*1 On October 26, 2017, Defendant Manufacturers and Traders Trust Company removed Plaintiffs' complaint from the Philadelphia County Court of Common Pleas to the Eastern District of Pennsylvania. See Doc. No. 1. Plaintiffs' complaint, a purported class action, alleged that Defendant financed Plaintiffs' purchase of motor vehicles and then repossessed these motor vehicles in a fashion that did not conform with Pennsylvania's Uniform Commercial Code and Motor Vehicle Sales Finance Act.

After the parties fought over discovery during the end of 2017 and much 0f 2018, the discovery disputes were referred to me. On September 21, 2018, Plaintiffs filed a Motion to Compel Discovery and Impose Sanctions. Doc. No. 103. After a hearing and extensive briefing by both parties, I denied the sanctions motion in a Memorandum and Order, dated January 31, 2019, in which I outlined a solution to the parties' discovery disputes. Doc. No. 147.

On February 18, 2019, Plaintiffs filed a Second Motion to Compel Discovery and Impose Sanctions. Doc. No. 152. On March 14, 2019, while the Second Motion to Compel was still pending, Plaintiffs filed a Third Motion to Compel Discovery and Impose Sanctions. Doc. No. 159. After considering the parties briefs, I filed an April 1, 2019 Order regarding the discovery disputes. Doc. No. 163. This Order denied Plaintiffs attempts to pursue class-wide discovery and likewise denied their two motions for sanctions without prejudice to renew these motions after resolution of the class selection methodology and the completion of discovery as to sample class members. Id. at 10–11.

On October 12, 2020, Plaintiffs filed a Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11. Doc. No. 214. Two days later, on October 14, 2020, Plaintiffs filed a Motion for Sanctions and Relief from Orders. Doc. No. 216. The Motion for Sanctions and Relief from Orders asked for sanctions in the form of precluding Defendant from presenting evidence or argument in opposition to Plaintiffs' motion for class certification, relief from my previous Orders denying class-wide discovery, relief from Judge Beetlestone's Order barring further amendments to the complaint, and attorneys' costs and fees. Id. On November 12, 2020, Judge Beetlestone summarily denied these motions. Doc. No. 239.

Under the Third Amended Scheduling Order, fact discovery closed on March 31, 2021. Doc. No. 240. On May 3, 2021, Defendant filed a Motion for Sanctions. Doc. No. 271. On May 4, 2021, Plaintiffs filed a Motion for Sanctions. Doc. No. 272. Judge Beetlestone referred these motions to me for a Report and Recommendation on May 4, 2021. Doc. No. 277.

I. Defendant's Motion for Sanctions

Defendant moves for sanctions based on three instances of Plaintiffs' conduct: refusing to produce former named plaintiff Catherine Hosick for a deposition, discovery failures related to named plaintiffs Percy and Janene Chapman, and Plaintiffs' service of third-party subpoenas after the close of fact discovery. Defendant proposes some discovery sanctions and asks for dismissal of the Second Amended Complaint under Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

A. Plaintiffs' Use of Documents Regarding Catherine Hosick

*2 Defendant moves to preclude Plaintiffs from using any discovery related to former named plaintiff Catherine Hosick. Doc. No. 271-1, at 21–23. Defendant initially noticed Ms. Hosick's deposition on May 28, 2019 for June 20, 2019. Id. at 6. Plaintiffs' counsel informed Defendant that Ms. Hosick was sick with bone cancer and accommodations would need to be made for her deposition, but counsel did not give Defendant an alternative date for Ms. Hosick to be deposed until June 2020. Id. In November 2020, Judge Beetlestone advised the parties that she would allow the simple substitution of the Chapmans for Ms. Hosick as named plaintiff. Id. At 8-9; Doc. No. 230. Plaintiffs did not promptly file a motion for substitution. Doc. No. 271-1, at 9. Plaintiffs cancelled Ms. Hosick's deposition three times after Defendant served a notice of deposition: on July 15, 2020;[1] October 21, 2020; and January 28, 2021. See Doc. No. 271-1, at 9 (summarizing correspondence between parties regarding deposition of Ms. Hosick).

On February 22, 2021, Plaintiffs moved to replace Ms. Hosick as named plaintiff with the Chapmans. Doc. No. 250. On March 11, 2021, Judge Beetlestone ordered that Ms. Hosick be dismissed as a named plaintiff and that the Chapmans be added to the caption of the case. Doc. No. 259.

