*1 Currently pending is a joint discovery dispute statement filed by Plaintiff Meghan Bright, as Curator of the Estate of Leonard Foote (“Bright” or the “Florida Plaintiff”), and Plaintiff George Gunza, by and through his sister Peggy Fisher, as power of attorney (“Gunza” or the “North Carolina Plaintiff”) (collectively, “Plaintiffs”), and Brookdale Senior Living, Inc. (“Brookdale”). (Docket No. 188.) On January 14, 2022, in connection with this filing, the parties participated in a discovery conference via Zoom with the undersigned Magistrate Judge. Counsel present at this conference were: Christa Collins, Michael Kelly, Ali Naini, and Kelly Bagby for Plaintiffs; and Erica Rutner, John Bertino, and David Changas for Brookdale.[1]

These consolidated cases involve Plaintiffs' allegation that Brookdale, an operator of assisted-living facilities, intentionally understaffed those facilities, which caused Plaintiffs and the proposed class members—residents at Brookdale facilities in North Carolina and Florida—to receive inadequate care. During the course of discovery, Plaintiffs propounded its first set of requests for product of documents (“RFPs”), to which Brookdale responded with a number of objections to the scale of the requested production. The parties advise that despite initially disagreeing on more than 20 separate issues, they have narrowed their dispute to five issues that are now necessarily resolved by the Court.

The issues in dispute concern whether Plaintiffs are entitled to discovery concerning: (1) residents who entered Brookdale's Florida facilities prior to 2020; (2) Residency Agreements for the putative Florida class period; (3) documents authorizing third parties to sign those Residency Agreements; (4) Corrective Action Plans for personnel at a sampling of facilities in North Carolina and Florida; and (5) proprietary information contained in Brookdale's Service Alignment Software.

A. Legal Standards

Parties are generally allowed to obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ...” Fed. R. Civ. P. 26(b)(1). Although Rule 26 permits a broad search for information that need not be admissible to be discoverable, determining whether something is “proportional” to the needs of a particular case requires consideration of “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.” Id. It is “well established that the scope of discovery is within the sound discretion of the trial court.” In re Flint Water Cases, 960 F.3d 820, 826 (6th Cir. 2020) (quoting Criss v. City of Kent, 867 F.2d 259, 261 (6th Cir. 1988)).

*2 Despite this breadth, the trial court is directed to prevent the production of information that falls outside the scope of discovery described in Rule 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C)(iii). A party that files a motion to compel discovery carries the initial burden of demonstrating that the information sought is relevant, and if this burden is met, the party opposing production then bears the burden of establishing that the discovery sought “is not relevant or is so marginally relevant that the presumption of broad disclosure is outweighed by the potential for undue burden or harm.” O'Malley v. NaphCare Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015) (internal citations omitted).

B. Issues in Dispute

1. The Florida Class Period

This general dispute stems from a similar class action lawsuit filed against Brookdale in the Southern District of Florida, Runton v. Brookdale Senior Living, No. 17-cv-606640 (S.D. Fla.), and bears on some of the remaining areas of dispute. On March 23, 2020, the District Court in Runton approved a settlement for a class of plaintiffs that included “[a]ll persons who entered a Brookdale assisted living facility in the State of Florida between April 4, 2013, and the present ... for whom there does not exist a signed arbitration agreement applicable to the services provided to them at a Brookdale [assisted living facility].” (Docket No. 171 at 25.) This language excludes those settlement class members—individuals without signed arbitration agreements who entered Brookdale between April 4, 2013, and March 23, 2020—from the putative Florida class in the instant case, which, as articulated by District Judge William L. Campbell, Jr., in an order denying in part Brookdale's motion to strike class allegations, includes two sets of people: “(1) individuals for whom there exists a signed arbitration agreement; and (2) individuals who entered a Brookdale assisted living facility in Florida after March 23, 2020.” (Id. at 26.)[2] For this first group of individuals, the putative Florida class denotes those residents who entered a Brookdale facility in Florida between May 3, 2015 (the start of the class date as alleged in the operative complaint) and the future date on which a motion for class certification is filed.

Brookdale now objects to Plaintiff's attempt to obtain information concerning the putative Florida class dating back to May 3, 2015, based on its interpretation of Judge Campbell's order, which, according to Brookdale, concluded “that there is no possibility that a class of Pre-2020 Putative Class Members could be maintained” given that all such members are necessarily subject to arbitration agreements. (Docket No. 188 at 8.) Brookdale thus contends that, based on Judge Campbell's order, Plaintiff should be limited to information about the second group of individuals included in the putative class: the post-March 23, 2020, Florida Brookdale residents.

