery of requested information.” Melendez v. Greiner, No. 01 Civ. 7888, 2003 WL 22434101, at *1 (S.D.N.Y. Oct. 23, 2003); Trilegiant Corp. v. Sitel Corp., 275 F.R.D. 428, 431 (S.D.N.Y. 2011) (same); Diaz v. Local 338 of Retail, Wholesale Dep't Store Union, United Food & Commercial Workers, No. 13-CV-7187, 2014 WL 4384712, at *2 (E.D.N.Y. Sept. 3, 2014) (same). Rather, “[a] party resisting discovery has the burden of showing ‘specifically how, despite the broad and liberal construction afforded [by] the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive ... submitting affidavits or offering evidence revealing the nature of the burden.’ ” Vidal v. Metro– North Commuter Railroad Co., No. 3:12CV248, 2013 WL 1310504, at *1 (D. Conn. March 28, 2013) (alteration in original) (quoting Compagnie Francaise d'Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984)); In re Weatherford Int'l Sec. Litig., 2013 WL 2355451, at *4; John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014); Diaz, 2014 WL 4384712, at *2. *13 In the instant case, based upon the allegations set forth in the SAC, coupled with Plaintiff's proffer that the financial documents sought are necessary to the underlying RICO cause of action and the fraudulent acts of the enterprise, the Court finds that Plaintiff has shown that some of the financial documents sought are relevant. The Court points out that the Nationwide Defendants do little more than interpose boilerplate generalized objections which fail to set forth, with particularity, why and how the documents sought lack relevance. Although such discovery is relevant, it must also be proportional to the needs of the case. Sibley, 2015 WL 9413101, at *2. After reviewing this request in light of the limited nature and extent of the claims comprising the SAC, the Court finds that as written, the request is overly broad and unduly burdensome in scope. This case
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Sky Medical Supply Inc. v. SCS Support Claim Services, Inc., Slip Copy (2016)
has been narrowed to encompass only the 177 insurance claims set forth in the Damages Spreadsheet. See SAC, Ex. 7. In addition, the total damages sought by Plaintiff are approximately $150,000. See id. (ad damnum clause). The vast majority of the 177 claims at issue span a time period of approximately three years (January 2007 through January 2010) as measured from the earliest (November 3, 2006) and latest (January 18, 2010) Dates of Service enumerated in the Damages Spreadsheet. See SAC, Ex. 7. As such, this request needs to be narrowly tailored to encompass financial documents limited in scope to the three-year time period encompassing the 177 claims in this action. To further enlarge this temporal period would result in the burden outweighing the potential benefit which would contravene the requirement that discovery be proportional to the needs of each case. See State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14 CIV 9792, 2015 WL 7871037, at *4 (S.D.N.Y. Dec. 3, 2015) (“Rule 26(b)(1) instructs parties and courts to evaluate whether the benefit of the discovery sought is proportional to the burden of producing it, taking into account issues like access, importance, and available resources.”). In addition, the categories of documents must be narrowed as well. The Nationwide Defendants assert that such financial documents are “entirely irrelevant” and that Plaintiff has “failed to demonstrate a valid, no less compelling, reason for production,” DE 437 at 2. The Court finds this generalized objection unavailing. Indeed, “a court will order tax returns and other sensitive financial information produced where it is relevant to the action and there is a compelling need for the documents because the information is not otherwise readily available.” Fayda, 2015 WL 7871037, at *4 (S.D.N.Y. Dec. 3, 2015) (citing Rahman v. Smith & Wollensky Restaurant Group, No. 06 Civ. 6198, 2007 WL 1521117, at *7 (S.D.N.Y. May 24, 2007)). Generally, “the party resisting disclosure should bear the burden of establishing alternative sources for the information.” Rahman, 2007 WL 1521117, at *7 (quoting United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y. 1988)); Fayda, 2015 WL 7871037, at *4. In the instant case, the Nationwide Defendants have “failed to rebut [Plaintiff's] showing that the financial records are relevant and material to its case against them. Nor have they established that [ ] [P]laintiff has an alternative source for the information ....” Fayda, 2015 WL 7871037, at *4. In addition, to the extent the Nationwide Defendants assert that such information is “sensitive” [DE 434 at 2], the
information will be subject to the protections afforded by the Confidentiality Order entered in this case. Thus, this objection does not “constitute a reason to wall off this relevant information [.]” Id. at *5; see Conopco, Inc. v. Wein, No. 05 CIV. 09899, 2007 WL 2119507, at *2 (S.D.N.Y. July 23, 2007) (“[T]o the extent that the financial information Plaintiff seeks is relevant, it must be produced. Its confidentiality can be protected by a variety of means, most notably the Confidentiality Order entered in this action.”); Brassco, Inc. v. Klip, No. 99 Civ. 3014, 2004 WL 1385816, at *2 (S.D.N.Y. June 21, 2004) (concluding that bank records that may show financial gain from allegedly improper transactions are not privileged, and any privacy interest can be addressed by a protective order); State Farm Mut. Auto. Ins. Co. v. CPT Med. Servs., P.C., 375 F. Supp. 2d 141, 156 (E.D.N.Y. 2005). *14 Based on the foregoing analysis, the Nationwide Defendants are directed to produce the financial documents requested as follows: (1) copy and produce — or, in the alternative, make available for inspection — the corporate books and records solely for the threeyear time period (November 2006 through January 2010) involving the 177 insurance claims at issue; and (2) utilize the same procedure for the W-2s, W-3s, and tax returns for the period of November 2006 through January 2010. At this time, the Court will not require the Nationwide Defendants to produce canceled checks, bank records and/or accounting records. Once the production of items (1) and (2) have been completed and have been assessed by the Plaintiff, if and only if the Plaintiff can establish “good cause” for any further production may the Plaintiff come back to the Court with a further motion. These documents are to be produced within 21 days of entry of this Order or made available for inspection and copying within 10 days.
3. Document Request No. 15 Document Request No. 15 seeks “[a]ll lease agreements, rental agreements, invoices, or subscriptions for any equipment, furniture, medical instruments, medical information services, insurance industry information leased, rented, used or paid for by Defendant since January 1, 2004 and used, consulted, and paid for in connection with the preparation for or conduct of any report identified in Exhibits 1 and 7 to the Amended Complaint.” DE 434 at 4. Plaintiff contends that such
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information is relevant because “rental agreements, leases, invoices, and subscriptions for the enumerated goods and services will establishing [sic] that [the] Nationwide Defendants benefitted from illegal fee-splitting with defendant doctors and professional corporations and the level of control they had over the conduct of IMEs.” Id. In opposition, the Nationwide Defendants argue only that this request is “flawed for much the same reasons [as Document Request No. 3], calling for a vast array of irrelevant business and real estate documents that have absolutely no bearing on the propriety of the defendants' purported role in the denial of the 177 specific no-fault claims that are the sole matters at issue here.” DE 437 at 2. The Court finds that the information sought is of some relevance, based upon the allegations as set forth in Section C. 2. supra, in conjunction with Plaintiff's rationale as set forth above. In addition, at least one court has found such material to be discoverable in the context of a civil RICO action. See CPT Med. Servs., P.C., 375 F. Supp. 2d at 156 (finding documents “relating to any agreements, including but not limited to leases, contracts and rental agreements” to be discoverable in context of RICO action). Further, for the same reasons as discussed in the context of Document Request No. 3, the Court finds Defendants' generalized and conclusory objections to be unpersuasive and not in compliance with the Federal Rules. See Trilegiant Corp., 275 F.R.D. at 431; Diaz, 2014 WL 4384712, at *2. However, similar to Document Request No. 3, Plaintiff's request here is not proportional to the needs of this case. As written, it is overly broad and unduly burdensome in relation to the limited claims and time period at issue. Therefore, to ensure that proper proportionality is achieved, the Court directs the Nationwide Defendants to produce the documents in the same manner and within the same time frame as the Court has ordered for the materials
identify additional persons involved in its creation and maintenance.” Id. *15 In response, the Nationwide Defendants state that this request is “tremendously overbroad, burdensome, and harassing, and seeks information that is patently irrelevant to the limited issues in this suit.” DE 437 at 2. However, notwithstanding this objection, Defendants state that they are “amenable to providing the names of any owners or officers of Nationwide during the time period in which the specific claims at issue in the suit arose.” Id. Based on Plaintiff's rationale and notwithstanding Defendants' generalized objections, the Court finds that the identities of the corporate principals of Nationwide, including its owners, officers/directors and board members are relevant in terms of information that may assist Plaintiff in unraveling the structure and scope of the fraud alleged to have taken place in this case. On the other hand, the Court is not convinced that the identities of employees and independent contractors of Nationwide are discoverable since Plaintiff has failed to articulate, even in general terms, the nature and extent of employee involvement in the purported scheme, nor any involvement on the part of independent contractors. Further, although the discovery sought encompasses “March 1, 2007 until the present” [DE 434 at 4], this timeframe is overboard in light of the claims at issue. As such, the Court modifies the discoverable period in this request to March 2007 through January 2010 — the time period covering the 177 claims involved in this action. See SAC, Ex. 7. Therefore, the Nationwide Defendants are directed produce by September 26, 2016, the identities of all owners, officers/directors and board members of Nationwide for the period running from March 2007 through January 2010.
responsive to Document Request No. 3. 7 5. Interrogatory No. 7 4. Interrogatory No. 2 Interrogatory No. 2 seeks the identities “of all owners, shareholders, owners [sic], board members, employees, and independent contractors of Nationwide from March l, 2007 until the present.” DE 434 at 4. Plaintiff asserts that such information “is relevant to the structure and organization of Defendants' fraudulent scheme and may
Interrogatory No. 7 seeks the disclosure of “any and all bank accounts from which monies were either withdrawn or into which any monies were deposited in connection with payment for the creation or transmission of the reports identified in Exhibits l and 7 to the Second Amended Complaint, or for appearances at court in support of the reports identified in Exhibits l and 7 to the Second Amended Complaint. This includes all such
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bank accounts under your name and those held under the name of your corporation Nationwide.” DE 434 at 5. Similar to Document Request No. 3, Plaintiff asserts that the disclosure of these “financial records are relevant and discoverable in RICO suits.” Id. In opposing the motion as to this interrogatory, the Nationwide Defendants claim only that the information sought here, similar to Document Request No. 3, is nothing more than a “fishing expedition into the Nationwide Defendants' financial affairs” and constitutes nothing more than an “undirected rummaging through bank books and records for evidence of some unknown wrongdoing.” DE 437 at 2-3. In light of the nature of the claims at issue — which allege, in part, that the Nationwide Defendants utilized Nationwide Management Inc. “as an instrument to control Patient Focus and to funnel money to them” [SAC ¶ 14] — and similar to the rationale provided with respect to its analysis of the financial records sought as part of Document Request No. 3, the Court likewise finds that the bank account information is relevant in so far as it may provide evidence “of how the enterprise operates, and of the role [the Nationwide Defendants] play [ed] in the enterprise.” Conopco, Inc., 2007 WL 2119507, at *3; see Eastman Kodak Co. v. Camarata, 238 F.R.D. 372, 375 (W.D.N.Y. 2006) (permitting discovery of bank account information where “plaintiffs have asserted broad civil RICO claims against the [ ] defendants”). Indeed, in order to establish a RICO claim, “the defendant must be involved in conducting or participating in the conduct of the RICO enterprise's affairs; that is, she must have some part in directing the enterprise's affairs.” Conopco, 2007 WL 2119507, at *3; see Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S. Ct. 1163, 1170, 122 L.Ed. 2d 525 (1973); Azrielli v. Cohen Law Offices, 21 F.3d 512, 521 (2d Cir. 1994); S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996); Sky Med. Supply Inc. v. SCS Support Claims Servs., Inc., 17 F. Supp. 3d 207, 223 (E.D.N.Y. 2014). The bank account information sought may also yield evidence concerning the use of the income derived from the alleged RICO activities as well as how the proceeds were funneled and utilized in furtherance of the operation of the alleged conspiracy. *16 However, although relevant, this request suffers from the same infirmity as the other requests in Plaintiff's motion. The interrogatory is overly broad and not
proportional to the needs of the case. As previously stated, the only claims at issue in this case are the 177 claims encompassed within the Damages Spreadsheet. As such, this discovery is to be limited in both time and scope to align with the 177 claims in this case. Therefore, the Nationwide Defendants are directed to produce the bank account information requested, but restricted to the 177 claims at issue and to the three-year time period (November 2006 through January 2010) involved in these claims. These materials are to be submitted by September 16, 2016.
6. Interrogatory No. 9 Interrogatory No. 9 seeks the identification of any oral agreements with any other Defendant, or any oral agreement with any other entity relating to the provision of the reports identified in Exhibit l and 7 to the Second Amended Complaint, or the provision of doctors or other professionals for testimony in support of the reports identified in Exhibit 1 and 7 to the Second Amended Complaint, including the terms of any such agreement, when such agreement was made, any modification to such agreement, and the date any such agreement or modification became, will become, or would have become effective. Such agreements include any oral modifications to any written agreement. DE 434 at 5. Plaintiff claims that such information “is relevant because it relates to establishing the operation, structure and organization of Defendants' fraudulent enterprise.” Id. The Nationwide Defendants argue that the interrogatory is “nearly impossible to understand.” DE 437 at 3. Further, it appears that the Nationwide Defendants have responded to this interrogatory since, as Plaintiff states in its motion, “the Nationwide Defendants state that they did not enter into any oral agreements specifically addressing the no-fault claims that are the subject of
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the Second Amended Complaint, the claims set forth in Exhibit 7 to the Second Amended Complaint.” DE 434 at 6. In their opposition, the Nationwide Defendants confirm the fact that an answer has already been provided as to the claims encompassed within the Damages Spreadsheet. See SAC, Ex. 7. Since Plaintiff has received an answer to this interrogatory with respect to Exhibit 7, the only issue remaining is the extent to which Plaintiff seeks further amplification concerning any claims set forth in Exhibit 1 of the SAC. However, such claims are not the subject of the instant litigation. Therefore, any discovery as to those claims is not relevant nor proportional to the needs of the case. As such, the Nationwide Defendants will not be required to provide any further response to this interrogatory.
enough of a basis to show that this interrogatory is at least marginally relevant. Reviewing the allegations in the SAC, the Nationwide Defendants are alleged to have “entered into a partnership that allowed for the mass production of peer review and IME reports pursuant to a fraudulent protocol.” SAC ¶ 81. In addition, they are purportedly “responsible for many of the administrative duties related to [the] scheme.” SAC ¶ 83. Therefore, the information sought may provide further evidence as to the overall extent and ultimate role of the Nationwide Defendants' participation in the scheme. However, once again, the scope of this discovery shall be limited to the 177 claims at issue and are likewise limited to the three-year time period (November 2006 through January 2010) involved in these claims. The Nationwide Defendants are directed to respond to this interrogatory within 21 days of the entry of this Order.
7. Interrogatory No. 11 Interrogatory No. 11 seeks the identification of “all training materials you have produced, bought or provided to any person relating to the provision or creation of the reports identified in Exhibits l and 7 to the Second Amended Complaint, or the provision of doctors or other professionals for testimony in support of the reports identified in Exhibits l and 7 to the Second Amended Complaint, including any employee guidelines, handbooks, code books, or rules so used.” DE 434 at 6. Plaintiff claims that this information is relevant “because it goes to the heart of Nationwide Defendants' participation in the fraudulent scheme to produce sham peer review and IME reports. Such information will also demonstrate their role as the coordinators of the scheme, as they orchestrated both the method behind the creation of the fraudulent reports and the doctors' testimony in support of the fraudulent reports.” Id. In response, the Nationwide Defendants state merely that this request is “entirely baseless” since it seeks “materials that are immaterial to the matter at issue in this suit[.]” DE 437 at 3. *17 Although it is a close question, at this stage of the proceedings, the Court finds that Plaintiff has set forth
VI. CONCLUSION For all of the foregoing reasons: (1) The GW Defendants' motion to compel production from Sky Medical [DE 428] is DENIED; (2) The Nationwide Defendants' motion to compel production from Sky Medical [DE 432] is GRANTED; (3) Sky Medical's motion to compel production from the GW Defendants [DE 433] is GRANTED, in part, and DENIED, in part; and (4) Sky Medical's motion to compel production from the Nationwide Defendants [DE 434] is GRANTED, in part, and DENIED, in part, to the extent set forth in this Memorandum and Order. SO ORDERED.
All Citations Slip Copy, 2016 WL 4703656
Footnotes
1
The GW Defendants consist of SCS Support Claim Services, Dante Brittis, M.D., Joseph C. Cole, M.D., Eitan Dagan, Mitchell Erlich, M.D., Christopher Ferrante, D.C., William S. Krtizberg, M.D., Denis Mann, M.D., Robert A. Sohn, M.D., Renat R. Sukhov, M.D., Mark Weber, M.D., Mitchell L. Weisman, M.D. and Julio Westerband, M.D. See DE 428.
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2 3
4
5 6 7
The Nationwide Defendants consist of Nationwide Management Inc., Benjamin Osiashvili, Mikael Osiashvili, Svetlana Osiashvili and Alex Vayner. See DE 432. The Court has searched the expansive docket in this case and has been unable to find any agreement between the parties, oral or written, regarding the manner of production of electronically stored information (“ESI”) by the parties. Had counsel undertaken an appropriate meet-and-confer at the beginning of this litigation regarding the production of ESI, it appears to the Court that some of the more significant disputes which have arisen could readily have been avoided. Both parties make specific arguments concerning the production of a settlement agreement entered into between Plaintiff and non-party GEICO in a separate lawsuit. However, the Court explicitly excludes this agreement from the scope of the instant ruling since subsequent to the filing of this motion, Plaintiff filed a letter motion seeking to quash the subpoena served on non-party GEICO by the GW Defendants which demanded, in part, production of the settlement agreement. See DE 459. This motion is sub judice. The Court notes that on July 12, 2016, Plaintiff renewed its motion — previously denied by the Court on June 27, 2016 [DE 487] — seeking an extension of the discovery deadlines. The Court does not subscribe to the GW Defendants' questionable approach that they “have refrained from producing documents absent a direction from the Court that only documents related to Plaintiff's damage claim need be disclosed.” Id. That excuse contravenes the Federal Rules regarding discovery obligations. This ruling does not apply to any reports identified in Exhibit 1 referenced in Document Request No. 15 since Defendants have no obligation to produce any information concerning Exhibit 1.
End of Document
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Allen-Pieroni v. Southwestern Correctional, LLC, Slip Copy (2016)
2016 WL 4439997 Only the Westlaw citation is currently available. United States District Court, N.D. Texas, Dallas Division. Bonnie Allen-Pieroni, Brian Allen, Steve Gibbs, and Mark Gibbs, individually and as heirs at law to the Estate of Ivan Earl Allen, Deceased, Plaintiffs, v. Southwestern Correctional, LLC, d/b/a Lasalle Southwest Corrections; Lasalle Management Company, LLC; Johnson County, Texas; Bob Alford; John Does 1-5; and Jane Does 1-5, Defendants.
Attorneys and Law Firms Emil Lippe, Jr., Law Offices of Lippe & Associates, Dallas, TX, for Plaintiffs. Tony L. Schaffer, Sessions & Schaffer PC, Austin, TX, William L. Sessions, Sessions & Associates, PLLC, Dallas, TX, for Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION OF PLAINTIFFS FOR LEAVE TO TAKE DEPOSITIONS UNITED
Chief Judge Barbara M. G. Lynn referred the Motion for Leave to the undersigned United States magistrate judge for determination. See Dkt. No. 91. Defendants Southwestern Correctional, LLC, LaSalle Management Company, LLC, Johnson County, Texas, and Sheriff Bob Alford (“Defendants”) filed a response in opposition, see Dkt. No. 95, and Plaintiffs filed a reply, see Dkt. No. 97. For the reasons and to the extent explained below, the Court GRANTS in part and DENIES in part the Motion of Plaintiffs for Leave to Take Depositions [Dkt. No. 89].
Background
No. 3:13-cv-4089-M | Signed 08/23/2016
DAVID L. HORAN, MAGISTRATE JUDGE
Reprinted with permission of Thomson Reuters.
STATES
*1 Plaintiffs Bonnie Allen-Pieroni, Brian Allen, Steve Gibbs, and Mark Gibbs, individually and as heirs at law to the Estate of Ivan Earl Allen, Deceased (“Plaintiffs”), have filed a Motion for Leave to Take Depositions [Dkt. No. 89] (the “Motion for Leave”), seeking leave pursuant to Federal Rule of Civil Procedure 30(a)(2) to take the deposition of Eddie Williams, Kris Wusterhausen, D.O., Johnson County, Texas, Southwestern Correctional, LLC, LaSalle Management, LLC, Bob Alford, and Vernon Farthing, M.D. and an additional five depositions.
Plaintiffs are the adult children of Ivan Allen, Deceased. Ivan Allen was a pretrial detainee at the Johnson County Law Enforcement Center for a probation violation from the date of his arrest on October 9, 2011 until October 26, 2011 when he was taken to the Walls Regional Hospital. Mr. Allen was later transported to the Texas Health Harris Methodist Hospital in Fort Worth, Texas, where he died on October 30, 2011. According to Defendants, Mr. Allen had been in and out of this jail on 34 separate occasions spanning back to 1974, but the facts and circumstances of this lawsuit relate to his most recent period of detainment for the 17-day period during the month of October 2011. Plaintiffs' Second Amended Complaint alleges (i) violations of the Eighth and Fourteenth Amendments of the United States' Constitution, (ii) state law claims of wrongful death, and (iii) claims under the Texas Torts Claims Act. Plaintiffs allege that Defendants adopted and implemented in the jail policies and procedures that resulted in inadequate medical care provided to the detainees. Defendants include (1) Southwestern Correctional LLC, a Texas limited liability company which operates the jail under contract with Johnson County, Texas; (2) Johnson County, Texas; (3) Johnson County Sheriff Bob Alford; and (4) LaSalle Management Company, LLC, a Louisiana limited liability company that provides support services to Southwestern Correctional, LLC. The Johnson County Correctional Center is the county jail for Johnson County,
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Texas and consists of 872 beds ranging from minimum to maximum security levels.
Legal Standards Federal Rule of Civil Procedure 30(a)(2) limits Plaintiffs to taking 10 depositions unless the parties stipulate to additional depositions or the Court grants Plaintiffs leave to exceed 10 depositions. Rule 30(a)(2) provides that “[a] party must obtain leave of court, and the court must grant leave to the extent consistent with [Federal Rule of Civil Procedure] 26(b)(1) and (2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants.” FED. R. CIV. P. 30(a) (2)(A). And Federal Rule of Civil Procedure 26(b)(2)(A) provides that, “[b]y order, the court may alter the limits in these rules on the number of depositions.” FED. R. CIV. P. 26(b)(2)(A). *2 “When a party seeks leave to take more than ten depositions, the court's decision whether to grant such leave is governed by the principles set out in” Federal Rules of Civil Procedure 26(b)(1) and 26(b)(2).Barrow v. Greenville Indep. Sch. Dist., 202 F.R.D. 480, 482 (N.D. Tex. 2001). Federal Rule of Civil Procedure 26(b)(2)(C), as amended effective December 1, 2015, provides that, “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C). Rule 26(b) (1), as amended, effective December 1, 2015, now provides that, “[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1). The amendments to Rules 26 and 30 govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, in all proceedings then pending. The Court finds that applying the standards of Rules 26 and 30, as amended, to Plaintiffs' Motion for Leave is both just and practicable. Just as was the case before the December 1, 2015 amendments, under Rules 26(b)(1) and 26(b)(2)(C)(iii), a court can – and must – limit proposed discovery that it determines is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit – and the court must do so even in the absence of a motion. See Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011); accord Hightower v. Grp. 1 Auto., Inc., No. CV 15-1284, 2016 WL 3511720, at *1 (E.D. La. Apr. 27, 2016), reconsideration denied, 2016 WL 3430569 (E.D. La. June 22, 2016) (“Permissible discovery extends only to that which is non-privileged, relevant to claims and defenses in the case and within the applicable Rule's proportionality limits, regardless whether those limits arise from the indistinguishable standards of Fed. R. Civ. P. 26(b)(1) and (b)(2)(C) as they existed at the time this case was filed or in those same Rules as presently configured.”). The party seeking leave under Rule 30(a)(2)(A) to take more than ten depositions must “show the necessity of all the depositions she took in reaching the prescribed limit,” that is, “the necessity for each deposition she took without leave of court pursuant to the presumptive limit of Rule 30(a)(2)(A).” Barrow, 202 F.R.D. at 482-83. “In other words, [the party seeking leave] must establish not only the necessity of each deposition identified in his motion (i.e., witnesses 11 through 20), but also the necessity of all the depositions he has taken or will take in reaching the prescribed limit (i.e., witnesses 1 through 10).” MacKenzie v. Castro, No. 3:15-cv-752-D, 2016 WL 3906084, at *5 (N.D. Tex. July 19, 2016). “And [t]he mere fact that more than ten individuals may have discoverable information in a case does not mean that taking more than ten depositions makes sense.” Byers v. Navarro Cty., No.
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3:09-cv-1792-D, 2011 WL 4367773, at *2 (N.D. Tex. Sept. 19, 2011) (internal quotation marks omitted). “The rationale for such a standard is” that [h]ad [the party seeking leave] opted not to take other depositions, she could have taken the ones in question without first obtaining leave of court.” Barrow, 202 F.R.D. at 482 (footnote omitted). The party seeking leave “should not be allowed to conduct ten” (or more) “depositions that were not subject to judicial review under the Rule [26(b) (1) and Rule] 26(b)(2) standards and then only be required to” provide specific reasons for seeking “leave to take the additional ones at issue.” Id. at 482-83. “If this approach were condoned, a party could indirectly circumvent the cap on depositions by exhausting the maximum allotted number to take those that she could not justify under the Rule [26(b)(1) and Rule] 26(b)(2) standards, and then seeking leave to exceed the limit in order to take depositions that she could substantiate. Rule 30(a)(2)(A) is intended to control discovery, with its attendant costs and potential for delay, by establishing a default limit on the number of depositions.” Id. at 483. “This salutary purpose would be subverted unless a party who takes the maximum number of depositions allowed, and then seeks leave to conduct more, is required to show the necessity of all the depositions she took in reaching the prescribed limit in order to demonstrate” her entitlement to leave under Rule 30(a)(2)(A). Id.
Analysis *3 In the Motion for Leave and reply in support thereof, Plaintiffs explain that they “have previously taken depositions of [ten] witnesses, with no objections from Defendants” – specifically, of (1) Walter William Forson, (2) Angela Hudson, (3) Cynthia Lewis, (4) Richard Journeay, (5) Judith Bennett, (6) Eustolia Pena, (7) Neal Patrick Gormley, (8) Lillain Delayne Hinojosa, (9) Jesus Rubio, and (10) David Blankenship – and that “[t]hese depositions have included several present and former employees of Defendants, including nurses who provided treatment to Ivan Allen during his incarceration at the Johnson County Jail that resulted in his untimely death, and former inmates who witnessed the lack of proper treatment for Ivan Allen and the general attitude of Defendants toward the life and safety of the inmates.” Dkt. No. 89 at 1-2; see also Dkt. No. 95 at 2 n.1; Dkt. No. 97 at 6-7.
Plaintiffs contend that “[t]he necessity for more than ten depositions in this case arises from the fact that there are three primary defendants, and that there are numerous present and former employees of Southwestern Correctional, LLC d/b/a LaSalle Southwest Corrections [ ] who have pertinent knowledge concerning the policies and practices of both Southwestern Correctional and of the other Defendants.” Dkt. No. 89 at 2. Plaintiffs assert that, “[f]urthermore, testimony from former employees is particularly enlightening, because they are no longer in fear of losing their jobs by disclosing the shabby treatment of inmates and their medical needs.” Id. Plaintiffs explain that they “have sought testimony from several former inmates of the jail who witnessed the mistreatment of Ivan Allen” but “have not yet [ ] been able to take the depositions of designated corporate representatives of Johnson County and the corporate defendants, nor that of Sheriff Alford, or the depositions of the doctor who was under contract to furnish medical services for inmates, or the designated expert witness of Defendants.” Id. Plaintiffs seek leave to take the following seven depositions (with notices attached to the Motion for Leave) as well as an additional five depositions: (1) Eddie Williams, the “Warden of the Jail; responsible for overall treatment of inmates”; (2) Kris Wusterhausen, D.O., the “[d]octor contracted to provide medical services for inmates”; (3) Johnson County, Texas, a Defendant; (4) Southwest Correctional, LLC, a Defendant; (5) LaSalle Management Company, LLC, a Defendant; (6) Bob Alford, Defendant; and (7) Vernon Farthing, M.D., an “[o]utside retained expert witness.” Id. at 2-3. In the Motion for Leave, Plaintiffs further explain that they “are seeking leave to take up to an additional five (5) depositions, because there are numerous former inmates whom Plaintiffs are attempting to locate and interview, and who are believed to have important information.” Id. at 3. According to Plaintiffs, “[d]ue to the passage of time, and the fact that few former inmates are going to be freely available for interviews, this process is taking substantial time,” but “[e]ach such deposition will be short, but the information to be obtained therefrom is of great significance.” Id.
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Plaintiffs also report that they “were unaware of any objections that Defendants had to the ongoing taking of depositions, because they have been attempting, for over six (6) weeks, the taking of these depositions, and at no time during the communications between counsel was any objection made.” Id. Plaintiffs explain that “Defendants' counsel was aware, due to telephone conversations and the letter dated July 20, 2016, that Plaintiffs' counsel would be on vacation from August 1-14, 2016” and that “[i]t was not until after 6:30 p.m., on Friday, August 12, 2016, that Defendants' counsel first raised any objection to the depositions beginning Monday, August 15, 2016.” Id. at 4. Plaintiffs criticize “[t]he manner in which Defendants have strung along the attempted depositions of the organizational Defendants, and of Sheriff Alford, whereby telephone calls are not answered, no dates are proposed, representations of ‘unavailability’ are made, and then, at a time and in a manner obviously designed to delay critical depositions even further, objections as to allowable number of depositions are made, knowing that Plaintiffs' counsel was out of town and unable to file any motions with this Court.” Id. Plaintiffs contend that, despite their “diligence in attempting to obtain dates for depositions, and multiple attempts to reach agreement as to timing of depositions, Plaintiffs have been confronted with one delay after another, and now this last-minute desperate ploy to delay discovery still further.” Id. *4 Plaintiffs assert that “the depositions taken by Plaintiffs to date have been necessary to develop the critical facts of this case, in a particularly difficult situation where the most knowledgeable witnesses are the most difficult to locate” and that “[t]he requested depositions are absolutely critical, in the interests of justice, to enable Plaintiffs to prepare and present their case, and Plaintiffs will be denied a fair opportunity to present their case if such depositions are not permitted.” Id. Defendants, Relying on the case law and standards laid out above, respond that, where “Plaintiffs have completed ten depositions as allowed by [Rule] 30(a)(2)(A) and are now seeking leave from the Court to take an additional twelve depositions at the end of the discovery period,” and where, “[t]o obtain leave from the Court for additional depositions, Plaintiffs must show good cause and necessity for every deposition they have already taken and those they wish to take in this case,” Plaintiffs “have not and cannot meet that burden.” Dkt. No. 95 at 1-2.