Throughout the time that Defendant was attempting to depose Ms. Hosick, it was providing Plaintiffs with answers to discovery requests involving her. See Doc. No. 271-1, at 9. Defendant was entitled to Ms. Hosick's deposition, but did not get it, through no fault of its own. I thus recommend that the Court bar Plaintiffs from using documents relating to Ms. Hosick or arguments about how Defendant repossessed her car in their motion for class certification. See Fed. R. Civ. P. 37(d)(3); 37(b)(2)(A)(ii).

B. The Chapmans' Depositions

Defendant takes issue with Plaintiffs' failure to produce the Chapmans for requested depositions before the close of fact discovery. Doc. No. 271-1, at 19–20. On March 11, 2021, Judge Beetlestone permitted the simple substitution of the Chapmans as named plaintiffs. Doc. No. 259. Defendant produced Chapman-related discovery to Plaintiffs and served its own discovery requests on Plaintiffs along with notices of deposition for both Percy and Janene Chapman scheduled before the close of discovery on March 31, 2021. Doc. No. 271-2, at 3. Plaintiffs' counsel indicated that the Chapmans could not be deposed in March, but failed to provide alternative dates before the close of fact discovery or contact Judge Beetlestone regarding the Chapmans' inability to sit for properly noticed depositions. Doc. No. 271-9, at 5–11. On March 24, 2021, counsel for Defendant and Plaintiffs appeared on the record for Percy Chapman's deposition. Doc. No. 271-10, at 4. Percy Chapman did not appear, and Plaintiffs' counsel stated that he would not agree to Defendant's proposed stipulation extending the deadline to depose the Chapmans beyond the close of fact discovery and requesting a verification from Defendant that all fact discovery was complete. Id. at 5; Doc. No. 271-1, at 12–13. After the close of fact discovery, Plaintiffs offered the Chapmans for deposition on April 16, 2021, but Judge Beetlestone informed the parties on April 9, 2021 that she considered fact discovery closed and would only allow one further 30(b)(6) deposition. Doc. No. 271-1, at 13–14. Plaintiffs continued to inform Defendant that they would make the Chapmans available for depositions, but Defendant asserted that it would adhere to the Court's directive that fact discovery had ended. Id. at 14.

On May 3, 2021, without obtaining an extension of time, Plaintiffs served their responses to Defendant's Chapman-related discovery: thirteen pages of documents and unverified interrogatories. Doc. No. 271-2, at 4. Defendant seeks the sanction of striking the Chapmans from the caption of the Second Amended Complaint, but I know of no caselaw supporting the severe sanction of striking a party from a case caption for failing to attend a deposition.

*3 I recommend directing Plaintiffs to provide verified responses to Defendant's Chapman-related interrogatories, as they are required to do under Federal Rule of Civil Procedure 33(b), within 7 days of the date of the corresponding Proposed Order. I will further recommend directing Plaintiffs' counsel to produce the Chapmans for depositions 21 days from the date of the Order. Plaintiffs assert that “counsel stands ready to re-schedule [the Chapmans'] depositions which would moot this issue.” Doc. No. 289, at 8. Plaintiffs' counsel stated at oral argument that he would make the Chapmans available for deposition on 14-days' notice. Doc. No. 309, at 12. I recommend holding him to this promise and referring jurisdiction over the document production and depositions to me to ensure they are conducted properly and within the time frame ordered.

Plaintiff waited until remarkably late in the litigation to move to include the Chapmans as named plaintiffs, and then refused to provide adequate discovery. Defendant points to Plaintiffs' duplicative lawsuit in the Southern District of New York as further evidence of Plaintiffs' bad faith. Doc. No. 271-1, at 6–7. On March 17, 2020, Plaintiffs' counsel filed a putative class action against Defendant in the Southern District of New York based upon the same conduct at issue here. See Doc. No. 271-5 (electronic docket from New York litigation). The Chapmans were included as named plaintiffs. Id. On July 1, 2020, after Defendant filed a Motion to Dismiss and allowed Plaintiffs to depose an employee, Plaintiffs' counsel voluntarily dismissed the Southern District of New York action. Doc. No. 271-1, at 7. Plaintiffs explain that the New York lawsuit was filed “in good faith and only voluntarily dismissed after Defendant filed [its] Motion to Dismiss and then as expressly permitted [by] Rule 41(a).” Doc. No. 289, at 7.[2]

