Egana v. Blair's Bail Bonds, Inc.
Egana v. Blair's Bail Bonds, Inc.
2019 WL 7558059 (E.D. La. 2019)
June 6, 2019
Douglas, Dana M., United States Magistrate Judge
Summary
The Court granted in part plaintiffs' motion to compel discovery, ordering Blair's to respond to interrogatories and produce documents related to numerosity, commonality, adequacy, and typicality. The Court also allowed two representatives of plaintiffs and two representatives of Blair's to search the Captira system for a representative sampling of randomly-chosen plaintiffs, and ordered Blair's to produce documents related to the representative sampling of 100 potential class members, as well as any body camera footage related to the 60 individual plaintiffs.
Additional Decisions
RONALD EGANA, ET AL
v.
BLAIR’S BAIL BONDS, INC., ET AL
v.
BLAIR’S BAIL BONDS, INC., ET AL
CIVIL ACTION NO. 17-5899
United States District Court, E.D. Louisiana
Filed June 06, 2019
Counsel
Ivy Wang, Clara Joyce Potter, Neil Kumar Sawhney, Southern Poverty Law Center, New Orleans, LA, Caren Elaine Short, Pro Hac Vice, Samuel J. Brooke, Pro Hac Vice, Sara Zampierin, Pro Hac Vice, Southern Poverty Law Center, Montgomery, AL, Charles Marshall Delbaum, Pro Hac Vice, National Consumer Law Center, Inc., Boston, MA, Ilya Feldsherov, Pro Hac Vice, Kevin J. Holt, Pro Hac Vice, Noah Levine, Pro Hac Vice, Ryanne E. Perio, Pro Hac Vice, William Roth, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Ronald Egana, Samantha Egana, Tiffany Brown.Walter Francis Becker, Jr., Charles P. Blanchard, Nicole Celia Katz, Chaffe McCall LLP, New Orleans, LA, for Blair's Bail Bonds, Inc., New Orleans Bail Bonds, L.L.C.
Stephen D. Marx, Preston Lee Hayes, Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC, Metairie, LA, Allison C. Doucette, Pro Hac Vice, Jon P. Tasso, Pro Hac Vice, Michael Joseph Labbee, Pro Hac Vice, Smolker Bartlett Loeb Hinds & Sheppard, P.A., E. Colin Thompson, Pro Hac Vice, Ethan J. Loeb, Pro Hac Vice, Latasha C. Scott, Smolker Bartlett Loeb Hinds & Thompson, P.A., Tampa, FL, for Bankers Insurance Company, Inc., Bankers Surety Services, Inc.
Stephen D. Marx, Preston Lee Hayes, Chehardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC, Metairie, LA, Allison C. Doucette, Pro Hac Vice, Michael Joseph Labbee, Pro Hac Vice, Smolker Bartlett Loeb Hinds & Sheppard, P.A., E. Colin Thompson, Pro Hac Vice, Ethan J. Loeb, Pro Hac Vice, Smolker Bartlett Loeb Hinds & Thompson, P.A., Tampa, FL, for Bankers Underwriters, Inc.
Gary William Bizal, Gary W. Bizal, LLC, Stephen J. Haedicke, Law Office of Stephen J. Haedicke, LLC, New Orleans, LA, for A2I, L.L.C., Alternative to Incarceration, Inc., Alternative to Incarceration NOLA, Inc.
Douglas, Dana M., United States Magistrate Judge
ORDER
*1 Before the Court is Plaintiffs’ Second Motion to Compel Discovery. [Doc. #220]. The motion is opposed [Doc. #228], and plaintiffs have filed a reply. [Doc. #236]. Having reviewed the various pleadings and the case law, the Court rules as follows.
I. Background
Plaintiffs bring claims on behalf of themselves and others similarly situated against defendant Blair’s Bail Bonds, Inc. (“Blair’s”) for alleged violations of state and federal law by overcharging plaintiffs and putative class members for bail bond services, failure to disclose key terms of repayment when extending credit to pay for their services, and kidnapping and extorting plaintiffs and class members to collect unpaid fees.
On or about May/June of 2016, Egana’s mother, Samantha Egana, his father, Ronald Smith, and friend, Tiffany Brown (collectively, the “Indemnitors”), approached Blair’s about issuing a bond for Egana at a time when he was incarcerated in St. Bernard Parish. Given his prior bond forfeitures and corresponding risk of additional non-appearances at court, Blair’s discussed with the Indemnitors the option of posting collateral, such as real estate, to secure the bond at that amount.[1] The three of them declined that option. Blair’s then informed them that the second option – given Egana’s history of failure to appear for mandatory court appearances in the past – involved Egana wearing an ankle monitor in lieu of posting collateral. Blair’s informed these persons and Egana of all fees applicable to the ankle monitoring. Moreover, because the Indemnitors and Egana could not pay the statutorily-required bond premium at that time, Blair’s allowed them to pay a portion of the premium over several installments, without interest, fees, or finance charges of any kind.