The relevant portion of Judge Campbell's order states the following:

*3 (Docket No. 171 at 32.) Such language appears to suggest that the only individuals in the Florida class not subject to arbitration are those residents who entered Brookdale facilities following the Runton settlement on March 23, 2020, which would support Brookdale's current opposition to discovery requests seeking information dating back to 2015.

Nonetheless, the Court does not find the order to be quite as conclusive as Brookdale wishes. It bears emphasizing that Judge Campbell rejected Brookdale's request to strike the proposed Florida class based on a determination that “further development of the facts, particularly on the arbitration issue,”, was necessary before undertaking any Rule 23 analysis evaluating the appropriateness of class certification. (Id. at 42.) As discussed during the discovery conference, the arbitration provision at issue is part of a Residency Agreement that each individual consents to before entering a Brookdale facility, and there have been multiple instances of a signed Residency Agreement containing an unenforceable arbitration provision. For example, counsel for Plaintiffs identified a pre-March 23, 2020, Residency Agreement signed by an agent acting on behalf of a resident who in fact lacked authority to bind the resident to arbitration. As another example, counsel identified a resident who had signed a Residency Agreement but had “crossed out” the arbitration provision. Individuals in such situations—pre-March 23, 2020, residents who have signed a Residency Agreement but are not subject to enforceable arbitration provisions—would not be disqualified from the putative Florida class in this matter. And additional discovery may uncover other similarly qualifying individuals, which would impact the scope of the putative Florida class. The Court thus finds that such possibilities justify discovery spanning back to May 3, 2015.

The parties advise that Brookdale has already produced numerous documents from the Runton litigation that include relevant information from an agreed-upon representative sampling of seven Brookdale facilities in North Carolina and 25 facilities in Florida between 2014 and 2017.[3] Plaintiff now asks that Brookdale be required to remove redactions that were improperly applied to these documents, and that Brookdale be required to produce additional relevant documents from 2017 through March 23, 2020. The Court will grant this request and require Brookdale to provide unredacted copies of the previously produced Runton materials and additionally produce relevant information for the period covering 2014 to 2017.[4]

2. Residency Agreements

*4 In RFP Nos. 13 and 14, Plaintiffs seek production of hard-copy Residency Agreements and electronically-stored Residency Agreements, respectively, for all residents in the representative sampling of facilities in North Carolina and Florida between 2015 and 2020. Plaintiffs reiterate that because the arbitration provisions are contained within the Residency Agreements, the Residency Agreements are the only means of evaluating which members of the putative classes were subject to enforceable arbitration agreements. (Docket No. 188 at 11.)

Brookdale responds by again asserting that Judge Campbell's order foreclosed the possibility of any resident who entered a Florida facility before March 23, 2020, representing an eligible member of the putative class, which, for the reasons previously discussed, is not the undersigned's interpretation of the order. Brookdale also relies on several cases in which a district court denied a motion for class certification based on a finding that the threshold issue of whether putative class members were subject to binding arbitration waivers prevented the proposed plaintiffs from establishing commonality and typicality of the putative class. See, e.g., Johnson v. BLC Lexington, SNF, LLC, No. CV 5:19-064-DCR, 2020 WL 3578342, at *6 (E.D. Ky. July 1, 2020). Yet as noted in Judge Campbell's order, binding Sixth Circuit precedent mandates that certification of a putative class “should not be denied merely because some class members may be subject to the defense that their claims are barred by valid documents releasing the defendant from liability.” Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 90-91 (M.D. Tenn. 2004) (citing Bittinger v. Tecumseh Products Co., 123 F.3d 877, 884 (6th Cir. 1997) and collecting other cases with similar holdings). And as discussed during the discovery conference, the Court is unwilling to make any determination that could be construed as a determination of the scope of the putative class, particularly given Judge Campbell's refusal to strike the class allegations. These cases involving denials of class certification motions are therefore immaterial to the instant dispute, and the Court will grant Plaintiffs' request to require production of the applicable Residency Agreements between 2015 and 2020.

During the discovery conference, counsel for Brookdale expressed multiple concerns regarding the burdens and potential complications that would arise if Plaintiffs' request were granted. In particular, counsel noted that the Residency Agreements at issue are contained within the residents' individual files and emphasized that review of the files could lead to violations of the Health Insurance Portability and Accountability Act (“HIPAA”). Counsel conceded, however, that Brookdale would not oppose such review if certain conditions were met, specifically ones that would lessen Brookdale's burden in connection with the review, ensure compliance with relevant HIPAA standards, and adequately protect anyone involved from unnecessary exposure to pathogens given the ongoing COVID-19 pandemic. Counsel for Plaintiffs responded with a variety of measures that might be taken to alleviate Brookdale's concerns on this front.