Defendants explain that, “[t]o date, Plaintiffs have noticed and completed ten depositions in this case” and that “[t]he Parties have not agreed to expand the number of depositions above the limit of 10 allowed by Rule 30(a)(2) (A), and Plaintiffs did not seek permission or leave from the Court for an expansion of the limit until the present Motion filed approximately two weeks before the close of discovery.” Id. at 2 (footnote omitted). Defendants contend that, “despite the brief discovery extension allowed by the Court, the ongoing search for witnesses, and ever-growing number of future depositions that Plaintiffs claimed to be ‘absolutely critical,’ Plaintiffs' counsel took a two-week vacation from August 1st to 15th” and that, “[a]fter business hours on Thursday, July 28, 2016, just prior to beginning vacation, Plaintiffs' counsel served seven deposition notices purporting to set all of seven of the depositions for a nine day period from August 15th to August 233rd.” Id. at 3. According to Defendants, “[t]he deponents noticed were Defendant Sheriff Alford, corporate representatives of Johnson County and the two company Defendants, the Jail's current warden who did not work at the Johnson County Jail during Ivan Allen's incarceration, a medical doctor who contracts to provide inmate medical care at the facility, and Defendants' expert witness.” Id. at 3 (footnote omitted). Defendants report that, “[o]n August 12, 2016, Defendants advised Plaintiffs that Defendants would not proceed with the seven depositions as noticed since the depositions are not authorized under the rules, and, out of caution, would be filing a Motion for Protective Order from the Court and attempted to confer on the Motion for Protective Order” but that “Plaintiffs then filed their Motion For Leave requesting not only the additional seven deposition identified witnesses, but also five more witnesses which apparently are still unidentified.” Id. Defendants more specifically contend that “Warden Eddie Williams would have no direct knowledge related to this case, but may have information useful to Plaintiff Bonnie Allen Thomas in another lawsuit that she is threatening to file”; that “Warden Williams was the Warden of the Johnson County Jail during the period when Plaintiff Bonnie Allen Thomas was detained for carrying a fully loaded weapon into the Johnson County Courthouse in violation of court orders in her custody case, in addition to other laws against carrying a weapon into the courthouse and for evading arrest”; and that “Bonnie Allen Thomas has sent Tort Claims Notices
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related to these events to all of the Defendants in this case and to others.” Id. at 3 n.2. *5 Defendants argue that “Plaintiffs have not and can not carry their burden to demonstrate that the depositions taken to date were necessary and have not established the need for each of the twelve additional depositions they are requesting,” where, “[a]s an example, one of the depositions taken by Plaintiffs was of a Sheriff's office employee who did not work at the jail until approximately two years after Ivan Allen's death, and a second deposition was of a staff member who did not start work at the jail until approximately two years after Ivan Allen's death.” Id. at 5. Defendants assert that “[t]he fact that past or future deponents are named Defendants or representatives of Defendants does not establish the necessity of their depositions.” Id. (footnote omitted). Defendants also argue that “Plaintiffs cannot demonstrate necessity or purpose for the five additional depositions requested for witnesses that Plaintiffs themselves still have not identified” and that “Plaintiffs clearly did not have a mutually cost-effective or efficient plan for discovery” but rather “have used much of their discovery, particularly depositions, as a fishing-expedition by which to develop a theory of liability for their claims.” Id. Defendants contend that, [o]ver the three years that this case has been on file, Plaintiffs have had the ability to request discovery of documents, seek information through Interrogatories, and use other discovery devices to obtain the information that they now seek through unauthorized depositions and improper duces tecums. Despite having the burden to plan their discovery responsibly to prove their claims, Plaintiffs are seeking twelve more depositions along with extensive lists of documents that they are improperly attempting to obtain from Defendants pursuant to duces tecums. With less than two weeks left in the discovery period, Plaintiffs have not met their burden to demonstrate good cause justifying additional depositions in this case. Now, Plaintiffs not only want the
Court to expand their depositions allotment for depositions of party representatives they have long known about, but they also want an allowance of five more for still unidentified fact witnesses. Id. at 6. Defendants further contend that, “in an improper attempt to circumvent the Rule 34 procedure for obtaining documents from parties, Plaintiffs have also attached duces tecums requesting extensive document production from six of the deponents currently noticed for deposition.” Dkt. No. 95 at 2. According to Defendants, these duces tecums seek “numerous categories of documents not included in previous document requests in this case,” such as “an undefined number of employee personnel files for employees of all Defendants, and protected communications with Defendants' expert witness.” Id. at 3 & n.3. Defendants contend that the duces tecums are an “attempt to circumvent proper procedure and obtain discovery that Plaintiffs failed to request in a timely fashion under the Rules,” where “Rule 30(b)(2) requires that a deposition notice to a party-deponent seeking documents include a request for documents under Rule 34 – which provides a 30 day response by the party deponent” – and that “[n]one of the current depositions noticed by Plaintiffs provide an adequate time for production of documents.” Id. at 6. Defendants request that the Court deny Plaintiffs' Motion for Leave and grant Defendants a protective order from – or quashal of – the duces tecums. Plaintiffs reply first that Defendants' response to the Motion for Leave “recites that it is in support of ‘Defendants' Motion for Protective Order from Depositions,’ which motion has not been filed,” and that “Plaintiffs reserve the right to respond to such motion if and when the same is filed.” Dkt. No. 97 at 1 n.1. *6 Plaintiffs also reply that “Defendants' counsel has engaged in ongoing stalling and delay tactics that have resulted in the present difficulties, and is now seeking to benefit from his obstructionist tactics,” including delays in complying with the Court's May 2, 2016 Memorandum Opinion and Order [Dkt. No. 82] on Plaintiffs' Motion to Compel. Id. at 2-4. Plaintiffs explain that, “[r]ather than filing a motion to compel or for sanctions, and mindful
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of the policies of the Northern District urging compliance with the Lawyers' Creed and the Dondi decision, a joint motion for continuance was filed,” and Plaintiffs contend that “[f]or Defendants' counsel now to treat the filing of such motion as a dilatory tactic by Plaintiffs' counsel is both insulting and absolutely groundless.” Id. at 4. Plaintiffs also assert that, “[a]gain, being mindful of the policies of the Northern District urging compliance with the Lawyers' Creed and the Dondi decision, Plaintiffs' counsel attempted on numerous occasions to schedule depositions by agreement” and that “[t]he depositions sought to be taken at this time were attempted to be scheduled in June-July, and the only reason why they have not already been taken is due to delays by Defendants' counsel in compliance with this Court's May 2, 2016, Order, refusal to return telephone calls, and alleged ‘unavailability’ of witnesses or Defendants' counsel.” Id. at 4, 6. Plaintiffs contend that, “[i]f counsel for Defendants was unwilling to agree to the taking of more than ten depositions, he should have raised such objection back in June, 2016, and the urgent necessity of the present motion and its expedited consideration would not have been the same”; that “[w]aiting to raise the objection until the close of business on the last business day prior to the first scheduled deposition, without an advance telephone call and while Plaintiffs' counsel was on a family vacation, was obviously intentional and calculated to cause the maximum possible delay”; and that “[s]uch gamesmanship must not be rewarded.” Id. at 6. Plaintiffs' reply also provides an explanation of the reasons for which Plaintiffs have taken 10 depositions to date – which they “respectfully submit...have all been essential to the development of their case” – and a more detailed explanation of the reasons for the necessity of the seven additional depositions that they seek leave to take. See id. at 6-9. As to the requested deposition of Eddie Williams in particular, Plaintiffs contend that “[t]his proposed deposition has nothing to do with the matters mentioned in Defendant's Response” and that “[t]here were no outstanding court orders allegedly violated by Bonnie Allen-Pieroni (now Thomas), and the potential lawsuit arising from Ms. Thomas' incarceration for two weeks, including solitary confinement, while the Johnson County Judge refused to set bail in violation of statutory and constitutional provisions, is irrelevant to this lawsuit, and will not be raised by Plaintiffs' counsel herein during any discovery in this case.” Id. at 8 n.18.
Plaintiffs' reply also addresses their request for “leave to take up to an additional five (5) more depositions,” which “may include, depending upon scheduling and time, Lisa Miller and Alfred Janicek, former Jailers in charge of overall jail conditions.” Id. at 9. Plaintiffs explain that “[n]o other specific persons have yet been identified for these depositions, because Plaintiffs' investigator is continuing to attempt to contact former employees of the jail and former cellmates of Ivan Allen, and has encountered great difficulties in locating them” and that “[t]hese will only be scheduled if genuinely necessary and if believed to be helpful to development of Plaintiffs' case.” Id. at 9-10. *7 Finally, Plaintiffs contend that they are entitled to production of the documents sought in the notices duce tecum where Defendants' objection that they “are being asked to produced documents upon less than thirty days' notice” “rings hollow because the prior notices served on June 20, June 28, July 25, and July 28, 2016 [ ] contained the same document production lists” and where, “on July 14, 2016, Plaintiffs served their Fifth Request for Production of Documents, calling for the same groups of documents as the notices duces tecum. Id. at 10. According to Plaintiffs, “[n]one of these notices have been withdrawn; instead, Plaintiffs' counsel has only stated that he will agree to new dates for the depositions.” Id. Plaintiffs therefore contend that “Defendants have already had more than thirty days to produce the documents in question, and have failed to do so.” Id. And Plaintiffs assert that “[t]he documents in question are absolutely necessary, because they will demonstrate the institutional inadequacies of procedures for medical care for inmates”; that, “during the course of depositions of former employees, Defendants' counsel has asked numerous questions purportedly based upon that person's personnel file”; and that, “[s]o that counsel for all parties may operate on equal ground, Plaintiffs' counsel must have access to these files to determine whether the attempted grounds for impeachment of witnesses is founded or unfounded.” Id. After carefully reviewing the parties' arguments and filings, the Court determines that Plaintiffs have shown the show the necessity of the depositions that they took in reaching the prescribed 10-deposition limit without leave of court and the necessity of taking the proposed depositions of (1) Kris Wusterhausen, D.O., (2) Johnson
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County, Texas, (3) Southwestern Correctional, LLC, (4) LaSalle Management, LLC, (5) Bob Alford, and (6) Vernon Farthing, M.D. Providing more detailed information for the first time in reply on the necessity of the depositions taken and to be taken is to be discouraged, but the Court determines that it appropriate to consider that information under the present circumstances. Under Rules 26(b)(1) and 26(b)(2), the Court determines that these six additional depositions are proportional to the needs of the case, considering the importance of the issues that Plaintiffs seek to address through the testimony sought through these deponents – four of which are named defendants and two of which are Defendants' retained or designated expert witnesses – and the importance of the testimony sought to resolving important issues in the case, particularly where these depositions are critical to Plaintiffs' preparation for trial in light of their lack of access to relevant information from these deponents without this testimony. And Defendants have not shown that any burden or expense of the proposed depositions outweighs their likely benefit.
and of any additional depositions of persons yet unknown and unidentified. Plaintiffs have not, as to their request for leave to take the deposition of Eddie Williams and up to an additional five more depositions, adequately established the necessity of these depositions in light of the Rule 26(b) (1) and Rule 26(b)(2) considerations, including the Rule 26(b)(1) proportionality factors.
This case highlights the importance of the parties' discussing early in the case the deposition testimony that each will seek and attempting to reach agreement on the number of depositions to be taken – or, failing that, at least an understanding of the depositions that each party will seek to take. But the Court does not find, on this record, that any alleged delay by Plaintiffs' counsel justifies denying Plaintiffs' request for leave.
Conclusion
At the same time, at this late stage of discovery, the Court determines that leave should not be granted under Rule 30(a)(2)(A) for taking the deposition of Eddie Williams End of Document
Finally, as to the duces tecum, Defendants seek a protective order only because they are given less than 30 days to respond. But Defendants have not shown that these document requests were served with less than 30 days to respond, as Plaintiffs have demonstrated that the document requests were previously served with deposition notices as well as, at least in part, Plaintiffs' timely-served Fifth Request for Production of Documents. Accordingly, the Court denies Defendants' request for a protective order as to – or quashal of – the duces tecum attached to the six deposition notices for which the Court is granting leave.
*8 For the reasons and to the extent explained above, the Court GRANTS in part and DENIES in part the Motion of Plaintiffs for Leave to Take Depositions [Dkt. No. 89]. SO ORDERED.
All Citations Slip Copy, 2016 WL 4439997
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Reprinted with permission of Thomson Reuters. Gonzalez v. Allied Concrete Industries, Inc., Slip Copy (2016)
2016 WL 4444789 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Trinidad Gonzalez, individually and on behalf of others similarly situated, Plaintiffs, v. Allied Concrete Industries, Inc., Allied Concrete Structures, Inc., Concrete Structures, Inc., Americo Magalhaes, and Manuel Magalhaes, Defendants. CV-14-4771 (JFB) (AKT) | Signed 08/23/2016 Attorneys and Law Firms Michael Taubenfeld, Serrins Fisher LLP, New York, NY, for Plaintiffs. Saul D. Zabell, Zabell & Associates, P.C., Bohemia, NY, for Defendants.
MEMORANDUM & ORDER A. KATHLEEN TOMLINSON, Magistrate Judge I. PRELIMINARY STATEMENT *1 Plaintiffs J. Trinidad Gonzalez, Miguel Diaz, Ruben Bernal Maqueda, Angel Bagui-Riofrio, Jose O. Canales, Fioro Albino, Raul Rios, Esteban Rios, Mario Estrada Falcon, Alexander Colon Toro, Sergio Dacosta-Rodrigues, Victor A. Lambur, Derrick Hoover and Ruben Rivera (collectively, the “Plaintiffs”) bring the instant action on behalf of themselves and all others similarly situated against Defendants Allied Concrete Industries, Inc., Allied Concrete Structures, Inc. Concrete Structures, Inc., Americo Magalhaes and Manuel Magalhaes (collectively, the “Defendants”) alleging violations of various provisions of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). Plaintiffs also assert a claim for breach of contract. See generally Fourth Amended Complaint (“Am. Compl.”) [DE 90]. 1 Presently before the Court is Defendants' letter motion seeking to compel Plaintiffs to produce: (1) Automated Teller Machine (“ATM”) receipts from 2008 through the present; and (2) cell
phone records from 2008 through the present. See DE 64. Plaintiffs oppose the motion. See DE 66. For the reasons that follow, Defendants' motion is DENIED.
II. BACKGROUND Plaintiffs all worked for Defendants as construction laborers during various periods of time within the six years prior to the filing of the original Complaint in this action. Am. Compl. ¶¶ 28-41; 45. Plaintiffs, despite working different schedules, see Am. Compl. ¶¶ 53-125, all allege that during their employment, they each worked in excess of forty hours per week but were not paid overtime compensation in accordance with the FLSA and the NYLL. Id. ¶¶ 127, 133. Typically, on weekdays, Plaintiffs began work between 5:00 a.m. and 7:00 a.m. and finished their shifts between 5:00 p.m. and 7:00 p.m. See Am. Compl. ¶¶ 53-125. For those Plaintiffs who worked for Defendants on Saturdays, their shifts typically began between 6:00 a.m. and 7:00 a.m. and ended at approximately 1:00 p.m. Id. In addition to their alleged failure to pay Plaintiffs overtime compensation, Defendants purportedly “failed to make, keep and preserve records with respect to each employee sufficient to determine their wages, hours and other conditions and practices of employment, in violation of FLSA[.]” Id. ¶ 128. Further, Plaintiffs assert that Defendants “failed to provide Plaintiffs with a wage notice or proper paystubs in compliance with [the FLSA and NYLL].” Id. ¶¶ 136-138. Following the May 9, 2016 filing of Plaintiffs' Fourth Amended Complaint, Defendants filed their Answer on June 9, 2016. See DE 90, 93. Subsequently, Defendants filed the instant motion seeking to compel the disclosure of Plaintiffs' ATM receipts and cell phone records for the period 2008 to the present. See DE 64.
III. LEGAL STANDARD *2 Rule 26(b)(1), as amended on December 1, 2015, recognizes that “[i]nformation is discoverable ... if it is relevant to any party's claim or defense and is proportional to the needs of the case.” Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley v. Choice Hotels Int'l, No. CV 14-634, 2015 WL 9413101, at *2 (E.D.N.Y. Dec. 22, 2015) (recognizing that “the current version of Rule 26 defines permissible discovery to consist of information that is, in addition to being relevant ‘to any party's claim or defense,’ also ‘proportional to the needs of the case.’ ”) (internal citation omitted); Denim Habit, LLC
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v. NJC Boston, LLC, No. 13 CV 6084, 2016 WL 2992124, at *3 (E.D.N.Y. May 23, 2016). Notably, although Rule 26 still permits a wide range of discovery based upon relevance and proportionality, the “provision authorizing the court ... to order discovery of any matter relevant to the subject matter involved in the action” has been eliminated. Rule 26 Advisory Committee Notes to 2015 Amendments; see Sibley, 2015 WL 9413101, at *2 (internal citation omitted). The rationale behind the elimination of this phrase is the finding that it “has been used by some, incorrectly, to define the scope of discovery.” Rule 26 Advisory Committee Notes to 2015 Amendments. Thus, Rule 26(b)(1), as amended, although not fundamentally different in scope from the previous version “constitute[s] a reemphasis on the importance of proportionality in discovery but not a substantive change in the law.” Vaigasi v. Solow Mgmt. Corp., No. 11 CIV 5088, 2016 WL 616386, at *13 (S.D.N.Y. Feb. 16, 2016); see Robertson v. People Magazine, No. 14 Civ. 6759, 2015 WL 9077111 at *2 (S.D.N.Y. Dec. 16, 2015) (“[T]he 2015 amendment [to Rule 26] does not create a new standard; rather it serves to exhort judges to exercise their preexisting control over discovery more exact-ingly.”). Notwithstanding the foregoing principles, however, “[t]he party seeking discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition.” Barbara v. MarineMax, Inc., No. 12 Civ. 368, 2013 WL 1952308, at *2 (E.D.N.Y. May 10, 2013) (citing Wells Fargo Bank, N.A. v. Konover, No. 05 Civ. 1924, 2009 WL 585430, at *5 (D. Conn. Mar. 4, 2009)); Evans v. Calise, No. 92 Civ. 8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12, 1994); Denim Habit, LLC, 2016 WL 2992124, at *3. In general, “[a] district court has broad latitude to determine the scope of discovery and to manage the discovery process.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012) (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008)); Barbara, 2013 WL 1952308, at *3 (“Courts afford broad discretion in magistrates' resolution of discovery disputes.”); Coggins v. Cnty. of Nassau, No. 07 Civ. 3624, 2014 WL 495646, at *2 (E.D.N.Y. Feb. 6, 2014) (A district court has “broad discretion to determine whether an order should be entered protecting a party from disclosure of information claimed to be privileged or confidential.”) (internal quotation omitted); see also Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23, 2016) (“[m]otions to compel are left to the court's sound discretion.”); Liberty Mut. Ins. Co. v. Kohler Co., No.
08-CV-867, 2010 WL 1930270, at *2 (E.D.N.Y. May 11, 2010) (“[A] motion to compel is entrusted to the sound discretion of the district court.”).
IV. DISCUSSION A. ATM Receipts Defendants assert that Plaintiffs' ATM transactions “are relevant and likely to lead to the discovery of admissible evidence because they can and will reveal each Plaintiff's whereabouts and activities during hours they claim to have been working.” DE 64 at 2. Defendants assert that they are not interested in “gain[ing] any financial information” but rather seek Plaintiffs' ATM receipts in order to glean “the date, time, and location of the transactions.” Id. In support of their request, Defendants cite the case of Caputi v. Topper Realty Corp., No. 14CV-2634, 2015 WL 893663, at *1 (E.D.N.Y. Feb. 25, 2015). In response, Plaintiffs assert that Defendants' request for Plaintiffs' ATM receipts is “overbroad, improper and not likely to lead to the discovery of admissible evidence.” DE 66 at 1. Specifically, Plaintiffs contend that Defendants are merely “speculat[ing] that Plaintiffs were not working when they claim to have been working and that the ATM receipts would prove that [fact].” Nevertheless, Plaintiffs claim that “Defendants' speculation is unsubstantiated ... [and therefore] amounts to a fishing expedition....” Id. at 2. In support of their position, Plaintiffs rely on Perry v. The Margolin & Weinreb Law Grp. LLP, No. 14-3511, 2015 WL 4094352, at *1 (E.D.N.Y. July 7, 2015), a decision rendered by this Court. *3 In Caputi, plaintiff was employed as an administrative assistant who alleged that she worked for defendants six days a week from 9:00 a.m. to 5:00 p.m. Caputi, 2015 WL 8893663, at *1. Plaintiff claimed that despite working more than 40 hours per week for defendants, she was not paid overtime. Id. In addition, plaintiff asserted that defendants “did not permit [plaintiff] an uninterrupted lunch break during the work day.” Id. (alteration in original). During discovery, defendants in Caputi sought to obtain plaintiff's credit card and debit card statements as well as her ATM receipts and cell phone records. Id. at *3-5. Defendants sought this information in order to “ascertain [plaintiff's] personal activities and physical whereabouts during the workday in order to support Defendants' defenses....” Id. at *2. The court granted
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defendants' motion with respect to the ATM receipts to the extent that plaintiff was ordered to produce “a sampling of records of her ATM transactions” for the period of time in question. Id. at *4. However, the court grounded its ruling in the evidentiary proffer submitted by counsel during oral argument on the motion. Specifically, the court stated that “[d]uring oral argument, counsel for Defendants indicated that they expect witnesses to testify that Plaintiff attended prolonged lunches with friends and coworkers during the workweek and withdrew cash from ATMs for that purpose. Defendants are entitled to documentary evidence that may corroborate such anticipated testimony, to the extent it exists.” Id. at *4. Defendants in the instant case have made no such proffer. By comparison, the Plaintiff in Perry was employed as a paralegal who allegedly worked 55 hours per week at defendants' brick-and-mortar office, and an additional 10 hours per week at home. Perry, 2015 WL 4094352, at *1. Despite her working in excess of 40 hours per week, plaintiff alleged that defendants only “paid plaintiff for her first thirty-five hours worked per [week]” and failed to pay her the “overtime rate of one and onehalf times her standard rate of pay” for the hours she worked in excess of 40 hours. Id. at *1. As such, plaintiff claimed defendants violated provisions of the FLSA and NYLL. Id. During discovery, defendants conducted plaintiff's deposition during which she was questioned “about a one-page, redacted statement from her checking account....” Id. Specifically, defendants questioned her about “four transactions represented on the statement which, according to their dates and times, purport to show that Plaintiff made purchases on her debit card during working hours.” Id. Defendants argued that plaintiff's testimony established that the records sought are “relevant and probative on the issue of the actual hours Plaintiff worked during her employment.” Id. at *2. In light of the checking account statement and plaintiff's testimony, defendants sought to obtain plaintiff's credit card and debit card statements as well as checking account transaction journals.” Id. After considering defendants arguments, this Court denied the request finding that under the circumstances presented here, Defendants' requests for nearly four years' worth of Plaintiffs' credit card, debit card, and checking account statements are overbroad and not reasonably calculated to lead to admissible evidence. Having reviewed the portion of the deposition transcript provided by the Defendants, the Court finds the “evidence” relied upon by Defendants
to make this motion to be de minimus. Moreover, although Defendants attempt to distinguish this case from Caputi, the Court finds that, as in Caputi, the potential relevance of Plaintiff's financial records “is outweighed by the intrusiveness of disclosing certain private information contained therein, including Plaintiff's personal spending habits.” Caputi, 2015 WL 893663, at *4. Perry, 2015 WL 4094352, at *3. Turning to the instant case, the Court is not persuaded by Defendants' assertion that discovery of Plaintiffs' ATM transaction receipts will lead to relevant evidence concerning Plaintiffs' “whereabouts and activities during the hours they claim to have been working.” DE 64 at 2. Although Defendants rely on Caputi in support of their position, such reliance is misplaced. In Caputi, the court permitted a sampling of Plaintiff's ATM transactions based exclusively on the evidentiary proffer submitted by counsel which illustrated a good faith basis for the court to conclude that the discovery would lead to relevant evidence. Specifically, the court took note that the witness testimony expected as argued by defendants would presumably establish that “Plaintiff attended prolonged lunches with friends and coworkers during the workweek and withdrew cash from ATMs for that purpose.” Id. at *4. Therefore, based on the factual proffer, the court found that “Defendants are entitled to documentary evidence that may corroborate such anticipated testimony, to the extent it exists.” Id. Unlike Caputi, Defendants here have not offered anything beyond speculation. Consequently, there is no justification for a wholesale fishing expedition in the hopes that six years of ATM receipts might prove to unearth some nugget of relevant information. Put another way, Defendants have failed to set forth a sufficient evidentiary nexus between the en masse discovery sought and a good faith basis to believe that such discovery material is both relevant and proportional to the needs of the case. See Perry, 2015 WL 4094352, at *3 (denying release of plaintiffs credit card, debit card and banking information since “Defendants' theory is simply too speculative to support the broad nature of the discovery [they] seek [ ]”) (internal citation omitted) (alternations in original); Caputi, 2015 WL 893663, at *4. Moreover, Defendants' unsupported assertion that this evidence will divulge Plaintiffs' “whereabouts and activities” during the purported hours they worked is simply too tenuous for the Court to sanction such a wholesale intrusion into
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Plaintiffs' personal affairs. See Perry, 2015 WL 4094352, at *3; Caputi, 2015 WL 893663, at *4. In addition, without having the benefit of any evidentiary proffer, the Court likewise finds that there is no basis to permit even a sampling of the ATM receipts. Accordingly, Defendants' motion seeking to compel production of Plaintiffs' ATM receipts is DENIED.
B. Cell Phone Records *4 Defendants also seek the release of Plaintiffs' cell phone records in order to “reveal whether Plaintiffs engaged in personal activities such as non-work related telephone calls, extended telephone calls, [and] frequent text messaging during times they claim to have worked on Defendant's behalf.” DE 64 at 2. According to Defendants, “[t]he cellphone records can also provide an approximation for Plaintiffs' locations based upon Plaintiffs' proximity to particular cell tower locations.” Id. In support of their position, Defendants' somewhat ironically rely on the case of Perry — the same case referenced by Plaintiffs in opposing Defendants' motion to compel the ATM receipts. In opposition, Plaintiffs state that “Defendants fail to provide any indication that Plaintiffs' cell phone records would show [that Plaintiffs' engaged in non-work related telephone calls, extended telephone calls or text messaging].” DE 66 at 2. Plaintiffs further assert that Defendants lack of providing such a basis “distinguishes this case from other cases in this District where Courts ordered the production of cell phone records.” Id. In addition, with respect to Defendants alternative theory that the records could establish Plaintiffs' location based on their proximity to a cell tower, see DE 64 at 2, Plaintiffs maintain that Defendants “do not explain how [they] would be able to triangulate Plaintiffs' location based on these records.” DE 66 at 2 n. 1. In Perry, this Court found plaintiff's cell phone records to be “marginally relevant” and ordered that she turn over a “sampling of her cell phone records covering ... the last three months Plaintiff alleges she worked from home.” Perry, 2015 WL 4094352, at *4. However, the Court based its decision on the fact that “during her deposition, [plaintiff testified that] she occasionally made personal phone calls at work” and that [t]o the extent these personal phone calls were made from an
office telephone, Defendants would already have access to those records. However, Plaintiff has asserted in this action that she worked up to 10 hours per week from her home while employed by Defendants. Plaintiff testified during her deposition that her at-home work often took place after hours and long into the night. Defendants are entitled to test the accuracy of these assertions, and to that extent, the Court finds that Plaintiff's cell phone records are marginally relevant. Id. Similarly, in Caputi, defendants sought plaintiff's cell phone records in order to “uncover patterns in Plaintiff's call history that belie her claims.” Caputi, 2015 WL 893663, at *4. Specifically, “Defendants expect such records to show that Plaintiff engaged in telephone calls with non-work related phone numbers on days and time that she claims to have worked for Defendants.” Id. Plaintiff objected noting that “although she probably made telephone calls during the workday, her ability to have done so will not demonstrate whether Defendants gave her an uninterrupted break....” Id. (internal quotations and citation omitted). Both of the above cases are distinguishable from the facts in the instant action. In Perry, this Court explicitly grounded its decision to permit the disclosure of a sampling of plaintiff's cell phone records on plaintiff's deposition testimony that she occasionally made telephone calls while at work. And even with that evidence, this Court was convinced that the information was only “marginally relevant.” Perry, 2015 WL 4094352, at *4. Likewise, in Caputi, plaintiff's allegations included her claim that “defendants did not permit [Plaintiff] an uninterrupted lunch break during the work day.” Caputi, 2015 WL 893663, at *1. Based upon the specific allegation at issue in Caputi, coupled with plaintiff's testimony that “she probably made telephone calls during the workday[,]” id. at *4, this Court permitted discovery of a sampling of Plaintiff's cell phone records. Id. Such is not the case here. Similar to their request for Plaintiffs' ATM receipts, Defendants merely speculate that in light of Plaintiffs' general allegations in their Amended Complaint, somehow their cell phone records for the
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past six years will lead to promising evidence. However, such an unsupported theory is entirely too speculative to warrant a wholesale intrusion into the private affairs of the Plaintiffs. See Perry, 2015 WL 4094352, at *3 (declining to order disclosure of debt card, credit card and bank statements where defendant's theory was “too speculative to support the broad nature of discovery” that was sought); Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1349 (M.D. Fla. 2014) (precluding defendant from obtaining financial records based upon theory that was “too speculative.”). Further, without a sufficient evidentiary proffer for support, the Court finds that the level of “marginal relevance” which existed in Perry which might otherwise support a sampling of the phone records is absent here. Accordingly, Defendants'
motion to compel production of Plaintiffs' cell phone records is DENIED.
V. CONCLUSION *5 Defendants' motion seeking to compel disclosure of Plaintiffs' ATM receipts and cell phone records is DENIED for the reasons set forth in this Memorandum and Order. SO ORDERED.
All Citations Slip Copy, 2016 WL 4444789
Footnotes
1
The Fourth Amended Complaint was filed on May 9, 2016 and thus was not the operative Complaint at the time Defendants filed their motion to compel, which itself was filed on September 2, 2015. All references in this Memorandum and Order are to the Fourth Amended Complaint (“Am. Compl.”).
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UBS Financial Services, Inc. v. Bounty Gain Enterprises, Inc., Slip Copy (2016)
2016 WL 4150871 Only the Westlaw citation is currently available. United States District Court, S.D. Florida. UBS Financial Services, Inc., Plaintiff, v. Bounty Gain Enterprises, Inc., Defendant. CASE NO. 14-81603-CV-MATTHEWMAN | Signed 08/04/2016 Attorneys and Law Firms Bennett Falk, Bressler Amery & Ross, Miramar, FL, Alex Joseph Sabo, II, Bressler Amery & Ross, Fort Lauderdale, FL, for Plaintiff. David Chad Silver, Silver Law Group, Coral Springs, FL, for Defendant.
ORDER GRANTING UBS FINANCIAL SERVICES, INC.'S MOTION FOR PROTECTIVE ORDER REGARDING PERSONS LOCATED IN HONG KONG AND INCORPORATED MEMORANDUM OF LAW [DE 115] WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE *1 THIS CAUSE is before the Court upon Plaintiff, UBS Financial Services, Inc.'s (“UBSFS”) Motion for Protective Order Regarding Persons Located in Hong Kong and Incorporated Memorandum of Law (“Motion”) [DE 115]. Defendant, Bounty Gain Enterprises, Inc. (“Bounty Gain”) filed a Response in Opposition [DE 117] and UBSFS filed a Reply [DE 118]. The matter is now ripe for review. The Court has reviewed the record and finds that a hearing is not necessary because the Motion can be decided based on the record. Further, the Motion is time-sensitive and needs to be decided promptly as the depositions are scheduled for tomorrow, August 5, 2016, and Monday, August 8, 2016.
I. PENDING CASE
Reprinted with permission of Thomson Reuters.
On December 24, 2014, UBSFS filed a Complaint for Declaratory Judgment and Injunctive Relief [DE 1] against Bounty Gain asserting that it is not required to submit to FINRA arbitration with Bounty Gain because Bounty Gain was never a customer of UBSFS. After an evidentiary hearing, a Preliminary Injunction was entered on November 19, 2015. See DE 59. A bench trial on the injunctive relief and declaratory judgment sought by UBSFS is scheduled for November 14, 2016. See DE 101. The parties are currently conducting discovery in the case.
A. UBSFS's Motion for Protective Order UBSFS filed this Motion for Protective Order [DE 115] requesting a protective order forbidding Bounty Gain from taking the scheduled depositions of Charles Chiu and Roger Lam, who are living in Hong Kong 1 , in New York and Florida, or in Hong Kong, as presently noticed. [DE 115, p. 5]. According to UBSFS, these depositions would impose undue burden and expense on UBSFS and Bounty Gain's efforts to take these depositions is being done to annoy, embarrass, and oppress UBSFS and the non-party witnesses. [DE 115, pp. 1-2]. UBSFS claims that in order to depose Chiu and Lam, Bounty Gain must comply with the requirements of Federal Rule of Civil Procedure 28(b). [DE 115, p. 2], UBSFS asserts that Bounty Gain has not cited any rule, statute, or decision approving the method of forcing Chiu and Lam to travel to the United States for depositions by simply serving a notice requiring their appearances. Id. According to UBSFS, Bounty Gain's counsel offered to travel to Hong Kong in order to take the depositions of Chiu and Lam, but UBSFS argues that this “does not address the issue of compliance with any local requirements for foreign parties to take evidence in Hong Kong.” Id. In light of the fact that a substantial portion of the communications in this case occurred via email, UBSFS contends that there is no “overarching need” to depose Chiu or Lam because Bounty Gain has the emails sent to and received by them. [DE 115, p. 3]. According to UBSFS, because Bounty Gain has Chiu and Lam's emails and because it would be a significant expenditure of time and resources to bring them to the United States, or even depose them in Hong Kong, deposing Chiu and Lam is disproportionate to the needs of this case. Id. UBSFS claims that deposing Chiu and Lam “will not reveal any new facts that would confer customer status upon Bounty Gain.” [DE 115, p. 4]. UBSFS alleges that
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Bounty Gain's real intent in taking these depositions is to obtain testimony related to the claims in arbitration and for improper use in the arbitration, which is not permitted. Id. UBSFS concludes that “[a]ny depositions of these gentlemen must take place in Hong Kong under rules and laws applicable there and within the restrictive parameters of the narrow issues before this Court.” [DE 115, p. 5].
B. Bounty Gain's Response *2 In its Response [DE 117], Bounty Gain asserts that Chiu and Lam have information critical to this case which Bounty Gain must question them about because of the vagueness in the documentary record and because of the “falsehoods” that were in certain declarations. [DE 117, pp. 1-2]. Bounty Gain claims that the Court may compel foreign witnesses to appear in the United States in order to be deposed, and asserts that “the witnesses are no strangers to the United States.” [DE 117, pp. 3-4]. According to Bounty Gain, the process for taking testimony in Hong Kong “carries no significant hurdles at all” and “voluntary depositions may be freely taken in Hong Kong.” [DE 117, p. 4], Bounty Gain contends that it would be unfair to permit UBSFS to rely on Lam's statements in his declarations but then prevent Bounty Gain from taking his deposition. [DE 117, p. 5]. Therefore, Bounty Gain asks this Court to deny the Motion and enter sanctions against UBSFS pursuant to Federal Rule of Civil Procedure 37(a)(5)(B). [DE 117, p. 7].
C. UBSFS's Reply UBSFS filed a Reply [DE 118] claiming that Bounty Gain has attempted to sidestep the issue of inappropriately noticing Chiu and Lam's depositions for taking place in the United States by setting forth irrelevant arguments. [DE 118, pp. 2-4]. UBSFS distinguishes the cases cited by Bounty Gain in its Response, which Bounty Gain asserts support its argument that Chiu and Lam may be compelled to travel to the United States for their depositions to be taken. [DE 118, pp. 5-6]. UBSFS clarifies that “if it is appropriate to depose Mr. Lam and Mr. Chiu, Bounty Gain must follow this Court's procedures, found in Fed.R.Civ.P. 28(b), and any applicable treaty or convention, as well as Hong Kong law.” [DE 118, p. 6]. According to UBSFS, it is not attempting to block the depositions of Chiu and Lam from going forward altogether. Id. UBSFS asserts that it simply is arguing that Bounty Gain must proceed under the Federal Rules of
Civil Procedure, the Hague Convention, and Hong Kong law if it wishes to depose Chiu and Lam. Id.
