Tavakolian v. Great Am. Life Ins. Co.
Tavakolian v. Great Am. Life Ins. Co.
2022 WL 18932838 (C.D. Cal. 2022)
October 11, 2022
Kewalramani, Shashi H., United States Magistrate Judge
Summary
The court granted the plaintiff's motion to compel and ordered the defendant to produce contact information related to life insurance policies issued or delivered in California that were in force on or after January 1, 2013 and lapsed for nonpayment of premium. The court found that the information sought was relevant to the plaintiff's claims and the defendant's defenses, and that the protective order in place was sufficient to protect the putative class members' privacy interests.
Hamid R. Tavakolian
v.
Great American Life Insurance Company
v.
Great American Life Insurance Company
Case No.5:20-cv-01133-SPG-SHK
United States District Court, C.D. California
Filed October 11, 2022
Kewalramani, Shashi H., United States Magistrate Judge
Proceedings (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORY NOS. 17, 19, 20, AND 21 AND REQUEST FOR PRODUCTION NO. 34 [ECF NO. 63]
*1 On July 29, 2022, Hamid R. Tavakolian (“Plaintiff”) filed a Motion to Compel Further Responses to Interrogatory Nos. 17, 19, 20, and 21 [(the “Interrogatories”)] and Request for Production [(“RFP”)] No. 34 (“Motion to Compel” or “Mot. to Compel”) seeking information related to the putative class members in this case. Electronic Case Filing Number (“ECF No.”) 63, Mot. to Compel. On August 12, 2022, Great American Life Insurance Company (“Defendant” or “GALIC”) filed an Opposition to Plaintiff's Motion to Compel (“Opposition to the Motion to Compel” or “Opp'n”). ECF No. 64, Opp'n. On August 18, 2022, Plaintiff filed a Reply in Support of the Motion to Compel (“Reply”). ECF No. 65, Reply.
After reviewing the parties' arguments, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Compel and Defendant is ordered to provide the contact information sought in the Interrogatories related to the policies that Defendant has agreed to produce in response to RFP No. 34 by no later than 21 days after the issuance of this Order or as otherwise agreed to by the parties.
I. BACKGROUND
A. Procedural History
On June 2, 2020, Plaintiff filed a complaint (“Complaint” or “Compl.”) on behalf of himself and a putative class of owners and beneficiaries of life insurance policies sold by Defendant, alleging that Defendant systematically violated §§ 10113.71 and 10113.72 of the California Insurance Code (the “Statutes”) and seeking injunctive relief, declaratory relief, and damages. ECF No. 1, Compl. at 2, 4. “Plaintiff asserts five putative class claims against GALIC: (1) declaratory relief or judgment under California Civil Code § 1060; (2) declaratory relief or judgment under 28 U.S.C. § 2201; (3) breach of contract; (4) unfair competition; and (5) financial elder abuse. (Complaint.) GALIC filed its Answer on July 31, 2020. (Dkt. No. 13.).” ECF No. 47, Order Denying Def.'s Mot. for Judg. On the Pleadings at 1. On July 31, 2020, Defendant filed an Answer to the Class Action Complaint (“Answer”), in which Defendant, inter alia, denied that it had violated “any statute, regulation, law, or insurance policy provision,” denied that the Statutes applied to the allegations within the Complaint, and denied that the Statutes applied to Plaintiff's term life insurance policy. ECF No. 13, Answer at 1-2.
On September 18, 2020, Defendant filed a Motion to Stay the Case (“Motion to Stay” or “Mot. to Stay”) pending a decision in one of three other appellate cases that Defendant argued raised the same issues as the present action, ECF No. 16, Mot. to Stay at 2, which the Court granted on October 16, 2020, ECF No. 26. On November 23, 2021, Plaintiff filed a Motion to Lift Stay of Case (“Motion to Lift” or “Mot. to Lift”) because decisions were reached in two of the cases Defendant relied upon in its Motion to Stay, ECF No. 32, Mot. to Lift at 2, which the Court granted on December 28, 2021, finding that “[c]lass-wide discovery in the matter may proceed,” ECF No. 37, Order Granting Mot. to Lift at 3. On April 7, 2022, the Court issued an order denying Defendant's Motion for Judgment on the Pleadings, ECF No. 47, and the same day, the Court entered a Stipulation and Protective Order (“Protective Order”) to allow for the protection of certain materials that may be produced during discovery, ECF No. 48, Protective Order at 2.