Because of the parties' expressed willingness to continue to cooperate in the event of a ruling favorable to Plaintiffs, the Court will not circumscribe the details of Plaintiffs' permitted review of the Residency Agreements in question but will instead leave the particulars of Brookdale's production to the discretion of the parties' competent attorneys.[5] The parties are of course permitted to bring any additional dispute over production of the Residency Agreements to the Court subject to the requirements of the discovery dispute resolution procedures in effect in this case.

3. Documents Authorizing Third Parties to Sign Residency Agreements

*5 This dispute is akin to the one discussed in the preceding section. As part of RFP Nos. 13 and 14, Plaintiff seeks—in conjunction with the Residency Agreements—“related contractual documents including powers of attorney or other documents purportedly authorizing the signatory to enter into the contract on behalf of the resident.” (Docket No. 188-1 at 12.) The disputed authorizing documents correspond to previously produced Residency Agreements, but they are physically housed in facilities at offsite locations and not stored electronically.

In addition to the objections previously articulated, Brookdale opposes based on a sister district court's finding in connection with a discovery dispute in a class action involving alleged violations of the Tennessee Timeshare Act that “individualized discovery for every potential class member [ ] is not appropriate for precertification discovery.” Moore v. Westgate Resorts, No. 3:18-CV-410-DCLC-HBG, 2020 WL 113352, at *11 (E.D. Tenn. Jan. 9, 2020) (citing Clarke v. Baptist Mem'l Healthcare Corp., No. 2:06-CV-02377-MAV, 2008 WL 11320263, at *3 (W.D. Tenn. Jan. 29, 2008)). However, the Clarke quotation on which the Moore court based this finding demonstrates that the discovery at issue was prohibited because it involved inquiry into the merits of the subject plaintiffs' allegations:

Clarke, 2008 WL 11320263, at *3. Indeed, the Moore court went on to emphasize that the subject plaintiffs impermissibly sought “large amounts of non-relevant personnel-related documents, as well as discovery largely focused on the merits of the case[.]” 2020 WL 113352, at *11. In contrast, the documents Plaintiffs seek here are not merit-based but instead aimed at establishing the contours of the putative classes by determining which Brookdale residents are eligible based on the enforceability, or lack thereof, of the arbitration provisions contained within their respective Residency Agreements. Such information would likely assist the District Judge in evaluating the appropriateness of class certification.

Brookdale additionally objects to Plaintiffs' requests based on its assertion that production of the sought documents would be “incredibly burdensome.” (Docket No. 188 at 22.) This assertion appears to be well founded, as counsel for Brookdale has gone to great lengths to describe, both in briefing and during the discovery conference, the resources that would be required to review the “hundreds or thousands of resident files for each individual” facility at issue. (Id. at 22-23.) The absence of any electronic storage of the names of residents who are subject to authorizing documents further complicates the problem and satisfies Brookdale's obligation of “explaining how costly or time-consuming responding to a set of discovery requests will be[.]” Wilmington Trust Co. V AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 at *2 (S.D. Ohio Mar. 7, 2016). The Court must therefore undertake a proportionality analysis and consider the factors that relate to such a determination, including: (1) importance of the issues at stake; (2) the amount in controversy; (3) the relative access of the parties to the relevant information; (4) the resources of the parties; (5) the importance of the information or documents sought to resolving the issues; and (6) whether the burden or expense outweighs the likely benefit from production. Brown v. Tax Ease Lien Servicing, LLC, No. 3:15-CV-208-CRS, 2016 WL 10788070, at *9 (W.D. Ky. Oct. 11, 2016).

*6 Notwithstanding the significant burden that review of the authorizing documents at issue appears to entail, the Court finds that this information is proportional to the needs of the case. The first and fifth factors weigh in favor of production since, as discussed, the issue of whether the relevant arbitration provisions are enforceable is central to determining the composition of the putative classes. The second factor similarly favors production given that a class action lawsuit by its very nature generally involves a considerable amount of claimed damages.[6] And there can be little doubt that the fourth factor—the resources of the parties—counsels in favor of production given Brookdale's status as the “largest owner and operator of assisted living facilities” in the nation. (Docket No. 1 at ¶ 25.)