II. DISCUSSION Federal Rule of Civil Procedure 26(b) 2 —which governs the scope of discovery—provides, in pertinent part, that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case .... Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The Advisory Committee Notes to Rule 26 state that “[p]roportional discovery relevant to any party's claim or defense suffices.” Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment. Under Rule 26(c)(1), “[a] party or any person from whom discovery is sought may move for a protective order ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The party seeking a protective order must demonstrate “ ‘good cause’ for the protection sought.” Wrangen v. Pennsylvania Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1277 (S.D. Fla. 2008). “ ‘Good cause’ has been defined as a ‘sound basis or legitimate need to take judicial action.’ ” Id. (quoting In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)). This Court finds that UBSFS has shown good cause to prevent the scheduled depositions of Charles Chiu and Roger Lam from going forward, as noticed, for multiple reasons. First, Chiu and Lam, who reside in Hong Kong, are not parties to this action. According to UBSFS, Chiu and Lam live and work in Hong Kong. Second, although once employees for UBSFS, Chiu and Lam no longer work for UBSFS. UBSFS contends that Chiu and Lam both now work for UBS AG Hong Kong, a separate entity. Third, there is no indication that Chiu or Lam regularly travel to the United States for work or for any other reason. It would be a tremendous expenditure of time and resources to require Chiu and Lam to travel to the United States to give their depositions. Fourth, Bounty Gain has failed to comply with Federal Rule of Civil Procedure 28(b) in noticing the deposition. Rule 28(b) outlines the procedure for taking a deposition in a foreign country. It provides that a deposition may be taken in a foreign country: “(A) under an applicable treaty
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or convention; (B) under a letter of request, whether or not captioned a ‘letter rogatory;’ (C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony.” Fed. R. Civ. P. 28(b). Merely issuing a notice is not enough to require Chiu and Lam's appearances in the United States for depositions, especially when the deponents are not parties to this lawsuit or employees of UBSFS. Bounty Gain will need to comply with the Federal Rules of Civil Procedure and applicable Hong Kong law to depose Chiu and Lam. *3 Bounty Gain claims that this case is analogous to Partecipazioni Bulgari, S.p.A. v. Meige, No. 86-2516-CIVRYSKAMP, 1988 WL 113346 (S.D. Fla. May 23, 1988), where the court denied a motion for protective order and required a witness in Greece to travel to Florida to be deposed. However, that case is distinguishable from the instant one for various reasons. First, the individual who was being deposed in Meige was a party to the case. Second, the plaintiffs offered to pay the reasonable travel expenses of the witness to travel to the United States from Greece so she could have her deposition taken. Third, “Greek law would not compel a Greek national who is a defendant in a litigation in another jurisdiction to testify —whether by written question or by oral examination—in Greece for purposes of ‘pre-trial discovery’ in that case.” Id. at *2. The court in Meige noted that “in the absence of exceptional or unusual circumstances, when a deponent resides at a substantial distance from the deposing party's residence, the deposing party should be required to take the deposition at a location in the vicinity in which the deponent resides, even if the deponent is a party.” Id. at *1. Further, the court stated that “the court may consider the convenience of all parties in the general interest of judicial economy when determining the proper place for deposition.” Id. The instant case does not present an exceptional or unusual circumstance. Chiu and Lam are not parties to this action. Bounty Gain has not, as far as the Court is aware, offered to pay the reasonable expenses of Chiu and Lam to travel to the United States to give their depositions. Hong Kong law provides a procedure for residents of Hong Kong to give testimony in a foreign
case. See DE 118-4. Therefore, this case is not analogous to Meige. In entering this Order, the Court has carefully considered the proportionality to the needs of this case, the importance of the issues at stake in this action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit, pursuant to Rule 26(b)(1). The Court does not mean to conclude that the depositions of Chiu and Lam may not go forward at all. Rather, the Court is only entering a protective order as to how the depositions are currently noticed.
III. CONCLUSION For the foregoing reasons, it is hereby ORDERED as follows: 1. UBSFS's Motion for Protective Order Regarding Persons Located in Hong Kong and Incorporated Memorandum of Law [DE 115] is GRANTED. 2. The depositions of Roger Lam and Charles Chiu shall not go forward as presently noticed and any notices issued as to those proposed deponents are hereby QUASHED. If Bounty Gain wishes to take the depositions of Mr. Lam and Mr. Chiu, it shall do so according to the Federal Rules of Civil Procedure and any other applicable law. 3. The Court denies any request to impose sanctions pursuant to Federal Rule of Civil Procedure 37(a)(5) (B) because UBSFS's Motion is granted, and UBSFS was substantially justified in filing the Motion. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 4 th day of August, 2016.
All Citations Slip Copy, 2016 WL 4150871
Footnotes
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1 2
According to UBSFS, Chiu and Lam live and work in Hong Kong, are no longer working for UBSFS, and are not parties to this action. [DE 115, p. 2]. Federal Rule of Civil Procedure 26 was amended as of December 1, 2015.
End of Document
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A.M. v. American School for the Deaf, Slip Copy (2016)
Reprinted with permission of Thomson Reuters.
2016 WL 1117363
2016 WL 1117363 Only the Westlaw citation is currently available. United States District Court, D. Connecticut. A.M., a minor, by his parents and natural guardians, Audley Muschette and Judith Muschette v. American School for the Deaf; Town of West Hartford; Paul W. Gionfriddo, in his individual and official capacities; Chris Hammond, in his individual and official capacities; Elwin Espinosa, in his individual and official capacities; and Christopher Lyth, Lyth, in his individual and official capacities 3:13 CV 1337 (WWE) | Signed March 22, 2016 Attorneys and Law Firms Eric Mark Baum, Andrew Rozynski, Eisenberg & Baum, LLP, New York, NY, for A.M., a minor, by his parents and natural guardians, Audley Muschette and Judith Muschette. Kateryna Lagun, Scott M. Karsten, Karsten & Tallberg LLC, Rocky Hill, CT, Patrick G. Alair, Corporation Counsel's Office, West Hartford, CT, David G. Hill, Mark T. Altermatt, David G. Hill & Associates, LLC, Glastonbury, CT, for American School for the Deaf; Town of West Hartford; Paul W. Gionfriddo, in his individual and official capacities; Chris Hammond, in his individual and official capacities; Elwin Espinosa, in his individual and official capacities; and Christopher Lyth, Lyth, in his individual and official capacities.
RULING ON PLAINTIFF'S MOTION TO COMPEL (Dkt. #86) AND ON DEFENDANTS' MOTION FOR PROTECTIVE ORDER (Dkt. #89) Joan Glazer Margolis, United States Magistrate Judge *1 On September 11, 2013, plaintiff, A.M., a minor who is hearing impaired, commenced this action by his parents and natural guardians, Audley and Judith Muschette (Dkt. #1), which was later superseded by an Amended Complaint, filed April 22, 2015 (Dkt. #77),
in which plaintiff asserts claims of excessive force and municipal liability pursuant to 42 U.S.C. § 1983, violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. and of the Rehabilitation Act, 29 U.S.C. § 701, and state law claims of negligence, negligent infliction of emotional distress, battery, assault, and intentional infliction of emotional distress, arising out of encounters with defendants Elwin Espinosa (see Dkts. ##1, 51, 53) and Chris Hammond, staff members at defendant American School for the Deaf [“ASD”], and with defendant Town of West Hartford and its defendant police officers, Paul W. Gionfriddo and Christopher Lyth [collectively “the West Hartford Defendants”]. (Dkt. #77; see also Dkts. ##68, 76). On July 1, 2015, the West Hartford Defendants filed their Answer and Affirmative Defenses (Dkt. #82), and on September 30, 2015, defendant ASD filed its Answer and Affirmative Defenses. (Dkt. #85). On November 12, 2015, plaintiff filed the pending Motion to Compel, with brief, affidavits, and exhibits in support (Dkt. #86), 1 in response to which the West Hartford Defendants filed a brief in opposition and Motion for Protective Order on December 9, 2015. (Dkt. #89). On December 22, 2015, plaintiff filed a reply brief (Dkt. #90), and on January 20, 2016, Senior U.S. District Judge Warren W. Eginton referred the pending motions to this Magistrate Judge. (Dkt. #91). Under the current Scheduling Order, discovery is to be completed by April 1, 2016 and dispositive motions are to be filed by May 1, 2016. (Dkt. #79). 2 *2 For the reasons stated below, plaintiff's Motion to Compel (Dkt. #86) is granted in part and denied in part, and defendants' Motion for Protective Order (Dkt. #89) is granted in part and denied in part.
I. DISCUSSION A. MOTION TO COMPEL STANDARD The amendments to Rule 26(b)(1) of the Federal Rules of Civil Procedure allow discovery of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at
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stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. FED. R. CIV. P. 26(b)(1). 3 “The burden of demonstrating relevance remains on the party seeking discovery, and the newly-revised rule ‘does not place on the party seeking discovery the burden of addressing all proportionality considerations.’ ” State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14 Civ. 9792 (WHP) (JCF), 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015), quoting FED. R. CIV. P. 26(b)(1) advisory committee notes to 2015 amendment. Conversely, the “party resisting discovery has the burden of showing undue burden or expense.” Id. (additional citations omitted). “[T]o fall within the scope of permissible discovery, information must be ‘relevant to any party's claim or defense.’ In order to be ‘relevant’ for Civil Rule 26 discovery purposes, information and evidentiary material must be ‘relevant’ as defined in Rule of Evidence 401.” Bagley v. Yale Univ., No. 13 CV 1890 (CSH), 2015 WL 8750901, at *8 (D. Conn. Dec. 14, 2015); see FED. R. CIV. P. 26(b)(1), advisory committee notes to the 2015 amendments. Federal Rule of Evidence 401 defines “relevant evidence” as evidence having “any tendency to make a fact more or less probable than it would be without the evidence [,] and ... the fact is of consequence in determining the action.” Discovery, however, “is concerned with ‘relevant information’—not ‘relevant evidence’—and that as a result the scope of relevance for discovery purposes is necessarily broader than trial relevance.'' Steven S. Gensler, 1 FEDERAL RULES OF CIVIL PROCEDURE, RULES AND COMMENTARY RULE 26, V. DEPOSITIONS AND DISCOVERY (February 2016 Update)(footnotes omitted), citing, inter alia, Breon v. Coca-Cola Bottling Co. of New England, 232 F.R.D. 49, 52 (D. Conn. 2005). As amended, Rule 26(b)(1) explicitly provides: “[i]nformation within [the] scope of discovery need not be admissible in evidence to be discoverable.”
B. INTERSECTION BETWEEN PLAINTIFF'S CLAIMS AGAINST THESE DEFENDANTS AND TITLE II OF THE ADA *3 Plaintiff's claims in the Amended Complaint relate to an incident on April 30, 2013 involving the West Hartford Defendants (Dkt. #77, ¶¶ 28-50), an incident in March 2013 involving defendant Espinoza (id., ¶¶ 19-27), an incident on June 21, 2013 in which plaintiff generally alleges that “police” were contacted (id., ¶¶ 55-62), and continuing incidents with the staff of ASD (id., ¶¶ 63-82), in which plaintiff alleges that “police officers from the Town of West Hartford respond to such calls from ASD staff on a regular and ongoing basis.” (Id., ¶ 78). Plaintiff contends that how defendants “handled interacting and communicating with [p]laintiff [A.M.] is entirely relevant to whether [p]laintiff was denied the services, programs, or activities of the police department or was subjected to discrimination by the [d]efendants, as is evidence of whether [d]efendants had information regarding [p]laintiff's disability and need for an interpreter, including whether an interpreter was requested.” (Dkt. #90, at 7). As plaintiff argues, the information he seeks is relevant to his claims, and “would likely have been provided or acquired during any potential contact the police had with [A.M.] as well as any contact the police has with ASD regarding [A.M.]” (id.), as Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Defendants largely object to the outstanding interrogatory requests on relevance grounds, as there is no allegation of wrongdoing against the West Hartford Defendants in connection with the June 21, 2013 incident, and according to these defendants, they “relied entirely upon ASD professional staff to provide sign language communication with [A.M.][,]” and there was “no legal authority in 2013 that precluded the Town and its officers from so relying on the trained ASD staff to interpret and communicate for [A.M.] especially under the circumstances of this case[.]” (Dkt. #89, at 5-7; see also id. at 8-15). Additionally, defendants object to the disputed production requests on grounds that plaintiff's requests seek information that is not relevant to any claim, defense or issue actually in the case asserted against these
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defendants, and defendants reiterate that the defendant officers had no reason “not to rely on ASD staff to provide necessary interpreter services” for the April 30, 2013 incident. (Id. at 18; see also id. at 15-24). 4 The case law on the applicability of Title II to cases such as this “is currently a subject of debate among the other Circuits.” Ryan v. Vermont State Police, 667 F. Supp. 2d 378, 386 (D. Vt. 2009), citing Bircoll v. MiamiDade Cty., 480 F.3d 1072, 1084 (11th Cir. 2007); see, e.g., Seremeth v. Bd. of Cty. Comm'rs of Frederick Cty., 673 F.3d 333, 338-41 (4th Cir. 2012) (employing caseby-case approach to determine whether compliance with ADA is required during police interactions); Hainze v. Richards, 207 F.3d 795, 801 (5th Cir.) (holding that “[t]o require ... officers to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances ... would pose an unnecessary risk to innocents[ ]”), 5 cert. denied, 531 U.S. 959 (2000); Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999)(recognizing that arrestees may be able to assert an ADA claim based on police conduct during an arrest, but leaving the question open). In 2015, the U.S. Supreme Court granted certiorari on a question relevant to the issues in this case, namely, whether the foregoing provision “requires law enforcement officers to provide reasonable accommodations to a [ ] ... violent, and mentally ill suspect in the course of bringing the suspect into custody.” City & Cty. of San Francisco, California v. Sheehan [“Sheehan”], 135 S. Ct. 1765, 1772 (2015). However, once certiorari was granted, all parties “argue[d] (or at least accept[ed] that § 12132 applies to arrests[,]” so, “[a]s a result, [the Supreme Court did] not think that it would be prudent to decide the question in [that] case.” Id. at 1773. *4 Two months later, U.S. District Judge Valerie Caproni of the Southern District of New York, relying on a ruling issued by this Magistrate Judge in 2013, appropriately noted that “[t]he Second Circuit has yet to address the question whether and to what extent Title II of the ADA applied during an on-the-street interaction leading to an arrest.” Williams v. City of New York, 121 F. Supp. 3d 354, 365, n.12 (S.D.N.Y. 2015), citing Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 273 (D. Conn. 2013). As the foregoing illustrates, this “issue, therefore, remains undecided.” Williams, 121 F. Supp. 3d at 365, n.12.
Accordingly, plaintiff's discovery requests on the issue of accommodation are not irrelevant per se, but must also comport with the proportionality and relevance requirements set forth in Rule 26(b)(1). At the discovery stage, it is not for the Court to decide whether plaintiff's cause of action exists as it relates to the incident of June 2013, or even if it exists as it relates to plaintiff's general allegations regarding the West Hartford Defendants. Rather, to be discoverable, the information plaintiff seeks need only be “nonprivileged matter that is relevant to ... [his] claim[s] ... and proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1). With this backdrop in mind, the Court will now address the discovery requests that are the subject of the pending motion.
C. INTERROGATORIES NOS. 4, 10, 12, 13, 18, and 19-22 1. INTERROGATORIES NOS. 4 & 13 In Interrogatory No. 4, plaintiff seeks information regarding whether ASD staff requested an American Sign Language interpreter from the Town of West Hartford when they contacted police from 2010 to present, including on April 30, 2013 and June 21, 2013, the dates on which the interpreter was requested, the name of the person making the request, to whom the request was made, the response of defendants, and whether an interpreter was provided. (Dkt. #86, Brief at 6 6 & Exh. A, Interr. at 5). Similarly, in Interrogatory No. 13, plaintiff seeks “each and every date ASD contacted [d]efendants to have the police come to the school regarding plaintiff, A.M.,” the name of the person who contacted the police, the responding officers, the actions taken by the officers, whether any charges were filed against plaintiff, and the disposition thereof, if any. (Dkt. #86, Brief at 8 & Exh. A, Interr. at 7). In response to Interrogatory No. 4, defendants argue that it is clear from the record in this case that they “relied entirely upon ASD professional staff to provide sign language communication” with plaintiff during the April incident, and “there are no allegations in the Amended Complaint that [West Hartford police] officers engaged in any misconduct whatsoever, let alone any constitutional or federal statutory violations on June 21, 2013, or on any other occasion.” (Dkt. #89, at 6-8). In response to Interrogatory No. 13, defendants reiterate that there
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is the one incident alleged in the complaint relating to misconduct, and to the extent that this request seeks this breadth of information, such request is overly broad, cumulative, oppressive, unduly burdensome, harassing, and not proportional. (Id. at 9-11). Defendants are correct that plaintiff does not allege any misconduct by the West Hartford Defendants other than during the April 2013 incident. On or before April 8, 2016, the West Hartford Defendants shall respond to plaintiff's Interrogatories Nos. 4 and 13 only as they relate to the April 30, 2013 incident.
2. INTERROGATORIES NOS. 10 & 12 *5 In these interrogatories, plaintiff seeks information regarding whether the defendant officers provided A.M. with accommodations during the June 21, 2013 encounter, and their reasons for not providing interpreters or any other form of communication during that encounter. (Dkt. #86, Brief at 7 & Exh. A, Interr. at 6, 7). Plaintiff alleges in the Amended Complaint that on that date, ASD “contacted police falsely claiming that A.M. was trying to kill himself by wrapping wires around his neck as well as stabbing himself with a pen and scissors.” (Dkt. #77, at ¶ 57). According to plaintiff, discovery has shown that officers were sent to ASD, and defendant Officer Lyth was one of the officers who responded. (Dkt. #86, Brief at 8; see id., Exh. N). However, plaintiff does not allege any involvement of this defendant, or of any of the other West Hartford Defendants, in his Amended Complaint, nor does he allege a constitutional or federal statutory violation by any of the West Hartford Defendants arising out of the June 21, 2013 incident, which is directed primarily toward defendant ASD. (Dkt. #77, at ¶¶ 55-62). Accordingly, plaintiff's Interrogatories Nos. 10 and 12 are irrelevant.
3. INTERROGATORY NO. 18 In this Interrogatory, plaintiff seeks a “response as to whether [defendants] contacted any interpreting agency in an effort to accommodate plaintiff's disability and to ensure effective communication[.]” (Dkt. #86, Brief at 9 & Ex h. A, Interr. at 8). On or before April 8, 2016, the West Hartford Defendants shall respond only with respect to the April 2013 incident.
4. INTERROGATORIES NOS. 19-22 In these interrogatories, plaintiff seeks information regarding the West Hartford Defendants' policies and protocols for dealing with deaf and hard of hearing individuals, the training they provide to staff on how to deal with deaf and hard of hearing individuals, lists of interpreters to call, the qualifications of those interpreters, how those qualifications are determined, and whether they utilized interpreters and/or accommodations lists when called to a scene at ASD involving A.M. or any other student. (Dkt. #86, Brief at 10 & Exh. A, Interr. at 9). In response, defendants have produced a copy of West Hartford Police Department's policy on emotionally disturbed persons, the “relevant portion” of “the State of Connecticut document[,]” and the complete training records for the defendant officers. (Dkt. #89, at 13). To the extent the West Hartford Defendants have not produced all documents responsive to these interrogatories as they relate to deaf and hard of hearing individuals, to interpreters, and to the qualifications of the interpreters, and as they relate to accommodations when called to a scene involving A.M., 7 the West Hartford Defendants shall do so on or before April 8, 2016.
D. PRODUCTION REQUEST NOS. 3-8, 13, 16, 66, 71, 74, 78-80, 91-92, 95 & 97 For the reasons explained in Section I.B. supra, and consistent with this Court's ruling in Section I.C. supra, the West Hartford Defendants shall respond to Request for Production Nos. 3, 4, 5, and 13, as they relate to the April 30, 2013 interaction alleged in the Amended Complaint (Dkt. #86, Ex h. A., Requests for Prod. at 18-19), and defendants shall respond to Requests for Production Nos. 6, 8, 16, and 66. (Id. at 18-20, 26). Such documents shall be produced on or before April 8, 2016. Plaintiff's Motion is denied as moot as to Requests Nos. 7, 78-79 and 92 in light of defendants' compliance. (Dkt. #89, at 18, 22-23). Plaintiff's Motion is denied as to Request No. 71 (see Dkt. #86, Exh. A, Requests for Prod. at 26), as plaintiff may request A.M.'s juvenile file. Plaintiff's Motion is denied as to Request No. 74 as “any and all policies that were in effect at that time” A.M. was
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in the “care of [d]efendants [ ]” (id. at 27) is, in defendants' words, “patently not ‘proportional to the needs of this case.’ ” (Dkt. #89, at 21). *6 Plaintiff's Motion is denied as to Requests Nos. 80, 91, 95 and 97 (see Dkt. #86, Exh. A, Requests for Prod. at 27, 29), as these requests do not relate to the claims in plaintiff's Amended Complaint.
is denied as to Requests for Production Nos. 71, 74, 80, 91, 95 and 97. Defendants' Motion for Protective Order (Dkt. #89) is granted in part and denied in part consistent with this ruling. All responses and production shall be completed on or before April 8, 2016. 8
II. CONCLUSION For the reasons stated above, plaintiff's Motion to Compel (Dkt. #86) is granted in part and denied in part as follows: is granted in part as to Interrogatories Nos. 4, 13 and 18, as they relate only to the April 30, 2013 incident; is denied as to Interrogatories Nos. 10 and 12;
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a) & 72; and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless reversed or modified by the District Judge upon timely made objection.
is granted as to Requests for Production Nos. 6, 8, 16 and 66;
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within fourteen calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of the Local Rules for United Stat es Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure to file timely objection to Magistrate Judge's recommended ruling may preclude further appeal to
is granted in part as to Requests for Production Nos. 3, 4, 5, and 13, limited to the April 30, 2013 interaction alleged in the Amended Complaint;
All Citations
is granted in part as to Interrogatories Nos. 19-22 as they relate to deaf and hard of hearing individuals, interpreters, and qualifications, and as they relate to accommodations when called to a scene involving A.M.;
is denied as moot as to Requests for Production Nos. 7, 78-79 and 92 in light of defendants' compliance; and
Second Circuit). 9
Slip Copy, 2016 WL 1117363
Footnotes
1
Attached to plaintiff's brief in support (Dkt. #86) are the following fourteen exhibits: copy of Plaintiff's Initial Requests for Interrogatories Directed to the Town of West Hartford, Officer Paul W. Gionfriddo, & Officer Christopher Lyth, dated April 14, 2014 [“Interr.”], and copy of Plaintiff's Initial Requests for Documents Directed to [the] Town of West Hartford, Officer Paul Gionfriddo, & Officer Christopher Lyth, dated April 14, 2014 [“Requests for Prod.”](Exh. A); copy of Defendants The Town of West Hartford, Officer Paul Gionfriddo and Officer Christopher Lyth's Objections and Responses to Plaintiff's Interrogatories, dated June 14, 2014, and copy of Defendants The Town of West Hartford, Officer Paul Gionfriddo and Christopher Lyth's Objections and Responses to Plaintiff's Requests for Production, dated June 16, 2014 (Exh. B); copies of correspondence between counsel, dated January 20, February 11, March 2, 11, and 25, May 7, and September 11, 2015 (Exhs. C-E, G-I, L); copies of email correspondence between counsel, dated March 9, September 11, and October 5 and 26, 2015 (Exhs. F, M); copy of Plaintiff's First Set of Requests for Admissions, Second Set [of] Requests for Interrogatories and Document Requests to Town of West Hartford, Officer Paul W. Gionfriddo, & Officer Christopher Lyth, dated May 7, 2015 (Exh. J); copy of Defendants The Town of West Hartford, Officer Paul Gionfriddo and Officer Christopher Lyth's Objections and Responses to Plaintiff's First Set of Requests for Admissions, and Second Set of
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2 3
4 5 6 7
8 9
Interrogatories and Document Requests, dated July 7, 2015 (Exh. K); and excerpts from the deposition transcript of Officer Christopher Lyth (Exh. N). See note 8 infra. “The 2015 amendments to the Federal Rules of Civil Procedure ‘govern in all proceedings in civil cases' commenced after December 1, 2015, and, ‘insofar as just and practicable, all proceedings [ ] pending’ on that date.” State Farm Mut. Auto. Ins. Co. v. Fayda, No. 14 Civ. 9792 (WHP)(JCF), 2015 WL 7871037, at *2 (S.D.N.Y. Dec. 3, 2015)(footnote omitted), quoting Order re: Amendments to the Federal Rules of Civil Procedure (April 29, 2015). In his reply brief, plaintiff asserts that the “standard in effect at the time the papers were filed should remain controlling,” but that “if the Court sees fit to apply the amended version of Rule 26, ... the analysis may have changed slightly, ... [but] the results remain the same.” (Dkt. #90, at 3, n.1 & 4). Defendants inform the Court that they have complied with Request Nos. 7, 78, 79 and 92. (Dkt. #89, at 18, 22-23). The Fifth Circuit also held that “[w]hile the purpose of the ADA is to prevent the discrimination of disabled individuals, we do not think Congress intended that the fulfillment of that objective be attained at the expense of the safety of the general public.” Id. The page numbers refer to the number at the bottom of plaintiff's brief, not to the numbers assigned by CM/ECF. In his brief, plaintiff relays that these interrogatories seek protocols relating to deaf and hard of hearing individuals, but the underlying Interrogatory No. 19 also seeks such protocols relating to the “disabled in general[.]”(Dkt. #86, Exh. A at 9). To the extent defendants have not already provided the requested protocols or policies (see Dkt. #89, at 13), defendants shall provide those that relate to deaf and hard of hearing individuals only. In light of this deadline, the date for completion of discovery is postponed until May 2, 2016, and the date for filing dispositive motions is postponed until June 3, 2016. If any counsel believes that a settlement conference would be productive, he or she may contact this Magistrate Judge's Chambers accordingly.
End of Document
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Krantz v. State Farm Fire and Casualty Company, Slip Copy (2016)
Reprinted with permission of Thomson Reuters.
2016 WL 320148
2016 WL 320148 Only the Westlaw citation is currently available. United States District Court, M.D. Louisiana. Stanley Krantz v. State Farm Fire and Casualty Company CIVIL ACTION NO. 15-56-JJB-RLB | Signed 01/25/2016 Attorneys and Law Firms Joseph F. Lahatte, III, Lahatte Law Firm, LLC, Metairie, LA, for Stanley Krantz. Henry Gerard Terhoeve, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for State Farm Fire and Casualty Company.
ORDER RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE *1 Before the court is Stanley Krantz's (“Plaintiff” or “Mr. Krantz”) Motion to Compel, which seeks an order compelling the Rule 30(b)(6) deposition of State Farm Fire and Casualty Company (“Defendant” or “State Farm”) and the deposition of Cindy Ellender, a non-party State Farm representative (R. Doc. 30). The motion is opposed. (R. Doc. 34). Mr. Krantz has filed a Reply. (R. Doc. 45). Also before the court is State Farm's Motion for Protective Order, which seeks an order limiting the noticed topics for its Rule 30(b)(6) deposition. (R. Doc. 33). The motion is opposed. (R. Doc. 45). State Farm has filed a Reply. (R. Doc. 44). As the foregoing motions are interrelated, the court considers them together.
I. Background Mr. Krantz's house sustained damages from a fire on September 19, 2014. After Mr. Krantz submitted a claim
on his State Farm homeowner's insurance policy, he received a letter from State Farm stating the following: “The estimate to repair or replace your damaged property is $112,522.08. The enclosed payment to you of $68,143.64 is for the actual cash value of the damaged property at the time of the loss, less any deductible that may apply.” (R. Doc. 21-2). The letter did not enclose the referenced payment. State Farm has not subsequently made a payment on Mr. Krantz's claim. Instead, State Farm has taken the position that the fire was intentionally started by Mr. Krantz and no payment is due under the policy. On January 26, 2015, Mr. Krantz filed this action in state court seeking to recover contractual and bad faith damages from State Farm. (R. Doc. 1-3, “Petition”). State Farm removed the action on February 5, 2015 on the basis that the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. (R. Doc. 1). On June 16, 2015, Plaintiff's counsel requested dates for a Rule 30(b)(6) deposition of State Farm and for the deposition of Ms. Ellender. (R. Doc. 30-3). Plaintiff's counsel requested a response within ten days and for defense counsel's office to coordinate deposition dates with his paralegal. Plaintiff's counsel served a Notice for the Rule 30(b)(6) deposition of State Farm, which includes 36 topics of inquiry. (R. Doc. 30-6). On June 25, 2015, defense counsel requested Plaintiff's counsel to contact his paralegal to select a date for Ms. Ellender's deposition. (R. Doc. 33-2). In the same communication, defense counsel objected to the topics of the noticed Rule 30(b)(6) deposition as overly broad, vague, and irrelevant. Defense counsel requested Plaintiff's counsel to provide a modified notice and to hold a discovery conference to discuss the Rule 30(b)(6) deposition. On July 8, 2015, counsel for the parties held the requested discovery conference. (R. Doc. 33-5 at 1). On July 15, 2015, defense counsel confirmed that at the discovery conference, Plaintiff's counsel agreed to withhold the request for the Rule 30(b)(6) deposition until after the deposition of Ms. Ellender was taken, so that Plaintiff' counsel could then determine whether the Rule 30(b)(6) deposition was still needed. (R. Doc. 33-3).
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*2 On October 28, 2015, Plaintiff's counsel again requested dates for the depositions of State Farm and Ms. Ellender. (R. Doc. 30-4). Noting defense counsel's objections to the topics of the Rule 30(b)(6) deposition, Plaintiff's counsel stated that he felt the topics are indeed relevant and resubmitted the same notice for the deposition. Plaintiff's counsel further provided that if Ms. Ellender can address all of the topics in the noticed Rule 30(b)(6) deposition, then both depositions could be taken simultaneously. On November 4, 2015, defense counsel again requested Plaintiff's counsel to contact his paralegal to select a date for Ms. Ellender's deposition. (R. Doc. 33-4). Defense counsel also provided that he intended to file a motion for protective order with regard to the Rule 30(b)(6) deposition of State Farm. On November 11, 2015 Plaintiff's counsel informed defense counsel that his paralegal attempted to schedule the depositions, but was told that defense counsel had no availability until January. (R. Doc. 30-5). Noting the approaching fact discovery deadline of January 21, 2016, Plaintiff's counsel requested that some other attorney from defense counsel's office participate in the depositions. Plaintiff's counsel stated that if he did not receive a response he would file a motion to compel the depositions. On November 18, 2015, Mr. Krantz filed his Motion to Compel (R. Doc. 30), in support of which Plaintiff's counsel certifies he has made good faith efforts to resolve the discovery dispute and has been attempting to schedule the depositions of State Farm and Ms. Ellender since June of 2015 (R. Doc. 30-7). Mr. Krantz seeks an order compelling the depositions of State Farm and Ms. Ellender on the following dates that Plaintiff's counsel is available prior to the fact discovery deadline: December 7-11, 13, 29-30 and January 4-6, 8, and 11. (R. Doc. 30-1 at 4-5). Mr. Krantz further seeks to recover reasonable attorney's fees and costs. (R. Doc. 30-2). On November 20, 2015, State Farm filed its Motion for Protective Order (R. Doc. 33), in support of which defense counsel certifies the June 8, 2015 discovery conference between the parties constitutes the necessary conference required prior to the filing of the motion. (R. Doc. 33-5). State Farm seeks an order limiting all topics of the noticed Rule 30(b)(6) deposition to “information from the time
period of September 19, 2014 to present, pertaining to State Farm's activity in Louisiana, and pertaining to first party fire claims”; striking or further limiting Topics 2-4, 7, 9-17, 19-22, and 33; and awarding attorney's fees in the amount of $2,500. (R. Doc. 33-7; see R. Doc. 6 at 3-15)
II. Law and Analysis A. The Noticed Deposition of Cindy Ellender Counsel for the parties have represented to the court that since the filing of their respective motions the deposition of Cindy Ellender has taken place. Accordingly, the court need not compel the deposition of Ms. Ellender.
B. The Noticed Rule 30(b)(6) Deposition of State Farm “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). 1 The court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b) (2)(C). *3 “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
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Rule 30(b)(6) governs deposition notices directed to organizations. In the deposition notice, the party “must describe with reasonable particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6). In response, the organization must designate an agent or other person to testify on its behalf “about information known or reasonably available to the organization.” Id. “The duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006). The court may limit a Rule 30(b)(6) deposition notice to the extent it requests the organization to designate an agent to testify on topics of information that are overly broad, vague, or ambiguous. See, e.g., Scioneaux v. Elevating Boats, LLC, No. 10-0133, 2010 WL 4366417, at *3 (E.D. La. Oct. 20, 2010) (quashing deposition notice where the plaintiff failed to particularize the topics of discussion in Rule 30(b)(6) deposition notice); In re Katrina Canal Breaches Consolidates Litigation, No. 05-4182, 2008 WL 4833023 (E.D. La. July 2, 2008) (granting motion for protective order to the extent topics listed in a 30(b)(6) notice were overly broad, vague and ambiguous); Padana Assicurazioni–Societa Azioni v. M/V Caribbean Exp., No. 97-3855, 1999 WL 30966 (E.D. La. Jan. 21,1999) (denying motion to compel Rule 30(b)(6) deposition where the notice was insufficiently particularized). The deposition notice at issue provides 36 topics of inquiry. (R. Doc. 33-1). State Farm seeks an order (1) limiting all topics of the noticed deposition to “information from the time period of September 19, 2014 to present, pertaining to State Farm's activity in Louisiana, and pertaining to first party fire claims”; (2) limiting Topic 10 to the “identification of State Farm personnel who handled the Plaintiff's fire claim arising from the September 19, 2014 fire, and their managers”; and (3) striking Topics 2-4, 7, 9, 11-17, 19-22, and 33 as overly broad, vague, and/or irrelevant. (R. Doc. 6 at 3-15). In opposition, Mr. Krantz argues that all topics listed in the Rule 30(b)(6) deposition notice are “highly relevant to this case” and that Plaintiff's counsel has used similar Rule 30(b)(6) deposition notices in the past “without incident
with other Louisiana Insurance companies.” (R. Doc. 45 at 8 n. 7-8). Considering the record of the instant matter, the range of topics listed in the Rule 30(b)(6) deposition notice, and the fact that the discovery deadline has passed, the court will consider each of the disputed topics to determine whether they fall within the scope of discovery.