*2 A discovery hearing was held on July 19, 2022, at which the Court granted the parties' request to brief issues pertaining to the production of information sought in the Interrogatories and RFP No. 34. ECF No. 59, Minutes of Discovery Hearing at 1. On July 29, 2022, Plaintiff filed the Motion to Compel. ECF No. 63, Mot. to Compel. On August 12, 2022, Defendant filed its Opposition to the Motion to Compel, ECF No. 64, Opp'n, and on August 18, 2022, Plaintiff filed its Reply. ECF No. 65, Reply. On September 9, 2022, the parties submitted their second Joint Rule 26(f) Report (“Joint Report”) setting out their respective positions on legal issues, discovery matters, and damages, and providing, inter alia, lists of key documents and witnesses. ECF No. 66, Joint Report at 5-10. Finally, on September 15, 2022, the Court issued a Schedule of Pretrial and Trial Dates (“Schedule”), setting, inter alia, June 7, 2023 as the fact discovery cut-off date and July 26, 2023 as the last date to hear motions. ECF No. 70, Schedule at 1.
B. The Propounded Discovery and Responses
1. Interrogatories Nos. 17, 19, 20, and 21 and Definitions
LIFE INSURANCE POLICY, LIFE INSURANCE POLICIES, POLICY, and POLICIES mean any life insurance policy or policies or certificate of insurance sold, issued, delivered, reinstated, renewed, administered in/from, and/or converted in California, and which were in force at any point on or after January 1, 2013. This definition includes policies for which YOU had a California address for the policy owner, or for which YOU received premiums from an address in California. To avoid doubt, this definition is meant to be construed in the broadest possible sense and includes, among others, all life insurance policies and certificates of insurance, both individual and group, for which YOU were responsible at any point on or after January 1, 2013, even if you are not responsible for them today, and/or if YOU may not have originally sold, issued, or delivered them.
ECF No. 63-3, Mot. to Compel, Exh. A at 3.
INTERROGATORY NO. 17:
Please identify, by POLICY owner name, address, phone number, email address, POLICY number, POLICY type (i.e., group versus individual), all CLASS MEMBERS, including beneficiaries for POLICIES where the insured has died. This information should be provided in electronic format and specifically, in .CSV, .XLS, or other format fully accessible by Microsoft Excel®.
RESPONSE TO INTERROGATORY NO. 17:
Responding Party objects to this Interrogatory on the grounds that the information sought is not within the scope of Federal Rule of Civil Procedure 26(b)(1) because it is not relevant to any party's claim or defense and is not proportional to the needs of the case. Responding Party further objects to this request on the ground that it seeks the identity and confidential personal information of individuals who are not parties to this lawsuit who have a reasonable expectation of privacy in their personal affairs.
INTERROGATORY NO. 19:
For each POLICY identified in response to Interrogatory No. 17, identify any POLICIES, where YOU have notice or belief that the insured is deceased, including, but not limited to, any insureds identified in the Death Master File, and the date on which the insured died.
RESPONSE TO INTERROGATORY NO. 19:
Responding Party incorporates its response to No. 17, above, herein in full.
INTERROGATORY NO. 20:
For each POLICY identified in response to Interrogatory No. 19, identify and provide all contact information for the named beneficiary or beneficiaries under the POLICY, whether and when the POLICY owner previously requested reinstatement of the POLICY, and whether and when a claim for benefits was made and/or rejected.
RESPONSE TO INTERROGATORY NO. 20:
Responding Party incorporates by reference its response to Interrogatory No. 17, above.
INTERROGATORY NO. 21:
For each POLICY identified in response to Interrogatory No. 19, identify the total face amount of the benefits for those insurance POLICIES.
RESPONSE TO INTERROGATORY NO. 21:
*3 Responding Party incorporates by reference its response to Interrogatory No. 17, above.
ECF No. 63-4, Mot. to Compel, Exh. B at 2-4.
2. RFP No. 34
REQUEST FOR PRODUCTION NO. 34:
Please produce YOUR data or ESI, disclosing, for every life insurance policy issued or delivered in California which lapsed at any time on or after Jan. 1, 2013 for nonpayment of premium, the following categories, columns, or data points: policy number, administrative system, policy type, product name or code, issue date, current policy status, date of policy lapse/termination, issue state, reinstatement date, owner contact information (name, mailing address, phone number, email address), beneficiary contact information (name, mailing address, phone number, email address), policy benefit amount, and date of death of the insured, if applicable. This data or ESI should be produced in the form of an electronic spreadsheet or .CSV file capable of being read, sorted, or filtered using Microsoft Excel.
