Nece v. Quicken Loans, Inc.
Nece v. Quicken Loans, Inc.
2017 WL 2868408 (M.D. Fla. 2017)
May 5, 2017
McCoun III, Thomas B., United States Magistrate Judge
Summary
The court found that ESI was relevant to the case, but limited the scope of the discovery to avoid undue burden or expense on the parties. The court granted Plaintiff's Motion to Compel in part and denied it in part, and granted Defendant's Motion for a Protective Order and Rock's Motion to Quash Subpoena. The court also granted Plaintiff's Motion to Deny or Defer Quicken Loans' Motion for Summary Judgment in part and denied it in part.
Eileen NECE, on behalf of herself and all others similarly situated, Plaintiffs,
v.
QUICKEN LOANS, INC., Defendant
v.
QUICKEN LOANS, INC., Defendant
Case No. 8:16-cv-2605-T-23TBM
United States District Court, M.D. Florida, Tampa Division
Signed May 05, 2017
Counsel
David P. Mitchell, Richard David Giglio, Maney & Gordon, PA, Tampa, FL, Gregory S. Duncan, Charlottesville, VA, Joseph S. Tusa, Tusa P.C., Southold, NY, for Plaintiffs.Brooks R. Brown, Keith Eric Levenberg, William Kyle Tayman, Goodwin Procter, LLP, Washington, DC, James Kirby McDonough, Steven Douglas Knox, Quarles & Brady, LLP, Tampa, FL, for Defendant.
McCoun III, Thomas B., United States Magistrate Judge
ORDER
*1 THIS MATTER is before the Court on the following:
(1) Plaintiff's Motion to Compel (Doc. 41) and Defendant's response (Doc. 51);
(2) Plaintiff's Motion to Deny or Defer Quicken Loans' Motion for Summary Judgment (Doc. 45) and Defendant's response (Doc. 50);
(3) Quicken Loans Inc.'s Motion for a Protective Order (Doc. 54) and Plaintiff's response (Doc. 60); and
(4) Rock Connections LLC's Motion to Quash Subpoena (Doc. 55) and Plaintiff's response (Doc. 61)
A hearing on these matters was held April 20, 2017.
I.
A procedural history assists in framing the parties' disputes.
On September 8, 2016, Plaintiff filed this putative class action alleging that Defendant violated the Telephone Consumer Protection Act (“TCPA”) and its implementing regulations by making prerecorded calls to her and class members' residential landline telephone numbers (Count I); calling her residential landline telephone number and those of class members listed on the national do-not-call registry (Count II); failing to maintain a do-not-call list and a written policy about the list, train employees about use of the list, and to honor a do-not-call request within a reasonable time (Count III); and failing to honor her request to stop calling her within a reasonable amount of time (Count IV).
On October 28, 2016, Defendant moved to dismiss the Complaint. (Doc. 20).
On November 10, 2016, Plaintiff served her First Set of Interrogatories and First Request for Production of Documents.[1] (Doc. 41-1, 41-2).
On November 14, 2016, the parties filed their case management report. (Doc. 30). Therein, the parties disagreed on the conduct of discovery. Defendant wanted to bifurcate and/or phase discovery, and Plaintiff contended bifurcation was unnecessary. (Doc. 30 at 3).
On November 21, 2016, the Court entered its Case Management and Scheduling Order (“CMSO”), stating that, “[w]ith the following exceptions, the parties must conform to the deadlines proposed in the case management report.” (Doc. 33). The CMSO set a discovery deadline of April 2, 2018, but did not include a bifurcated or phased discovery schedule.
On December 23, 2016, Defendant served its objections and responses to Plaintiff's First Set of Interrogatories and First Request for Production of Documents. (Doc. 41-3, 41-4). Among other things, Defendant objected to any production prior to the Court's ruling on its motion to dismiss and the conduct of mediation. Defendant indicated that it anticipated producing the responsive documents on or before the later of January 23, 2016, or three business days after the entry of a mutually-agreeable protective order. (Doc. 41-4 at 71).