1. Limitations to the General Scope of Topics *4 The court agrees with State Farm that the topics for the Rule 30(b)(6) deposition are generally overly broad as stated. As noted by State Farm, “[n]one of the topics in the Notice are limited with regard to time period, and most are not limited with regard to geography (claims in Louisiana) or the type of claims (first part fire damage claims).” (R. Doc. 33-6 at 3). The court concludes that the following limitations to the deposition topics strikes the correct balance in ensuring that Mr. Krantz has the opportunity to question State Farm's corporate representative(s) on relevant topics that are proportional to the needs of the case. All topics in the noticed Rule 30(b)(6) deposition, unless otherwise stated below and/ or otherwise further limited by the topic itself, shall be limited to (1) information used by State Farm and its claims adjusters as of the date of the September 19, 2014 fire; and (2) information pertaining to first-party homeowners' insurance claims involving property damage to real property in Louisiana, whether by fire or otherwise.
2. Limitations to Specific Topics State Farm requests the court to limit or strike specific topics listed in the Rule 30(b)(6) Notice. The court will address the specific topics challenged by State Farm in light of the foregoing general limitations placed on all of the deposition topics. Topic 2 Defendant's policy, practice, and procedure of developing claims handling manuals, guidelines, or any other documents used to instruct personnel on the claims handling and/or adjustment process, including additions, deletions and other revisions from previous versions of any such material.
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State Farm argues that its “development” of claims handling manuals and documents is irrelevant and should be stricken. (R. Doc. 33-6 at 5). In response, Mr. Krantz queries how the “use” of these documents is irrelevant or overbroad. (R. Doc. 45 at 7). The use of these documents, however, is not reflected in Topic 2. Mr. Krantz does not address how the “development” of claims handling manuals and documents, as well as “additions, deletions and other revisions from previous versions of any such material,” are relevant to the claims and defenses in this action. As stated, Topic 2 is overly broad and seeks irrelevant information. Accordingly, the court limits Topic 2 to the actual “claims handling manuals, guidelines, or any other documents used to instruct personnel on the claims handling and/or adjustment practice” used by State Farm to instruct its claims adjusters as of September 19, 2014 to adjust first-party homeowners' insurance claims involving property damage to real property in Louisiana. Topic 3 Defendant's policy, practice, and procedure of employing claims representatives and/or adjusters, including, but not limited to, employment standards and qualifications, communications, compliance with STATE FARM claims manuals, as well as the policy, practice, and procedure for promotion of such individuals within Defendant corporation. This includes all corporate decisions to delegate claims handling authority to adjusting agencies, the State of Louisiana. State Farm argues that its hiring and promotion decisions regarding claims representatives and adjusters are irrelevant. (R. Doc. 33-6 at 6). State Farm further argues that preparing a corporate representative on such topics would be unduly burdensome because employment and promotion decisions touch on many aspects of human resources and management. (R. Doc. 33-6 at 6). Similarly, State Farm argues that because there was no delegation of claims handling authority with regard to Mr. Krantz's claim, that topic is irrelevant and should be stricken. (R. Doc. 33-6 at 6). Mr. Krantz provides no specific arguments in response. With the exception of promotion decisions regarding claims representatives and/or adjusters, which could go to bias, the information sought in Topic 3 is irrelevant to
the claims and defenses in this action. Accordingly, the court limits Topic 3 to State Farm's policy, practice, and procedure for promotion of claims representatives and/or adjusters within State Farm. *5 Topic 4 Defendant's policy, practice, and procedure of training any and all claims representatives, adjusters, and all other personnel involved in the claims processing and/or adjustment operation. This includes the requirement to ensure that third party adjusting agencies meet all State and Company policies to comply with applicable laws and policy provisions. State Farm argues that the training of its claims representatives and adjusters is irrelevant because the facts relevant to determining whether its handling of Mr. Krantz's claim was “arbitrary, capricious or without probable cause” is limited to the information presented, the decision made, and why the decision was made. (R. Doc. 33-6 at 7). State Farm further argues that “third party adjusting agencies” have no bearing on this case. (R. Doc. 33-6 at 7). Mr. Krantz provides no specific arguments in response. The broad information sought in Topic 4 is irrelevant to the claims and defenses in this action. Accordingly, the court strikes Topic 4. 2 Topic 7 Defendant's document retention policy. State Farm argues that because the instant claim is barely one year old, and there has been no showing that “any relevant documents or information have been lost, destroyed, or otherwise made unavailable,” this topic seeks irrelevant information. (R. Doc. 33-6 at 7). In response, Mr. Krantz argues that how State Farm “manages and retains its documents is absolutely relevant” because State Farm has provided that Ms. Ellender “did not intend on sending to the plaintiff the computer generated printout stating that he would be receiving structural funds to repair his home.” (R. Doc. 45 at 9). Mr. Krantz further argues that State Farm's document retention policy is relevant to how State Farm's global protocols affected their decision making process. (R. Doc. 45 at 11 n.9).
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There is no indication in the record that State Farm's “document retention policy,” without limitation in scope or subject matter, is relevant to a claim or defense in this action, and it would be otherwise unduly burdensome to require State Farm to provide a deponent on such a broad topic. Accordingly, the court limits Topic 7 to State Farm's document management procedures and quality control protocols as of September 19, 2014 regarding first-party homeowners' insurance claims involving property damage to real property in Louisiana. Topic 9 Any and all engineering reports commissioned by Defendant for fire insurance claims which were distributed to management. State Farm argues that the topic is vague and overly broad. (R. Doc. 33-6 at 8). The court agrees. Accordingly, the court limits Topic 9 to engineering reports specifically pertaining to Mr. Krantz's particular fire insurance claim. Topic 10 Defendant's corporate structure. State Farm argues that this topic is overly broad and “should be restricted to the management structure of the claims personnel that were involved in the Plaintiff's claim.” (R. Doc. 33-6 at 8). Mr. Krantz argues that State Farm's corporate structure is relevant to how State Farm's global protocols affected their decision making process. (R. Doc. 45 at 11 n.9). *6 As stated, this topic is overly broad. Accordingly, the court limits Topic 10 to State Farm's corporate structure to the extent it bears upon State Farm's complete and total chain of command of claims adjusting and processing. 3 Topic 11 Method in which Defendant calculates depreciation for personal property and real property. Topic 12 Method in which Defendant values damage to personal property and real property. State Farm argues that Topics 11 and 12 are irrelevant because there “is not a dispute of the amount of payment
due” but instead only a dispute “over whether the Plaintiff is entitled to any payment.” (R. Doc. 33-6 at 9). Contrary to State Farm's assertions, Mr. Krantz has alleged that State Farm failed to pay certain amounts and failed to properly calculate those amounts, including overly depreciating the value of the personal property and real property at issue. (Petition, ¶ 12). Accordingly, the court limits Topics 11 and 12 to the methods used by State Farm to calculate depreciation for, and to value damage to, personal property and real property as of September 19, 2014 for the purpose of adjusting adjust first-party homeowners' insurance claims involving property damage to real property in Louisiana. Topic 13 Use of pricelists contained in computerized estimating software, including, but not limited to: (a) who created the pricelists; (b) what the pricelists are based upon; (c) any supporting documentation for the pricelists; (d) any evaluation of the price for labor and construction materials within the boundaries of the Middle District of Louisiana; (e) method of training adjusters and claims representatives on the use of estimating software; (f) documents instructing adjusters and claims representatives on the use of the estimating software; (g) how the pricelists are maintained within STATE FARM; (h) any and all contracts with the company which creates and/or maintains the pricelists; (I) any communications between Defendant and the company which supplies, creates, and/or maintains the pricelists; (j) the reasons for using the pricelists; (k) how much is paid for the use of the pricelists and/or the estimating software; (l) any communication within Defendant company concerning the need to deviate in any way from the pricelists in the computer estimating software; and (m) the procedure, if any, for an adjuster or claims representative to alter the pricelists in the computer estimating software. Topic 19 The existence of any ‘pricing department’ in which Defendant assesses pricelists. State Farm argues that Topics 13 and 19 are irrelevant because “Plaintiff has not alleged any actual facts that State Farm has undervalued the cost of repairs to his property.” (R. Doc. 33-6 at 10). There is no dispute, however, that Mr. Krantz has alleged that State Farm
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failed to pay certain amounts and failed to properly calculate those amounts, including overly depreciating the value of the personal property and real property at issue. (Petition, ¶ 12). As noticed, the court finds these topics to be overly broad. Accordingly, the court limits Topics 13 and 19 to the existence of any “pricing department” and the specific use of “pricelists” on Mr. Krantz's particular fire insurance claim. If such pricelists were used, then State Farm shall provide a deponent to testify regarding the source of the information contained therein and the use of such lists on the Mr. Krantz's claim. *7 Topic 14 All materials provided to adjusters and/or claims representatives concerning the instruction, decision, and/ or training to determine the scope of damage. Topic 15 All training provided to adjusters and/or claims representatives to determine the scope of damage. State Farm argues that Topics 14 and 15 are irrelevant because “there is no factual allegations that State Farm improperly valued damage to property” and “a discussion of training of adjusters to perform various functions is overkill, when all that is necessary is discussion of what was done, and why.” (R. Doc. 33-6 at 10). Mr. Krantz argues that State Farm's training of adjusters is relevant to how State Farm's global protocols affected their decision making process. (R. Doc. 45 at 11 n.9). Considering the facts alleged in this action, the court finds the foregoing topics of inquiry relevant to the claims and defenses in this action. As stated, however, the topics are overly broad. Accordingly, the court limits Topics 14 and 15 to the training of, and training materials provided to, claims adjusters and/or representatives in State Farm's special investigations unit holding the same position as Ms. Ellender. Topic 16 The policy, practice, and procedure for creating and maintaining an underwriting file. State Farm argues that there is no issue in this case regarding sufficient coverage or whether the policy was
in effect. The court agrees that there are no claims or defenses in this litigation concerning the underwriting of the policies, including whether any misrepresentations were made on the policy application. The claims and defenses in this action concern whether Mr. Krantz's claim was properly adjusted in good faith. The information sought in Topic 16 is irrelevant to the claims and defenses in this action. Accordingly, the court strikes Topic 16. Topic 17 The policy, practice, and procedure for setting a reserve for a fire claim. In opposition to Topic 17, State Farm argues that reserve information, “even if limited to the relevant time period and fire claims in the State of Louisiana,” is irrelevant in a bad faith case. (R. Doc. 33-6 at 11). The court disagrees that such a decision is compelled. See First Nat. Bank of Louisville v. Lustig, No. 87-5488, 1991 WL 236839, at *2 (E.D. La. Oct. 30, 1991) (“Reserve information, including any post-litigation reserve information, is relevant to show the insurer's state of mind in relation to its claims settlement practices.”); see also Alta Vista Prods., LLC v. St. Paul Fire & Marine Ins. Co., No. 10-1948, 2011 WL 3290395, at *3 (E.D. La. Aug. 1, 2011) (noting decisions finding that reserve information is discoverable when bad faith is asserted, and stating that the Fifth Circuit has not ruled on whether reserve information is discoverable, but finding Magistrate Judge's decision that reserve information was not relevant to the particular bad faith claims at issue to not be clearly erroneous); but see Lambert v. Liberty Mut. Fire Ins. Co., No. 13-23, 2013 WL 6169119, at *2 (M.D. La. Nov. 25, 2013) (“[T]here is no basis to compel the defendant to produce unredacted records that reflect the defendant's claim expense reserve, which the reserve set to cover the fees and costs of the litigation. Plaintiffs failed to explain how this information is reasonably calculated to lead to admissible evidence relevant to their bad faith claim.”). *8 The court finds reserve information for Mr. Krantz's particular claim to be relevant to the claims and defenses in this action. Importantly, Mr. Krantz received a decision by State Farm stating that certain amounts would be paid. State Farm has subsequently denied coverage, arguing the original coverage letter was sent in mistake. Questions concerning State Farm's policy, practice, and procedure
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for setting reserve information in fire claims in Louisiana during the relevant time period set by this Order seek relevant information. Accordingly, the court limits Topic 17 as discussed above. As neither party has raised the issue, the court makes no ruling at this time regarding whether reserve information regarding Plaintiff's claim is protected by the attorneyclient privilege and/or the work product doctrine. See Guar. Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., No. 90-2695, 1992 WL 365330, at *7-8 (E.D. La. Nov. 23, 1992) Topic 20 The policy, practice, and procedure for evaluating a Louisiana contractor's estimate of damages. Topic 21 The policy, practice, and procedure for determining the availability and calculation for overhead and profit.
pay Plaintiff's claim.” (R. Doc. 33-6 at 12). Topic 33 appears to overlap with Topic 17, which concerns reserve information. To the extent information under Topic 33 could be considered discoverable, the limitations under Topic 17 are sufficient. Accordingly, the court strikes Topic 33.
C. Expenses Both parties seek to recover expenses for bringing their respective motions. As set forth above, the court has granted in part and denied in part certain portions of the parties' motions. If a motion to compel or motion for protective order is granted in part and denied in part, a court may apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C); see Fed. R. Civ. P. 26(c)(3). The court concludes that the parties shall bear their own expenses in connection with the respective motions.
III. Conclusion Based on the foregoing,
Topic 22 The policy, practice, and procedure for determining the availability and calculation for a contingency percentage. State Farm argues that Topics 20, 21, and 22 are irrelevant because “State Farm's evaluation of damages is not an issue in this case.” (R. Doc. 33-6 at 12). The court disagrees with this position. As stated, the court finds these topics to be overly broad. Accordingly, the court limits Topics 20, 21, and 22 to the existence of the stated policies, practices, and procedures to the extent they pertain to Mr. Krantz's particular fire insurance claim. Topic 33 The spheres of payment and/or settlement authority within STATE FARM, including delegation of same (if any) to third party administrators or outside adjusters.
IT IS ORDERED that Plaintiff's Motion to Compel and Defendant's Motion for Protective Order are GRANTED IN PART AND DENIED IN PART in accordance with this Order. The parties shall bear their own expenses. State Farm shall designate a representative or representatives to testify as to the topics allowed by this Order. On or before February 1, 2016, the parties shall agree upon a date to conduct the deposition(s). The deposition(s) shall take place no later than February 29, 2016. To the extent agreed upon by the parties, Cindy Ellender may serve as a corporate representative of State Farm for all or part of the Rule 30(b)(6) deposition of State Farm. As nonexpert discovery closed on January 21, 2016, no additional discovery will be allowed unless the parties seek leave for an extension of the discovery deadline in accordance with Rule 16(b)(4).
All Citations State Farm argues that this topic has no relevance to its “decision making with regard to whether or not to
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Footnotes
1
The current version of Rule 26(b)(1) became effective on December 1, 2015. The former version of Rule 26(b)(1) did not contain the “proportional to the needs of the case” language in defining the scope of discovery. The former version
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of the rule nevertheless provided that the district court must “limit the frequency or extent of discovery” if it determined that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Rule 26(b)(2)(C)(iii) (former version). For the purpose of the instant motions, the same result would follow regardless of which version of Rule 26 was applied. This Order does not preclude questions regarding specific training and background of any claims adjusters directly involved in Plaintiff's insurance claim. The court recognizes that this limitation to Topic 10 may now make it redundant with Topic 8. Topic 8 is as follows: “Defendant's complete and total chain of command of claims adjusting and processing.”
End of Document
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2016 WL 1059450
2016 WL 1059450 Only the Westlaw citation is currently available. United States District Court, D. Colorado. Daniel Pertile, an individual, and Ginger Pertile, an individual, Plaintiffs, v. General Motors, LLC a Delaware limited liability company, TRW Vehicle Safety Systems, Inc., a Delaware corporation, Kelsey-Hayes Company, a Delaware corporation, John Doe Nos. 1-25, and John Doe Companies Nos. 1-25, Defendants. Civil Action No. 1:15-cv-00518-WJM-NYW | Signed March 17, 2016 Attorneys and Law Firms James Louis Gilbert, Anne Marie Dieruf, Gilbert Law Group, P.C., Arvada, CO, Darin Lee Schanker, Bachus & Schanker, LLC, Denver, CO, for Plaintiffs. Daniel Robert Mordarski, Daniel R. Mordarski LLC, Columbus, OH, Jordan Lee Lipp, Kyle Wesley Brenton, Davis Graham & Stubbs, LLP, Denver, CO, Kent Bryan Hanson, Mickey William Greene, Hanson Bolkcom Law Group, Ltd., Minneapolis, MN, Jason Paul Hartman, Matthew E. Coveler, Weinstein Tippetts & Little LLP, Houston, TX, for Defendants.
ORDER Magistrate Judge Nina Y. Wang *1 This matter comes before the court on Plaintiffs' Motion to Compel Production of General Motors LLC's Finite Element Models for the GMT 900 Series (the “Motion to Compel FEA Models”) [# 87, filed Sept. 1, 2015]. The matter was referred to this Magistrate Judge pursuant to the Order of Reference dated May 12, 2015 [# 58] and the memorandum dated September 2, 2015 [# 88]. The Parties submitted briefing on the Motion to Compel FEA Models, including an Opposition by Defendant General Motors LLC (“GM”) 1 [# 96, filed Sept. 22, 2015] and a Reply filed by Plaintiffs Daniel and Ginger Pertile (“Plaintiffs” or “the Pertiles”) [# 107, filed
Oct. 9, 2015]. The court held oral argument on October 30, 2015, and took the Motion to Compel FEA Models under advisement. Having now fully considered the issue presented, this court DENIES the Motion to Compel FEA Models for the following reasons.
BACKGROUND The Pertiles originally initiated this action in state court in the District Court for the City and County of Denver, Colorado on February 17, 2015. [# 1-1]. The Pertiles allege that Plaintiff Daniel Pertile was catastrophically injured during a rollover accident in which he was the front seat passenger of a Chevrolet Silverado 2500 HD crew cab, VIN number 1GC1KVCG9BF167901, that occurred on or about February 25, 2013. [# 1-1 at ¶ 35]. As initially pled, Plaintiffs named a number of defendants that were purportedly involved in the design and manufacturer of a Chevrolet Silverado 2500 HD crew cab truck, its safety restraint system, and the electronic stability control system. [# 1-1 at ¶¶ 39-41]. On March 12, 2015, one of those defendants, Delphi Automotive Systems, LLC, removed the action to this court. [# 1]. On April 8, 2015, Plaintiffs filed an Amended Complaint, dismissing a number of Defendants (including Delphi Automotive Systems). 2 [# 31]. By the time that the Scheduling Order was entered in this case on May 13, 2015, only five named entities remained as Defendants: GM, TRW Vehicle Safety Systems, Inc. (“TRW”), Kelsey-Hayes Company (“Kelsey-Hayes”), DPH Holdings Corporation and DPH-DAS, LLC (collectively “DPH”). DPH was subsequently dismissed [# 69], leaving GM, TRW, Kelsey-Hayes, the John Doe Individuals and John Doe Companies as Defendants. The court entered a Protective Order, to which the Parties had stipulated, on July 6, 2015, and an Electronically Stored Information (“ESI”) Protocol to facilitate discovery. [# 81, # 79]. The ESI Protocol reflected the Parties' disagreement as to whether GM would be required to produce ESI related to its finite element analysis. [# 79 at 3]. Finite element analysis (“FEA”) refers to “a computer modeling technology used to create a mathematical simulation of three dimensional, virtual representation of a vehicle, component or system subjected to prescribed load conditions.” [# 96 at 2]. It is used to simulate realworld behavior of physical objects. See Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1169-70 (Fed.
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Cir. 2008). It does not reflect actual real-world testing performed on the final design of the vehicle at issue. *2 The Parties proceeded with discovery, including the exchange of documents and ESI through Initial Disclosures. GM has produced ESI related to the design of the Chevrolet Silverado at issue, in the form of Computer Aided Design (“CAD”) files. [# 96-1 at ¶ 5]. On August 25, 2015, this court held a telephone discovery conference regarding Plaintiffs' request for GM's FEA Models. Specifically, Plaintiffs request production “in their original native formal all finite element models depicting the roof and pillar structures of the subject vehicle design including but not limited to inputs, outputs, pre and post processing, and mesh files.” [# 87-1 at 1]. GM refused to produce its trade-secret FEA Models, on the grounds that the discovery sought by Plaintiffs was not reasonable or necessary, particularly in light of the other discovery provided by GM. The court then asked the Parties to brief the issue, and include any evidentiary support for their positions. This instant Motion to Compel FEA Models, and the related briefing, followed.
APPLICABLE LAW The recent amendment to Federal Rule of Civil Procedure 26(b)(1), effective December 1, 2015, reads “[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the amendment
shall govern all civil cases commenced after December 1, 2015 and “insofar as just and practicable, all proceedings then pending.” 3 Although this case was initiated prior to December 1, 2015, this court applies the principles of proportionality as discussed above because they are the same principles that would have applied through the former Rule 26(b)(2)(C)(iii). See Fed. R. Civ. P. 26(b) (1) advisory committee's note to 2015 amendment (“Most of what now appears in Rule 26(b)(2)(C)(iii) was first adopted in 1983.”). In this case, the threshold inquiry is whether, pursuant to Rule 26(b)(1), the FEA Models should be produced in native format, to support Plaintiffs' claims for product liability and negligence. 4 GM asserts (and Plaintiffs do not contest) that it has already produced over 150,000 pages of discovery materials and data, including threedimensional CAD drawings. [# 96-1 at 5]. GM has also produced the engineering analysis reports and the evaluation reports resulting from the FEA Models. [Id. at ¶ 10]. Plaintiffs contend, however, that the production to date is insufficient because the FEA Models are necessary to reflect what GM knew when it designed and tested the roof. [# 87 at 5]. Plaintiffs further contend that with the FEA Models, Plaintiffs could conduct their own simulations and would be able to understand what GM knew or could have known about the truck's design and testing. [Id.].
ANALYSIS I. Relevance There is no dispute that the FEA Models do not necessarily reflect the Chevrolet Silverado 2500 HD crew cab, VIN number 1GC1KVCG9BF167901, as manufactured that was subject to the roll-over accident at issue. [# 96 at 8; # 96-1 at ¶ 7]. The FEA Models allow GM engineers assess pre-production designs of vehicle systems, components or parts. [# 96-1 at ¶ 8]. Therefore, the inputs for the FEA Models may reflect materials and their properties that vary in isolation or combination from the final product design, such as the composition of the material at issue, the thickness of a material, and the size of the component tested. See e.g., [# 107 at 3]. Plaintiffs' expert 5 acknowledged these variations, but noted that the FEA Models could be updated to reflect a final design. [# 107-1 at ¶ 15]. Based on the record before it,
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this court respectfully agrees that if there were no other considerations other whether the discovery at issue might yield helpful information, the FEA Models would likely be discoverable because “the inputs, outputs, pre and post processing, and mesh files” reflects information that was available to GM during the design process. However, “might yield helpful information” is not the applicable standard. Instead, this court must look at proportionality and, because of the sensitivity of the information at issue, necessity.
II. Proportionality and Necessity *3 Relevance has never been the only consideration under Rule 26—this court must also look at other factors to determine whether the requested discovery is proportional to Plaintiffs' needs, including the importance of this information to the issues presented by the case, the relative access to information by the Parties, and whether the burden or expense of the discovery outweighs the benefit. Fed. R. Civ. P. 26(b)(1); In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1184 (10th Cir. 2009) (observing under the former Rule 26(b)(1), all discovery was subject to the limitations of Rule 26(b)(2)(iii) that considered proportionality). In considering these issues, the court notes that there is no dispute that these FEA Models are proprietary, trade secret information of GM. [# 87 at 2; # 96 at 3-4; # 96-2 at 1]. Therefore, as the Parties recognize, while there is no absolute privilege with respect to the disclosure of trade secrets, if GM is able to prove harm associated with disclosure, then the burden shifts back to Plaintiffs to establish that the FEA Models are not only relevant, but necessary, to prove their case. In re Cooper Tire & Rubber Co., 568 F.3d at 1184; Centurion Indus., Inc. v. Stuerer, 665 F.2d 323, 325-26 (10th Cir. 1981).
A. Potential Harm The court first turns to whether GM has established any risk of potential harm by disclosing its FEA Models, because the outcome of that question will guide the court's assignment of burdens in this case. As noted above, if GM can prove harm associated with disclosure of the FEA Models, then the burden shifts to Plaintiffs to establish relevance and necessity. See Centurion Indus., 665 F.2d at 325-26; Digital Equip. Corp. v. Micro Tech., Inc., 142 F.R.D. 488, 491 (D. Colo. 1992). Courts have traditionally presumed that disclosure to a competitor is more harmful than to a non-competitor. See R & D Bus. Corp. v. Xerox
Corp., 152 F.R.D. 195, 197 (D. Colo. 1993). If however, GM does not prove potential harm, the burden rests with GM to demonstrate why relevant discovery should not be had. See Fed. R. Civ. P. 26(b)(1) Advisory Committee Notes to 2015 Amendment (observing that “the change [in the Rule] does not place on the party seeking discovery the burden of addressing all proportionality considerations”); Rezaq v. Nalley, 264 F.R.D. 653, 656 (D. Colo. 2010) (citing Simpson v. Univ. of Colorado, 220 F.R.D. 354, 356 (D. Colo. 2004)) (“When the discovery sought appears to be relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevant as defined under Rule 26(b)(1) or (2) is of such marginal relevant that the potential harm occasioned by the discovery would outweigh the ordinary presumption in favor of broad disclosure.”). In this case, GM argues (albeit out of order) that it may suffer harm if its trade secrets are disclosed. [# 96 at 14-19]. GM spends considerable time in its briefing, and offers supporting evidence in the form of Ms. Lu's Declaration and other court orders that reflect breaches of confidentiality in other, unrelated cases, that it carefully limits access to its technical trade secrets (including FEA Models, according to Ms. Lu) both internally and externally; that no satisfactory solution exists when a protective order is violated; that there is no way to monitor compliance; and although not characterized as such, that Dr. Vlahinos will inevitably disclose GM's trade secrets he derives from the FEA Models because he will be unable to compartmentalize his knowledge. [Id.]. Plaintiffs contend that there is no risk because the entered Protective Order has strict provisions, Plaintiffs and their expert are not competitors, Dr. Vlahinos has consulted for national security interests without issue, and the FEA Models at issue are at least ten years old, and accordingly, are outdated. [# 87 at 11-12]. On balance, this court finds that GM has met its threshold burden of establishing that disclosure of the FEA Models “might” be harmful. See Master Palletizer Sys., Inc. v. T.S. Ragsdale Co. Inc., 123 F.R.D. 351, 353 (D. Colo. 1988). It is undisputed that GM has dedicated considerable resources to developing its FEA Models, and that the FEA Models themselves (as opposed to certain outputs from such models) are considered trade secrets. Plaintiffs have pointed to no instance where GM has publicly disclosed or otherwise provided without
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Pertile v. General Motors, LLC, Slip Copy (2016) 2016 WL 1059450
restriction, what Plaintiffs seek—unmonitored access and a copy of the electronic FEA Model upon which to run simulations. Plaintiffs appear to concede that public disclosure of the FEA Models would be unacceptable, but argue that there is no “risk of leak” of disclosure under the Protective Order. While it is true that GM and Plaintiffs are not competitors, Dr. Vlahinos indicates that he “is a principal at Advanced Engineering Services,” which provides engineering services to clients in the “automotive, aerospace, energy, VC and medical industries.” [# 107-1 at ¶ 3]. The court also takes judicial notice of Advanced Engineering Services' website, which indicates “[w]e use the state-of-the-art Explicit Dynamics finite element codes to evaluate the crashworthiness of road vehicles, aircraft, ships, and trains. Sophisticated crash simulation with airbags, seatbelts, and dummies improves automobile design and safety.” http://www.aes.nu/1-3engrsvc.htm. It is reasonable to conclude that while Dr. Vlahinos is not employed by a GM competitor, he may, in fact, currently or in the future, provide consulting services to GM's competitors. And without finding or even suggesting that Dr. Vlahinos would violate the provisions of the Protective Order either intentionally or inevitably, nothing in the Protective Order prohibits any Plaintiffs' expert from being or becoming engaged by an GM competitor, either currently or in the future. [# 80]. For the purposes of this Motion, this court concludes that disclosure of GM's FEA Models, even under the Protective Order, “might” be harmful—a finding that shifts the burden to Plaintiffs to establish that the disclosure of the Models is relevant and necessary. See Digital Equip., 142 F.R.D. at 492 (holding that an expert cannot reasonably be expected to compartmentalize his knowledge even with the best intentions). The ultimate determination as to whether Plaintiffs' articulated need for the trade secret FEA Models outweighs GM's claim of injury resulting from disclosure is within the court's sound discretion. See Sears v. Nissan Motor Co. Ltd, 932 F.2d 975, 1991 WL 80741, at *1 (10th Cir. May 16, 1991).
B. Proportionality and Need *4 The court next turns to the overlapping issues of proportionality under Fed. R. Civ. P. 26(b)(1) and the need for the discovery pursuant to Centurion. Plaintiffs urge this court to compel discovery, on the theory that the FEA Models are important to understanding what the GM engineers knew when they were running computer simulations. [# 107 at 2]. Indeed, as the court previously noted on the record, such knowledge would
inform Plaintiffs' products liability and negligence claims presented in this action. All Parties and this court acknowledge that the FEA Models could yield information that is relevant to this action. But the FEA Models themselves do not necessarily tell Plaintiffs what GM actually knew about the design of the roof structure. Instead, the input data reflects a body of information that GM engineers chose from to run computer simulations that do not reflect the final design of the vehicle at issue, or perhaps, even an interim design. Put another way, the input data is a menu of options from which engineers selected, but the data in and of itself does not reflect how GM combined the options for any given test; what simulations were ultimately run; what outputs were generated from the data selected; and what GM engineers, in fact, affirmatively considered at the time they were designing the Chevrolet Silverado 2500 HD crew cab at issue. And any output data generated now would only reflect what GM knew at the time of designing the vehicle at issue if Plaintiffs use the precise inputs that GM engineers selected, in the same combination. Ms. Lu testified, and Plaintiffs do not dispute, that the FEA Models at issue do not store or capture design changes or design considerations. Compare [# 96-1 at ¶ 9] with [# 107-1]. An individual cannot determine from looking at the FEA Model what design stage the model represents; or what an unidentified engineer was considering in looking at any given output; or why a prior or subsequent simulation was run; or why or what adjustments were made from the output generated. Instead, concrete evidence of the outputs from the FEA Models—what GM, in fact, knew or should have known from the FEA Models—is captured in the form of engineering and other reports. [# 96-1 at ¶ 10]. Those reports have been produced (and should be produced, if they have not), and other than argument, Plaintiffs have provided no specific factual basis to conclude that the reports which have already been produced in this case, along with the three-dimensional CAD drawing and other design documents that have also been produced by GM, are insufficient, even if “they only contain a small amount of information in a summary form.” [# 107-1 at ¶ 13]. Without a factual basis to establish that the production to date is inadequate, Plaintiffs' attempt to compel production of the FEA Models themselves is not proportional.
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Even accepting that the FEA Models are relevant, this court concludes that Plaintiffs have not established that they are necessary in this action. As discussed above, GM has produced electronic CAD drawings of the final design of the truck from which Plaintiffs or their experts can determine the final structural characteristics of the vehicle at issue. Plaintiffs also have access to the exact vehicle at issue to use to depict any actual structural failure. In addition, while potentially subject to cross-examination, Plaintiffs' expert can generate finite element analysis from the information already produced by Defendant and the type of alternate design information that Plaintiffs seek to introduce. 6 See [# 96-1 at ¶ 26; # 107-1 at ¶¶ 16-17]. Plaintiffs argue and Dr. Vlahinos testified that it would be slower and more expensive to build a finite element model than to use one already designed by GM. [# 107 at 4; # 107-1 at ¶ 16]. While the court is mindful that Fed. R. Civ. P. 1 requires the Parties and the court to proceed through this action in a just, speedy and inexpensive manner, this
court cannot conclude that Plaintiffs' articulated desire to gain access to the FEA Model amounts to “need.”
CONCLUSION *5 Based on the record before it, and in light of the production of documents and ESI already made by GM, this court cannot conclude, at this juncture, that access to the FEA Models themselves are so central to the claims in dispute that their discovery must be compelled. Accordingly, IT IS ORDERED that: (1) Plaintiffs' Motion to Compel Production of General Motors, LLC's Finite Element Models for the GMT 900 Series [# 87] is DENIED.
All Citations Slip Copy, 2016 WL 1059450
Footnotes
1
2 3 4 5
6
GM's Opposition is styled as an “Opposition to Plaintiffs' Motion to Compel and a Motion for Protective Order.” [# 96]. A party may not make a motion in a response or reply to an original motion. D.C.COLO.LCivR 7.1(d). Therefore, this Order only addresses whether Plaintiffs are entitled to compel production of GM's FEA Models at this juncture. It is not intended to act as a Protective Order absolutely barring production of FEA Models under any circumstances. The Parties also stipulated to the dismissal of a number of Defendants after filing the Amended Complaint. See e.g., [# 39, # 40, # 41, # 42]. See http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf. Plaintiffs' Amended Complaint also includes claims for breach of warranties and a violation of the Colorado Consumer Protection Act, but Plaintiffs do not argue that the FEA Models are relevant to those causes of action. [# 87]. Plaintiffs introduce for the first time on Reply the affidavit of their expert, Dr. Andreas Vlahinos. [# 107-1]. Arguably, such testimony is not properly before the court. See Kerber v. Qwest Group Life Ins. Plan, 727 F. Supp. 2d 1076, 1079 (D. Colo. 2010). Nevertheless, the court declines to strike Dr. Vhalinos' affidavit because it is focused on responding to the Declaration of Huizhen Lu, who was offered by GM to testify about the technical aspects and relevance of the FEA Models. While Plaintiffs and their expert do not dispute that the reports resulting from the FEA Models reflect outputs actually generated by GM, they nevertheless insist the engineering reports are insufficient, because Dr. Vlahinos testified that “with a finite element model, the simulation can be re-run to generate output data.” [Id.]. But Plaintiffs and their expert have made no showing that this re-generation of output data would accurately reflect what GM engineers did (and then discarded).