I recommend taking judicial notice of the New York proceedings. Cellucci/Hodgkinson v. Travelers Ins. Co., No. Civ. A. 99-CV-1201, 1999 WL 239415, at *1 (E.D. Pa. Mar. 31, 1999) (Kauffman, J.); see Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 369 (7th Cir. 1983) (“[F]ederal courts may also take notice of proceedings in other courts, both within and outside of the federal judicial system, if the proceedings have a direct relation to matters at issue.” (citing St. Louis Baptist Temple v. F.D.I.C., 605 F.2d 1169, 1172 (10th Cir. 1979))). The filing of this parallel lawsuit is not sanctionable conduct in this case. Whatever counsel's purpose in filing a separate lawsuit, it was dismissed in July of 2020, which left plenty of time to focus on the needs of the present lawsuit, including moving to have the Chapmans included as named plaintiffs. There is no adequate explanation for why this procedural detail was left to so late in the game, and more to the point, why discovery related to the Chapmans did not get taken care of.

I recommend imposing sanctions under Federal Rule of Civil Procedure 37(d)(3) in the amount of reasonable attorneys' fees and costs incurred by Defendant in enforcing its right to discovery concerning the Chapmans. I recommend directing that the Defendant submit an affidavit to me concerning attorneys' fees and costs. I recommend ordering that this affidavit, with a memorandum in support of no more than 5 pages in length, be filed within 14 days of the date of the accompanying Order. The affidavit should include time spent (a) in negotiating and attending the aborted deposition of the Chapmans, (b) in reviewing and responding to unverified written discovery responses, (b) in preparing that portion of the sanctions motion dealing with the Chapmans' deposition and discovery responses, and (d) in preparing an affidavit and memorandum in response to this Memorandum and Order. A response by Plaintiffs' counsel of no more than 5 pages in length may be filed within 21 days of the date of the Order. No further documents should be filed in connection with the sanctions proceeding. I recommend designating me to hear and determine the matter of attorneys' fees and costs under 28 U.S.C. § 636(b)(1)(A) (providing for designation to hear and determine non-dispositive matters).

C. Plaintiffs Should Be Barred from Using Information from Subpoenas Served After the Close of Fact Discovery

*4 Defendant submits that Plaintiffs served a subpoena on Commonwealth Recovery Group (“CRG”)—a third-party vendor—after the close of fact discovery and did not serve this subpoena on Defendant until April 20, 2021. Doc. No. 271-1, at 15; see also Doc. No. 271-11 (April 20, 2021 letter from Plaintiffs' counsel attaching discovery received from CRG and stating that the failure to contemporaneously serve the CRG subpoena on Defendant was a clerical error). I recommend precluding Plaintiffs from using information obtained in response to this subpoena.

While Plaintiffs characterize their failure to serve the untimely CRG subpoena on Defendant as a clerical error, they did not rectify this error until after receiving information from CRG. See Doc. No. 271-11. Without any notice of the CRG subpoena, Defendant was unable to file a timely motion to quash it. Plaintiffs' failure to serve the CRG subpoena on Defendant is a violation of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 45(a)(4) (“If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” (emphasis added)). Furthermore, while a copy of this subpoena is not included with the parties' briefing, Plaintiffs allegedly served it on April 1, 2021, after the close of fact discovery on March 31, 2021. Doc. No. 271-1, at 15. While it is unclear what type of discovery Plaintiffs received in response to the subpoenas, I recommend barring Plaintiffs from using any of it. This case has already consumed years of time in discovery. Enough is enough.

I accept Plaintiffs' counsel's representation that the procedural faux pas was unintentional, and I recommend against awarding attorneys' fees to Defendant for the cost of litigating its motion for sanctions. See Mid-Atl. Constructors Inc. v. Stone & Webster Constr., Inc., 231 F.R.D. 465, 467–68 (E.D. Pa. 2005) (Robreno, J.) (awarding monetary sanctions after finding defendant intentionally served a third-party subpoena past the fact discovery deadline and without giving notice to plaintiff). Barring use of documents received through the late-served subpoenas is an adequate remedy in a case already “discovered” to death.

D. Dismissing the Second Amended Complaint Under Poulis is Not an Appropriate Remedy

Defendant requests dismissal with prejudice of Plaintiffs' Second Amended Complaint under Poulis as a sanction for all of Plaintiffs' obstructionist conduct. Doc. No. 271-1, at 21–22.

Poulis instructs a trial court to balance six factors when deciding whether dismissal is merited as a sanction:

Poulis, 747 F.2d at 868.