On January 3, 2017, the Court denied Defendant's motion to dismiss and struck Count IV as redundant. (Doc. 37 at 5-6).
*2 On January 17, 2017, Defendant filed its Answer and Affirmative Defenses. It denied the allegations, asserting that it had prior express invitation or permission to call Plaintiff; Plaintiff lacked standing to pursue her claims; it did not use an artificial or prerecorded voice; it has established and implemented reasonable practices and procedures to comply with the TCPA, including those to prevent calls in violation of the TCPA; and it has instituted procedures for maintaining an internal do-not-call list, maintained a written policy for maintaining the list, and properly trained personnel engaged in outbound calling regarding the list. (Doc. 38).
On January 23, 2017, Defendant made its first of two document productions responsive to Plaintiff's First Request for Production of Documents. Decl. Tayman (Doc. 51-1 at 3, ¶ 11).
On February 2, 2017, the parties reached an impasse at mediation. (Doc. 39).
On February 15, 2017, Defendant filed its motion for summary judgment (Doc. 40), arguing that each of Plaintiff's claims were foreclosed as a matter of law because the undisputed facts establish it never used a “prerecorded” or “artificial voice” to call her, she initiated the calls at issue by requesting Defendant to contact her, and Defendant stopped calling her within five business days of her request. Anticipating Plaintiff's objection that she needed discovery before responding to the motion, Defendant asserted she already possessed or had access to the information needed to respond to the motion, and it “already has produced all documents in its possession, custody, and control concerning the timing, content, and means of the challenged calls to Plaintiff, as well as records about the addition of Plaintiff's number to Quicken Loans' internal not call list.” (Doc. 40 at 23-24). If the Court was inclined to permit additional discovery, Defendant urged that it “should be narrowly tailored to the issues raised in the motion and limited to a set time period (perhaps 45 days); and (b) all other discovery should be stayed pending the resolution of [its] motion.”[2] (Doc. 40 at 24).
On February 16, 2017, Defendant made its second document production responsive to Plaintiff's First Request for Production of Documents. Decl. Tayman (Doc. 51-1 at 3, ¶ 11).
On March 13, 2017, Defendant served a privilege log and supplemental/amended responses to Interrogatory Nos. 5, 6, and 8 of Plaintiff's First Set of Interrogatories, and to Request Nos. 10, 12-13, 20-24, 31, and 33-36 of Plaintiff's First Request for Production of Documents. Decl. Tayman (Doc. 51-1 at 6, ¶ 22); (Doc. 51-1 at 67-76, 78-97). Defendant omitted eight of its original “initial objections” from each of its amended responses. Compare (Doc. 41-3 at 1-5, 41-4 at 1-6) with (Doc. 51-1 at 67-70, 78-82). With regard to the interrogatories and requests not amended/supplemented, Defendant stated that it stood by its initial responses and objections. (Doc. 51-1 at 68, 79).
II.
A.
By her first motion, Plaintiff challenges Defendant's responses to her First Set of Interrogatories and First Request for Production of Documents. With regard to the eight interrogatories propounded, Plaintiff notes Defendant objected to each one, refused to provide substantive responses to multiple interrogatories, and asserted a litany of legally improper boilerplate objections. With regard to the forty-one requests propounded, Plaintiff notes Defendant improperly refused to produce any documents premised on its numerous objections, including a refusal to participate in discovery until the Court ruled on its motion to dismiss and the parties engaged in mediation.[3] Plaintiff complains that even after reaching an impasse at mediation, Defendant has refused to produce documents responsive to the majority of her requests premised on unreasonable (1) objections to discovery not strictly limited to the named Plaintiff, (2) objections based on attorney-client and other privileges even though it has not produced a privilege log, (3) objections based on inapplicable bank examiner and joint defense privileges, (4) objections to producing ESI, and (5) boilerplate objections without support or explanation. Plaintiff complains Defendant has engaged in obfuscation and delay tactics that have impeded her ability to prosecute this action and respond to its motion for summary judgment, and essentially has unilaterally bifurcated class discovery. She seeks an Order striking or overruling Defendant's legally-deficient boilerplate objections, compelling Defendant to provide complete narrative responses to the discovery requests that are not subject to or conditioned on objections, and compelling Defendant to produce all responsive documents and materials. (Doc. 41).