End of Document
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2016 WL 782247 Only the Westlaw citation is currently available. United States District Court, D. South Dakota, Southern Division.
Reprinted with permission of Thomson Reuters.
Motions denied in part and granted in part.
West Headnotes (32) Sprint Communications Company L.P., Plaintiff, v. Crow Creek Sioux Tribal Court, Native American Telecom, LLC., and B. J. Jones, in his official capacity as special judge of Tribal Court; Defendants.
[1]
Indians State regulation Telecommunications Particular matters relating to service in general
4:10-CV-04110-KES | Signed February 26, 2016
Local telecommunications services provider owned by Indian tribe constituted a competitive local exchange carrier (CLEC) as of date it received authorization from tribe to provide services on reservation, and thus could enforce its interstate tariffs regardless of fact that it only received certificate of authority from State public utilities commission (PUC), authorizing it to provide services either on or off the reservation, at a subsequent date; tribe had independent authority to grant local carrier permission to provide local telecommunications services on reservation.
Synopsis Background: Alleging breach of the Communications Act and asserting a claim under South Dakota law for unjust enrichment, long-distance telecommunications carrier brought action against tribally owned competitive local exchange carrier (CLEC), which was authorized to provide telecommunications service on Indian reservation. CLEC asserted counterclaims for breach of contract, breach of implied contract, and unjust enrichment. Following issuance of order granting in part and denying in part the parties' cross-motions for summary judgment, 121 F.Supp.3d 905, long-distance carrier moved for reconsideration, as well as for partial summary judgment and to compel CLEC to respond fully to discovery requests, and CLEC moved to compel carrier to respond fully to CLEC's discovery requests.
Cases that cite this headnote [2]
Holdings: The District Court, Karen E. Schreier, J., held that: [1] telecommunications services provider constituted a CLEC as of date it received authorization from tribe to provide services on reservation; [2] damages award against CLEC would be entered immediately; and [3] CLEC would be required to provide requested information regarding type of equipment used to deliver and terminate calls.
Indians Government of Indian Country, Reservations, and Tribes in General
Telecommunications Pricing, rates and access charges Competitive local exchange carrier (CLEC) which provided local telecommunications services on Indian reservation engaged in unjust and unreasonable practices by improperly billing long-distance telecommunications carrier for access charges involving calls made to a conference call provider, in violation of the Communications Act; conference calls provider was not an end user within meaning of CLEC's original and revised tariff number one. Communications Act of 1934 §§ 201, 207, 47 U.S.C.A. §§ 201(b), 207.
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Damages award against competitive local exchange carrier (CLEC) which provided local telecommunications services on Indian reservation, based on determination that it engaged in unjust and unreasonable practices by improperly billing long-distance telecommunications carrier for access charges involving calls made to a conference calls provider, in violation of the Communications Act, would be entered immediately, along with prejudgment interest, rather than being assigned as part of final order in the case. 47 U.S.C.A. §§ 201(b), 207.
Cases that cite this headnote [3]
Federal Civil Procedure Weight and sufficiency Moving party can meet its burden on summary judgment by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Fed. R. Civ. P. 56(a). Cases that cite this headnote
[4]
Federal Civil Procedure Burden of proof
Cases that cite this headnote [8]
Once moving party has met its burden on summary judgment, nonmoving party may not rest on mere allegations or denials, but must demonstrate the existence of specific facts which create a genuine issue for trial. Fed. R. Civ. P. 56(a).
Under the Communications Act, longdistance telecommunications carrier, by establishing its entitlement to damages from competitive local exchange carrier (CLEC) which provided local telecommunications services on Indian reservation, based on determination that CLEC improperly billed long-distance carrier for access charges involving calls made to a conference calls provider, established its entitlement to award of reasonable attorneys' fees. Communications Act of 1934 § 206, 47 U.S.C.A. § 206.
Cases that cite this headnote [5]
Federal Civil Procedure Materiality and genuineness of fact issue Mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment; dispute must be outcome determinative under prevailing law. Fed. R. Civ. P. 56(a). Cases that cite this headnote
[6]
Federal Civil Procedure Presumptions The facts, and inferences drawn from those facts, are viewed, on a motion for summary judgment, in light most favorable to the party opposing the motion. Fed. R. Civ. P. 56(a). Cases that cite this headnote
[7]
Telecommunications Damages Resulting
Telecommunications Actions
Cases that cite this headnote [9]
Federal Civil Procedure Proceedings to obtain Party requesting discovery must make a threshold showing that the requested information falls within scope of discovery under governing Rule of Civil Procedure, and mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity the information they hope to obtain and its importance to their case. Fed. R. Civ. P. 26(b) (1).
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Test articulated by Federal Communications Commission (FCC) to assess whether conference calling providers are end users or customers for purposes of a local exchange carrier's (LEC) tariff examines factors including (1) whether conference calling companies would pay for the LEC's services, (2) whether the LEC treated the conferencing company like other customers, (3) whether the LEC and conference companies operated under an exclusivity agreement, (4) whether the LEC handled the conferencing company's traffic differently, (5) whether the LEC's agreements with the conference companies contained terms that did not resemble traditional agreements for tariffed services, and (6) whether the LEC timely reported revenues from its services or submitted Universal Service contributions.
Cases that cite this headnote [10]
Federal Civil Procedure Proceedings to obtain Once party requesting discovery has satisfied its threshold burden of showing that the requested information falls within scope of the governing Rule of Civil Procedure, burden shifts to the party resisting discovery to show specific facts demonstrating that the discovery is irrelevant or disproportional; however, articulation of mere conclusory objections that something is overly broad, burdensome, or oppressive is insufficient to carry resisting party's burden, and that party must make a specific showing of reasons why the particular discovery should not be had. Fed. R. Civ. P. 26(b)(1).
Cases that cite this headnote
Cases that cite this headnote [11]
Federal Civil Procedure Relevancy and materiality Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information regarding type of equipment used to deliver and terminate those calls, to extent that information was relevant to issue of whether CLEC treated the conference call provider differently than its other customers, but CLEC did not have to provide such information about types of equipment and connections used by conference calling companies as to which CLEC did not seek compensation. Cases that cite this headnote
[12]
Telecommunications Pricing, rates and access charges
[13]
Federal Civil Procedure Failure to respond; sanctions Affidavits and exhibits submitted by both parties in long-distance telecommunications provider's action alleging that competitive local exchange carrier (CLEC) improperly billed it for certain access charges established that they fulfilled meet and confer requirements of the Federal Rules of Civil Procedure with regard to their motions to compel. Fed. R. Civ. P. 37(a)(1). Cases that cite this headnote
[14]
Federal Civil Procedure Failure to respond; sanctions Federal Civil Procedure Pretrial Order Long-distance telecommunications provider's motion to compel production of information bearing on issue of whether conference call provider was an end user under competitive local exchange carrier's (CLEC) tariff number three, as would determine whether CLEC properly billed long-distance provider for access charges under that tariff,
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did not amount to an improper attempt to discover information from a period prior to that stated in District Court's scheduling order; scheduling order was not intended to foreclose long-distance provider from updating previously-received discovery.
[17]
Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information identifying and describing all services, goods, or products provided to the conference call provider during the period at issue, including quantity and rate of each service, all features and practices associated with the provision of each service, and the relevant specific tariff or contract provision(s); requested information was relevant to analysis, pursuant to decision in In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., to issue of how CLEC treated the conference calls provider in relation to its other customers and whether conference calls provider paid for any of the services it received from CLEC.
Cases that cite this headnote [15]
Federal Civil Procedure Relevancy and materiality
Federal Civil Procedure Relevancy and materiality Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information identifying and describing what connected CLEC equipment on Indian reservation with equipment of the conference call provider, who owned it, and the capacity of such connections; requested information was relevant to analysis pursuant to decision in In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co.
Cases that cite this headnote
Cases that cite this headnote [18] [16]
Federal Civil Procedure Order compelling answer Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information describing any changes/modifications/updates to a specified diagram and the V&H coordinates for the location at which CLEC received longdistance provider's calls from the new tandem provider. Cases that cite this headnote
Federal Civil Procedure Relevancy and materiality Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information identifying total number of minutes delivered to CLEC for termination on a monthly basis during specified period, and the total number of minutes delivered each month for termination that were destined to the conference call provider; requested information was relevant to analysis, pursuant to decision in In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., on issue of how many
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connections were provided to the conference call provider, and CLEC made no showing that the request was not proportional or otherwise unduly burdensome.
Taxes, matters relating to Competitive local exchange carrier (CLEC), which was authorized to provide telecommunications services on Indian reservation, would be required, in response to request for production filed by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide communications it had during relevant period with its attorneys and with a third person and that person's company regarding CLEC's regulatory compliance obligations, its collection and/or remittance of taxes and fees, and any filings made with the State Public Utilities Commission (PUC), the Federal Communications Commission (FCC), the tribal Utility Authority, and/or the Universal Service Administration Company; requested information appeared to be relevant to analysis, pursuant to decision in In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., as to whether CLEC had timely reported revenues from its services or submitted Universal Service contributions.
Cases that cite this headnote [19]
Federal Civil Procedure Identity and location of witnesses and others Competitive local exchange carrier (CLEC) would be required, in response to interrogatory propounded by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide requested information identifying individuals or entities to which CLEC provided service. Cases that cite this headnote
[20]
Federal Civil Procedure Books of account Competitive local exchange carrier (CLEC) would be required, in response to request for production filed by long-distance telecommunications services provider in its action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to provide its general ledger for the relevant period, to extent ledger contained information relevant to analyzing the flow of money between CLEC and the conference calls provider, but CLEC would not be required to produce the entirety of the general ledger. Cases that cite this headnote
[21]
Federal Civil Procedure Particular Subject Matters Federal Civil Procedure Government records, papers and property Federal Civil Procedure
Cases that cite this headnote [22]
Federal Civil Procedure Adverse party's case; contention interrogatories Long-distance telecommunications services provider would be required, in response to contention interrogatory, in its action alleging that competitive local exchange carrier (CLEC) improperly billed longdistance provider for access charges involving a conference call provider, to provide CLEC with all facts that supported every dispute or notice of dispute sent by or on behalf of long-distance provider during relevant period; requested information was relevant to analysis, pursuant to decision in In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., as to CLEC's relationship with the conference calls provider.
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Long-distance telecommunications services provider's response, in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, to CLEC's interrogatory requesting all facts that supported longdistance provider's contention that it was not legally required to pay CLEC for the claims asserted, was insufficient in providing only a generalized summary and a bulleted list that non-specifically referred to various documents; long-distance provider could not satisfy its obligation to respond to the interrogatory by referring CLEC to a mass of documents.
Cases that cite this headnote [23]
Federal Civil Procedure Sufficiency; supplementation of answers Long-distance telecommunications services provider's initial response, in its action alleging that competitive local exchange carrier (CLEC) improperly billed longdistance provider for access charges involving a conference call provider, to CLEC's contention interrogatory for all facts that supported every dispute or notice of dispute sent by or on behalf of long-distance provider during relevant period, was insufficient in providing only a generalized summary and a bulleted list that non-specifically referred to various documents; long-distance provider could not satisfy its obligation to respond to the interrogatory by referring CLEC to a mass of documents.
Cases that cite this headnote [26]
Long-distance telecommunications services provider, in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, satisfactorily responded to CLEC's interrogatory requesting the basis for its denial that CLEC was providing a service to long-distance provider and its customers, by explaining that CLEC did not provide long-distance provider or its customers with compensable services because those services were not delivered in accordance with CLEC's tariff.
Cases that cite this headnote [24]
Federal Civil Procedure Sufficiency; supplementation of answers Long-distance telecommunications services provider's supplemental response, in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, to CLEC's contention interrogatory requesting all facts that supported every dispute or notice of dispute sent by or on behalf of long-distance provider during relevant period, was procedurally deficient; purported supplemental response was not signed under oath by provider, but only by provider's attorney, and it was not clear that counsel had been designated to act as provider's agent. Fed. R. Civ. P. 33(b). Cases that cite this headnote
[25]
Federal Civil Procedure Sufficiency; supplementation of answers
Federal Civil Procedure Sufficiency; supplementation of answers
Cases that cite this headnote [27]
Federal Civil Procedure Sufficiency; supplementation of answers Long-distance telecommunications services provider's response, in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, to CLEC's interrogatory requesting the basis for long-distance provider's contention that CLEC's charges
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were unlawful, satisfactorily responded by admitting that it continued to dispute CLEC's unlawful charges and that it intended to continue disputing CLEC's bills, and denying the remaining allegations.
Competitive local exchange carrier's (CLEC) motion, in long-distance telecommunications services provider's action alleging that CLEC improperly billed long-distance provider for access charges involving a conference call provider under its tariff number three, to compel more complete responses to two of its interrogatories and three of its requests for production of documents, would be denied; CLEC failed to demonstrate that the information it sought fell within scope of the Rule of Civil Procedure governing discovery. Fed. R. Civ. P. 26(b)(1).
Cases that cite this headnote [28]
Federal Civil Procedure Sufficiency; supplementation of answers Long-distance telecommunications services provider, by incorporating its objections and responses to two previous interrogatories served on it in counterclaim in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, satisfactorily responded to CLEC's interrogatory requesting the basis for its contention that it was not legally obligated to pay each bill from CLEC.
Cases that cite this headnote [31]
Propounding party must make threshold showing that the requested information falls within scope of discovery. Fed. R. Civ. P. 26(b)(1).
Cases that cite this headnote [29]
Federal Civil Procedure Sufficiency; supplementation of answers Long-distance telecommunications services provider, in its action alleging that competitive local exchange carrier (CLEC) improperly billed long-distance provider for access charges involving a conference call provider, sufficiently responded to CLEC's interrogatory requesting the basis for its contentions that CLEC's tariff violated statutory authority and Federal Communications Commission (FCC) regulations by explaining its argument that certain provisions of CLEC's tariff might be in violation of FCC case law.
[30]
Federal Civil Procedure Proceedings to obtain
Cases that cite this headnote [32]
Federal Civil Procedure Failure to respond; sanctions Monetary sanctions would not be imposed on either party in long-distance telecommunications services provider's action alleging that competitive local exchange carrier (CLEC) improperly billed it for access charges involving a conference call provider, where both parties' motions to compel had been granted in part and denied in part. Fed. R. Civ. P. 37(a)(5)(C). Cases that cite this headnote
Cases that cite this headnote
Attorneys and Law Firms
Federal Civil Procedure Failure to Answer; Sanctions
Philip R. Schenkenberg, Scott G. Knudson, Briggs & Morgan, P.A., Minneapolis, MN, Tommy D. Tobin, Winner, SD, for Plaintiff.
Federal Civil Procedure Failure to Comply; Sanctions
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Scott R. Swier, Swier Law Firm, Prof. LLC, Avon, SD, Stephen Wald, Partridge Snow & Hahn LLP, Boston, MA, for Defendants.
MEMORANDUM OPINION AND ORDER KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE *1 Plaintiff, Sprint Communications Company, L.P., moves the court for reconsideration of its August 5, 2015 order granting in part and denying in part the parties' cross motions for summary judgment. Docket 256. Sprint also moves the court for partial summary judgment on Count 1 of Sprint's complaint. Docket 258. Additionally, Sprint moves the court to compel defendant, Native American Telecom, LLC (NAT), to respond fully to Sprint's discovery requests. Docket 268. NAT resists each of Sprint's motions and moves the court to compel Sprint to respond fully to NAT's discovery requests. Docket 273. Sprint resists NAT's motion. For the following reasons, the court denies Sprint's motion for reconsideration, grants Sprint's motion for summary judgment, grants in part and denies in part Sprint's motion to compel, and grants in part and denies in part NAT's motion to compel.
BACKGROUND The facts of this case are more fully set forth in the court's August 7, 2015 order granting in part and denying in part cross motions for summary judgment from both parties. See Docket 250. On September 15, 2015, a telephonic status conference was held. Docket 254 (Transcript). This matter is now set for a court trial to begin on April 12, 2016. Docket 267.
I. Sprint's Motion for Reconsideration [1] Sprint inquired during the status conference if the court would reconsider a factual matter in the court's August 5, 2015 order. Docket 254 at 14. Sprint explained that the parties entered into a stipulation during the South Dakota Public Utilities Commission (SDPUC) proceeding that limited “the geographic scope of NAT's certification from the [SD]PUC.” Id. Sprint believed that this fact was important and that the court's order should “sync up with what the South Dakota Commission
found.” Id. at 15. The court directed Sprint to file a motion that the court could rule on after NAT had an opportunity to respond.
DISCUSSION Sprint argued in its motion for partial summary judgment (Docket 223) that NAT could not enforce any of its interstate tariffs prior to receiving a certificate of authority from the SDPUC. Although in 2008 NAT received a certificate of authority from the Crow Creek Sioux Tribal Utility Authority to provide telecommunication services on the Crow Creek Reservation, NAT did not receive a certificate of authority from the SDPUC until June 12, 2014. Sprint contended that NAT was not operating as a competitive local exchange carrier (CLEC) until it received a certificate of authority from the SDPUC, and NAT's tariffs were unenforceable prior to that time. This court disagreed. The court addressed several arguments raised by Sprint, for example, whether the SDPUC believed that it had sole regulatory authority over NAT and whether the SDPUC found that NAT was operating illegally in the state prior to receiving the SDPUC's certificate of authority. Docket 250 at 10-11. The court found that Sprint's arguments were not supported by the SDPUC decision. And based on the court's review of case law concerning tribal sovereignty, decisions and statements of policy from the FCC regarding the provision of telecommunication services on tribal land, and the SDPUC proceeding itself, the court concluded: *2 The Crow Creek Sioux Tribal Utility Authority expressly granted NAT, a majority tribally-owned entity, permission to provide local telecommunications services on the Crow Creek Reservation. That permission included the authority to act as a CLEC on the Reservation. In light of the observations made by the FCC, the FCC's Western Wireless decision, the federal government's longstanding recognition of encouraging tribal self-government, and the SDPUC's response to Sprint's argument that
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NAT was operating illegally, the court finds that the Tribe possessed its own authority to confer such permission upon NAT. The fact that NAT also sought and obtained permission to provide similar services outside the Reservation from the SDPUC in no way divested the Tribe of the regulatory authority it enjoyed on the Reservation. Cf. Western Wireless Corp., 16 FCC Rcd. 18145 at ¶ 23 (FCC 2001). Consequently, the court finds that NAT had sufficient authority to provide local telecommunications services on the Reservation prior to receiving the state's permission to provide those services off the Reservation. Docket 250 at 11. Here, Sprint's argument concerns the court's reference to NAT's authority to provide telecommunications services “off the Reservation.” Sprint asserts that although NAT applied for a certificate of authority from the SDPUC to provide services both on and off of the Reservation, the SDPUC only addressed those services offered by NAT on the Reservation. Sprint asks the court to reconsider the court's description of the scope of NAT's authority and to revisit the court's legal conclusion to deny Sprint's summary judgment motion on this issue. Docket 257 at 8 (“The Court should correct that misstatement ... and grant Sprint's motion for summary judgment as to the time period before June 12, 2014.”). The court denies Sprint's motion for reconsideration. To the extent that Sprint's factual argument is an accurate summary of what the SDPUC considered, the alleged factual error does not change the court's analysis. The court found that the tribal regulatory agency “expressly granted NAT ... permission to provide local telecommunications services on the Crow Creek Reservation.” Docket 250 at 11 (emphasis added). The court also found that “the Tribe possessed its own authority to confer such permission upon NAT.” Id. In other words, the court found that NAT was operating as a CLEC on the Reservation since 2008 by virtue of the tribal regulatory agency's grant of authority. Thus, the court disagreed with Sprint's argument that NAT was
not a CLEC prior to receiving a certificate of authority from the SDPUC in 2012. Although NAT also sought and eventually received permission from the SDPUC, that does not mean that the Tribe was without sufficient authority to grant NAT permission to operate on the Reservation. Thus, Sprint's motion for reconsideration is denied.
II. Sprint's Motion for Partial Summary Judgment [2] Sprint moves for partial summary judgment on Count 1 of its complaint. Count 1 asserts that NAT violated the Communications Act by improperly billing Sprint for access charges. Docket 1 at 15-17.
LEGAL STANDARD [3] [4] [5] [6] Summary judgment on all or part of a claim is appropriate when the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also In re Craig, 144 F.3d 593, 595 (8th Cir.1998). The moving party can meet its burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, “[t]he nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir.2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995)). “Further, ‘the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. ... Instead, the dispute must be outcome determinative under prevailing law.’ ” Id. (quoting Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992)). The facts, and inferences drawn from those facts, are “viewed in the light most favorable to the party opposing the motion” for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).
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DISCUSSION *3 Section 201(b) of the Communications Act provides that any “charge, practice, classification, or regulation that is unjust or unreasonable is deemed to be unlawful[.]” 47 U.S.C. § 201(b). And under § 207 of the Act, any person may seek compensation in federal court for damages arising under a violation of § 201(b). 47 U.S.C. § 207; Glob. Crossing Telecomms., Inc. v. Metrophones Telecomms. Inc., 550 U.S. 45, 47, 127 S.Ct. 1513, 167 L.Ed.2d 422 (2007) (“Communications Act language links § 201(b) to § 207, which authorizes any person ‘damaged’ by a violation of § 201(b) to bring a lawsuit to recover damages in federal court.”). One method of demonstrating that a party has engaged in an unjust or unreasonable practice is to show that the practice violates an FCC rule or regulation that implements § 201(b). Glob. Crossing Telecomms., Inc., 550 U.S. at 54, 127 S.Ct. 1513 (explaining that “the FCC has long implemented § 201(b) through the issuance of rules and regulations.”). The FCC has declared as unjust and unreasonable the practice of billing for access services that are not provided to an “end user” or “customer” under the terms of a LEC's interstate tariff. See In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., 24 FCC Rcd. 14801, ¶ 26 (FCC 2009) (Farmers II) (concluding that the free conference calling companies were not “end users” under Farmers' tariff and “that Farmers' practice of charging Qwest tariffed switched access rates for its termination of traffic from the conference calling companies is unjust and unreasonable in violation of section 201(b) of the Act.”). 1 The FCC has also declared as unjust and unreasonable the practice of tariffing access charges for calls to entities to whom the LEC offers free service. In the Matter of Qwest Commc'ns Co., LLC, v. Northern Valley Commc'ns, LLC, 26 FCC Rcd. 8332, ¶ 9 (FCC 2011) (Northern Valley I) (explaining that Northern Valley's tariff violated § 201(b) because it “purports to permit Northern Valley to charge IXCs for calls to or from entities to whom Northern Valley offers its services free of charge [.]”). 2 The court addressed in its August 5, 2015 order whether NAT's various interstate tariffs were lawful or otherwise enforceable. Of relevance to Sprint's pending summary judgment motion is NAT's original and revised tariff number 1. This court found:
NAT's interstate tariff number 1 was filed with the FCC and became effective on September 15, 2009. It was then revised and amended on October 21, 2009, to be effective on October 22, 2009. Docket 250 at 16 (internal citations omitted). 3 The court concluded that NAT attempted to bill Sprint for access services involving calls delivered to Free Conferencing, but based on the particulars of the NATFree Conferencing relationship, Free Conferencing was not an “end user” or “customer” under the terms of NAT's original and revised tariff number 1. Docket 250 at 22-23. Thus, under the FCC's Farmers line of cases, NAT was not entitled to bill Sprint for those calls. The court concluded that NAT's original and revised tariff number 1 purported to allow NAT to bill Sprint for access charges for calls delivered to entities (namely Free Conferencing) to whom NAT offered free service. Id. at 17–18. Thus, under the FCC's Northern Valley line of cases, the court concluded that NAT could not enforce its original and revised interstate tariff number 1. *4 Sprint's motion for summary judgment asks the court to declare explicitly what Sprint argues was stated implicitly: NAT violated § 201(b)'s prohibition on unjust and unreasonable practices by improperly billing Sprint for access charges under NAT's original and revised tariff number 1. Although NAT disagrees with the court's conclusions in the August 5, 2015 order, NAT acknowledges that “applying the Court's ruling leads to the summary judgment determination that Sprint seeks in its Motion.” Docket 263 at 2. The court agrees. The court has already determined that NAT improperly billed Sprint in contravention of Farmers and Northern Valley. Because the FCC has determined that the practices NAT engaged in are unjust and unreasonable (and therefore unlawful) under § 201(b), Sprint is entitled to summary judgment in its favor on this claim. Thus, under § 207, Sprint is entitled to damages. [7] Sprint paid $29,170.27 to NAT during the time that NAT's original and revised tariff number 1 was in effect. Docket 260 at 2. NAT acknowledges that it has received that amount. Docket 263 at 1-2. The parties dispute, however, when the issue of damages should be decided. According to NAT, the court should await the outcome of the parties' trial and assign damages as part of a final
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order as opposed to doing so in a piecemeal fashion. Sprint argues that judgment should be entered now, along with prejudgment interest. The court agrees and directs Sprint to calculate the prejudgment interest as of March 17, 2016, and to file its calculation by March 4, 2016. NAT shall file any objections by March 14, 2016. [8] Sprint also seeks an award of attorneys' fees. Section 206 of the Communications Act provides that In case any common carrier shall do ... any act, matter, or thing in this chapter prohibited or declared to be unlawful, ... such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case. 47 U.S.C. § 206. This statute provides for the award of reasonable attorneys' fees to the injured party in cases where the court has determined that the injured party is entitled to recover damages. Am. Tel. & Tel. Co. v. United Artists Payphone Corp., 852 F.Supp. 221, 225 (S.D.N.Y.1994) (“Thus, the Court concludes that under 47 U.S.C. § 206, attorney's fees may only be awarded to a party that has recovered damages.”), aff'd 39 F.3d 411 (2d Cir.1994). Because the court has concluded that Sprint is entitled to recover damages on Count 1 of its complaint, Sprint is also entitled to an award of its reasonable attorneys' fees. The amount of reasonable attorneys' fees will be determined after trial.
III. The Parties' Cross Motions to Compel LEGAL STANDARD Several amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Those amendments “shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” 4 Although the
commencement of this case predates those amendments by more than five years, both of the parties' motions to compel were filed after December 1, 2015. Thus, “as just and practicable,” the amended Federal Rules of Civil Procedure will apply. The scope of discovery in a civil case is governed by Federal Rule of Civil Procedure 26. As amended, the rule provides that unless otherwise limited by a court order, the parties may discover any non-privileged matter that is “relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Chief Justice John Roberts wrote in his YearEnd Report on the Federal Judiciary that amended Rule 26(b)(1) “crystalizes the concept of reasonable limits on discovery through increased reliance on the commonsense concept of proportionality.” 5 Whether a discovery request is proportional is determined by considering “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Evidence that falls within this scope is discoverable even if it would not be admissible at trial. Id. *5 Both parties' motions to compel concern Rule 33 interrogatories and Rule 34 requests for production. Amended Rule 33 now refers to Rule 26(b)(1) as well as Rule 26(b)(2). Fed. R. Civ. P. 33(a)(1). This addition is meant “to reflect the recognition of proportionality in Rule 26(b)(1).” Advisory Committee Notes (2015 Amendment). Amended Rule 34(b) now prohibits boilerplate objections and requires a party objecting to a request for production to “state with specificity the grounds for objecting, including the reasons” and “whether any responsive materials are being withheld.” Fed. R. Civ. P. 34(b)(2)(B), (C). Thus, “[a]n objection may state that a request is overbroad, but ... should state the scope that is not overbroad.” Advisory Committee Notes (2015 Amendment). And “[t]he producing party ... need[s] to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.” Id. Amended Rule 34 also contains a new provision that “[t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B).
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If a party resists discovery, the requesting party may move for an order compelling disclosures or discovery. Fed. R. Civ. P. 37(a)(1). The Supreme Court has long recognized that “[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
whether NAT properly billed Sprint for access charges under that tariff depends on whether Free Conference is an “end user” or “customer” under the terms of the tariff. Id. Under this analysis, the court must apply a multi-factor test, articulated by the FCC, that assesses the actual business relationship between NAT and Free
Conferencing. Id. 6 Those factors include: (1) Whether the conference calling companies would pay for the LEC's services; (2) Whether the LEC treated the conferencing company like other customers; (3) Whether the LEC and conference companies operated under an exclusivity [9] [10] The requesting party must make a threshold agreement; (4) Whether the LEC handled the conferencing showing that the requested information falls within company's traffic differently; (5) Whether the LEC's the scope of discovery under Rule 26(b)(1). Hofer v. agreements with the conference companies contained Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.1992). terms that did not resemble traditional agreements for “Mere speculation that information might be useful will tariffed services; and (6) Whether the LEC timely reported not suffice; litigants seeking to compel discovery must revenues from its services or submitted Universal Service describe with a reasonable degree of specificity, the contributions. See Farmers II, 24 FCC Rcd. 14801 at ¶¶ information they hope to obtain and its importance to 12–20. The court concluded that material facts concerning their case.” E.E.O.C. v. Woodmen of the World Life the NAT-Free Conferencing relationship were genuinely Ins. Soc., No. 8:03–CV–165, 2007 WL 1217919 at *1 disputed, and therefore, the Farmers analysis could not be (D.Neb. Mar. 15, 2007) (citing Cervantes v. Time, Inc., applied summarily. Docket 250 at 30-31. 464 F.2d 986, 994 (8th Cir.1972)). Once the requesting party has satisfied its threshold showing, the burden then *6 The court and parties discussed the issues in this shifts to the party resisting discovery to show specific case that remained for trial at the status conference. facts demonstrating that the discovery is irrelevant or According to counsel for NAT, NAT's primary concern disproportional. See Penford Corp. v. Nat'l Union Fire was a determination of its rights with respect to its right Ins. Co., 265 F.R.D. 430, 433 (N.D.Iowa 2009); St. Paul to receive payment under its tariff number 3 from the Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. effective date of the CAF Order going forward. Docket 254 508, 511 (N.D.Iowa 2000). But the articulation of mere at 7, 8-9. The CAF Order became effective on December conclusory objections that something is “overly broad, 29, 2011. The parties agreed that discovery should be burdensome, or oppressive,” is insufficient to carry the allowed from that point through 2015. Sprint estimated resisting party's burden—that party must make a specific that it had received some discovery up through 2013 showing of reasons why the particular discovery should but that Sprint would require additional and updated not be had. Cincinnati Ins. Co. v. Fine Home Managers, information for 2014 and 2015. Id. at 8. Sprint explained Inc., Civ. No. 4:09–CV–234–DJS, 2010 WL 2990118, at *1 that the bulk of the discovery it required would be (E.D.Mo. July 27, 2010); see also Burns v. Imagine Films circumscribed to exploring the NAT-Free Conferencing Entm't, Inc., 164 F.R.D. 589, 593 (W.D.N.Y.1996). relationship within the framework of the FCC's Farmers analysis. Id. at 10. The court allowed the parties to conduct discovery concerning NAT's request for payment under its interstate [11] [12] In its August 5, 2015 order, the court denied tariff number 3. Id. at 13 (reiterating that “NAT is limiting Sprint's motion for summary judgment as it pertained its request for damages to any charges after the CAF to NAT's tariff number 3. That tariff was filed on Order forward.”). The court stated: “The documents need August 8, 2011, to become effective August 23, 2011. to be updated. Any depositions will be limited to just new Docket 250 at 30. The court found that NAT's tariff facts during the periods of 2014 and 2015.” Id. at 254. A number 3 was analytically indistinguishable from the tariff scheduling order to that effect was entered the same day. at issue in the FCC's Farmers line of cases. Id. Thus, Docket 253. 7 DISCUSSION
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A. Meet and Confer Requirement [13] Rule 37(a)(1) requires the parties to meet and confer in good faith to attempt to resolve discovery disputes prior to filing a motion to compel. Fed. R. Civ. P. 37(a) (1). In addition, this court's local rules impose a similar requirement. See D.S.D. Civ. L.R. 37.1. Based on the affidavits and exhibits submitted by both parties, the court is satisfied that the meet and confer requirement has been fulfilled regarding both motions to compel.
B. Sprint's Motion to Compel [14] Before addressing the specifics of Sprint's motion, the court must address a reoccurring contention regarding many of Sprint's discovery requests and NAT's responses to them. Almost all of NAT's responses contain an objection that Sprint is improperly attempting to discover information from prior to 2014. Following the September 15, 2015 status conference, the court entered a scheduling order that stated: “Discovery should be limited to new facts that have developed during 2014 and 2015.” Docket 253 at 1; Docket 267 at 1 (amended scheduling order). NAT reads the court's order to preclude discovery of any information prior to 2014. See, e.g., Docket 272 at 8 (“The Court's pretrial order of September 15, 2015 limited discovery to ‘new facts that have developed [during] 2014 and 2015.’ ”). NAT stated that it will argue at trial that it is entitled to collect the access charges it has billed to Sprint from December 29, 2011 through 2015. One of the primary issues at trial will be the application of the Farmers analysis to the NAT-Free Conference relationship during that timeframe. The Farmers analysis is fact-driven and whether an entity is treated as an “end user” or “customer” can change over time. As the court explained in its August 5, 2015 order: “It is apparent from the [2012] amended agreement that NAT and Free Conferencing set out to alter their relationship, but it is unclear whether they in fact did so or actually reached a mutual agreement to do so.” Docket 250 at 31. In other words, the court could not adjudicate summarily when or if Free Conferencing became an “end user” or “customer” under the terms of NAT's tariff number 3. Under NAT's view, however, Sprint would be precluded from discovering any relevant information from late 2011 until 2014 that bears on the answer to that question.