Blair’s then facilitated the issuance of a $26,000.00 bond for Egana with Banker’s Insurance as the surety, securing his release from St. Bernard Parish. And on June 20, 2016, Egana freely agreed to placement of an ankle monitor. Egana was informed that there would be a $50.00 activation fee for the monitor (covering installation and activation amounts), and that the monitoring fee would be $10.00 per day. He agreed to the installation of the monitor and corresponding charges.
On or about September 21, 2016, Egana failed to appear at a required hearing in St. Bernard Parish. Subsequently, the St. Bernard Parish court issued an attachment for Egana and a judgment of forfeiture on the $26,000.00 bond.
On September 27, 2016, recovery agents with a separate company – MIO Recovery Services, L.L.C. (“MIO Recovery”) – apprehended Egana, who pleaded with the recovery agents not to bring him to St. Bernard Parish jail but instead to bring him to Blair’s office. In an attempt to assist Egana, MIO Recovery agents brought Egana to Blair’s offices (instead of to jail) to discuss the need for Egana to acquire a court date and to appear, which would allow Blair’s to obtain a court order that recalled the prior forfeiture that had resulted from Egana’s non-appearance. At that time, Egana agreed to obtain a new court date in St. Bernard Parish, and he was released.
*2 But Egana did not schedule a new court date in St. Bernard Parish, and, as plaintiffs freely admit, there was a bench warrant for Egana’s arrest in St. Bernard Parish from September 21, 2016 to at least May 2, 2017. During this time period, MIO Recovery agents arrested Egana on two other occasions (on or about December 26, 2016 and March 31, 2017). Finally, on May 23, 2017, MIO Recovery agents apprehended Egana again, and this time surrendered him directly to St. Bernard Parish.
Egana and plaintiffs view these actions in a much different light. Ronald Egana, Samantha Egana, and Tiffany Brown (collectively, “plaintiffs”) have filed this action on behalf of themselves and all individuals whose rights under federal and state law were violated when they contracted with defendants for a bail bond to secure their own or their loved ones’ release from jail. The amended complaint describes the process through which defendants Blair’s and New Orleans Bail Bonds, L.L.C. (collectively, “Blair’s”) and Bankers Insurance Company, Inc., Bankers Surety Services, Inc., and Bankers Underwriters, Inc. (collectively, “the Banker Entities”) allegedly utilized standard contracts that violate the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”) by failing to make necessary disclosures, and state contract, conversion, and usury laws by requiring payment of amounts above what state law allows, including paying daily fees for ankle monitors supplied by A2i, L.L.C., Alternative to Incarceration, Inc., and Alternative to Incarceration NOLA, Inc. (collectively, “A2i”). The Amended Complaint also describes how defendants violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (“RICO”) and the Louisiana Racketeering Act, La. Rev. Stat. § 15:1351, by conspiring to employ or contract with bounty hunters to kidnap, detain, and threaten to jail principals unless they or their loved ones paid money that was distributed between defendants.
II. Law and Analysis
On August 24, 2018, this Court granted in part plaintiffs’ first motion to compel and held:
(1) If Blair’s has not already done so, no later than ten (10) days from the date of this Order, Blair’s shall respond in full and in writing to Interrogatory Nos. 6-8. These interrogatories require only that Blair’s identify a number. Such requests are not unduly burdensome and are clearly proportional to the numerosity and typicality requirements of a class action.
(2) With regard to Document Request Nos. 1, 2, 7, 8, and 13, Blair’s shall respond, in part, according to the following guidelines:
No later than seven (7) days from the date that Blair’s identifies the numbers, the parties shall meet and confer in person to determine if they can agree on a representative sampling from the numbers identified by Blair’s that would satisfy the requirements of Rule 23. If the parties are unable to agree on a representative sampling, they shall each fax a letter to this Court at (504) 589-4500 with their proposed representative sampling. At that time, the Court will issue a supplemental order that resolves the issue of the representative sample.