*3 In response, Defendant generally complains that Plaintiff seeks voluminous discovery on compliance with statutory provisions not at issue; practices to which she was not exposed; technology not relevant to her claims; and every call or communication it made to any client or potential client over a four-year period. It contends such discovery should not be permitted because its pending motion for summary judgment demonstrates the core factual allegations relied on by Plaintiff are false, and nearly all of the voluminous discovery she seeks is not relevant or necessary to the resolution its motion. If not denied outright, Defendant urges the motion should be denied at least with respect to the breadth of discovery because most of the discovery sought is not necessary for her to respond to its motion for summary judgment and she does not contend otherwise. Citing McCabe v. Foley, 233 F.R.D. 683, 685-87 (M.D. Fla. 2006), Defendant asserts that “courts routinely limit discovery to the issues raised in a dispositive motion so as to avoid potentially burdensome and unnecessary discovery.”
Beyond these threshold issues, Defendant argues the motion should be denied because Plaintiff fails to demonstrate how the discovery sought is relevant to her claims or Rule 23 class issues. It also argues that many of her challenges are without factual or legal merit and are otherwise moot in light of its contemporaneous amendments to certain responses and withdrawal of general objections. In any event, Defendant notes that it has produced all of its call records and recordings related to the challenged calls and other non-privileged records, information, and ESI about its interactions with Plaintiff. (Doc. 51).
The scope of discovery is largely governed by Fed. R. Civ. P. 26. Under Rule 26(b), parties may obtain information and materials that are nonprivileged, relevant to any party's claim or defense, and “proportional to the needs of the case,” which requires consideration of: (1) “the importance of the issues at stake in the action,” (2) “the amount in controversy,” (3) “the parties' relative access to relevant information,” (4) “the parties' resources,” (5) “the importance of the discovery in resolving the issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
A party resisting discovery must state its grounds for objecting with specificity and demonstrate how the objected-to interrogatory or request is not relevant or is unreasonable or otherwise unduly burdensome. See Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000) (“The party resisting production of information bears the burden of establishing lack of relevancy or undue burden in supplying the requested information”). To merit consideration, “an objection must show specifically how a discovery request is overly broad, burdensome or oppressive, by submitting evidence or offering evidence which reveals the nature of the burden.” Coker v. Duke & Co., 177 F.R.D. 682, 686 (M.D. Ala. 1998). A district court has broad discretion to compel or deny discovery. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
As noted above, Plaintiff claims three discrete violations of the TCPA. First, she alleges broadly that Defendant or its agents made prerecorded telemarketing calls to her and other putative class member's residential landline telephone numbers without prior consent in violation of 47 U.S.C. § 227(b)(1)(B) and 47 C.F.R. § 64.1200(a)(3). (Doc. 1 at 18). Next, she alleges Defendant or its agents made repeated and harassing telemarketing calls to persons, including herself, whose residential landline telephone numbers were listed on the national do-not-call registry in violation of 47 U.S.C. § 227(c), (e) and 47 C.F.R. § 64.1200(c), (e). (Doc. 1 at 20). Finally, she alleges Defendant or its agents made telemarketing calls to residential landline telephone numbers without first instituting procedures mandated by the TCPA before any telemarketing calls can be lawfully made, in violation of 47 U.S.C. § 227(c), (e) and 47 C.F.R. § 64.1200(d), (e). (Doc. 1 at 22).
*4 In light of Plaintiff's claims, I find that Rule 23 considerations also work to shape the scope of discovery at this time. To the extent Plaintiff would propose to represent one or more classes, the class(es) would appear circumscribed by her allegations that telemarketing calls with prerecorded voice communications were made to her residential landline telephone number, such calls continued even though her telephone number was registered on a do-not-call list, and/or the calls continued for an unreasonable amount of time after Defendant was told not to call. Some discovery related to Defendant's Answer and Affirmative Defenses also is appropriate at this time.