Even if the third factor, which considers the “relative access” of the parties to the sought information, is placed in Brookdale's column, this would not overcome the weight of the factors militating in favor of production. And for the reasons previously outlined, the Court cannot at this juncture declare that the burden and expense of such production (the sixth factor) outweighs the potential benefit of identifying and refining the putative classes, which is the very basis of undertaking class discovery. See Brown, 2016 WL 10788070, at *8 (“[T]he concept of proportionality more appropriately turns on how central the proposed discovery is to the claim or defense to which it relates in light of the proven burden imposed on the responding party.”). Accordingly, the Court will require production of the authorizing documents sought in RFP Nos. 13 and 14.[7]

As with the previous areas of dispute, the Court declines to bind the parties to a particular protocol for facilitating production of the documents. Brookdale may take any and all steps necessary to ease its burden in the process, and disagreements over any measures suggested or implemented by Brookdale to achieve this may be brought to the Court's attention.[8]

4. Corrective Action Plan for the Sampled Communities

In RFP No. 7, Plaintiffs request all “Corrective Action Plans, performance evaluations, disciplinary reports, counseling records and remedial plans” for executive directors, assistance executive directors, and health and wellness directors working at Brookdale's North Carolina and Florida facilities during the class period. (Docket No. 188-2 at 12-13.) In RFP No. 45, Plaintiffs seek all documents containing any evaluations or assessments concerning the “financial performance” of Brookdale's facilities or “any executive director of any facilities,” including “any executive director's failure to meet or adhere to [Brookdale's] Service Alignment labor benchmarks.” (Id. at 41.) Plaintiffs clarify that the materials sought are limited to those from the sampling of facilities in North Carolina and Florida previously discussed, which they allege will support a finding of commonality for the putative classes by demonstrating the “centralized control” Brookdale's corporate executives exert to ensure that staffing needs at each facility follow certain “predetermined labor benchmarks.” (Docket No. 188 at 25.)

Brookdale has agreed to provide electronically-stored performance evaluations for its executive directors for the sampled facilities but has opposed production of the Corrective Action Plans, which are accessible only in hardcopy form in employee personnel files and would thus entail review of “hundreds (if not thousands) of individual employee files.” (Id. at 28.) Brookdale's opposition to production is primarily based on the burden of gathering such information, which it alleges is cumulative and will not reveal relevant class discovery.

*7 While permitting this inquiry unquestionably imposes some burden on Brookdale, the Court does not find that such burden outweighs the potential benefit of the information sought. The operative complaint alleges that the putative class members' claims are all the result of “uniform corporate policies, procedures, [and] practices” implemented at each of Brookdale's facilities (Docket No. 1 at ¶ 134), and it is possible that disclosure of the documents at issue would support a finding of typicality. The Court will therefore again allow Plaintiffs to manually probe the pertinent personnel files for the requested information but will condition this ruling on counsel for Plaintiffs' expressed willingness to minimize Brookdale's involvement in the process to the greatest extent possible. Because the parties have, by all accounts, consistently engaged in good faith discovery practices, the Court is confident that the attorneys can reach a reasonable agreement regarding Plaintiffs' review. Nonetheless, the Court admonishes Plaintiffs to take special care to avoid abusing the accommodating efforts Brookdale has made to date.

5. Service Alignment Materials

This category involves several RFPs pertaining to a staffing algorithm—referred to as the “Service Alignment Software”—that, according to Plaintiff, Brookdale utilized to deliberately underestimate the staffing needs of its facilities. In RFP No. 5, Plaintiff asks Brookdale to produce “documents sufficient to show, identify, [and] describe the assumptions made during each Class Period when developing staffing schedules with respect to the time it would take to perform each task to be undertaken as part of such schedules.” (Docket No. 188-2 at 10.) In RFP Nos. 26-30, Plaintiff requests a variety of information that includes: documents “sufficient to show the data dictionaries, field codes, source codes, reporting capabilities, operating platforms, algorithms, and functional capabilities of those algorithms for the Service Alignment Software”; documents “sufficient to show how [Brookdale's] Personal Service System software has communicated, integrated and/or interfaced with [Brookdale's] Service Alignment staffing software during each Class Period”; documents involving the “development, implementation, modification and/or application of the algorithm(s) utilized by the Service Alignment Software”; documents covering any calculations made by Brookdale “regarding the actual or estimated time required to perform any promised service”; and documents “that identify, describe or concern the assumptions made during each Class Period in developing any staffing assignment plans” in Brookdale's North Carolina and Florida facilities. (Docket No. 188-2 at 10, 25-28.) Plaintiff asserts that such information is critical to both “refining the class definition and class period” and demonstrating that liability and damages “can be proven on a class-wide basis.” (Docket No. 188 at 32.)