RESPONSE TO REQUEST FOR PRODUCTION NO. 34:
Responding Party objects to this Request as improper under Rule 34 to the extent it purports to require that Responding Party create a document (i.e. an electronic spreadsheet or .CSV file) that does not exist. Responding Party further objects to this Request as overbroad and unduly burdensome because it is not reasonably tailored in scope or time and would require Responding Party to search for and produce over a dozen different data points/information regarding life insurance policies which have no relevance to Plaintiff's individual claims in this case, or the class certification requirements under Rule 23 of the Federal Rules of Civil Procedure. Specifically, the Request is overbroad in scope and time because it encompasses all life insurance policies in force on or after January 1, 2013, including policies (i) that have never lapsed for nonpayment of premium; (ii) lapsed or terminated for nonpayment of premium and were subsequently reinstated; and (iii) policies that were voluntarily cancelled/surrendered/replaced/terminated by the policy owner. These policies are not within Plaintiff's purported class definition, and also have no bearing on any claim or defense relating to the life insurance policy forming the basis of Plaintiff's individual causes of action in this case. The burden, time, and expense associated with identifying, gathering, and producing information relating to policies which have no relevance to the issues in this case far outweigh any benefit said information would provide considering the issues and needs of this case.
Additionally, the Request is unduly burdensome because it would require Responding Party to search for, compile, and create a spreadsheet of data or “ESI”—which is not defined—from various sources, and/or information that is not reasonably accessible to Responding Party via an electronic query/ESI. Specifically, Responding Party does not have the ability/mechanism to electronically search for, sort, or filter (i) the lapse date for policies that were subsequently reinstated; (ii) the earlier lapse and reinstatement date(s) for policies that lapsed and were reinstated on multiple occasions; (iii) beneficiary names for some policies (to the extent Responding Party received this information); and (iv) the email addresses and phone numbers of policy owners and beneficiaries (to the extent Responding Party received this information). Rather, Responding Party's search for this information would require a manual, file-by-file review of each policy file. The burden, time, and expense that would be associated with a manual, file-by-file search for this information in each policy file far outweighs any benefit this information will provide in discovery.
*4 Responding Party further objects to this Request as overly broad and not reasonably tailored in scope because it seeks information regarding (i) the name, mailing address, phone number, and email address of each policy owner for all policies that lapsed or terminated after January 1, 2013; (ii) the name, mailing address, phone number, and email address of each beneficiary under all policies issued after January 1, 2013 (including beneficiaries under policies that lapsed for nonpayment of premium and the named insured under the policy is still living); and (iii) the date each policy was reinstated (if applicable). This information has no relevance to any claim or defense relating to Plaintiff's individual causes of action in this litigation, or to the class certification requirements of Rule 23. Responding Party also objects to producing the name and contact information of the policy owners and beneficiaries because the production of this information would implicate the privacy rights of individuals who are not parties to this litigation. Similarly, Responding Party objects to producing the name and contact information of policy owners and beneficiaries absent assurances from Plaintiff's counsel that any such information would be maintained in a manner that satisfies commercially reasonable data security requirements.
Responding Party also objects to this Request to the extent it seeks documents protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. Responding Party further objects to this Request to the extent it seeks data or ESI that is not in Responding Party's possession, custody, or control.
Subject to and without waiving the foregoing objections, Responding Party agrees to produce an Excel spreadsheet with the following information for the life insurance policies issued or delivered in California that were in force on or after January 1, 2013 and lapsed for nonpayment of premium: (i) policy number; (ii) policy type; (iii) product name or code; (iv) issue date; (v) current policy status; (vi) effective date of lapse/termination; (vii) issue state; (viii) reinstatement date; and (ix) policy benefit amount.
ECF No. 63-6, Mot. to Compel, Exh. D at 3-7 (emphasis in original).
C. Parties' Arguments
1. Plaintiff's Motion to Compel
Plaintiff claims that Defendant “wrongfully terminated numerous life insurance policies,” including Plaintiff's, “without first complying” with certain “minimum notices and grace periods before an insurer can lapse a policy for nonpayment of premium” under the Statutes. ECF No. 63-1, Pl. Memo. at 2. Plaintiff contends that Defendant should be “compelled to provide witness and class member data” related to “12,200 life insurance policies that ... must be reinstated and/or upon which benefits must be paid.” Id. at 2-3. Plaintiff defines the proposed class as:
All past, present, and future owners or beneficiaries of Defendant's life insurance policies in force on or after January 1, 2013 and governed by [the Statutes], where the policies underwent or will undergo lapse, termination, and/or reinstatement without Defendant first providing written notice of and an actual 60-day grace period, a 30-day notice of pending lapse and termination, and/or an annual notice of a right to designate at least one other person to receive notice of lapse or termination of a policy for nonpayment of premium.