With respect to the pendency of a motion to dismiss or for summary judgment, nothing in the Federal Rules of Civil Procedure or this Court's orders permits a party to refuse to respond to discovery requests simply because such a motion is pending. While Defendant relies on Chudasama v. Mazda Motor Corporation, 123 F.3d 1353, 1368 (11th Cir. 1997), for the proposition that “[f]acial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief, should [ ] be resolved before discovery begins,” it reads the case too broadly. The holding in Chudasama does not establish the general rule that discovery should not proceed while a dispositive motion is pending. See Koock. v. Sugar & Felsenthal, LLP, No. 8:09-cv-609-T-17EAJ, 2009 WL 2579307, at *2 (M.D. Fla. Aug. 19, 2009) (denying motion to stay). Instead, Chudasama and its progeny “stand for the much narrower proposition that courts should not delay ruling on a likely meritorious motion to dismiss while undue discovery costs mount.” In re Winn Dixie Stores, Inc. ERISA Litig., 3:04-cv-194-J-33MCR, 2007 WL 1877887, at *1 (M.D. Fla. June 28, 2007). In fact, motions to stay discovery are disfavored and are not ordinarily granted when the motion may not dispose of the entire case. Hovermale v. Sch. Bd. of Hillsborough Cnty., Fla., 128 F.R.D. 287, 289 (M.D. Fla. 1989). Despite Defendant's contention that Plaintiff's claims cannot withstand legal scrutiny, Plaintiff is entitled to discovery related to her individual claims, Defendant's Answer and Affirmative Defenses, and Rule 23 considerations.
As for Defendant's lengthy “Initial Objections to Interrogatories and Definitions,” which are not particularized as to specific interrogatories or requests, I find them to be highly obstructive. Such general objections are disfavored and serve no useful purpose. See Gomez v. Mickey's Plumbing, Inc., No. 12-80742-civ-Ryskamp/Hopkins, 2013 WL 12140967, at *1 (S.D. Fla. July 11, 2013) (general objections, standing alone, are meaningless and fail to comply with Rule 34); Kelly v. FedEx Ground Package Sys., Inc. No. 3:10-cv-01265, 2011 WL 158476, at *1-2 (S.D. W. Va. Apr. 26, 2011) (collecting cases disfavoring general objections). Accordingly, Defendant's Initial Objections to Interrogatories and Definitions 1 through 15 and Defendant's Initial Objections to Requests and Definitions 1 through 18 are hereby STRICKEN.
As for Defendant's numerous and lengthy objections made in regard to particular interrogatories or requests that are also answered, there is authority for striking those as well. See Martin v. Zale Del., Inc., No. 8:08-cv-47-T-27EAJ, 2008 WL 5255555, at *2 (M.D. Fla. Dec. 15, 2008) (noting that “such an objection and answer preserves nothing and wastes the time and resources of the parties and the court”); Consumer Elecs. Ass'n v. Compras & Buys Magazine, Inc., No. 08-21085-CIV, 2008 WL 4327253, at *2 (S.D. Fla. Sept. 18, 2008) (stating formulaic objections followed by an answer preserves nothing and serves only to waste the time and resources of the parties and court because it leaves the requesting party uncertain as to whether the question has been fully answered or whether only a portion of the question has been answered). In this instance, however, I decline to strike the same in total because Defendant's objections related to the scope and relevance of a number of requests appear well-taken.
*5 As for the substance of the dispute over specific interrogatories and requests for production, I order as follows.
With regard to the interrogatories, Defendant shall supplement its answers and/or amended answers to provide more complete and responsive answers to Interrogatory Nos. 1-2, 3, 4, and 7.[4]
As for Interrogatory No. 1, Defendant may, in the alternative, produce each document or communication it is relying on to show Plaintiff's consent.
As for Interrogatory No. 2, Defendant shall identify, by name and job title, any persons with knowledge about Plaintiff's consent, which it had not identified previously by its answer.
As for Interrogatory No. 3, Defendant shall answer for any such calls it or its agent(s) made between September 2012 and June 2013. As pledged by Defendant, it shall also provide its records documenting each such call, including any recordings not already produced, since there now is a protective order in place. See (Doc. 47).
