Hirsch v. USHealth Advisors, LLC
Hirsch v. USHealth Advisors, LLC
2020 WL 3485624 (N.D. Tex. 2020)
April 16, 2020
Cureton, Jeffrey L., United States Magistrate Judge
Summary
The court partially granted the defendant's motion to compel, ordering the plaintiff to produce the entire Google Sheet with no redactions. The court found that the text messages in dispute were protected by the attorney-client privilege, but that the portions of the Google Sheet were relevant to the defendant's counterclaim for fraud by nondisclosure and were not otherwise privileged.
Additional Decisions
AARON HIRSCH, individually and on behalf of all others similarly situated,
v.
USHEALTH ADVISORS, LLC, ET AL
v.
USHEALTH ADVISORS, LLC, ET AL
CIVIL ACTION NO. 4:18-CV-245-P
United States District Court, N.D. Texas, Fort Worth Division
Filed April 16, 2020
Counsel
Warren T. Burns, Daniel H. Charest, Burns Charest LLP, Dallas, TX, Jamshyd (Jim) M. Zadeh, Law Office of Jim Zadeh PC, Fort Worth, TX, Lane L. Vines, Pro Hac Vice, Michael Dell'Angelo, Berger Montague PC, Philadelphia, PA, Thomas Bick, Butzel Long, P.C., Max F. MacCoby, Pro Hac Vice, Washington, DC, for Aaron Hirsch.Daniel L. Bates, Decker Jones McMackin McClane Hall & Bates, Fort Worth, TX, Gregg Ian Strock, Pro Hac Vice, Jeffrey A. Backman, Richard W. Epstein, Pro Hac Vice, Greenspoon Marder LLP, Fort Lauderdale, FL, for USHealth Advisors, LLC, USHealth Group, Inc.
Cureton, Jeffrey L., United States Magistrate Judge
ORDER PARTIALLY GRANTING DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES
*1 Pending before the Court is Defendant USHealth Advisors, LLC's Motion to Compel Discovery Responses [doc. 114], filed December 26, 2019. Having carefully considered the motion, response, reply, and relevant evidence, the Court concludes that Defendant's motion should be PARTIALLY GRANTED.
On March 29, 2018, Plaintiff filed a class action suit against Defendants. In his Amended Class Action Complaint filed on February 26, 2019, Plaintiff claimed that he brought this suit “to secure redress because Defendants willfully violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) and Maryland Telephone Protection Act, Md. Code, Com. Law, § 14-3201, et seq. (“MD TCPA”), and invaded Plaintiffs privacy by causing unsolicited calls and text messages to be made to Plaintiff, as well as to members of the Classes (defined below) despite their registration on the national do-not-call list, and despite their requests that the calls cease.” (Plaintiffs Amended Class Action Complaint (“Pl.'s Am. Compl.”) at 1.) In their amended answer filed on March 11, 2019, Defendants asserted the following counterclaims against Plaintiff: (1) common law fraud and (2) fraud by nondisclosure under Texas law. (Defendants' Amended Answer (“Defs.' Am. Answer”) at 17-19.) In support of their counterclaim for fraud by nondisclosure, Defendants, inter alia, claimed:
Plaintiff is knowledgeable about the TCPA and maintains a database of calls and information about companies in order to bring claims against them in the future. Plaintiff has filed multiple lawsuits under the TCPA in the past. Because Plaintiff was the person with the most knowledge related to whether he wished to receive calls or texts to his cellular telephone, and he was well aware of potential liability under the TCPA (based on his admitted knowledge and previous lawsuits), Plaintiff had a duty to disclose to Defendants and the third party callers that he did not wish to receive the complained calls and texts.
(Defs.' Am. Answer at 18.)
In its motion, Defendant moves for entry of an order compelling Plaintiff to respond in full to Interrogatory Number 3 and Request for Production 4.[1] (Defendant's Motion to Compel Discovery Responses (“Def.'s Mot.”) at 1.) Interrogatory Number 3 states:
Describe and identify all communications between [Plaintiff] and Max Maccoby related to [Plaintiff's] efforts to “find people who were affected” by a data leak at Saks Lord & Taylor so that [Plaintiff] “could potentially create a class” and “sell it to somebody,” as admitted in your deposition transcript at pp. 187:18-188:15, and any other communications between [Plaintiff] and Max Maccoby related to [Plaintiff's] attempts or intent to locate potential class plaintiffs (other than [Plaintiff] ) for the purpose of creating a class action.
(Def.'s Mot. at 3.) Plaintiff objected to this response on the basis that it seeks privileged attorney client communications. (Def.'s Mot. at 3.)
