Pursuant to Rule 53 of the Federal Rules of Civil Procedure, this Court appointed the undersigned to serve as Special Master to attempt to informally resolve any discovery disputes that arose among the parties. (“Order of Appointment”) [ECF No. 59]. To the extent that an issue cannot be resolved, the Special Master must issue a Report and Recommendation to the Court on any pending discovery dispute. Id. This Report and Recommendation follows the Special Master's review of the parties’ respective submissions. No oral argument was heard on Plaintiffs’ objections or the Defendants’ responses thereto.

On September 3, 2019, counsel for the Plaintiffs submitted a Letter Memorandum to the Special Master seeking a ruling on their objections to the Sandoval Subpoena and the Simpson Subpoena.[3] Plaintiffs’ specific objections to each subpoena are discussed in turn followed by the Defendants’ responses.

Plaintiffs contend that Bianca Ann Capelo Sandoval (“Sandoval”) is an absent class member with claims similar to those of the named plaintiffs. Noting that Defendants have not taken any of the depositions of the named Plaintiffs, Plaintiffs contend that Defendants cannot satisfy the test for when it is appropriate to permit discovery of absent or passive class members. Plaintiffs believe that the thrust of this discovery is to harass absent class members given that any discovery obtained in this instance would seemingly be duplicative of discovery that can be obtained from representatives of the class. Plaintiffs are especially concerned with the possibility that this discovery will impose a burden on Sandoval and require her to hire legal counsel and incur the expenses associated with retaining counsel to respond to what has been deemed unnecessary discovery.

*2 Plaintiffs contend that Sara Maranto Simpson (“Simpson”) is not a class member, but rather a third party.[4] Plaintiffs note that unlike members of the putative class, Simpson observed the purported issues with Defendants product rather than using them herself. Plaintiffs contend that discovery with respect to Simpson's claims about Defendants’ products is “unnecessary and improper” at this stage and that such discovery will have a chilling effect on the participation of relevant witnesses and class members in the litigation. Ostensibly, Plaintiffs appear to suggest that Simpson's observations are not relevant for the purposes of this case.

The Defendants’ September 5, 2019, Letter Memorandum responds to Plaintiffs’ objections. At the outset, citing the Amended Complaint, Defendants note that, among other things, Plaintiffs allege that Defendants’ products, “cause embarrassing and extreme hair loss, hair breakage, head sores, infections requiring antibiotic treatment and other severe skin reactions.” [ECF No. 99, ¶ 8]. Plaintiffs further allege that stories about the purported harm caused by Defendants’ products can be found on the internet. Id. ¶ 9.

Citing Exhibit A to the September 5, 2019, Letter Memorandum, which appears to be comments made by Sandoval on an online forum called ‘Ask Siri,’ Defendants note that Sandoval claims that her use of Monat's products has caused harm. Sandoval is also said to have claimed that Monat's products are linked to “significant medical issues” such as cancer, birth defects, depression, and migraines. From her postings, however, it does not appear that Sandoval claims to have suffered from these “significant medical issues” herself. Nor does Sandoval discuss any individual injuries that she has suffered as a result of her use of the Defendants’ products in these postings. Rather, Sandoval appears to be sharing general information about the Defendants’ products.[5] Defendants’ position is that Sandoval's claims are distinct from those of the putative class and that their discovery is narrowly tailored to Sandoval's individual claims—information that Defendants do not possess and Plaintiffs cannot provide.

Citing Exhibit B to the September 5, 2019, Letter Memorandum, which are Facebook posts made by Simpson, Defendants’ note that Simpson witnessed the purported harm and/or injuries caused by the Defendants’ hair care products. Simpson does not claim that she has used Defendants’ products or personally experienced any harm or injury attributable to Defendants’ products. Indeed, as Defendants point out, Plaintiffs have conceded that Simpson is not a member of the class. Defendants go on to contend that under the analysis that applies to discovery sought under Rule 45 of the Federal Rules of Civil Procedure, the discovery sought from Simpson is relevant and proportional to the needs of this case.