The Poulis factors weigh against dismissal. Regarding the first factor, there is no indication that the named plaintiffs themselves are responsible for the discovery issues. Second, any prejudice to Defendant can be remedied by far less draconian sanctions. Not taking the Chapmans' depositions and not receiving written discovery is a handicap to Defendant's ability to defend the case, but hardly a case-dispositive handicap. The handicap can be cured with a minimum of fuss through depositions closely supervised by a Magistrate Judge. Third, Plaintiffs' counsel's conduct has been far from a model of how discovery should be conducted. Plaintiffs' counsel's repeated efforts to relitigate issues already decided, and his freewheeling[3] approach to briefing and arguing discovery motions, seem designed to mire the Court (and his adversaries) in an endless discovery netherworld. The proper object of discovery is to get the facts needed to decide the case as efficiently as possible. However, Defendant has not been wholly immune from playing discovery “hardball.” See Doc. No. 147. Fourth, even if Plaintiffs' counsel's objectionable discovery conduct was willful or done in bad faith, this finding alone would be insufficient to justify dismissal of Plaintiffs' Second Amended Complaint. The objectionable discovery conduct has not resulted in substantive prejudice to the Defendant that would justify dismissal of the Second Amended Complaint. Fifth, sanctions other than dismissal will be effective. Sixth, and most importantly, if the claims alleged in the Second Amended Complaint were proven at trial, they would support Plaintiffs' recovery. It is preferable for the parties to win or lose on the substance, rather than through procedural default.

*5 Weighing the Poulis factors together, the serious sanction of dismissal is not warranted.

II. Plaintiffs' Motion for Sanctions

Plaintiffs' Motion for Sanctions alleges issues with Defendant's discovery that break down into three main categories:[4] Defendant failed to properly answer Plaintiffs' discovery requests and improperly relied on Federal Rule of Civil Procedure 33(d), Defendant failed to produce all relevant contracts with third-party vendors and improperly impeded Plaintiffs' efforts to obtain those contracts, and Defendant acted in bad faith during the deposition process. See Doc. No. 272-1. All these claims are meritless or do not rise to a level of sanctionable conduct. Furthermore, the sanction Plaintiffs propose would bar Defendant from opposing Plaintiffs' forthcoming motion for class certification. Id. at 38. This sanction would abdicate the court's duty to unnamed class members under Federal Rule of Civil Procedure 23. The sanction is unwarranted, and I recommend that it be denied.

A. Plaintiffs' Issues with Defendant's Discovery Responses Are Meritless

First, Plaintiffs submit that Defendant's answers to Interrogatories 7 and 8 (from the First Set of Post-Removal Discovery) and 2 and 3 (from the Second Set of Post-Removal Discovery) violated my previous Orders and the Federal Rules of Civil Procedure. Doc. No. 272-1, at 8–17. Plaintiffs argue that these answers were not unequivocal with reference to Bates stamp numbers, as required by my Orders, Doc. Nos. 147–48, and that Defendant improperly invoked Federal Rule of Civil Procedure 33(d).[5] Id. at 8–11. Plaintiffs' contentions are meritless. Defendant provided an unequivocal answer for each interrogatory. See Doc. No. 272-2. For instance, in response to Plaintiffs' question regarding how much Defendant actually paid third parties for vehicle storage expenses, Defendant answered that it directly paid these third parties zero dollars. Id. at 4. Defendant further explained that when a vehicle goes to sale, the applicable storage expenses are deducted from the sale proceeds before those proceeds are transmitted to Defendant. Id. Thirty days after filing its answers to the interrogatories, Defendant sent Plaintiffs a letter noting the unique Bates stamp designations it used to tag the different categories of documents Plaintiffs requested. See Doc. No. 288-2. Defendant did this for all the documents Plaintiffs requested. See id. Defendant's responses were unequivocal, and its letter provided an easy way to access the documents Defendant relied on by unique Bates numbers. To access information for the Sampled Accounts, all Plaintiffs had to do was reference the marked spreadsheet. Plaintiffs' complaints regarding Defendant's interrogatory responses are meritless.

*6 Plaintiffs also take issue with Defendant's responses to 25 of their 272 First and Second Sets of Requests for Admission (“RFAs”). Doc. No. 272-1, at 31–36; Doc. No. 288, at 41. Plaintiffs argue that Defendant inappropriately stated that it was unable to answer certain RFAs and that Defendant inaccurately answered other RFAs. Doc. No. 272-1, at 31–36. Defendant asserts that it accurately answered all of Plaintiffs' RFAs. Doc. No. 288, at 41–47.