*2 Request for Production Number 4 states, “The Google Sheet, that [Plaintiff] referenced at [Plaintiff's] deposition in this case, containing [Plaintiff's] notes on potential telephone consumer protection act claims that [Plaintiff] ha[s] brought or may bring in the future, in its entirety.” (Def.'s Mot. at 6.) Plaintiff objected to this request as follows:
Objection on the entire Google Sheet as not relevant or calculated to lead to relevant information on any claim or defense, and is overbroad. As Plaintiff testified and showed Defendant's counsel during his deposition, the Google Sheet listed calls made to him from TCPA violators other than Defendant. Defendant seeking the Google Sheet's “notes” on “potential telephone consumer protection acts claims that Plaintiff has brought or may bring in the future” has no relevance to the claims or defenses in this action. [Plaintiff] ha[s] previously produced the Google Sheet concerning all calls made by Defendants to Plaintiff with all categories (Bates Stamp AH000103).
(Def.'s Mot. at 6–7.)
In an order dated March 16, 2020, the Court ordered Plaintiff to produce for in camera inspection all records at issue that were responsive to Defendant's interrogatory Number 3 and Request for Production Number 4. The Court has received and reviewed such documents.
“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.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. If a party fails to fully answer a request for production of documents, the party seeking the discovery may move for an order compelling production to that discovery request pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a)(3)(B). However, pursuant to Rule 26(c), a court, for good cause, may issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c).
As to Interrogatory Number 3, the Court finds that the text messages in dispute are protected by the attorney-client privilege[2] as they are communications between Plaintiff and his attorney, Max Maccoby, relating to a fact of which Maccoby was informed by Plaintiff, without the presence of a stranger, and for the purpose of serving primarily an opinion on the law. See Footnote 2.
*3 As to Request for Production Number 4, the Court finds that those portions of the Google Sheet that have not already been produced by Plaintiff are relevant to Defendants' counterclaim for fraud by nondisclosure and are not otherwise privileged.[3] Consequently, Plaintiff must produce the entire Google Sheet to Defendant as produced in camera..
Based on the foregoing, it is ORDERED that Defendant US Health Advisors' LLC's Motion to Compel Discovery Responses [doc. 114] is PARTIALLY GRANTED as set forth above.
It is further ORDERED that Plaintiff shall, no later than Friday, April 24, 2020 at 4:30 p.m., produce to Defendant the Google Sheet listing telemarketing calls Plaintiff received in its entirety, with no redactions.
All other requested relief is DENIED.
Footnotes
In its motion, Defendant also moved for entry of an order compelling Plaintiff to respond in full to Request for Production Number 6. (Def.'s Mot. at 1.) However, in his response, Plaintiff stated that he “will produce every document in his possession concerning this request.” (Plaintiffs Opposition to Defendant's Motion to Compel Discovery Responses (“Pl.'s Resp.”) at 6.) Consequently, the Court finds that Defendant's motion to compel as to Request for Production Number 6 is moot.
“In cases were a federal question exists, the federal common law of attorney-client privilege applies even if complete diversity of citizenship is also present.” Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 133 (E.D. Tex. 2003). “The attorney-client privilege protects from disclosure confidential communications made to obtain a lawyer's professional advice and assistance.” Dabney v. Investment Corp. of Am., 82 F.R.D. 464, 465 (E.D.Pa.1979); see S.E.C. v. Brady, 238 F.R.D. 429, 438-39 (N.D. Tex. 2006). The exercise of the attorney-client privilege is a “question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.” In re Auclair, 961 F.2d 65, 68 (5th Cir. 1992). To establish the attorney-client privilege, Plaintiff must show the following: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate and (b) in connection with this communication was acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of serving primarily either (i) an opinion on law or (ii) legal service or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been claimed and not waived by the client. See Brady, 238 F.R.D. at 348–39; U.S. v. Mobil Corp., 149 F.R.D. 533, 536 (N.D.Tex.1993)
“Fraud by nondisclosure is considered a subcategory of fraud.” Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex. App.–Dallas 2013, pet. denied). To establish fraud by nondisclosure as alleged in this case, Defendant must prove (1) Plaintiff failed to disclose facts to Defendant, (2) Plaintiff had a duty to disclose those facts, (3) the facts were material, (4) Plaintiff knew Defendant was ignorant of the facts and Defendant did not have an equal opportunity to discover the facts, (5) Plaintiff was deliberately silent when it had a duty to speak, (6) by failing to disclose the facts, Plaintiff intended to induce Defendant to take some action or refrain from acting, (7) Defendant relied on the defendant's nondisclosure, and (8) Defendant was injured as a result of acting without that knowledge. Blankinship, 399 S.W.3d at 308 (citing Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex.App.–Houston [14th Dist.] 2010, no pet.)).