*3 Generally, absent class members are not required to do anything. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985). Permitting routine discovery of absent class members “defeat[s] the interest of the absent class members to remain passive.” Cabot East Broward 2 LLC v. Cabot, No. 16-61218-CIV-DIMITROULEAS/Snow, 2017 WL 4877035, at * 2 (S.D. Fla. Oct. 27, 2017); Cooper v. Pacific Life Ins. Co., No. CV203-131, 2005 WL 1866166, at *2 (S.D. Ga. Aug. 5, 2005) (“[C]lass action defendants are not permitted to seek discovery from absent class members as a matter of course.”). Thus, the ability to obtain discovery from absent class members requires the party propounding discovery to demonstrate that its need to obtain discovery warrants an exception that would compel an otherwise passive class member to participate in the litigation process. Cabot, 2017 WL 4877035, at *2. When determining whether a party can seek discovery from an absent class member (or absent class members) courts consider, among other things: (i) “whether the request is tendered in good faith and will not be unduly burdensome,” (ii) “whether the information is available from the class representatives,” and (iii) “whether the defendant already has the information.” Cabot, 2017 WL 4877035, at * 2 (citing Bruhl v. Price Waterhouse Coopers, Int'l, No. 03-23044-Civ, 2010 WL 5090207, at *1-2 (S.D. Fla. Dec. 8, 2010)). Put simply, discovery from absent class members requires a showing of a “particularized need.” In re Carbon Dioxide Indus. Antitrust Litig, 155 F.R.D. 209, 212 (M.D. Fla. 1993). Finally, the request must also “be relevant to ‘the decision of common questions.’ ” Cabot, 2017 WL 4877035, at *2 (citing Bruhl, 2010 WL 5090207, at *1-2).

Outside of the absent class member context, Rule 45 of the Federal Rules of Civil Procedure permits a party to seek discovery from third parties to the litigation. See generally Fed.R.Civ.P. 45. Courts look to Rule 26 of the Federal Rules of Civil Procedure to determine the scope of discovery available to parties under Rule 45. Coleman v. Lennar Corp., No. 18-mc-20181-WILLIAMS/TORRES, 2018 WL 3672251, at * 2 (S.D. Fla. June 14, 2018). Under Rule 26, a party “may obtain discovery regarding any nonprivileged [sic] matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Id., at * 3. The party seeking to enforce a subpoena under Rule 45 has the burden of showing the subpoena is relevant. Id.

Plaintiffs chief argument is that Defendants cannot make the requisite showing, which is required in this District, before they can take discovery from Sandoval. Plaintiffs further argue that the more appropriate course of conduct would be to take discovery from the representatives of the putative class and then determine if discovery from Sandoval is necessary. The Special Master agrees. The general allegations set forth in the Amended Complaint concerning the purported harm caused by Defendants’ products does not differ from the harm that Sandoval claims she has suffered. Moreover, to the extent that Sandoval's internet postings contain information that is outside of the scope of Plaintiffs’ general allegations, nothing in the internet postings indicates that Sandoval claims she has individually experienced the maladies that her postings attribute to the Defendants’ products. Thus, the information sought by the Defendants from Sandoval is available from class representatives, who had not been deposed by the Defendants as of the date of Plaintiffs’ objection

By contrast, Plaintiffs readily concede that Simpson is not a member of the putative class and that she is a third party. Therefore, it is appropriate to analyze the discovery propounded by the Defendants on Simpson under Rule 45. Plaintiffs concede that Simpson has observed the purported damage caused by the Defendants’ products, which is corroborated by the Facebook posts provided by the Defendants. The document requests set forth in the Simpson Subpoena are plainly relevant to claims at issue and, as a result, an appropriate focus of Defendants’ third-party discovery efforts.

A. Defendants Have Not Met Their Burden to Take Discovery From Absent Class Member Sandoval

*4 Defendants have not demonstrated that some exception that warrants discovery on absent class member Sandoval. In their September 5, 2019, Letter Memorandum, Defendants report that Sandoval's claims consists of nonspecific allegations that she used their products and was harmed as a result of that use. Defendants do not suggest nor do the submissions support the notion that Sandoval has directly claimed that she experienced any of the individual problems set forth in her internet postings.