Plaintiffs' issues with Defendant's responses to the RFAs are meritless. Defendant was entitled to assert that it did not have sufficient information to admit or deny certain RFAs under Federal Rule of Civil Procedure 36(a)(4). Further, Defendant's brief adequately explains why it answered the RFAs the way that it did. See Doc. No. 288, at 41–47. Plaintiffs' RFAs were often confusing and asked Defendant to admit to broad statements about all its contracts with certain vendors over a long period of time. See Doc. No. 279-3 (Def.'s Resps to Pls' First RFAs); Doc. No. 272-20 (Pls' Second RFAs).[6] For instance, RFA 34 asks Defendant to admit that from September 22, 2011 through and including March 25, 2020, Defendant had an agreement with one of its vendors that Defendant would receive at least three free days of storage of a repossessed motor vehicle. Doc. No. 279-3, at 5. This RFA requires the investigation of all of Defendant's contracts with this vendor over nine years. Admitting or denying it required sweeping generalizations about years of transactions. Requests to admit should be “simple and concise” so that they “can be denied or admitted with an absolute minimum of explanation or qualification.” United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 967–68 (3d Cir. 1988) (quoting Havenfield Corp. v. H & R Block, Inc., 67 F.R.D. 93, 96 (W.D. Mo. 1973)). The Defendant's response was appropriate and not sanctionable.

Plaintiffs argue that Defendant acted in bad faith by failing to disclose all individuals that had knowledge of operative facts contained in the complaint and providing credit information for certain named plaintiffs (the Chapmans) past the Court-imposed deadline. Doc. No. 272-1, at 36–37. Both these claims are meritless. First, Plaintiffs claim that Defendant prejudiced Plaintiffs by failing to disclose all individuals with knowledge of the facts alleged in the complaint. Id. As Defendant points out, it named seven individuals in its amended initial disclosures and directed Plaintiffs to specific documents via Bates stamp reference where further employees who may have had knowledge of the allegations appeared. Doc. No. 288, at 47–50; Doc. No. 288-18 (Def.'s Am. Initial Disclosure). These disclosures were dated February 26, 2019—well before the ultimate close of fact discovery on March 31, 2021. Doc. No. 288-18, at 6. Plaintiffs' complaints that Defendant played a “shell game” are meritless; Defendant pointed Plaintiffs to employees with discoverable information, and Plaintiffs were entitled to take depositions for those individuals. And, as Defendant notes, Plaintiffs did not depose anyone until November 24, 2020—more than a year and a half after Defendant amended its initial disclosures. Doc. No. 288, at 48. Plaintiffs' implication that it ran out of time to notice depositions before the close of fact discovery is unconvincing.

*7 Next, Plaintiffs submit that Defendant withheld certain credit information regarding the Chapmans. Doc. No. 272-1, at 37. On March 11, 2021, Judge Beetlestone ordered that the Chapmans be added to the caption of the Second Amended Complaint and that Defendant produce discovery related to them no later than March 18, 2021. Doc. No. 259. Defendant served its responses to Plaintiffs' Chapman-related discovery requests and a related document production on March 18, 2021. Doc. No. 288, at 51. Defendant alleges that later, on March 31, 2021, it provided “18 pages of irrelevant credit reporting information, at Plaintiffs' request.” Id. Neither Plaintiffs nor Defendant attaches any communications between the parties evidencing what kind of production Defendant made on March 31, 2021 and why it was not relevant. The matter did not come up at oral argument on September 8, 2021. There has been no showing that Plaintiffs were prejudiced. The claim is meritless.

B. Plaintiffs' Claims Regarding Third-Party Vendor Contracts Are Meritless

Plaintiffs next submit that Defendant has obstructed its efforts to obtain third-party vendor contracts. Doc. No. 272-1, at 18–27. Plaintiffs argue that Defendant did this in three ways: Defendant refused to produce these documents itself, interfered with Plaintiffs' subpoenas to the vendors, and spoliated evidence. Id. All these claims are meritless.

First, Plaintiffs claim that Defendant should have produced all relevant vendor contracts in response to their interrogatories. Id. at 18. This claim is meritless. Defendant certified that it produced all relevant vendor contracts in its possession, custody, and control. Doc. No. 288, at 22 (“Not only has [Defendant] produced all relevant agreements in its possession, custody, and control, but it has attested to that fact under oath, and confirmed that it made a diligent search and has nothing further to disclose.”).[7] When Plaintiffs sent another interrogatory to Defendant seeking further vendor contract information, Defendant objected that the interrogatory exceeded the 25 allowed by Rule 33(a)(1) because it requested so many discrete pieces of information. Doc. No. 228, at 24–25; see Doc. No. 272-10 (Pls' Third Set Disc. Directed to Def.).[8] I agree that this interrogatory seeks excessive information that puts it over the 25-interrogatory limit because it seeks at least four pieces of information for each of Defendant's contracts with dozens of vendors. See Doc. No. 272-10. Further, Plaintiffs cannot continue to badger Defendant for contracts Defendant has already represented it does not have. See Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ. 1514, 2008 WL 2224288, at *3 (S.D.N.Y. May 29, 2008) (“Under ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production ...” (quoting Zervos v. S.S. Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y 1978))). I recommend denying this claim.