Brookdale opposes such production on multiple grounds. First, Brookdale asserts that the information sought, which includes proprietary source code and algorithms underlying the Service Alignment Software, is at the core of the claims articulated in the operative complaint and therefore exceeds the narrow parameters of class discovery. Second, Brookdale notes that it has already produced information responsive to the RFPs in question, including documents showing actual hours worked by personnel, staffing benchmarks, and any differences between these groupings for each of the sampled facilities. Additionally, Brookdale emphasizes the burden imposed by the production of the Service Alignment Software, which has never been produced in any prior litigation or arbitration. Brookdale further notes that discovery of the proprietary information at issue by Plaintiffs or any expert they retain as part of this litigation could irreparably damage Brookdale's business.

The Court largely agrees with Brookdale's assertions. The operative complaint accuses Brookdale of using the Service Alignment Software to “systematically underestimate[ ] the staffing needs at each facility by ... deliberately embedding false and inaccurate assumptions” regarding the time required for various services to “meet corporate profit objectives[.]”. (Docket No. 1 at ¶¶ 17-18.) The Service Alignment Software is at the center of Plaintiffs' claim that Brookdale willfully understaffed its facilities by utilizing a “fundamentally flawed and automated process” that caused harm to its residents. (Id. at ¶ 39.) The documents Plaintiffs seek by way of the RFPs at issue thus appear to strike squarely at the heart of the claims underpinning this lawsuit. Plaintiffs do not provide a meaningful explanation of how the software information it seeks avoids inquiry into the merits of the complaint, instead describing generally the information's impact on “crafting a class definition that takes into consideration changes that have occurred over time.” (Docket No. 188 at 31.) It is not clear, however, why the documents provided to Plaintiffs to date—as described by counsel for Brookdale during the discovery conference—are insufficient to determine whether there is commonality among the staffing levels generated by the software for the North Carolina and Florida facilities. Plaintiffs also point to “time studies” that Brookdale produced as part of a separate class action filed in California (Docket No. 188 at 31; Docket No. 188-5 at 12), but there appears to be no dispute that such information—described as time “spreadsheets”—was part of merits-based discovery, which only further bolsters Brookdale's argument that such information is not appropriately disclosed during precertification discovery. See Kilbourne v. Coca-Cola Co., No. 14CV984 MMA (BGS), 2015 WL 10943827, at *6 (S.D. Cal. Apr. 24, 2015) (“Plaintiff has failed to show how the additional, merits-based discovery he seeks is necessary to further this argument for class certification, not for trial.”) (emphasis in original).

*8 The Court also relies on the affidavit provided by Brookdale's Executive Vice President of Community Operations, Kevin Bowman, who declares that Brookdale “has no ability to provide an outsider with access to the Software as a standalone application,” and would thus be required to “recreate the system in its entirety.” (Docket No. 188-9 at ¶¶ 6-7.) In addition to the substantial burden that such production would generate, Mr. Bowman emphasizes that Brookdale has never been required to produce underlying algorithms and source codes as part of any litigation. (Id. at ¶ 4.) Notwithstanding counsel for Plaintiffs' protests regarding the sufficiency of Mr. Bowman's affidavit, the Court finds that, at least with respect to class discovery, the averments support Brookdale's contention that producing the information at issue would be unduly burdensome.

Finally, although the protective order governing discovery in this matter acknowledges the sensitive nature of the Service Alignment Software (Docket No. 184 at ¶ 4), the Court shares Brookdale's apprehension about the potential disclosure of trade secrets before a class has even been certified. The gravity of the issue was appropriately highlighted by the presiding magistrate judge in the Runton case, who, as part of an order denying a similar request for Service Alignment Materials, noted that “[a]lthough the Undersigned is not necessarily concluding that Brookdale could never be compelled to produce the trade secrets component of the [Software Alignment] Materials, I find it significant that Brookdale has never produced the information in any type of matter.” (Docket No. 188-6 at 18.) For all these reasons, the Court will deny Plaintiffs' request for the information sought in RFP Nos. 5 and 26-30 prior to any ruling on a motion to certify the putative classes.

Based on the foregoing discussion, the Court will require Brookdale to produce the documents at issue in RFP Nos. 13 and 14, subject to any applicable objections not addressed in this order. However, the Court will deny Plaintiffs' request to compel Brookdale to produce the information sought in RFP Nos. 5 and 26-30.

It is SO ORDERED.