In contrast to the discovery sought here, this Court found in Bruhl that the Defendants satisfied each of the four factors for absent class member discovery in part because evidence of each plaintiffs individual reliance would be necessary for defense of the action and because the absent class member discovery concerned individual investments made by members of the class. 2010 WL 5090207, at *1-2. That is not the case here. Unlike Bruhl, each of the general allegations made by Plaintiffs about Defendants’ products is consistent with and no different from the claims made by Sandoval. [ECF No. 99] ¶ 8. Thus, as an absent class member there is no information that Sandoval can provide on claims that she shares with the class representatives that would differ from the discovery that can be obtained from the class representatives when Defendants begin to take those depositions.

Cabot offers no better help. In Cabot, the Court permitted limited discovery in the form of a single interrogatory on a group of randomly-selected members of the putative class because the statute of limitations concern raised by that specific interrogatory addressed one of the Rule 23 factors that must be satisfied to bring claims on behalf of a class. 2017 WL 4877035, at * 2. The primary thrust of the Sandoval Subpoena is discovery of information concerning internet postings Sandoval is thought to have made about purported ailments occasioned by the use of the Defendants’ products. Sandoval's individual beliefs about the possible harm associated with using the Defendants’ products has not been connected to the actual harm she claims to have experienced as an absent member of the putative class who has actually used the products. There is no basis for absent class member discovery when Sandoval's claims are aligned with those of the class representatives. Accordingly, it is the Special Master's recommendation that Plaintiffs’ objection be sustained.

B. Defendants Have Met Their Burden to Take the Deposition of Third Party Simpson

As discussed, Defendants have the burden to show that the deposition of Simpson under Fed.R.Civ.P. 45 satisfies the Rule 26 requirements that the discovery is relevant and proportional to the needs of the case.

The Simpson Subpoena seeks the following documents:[7]

1. All posts, comments, messages, or other statements created or otherwise made by You in either the Nightmare Group or the Transformations Group.

2. All posts, comments, messages, or other statements created or otherwise made by You regarding Monat or its products, whether on any social media platform, website, messaging application, or otherwise.

3. All communications, including text messages, private messages, or other electronic correspondence, between You and any person regarding Monat, Monat's products, Monat's market partners, the Nightmare Group, the Victims Group, or the putative class action lawsuit pending in federal district court in Miami, Florida and captioned IN RE: MONAT HAIR CARE PRODUCTS MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION.

*5 4. All communications, including electronic correspondence, between You and Monat or any of its employees, agents, or representatives.

5. All communications, including electronic correspondence, between You and any Monat Market Partner regarding Monat or its products.

6. All documents, posts, comments, messages, or communications, which support or relate to Your contentions made on Facebook or any other social media platform regarding Monat, Monat's products, Monat's market partners, the Nightmare Group, the Victims Group, or the putative class action lawsuit pending in federal district court in Miami, Florida and captioned IN RE: MONAT HAIR CARE PRODUCTS MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION.

7. All documents, posts, comments, messages, or communications which support or relate to your content made on Facebook on or about June 30, 2019 at approximately 11:00 am that You have “witnessed the atrocities” relate to “Monat hair and skin products,” that “they're real,” and “[i]t's not made up[.]”

8. All documents, posts, comments, messages, or communications which support or relate to your contentions made on Facebook on or about June 30, 2019 at approximately 11:00 am regarding Monat's products that “you're poisoning yourself if you're using it.”

9. All documents, posts, comments, messages, or communications, which support or relate to Your contentions made on Facebook on or about June 30, 2019 at approximately 11:00 am that using Monat's products: (i) “mats hair;” (ii) “breaks hair;” (iii) “creates hair loss;” or (iv) “can ruin your hormone levels causing physical problems.”