Second, Plaintiffs submit that Defendant obstructed their efforts to obtain information directly from third-party vendors through subpoenas. Doc. No. 272-1, at 18–21. As a preliminary matter, Plaintiffs misrepresent in their brief that “none of the numerous third-party vendors Plaintiffs subpoenaed produced documents in compliance with the subpoenas.” Id. at 20. Plaintiffs' April 5, 2021 letter to Defendant—five days after the close of fact discovery—attached information provided by five third-party vendors in response to subpoenas. Doc. No. 288-9. Notwithstanding Plaintiffs' misrepresentations, these subpoenas were at least in part an attempt to circumvent the Court's orders forbidding class-wide discovery because they sought information about all putative class members. See Doc. No. 288-7, at 2, 41–95 (Jan. 29, 2021 revised subpoenas). Defendant was within its rights to attempt to block these subpoenas as violative of previous Orders that class-wide discovery was inappropriate. See Doc. No. 163, at 7 (“The motion seeks class-wide discovery, which I have already determined will not be conducted at this time.”). As I explained in the context of Defendant's Motion for Sanctions, some of these subpoenas were improperly served after the close of fact discovery. Therefore, representations that Defendant improperly interfered with the subpoenas are meritless.

*8 Finally, Plaintiffs claim that Jennifer Thompson—an employee of Defendant—spoliated emails from Defendant's in-house counsel. Doc. No. 272-1, at 21–26. Plaintiffs point to a section of Ms. Thompson's deposition where she stated that she deleted these emails because there was no reason to keep the emails and she was not asked to keep them. Id. at 21–22. These emails were a request from in-house counsel to collect the vendor contracts Plaintiffs requested in this litigation. Id. Plaintiffs attempt to justify this request because they believe Defendant has not produced all the vendor contracts in its possession notwithstanding Defendant's certification that it has produced all such contracts. Id. at 22. “Federal courts ‘will not compel a party to disclose its discovery process as a result of the opponent's mere suspicion that the party's process has not produced adequate documents.’ ” Brand Energy & Infrastructure Servs., Inc. v. Irex Corp., 2018 WL 806341, at *2 (E.D. Pa. Feb. 9, 2018) (Hey, J.) (quoting Sean Grammel, Protecting Search Terms As Opinion Work Product: Applying the Work Product Doctrine to Electronic Discovery, 161 U. PA. L. REV. 2063, 2084 (2013)). Here, Plaintiffs are on a fishing expedition and believe that they are entitled to look into Defendant's communications with counsel because they speculate Defendant has not produced all of the third-party vendor contracts it possesses. But mere suspicion is inadequate to justify discovery-on-discovery involving communications with counsel. Plaintiffs' spoliation claims seeking discovery-on-discovery are meritless. I recommend denying the claims.

C. Plaintiffs' Claims That Defendant Acted in Bad Faith During the Deposition Process Are Meritless

In their final group of claims, Plaintiffs argue that Defendant acted in bad faith by obstructing their ability to take a Rule 30(b)(6) deposition of a corporate agent and objecting excessively during Plaintiffs' other depositions. Doc. No. 272-1, at 27–31. These claims are meritless.