*7 The court disagrees; neither the court's discovery order nor principles of basic fairness support NAT's position. Sprint acknowledged that it obtained some discovery concerning the NAT-Free Conferencing relationship through 2013, but Sprint was unsure whether it possessed complete records for that time and also requested discovery through 2015. As the court directed, the discovery Sprint previously received would need to be updated. The court's use of the word “should” and its reference to “new facts that have developed during 2014 and 2015” in the scheduling order is meant to avoid duplicative discovery. But the court's order does not, as NAT suggests, mean that Sprint must rely solely on the information prior to 2014 that Sprint already has in its possession. As a matter of basic fairness, it would be unjust to insulate the NAT-Free Conferencing relationship from inquiry prior to 2014 because that period of time may be critical to the Farmers analysis. Similarly, it would be unjust to allow NAT to support its arguments with relevant evidence prior to 2014 while simultaneously prohibiting Sprint from discovering relevant evidence prior to 2014. Thus, if Sprint has properly requested otherwise discoverable information, NAT's objection to the request because it is not limited to information from 2014 and 2015 is overruled.
1. Interrogatories Interrogatory No. 15: For periods between January 2012—present, and for calls from Sprint to NAT numbers assigned to Free Conferencing or another Call Connection Company, identify (by type, manufacturer, model number, quantity, and ownership) the equipment on the Reservation that NAT used to deliver calls to the Call Connection Company, and identify (by type, manufacturer, model number, quantity, and ownership) the equipment used by the Call Connection Company to terminate the calls. NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. Subject to that objection, NAT states that there are no new facts responsive to this interrogatory. Docket 270-3at 4. Sprint attests that it has not received the type of information sought by this interrogatory. Docket 270 at
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¶ 12. Sprint also asserts that it has learned recently that additional conference calling companies other than Free Conferencing are receiving calls through NAT. According to Sprint, the information sought by its interrogatory would be relevant to the Farmers analysis because it could show that NAT handled the conference calling companies' traffic differently than it did for other customers. NAT responds that the interrogatory is overbroad because it seeks information about conference calling companies other than Free Conferencing. NAT states it will not attempt to recover access fees for calls delivered to any other conference calling company. And NAT asserts that because no new facts have developed between 2014 and 2015, NAT is not obligated to provide a further response. The court grants Sprint's motion to compel in part and denies it in part. In Farmers II, the FCC noted that “Farmers provided connections to the conference calling companies in a manner that differed from those made available to customers of its tariffed services.” Farmers II, 24 FCC Rcd. 14801 at ¶ 13. The Commission explained that Farmers provided the conference calling companies with highcapacity DS3 trunks that fed into trunk-side connections, to a brand new “soft switch” that Farmers purchased specifically to handle traffic bound for the conference calling companies rather than the Nortel DMS-10 circuit switch used to serve all of Farmers' other customers. Id. Thus, the type of equipment that is used to deliver and terminate calls to Free Conferencing is relevant to the issue of whether NAT treated Free Conferencing differently than its other customers. NAT must provide that information to Sprint—including the information from 2012. But because NAT will not seek compensation for calls delivered to any entities other than Free Conferencing, NAT does not need to furnish information about the type(s) of equipment and connections used by those other conference calling companies. [15] Interrogatory No. 16: For periods between January 2012—present, identify and describe what connected NAT equipment on the Reservation with Free
Conferencing equipment on the Reservation, who owns it, and identify the capacity of such connection(s). *8 NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. Subject to that objection, NAT states that there are no new facts responsive to this interrogatory. Docket 270–3 at 4. Like the information sought by Sprint's interrogatory number 15, Sprint argues that the information sought in this interrogatory is relevant to the issue of how NAT treated Free Conferencing compared to its other customers. Sprint also argues that whether Free Conferencing paid for the connection(s) would be relevant to the issue of whether Free Conferencing paid for any of the services provided to it by NAT. NAT responds that Sprint is attempting to argue that NAT is a sham entity and that the court has already disposed of that argument in an earlier order. NAT is correct that the court determined Sprint is precluded from arguing that NAT is a sham entity that exists only to generate access traffic. See Docket 250 at 40 (giving preclusive effect to the findings of the SDPUC). Nonetheless, Sprint is entitled to discover the information sought by its interrogatory because that information is relevant to the Farmers analysis. In Farmers II, the FCC observed that the connection equipment and soft-switch that Farmers purchased to handle the traffic delivered to the conference calling companies “was connected directly to the conference calling companies' conference bridges, which were located in Farmers' end office.” Farmers II, 24 FCC Rcd. 14801 at ¶ 13. And the Commission noted the “host of services” Farmers provided to the conferencing companies without cost supported its finding that the conference calling companies were not “end users” or “customers.” Id. at ¶¶ 12–13 n.50 (“Prior to this litigation, Farmers did not bill the conference calling companies for any of this equipment, facilities, power, or services that it provided.”). Thus, NAT must respond fully to Sprint's interrogatory. [16] Interrogatory No. 17: Describe any changes/ modifications/updates to the diagram labeled as “Scenario 3” (and discussed at page 44 of the February 13, 2015 Roesel Deposition). Include a description of
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the change to the tandem provider reflected at page 43 of the Roesel Deposition, and the V&H coordinates for the location at which NAT receives Sprint calls from the new tandem provider. NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. Subject to that objection, NAT states that the answer to the above interrogatory may be found within the documents NAT agrees to produce in response to Sprint's requests for documents set forth below. NAT will produce these documents after the parties execute a mutually agreeable confidentiality stipulation.
Conferencing, including the quantity of each service; the rate of each service; all features and practices associated with the provision of each service; and the specific tariff or contract provision(s) pursuant to which each service, good, or product has been provided.
Docket 270–3 at 4–5.
NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. NAT also objects on the ground that the request is overbroad to the extent it seeks information about agreements with carriers besides Sprint. Such agreements are not reasonably calculated to lead to the discovery of admissible evidence. NAT also objects on the ground that the interrogatory is vague, ambiguous, and does not sufficiently describe the information sought.
The diagram referenced in Sprint's interrogatory is one of several so-called “call flow diagrams” that Sprint obtained during the SDPUC proceeding. Sprint cited the diagrams in support of one of its motions for summary judgment, and the court described the diagrams in the court's order denying Sprint's motion for summary judgment. See Docket 243 at 11-21. The diagrams contain a number of illustrations and are accompanied by a “Scenario” that describes in technical terms what the illustrations depict. The diagrams explain how calls are routed and ultimately delivered to NAT.
Subject to those objections, NAT states that Free Conferencing is a customer of NAT and receives access service. The quantity, rate, features, practices and tariff or contract provisions of that service are contained within the 2012 Amended Service Agreement between NAT and Free Conferencing already in the possession of Sprint, as well as the amended agreement and other documents to be produced in response to Sprint's request for documents set forth below after the parties execute a mutually agreeable confidentiality stipulation.
*9 According to Sprint, NAT has provided updated diagrams, but NAT did not provide an updated description (the accompanying “Scenario”). Sprint also contends that NAT did not identify the V&H coordinates as sought by the interrogatory. NAT asserts that it has produced everything sought by the interrogatory and that Sprint did not ask for a description of the diagrams in its interrogatory. Docket 272 at 10 (“Sprint now claims it is entitled to a description of that diagram, but that is not what the interrogatory requests.”). The court disagrees. The interrogatory not only asked NAT to “[d]escribe” any changes to the diagram but also asked NAT to “[i]nclude a description” of certain specific parts of the diagram. Thus, NAT must provide an appropriate description and identify the V&H coordinates as sought by the interrogatory. [17] Interrogatory No. 18: For periods between January 2012 and the present, identify and describe all services, goods, or products that you have provided to Free
Docket 270–3 at 5. Sprint argues that the information sought by this interrogatory is relevant to the issue of how NAT treated Free Conferencing in comparison to NAT's other customers. Also, Sprint asserts that it is relevant to the issue of whether Free Conferencing paid for any of the services it received from NAT. Sprint attests that NAT sent only limited billing information and that the bills NAT produced do not identify the tariff or contract provision by which certain services were provided. Docket 270 at ¶ 20. NAT responds that Sprint has already received an amended service agreement that regulates the NATFree Conferencing relationship. NAT also argues that it has provided all the 2014 and 2015 invoices that it sent to Free Conferencing. The court agrees that the information sought by Sprint is relevant under the Farmers analysis. More specifically, it is relevant to how NAT treated Free Conferencing
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in relation to its other customers and to whether Free Conferencing paid for any of the services it received from NAT. NAT must identify the services, goods, and/or products that it provided to Free Conferencing from December 29, 2011 through 2015. NAT must also identify or describe the quantity of what was provided and the tariff or contract provision under which the services, goods, or products were provided. As to the amended service agreement referenced by NAT, the court previously described the document as follows: Additionally, the document that purports to replace the 2009 service agreement is not a new document but rather a redlined version of the original. Docket 240–8. A number of clauses are incomplete, and it is not clear if the document was ever completed or carried any legal effect. *10 Docket 250 at 21-22. The 2009 agreement allowed Free Conferencing to receive a number of services for free, and the court found that “whatever compensation NAT was to receive [under the 2012 agreement] for the services it provided to Free Conferencing (such as Internet access, electrical power, and labor) was not filled in.” Id. at 22. In other words, even if the amended agreement is a valid contract, it does not describe the rate(s) applicable to the services or the quantity of service provided as sought by the interrogatory. Thus, NAT must identify and describe that information. 8 [18] Interrogatory No. 20: Identify the total number of minutes delivered to NAT for termination on a monthly basis from November 2013-present, and the total number of minutes delivered each month to NAT for termination that were destined to Free Conferencing. NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. NAT also objects to the extent the request seeks minutes delivered to NAT [by] carriers other than Sprint. Subject to those objections, NAT states that the answer to the above interrogatory may be found within the documents NAT agrees to produce in response to Sprint's requests for documents set forth below. NAT will produce these documents after the parties execute a mutually agreeable confidentiality stipulation.
Docket 270–3 at 6. Sprint attests that NAT produced only the number of minutes that NAT billed to Sprint “broken down by calling company.” Docket 270 at ¶ 22. Sprint argues that the total number of minutes delivered to NAT for termination with Free Conferencing from all carriers is relevant to the Farmers analysis. Specifically, because a single telephone line can deliver only a finite number of minutes of traffic per day, Sprint argues that it may be able to demonstrate that NAT has provided Free Conferencing with more lines and thus more services than what NAT has previously reported. And if NAT is underrepresenting the number of lines it provides to Free Conferencing, then Sprint could show that NAT is not treating Free Conferencing like any other customer. NAT argues that the data concerning other carriers is irrelevant because the only calls for which NAT is seeking compensation are the calls delivered to NAT by Sprint. In Farmers II, the FCC found it significant that the conference calling companies did not pay for any of the services provided by the LEC, including connections to the interexchange network. Farmers II, 24 FCC Rcd. 14801 at ¶ 12 (explaining that the parties' agreements showed the conference calling companies would not “pay Farmers for their connections to the interexchange network, as would ordinary end-user customers under the tariff.”). The information sought by Sprint is relevant because it could show how many connections were provided to Free Conferencing. NAT has not made any showing that Sprint's request is not proportional or otherwise unduly burdensome. Thus, Sprint's motion to compel a full response to this interrogatory is granted. [19] Interrogatory No. 21: For 2014-2015, identify (by name, telephone number(s) assigned, service address, and dates of service) those individuals or entities you provided service to. *11 NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the Court during the status conference on September 15, 2015. Subject to those objections, NAT states that the answer to the above interrogatory may be found within the documents NAT agrees to produce in response to Sprint's requests for documents set forth below,
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namely the list of customers to whom NAT has provided service in 2014 and 2015. NAT will produce these documents after the parties execute a mutually agreeable confidentiality stipulation. Docket 270–3 at 6–7. Sprint argues that this information is relevant because it cannot determine how NAT treated its other customers if Sprint does not know the identity of the other customers. Sprint attests that it received a list containing some customer data from NAT, but the list does not contain the names, numbers, or other information related to any conference calling companies (including Free Conferencing). Docket 270 at ¶ 23. Thus, Sprint argues NAT's response is incomplete. NAT responds that the interrogatory is overly broad and that it seeks irrelevant information because NAT will not attempt to recover for calls placed to any entities other than Free Conferencing. The court finds that Sprint is entitled to receive the information sought by this interrogatory. Although NAT will not seek compensation for calls delivered to entities other than Free Conferencing, Sprint should be provided the identifying data concerning those individuals or entities that receive NAT's services. This is especially true of Free Conferencing, and NAT does not refute Sprint's assertion that NAT failed to provide Sprint with the identifying data ascribed to Free Conferencing. Thus, NAT must fully respond to Sprint's interrogatory.
2. Requests for Production [20] Request for Production No. 19: Provide profit and loss, general ledger, and balance sheet information for 2014 and any portion of 2015 where it is available. If there have been any restatements to prior years that change what had been previously provided in discovery for 2012-2013, please provide any restated documents. NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the court during the status conference on September 15, 2015. NAT also objects to this request on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Sprint's claim that NAT is a “sham” is precluded by the Court's order that it is collaterally estopped from pursuing
that contention. NAT also objects to producing any responsive documents without a Confidentiality Stipulation in place. NAT agrees to meet and confer with Sprint to execute a Confidentiality Stipulation. Subject to those objections, NAT will produce its profit and loss statements, and balance sheets covering 2014 and 2015. As for the “general ledger,” NAT objects on the basis that the request is overbroad in this modern age where the term “general ledger” can refer to many things. NAT objects to producing all data in its electronic accounting database, as it includes such things as bank account numbers and employee information. NAT agrees to meet and confer with Sprint in an effort to define the scope of the information that is relevant to the remaining issues before the court and not addressed by other documents being provided. *12 Docket 270–3 at 9. Sprint argues that NAT's response is incomplete because NAT has not produced the general ledger information sought by Sprint's request. Sprint also contends that it represented to NAT that sensitive data such as personal financial information or account numbers could be redacted from NAT's general ledger. NAT acknowledges that it possesses the general ledger information sought by Sprint but argues that NAT should not have to produce its general ledger because it is no longer relevant in this case. According to NAT, its general ledger could be sought by Sprint only for the purpose of arguing that NAT is a sham entity, an issue this court has resolved against Sprint. NAT also argues the request is overbroad because NAT will not seek compensation for calls delivered to any conference calling company except Free Conferencing. The court grants Sprint's motion to compel in part and denies it in part. In Farmers II, the FCC highlighted the importance of analyzing the flow of money between an LEC and the conference calling companies. Farmers II, 24 FCC Rcd. 14801 at ¶ 12 n. 49 (“To the contrary, the flow of money between these parties is essential to analyzing their relationship because the tariff expressly contemplates and requires payments to Farmers, not payments that flow in the reverse direction.”). The court's August 5, 2015 order considered NAT's general ledger and accounting documentation in its analysis. Docket 250 at 18 (“Similarly, several income statements and ledgers produced during the SDPUC proceeding show that Free Conferencing did not pay NAT until September
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12, 2011.”). Thus, NAT's general ledger is relevant. At the same time, however, the court finds that Sprint's request that NAT produce the entirety of its general ledger for 2014 and 2015 is disproportionate to the needs of the case. The animating substance of Sprint's request is Sprint's need to determine whether NAT billed Free Conferencing for the various services that NAT provided, whether Free Conferencing paid those bills, and whether NAT and Free Conferencing maintained a revenue sharing arrangement. Although the flow of money between NAT and Free Conferencing is relevant, Sprint has not shown that it should be entitled to the entirety of NAT's general ledger. Thus, NAT must produce its general ledger from 2014 and 2015 (as well as any restatements to it from earlier periods, if any) as it concerns Free Conferencing. [21] Request for Production No. 40: Produce communications from 2012 to the present between NAT (including NAT's attorneys) and Carey Roesel (and/or Mr. Roesel's company, Technologies Management Inc.) regarding NAT's regulatory compliance obligations, NAT's collection and/or remittance of taxes and fees, and any filings made with the South Dakota Commission, the Federal Communications Commission, the Crow Cree Tribal Utility Authority, and/or the Universal Service Administrative Company. Sprint does not seek production of draft expert reports or draft expert disclosures. *13 NAT Response: NAT objects to this request to the extent it is not limited to “new facts during the periods of 2014 and 2015,” as ordered by the court during the status conference on September 15, 2015. NAT also objects to this request to the extent it calls for the production of documents covered by the attorney-client privilege, the work product doctrine, or the protection according to Fed. R. Civ. P. 26(b)(4). Subject to those objections, NAT will produce any non-privileged responsive documents in its possession, custody and control after a mutually agreeable confidentiality stipulation is executed. Docket 270–3 at 17. 9 Sprint attests that it has neither received any documents that appear to be responsive to its request nor has NAT produced a privilege log. Docket 270 at ¶¶ 9, 26. NAT responds that it intends to supplement its response by producing non-privileged documents and to “serve
a privilege log if required under the applicable rules.” Docket 272 at 13. The focus of Sprint's request concerns documents that bear on NAT's compliance with applicable telecommunications regulations as well as NAT's collection and remittance of various taxes and fees. Although neither party addressed the relevance of Sprint's inquiry, the court presumes Sprint's request is premised on the sixth Farmers factor. That is, whether the LEC has timely reported revenues from its services or submitted Universal Service contributions. Farmers II, 24 FCC Rcd. 14801 at ¶ 25 n.97 (“If Farmers had been providing interstate end-user telecommunications services to Qwest or the conference calling companies, then Farmers should have timely reported revenues from those end-user services and paid universal service contributions based on them”). Thus, the court finds that the information Sprint seeks is relevant. “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material ... the party must expressly make the claim; and describe the nature of the documents ....” Fed. R. Civ. P. 26(b)(5). The resisting party must “provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.” Advisory Committee Notes (1993 amendment). Thus, if NAT believes any of the documents requested by Sprint are privileged or otherwise protected, NAT must disclose a log describing the basis for the claimed privilege or protection. Otherwise, NAT must produce the documents sought by Sprint.
C. NAT's Motion to Compel 1. NAT's contention interrogatories [22] Interrogatory No. 6: State all facts that support every dispute and notice of dispute sent by or on behalf of Sprint to NAT during 2014 and 2015. Sprint Response: Sprint objects to this interrogatory as overbroad. Subject to that objection, with respect to 2014-2015, Sprint has not been provided information showing that calls to NAT's calling company partner(s) generate compensable access charges under NAT's FCC Tariff No. 3. Instead,
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Sprint's assessment that NAT lacked tariff authority to bill Sprint, and that Free Conferencing was not a legitimate end-user subscriber under the FCC's Farmers II test is based on the following: • The 2009 Agreement • The 2012 Agreement • NAT's tariffs and facts regarding the manner in which services were provided to Free Conferencing • The invoices issued from NAT to Free Conferencing *14 • Discovery responses identifying the services provided to Free Conferencing • Discovery responses identifying NAT's failure to collect and/or remit the proper fees and surcharges • Testimony from Holoubek, Erickson, and Roesel regarding NAT's operations, NAT's billing practices, NAT's provision of numerous services to Free Conferencing without proper compensation, and NAT's sharing of access revenue with Free Conferencing • See also Sprint's post hearing briefs in South Dakota PUC Docket No.. Discovery is continuing as to February of 2014 forward. To date, Sprint has been provided with no facts that convince Sprint that NAT had legitimate end-users. Moreover, documents related to an investigation done by Ms. Clouser and provided in response to NAT's document requests demonstrate that NAT is serving new entities that provide international pass-through capabilities and or access to radio feeds, so that calls to those numbers do not terminate with NAT. Docket 273–3 at 5–6. Sprint has sent NAT letters disputing Sprint's obligation to pay the charges that NAT has billed to Sprint. NAT's interrogatory asks Sprint to provide the facts that support Sprint's position(s) in its letters. NAT argues that Sprint's response is improper. According to NAT, its interrogatory asked for “all facts” supporting Sprint's position(s), but Sprint merely provided a generalized summary and a bulleted list that non-specifically referred to various documents. Sprint argues that its response was
sufficient and, to the extent that it is insufficient, that counsel from Sprint has supplemented Sprint's original answer in a subsequent letter. That letter is six pages long. Approximately four-and-one-half of those pages contain the factual points behind Sprint's argument that NAT is not entitled to collect the access charges that NAT billed Sprint under NAT's tariff number 3. See Docket 273–9. NAT argues that Sprint's letter is improper. The court must first address the interrogatory itself. NAT's interrogatory number 6 is a contention interrogatory. A contention interrogatory asks “another party to indicate what it contends, to state all the facts on which it bases its contentions, to state all the evidence on which it bases its contentions, or to explain how the law applies to the facts.” Dziadek v. Charter Oak Fire Ins. Co., No. Civ. 11–4134–RAL, 2014 WL 820049 at *16 (D.S.D. Mar. 3, 2014) (quoting Black Hills Molding, Inc. v. Brandom Holdings, LLC, 295 F.R.D. 403 (D.S.D.2013) (Duffy, Magistrate Judge)). When properly used, contention interrogatories can be helpful “in that they may narrow and define the issues for trial and enable the propounding party to determine the proof required to rebut the responding party's claim or defense.” Moses v. Halstead, 236 F.R.D. 667, 674 (D.Kan.2006). But broadly phrased contention interrogatories that require a lengthy narrative explaining a party's claims or defenses can be oppressive or unduly burdensome, and “ ‘[a] litigant may not compel his adversary to go to work for him.’ ” Poulos v. Summit Hotel Props., LLC, No. Civ 09–4062–RAL, 2010 WL 2640394 at *2 (D.S.D. July 1, 2010) (quoting Breeland v. Yale & Towne Mfg. Co., 26 F.R.D. 119, 120 (E.D.N.Y.1960)). Although NAT's interrogatory asks for “all facts” supporting Sprint's position, the major issue of contention is the application of the Farmers analysis to the NAT-Free Conferencing relationship. Because that analysis is fact-driven, NAT should be allowed to discover the facts that Sprint believes supports its argument. Thus, the court is satisfied that the interrogatory is not unduly burdensome. *15 [23] As for Sprint's initial response, the court finds that the response is insufficient. Sprint merely told NAT what it already knew, i.e., that Sprint believed that NAT could not collect its access charges based on the Farmers analysis. But that is a conclusion. What NAT sought were the facts supporting Sprint's conclusion. And Sprint cannot satisfy its obligation to respond to NAT's interrogatory by referring NAT to a mass of documents.
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Cf. Black Hills Molding, 295 F.R.D. at 414 (“More is required of Black Hills Molding than merely referring ... to the entirety of its document production.”). Rather, Sprint needs to provide the facts supporting its argument that NAT is not entitled to collect its access charges. [24] Regarding Sprint's supplemental letter, the court finds that the letter is procedurally deficient and therefore improper. Under the Federal Rules of Civil Procedure, interrogatories must be signed, under oath, by the party itself, not by the party's attorney. Fed. R. Civ. P. 33(b) (the party must answer each interrogatory separately and fully in writing under oath, and the attorney signs only as to objections that are raised). Sprint's initial interrogatory responses were signed and verified by Amy Clouser, “an Access Verification Analyst III within Sprint's Access Verification Department.” Docket 273–3 at 13. Sprint's letter is signed by one of Sprint's attorneys in this matter. While an attorney may answer interrogatories on behalf of a corporation when the attorney acts as the corporation's officer or agent, Fed. R. Civ. P. 33(b)(1)(B), the letter from Sprint's counsel is not signed under oath, and it is not clear that Sprint designated its counsel to act as its agent. Thus, Sprint's letter is an improper answer to NAT's interrogatory. Sprint argues that its letter is, nonetheless, a proper supplement under Rule 26(e). Rule 26(e) imposes a continuing duty on a party ... who has responded to an interrogatory ... [to] supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.] Fed. R. Civ. P. 26(e)(1)(A). Sprint focuses on the last clause's reference to supplemental information that has “otherwise been made known.” According to Sprint, its letter was “in writing,” and therefore Sprint was not required to supplement its interrogatory answer in accordance with Rule 33, i.e., with an answer signed under oath by the party. The court disagrees. Under Sprint's view, a party could shirk the attestation requirement of
Rule 33 by providing an evasive or incomplete answer to an interrogatory and then advancing a host of facts in an unsworn letter disguised as a supplement. But interrogatories are intended to be a relatively inexpensive discovery method used to obtain sworn answers from an opposing party. See 8B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 2163 (3d. ed) (hereinafter Wright & Miller). Sprint's view would render nugatory the utility of the interrogatory and the value of an interrogatory response. Therefore, Sprint must provide a signed supplement to NAT's interrogatory number 6. See, e.g., Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D. 463, 467 (M.D.Fla.2008) (“Thus, if a party amends or supplements its response, the party must attest to the truthfulness of the new response.”); Vazquez–Fernandez v. Cambridge Coll., Inc., 269 F.R.D. 150, 155 (D.P.R.2010) (observing that “[i]f this answer were in the original response, it would have required a signature under oath by the party” and compelling a signed supplemental response). *16 The burden on Sprint to correct its response is not an onerous one. The court has reviewed the substance of the supplemental letter. If Sprint provides the substance of the letter to NAT in a format that accommodates Rule 33, the contents provide a sufficient response to NAT's interrogatory number 6. 10 Regardless, Sprint must supply NAT with a full and complete response to NAT's interrogatory. [25] Interrogatory No. 7: State all facts that support Sprint's contention that it is not legally required to pay NAT for the claims asserted in this matter. Sprint Response: Sprint incorporates its objections and response to Interrogatory No. 6. Docket 273–3 at 6. This interrogatory is similar to NAT's interrogatory number 6. It is ostensibly broader to the extent that the interrogatory asks Sprint to provide “all facts” in support of arguments Sprint has not explicitly made in its dispute letters. Sprint's objection is coextensive with its argument regarding interrogatory number 6. The court found Sprint's response to NAT's interrogatory number 6 insufficient. For the same reasons, the court finds Sprint's response to this interrogatory is insufficient. Thus, Sprint must supply NAT with a full and complete answer to interrogatory number 7.
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[26] Interrogatory No. 8: State the basis of your denial, in Paragraph 43 of your Answer To NAT's Amended Counterclaim, that NAT was providing a service to Sprint and/or its customers. Sprint Response: Sprint objects to this interrogatory as calling for a legal conclusion. Subject to that objection, Sprint incorporates its objections and response to Interrogatory No. 6. NAT is providing neither Sprint nor Sprint's customers with a service described in its Tariff No. 3 in full compliance with NAT's tariff and applicable law. Docket 273–3 at 6. Paragraph 43 of Sprint's answer to NAT's amended counterclaim states: With respect to the allegations in paragraph 49, Sprint admits that it continued to deliver calls to NAT (as it was obligated to do) and to dispute NAT's bills (as it was entitled to do). Sprint denies that NAT was providing a service to Sprint and/or its customers. Docket 238 at 8. The allegations in paragraph 49 of NAT's amended complaint are that “[e]ven after NAT filed its [tariff number 3] in August 2011, Sprint continued to terminate calls at NAT without paying for the service that NAT was providing to Sprint and its customers.” Docket 172 at 13. The court disagrees with Sprint's objection that the interrogatory calls for an improper legal conclusion. The last sentence of Rule 33(a)(2) states that “[a]n interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact [.]” Fed. R. Civ. P. 33(a)(2). The advisory committee notes explain that As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery .... On the other hand, under the new language interrogatories may not
extend to issues of “pure law,” i.e., legal issues unrelated to the facts of the case. *17 Advisory Committee Notes (1970 Amendment); see also Wright & Miller § 2167 (“Thus the only kind of interrogatory that is objectionable without more as requesting a legal conclusion is one that extends to ‘legal issues unrelated to the facts of the case.’ ”). NAT's interrogatory asks Sprint to provide the basis for Sprint's argument that NAT was not providing Sprint with a compensable service. That argument is a focal point of this case. Thus, NAT's interrogatory does not ask Sprint about a legal issue unrelated to the facts of the case. The court, nonetheless, finds that Sprint's response to NAT's interrogatory is sufficient. Sprint's answer explained that NAT did not provide Sprint or Sprint's customers with compensable services because those services were not delivered in accordance with NAT's tariff. Unlike NAT's interrogatory number 6, this interrogatory did not ask Sprint to provide anything more than the basis for Sprint's position, and Sprint duly provided it. Thus, no further response is needed. NAT's motion to compel a more complete response is denied. [27] Interrogatory No. 9: State the basis of your contention, in Paragraph 64 of your Answer To NAT's Amended Counterclaim, that NAT's charges were or are “unlawful.” Sprint Response: Sprint objects to this interrogatory as calling for a legal conclusion. Subject to that objection, Sprint incorporates its objections and response to Interrogatory No. 6. Sprint further states that, under the FCC precedent that Sprint identified in support of its motion for summary judgment on its Count I, billing of access charges that are not due under tariff is unjust and unreasonable in violation of 47 U.S.C. §§ 201(b) and 203. Discovery is continuing as to February of 2014 forward. Docket 273–3 at 6. Paragraph 64 of Sprint's answer to NAT's amended counterclaim states: With respect to the allegations in paragraphs 78-80, Sprint admits that it continues to dispute NAT's unlawful charges, and it intends to
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continue disputing NAT's bills, and denies the remaining allegations. Docket 238 at 11. The gravamen of paragraphs 78-80 of NAT's amended counterclaim is that Sprint is withholding payment for NAT's services on a continuous, monthly basis. See Docket 172 at 19. Like NAT's interrogatory number 8, this interrogatory asked Sprint to provide the basis for Sprint's argument that NAT's access charges were unlawful. The basis for Sprint's argument is that the FCC has declared unlawful the practice of billing for access charges that are not properly due under a tariff. Because Sprint has provided the information sought by NAT's interrogatory, no further response is needed. Thus, NAT's motion to compel a more complete response is denied. [28] Interrogatory No. 10: With respect to each and every bill sent by NAT which Sprint has not paid, state the basis of Sprint's contention that it is not legally obligated to pay each such bill. Sprint Response: Sprint incorporates its objections and responses to Interrogatory Nos. 5 and 6. Docket 273–3 at 6. NAT's interrogatory number 5 asked Sprint to “[i]dentify all dispute letters sent by Sprint to NAT from 2014-2015 and state the basis of the dispute.” Docket 273–3 at 5. Sprint responded that it will produce the letters and that “Sprint disputed that NAT's access charges are compensable under the terms of NAT's access tariffs.” Id. NAT did not move to compel an additional response to its interrogatory number 5. The court has already discussed NAT's interrogatory number 6 and Sprint's response to the interrogatory. *18 NAT's interrogatories 5, 6, and 10 all concern Sprint's justification(s) for refusing to pay NAT's bills. Sprint responded to those interrogatories by asserting that Sprint believes the Farmers analysis prevents NAT from collecting the access charges NAT has billed to Sprint. In other words, the basis for Sprint's contention is that NAT cannot lawfully bill Sprint for calls delivered to Free Conferencing under NAT's tariff number 3 because Free Conferencing is not an “end user” or “customer” as defined by that tariff. While NAT's interrogatory number 6 sought “all facts,” NAT's interrogatory number 10 only
sought the basis for Sprint's position. Because Sprint's response provides the information sought under NAT's interrogatory number 10, NAT's motion to compel a more complete response is denied. Interrogatory No. 17: If Sprint contends that NAT cannot lawfully charge Sprint for a terminating access service under its filed tariffs, state the basis for that contention. Sprint Response: Sprint incorporates its objections and responses to Interrogatory Nos. 5–6. Docket 273–3 at 10. This interrogatory again asks Sprint to state the basis for its positon that NAT cannot collect on the access charges it billed to Sprint. Because Sprint has already provided the information sought by this interrogatory, NAT's motion to compel a more complete response is denied. [29] Interrogatory No. 18: If Sprint contends that NAT's FCC tariff violates statutory authority and FCC regulations, state the basis of those contentions. Sprint Response: Sprint objects to this interrogatory as calling for a legal conclusion. Sprint further objects because discovery and analysis are continuing. Subject to those objections and without waiver thereof, Sprint states that Section 2.10.3(H) (Original Page 45) of NAT's Tariff No. 3 states: In the event Company, in its sole discretion, chooses to forego billing the Customer for access services in any particular month(s), Company reserves the right to back bill Customer for any unbilled recurring or nonrecurring charges for a period of twenty-four (24) months. A “customer” is one who subscribes to the services offered under the Tariff, including end users. This language purports to allow NAT to impose tariffed switched access charges on IXCs for calls placed or received by individuals or entities to whom NAT offers free services. Because this language gives NAT the discretion not to bill its end users, the tariff is unlawful and in violation of the FCC's Northern Valley v. Qwest decision. Sprint reserves the right to supplement this response in the event that it discovers other unlawful terms.
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NAT's ability to enforce its tariff or the Farmers and Northern Valley cases.
Docket 273–3 at 10. The court disagrees with Sprint's argument that this interrogatory calls for an improper legal conclusion. Sprint has argued, and the court has found, that several of NAT's earlier tariffs were unlawful and unenforceable. Thus, NAT's interrogatory does not ask Sprint about a legal issue unrelated to the facts of the case. As to the substance of Sprint's response, the court finds it is sufficient. NAT's interrogatory asked Sprint to state the basis for Sprint's argument that NAT's tariff violates FCC regulations or statutory authority. Sprint explained its argument that certain provisions of NAT's tariff may violate the FCC's Northern Valley line of cases. No further response is needed. Thus, NAT's motion to compel a more complete response is denied.