As for Interrogatory No. 4, Defendant shall clarify its answer by stating the exact date it first placed Plaintiff and/or her telephone number on its internal do-not-call list or registry.
As for Interrogatory No.7, Defendant need only answer whether it or its agents and/or related third parties employed any system for using prerecorded voice messages as part of any telemarketing calls to consumers' residential landline phone numbers between September 2012 and June 2013. If no such system was employed, such should likewise be stated under oath.
Defendant shall provide its supplemental answers to the above interrogatories within fourteen (14) days from the date of this Order.
With regard to the requests for production, to extent it has not done so already, Defendant is ordered to produce responsive documents or otherwise respond appropriately to Request Nos. 1-4 and 6-9. Defendant shall provide this supplemental production within twenty-eight (28) days from the date of this Order.
Additionally, within forty-five (45) days from the date of this Order, Defendant shall produce responsive documents or otherwise respond appropriately to Request Nos. 10, 12, 13, 18, 19, 20-21, 24, 27-28, 30, and 40-41 as set forth below.
As for Request Nos. 10, 12, and 13, as modified by the Plaintiff's proposals (Doc. 41-5), Defendant need only provide its written or electronic policies in effect between September 2012 and June 2013 for: assuring compliance with the TCPA and related FCC rules or regulations in connection with its marketing, sales, or service calls to or received from residential landline phone numbers; handling requests by consumers for Defendant to cease phone calls; and its internal do-not-call list(s) and the national do-not-call list.
As for Request No. 18, to the extent that such organizational charts exist, Defendant shall provide the chart reflecting the chain of command for those employees or agents telemarketing and servicing its mortgage services between September 2012 and June 2013.
*6 As for Request No. 19, Defendant need only produce copies of formal complaints alleging violations of the TCPA made by federal or state agencies or on behalf of consumers receiving phone calls on residential landline phones asserting the improper use of prerecorded messages and violations of internal or national do-not-call lists.
As for Request Nos. 20 and 21, while I find them to be overly broad and disproportionate to Plaintiff's needs at this stage of the proceedings, the requests are not wholly irrelevant to Plaintiff's allegations. To the extent Defendant documents consumer requests made by similarly situated residential consumers that they not be contacted or that their prior consent be revoked, such documentation shall be provided for the period between September 2012 and June 2013.[5]
As for Request No. 24, to the extent such has not already been produced, Defendant shall produce records of complaints for violation of the do-not-call lists, or complaints for telephone calls made to consumers' residential landline phones after the consumer revoked consent to be called or requested not to be called, which were made between September 2012 and June 2013.
As for Request Nos. 27 and 28, to the extent that Defendant tracks violations of its internal and the national do-not-call lists, such information or data shall be provided for the period between September 2012 and June 2013.
As for Request No. 30, to the extent that Defendant, its agents, or third-parties employed by Defendant used prerecorded messages in outbound telemarketing calls to the residential landline phones of consumers concerning its mortgage products or services between September 2012 and June 2013, the identification of the phone numbers so-employed and records reflecting such prerecorded messages shall be produced.
As for Request Nos. 40 and 41, Defendant shall produce any documents identified in its Rule 26(a) disclosures that have not been produced already.
As for Request Nos. 37-39, Defendant shall produce responsive documents within 120 days from the date of this Order.
As for Request Nos. 5, 11, 14-17, 25-26, 29, and 31-35,[6] I sustain Defendant's objections or otherwise find the requests seek irrelevant information or are premature, overly broad, and disproportionate to the needs of the case at this time.
Should discovery hereunder indicate that the temporal scope of Plaintiff's inquiries should be expanded, the matter may be addressed on subsequent motion.
The Court encourages the parties to confer on an agreed format for ESI production and an efficient, cost-friendly, protocol for search of the same.
B.