Plaintiffs' claims regarding the Rule 30(b)(6) deposition and Defendant's failure to appear at the first-noticed 30(b)(6) deposition are meritless. Plaintiffs mischaracterize the interactions between the parties regarding the 30(b)(6) deposition. Plaintiffs paint Defendant as being unresponsive and standing in the way of their reasonable attempts to hold a 30(b)(6) deposition. Id. This is not the case. On February 18, 2021, Plaintiffs sent a notice of a 30(b)(6) deposition for March 4, 2021—ten business days later. Doc. No. 288-14. The notice of deposition was eighteen single-spaced pages and listed (by Defendant's count) approximately 240 topics for the deposition. Id.; Doc. No. 288, at 34. Defendant was within its rights to request multiple meet-and-confers in an attempt to winnow down the deposition topics, because this was an unreasonable number of requests for such a short period of time. See Holloway v. 3M Co., No. EDCV19-708-JAK, 2019 WL 7172600, at *24 (C.D. Cal. Oct. 31, 2019) (“The Court finds nine days' notice is not reasonable for a Rule 30(b)(6) deposition seeking 33 matters for examination regarding the entire putative class ... Hence, Plaintiffs' Motion to Compel the Rule 30(b)(6) deposition is DENIED WITHOUT PREJUDICE.”). As noted in Defendant's brief, Defendant timely objected to Plaintiffs' notice of deposition and notified Judge Beetlestone when the parties could not come to an agreement.[9] Doc. No. 288, at 34–37. After noticing an unreasonable 30(b)(6) deposition and refusing to engage in productive talks with Defendant, Plaintiffs cannot now complain that Defendant protested and took the steps required by the District Judge to put off the deposition.

In a related claim, Plaintiffs assert that Michael Ryan—the corporate representative Defendant produced for the 30(b)(6) deposition—was so woefully unprepared for the deposition that it amounted to Defendant failing to appear at the deposition. Doc. No. 272-1, at 29–30. The twenty-nine pages of the deposition transcript that Plaintiffs have produced indicate that unclear questions asked by Plaintiffs' counsel—not the unpreparedness of Defendant's representative—were what obstructed this deposition. See Doc. No. 272-6. For instance, Plaintiffs' counsel asked the corporate representative whether, over a period of almost eight years, Defendant implemented a standardized itemization policy for certain vehicle expenses for all putative class members. Id. at 13. This question not only asked the corporate representative about the existence of a policy for a lengthy period, but also sought class-wide discovery in violation of previous Orders.

*9 The other portions of the deposition provided by Plaintiffs tell a similar story: counsel asked the corporate representative to recall exact fees charged by vendors in certain months, id. at 21, and to recall from memory the number of columns on a spreadsheet without looking at it, id. at 26. Plaintiffs' counsel cannot credibly complain that the 30(b)(6) deponent was not prepared to answer questions asking him to recall exact numbers and figures from specific documents. See Google Inc. v. Am. Blind & Wallpaper Factory, Inc., No. C 03-5340 JF, 2006 WL 2318803, at *3 (N.D. Cal. Aug. 10, 2006) (finding that a 30(b)(6) deponent was not unprepared when she “was generally prepared and knowledgeable, but [counsel] was looking for specific detailed data that she could not reasonably be expected to provide from memory-and that in some cases could not reasonably have been expected even to have calculated prior to the deposition.”). I recommend denying this claim.

Finally, Plaintiffs complain that Defendant's counsel objected an inappropriate number of times during both the Rule 30(b)(6) deposition and the fact depositions. Doc. No. 272-1, at 30–31. Many of the questions asked by Plaintiffs' counsel were objectionable because they asked for legal conclusions, involved Plaintiffs' counsel testifying as to facts in the question, or asked the deponent to recall minutiae from memory. This claim is meritless because many—if not all—of Defendant's objections were merited given how Plaintiffs' counsel conducted the depositions.

D. Plaintiffs' Proposed Sanctions Are Inappropriate

Plaintiffs proposed sanctions are inappropriate for this case. First, Plaintiffs ask that the Court “preclude Defendant from presenting evidence or argument in opposition to class certification.”[10] Doc. No. 272-1, at 38. Plaintiffs argue that there is no dispositive Third Circuit precedent addressing this sanction and submit that this sanction is less severe than seeking actual class certification as a sanction. Id. Plaintiffs' argument ignores the important role that a court plays in protecting the interests of absent class members under Rule 23. See In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995) (“The drafters designed the procedural requirements of Rule 23, especially the requisites of subsection (a), so that the court can assure, to the greatest extent possible, that the actions are prosecuted on behalf of the actual class members in a way that makes it fair to bind their interests.”). A court in this District has previously recognized this responsibility and found that precluding evidence in response to a class certification motion for a party's alleged discovery violations would not be an appropriate remedy. See Grider v. Keystone Health Plan Cent., Inc., No. 2001-cv-05641, 2004 WL 902367, at *5 (E.D. Pa. Apr. 27, 2004) (Gardner, J.) (“[W]e are certain that total preclusion of all evidence by defendants [in response to a class certification motion] would not be an appropriate initial sanction.”); see also Masters v. Wilhelmina Model Agency, Inc., No. 02 Civ. 4911, 2003 WL 21089073, at *3 (S.D.N.Y. May 13, 2003) (“Thus, even if plaintiffs' application were free of procedural defects and plaintiffs had established that a discovery order had been violated, the striking of Elite's opposition to plaintiffs' motion for class certification would still be an inappropriate remedy.”).

