Ryu, Donna M., United States Magistrate Judge
Trial court granted plaintiff's motion for sanctions in part following defendants' failure to produce discovery in response to court order where the defendants' conduct amounted to "foot-dragging" and a "lack of candor."
Plaintiffs brought suit under the Telephone Consumer Protection Act (TCPA) alleging that defendants' practice of sending unsolicited fax advertisements ("junk faxes") violated the Act. In discovery, plaintiffs sought, and ultimately moved to compel production of, exemplar faxes and documents showing that the recipients gave permission to defendants to send them (those would be relevant to the "permission defense" that plaintiffs anticipated defendants making), as well as transmission records that would show the identities, fax numbers and date and times of transmissions for the faxes. The trial court granted each motion to compel.
The day before their responses were due, defendants filed a motion for reconsideration and a motion to bifurcate discovery to allow for only the named plaintiffs' discovery to proceed. The court denied both motions. Over the next six weeks, defendants engaged in a "good deal of foot-dragging as well as a distinct lack of candor" by continuing to promise productions, but never deliver. Finally, defendants produced four pages of documents (four exemplar faxes) with transmission logs for four job numbers, with each job showing a single broadcast of each fax to several thousand fax numbers.
Plaintiffs moved for sanctions alleging that defendants violated the court's order compelling production by 1) not producing all exemplars, transmission records and permission evidence by the date in the order, 2) producing only selective subsets of data on three separate dates over a month, and 3) failing to set forth which categories of permission defendants are relying on and which plaintiffs fall into which category. Defendant alleged it met the court's order.
In analyzing the the first two issues, the court found that defendants imposed a "limitation on discovery that the court did not order" and required defendants to produce the requested information. As to the categories of permission, defendants characterized the court's order as merely a suggestion -- a notion that drew the ire of the court -- "This characterization is flagrantly unbelievable"-- and an order to produce the requested information in an interrogatory response and file certifying declarations.
The court also dismissed defendants' argument that plaintiffs failed to meet and confer both before and after filing the motion for sanctions. The record clearly showed attempts to notify defendants of their noncompliance in advance of the motion, and Rule 37 does not require a meet and confer once a motion has been filed.
Because this was the third time that the court had to compel production, it granted plaintiffs' motion in the form of costs and fees, to be determined at a later hearing.
v.
MCKESSON CORPORATION, et al., Defendants
Counsel
Robert C. Schubert, Willem F. Jonckheer, Dustin Lamm Schubert, Schubert Jonckheer & Kolbe LLP, San Francisco, CA, Brian John Wanca, Glenn L. Hara, Ross Michael Good, Ryan Michael Kelly, Anderson & Wanca, Rolling Meadows, IL, George Demetrios Jonson, Matthew Elton Stubbs, Montgomery Rennie Jonson, Cincinnati, OH, for Plaintiffs.Benjamin French Patterson, Tiffany Cheung, Andrew Amoroso, David S. Reidy, Morrison & Foerster LLP, San Francisco, CA, Tyree P. Jones, Jr., Reed Smith LLP, Washington, DC, for Defendants.
ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SANCTIONS Re: Dkt. No. 162
Any document that was: (1) created, in whole or in part, by one or more employees of the marketing department of McKesson corporation, McKesson Technologies, Inc., McKesson Provider Technologies, or other McKesson entity; (2) transmitted to one or more fax numbers via server, computer, or other automated function; (3) that advertised the commercial availability or quality of any property, good, or service or McKesson; (4) after June 20, 2009.
Any document that was: (1) created, in whole or in part, by one or more employees of the marketing department of McKesson corporation, McKesson Technologies, Inc., McKesson Provider Technologies, or other McKesson entity; (2) transmitted to one or more fax numbers via server, computer, or other automated function; (3) that advertised the commercial availability or quality of any property, good, or service or McKesson; (4) after June 20, 2009.
The search ultimately conducted by Defendants, as required by the Court's December 5, 2014 Order, went well beyond merely looking for only fax exemplars with slight differences. Indeed, on the face of the four additional unique fax exemplar found, it is clear that they are quite different from the faxes attached to the complaint. (Jones Decl. ¶ 17, Ex. H.) Consistent with the Court's order, Defendants used reasonable search terms based on Plaintiffs' position that the exemplars relevant to this case are those “so similar in substance” to the faxes attached to the Complaint that Plaintiffs may argue those faxes are encompassed within the class definition. (Docket No. 130 (Hearing Tr.) at 8:4–5.)