Even a cursory glance of the pleadings demonstrates that the document requests set forth in the Simpson Subpoena are directed to the issues raised in the Amended Complaint. The kind of information sought by the Defendants here includes, among other things, documents and information that substantiates the allegations about the Defendants’ products or, alternately, that supports the Defendants’ position that hair stylists like Simpson have launched a negative social media campaign spreading false information about the Defendants’ products for financial gain. This kind of information is inarguably relevant under these circumstances. Plaintiffs fail to cite to or identify any authority that stands for the proposition that Simpson's purported connection to members of the putative class should preclude her from third-party discovery. And there has been no contention that the subpoena is unduly burdensome. Coleman, 2018 WL 3672251, at *4 (noting that the party opposing the subpoena has the burden to show that compliance with the subpoena is unduly burdensome). It is, therefore, the Special Master's recommendation that Plaintiffs’ objection as to the Simpson Subpoena be overruled.

Based on the foregoing analysis, the Special Master recommends that the Court enter an Order sustaining Plaintiffs objection and precluding Defendants from obtaining discovery from Sandoval without prejudice to renew the request for discovery upon a proper showing after the issue of class certification has been decided. The Special Master also recommends that the Court enter an Order overruling Plaintiffs’ objection as it relates to the third-party deposition of Simpson permitting Defendants to obtain documents from Simpson and to depose her for the reasons set forth herein.

*6 PURSUANT TO THE ORDER OF APPOINTMENT, OBJECTIONS TO THE SPECIAL MASTER'S REPORT AND RECOMMENDATION MUST BE FILED WITHIN 5 DAYS OF THE FILING OF THE REPORT, WITH A RESPONSE DUE BY OPPOSING COUNSEL WITHIN 5 DAYS OF THE FILING OF THE OBJECTIONS.

Dated: October 15, 2019

Respectfully submitted,

/s Naim S. Surgeon

Naim S. Surgeon, Esq.

Special Master

Florida Bar No. 101682

naim.surgeon@akerman.com

AKERMAN LLP

3 Brickell City Centre

98 SE 7th St., Ste. 1100

Miami, Florida 33131

Tel: (305) 374-5600

Fax: (305) 349-4654

Plaintiffs September 3, 2019 Letter Memorandum (including exhibits) is attached as “Exhibit A.”

Defendants’ September 5, 2019 Letter Memorandum (including exhibits) is attached as “Exhibit B.”

Although Plaintiffs do not explicitly seek relief in the form of a protective order, the Special Master recognizes that his ruling on Plaintiffs’ objections has the consequence of precluding the Defendants from obtaining some or all of the discovery sought by the Subpoenas.

The Special Master acknowledges the concerns raised about proper service on Simpson noted in Plaintiffs’ objection. The Special Master's determination on whether it is appropriate to permit discovery in no way obviates the requirement for proper service under the Federal Rules.

The Special Master's discussion about the information set forth in Exhibit A is limited to what is stated in the post only. Nothing should be construed to suggest or imply that the Special Master has taken a position on the validity of Sandoval's statements.

The Special Master has reviewed the binding and non-binding authority cited by the parties in their respective submissions. In each of the cases concerning whether discovery on absent class members is permissible, that question was being examined by the various courts after a class had been certified. Whether a class will be certified by this Court is an open question in the instant matter. According to the Second Amended Scheduling Order, the hearing on Plaintiffs’ forthcoming motion for class certification is not scheduled until March 2, 2020. [ECF No. 143] at 2. Despite the current procedural posture, this Court has on at least one occasion applied the Bruhl factors to the question of whether discovery is permissible on absent class members of a putative class. Cabot East Broward 2 LLC v. Cabot, No. 16-61218-CIV-DIMITROULEAS/Snow, 2017 WL 4877035, at * 2 (S.D. Fla. Oct. 27, 2017). The Special Master's analysis, therefore, relies on Cabot's extension of the Bruhl factors to matters where whether a class will be certified is an open question for the Court.

The Special Master notes that the only objections before him are those made by Plaintiffs. It is unclear whether Simpson has raised any objections on her own behalf. As a result, the Special Master's ruling is limited to the objections that have been lodged to date.