Id. at 3-4.
Plaintiff argues that the Interrogatories seek “important and relevant class member information.” Id. at 4. Specifically, No. 17 seeks a list of “policies that Defendant lapsed for nonpayment in or after 2013 without compliant notices and grace periods” with contact information for such policy owners; No. 19 requests “identification of those policies where the insured has died”; No. 20 requests “identity and contact information for any beneficiaries of policies where the insured has died”; and No. 21 requests “the face amounts of policies where an insured has died.” Id. RFP No. 34 seeks an “electronic spreadsheet of class data or ESI, which overlaps with the information sought” in the Interrogatories. Id. at 5. Plaintiff asserts that after months of meet-and-confer efforts, a dispute remains because Defendant will not provide the requested names and contact information of policy owners and beneficiaries. Id.
*5 Plaintiff argues that the contact information sought is “relevant and proportional to the needs of the case” under Federal Rule of Civil Procedure (“Rule”) 26(b). Id. at 5-6. Plaintiff provides numerous cases from California District Courts in which discovery related to the contact information of putative class members was allowed. Id. at 6-8. Further, Plaintiff cites “cases against Defendant's competitors” in which courts compelled responses to interrogatories identical to those at issue in this case. Id. at 7 (citing, e.g., Pitt v. Metro. Tower Life Ins. Co., No. 20-CV-00694-BAS (DEB), 2021 WL 2453188, at *4 (S.D. Cal. June 16, 2021); Kelley v Colonial Penn Life Ins. Co., No. 20-cv-3348-FLA, ECF 46, at 2 (C.D. Cal. May 19, 2022)).
In the present case, Plaintiff argues class member information will directly assist the class certification analysis and provide witnesses who may be able to “confirm or deny Plaintiff's allegations and Defendant's defenses.” Id. at 8-9. Plaintiff also notes that the Protective Order has been issued in this case and cites Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011), in which the court found the privacy interests in putative class members' contact information were not particularly sensitive and could be sufficiently safeguarded by a protective order. Id. at 9.
As for proportionality, Plaintiff maintains (1) that Defendant's automated systems are easily capable of running the queries relevant to the Interrogatories and RFP No. 34 and Defendant has already identified the potentially affected policies and all related contact information; and (2) that Defendant has not met its burden under Rule 26(b)(1) to show that the effort of producing the materials in question would be disproportionate to the needs of the case because, inter alia, Defendant has not quantified any purported burden, the documents are highly important to the issues at stake, and Defendant has exclusive possession of the requested information. Id. at 10-11.
2. Defendant's Opposition
In the Opposition to the Motion to Compel, Defendant argues that “Plaintiff's requests are facially improper and not proportional to the needs in this case.” ECF No. 64, Opp'n at 2. First, Defendant argues that Plaintiff's request to compel further responses to Interrogatory Nos. 19 and 21 is moot because (1) although Defendant has not yet provided the information requested in No. 19, “it is not objecting to doing so and is working diligently to obtain, review, and produce” it; and (2) Defendant has already produced a spreadsheet to Plaintiff that includes the information sought by No. 21. Id. at 2-3.
Second, Defendant argues that the cases cited in the Motion to Compel do not support Plaintiff's arguments or are distinguishable from the present case. Id. at 3. Defendant states that it has already produced a spreadsheet identifying the responsive policies, including “the policy number, issue state, issue date, line of business, description of the product/policy, the death benefit amount, and (if applicable) the date a policy was reinstated or restored following termination.” Id. Defendant asserts that Plaintiff improperly cited a case that addresses discovery under the California Code of Civil Procedure, and that Plaintiff has not made a “prima facie showing that the class action requirements of Rule 23 are satisfied.” Id. at 3-4.
Defendant further argues that at this stage of the litigation, “before any class has been certified,” Plaintiff does not need to know the putative class members contact information. Id. at 6. Defendant cites to two recent cases in which California District Courts “sustained objections to similar interrogatories served by parties represented by Plaintiff's counsel.” Id. (citing orders in Moreland v. Prudential Ins. Co. of America, Case No. 20-cv-04336-RS (SK), Dkt. No. 49 (N.D. Cal. July 13, 2022) and Small v. Allianz Life Ins. Co of North America, Case No. 2:20-cv-01944-TJH-KES, Dkt. 77 (C.D. Cal. July 13, 2022)). Defendant also argues that the Court should refuse to compel production of the contact information because Plaintiff will not actually contact the putative class members based on arguments made by Plaintiff's counsel in similar cases against other insurance companies that an “individualized inquiry was unnecessary and improper for class certification.” Id. at 7-8 (emphasis in original).