By her Rule 56(d) motion, Plaintiff seeks an Order denying Defendant's motion for summary judgment or deferring its consideration until discovery is complete. Plaintiff asserts that Defendant's failure to engage in meaningful discovery prevents her from adequately and fairly responding to its motion. She contends she needs discovery pertaining to: (1) the identity, capabilities, and use of the computer system used by Defendant and its dialing system because such will establish whether Defendant makes unassisted calls using a prerecorded or artificial voice; (2) the training received by Defendant's current or former employees on the do-not-call rules applicable to the national and company-specific registries; (3) the identity of the phone company Defendant used during the period November 2012 through March 2013 so that she can issue a subpoena to verify the number of calls it made to her residential telephone number and the date on which the last of these calls was made;[7] (4) testimony from recently identified current or former employees of Defendant who called her; and (5) Defendant's policies and procedures used when its employees make telemarketing calls.[8] She also contends she will need to depose Defendant's employees who called her and the declarants to Defendant's motion for summary judgment. (Doc. 45).
*7 In response, Defendant contends Plaintiff's motion should be denied outright because she has not put forth any facts or evidence to cast doubt on the merits of its motion for summary judgment or identified discovery she legitimately needs to respond to the motion. Defendant urges Plaintiff should already have evidence of her own and it has already produced most of the discovery she needs to respond to the motion. To the extent discovery is allowed, Defendant requests that resolution of its motion for summary judgment be deferred for a reasonable period—perhaps forty-five days—pending completion of the limited discovery. (Doc. 50).
The Eleventh Circuit “has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery.” Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1988) (collecting cases). This is because:
The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. If the documents or other discovery sought would be relevant to the issues presented by the motion for summary judgment, the opposing party should be allowed the opportunity to utilize the discovery process to gain access to the requested materials. Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.
Id. (internal citations omitted).
Under Rule 56(d), a court may defer ruling on a motion for summary judgment, allow time for discovery, or issue any other appropriate order if the nonmoving party “present[s] specific facts explaining the inability to make a substantive response.” Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1338 (11th Cir. 2012) (quoting SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). A Rule 56(d) motion “must be supported by an affidavit which sets forth with particularity the facts the moving party expects to discover and how those facts would create a genuine issue of material fact precluding summary judgment.” Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998). Consideration of a Rule 56(d) motion requires the court to balance the movant's demonstrated need for discovery against the burden such discovery will place on the opposing party. Id. Whether to grant or deny a Rule 56(d) motion is within the court's discretion. Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989).
On consideration, Plaintiff's Motion to Deny or Defer Quicken Loans' Motion for Summary Judgment (Doc. 45) is GRANTED in part. The motion is GRANTED to the extent that, unless otherwise ordered by the district judge, Plaintiff's response to Defendant's Motion for Summary Judgment shall be filed on or before August 14, 2017, and a ruling on the motion is DEFERRED to accommodate the response. As for the discovery requests identified by Plaintiff, I find the discovery ordered above is adequate to address her need for discovery before responding to Defendant's motion for summary judgment. As such, Plaintiff's motion is DENIED to the extent that she seeks specific discovery matters not granted above. Because an early motion for summary judgment could prove useful to an efficient resolution of this case, I conclude there is no good cause to deny the motion for summary judgment outright.
C.
The Motion to Quash Subpoena (Doc. 55) filed by nonparty Rock Connections, LLC (“Rock Connections”) and Defendant's Motion for a Protective Order (Doc. 54) are related. Both pertain to the nonparty subpoenas Plaintiff issued to Rock Connections, a company affiliated with Defendant, and to Defendant's telephone carriers, At&T Corporation (“AT&T) and Level 3 Communications (“Level 3”), which sought expedited production of certain phone records.[9]
*8 Defendant and Rock Connections note that certain of the document requests seek information about calls placed by Defendant to Plaintiff, which Defendant states have already been provided to Plaintiff. While they contend these requests are duplicative and unnecessary, they do not seek relief as to them. Rather, Defendant and Rock Connections contest the requests in the subpoenas that seek all telephone numbers assigned to or owned by Defendant and Rock Connections from November 1, 2012, to present. Specifically, Defendant seeks relief from Request Nos. 3 and 4 contained in the subpoenas to At&T and Level 3 Communications:
Records and documents sufficient to identify all telephone numbers owed [sic] by, assigned to or used by Quicken Loans and/or Quicken Loans, Inc. from November 1, 2012 to the present, including, but not limited to telephone number (313) 373-2064, and
(Doc. 54-1 at 6, 10). Rock Connections seeks relief from Request No. 3 in its subpoena, which seeks:
Records and documents sufficient to identify all telephone numbers owed [sic] by, assigned to or used by Quicken Loans, Quicken Loans, Inc., Rock Connections and/or Rock Connections LLC from November 1, 2012 to the present, including, but not limited to telephone number (313) 373-2064.