2. Other issues [30] NAT's interrogatories 15 and 16 ask Sprint for information about the revenue Sprint has derived from the calls Sprint delivered to NAT. For example, NAT asked Sprint to “[d]escribe fully all long distance plans offered to Sprint's customers for traffic delivered to NAT and the corresponding profit per minute obtained on these plans by Sprint.” Docket 273–3 at 9 (NAT interrogatory number 15). NAT's requests for production 11-13 asked Sprint to produce documentation concerning the revenues it has received from calls it delivered to NAT. For example, NAT asked Sprint to produce “[a]ll documents that identify Sprint's revenue for calls transmitted to NAT for termination.” Docket 273–2 at 7 (NAT request for production number 13). Sprint raised a number of objections to these inquiries, including their lack of relevance. *19 [31] As the propounding party, NAT must make a threshold showing that the requested information falls within the scope of discovery under Rule 26(b)(1). Hofer, 981 F.2d at 380. NAT argues that it is entitled to collect the access charges it billed to Sprint under its tariff number 3. Sprint has identified potential arguments against NAT's efforts to enforce its tariff, for example, under the FCC's Farmers and Northern Valley line of cases. NAT has not explained how the revenue Sprint received is relevant to
NAT posits that “Sprint has alluded to unspecified claims and defenses that NAT's charges are ‘un[just] and unreasonable’ and otherwise violate sections 201 and 202 of the Federal Communications Act.” Docket 274 at 14. According to NAT, information concerning the revenue Sprint has received would be relevant to Sprint's allegedly unspecified claims. In response, Sprint stated that it has no intention of making any “claim that the rate elements listed in NAT's FCC Tariff No. 3 exceed the rates allowed by the FCC's CAF Order and the step down.” Docket 273–9 at 6. NAT replies that there are still “a myriad of ways” that Sprint's revenues could be relevant to this case. Docket 280 at 9. NAT has not, however, explained what any of those “myriad of ways” might be. 11 Consequently, the court can only speculate. But “[m]ere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case.” Woodmen, 2007 WL 1217919 at *1 (citing Cervantes, 464 F.2d at 994). NAT has not met its threshold burden of demonstrating that the information it seeks falls within Rule 26(b)(1). Thus, NAT's motion to compel more complete responses to interrogatories 15 and 16 and requests for production of documents 11-13 are denied.
D. Expenses [32] The court has discretion under Rule 37(a)(5)(C) to impose an award of reasonable expenses if a party's motion to compel is granted in part and denied in part. Fed. R. Civ. P. 37(a)(5)(C). Because both parties' motions to compel are granted in part and denied in part, the court does not impose monetary sanctions on either party.
CONCLUSION The court will not reconsider its August 5, 2015 order. Sprint is entitled to summary judgment on Count 1 of its complaint, but the court will not assign costs prior to trial. The parties' cross motions to compel are granted in part and denied in part in accordance with this court's opinion. Thus, it is
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ORDERED that Sprint's motion for reconsideration (Docket 256) is denied. IT IS FURTHER ORDERED that Sprint's motion for summary judgment (Docket 258) is granted. IT IS FURTHER ORDERED that Sprint's motion to compel (Docket 268) is granted in part and denied in part.
IT IS FURTHER ORDERED that NAT's motion to compel (Docket 273) is granted in part and denied in part.
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Footnotes
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The Commission reiterated its conclusion in an order denying Farmers' petition for reconsideration. In the Matter of Qwest Commc'ns Corp. v. Farmers & Merchs. Mut. Tel. Co., 25 FCC Rcd. 3422, ¶14 (FCC 2010) (Farmers III) (explaining that in Farmers II the FCC “found that the service provided to the conference calling companies was not tariffed, and the assessment of switched access charges to Qwest therefore violated sections 201(b) and 203(c) of the Act.”). The District of Columbia Circuit Court of Appeals affirmed the FCC's conclusion. Farmers & Merchs. Mut. Tel. Co. of Wayland, Iowa v. F.C.C., 668 F.3d 714, 721 (D.C.Cir.2011). The Commission reached the same conclusion in another dispute concerning the same tariff. In the Matter of Sprint Commc'ns Co. L.P. v. Northern Valley Commc'ns, LLC, 26 FCC Rcd. 10780, ¶ 7 (FCC 2011). The District of Columbia Circuit Court of Appeals affirmed the FCC's conclusions. Northern Valley Commc'ns, LLC v. F.C.C., 717 F.3d 1017, 1019 (D.C.Cir.2013). NAT later filed its original tariff number 2 on November 15, 2010, with an effective date of November 30, 2010. Docket 250 at 25. Supreme Court of the United States, Amendments to the Federal Rules of Civil Procedure, available at http:// www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf (last accessed Feb. 19, 2016), at 3. John Roberts, 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015), available at http://www.supremecourt.gov/ publicinfo/yearend/2015year-endreport.pdf (last accessed Feb. 19, 2016), at 6. The FCC used the same analysis in its Sancom line of cases. See In the Matter of Qwest Commn'cs Co., LLC v. Sancom, Inc., 28 FCC Rcd. 1982, ¶ 13 (F.C.C. 2013). The FCC noted that Sancom “is materially similar to and controlled by” the Farmers line of cases. Id. at ¶ 11. “Indeed, the Tariff's descriptions of ‘end user’ and ‘customer’ are identical to the definitions at issue in Qwest v. Farmers.”Id. For clarity, the court will refer only to the Farmers line of cases. The original discovery deadline was set for December 14, 2015. The court granted the parties' joint motion for an extension to complete discovery by March 21, 2016. Docket 267. Sprint sought to compel a response to its interrogatory number 19, which asked for the same information as interrogatory number 18 except that it concerned other conference calling companies besides Free Conferencing. See Docket 270–3 at 5–6. Because NAT is limiting its damages to those calls that were provided to Free Conferencing, Sprint has withdrawn its motion concerning interrogatory number 19. Docket 275 at 8. Sprint also moved to compel complete responses to its requests for production number 22 and 31. Sprint has withdrawn its motion to compel as it pertains to those two requests. Docket 275 at 11. NAT argues that if the court were to deem Sprint's letter a procedurally proper response, that the response would still be substantively deficient. NAT contends that Sprint's use of the phrase “include” in the letter suggests that Sprint's letter is evasive or incomplete. See Docket 273–9 at 1 (“The facts that Sprint will offer relative to the Farmers II and Sancom test include the following ....”). The court disagrees. NAT cites an objection Sprint made to a set of interrogatories in a different case, in a different federal district, and involving a different LEC. Docket 280–10. According to NAT, the specific wording of Sprint's objection demonstrates that Sprint considers its revenues as relevant information in cases involving claimed violations of the Communication Act. Even if that was a plausible inference to extract from Sprint's objection, it is this court—not a party—that decides issues of relevance.
End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Reprinted with permission from LexisNexis. Neutral As of: September 12, 2016 12:16 PM EDT
Wichansky v. Zowine United States District Court for the District of Arizona March 22, 2016, Decided; March 22, 2016, Filed No. CV-13-01208-PHX-DGC Reporter 2016 U.S. Dist. LEXIS 37065
Marc A. Wichansky, Plaintiff, v. David T. Zowine, et al., Defendants. Prior History: Wichansky v. Zowine, 2014 U.S. Dist. LEXIS 9586 (D. Ariz., Jan. 24, 2014)
Core Terms parties, state court, recording, dissolution, deposition, valuation, settlement, damages, matters, argues, billing, harassment, documents, sanctions, witnesses, earnings, pretrial, presenting evidence, distributions, admissible, concludes, briefing, harassing conduct, pre trial order, probative value, allegations, outweighed, testifying, discovery, introduce Counsel: [*1] For Marc A Wichansky, Plaintiff: Alethia Michelle Scipione, LEAD ATTORNEY, Callagy Law, Phoenix, AZ; Matthew R Major, Michael J Smikun, Sean R Callagy, LEAD ATTORNEYS, Law Offices of Sean R Callagy Esquire LLC, Paramus, NJ; Christopher R Miller, Callagy Law LLC - Paramus, NJ, Paramuys, NJ. For David T Zowine, husband, Karina Zowine, wife, Martha Leon, wife, Charles Johnson, husband, Patricia Gonzalez, wife, Pat Shanahan, husband, Sarah Shanahan, wife, Mike Ilardo, husband, Rio Mayo, husband, Michael Narducci, husband, Brett Costello, husband, Zoel Holding Company Incorporated, an Arizona corporation, Defendants: Gayathiri Shanmuganatha, LEAD ATTORNEY, Quinlan Law Firm LLC - Phoenix, AZ, Phoenix, AZ; Jared Lynn Sutton, Michael Joseph Hammer, Robert F Roos, LEAD ATTORNEYS, Lewis Roca Rothgerber Christie LLP Phoenix Office, Phoenix, AZ; William John Quinlan, LEAD ATTORNEY, Quinlan Law Firm LLC, Chicago, IL; Kate Elizabeth Frenzinger, Quinlan Law Firm LLC - Phoenix, AZ, Phoenix, AZ; Kirstin Aki Story, Office of the Attorney General - Phoenix, Phoenix, AZ. For MGA Home Healthcare LLC, an Arizona limited liability company, Alisa Ilardo, Wife, Andrea Costello, Wife, Justin
Grant, Husband, [*2] Kai Knowlton, Husband, Don Maniccia, Husband, Defendants: Jared Lynn Sutton, Michael Joseph Hammer, Robert F Roos, LEAD ATTORNEYS, Lewis Roca Rothgerber Christie LLP - Phoenix Office, Phoenix, AZ; Gayathiri Shanmuganatha, Quinlan Law Firm LLC - Phoenix, AZ, Phoenix, AZ; Kate Elizabeth Frenzinger, Quinlan Law Firm LLC - Phoenix, AZ, Phoenix, AZ; Kirstin Aki Story, Office of the Attorney General - Phoenix, Phoenix, AZ. For Manning & Kass Ellrod, Ramirez, Trester LLP, Movant: Robert Bryan Zelms, LEAD ATTORNEY, Manning & Kass Ellrod Ramirez Trester LLP, Phoenix, AZ. Judges: David G. Campbell, United States District Judge. Opinion by: David G. Campbell
Opinion WO ORDER ON PRETRIAL MATTERS The parties have filed a proposed final pretrial order, a number of motions in limine ("MIL"), a motion to dismiss, and motions for sanctions based on spoliation of evidence. The Court held a final pretrial conference on March 18, 2016. Doc. 387. This order will set forth the Court's rulings on various pretrial matters. A. Trial Matters. 1. Trial Time. Judge Robert Oberbilig of the Maricopa County Superior Court referred to this dispute as a "business divorce" (Doc. 332-1 at 2), and his description is apt. The parties are fighting the bitterest [*3] of business divorces, and this is only one of several lawsuits between them. The amended complaint is almost 100 pages long with 548 paragraphs of allegations. Doc. 160. The parties have filed 71 motions to date. The Court, which seeks to avoid delay and expense by hearing
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Page 3 of 10 Wichansky v. Zowine discovery disputes in telephone conferences without the filing of motions (allowing expedited briefing where needed), has held 10 separate discovery dispute conference calls with parties. The Court has now dismissed or entered summary judgment on Plaintiff's claims for (1) violation of the False Claims Act, (2) violation of the Computer Fraud and Abuse Act ("CFAA"), (3) retaliation in violation of the CFAA, (4) securities fraud, (5) obstruction of justice, (6) unjust enrichment, (7) intrusion upon seclusion, (8) prima facie tort, (9) intentional infliction of emotional distress, (10) breach of fiduciary duty resulting in immediate physical injuries or emotional distress, (11) constructive fraud, (12) defamation, (13) assault and battery other than one spitting incident, and (14) intentional interference with contract. Docs. 49, 82, 310. The only claims remaining in this case are breach of fiduciary duty, aiding and [*4] abetting the breach, and battery for one spitting incident. One would think that with 14 claims resolved and only three remaining, the parties would narrow their efforts, but they have not. Their proposed final pretrial order identifies more than 2,700 exhibits for trial and designates more than 10,500 pages of deposition transcripts. The pretrial motions addressed in this order include approximately 3,000 pages of materials. Plaintiff suggests that he needs 182 hours of trial time to present his case — the equivalent of 33 trial days, which would take more than two months of trial at four days per week. Doc. 345-1 at 60-61. Defendants suggest the trial should take 17 trial days. Id. at 61.
Court will keep track of each side's time and inform the parties daily of how much time they have used so they can budget their time accordingly. Despite the ultra-litigious nature of this case, the Court is still striving to achieve Rule 1's goal of a "just, speedy, and inexpensive determination" of this action. The Court reminds the parties and counsel that they too have a duty to achieve this goal. Rule 1 requires "the court and the parties" to work toward this end. Fed. R. Civ. P. 1 (emphasis added). The Advisory Committee Note to [*6] Rule 1 makes clear that "the parties share the responsibility" to achieve Rule 1's goal, and emphasizes that "[e]ffective advocacy is consistent with — and indeed depends upon - cooperative and proportional use" of the rules of procedure. Id., Adv. Committee Note (2015). The parties should cooperate during trial to minimize delay and wasted time. Stipulations should be made on matters not disputed and on evidentiary foundations that clearly could be laid but would only consume valuable time before the jury. Each side shall also provide the opposing side with 24 hours' notice of the witnesses who will be called on a given day. 2. The parties' proposed final pretrial order (Doc. 345-1) is approved by the Court as the final pretrial order in this case. The order shall govern the presentation of evidence and other trial issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, shall be modified only to prevent manifest injustice. Evidence, objections, legal arguments, and relief not requested or identified in the order shall not be available at trial, except to prevent manifest injustice.
The Court is convinced that this case can be tried fully and effectively in 10 full trial days, not counting jury selection or deliberation. Plaintiff claims that Defendant Zowine duped him into seeking dissolution of the parties' jointly-owned company, a dissolution that resulted in Defendant Zowine being permitted under Arizona law to buy Plaintiff's interest in the company. After a five day trial, Judge Oberbilig set the value of Plaintiff's interest in the company at $5,000,000. Plaintiff claims that Zowine's [*5] intentional and calculated harassment caused Plaintiff to file for dissolution of the company and cost Plaintiff his future earnings and various other costs. The trial in this case, therefore, will be about whether Plaintiff was duped by Zowine into seeking dissolution of the company and, if so, how much he was damaged. Plaintiff claims that Zowine engaged in the duping to cover up fraud he was committing within the company. The trial will also include one battery claim based on one spitting incident.
B. Pretrial Motions.
The Court will allot 28 hours of trial time to Plaintiff and 27 hours to Defendants, which will include opening and closing statements, direct examination, and cross examination. The
The Ninth Circuit has held that Rule 408 applies to settlements entered into between one of the parties to the litigation and a third party — in this case, between MGA and
1. Plaintiff's MIL 1 regarding AHCCS settlement agreement. Doc. 326. Plaintiff asks the Court to exclude the settlement agreement between [*7] MGA Home Healthcare, LLC and AHCCCS, and specifically the statement in the agreement that, "based on the records reviewed, AHCCCS found no evidence that the Provider [MGA] committed fraud." Doc. 326-1 at 2. Rule 408 provides that evidence of "accepting" valuable consideration "in compromising" a claim is not admissible "on behalf of any party" for the purpose of proving or disproving the "validity . . . of a disputed claim." Fed. R. Evid. 408(a)(1). Defendants clearly want to introduce the quoted statement from the MGA-AHCCCS compromise to disprove the validity of Wichansky's fraud allegation.
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Page 4 of 10 Wichansky v. Zowine AHCCCS. Hudspeth v. C.I.R., 914 F.2d 1207, 1213 (9th Cir. 1990); United States v. Contra Costa Water Dist., 678 F.2d 90, 92 (9th Cir. 1982). And courts in this circuit have applied this rule even when the party seeking to introduce the compromise is one of the parties that entered into it. McDevitt v. Guenther, 522 F. Supp. 2d 1272, 1284-85 (D. Haw. 2007) (barring introduction of settlement by party to the settlement with a third person); see also 2-408 Weinstein's Federal Evidence § 408.04 (2015) ("Evidence of a completed compromise of a claim arising out of the same transaction between a third person and a party to the suit being litigated is also inadmissible."). What is more, Defendants' [*8] own case, Option Resource Group v. Chambers Development Co., 967 F. Supp. 846, 851 (W.D. Pa. 1996), held that a settlement agreement with the SEC was inadmissible under Rule 408. The case admitted separate administrative findings made by the SEC after taking evidence, but the fraud statement in the settlement agreement between MGA and AHCCCS does not constitute a separate finding by AHCCCS — it is part of the settlement itself. Plaintiff's MIL 1 (Doc. 326) is granted. 2. Plaintiff's MIL 2 regarding settlement and mediation. Doc. 327. Plaintiff asks the Court to exclude from evidence any discussions or documents prepared for settlement negotiations or mediation. Rule 408 prohibits introduction of settlement negotiations or agreements to prove or disprove the validity or amount of a disputed claim, but states that such evidence may be admitted for "another purpose." Fed. R. Evid. 408(b). Because Plaintiff alleges that Defendant Zowine duped him into seeking dissolution of Zoel, Plaintiff's state of mind in seeking the dissolution is relevant and constitutes "another purpose." To the extent settlement-related documents are introduced for this purpose, they might be admissible at trial. The Court therefore cannot grant Plaintiff's motion to exclude all such evidence. Plaintiff also argues that communications related [*9] to mediation must be excluded from evidence under A.R.S. § 122238(B). But Plaintiff fails to identify precisely when mediation stopped and started or which documents it encompassed. The Court therefore cannot determine that any specific document is excluded by this statute. If Plaintiff opposes the introduction of any specific documents at trial on the basis of this statute, he should be prepared to show that it was part of a mediation communication. Plaintiff argues that these documents must be excluded under Rule 403, but that is a decision that must be made during the course of trial, not on the basis of incomplete information before the Court now. Plaintiff's MIL 2 (Doc. 327) is denied.
3. Plaintiff's MIL 3 regarding character attacks. Doc. 328. Plaintiff asks the Court to exclude various categories of evidence, including difficulties in his marriage or family, gambling or drug use, vulgar language, and theft of company information. At the same time, Plaintiff makes clear that he intends to introduce the same kind of evidence regarding Defendant Zowine. Because the Court will be far better equipped to resolve this issue during trial, it will deny Plaintiff's MIL 3. The Court makes two observations. First, the [*10] Court will not permit this trial to become a mudslinging contest. Evidence of this nature will be admissible only if strongly relevant to a clearly identified issue the jury must decide. Otherwise, its probative value will be substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. Second, counsel should not mention such evidence to the jury unless it is squarely and directly relevant to an issue to be decided by the jury. If counsel has any doubt, they should raise the issue with the Court outside the hearing of the jury. Plaintiff's MIL 3 (Doc. 328) is denied. 4. Plaintiff's MIL 4 regarding Rochelle Glassman. Doc. 329. The Court will not exclude the testimony of Ms. Glassman. She has 30 years of experience in medical billing, owns and manages a medical billing firm, and has in the past been engaged by attorneys to determine whether medical billing fraud has been committed. An expert may be qualified by such knowledge, skill, and experience. Fed. R. Evid. 702. As one notable commentator has observed, the 2000 amendments to Rule 702 (adopting the Daubert standard) "were not intended to signal an abandonment of the liberal attitude of the Federal Rules of Evidence toward the admissibility of opinion testimony." [*11] 4 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 702.05[2][a] (2d. ed. 2015). Nor were they intended to suggest that courts should place less reliance on the traditional tools of the adversary system for finding truth. As the Supreme Court explained in Daubert, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Plaintiff's MIL 4 (Doc. 329) is denied. 5. Plaintiff's MIL 5 to exclude testimony. Doc. 330. Plaintiff seeks to preclude Defendants from calling attorney Julie Nelson during their case in chief, and to preclude her and other witnesses from testifying about matters as to which the attorney-client privilege or work-product protection were invoked during depositions. Clearly, witnesses should not be
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Page 5 of 10 Wichansky v. Zowine permitted to testify during trial about matters that were shielded from discovery by privilege assertions, but Plaintiff provides no basis upon which the Court can make decisions about specific questions or answers. Defendants state that they do not intend to elicit privileged testimony withheld during depositions. Doc. 353 at 4. Defendants have disclosed documents during this litigation [*12] in which Ms. Nelson made assertions regarding Plaintiff's allegations of fraud. Doc. 354. The Court will not preclude Ms. Nelson from testifying about these disclosed matters. Nor will the Court preclude her from testifying about matters as to which the privilege was not invoked during her deposition. In light of these conclusions, the Court will deny Plaintiff's MIL 5 (Doc. 330). Plaintiff may make specific objections at trial. Plaintiff's MIL 5 (Doc. 330) is denied. 6. Plaintiff's MIL 6 to exclude David Schwickerath. Doc. 331. Plaintiff seeks to exclude the expert testimony of David Schwickerath during Defendants' case-in-chief because he is a rebuttal expert, but Defendants' entire case will be rebuttal of Plaintiff's case. This is not a basis for exclusion. Plaintiff argues that Schwickerath should be excluded because he did not do his own calculation of Plaintiff's damages, but that was not why he was retained. He was retained to rebut the opinions of Plaintiff's expert, and he may critique those opinions without giving his own opinion of damages. Finally, Plaintiff argues that Schwickerath's report is devoid of methodology and does not follow industry standards. The Court has reviewed [*13] the report and disagrees. Schwickerath will be permitted to testify as a rebuttal expert. He and all other witnesses will be limited to opinions stated in their reports and depositions (see Case Management Order, Doc. 93 at 3, ¶ 5(f)). Plaintiff's MIL 6 (Doc. 331) is denied. 7. Plaintiff's MIL 7 regarding state court valuation. Doc. 332. Plaintiff asks the Court to exclude evidence of the state court's $5,000,000 valuation of his interest in Zoel. He argues that the valuation is hearsay, irrelevant, and excludable under Rule 403. The Court does not agree. The Court finds that Rule 807 overcomes Plaintiff's hearsay objection for the following reasons. (1) The Superior Court ruling has substantial guarantees of trustworthiness. It was entered by a state court trial judge after a five-day trial where Plaintiff and Defendants were represented by counsel and afforded a full opportunity to present evidence and argument regarding the value of Plaintiff's interest in Zoel. (2) The ruling is offered as evidence of a material fact — the amount Plaintiff was awarded for his share of Zoel in the proceeding Plaintiff initiated. Plaintiff claims that Defendant Zowine duped him
into initiating the proceeding and that [*14] he was damaged as a result. For the jurors to assess the credibility of this claim, they will need to know something about the state court proceeding and its outcome. Judge Oberbilig's decision sets forth the outcome. (3) The written decision is the clearest and most concise indication of the proceeding's outcome, and is more probative on this point than other evidence Defendants might present. (4) Admitting the state court decision will best serve the purposes of the rules of evidence and the interests of justice. See Fed. R. Evid. 807(a); see also United States v. Bonds, 608 F.3d 495, 501 (9th Cir. 2010) (Rule 807 exists to provide judges a "fair degree of latitude" and "flexibility" to admit statements that would otherwise be hearsay) (citations omitted). The Court finds the decision relevant for the reasons discussed above. The Court does not find that the danger of unfair prejudice substantially outweighs the probative value of this evidence. The decision sets forth the judge's valuation, and Plaintiff will be able to address it during the trial. The Court also concludes, however, that if Defendants present the decision and its $5,000,000 valuation, Plaintiff should be permitted to present evidence that he has been paid only $1,400,000 of this amount so far. Preventing [*15] Plaintiff from doing so would leave the jury with an incomplete picture of the state proceedings' outcome. Plaintiff's MIL 7 (Doc. 332) is denied. 8. Plaintiff's MIL 8 regarding overbilling at HHL. Doc. 334. Plaintiff asks the Court to preclude Defendant Martha Leon and other witnesses from testifying inconsistently with, or explaining, Ms. Leon's deposition testimony about the location and nature of the rounding error she says caused MGA to submit incorrect billing information to DDD. Plaintiff also appears to ask the Court to preclude Defendants from using any spreadsheets that were not produced during discovery, but does not identify a specific trial exhibit. To the extent Ms. Leon or other witnesses testify inconsistently with her or their depositions, Plaintiff can impeach them with that fact. To the extent she claims that the rounding error was in a spreadsheet other than those examined by Plaintiff's expert (which apparently did not contain such an error), Plaintiff can impeach her with her prior testimony. The Court cannot conclude that it should preclude a witness from testifying inconsistently with a deposition. Depositions are taken, in part, to deal with that eventuality. [*16] Fed. R. Civ. P. 32(a)(2). If Defendants attempt to admit a document that was not produced in response to a document production request, Plaintiff can object and the Court will rule. Plaintiff also asks the Court to exclude Defendants from introducing documents they successfully sought to withhold
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Page 6 of 10 Wichansky v. Zowine during discovery, but again fails to identify any specific trial exhibits. Defendants will not be permitted to introduce exhibits at trial that they have failed to include in the final pretrial order unless they can make the high showing required by Rule 16(e), and Plaintiff will be fully heard on any such attempt. Plaintiff's MIL 8 (Doc. 334) is denied. 9. Defendants' MIL 2 regarding Elizabeth Hogue. Doc. 264. Defendants ask the Court to preclude the expert testimony of attorney Elizabeth Hogue because it offers legal opinions. "[A]n expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Similarly, instructing the jury as to the applicable law is the distinct and exclusive province of the court." Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (emphasis in original; quotation marks and citation omitted). "Accordingly, federal courts typically prohibit lawyers, professors, and other experts from interpreting the law for [*17] the court or from advising the court about how the law should apply to the facts of a particular case." Pinal Creek Grp. v. Newmont Mining Corp., 352 F. Supp. 2d 1037, 1042 (D. Ariz. 2005). Ms. Hogue's report and supplemental report explain the law related to breaches of fiduciary duty. She states that a director owes a fiduciary duty, she defines the duty, she explains what obligations the duty places on a director, she states that the Patient Protection and Affordable Care Act imposes specific obligations, she identifies the "minimum requirement" the Act imposes in fraud and abuse programs, and she opines on the legal requirements for an internal fraud investigation. Doc 296-1 at 4-6, 88-90. These are all impermissible legal opinions. Ms. Hogue also, albeit briefly, purports to apply the law to the facts of this case and opines that Defendant Zowine breached his fiduciary duties. In rendering these opinions, Ms. Hogue relies on the fact testimony of various witnesses, applies the law to that testimony, and finds a breach. This application of the law to the facts is the province of the jury and impermissible legal expert testimony. See Pinal Creek, 352 F. Supp. 2d at 1042-44 (bar on improper legal opinions includes "legal expert testimony concerning both what the law is and how it should be applied to the [*18] facts of a case"); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (finding that the trial court erred in allowing testimony that police officers' conduct satisfied Fourth Amendment requirements); Montgomery v. Aetna Cas. and Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990) (finding that court abused its discretion by allowing witness to testify that defendant had a duty to hire tax counsel, stating "[a] witness also may not
testify to the legal implications of conduct"); Marx & Co. v. Diners' Club, Inc., 550 F.2d 505, 508-11 (2d Cir. 1977) (holding that the trial court erred in permitting a lawyer to offer his opinions concerning securities law and the application of that law to the contract in dispute). Plaintiff argues that an expert may testify about corporate norms, but that is not the nature of Ms. Hogue's testimony. She testifies as a lawyer about the law of fiduciary duties and the legal requirements of a federal statute, and opines that Zowine's conduct violated those laws. She offers legal opinions, not factual testimony about corporate norms. Defendants' MIL 2 (Doc. 264) is granted. 10. Defendants' MIL 3 regarding Wendy Britton. Doc. 322. Defendants argue that expert Wendy Britton should be excluded from trial because she applies an incorrect definition of fraud that omits scienter, shifts the burden to Defendants to disprove fraud, and fails to account for alternative explanations. [*19] The Court is not persuaded. Questions and answers during Ms. Britton's deposition were at times confusing, but she did acknowledge that fraud requires acts performed knowingly, willfully, and intentionally. Doc. 362-1 at 27-28 (counsel reads definition of fraud that includes "knowingly, willfully, and intentionally" and asks: "Do you agree with this definition? A: Yes."). The Court does not agree that Ms. Britton is seeking to establish a presumption of scienter. She explained in her deposition that billing the same charge to two or three different insurance companies, repeatedly, suggests to her that the action is intentional and fraudulent. Doc. 322-1 at 33-34. This is Ms. Britton's opinion, not a legal presumption. If Defendants disagree, they can cross-examine Ms. Britton, present contrary evidence, and argue their points to the jury. Nor does the Court accept Defendants' argument that Ms. Britton refused to consider alternative explanations. She stated that a consistent practice of sending the same claim to multiple insurance companies for payment would, in her view, suggest intentional fraud. Id. at 47. Defendants can cross-examine and argue the issue to the jury. This is not a basis for [*20] excluding testimony. Defendants' MIL 3 (Doc. 322) is denied. 11. Defendants' MIL 4 regarding prior bad acts. Doc. 335. Defendants ask the Court to preclude evidence of Defendant Zowine's past acts of aggression toward third parties and a video showing Defendant Mayo's martial arts skills. The Court cannot at this point determine whether this evidence could be viewed by the jury as something other than
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Page 7 of 10 Wichansky v. Zowine propensity evidence, which is not allowed under Rule 404(b), or whether the probative value of this evidence would be substantially outweighed by the danger of unfair prejudice under Rule 403. Because of the risk of either outcome, the Court will grant the motion in limine provisionally. Once trial is underway and the Court understands the nature of the case more fully, Plaintiff can raise with the Court — outside the hearing of the jury — the possibility of introducing this evidence. Defendants' MIL 4 (Doc. 335) is granted provisionally. 12. Defendants' MIL 5 regarding fraud testimony. Doc. 323. Defendants ask the Court to preclude Plaintiff and his experts and witnesses from using the word "fraud" when discussing MGA billing practices. Defendants argue that use of such a word could be misleading if the witness [*21] does not know the applicable definition of fraud, and could be unfairly prejudicial. The Court is not persuaded. Plaintiff alleges in this case that Defendants knew and approved of billing fraud at MGA. That is one of the grounds for Plaintiff's breach of fiduciary duty claim. In addition, the factual recitals of relevant conversations, and some of the documents to be admitted in evidence, include the word "fraud." Fraud clearly is relevant in this case, and the Court cannot conclude that use of the word during trial will result in unfair prejudice that substantially outweighs its probative value.
have received from Zoel. At the final pretrial conference, the Court asked the parties to provide further briefing on this issue. The Court will set forth its tentative view of this matter to aid the parties in their briefing, but will withhold final judgment until it has reviewed the additional briefs and the full expert opinions from the state proceeding. Defendants argue that the Court's summary judgment ruling permitting Plaintiff to recover lost income is limited to salary paid to Plaintiff by Zoel and does not include distributions of corporate profits. Plaintiff argues that he may [*23] recover lost profit distributions as well as lost salary. In the summary judgment briefing, Defendants argued that Plaintiff could recover no "lost income" because the state court had valued his interest in Zoel on an income basis and Plaintiff therefore had been paid for any lost income. Plaintiff did not address this argument in his response. The Court nonetheless found the argument unpersuasive because the state court valuation focused on the income of Zoel, not the income of Plaintiff. Doc. 310 at 11. As the Court explained: [E]xperts in the state court used an income approach to valuing Zoel, but that approach appears to have focused on revenues and after-tax earnings of Zoel. Doc. 276-2 at 36-37. Wichansky seeks to recover income he personally would have earned from Zoel. Such income, if paid as wages, would be deducted before the after-tax earnings of the company are calculated and would not be included in a valuation based on such after-tax earnings. As a result, Defendants have not shown that Wichansky's claim for lost income was already included in the state court's valuation of Zoel. The Court will not enter summary judgment on this claim.
Defendants' MIL 5 (Doc. 323) is denied. 13. Defendants' MIL 6 regarding state court rulings. Doc. 324. Defendants ask the Court to expressly recognize a series of rulings from the state court litigation, instruct the jury regarding those rulings and their binding effect in this litigation, and preclude Plaintiff from presenting evidence to dispute the rulings. Defendants include denial of a TRO request, denial of Plaintiff's attempt to withdraw his dissolution petition, and the payment terms for the buyout of Plaintiff's interest in Zoel. Defendants have not demonstrated the relevance of these [*22] rulings or provided any explanation as to why the Court should give the jury detailed instructions regarding them. As the Court concluded above, the outcome of the state proceeding — Judge Oberbilig's valuation of Plaintiff's interest in Zoel — is relevant. But the Court cannot at this time conclude that the other rulings are relevant and therefore will not enter Defendants' requested order.
Id.
Defendants' MIL 6 (Doc. 324) is denied. 14. Defendants' MIL 7 regarding damages evidence. Doc. 336.
As this statement makes clear, the "income" [*24] that the Court found to be a proper part of this case was income paid to Plaintiff that would be deducted from Zoel's revenues before Zoel's earnings were calculated. The Court specifically identified this as income "paid as wages." Id. Because the corporate earnings were already taken into account in valuing Zoel and determining the amount Plaintiff should be paid for his interest, those earnings could not be recovered a second time by Plaintiff in this case. But wages paid to Plaintiff would not have been included in corporate earnings, Plaintiff would not have been compensated in the state court for the loss of those wages, and Plaintiff could therefore seek in this case to recover the wages he lost as a result of Defendants' actions.