Plaintiffs cite to Addison v. Monarch & Assocs., Inc., No. 5:14-cv-00358-GW(JEMx), 2017 WL 10562596 (C.D. Cal. May 8, 2017), report and recommendation adopted, 2017 WL 10651147 (C.D. Cal. June 5, 2017). The case is inapposite. The court in Addison granted class certification and entered a default judgment against a defendant who had clearly spoliated most of the relevant evidence in the case. Id. at *5. That is not the case here. Plaintiffs have alleged defects in the discovery process that are meritless and, even if true, do not leave them wholly, or even substantially, unable to litigate this case. Granting their proposed sanction of precluding Defendant of presenting evidence opposing class certification would be wildly disproportionate to the conduct alleged and would violate the Court's duty to absent class members.

*10 Plaintiffs' second proposed sanction seeks additional discovery that Plaintiffs have not shown good cause for requesting. First, Plaintiffs request to take the deposition of Catherine Kader, an employee hired by Defendant in October 2020 who Defendant represents would have had no knowledge of the claims in Plaintiffs' complaint. Doc. No. 272-1, at 39; see Doc. No. 288, at 49–50. Additionally, Plaintiffs seek “full, unequivocal” answers to Interrogatories 7 and 8 from their First Set of Post-Removal discovery, which Defendant has already answered fully. Doc. No. 272-1, at 39. Plaintiffs also request to modify interrogatories 2 and 3 in their Second Set of Post-Removal discovery and direct Defendant to answer these Interrogatories again. Id. These modifications are unnecessary, as Defendant has already answered these interrogatories. Therefore, Plaintiffs' requested sanctions are inappropriate.

I recommend imposing limited sanctions on Plaintiffs, while denying Plaintiffs' motion for sanctions in its entirety. The Order filed with this Memorandum recommends

The parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with this document. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and shall provide an explanation of the basis for the objection. Failure to file timely objections will likely result in the loss of appellate rights. See Equal Emp. Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 99–100 (3d Cir. 2017); Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within fourteen (14) days of the date the objections were served.

BY THE COURT:

Notably, Plaintiffs provided July 15 as a date Ms. Hosick would be available for a deposition and then cancelled after Defendant noticed her deposition for this date. Doc. No. 271-4, at 15–19.

Plaintiffs also assert that by bringing up the New York lawsuit, Defendant “has now opened-the-door as to whether or not these practices challenged in this lawsuit have, in fact, occurred also in New York.” Doc. No. 289, at 7. Plaintiffs do not cite any authority for this “door-opening” argument. The argument is specious, and I will take no further note of it.

Chief Judge Mark Hornak of the Western District of Pennsylvania previously admonished Plaintiffs' counsel for taking an “incredibly freewheeling approach to [ ] litigation” and using tactics similar to those used in this case. Hughes v. Nationwide Bank, 387 F. Supp. 3d 612, 624 n.16 (W.D. Pa. 2019).

While Plaintiffs' brief purports to assert eight claims in its argument section, one of those claims is dedicated to a recitation of the facts and many of the other claims overlap with one another. See Doc. No. 272-1, at 4–5 (Table of Contents).

Federal Rule of Civil Procedure 33(d) allows a party to answer an interrogatory by referring to business records if the answer can be readily determined by referencing those records and “if the burden of deriving or ascertaining the answer will be substantially the same for either party.” Fed. R. Civ. P. 33(d).

While Plaintiffs reference Exhibit 19 as including Defendant's responses to the Second RFAs, Exhibit 19 is just a blank form without Defendant's responses.

Defendant did not provide a cite for this representation. I assume it is correct.

Plaintiffs attached a blank version of the interrogatories that does not incorporate Defendant's responses.

Defendant explains that it did not immediately move for a protective order because Judge Beetlestone requires that the parties contact chambers and schedule a telephone conference before filing a motion for a protective order or a motion to compel. See The Honorable Wendy Beetlestone, Policies and Procedures, U.S. DIST. CT. FOR THE E. DIST. OF PA. 5–6 (Jan. 2020), https://www.paed.uscourts.gov/documents/procedures/beepol.pdf.

Plaintiffs already requested this sanction in their Motion for Sanctions and Relief from Orders, Doc. No. 216-1, at 44, that Judge Beetlestone summarily dismissed, Doc. No. 239.