(Doc. 54-1 at 15).
By its motion, Defendant contends the information in the subpoenas seeks some of the information Plaintiff sought in her motion to compel and Rule 56 motion, which it contends is an improper end run of the pending discovery motions and contrary to the federal rules. It further contends that the information sought is not relevant to Plaintiff's claims or Rule 23 obligations, and is not necessary to respond to its motion for summary judgment. As such, Defendant requests an Order relieving AT&T and Level 3 from responding to Request Nos. 3 and 4 and Rock Connections from responding to Request No. 3. (Doc. 54).
By its motion, Rock Connections urges that Plaintiff's motion should be denied on procedural grounds and for the same substantive reasons urged by Defendant. It urges the subpoena seeks information that is irrelevant, disproportionate, and unduly burdensome. In support, it proffers the declaration of Rock Connection's CEO and President who attests that his review of Rock Connection's system of records reveals Rock Connections made no calls to Plaintiff's telephone number at any time since January 1, 2012, and thus it has no responsive documents. (Doc. 55-2).
In response, Plaintiff notes that neither AT&T nor Level 3 have objected to the subpoenas or moved to quash the subpoenas. She contends Defendant does not have standing to quash the third-party subpoenas and it fails to make the required showing for entry of a protective order. As for Rock Connections, Plaintiff contends its procedural arguments are without merit. With regard to the specific information sought in each subpoena, Plaintiff contends such is relevant to class discovery and should be produced. (Doc. 60).
Rule 45 governs discovery from nonparties by subpoena. The party or attorney issuing the subpoena must “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). In addressing the burden imposed on nonparties, a court considers the requesting party's need for the documents, the breadth of the document request, and the time period covered by the request. Bozeman v. Chartis Cas. Co., Case No. 2:10-cv-102-FtM-36SPC, 2010 WL 4386826, *3-4 (M.D. Fla. Oct. 29, 2010) (citations omitted). A court must quash or modify a subpoena that “requires disclosure of ... protected matter” or “subjects a party to undue burden,” and may quash or modify a subpoena if it requires “disclosing ... commercial information.” Fed. R. Civ. P. 45(d)(3)(A)(iii)-(iv), (B)(i). The general relevancy standard applicable to discovery under Rule 26(b)(1) applies to Rule 45 subpoenas. Auto Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005)
*9 Although a party generally does not have standing to object to nonparty subpoenas, a party may challenge subpoenas issued to nonparties if the party alleges a “ ‘personal right or privilege’ with respect to the subpoenas.” Auto Owners, 231 F.R.D. at 429 (quoting Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979)). A court may issue a protective order for “good cause” to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by, among other things, “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1)(D).
Defendant's Motion for a Protective Order (Doc. 54) and Rock's Motion to Quash Subpoena (Doc. 55) are GRANTED.
Plaintiff served the following interrogatory on Defendant:
From September 8, 2012 through the present, identify all outbound telephone number(s) used by Defendant, and any third party retained by Defendant, to call Plaintiff, consumers and customers to market Defendant's products and/or services.
Interrogatory No. 5 (Doc. 41-1 at 6). Subject to a litany of objections, Defendant answered that, subject to a protective order, it would:
produce documents sufficient to identify the outbound telephone numbers associated with the challenged outbound calls to the subject telephone number during the period between December 7, 2012 and December 14, 2012 in response to Plaintiff's request to receive such calls. Plaintiff may derive additional information responsive to this Interrogatory from a review of such records and the burden of doing so is the same for Plaintiff as it is for Quicken Loans. Further responding, Quicken Loans states that, because it did not “retain any third party” to call the subject telephone number in December 2012, Quicken Loans has no responsive information concerning “outbound telephone number(s) used” by any third-party to call Plaintiff.