Defendants ask the Court to preclude Plaintiff from making any damages claim based on profit distributions he would
In light of the motion in limine, the Court reviewed again the summary judgment materials related to the state court
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Page 8 of 10 Wichansky v. Zowine valuation. Those materials suggest that the income-valuation approach used by the parties' experts in the state court proceeding, and relied upon by Judge Oberbilig in his valuation ruling, looked to income earned by the corporation — annual corporate profits. Plaintiff's expert defined that approach as follows: "The Income Approach estimates [*25] enterprise value by considering the stream of economic benefits that accrues to the owner." Doc. 276-2 at 36 (emphasis added). The expert "estimate[d] equity value by discounting the future stream of projected equity cash flows to its present value at an appropriate rate of return." Id. (emphasis added). The reference to "equity cash flows" clearly seems to mean profits distributed to shareholders. Indeed, Plaintiff's expert report states that "[a] firm's net cash flow represents funds available to be distributed to shareholders." Id. "These cash flows are then discounted to their present value and converted to value at the required rate of return." Id. Thus, it appears that Plaintiff's own valuation of his interest in Zoel looked to the corporate profits that would have been available to him as an owner, discounted them to the present, and used that amount to value the business. Under this approach, Plaintiff's future profit distributions have already been included in the value he received for his interest in Zoel. The Court thus concludes, tentatively, that Plaintiff cannot in this case recover any damages for lost corporate profits. If Plaintiff prevails, his lost-income recovery will be limited [*26] to salary he would have been paid by Zoel had he not sought dissolution of the company. The Court will revisit this conclusion after reviewing the parties' supplemental briefing. Defendants also argue that Plaintiff should not be permitted to recover expert witness fees incurred in this litigation. The Court agrees. "[E]xpert fees are not recoverable as costs absent explicit statutory authority," L & W Supply Corp. v. Acuity, 475 F.3d 737, 740 (6th Cir. 2007), and Plaintiff identifies no such authority. Thus, in presenting damages evidence to the jury, Plaintiff should limit his claim for expert fees to those incurred in connection with the dissolution of Zoel and his investigation of alleged wrongdoing of the company. They should not include fees incurred in this case. Finally, Defendants argue that Plaintiff should not be permitted to recover any "contingent liabilities" from the state court action. This argument resulted in a lengthy discussion during the final pretrial conference. Plaintiff agreed during the discussion that he may seek five categories of damages at trial: (1) lost salary; (2) lost profit distributions (if allowed after the additional briefing discussed above); (3) expert and receiver fees other than those incurred in this case; (4) [*27] any damages for the spitting assault that remains in this case;
and (5) punitive damages. Because none of these constitutes contingent liabilities from the state proceeding, this part of Defendants' motion will be denied. Defendants' MIL 7 (Doc. 336) is granted in part with respect to expert witness fees and denied with respect to contingent liabilities. The Court will rule on the lost income issue after further briefing. 15. Defendants' MIL 8 regarding harassing conduct. Doc. 325. Defendants ask the Court to preclude Plaintiff from presenting any evidence of Defendants' harassing conduct after March 22, 2012, the day on which Zowine took sole ownership of Zoel. They also ask the Court to limit evidence of harassing conduct from March 31, 2011 (the day Plaintiff filed for dissolution) to March 22, 2012, to events that interfered with Plaintiff's efforts to investigate billing issues in the company. Plaintiff argues that all of Defendants' outrageous conduct, including up to the present time, must be presented to the jury to show Defendants' intent and to explain why Plaintiff was afraid of Defendants. Plaintiff seeks to admit more than 100 instances of harassing conduct. Doc. 368 at 3. [*28] Defendants' harassment of Plaintiff prior to the date he sought dissolution of Zoel is relevant to his claim that Zowine duped him, through harassment, into seeking dissolution. Harassment after that date is not relevant to Plaintiff's claim that he sought dissolution because of the campaign of harassment. Defendants' harassing interference into investigations of Zoel's billings after that date may be relevant in light of Plaintiff's claim that Zowine sought to prevent the investigation, but this is a breach of fiduciary duty claim, and Zowine did not owe fiduciary duties to Plaintiff after the company was sold to Zowine. Doc. 310 at 7 n.4. The Court therefore holds that (1) Plaintiff may not present evidence of harassing conduct after March 22, 2012 (the last day Plaintiff had an ownership interest in the company); (2) Plaintiff's evidence of harassing conduct between March 31, 2011 and March 22, 2012 must be related to efforts by Zowine or those in concert with him to interfere with investigations of Zoel's billing, whether by Plaintiff or the Receiver; and (3) Plaintiff may present evidence regarding the assault incident on November 12, 2011. If Plaintiff believes other harassment [*29] evidence becomes relevant during the course of the trial, he may raise that issue with the Court outside the hearing of the jury. Defendants' MIL 8 (Doc. 325) is granted. 16. Defendants' MIL 9 regarding medical and family evidence. Doc. 337. The Court will grant this motion. Plaintiff claims that
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Page 9 of 10 Wichansky v. Zowine evidence of Zowine's medical history and mental health issues, and of his alleged abuse of his own family members, is relevant for the jury to understand why Plaintiff was afraid of Zowine and to bolster Plaintiff's claim that Zowine intentionally abused Plaintiff in an effort to drive him from the company. The Court concludes that a jury would be unable to view this as anything other than prohibited propensity evidence — that Zowine had an abusive character and acted in accordance with that character when he dealt with Plaintiff. Fed. R. Evid. 404(b). The Court also concludes than any probative value of this evidence would be substantially outweighed by the danger of unfair prejudice — the jury ruling against Zowine because he is an unsavory person. Defendants' MIL 9 (Doc. 337) is granted. 17. Defendants' MIL 10 regarding evidence of improprieties. Doc. 333. Defendants seek to exclude evidence of allegations or investigations [*30] of fraudulent or improper company behavior after Plaintiff's interest in Zoel was sold. Plaintiff argues that this evidence is relevant to his allegation that Zowine was engaged in fraudulent operations at the company and ousted Plaintiff in order to prevent their discovery and continue engaging in them. Although the Court finds that the evidence has some probative value, the Court concludes that any such value is substantially outweighed by the danger of undue delay, wasting time, and needlessly presenting cumulative evidence. Fed. R. Evid. 403. This case should not devolve into a series of mini trials over allegations of fraud occurring at times unrelated to the events at issue. Defendants' MIL 10 (Doc. 333) is granted. 18. Defendants' motion to dismiss or stay. Doc. 370. Defendants argues that the Court should decline to exercise continuing jurisdiction over this case under 28 U.S.C. § 1367. Alternatively, they argue that the Court should stay this proceeding pending the outcome of state court litigation. Defendants base this motion on the fact that the parties have ongoing litigation in state court, Plaintiff apparently has asserted new claims in that litigation arising from the facts at issue in this case, and Defendants [*31] believe Plaintiff is forum shopping and seeking to make an end-run around some of this Court's rulings. The Court denied this motion at the final pretrial conference. The Court has already concluded that it should continue to exercise jurisdiction over the remaining state law claims in the interest of judicial economy. Doc. 310 at 21 n.20. Defendants argue that judicial economy would be served by dismissing this action and allowing the parties to continue their slug-fest in state court, or by staying this case until the
state court litigation (now more than five years old) is resolved. The Court could not disagree more strongly. The best way to serve judicial economy is to push this case through to a final conclusion. Defendants express concern about inconsistent court rulings. But the state court has very capable judges who fully understand principles of res judicata and collateral estoppel. Finally, Defendants express concern that Plaintiff will relitigate in the upcoming trial matters previously decided by Judge Oberbilig. The Court has no intention of re-litigating matters decided in state court. 19. Motions for sanctions. Docs. 319, 375. Defendants allege that Plaintiff made an audio [*32] recording of an altercation between him and Defendant Zowine on January 19, 2011, and yet failed to produce it in this litigation. Defendants contend that Plaintiff's assertion that he gave the recording to the police is disproven by the fact that it is not mentioned in the police report for the incident and is not in possession of the Phoenix police department. Defendants ask the Court to give an adverse inference instruction and award monetary sanctions. In an apparent tit-for-tat, Plaintiff responds by seeking sanctions of his own, alleging that Defendants failed to preserve photographs and videotapes they made during various events. Plaintiff also asks for an adverse inference instruction. Both sides agree that (1) the relevancy of allegedly lost information and (2) prejudice to the opposing side are important considerations in any sanctions decision. The Court finds little prejudice and only marginal relevance in the allegedly lost materials. The Court also notes that it generally should impose the least harsh sanction that can provide an adequate remedy. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 534 (D. Md. 2010).1 a. Defendants' Motion. Doc. 319. Even if the other elements of spoliation could be satisfied, the Court finds that an adverse inference instruction and monetary sanctions in Defendants' favor would not be warranted. Plaintiff and another witness testified in their depositions that the audio tape recorded Zowine telling Plaintiff to let go of him and stop hitting him — admissions that support Defendants' version of the altercation. Defendants thus have
1 The
Court notes that recently amended Rule 37(e) of the Federal Rules of Civil Procedure does not apply because the parties do not contend that the lost information constitutes [*33] electronically stored information.
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Page 10 of 10 Wichansky v. Zowine not been seriously prejudiced by loss of the recording. In light of this fact, the Court concludes that Defendants' grievance about the missing recording can be presented to the jury through evidence and argument, with no need for the Court to place its thumb on the scale with an adverse inference instruction. Defendants may present evidence that Plaintiff recorded the altercation, that Plaintiff asserts he gave the recording to the police, that the police have no record of receiving the recording (assuming Defendants can provide admissible evidence on this point and they preserved it in the final pretrial order), and that the recording contained information contrary to Plaintiff's description of the altercation. [*34] This evidence, when combined with testimony about the contents of the recording, will sufficiently overcome any prejudice Defendants have suffered from loss of the recording. Defendants' motion for sanctions (Doc. 319) is denied. b. Plaintiff's Motion. Doc. 375.
while harassing them. Doc. 375 at 11-12. The recordings concern events Plaintiff did not witness, two of which concerned Richard Eden and are not related to this case. The parties dispute when recordings were made, whether they were preserved, and their relevancy. Because all of the allegedly recorded events concerned incidents that occurred after Plaintiff had petitioned for dissolution of Zoel, and none of them concerned alleged interference with an investigation of Zoel, the Court concludes — for the same reason as its ruling on Defendants' MIL 8 — that they are not relevant to this [*35] case. For this reason, even if spoliation could be shown — something not at all clear from the disputed evidence — the Court would decline to given an adverse inference instruction. Plaintiff's motion for sanctions (Doc. 375) is denied. Dated this 22nd day of March, 2016.
The missing videotapes identified by Plaintiff allegedly included Zowine and associates coming to the Zoel office in April 2011 and treating employees in an aggressive and hostile manner, Zowine taking a picture of Richard Eden while belittling him at a deposition in May 2013, and Zowine recording Eden and his family at a Christmas event in 2011
/s/ David G. Campbell David G. Campbell United States District Judge
End of Document
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2016 WL 4530461 Only the Westlaw citation is currently available. United States District Court, D. Nevada. PAMELA MCSWAIN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. Case No. 2:15-cv-01321-GMN-GWF | Filed 08/30/2016
ORDER GEORGE FOLEY, JR. United States Magistrate Judge *1 This matter is before the Court on Plaintiff's Motion to Compel Discovery Responses and Stay Discovery Period (ECF No. 23), filed on July 21, 2016. Defendant United States filed its Opposition (ECF No. 26) on August 8, 2016. Plaintiff filed her Reply (ECF No. 28) on August 22, 2016. The Court conducted a hearing in this matter on August 22, 2016.
BACKGROUND Plaintiff filed her complaint pursuant to the Federal Tort Claims Act (“FTCA”) on July 13, 2015. Complaint (ECF No. 1). Plaintiff alleges that on September 29, 2014 she attempted to board a flight at McCarran International Airport in Las Vegas, Nevada with her “small emotional support animal (‘ESA’), a dog named ‘Chief.’ ” ¶ 10. While attempting to follow the directions of TSA officers as to where she should go to, Plaintiff observed a TSA security dog that was on its hind legs, pulling on the leash maintained by its handler, and barking in a threatening manner. Plaintiff reached down to pick-up her dog. As she stood up, she was attacked from behind by the TSA dog which knocked her and her dog to the ground. Plaintiff fell on her dog, injuring his leg. ¶¶ 12-13. Plaintiff alleges that she sustained injuries to her head, neck, arms and back regions. ¶ 14. Plaintiff alleges that Defendant was negligent in either failing to properly leash its security dog or in failing to provide the handler with appropriate training. ¶ 18.
Reprinted with permission of Thomson Reuters.
Defendant filed its answer on November 25, 2015. Answer (ECF No. 12). On March 4, 2016, the Court granted an extension of the scheduling order which provided that expert disclosures were due on July 22, 2016, rebuttal expert disclosures were due on August 22, 2016 and the discovery cutoff date was September 20, 2016. Order on Stipulation (ECF No. 16). On May 3, 2016, Plaintiff served requests for production of documents. Defendant served its responses to the requests for production on July 8, 2016. Motion (ECF No. 23), pg. 2:19-20. On June 17, 2016, Defendant filed its Motion for Partial Dismissal or, in the Alternative, Partial Judgment on the Pleadings (ECF No. 17). Defendant argues that Plaintiff's alternative claim based on negligent training of the TSA employee is barred by the United States' sovereign immunity from claims based on its exercise or performance, or failure to exercise or perform, a discretionary function or duty. Motion (ECF No. 23), pgs. 4–5. In response to the motion, Plaintiff stated that her negligence claim is based on Defendant's failure to properly leash its security dog. Plaintiff conceded “that the nature and extent of training provided to the TSA agent is not challengeable under the FTCA. On the other hand, issues such as whether the TSA animal was properly leashed, including the manner in which it was leashed in accordance with the government's own policies, rules and regulations, do not implicate considerations involving the discretionary function exception.” Response (ECF No. 20), pg. 4. On July 21, 2016, one day before the expert witness disclosure deadline, Plaintiff filed the instant motion to compel discovery responses and stay the discovery period. Plaintiff argues that she is not able to disclose an expert witness on liability until she obtains discovery responses from Defendant. Upon receipt of Plaintiff's motion, the Court entered a minute order setting this motion for hearing on August 22, 2016. The minute order further stated that “[t]he expert disclosure deadline is stayed until the court reviews and considers Defendant's response, if any, to Plaintiff's motion.” Minute Order (ECF No. 22). Following entry of the minute order, Plaintiff did not disclose any expert witnesses, including medical expert witnesses. Although the minute order was broadly worded, Plaintiff's counsel's reading of the order as staying the disclosure of medical expert witnesses was unreasonable. Nothing in Plaintiff's motion stated that she
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was unable to disclose medical experts by the disclosure deadline. *2 Defendant disclosed its liability expert witness on July 22, 2016. Opposition (ECF No. 26), Exhibit B. Defendant's expert, Kenneth Wallentine, states that he is a law enforcement officer and an expert in the proper handling of law enforcement dogs. Mr. Wallentine reviewed witness statements, the TSA Canine Incident report, Defendant's Initial Disclosure Statement, Plaintiff's and Defendant's written discovery responses, and video recordings from the airport surveillance cameras. Id. at pgs.1–2. After noting that dogs are naturally social animals and are interested in other dogs, Mr. Wallentine states that “Vadar's [the TSA security dog] behavior that can be seen on the surveillance video does not show threat gestures. Nor does TSA PSC Handler Fasciano report observing any apparent threat gestures by Vadar. Fasciano attempted to block Vadar's view of the other dog and Fasciano spoke to Vadar to calm him. Such a response was consistent with the actions of a reasonable dog handler.” Id. at pg. 3. Mr. Wallentine further states that the type of dog harness worn by the dog “is a very commonly used working dog harness, adopted by hundreds of law enforcement agencies in the United States. Although it is conceivable that a dog could slip out of this type of harness, it is physically very difficult, requiring that the dog suddenly back out of the harness, slipping head, ears, chest and legs backward. Though I have seen dogs in such harnesses back quickly, I have never seen a dog successfully slip out of the harness. Prior to learning of this incident, I was not aware of any dog that ever slipped out of this type of harness.” Id. The parties agree, however, that Vadar did get out of his harness and attack Plaintiff and her dog. Plaintiff moves to compel responses to the following requests for production of documents: Request for Production No. 6: Provide copies of any documents used by TSA instructors throughout the duration of training to train TSA dog handlers, including but not exclusive to training manuals, policy statements or guidelines (official or unofficial). Request for Production No. 7: Provide copies of any documents used by TSA instructors throughout the duration of training to train TSA dogs, including but not exclusive to training manuals, policy statements or guidelines (official or unofficial).
Request for Production No. 8: Provide copies of any documents detailing official TSA policy applicable throughout the duration of training in handling occurrences such as the subject incident; to prevent, mitigate in the moment and ameliorate after the fact such crises. Defendant objected to Requests 6-8 as “vague, overbroad, disproportional to the claims at issue and implicates information that constitutes SSI as well as information that is nondiscoverable or irrelevant to the claim at issue.” Based on this objection, Defendant withheld the “Transportation Security Inspector Canine Manual, the Explosives Detection Canine Handler Course and Passenger Screening Canine Handler Course Lesson Plans and Workbooks, and TSA's Standard Operative Procedures pertaining to screening with canines.” Motion (ECF No. 23), pgs. 4–5. Request for Production No. 11: Provide copies of any documents certifying and documenting each and every type of training that TSA handler Raymond Fasciano and TSA canine have undergone. Defendant objected to Request No. 11 on the same grounds as its objections to Requests 6-8. Defendant produced certain documents, but stated that based on its objections, it had not searched TSA's Canine Website System (CWS), which records ongoing, nearly daily training of all TSA canines (to keep them alert and proficient for performance of their official duties). Id. at pg. 5. Request for Production No. 13: Provide documents concerning any and all cases or complaints ever filed or lodged against the TSA nationally for canine related incidents such as the subject incident. Defendant objected to this request as vague and overly broad in scope of geography, subject matter and time frame. It also objected on the grounds that the request implicated information that would be protected by the Privacy Act, 5 U.S.C. § 552a. Defendant stated that without waiving its objections, it “is not aware of a prior incident that is similar to the subject incident and involved Mr. Fasciano or Vadar. Defendant is not aware of any prior similar incidents at LAS involving TSA canines.” Id. at pg. 6.
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Request for Production No. 23: Produce the complete personnel file of Raymond Fasciano. Defendant objected to this request on the grounds that it is vague, overly broad, and seeks records that are nondiscoverable or irrelevant as well as protected from disclosure by the Privacy Act. Without waiving its objections, Defendant referred to documents produced in response to Request No. 11, but withheld documents relating to Mr. Fasciano, including his eOPF and other records kept by TSA regarding his employment and performance. Id. at pg. 6.
DISCUSSION *3 Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, and the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.” Roberts v. Clark County School District, 312 F.R.D. 594, 601–04 (D. Nev. 2016) discusses the intent of the 2015 amendments to Rule 26(b) and the efforts made by the Supreme Court and the Advisory Committee on Civil Rules to encourage trial courts to exercise their broad discretion to limit and tailor discovery to avoid abuse and overuse, and to actively manage discovery to accomplish the goal of Rule 1 “ ‘to secure the just, speedy, and inexpensive determination of every action and proceeding.’ ” Id. at 602. The court discussed Chief Justice Roberts' 2015 Year-End Report in which he stated that the changes to Rule 26(b) “ ‘may not look like a big deal at first glance, but they are.’ ” Id. at 603. As quoted in Roberts, the Chief Justice's Year-End Report stated: The 2015 amendments to Rule 26(b)(1) emphasize the need to impose “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” The fundamental principle of amended Rule 26(b)(1) is “that lawyers must size and shape their discovery requests to the requisites of a case.” The pretrial process must provide parties
with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary and wasteful discovery. This requires active involvement of federal judges to make decisions regarding the scope of discovery. Roberts, 312 F.R.D. at 603. Rule 26(b)(2)(C)(i) provides that on motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive. The starting point with respect to a motion to compel discovery remains the relevance of the requested information.
1. Request Nos. 6, 7, 8 and 11. Defendant argues that Requests Nos. 6, 7, 8, and 11 are irrelevant because the Government is immune from suit with respect to claims based on negligent training, supervision or retention. Putting aside, for the moment, the clear overbreath of these requests, the Court analyzes whether provisions in training or instruction manuals relating to preventing TSA security dogs from attacking other dogs or human beings, or from getting loose from their harnesses or leashes, are relevant to Plaintiff's negligence claim. In arguing that the requests are irrelevant, Defendant relies on the discretionary function exception to its waiver of sovereign immunity with respect to tort claims. In United States v. Chadd, 794 F.3d 1104, 1108 (9th Cir. 2015), the court notes that the discretionary function exception “retains the United States sovereign immunity for ‘[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or any employee of the Government, whether or not the discretion involved is abused.’ 28 U.S.C. § 2680(a).” This exception “is designed to ‘prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ ” Id. at 1108, citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). The government has the burden of proving that the exception applies. The court noted that the Supreme Court has established a two-
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step process for evaluating whether a claim falls within the discretionary function exception: First, a court examines whether the government's actions are “discretionary in nature, acts that involv[e] an element of judgment or choice.' United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (internal quotation marks omitted). In making this examination, it is ‘the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Varig, 467 U.S. at 813, 104 S.Ct. 2755. “If there is ... a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee has no rightful option but to adhere to that directive.” Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (internal quotation marks omitted). *4 Second, “even assuming the challenged conduct involves an element of judgment, it remains to be decided whether that judgment is of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 (internal quotation marks omitted). “The exception protects only government actions and decisions based on social, economic, and political policy.” Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998) (internal quotation marks omitted). However, the exception “is not confined to the policy or planning level” and extends to “the actions of Government agents.” Gaubert, 499 U.S. at 325, 323, 111 S.Ct. 1267. Chadd, 794 F.3d at 1109. In Chadd, the plaintiff's decedent was killed by a wild goat in the Olympic National Park. Although the Park Service had prior notice that the goat had attacked park visitors and employees, the court held that the government's decision not to remove or kill the goat fell within the discretionary function exception because there was no regulation or policy that mandated removal or destruction of the goat prior to the attack. The dissent argued that the government's conduct did not involve the exercise of a discretionary function, but instead amounted to a simple negligent failure to exercise due care for the safety of park visitors in the face of a known danger. As both the majority and dissenting opinions in Chadd demonstrate, analysis of the regulations or policies at issue is necessary to determine whether the conduct falls
within the scope of the agency's discretionary functions. In this case, Plaintiff does not challenge the reasonableness of a clearly discretionary decision such as the TSA's decision to use dogs in airport security operations versus other possible security methods. Although Defendant's rules or policies relating to the safe use of dogs in TSA security operations may involve the exercise of judgment or discretion, Plaintiff's discovery requests potentially encompass relevant mandatory TSA instructions, policies or procedures. The determination of negligence in FTCA actions is governed by state law. In Wickliffe v. Sunrise Hospital, Inc., 766 P.2d 1322, 1325 (Nev. 1989), which involved a claim of negligent nursing care, the Nevada Supreme Court held that the trial court should have given the following jury instruction: “In determining the adequacy of the care rendered to its patient, you may consider the defendant's own standards and whether or not the defendant conformed to its own standards.” Other state courts have similarly stated that evidence showing that a defendant violated its own safety procedures or standards is admissible to prove negligence. In Ponce v. Parker Fire Dist., 322 P.3d 197, 201 (Ariz.App. 2014), the plaintiff alleged that firefighters were negligent in not following the fire department's policies and procedures for using thermal imaging cameras to detect heat in building walls to prevent the recurrence of fire. The court stated that “when a defendant has departed from rules of its own making governing the conduct of its employees, a plaintiff may thereby demonstrate breach of an appropriate standard of care.” Roddey v. Wal-Mart Stores East, LP, 784 S.E.2d 670, 675 (S.C. 2016) states that “[e]vidence of a company's deviation from its own internal policies is relevant to show the company deviated from the standard of care, and is properly admitted to show the element of breach.” Steinberg v. Lomenick, 531 So.2d 199, 200 (Fla.App.3 Dist. 1988) states that rules made by a defendant to govern the conduct of employees are relevant evidence of the standard of care. In Babcock v. The Chesapeake and Ohio Railway, 404 N.E.2d 265, 275 (III.App. 1980), the court held that defendant's own rules governing the operation of its trains were admissible to prove the standard of care. TSA's training manuals, policy statements or guidelines relating to the prevention of unwarranted attacks on other dogs or human beings are relevant to the negligence claim in this case, and are therefore discoverable in the absence of some privilege that bars their disclosure.
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*5 As stated above, Plaintiff's requests for all TSA training manuals, policy statements or guidelines relating to TSA security dogs and handlers are clearly overbroad. The training manuals may contain confidential, sensitive information relating the detection of explosives. 1 Such information is not relevant to the issue in this case. 2 The Government states that the training materials requested by Plaintiff contain sensitive security information (SSI) which is protected from disclosure by federal law. Sensitive security information is “ ‘information obtained or developed in the conduct of security activities ... the disclosure of which TSA has determined would ... [b]e detrimental to the security of transportation.’ ” Ibrahim v. Department of Homeland Sec., 669 F.3d 983, 998 (9th Cir. 2012) (quoting 49 C.F.R. § 1520.5(a)(4). Section 525(a) of the Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109–295, 120 Stat. 1355, 1382 (October 4, 2006), provides that information designated as SSI may be withheld from public disclosure by the Department of Homeland Security. Section 525(d) further states: That in civil proceedings in United States District Courts, where a party seeking access to SSI demonstrates that the party has substantial need of relevant SSI in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the information by other means, the party or party's counsel shall be designated as a covered person under 49 CFR Part 1520.7 in order to have access to the SSI at issue in the case, provided the overseeing judge enters an order that protects the SSI from unauthorized or unnecessary disclosure and specifies the terms and conditions of access, unless upon completion of a criminal history check and terrorist assessment like that done for aviation workers on the persons seeking access to SSI, or based on the sensitivity of the information, the Transportation Security Administration or DHS
demonstrates that such access to the information for the proceeding presents a risk of harm to the nation. See also Ibrahim, 669 F.3d at 999 (discussing the provisions of the law). Section 525(d) also states that an order granting access to SSI shall be immediately appealable to the United States Court of Appeals, which shall have plenary review over both the evidentiary finding and the sufficiency of the order specifying the terms and conditions of access to the SSI in question. Id. The language of Section 525(d) mirrors that of Rule 26(b)(3)(A)(ii) which provides that a party may discover relevant documents protected from disclosure by the work product doctrine if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Limiting Plaintiff's requests to training manuals, policy statements or guidelines relating to the prevention of unwarranted attacks on other dogs or human beings, including ensuring that the dogs are properly leashed or restrained, satisfies the substantial need requirement set forth in Section 525(d). If, in fact, the TSA has such rules or policies, they may be highly probative on the issue of whether the TSA officer in this case was negligent. Plaintiff cannot obtain the substantial equivalent of such information by other means. Although Plaintiff may be able to designate her own expert witness to testify that the TSA officer did not properly handle the dog, such testimony is unlikely to have the probative force of evidence showing that the officer violated TSA's own rules or policies for handling the dog. *6 Section 525(d) also provides that the party requesting the SSI or that party's counsel shall be designated as a covered person under 49 C.F.R. Part 1520.7 in order to have access to the SSI at issue, and may be required by the TSA to undergo and satisfy a security background check. Section 525(d) also requires that the court enter an order that protects the SSI from unauthorized or unnecessary disclosure and specifies the terms and conditions of access. Consistent with Section 525(d), the Court will enter a protective order providing that disclosure of the documents is restricted to plaintiff and/or plaintiff's counsel and plaintiff's liability expert witness (if one is designated in this case), and may only be used for purposes of this case. Production shall also be subject
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to any necessary prior background check that the TSA reasonably believes is necessary. The Court directs the parties to meet and confer regarding the submission of a stipulated protective order governing the production and use of SSI in this litigation. 3
2. Request No. 13. Plaintiff has failed to provide a sufficient reason to compel Defendant to respond to Request No. 13 by producing documents “concerning any and all cases or complaints ever filed or lodged against the TSA nationally for canine related incidents such as the subject incident.” Defendant has responded to this request by stating that it is not aware any prior incidents involving the subject dog and TSA handler, and that it is not aware of any similar prior incidents occurring at “LAS” which the Court infers means McCarran International Airport. Plaintiff argues that evidence regarding other incidents would suggest that TSA had “knowledge of a problem which is potentially a breach of the duty of care. Certainly, prior incidents involving the subject dog and TSA trainer would be relevant to the issue of negligence. Other incidents involving TSA dogs and handlers, occurring elsewhere in the country, however, would only conceivably be relevant to establish a general failure to properly train TSA security dogs and handlers, for which the Plaintiff has acknowledged no viable claim exists. The fact that different TSA dogs and different TSA officers were involved in a similar incidents on other occasions, would not prove that the dog it in this instance was mishandled. The Court therefore denies Plaintiff's motion to compel further responses to Request No. 13.
3. Request No. 23: Plaintiff's Request No. 23 seeks the production of the complete personnel file of Raymond Fasciano, the TSA officer involved in the subject incident. Neither in the request or in her motion to compel did Plaintiff attempt to limit the request to any specific type of information in the officer's personnel file. Plaintiff argues that credibility of a witness is always relevant and that Officer Fasciano's personnel file may contain “important impeachment evidence.” Motion (ECF No. 23), pg. 7. Rule 608(b) of the Federal Rules of Evidence states that “[e]xcept for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the
court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of ... the witness.” A party can only inquire into such incidents, if she knows of their existence. If Officer Fasciano's personnel file contains information showing that he engaged in dishonest or untruthful conduct, then such records should be produced to Plaintiff. This does not mean, however, that any type of employment violation or discipline is relevant. For example, information that an employee was cited or disciplined for unexcused tardiness or absence from work is irrelevant and need not be produced. On the other hand, information that the employee was cited or disciplined for giving untruthful information about being tardy or absent from work is relevant and should be produced. Any production of documents pursuant to Request No. 23 may also be made subject to the stipulated protective order to be submitted by the parties.
4. Plaintiff's Request for Extension of Expert Witness Disclosure Deadlines. *7 Local Rule LR 26-4 states that a motion or stipulation to extend a deadline set forth in a discovery plan must be received no later than 21 days before expiration of the subject deadline. Local Rule LR IA 6-1 states that a request made after the expiration of the specified period will not be granted unless the movant or attorney demonstrates that the failure to file the motion before the deadline expired was the result of excusable neglect. In this case, Plaintiff filed the instant motion one day before the expiration of the expert witness disclosure deadline and it was therefore untimely under LR 26-4. Plaintiff's counsel argues that in order to disclose an appropriate expert witness on liability, he needs to first obtain responses to the written discovery requests. However, Plaintiff's counsel was aware at least 21 days prior to the expert disclosure deadline that he did not have such information. He therefore should have moved for an extension of the expert witness disclosure deadline at that time. Because mandatory rules or policies relating to the safe use of dogs in TSA security operations is relevant to expert opinion testimony on liability, the Court would have granted the extension if it had been sought in a timely manner. Defendant argues that it will be prejudiced if the Court extends the time for Plaintiff to disclose her liability expert witness because Plaintiff's expert will have the advantage of reviewing the opinions of Defendant's expert, Mr. Wallentine, in preparing his or her opinions.
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Mr. Wallentine's expert opinions are fairly simple and straightforward and it is doubtful that any expert disclosed by Plaintiff will gain any advantage by having had the prior opportunity to review his report. (Defendant's expert can also provide a rebuttal report to the opinions of Plaintiff's liability expert.) If relevant mandatory rules or policies are disclosed by Defendant, then both parties' experts will likely render opinions in light of those rules or policies. In the interest of resolving this case on the merits, and notwithstanding the untimeliness of Plaintiff's motion to extend the expert witness disclosure deadline, the Court will extend the deadline for Plaintiff to disclose an expert witness on liability pursuant to Rule 26(a)(2) until 10 days after Defendant supplements its response to Requests Nos. 6, 7, 8, and 11 in compliance with this order. Plaintiff has not provided this Court with any reason for extending the deadline to disclose expert witnesses on damages. Minute Order (ECF No. 22) was not intended to extend, and was not reasonably construed as extending, the deadline for disclosing medical experts which were not the subject of Plaintiff's motion. Because Plaintiff has not provided good cause to extend the disclosure deadline with respect to medical experts, the Court will not extend the deadline with respect to such experts in this order. Plaintiff may not disclose heretofore undisclosed medical expert witnesses unless she files motion demonstrating good cause for permitting her to do so, and the Court grants that request. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Discovery Responses and Stay Discovery Period (ECF No. 23) is granted, in part, as follows: 1. Defendant shall produce TSA's training manuals, policy statements or guidelines relating to the prevention of unwarranted attacks on other dogs or human beings, including any manuals, policy statements or
guidelines regarding the proper leashing or collaring of dogs. Defendant shall also produce documents in TSA Officer Fasciano's personnel file relating to citations or discipline for untruthfulness or dishonesty. The documents produced pursuant to this order shall be subject to a protective order to be entered prior to Defendant's production of the documents. 2. Within ten (10) days from the date of this order, the parties shall file a proposed protective order governing the disclosure and use of documents produced by Defendant that are either designated as sensitive security information (SSI), or which constitute private personal information. If the parties cannot agree on the terms of the protective order then either party may file a motion for an appropriate protective order. *8 3. The deadline for the Plaintiff to disclose an expert witness on the issue of liability is extended until ten (10) days from the date that Defendant produces documents pursuant to paragraph 1 of this order, or Defendant notifies Plaintiff that no such documents exist. Defendant may disclose a rebuttal expert thirty (30) days after Plaintiff serves her liability expert witness disclosures. 4. The discovery deadline will be extended until 30 days after Defendant's rebuttal expert disclosure is due. 4. This matter is set for a status hearing on Tuesday, September 13, 2016 at 10:30 a.m. in LV Courtroom 3A to discuss the production of documents in compliance with this order, the entry of an protective order, and to set specific scheduling order deadlines. DATED this 30th day of August, 2016.
All Citations Slip Copy, 2016 WL 4530461
Footnotes
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The parties have not provided the Court with any specific information regarding the functions performed by the TSA security dogs. According to the TSA Official Website, the dogs are trained and used to detect explosives. According to Defendant's expert, Vadar did not make any “threat gestures” and TSA officer Fasciano reportedly did not observe “any apparent threat gestures.” Opposition (ECF No. 26), Exhibit B. If Defendant represents that there are no training manuals, policy statements or guidelines within the scope of this order, then submission of a protective order may not be necessary.
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