[Doc. #159 at p. 11-12]. While Blair’s produced documents related to this Court’s ruling on Document Request Nos. 1, 2, 7, 8, and 13, plaintiffs maintain that they cannot use what Blair’s has produced in advance of the class certification hearing. The District Court has scheduled a class certification hearing on July 31, 2019, and this Court has already noted that Federal Rule of Civil Procedure 23(a) sets forth four threshold requirements that must be met in every type of class action suit. See James v. City of Dallas, 254 F.3d 551, 569 (5th Cir. 2001). Rule 23(a) requires that a class: (1) be so numerous that joinder of all members is impractical [numerosity]; (2) have common questions of fact or law [commonality]; (3) have representative parties with typical claims or defenses [typicality]; and (4) have representative parties that will fairly and adequately protect the interests of the proposed class [adequacy]. See Fed. R. Civ. P. 23(a); James, 254 F.3d at 569. Accordingly, discovery related to class certification – e.g., discovery relating to numerosity, commonality, adequacy and typicality – is appropriate before a class certification hearing, and this Court has allowed such discovery before. Document Request Nos. 1, 2, 7, 8, and 13 relate to the requirement of numerosity in this potential class action.
*3 This current dispute does not involve whether the documents requested by plaintiffs are relevant to the parties’ claims and defenses, which this Court already addressed in its earlier order on plaintiffs’ first motion to compel. The crux of the current disagreement is the mode of production by Blair’s and the number of individual plaintiffs for whom Blair’s needs to produce the documents (i.e., proportionality). Since the first round of Blair’s production, plaintiffs have realized that the bulk of the information that they seek and need is stored in Blair’s Captira program, where Blair’s stores the majority of the information on each client that it bonds. However, the Captira screenshots in .pdf form that Blair’s produced to plaintiffs are cropped at irregular levels, and plaintiffs cannot open the individual tabs that would provide them with the information that they need.
Citing Federal Rule of Civil Procedure 34, Blair’s argues that it may produce the electronically-stored information in “a reasonably useable form.” Fed. R. Civ. P. 34(b)(2)(E). While that may be true, Blair’s argument sidesteps plaintiffs’ main complaint about the production of the Captira records: The production has not been in a reasonably usable form because plaintiffs simply cannot derive the information that they need from the documents in the form that Blair’s has produced them. This Court would allow Blair’s to produce the requested documents in a “reasonably useable form” if Blair’s could do so, but that now appears unlikely. Blair’s notes that it is a small family-owned corporation with only two locations and no IT personnel. These factors thus hamper its ability to produce the documents in a more useable format.
If that is the case, and Blair’s cannot produce the documents to plaintiffs in a reasonably useable form, this Court has no other option but to allow plaintiffs access to Blair’s Captira system – but on a highly limited basis. The Court will allow two representatives of plaintiffs and two representatives of Blair’s to simultaneously search the Captira system for the representative sampling of randomly-chosen plaintiffs. This sampling will consist of 100 potential class members – the 40 already agreed to by the parties, and 60 more, 30 which of each will be selected by plaintiffs and by Blair’s, respectively. Considering the proportionality factors in Rule 26, the Court finds a sampling of 100 plaintiffs adequate for class-certification based discovery. Fed. R. Civ. P. 26(b)(1).
Plaintiffs also raise a second issue here: They believe that the only documents that they require from Blair’s physical files are (1) the payment arrangements page that is typically the first page of the client’s bond application, and (2) any certificates or statements of surrender Blair’s filled out and/or submitted when surrendering the client to jail. These records do not appear to be kept in Captira. Plaintiffs contend that they are entitled to these documents as they relate to a further 360 individuals.
Blair’s argues that it has complied with the Court’s earlier order to produce these documents when it turned over relevant documents as they relate to the 40 individuals in the representative sampling. But because this Court has now raised this number to 100 individuals for a representative sampling, Blair’s need do so only with regard to the 60 individuals that have yet to be chosen.
And lastly, with regard to the body camera footage, this Court cannot order Blair’s to produce what it does not have. Blair’s attests – under penalty of sanctions – that it is unaware of any body camera footage. And while plaintiffs point to the testimony of Alroy Allen, Blair’s bounty hunter, that video footage exists, Allen now swears that he has reviewed all of the Scandisks, and they have no footage related to the representative sampling. However, should there exist body camera footage related to the 60 individual plaintiffs that have yet to be chosen, Blair’s shall supplement its production as required by the federal rules.
III. Conclusion
*4 For the foregoing reasons,
IT IS ORDERED that Plaintiffs’ Second Motion to Compel Discovery [Doc. #118] is GRANTED IN PART as outlined above. The parties shall comply with this Order no later than fourteen (14) days from the date below.
New Orleans, Louisiana, this 3rd day of June, 2019.
Footnotes
Egana has criminal convictions for simple battery and possession of marijuana and has one felony case currently pending. In several of these cases, Egana failed to appear in court, resulting in bail bond forfeitures and attachments against him.