(Doc. 41-3 at 13). Thereafter Defendant supplemented its response and identified ten phone numbers it used to make outbound calls to Plaintiff. See (Doc. 51-1 at 53, 61, 71).
On consideration and in light of Defendant's supplementation of those ten phone numbers, the present demand for records to reveal the identification of all numbers owned by Defendant or Rock Connections since November 2012 appears to seek information that is irrelevant and disproportionate to the needs of the case at this time, and is unduly burdensome to the subpoenaed nonparties. In the first instance, this information should come from Defendant if and when a broader search of its call records is called for.
In any event, Rock Connections has responded by declaration that it has no records of any calls to Plaintiff and an order directing it to produce records and documents sufficient to identify all telephone numbers owned by it is unwarranted. While Defendant has identified AT&T and Level 3 as the relevant telephone providers and has identified certain numbers it used to make outbound calls to Plaintiff, an order directing either AT&T and Level 3 to search for and produce records and documents sufficient to identify all telephone numbers assigned to or owned by Defendant or Rock Connections is also unwarranted and disproportionate at this stage of the proceedings. Accordingly, Rock Connections, At&T, and Level 3 need not respond further to the subpoenas and shall be so advised.
III.
For the reasons set forth above, Plaintiff's Motion to Compel (Doc. 41) is GRANTED in part and DENIED in part; Plaintiff's Motion to Deny or Defer Quicken Loans' Motion for Summary Judgment (Doc. 45) is GRANTED in partand DENIED in part; Quicken Loans Inc.'s Motion for Protective Order (Doc. 54) is GRANTED, and Rock Connections LLC's Motion to Quash Subpoena (Doc. 61) is GRANTED.
*10 Done and Ordered at Tampa, Florida, this 5th day of May 2017.
Footnotes
While not the subject of dispute, Plaintiff served a Second Set of Interrogatories on February 6, 2017. Defendant served its responses and objections on March 8, 2017, answering one of the interrogatories in part. Decl. Tayman (Doc. 51-1 at 5-6, ¶¶ 15, 21); (Doc. 51-1 at 58-64).
Plaintiff's response to the motion is stayed at present. (Doc. 49).
In response to Defendant's request to narrow discovery, Plaintiff advises she has proposed limitations to Request Nos. 10, 20-24, and 33-36, and has provided Defendant with a proposed ESI protocol. (Doc. 41-5 at 3-5).
At present, Defendant's objections to the relevance, scope, burdensomeness, and proportionality of Interrogatory Nos. 5, 6, and 8 are sustained.
As for Request Nos. 22 and 23, Plaintiff has agreed, at present, not to seek the production of recorded conversations. See (Doc. 41-4 at 3-4). Plaintiff's suggestion for an agreement on an exemplar sampling of such recordings should be revisited after ruling on the motion for summary judgment or motion for class certification.
As for Request No. 36, Plaintiff has withdrawn it without prejudice to renewing it at a later time. See (Doc. 41-5 at 4).
Defendant has since provided Plaintiff with names of the phone companies it used during that period.
During the conferral process, Plaintiff's counsel identified the following matters as necessary to respond to the motion for summary judgment: (1) identification of Defendant's phone companies from November 2012 -March 3013; (2) responses to subpoenas to those companies; (3) the identity of all numbers used by Defendant to make marketing calls for this same period; (4) specific identification of telephone equipment, hardware, and software used by Defendant to place outbound calls during this same period; (5) all written policies, procedures, scripts, and guides governing unassisted calls used during this same period; and (6) depositions. (Doc. 50-1 at 48).
On March 27, 2017, the undersigned ordered that the disputed discovery/subpoenas be stayed pending further order and that the nonparties be so advised. (Doc. 59).
Rock Connections joins in Defendant's request with regard to Request No. 4.