*6 Finally, Defendant states that Plaintiff's requests for the contact information of “thousands of individuals” are not proportional to the needs in this case.” Id. at 8. Defendant also claims that Plaintiff's counsel is seeking the contact information to find someone who, unlike Plaintiff himself, “can serve as an adequate class representative,” because Plaintiff's claims are “not typical of the putative class he seeks to represent.” Id. at 9-10. Defendant cites to In re Williams-Sonoma, 974 F.3d 535, 540 (9th Cir. 2020) for the proposition that a “putative class plaintiff cannot use precertification discovery for the primary purpose of finding a replacement class representative.” Id. at 9.
3. Plaintiff's Reply
In his Reply, Plaintiff argues that “Defendant never addresses, and thus concedes,” that the putative class contact information is relevant to this litigation and to Defendant's “defenses to class certification.” ECF No. 65, Reply at 2. Plaintiff also states that there is “no requirement that discovery sought be admissible or used in later dispositive motions or trial,” as the “potential for its use or its ability to lead to other discoverable information” is sufficient.” Id. (citing Rule 26(b); Ragge v. MCA/Universal, 165 F.R.D. 601, 603-04 (C.D. Cal. 1995)).
Regarding the prima facie showing of class allegations entitling Plaintiff to class-based discovery, Plaintiff points out that the Court has already found that “ ‘discovery beyond Defendant's proposed limitation is necessary for Plaintiff to pursue class certification, and ... [c]lass-wide discovery in the matter may proceed.’ ” Id. at 3 (quoting ECF No. 37, Order Granting Mot. to Lift at 3). At this point, Plaintiff avers, at issue is relevant class contact information that Defendant is keeping for its exclusive use. Id.
Plaintiff argues that to the extent Defendant suggests Plaintiff's counsel must show how Plaintiff intends to use the information sought, such disclosure would violate the attorney work product privilege. Id. at 4. Plaintiff also points out that Defendant does not dispute that it possesses the requested contact information, it “just refuses to provide that particular data.” Id. at 5. Further, Defendant has failed to make any specific arguments as to what effort would be required to produce the information and why such effort would be disproportional to the needs of the case. Id.
II. DISCUSSION
A. General Legal Standards Regarding Discovery
Rule 26(b)(1) governs the scope of permissible discovery and provides:
Unless otherwise limited by court order, the scope of discovery is as follows: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Relevancy, for purposes of discovery, “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Nguyen v. Lotus by Johnny Dung Inc., No. 8:17-cv-01317-JVS-JDE, 2019 WL 3064479, at *1 (C.D. Cal. June 5, 2019) (internal citations and quotation marks omitted). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (internal citations and quotation marks omitted).
*7 Because discovery must be both relevant and proportional, the right to discovery, even plainly relevant discovery, is not limitless. See Fed. R. Civ. P. 26(b)(1); Nguyen, 2019 WL 3064479, at *1. Discovery may be denied where: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). The party opposing discovery then has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 WL 1390794, at * 1 (S.D. Cal. May 14, 2009). “The party opposing discovery is ‘required to carry a heavy burden of showing’ why discovery should be denied.” Reece v. Basi, No. 2:11-CV-2712 TLN (AC), 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014), aff'd, 704 F. App'x 685 (9th Cir. 2017) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
“The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” United States ex rel. Brown v. Celgene Corp., No. CV 10-3165 GHK (SS), 2015 WL 12731923, at *2 (C.D. Cal. July 24, 2015) (internal citations and quotation marks omitted).
B. Legal Standards Regarding Class Action Discovery
Rule 23 governs class actions and requires that the following factors be met for a class to exist:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). “The propriety of a class action cannot be determined in some cases without discovery, as for example, where discovery is necessary to determine the existence of a class or set of subclasses.” Kamm v. Cal. City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975). “To deny discovery in a case of that nature would be an abuse of discretion.” Id. However, “[w]here the necessary factual issues may be resolved without discovery, it is not required.” Id. “In determining whether to grant discovery the court must consider its need, the time required, and the probability of discovery resolving any factual issue necessary for the determination.” Id.
In order to present evidence as to whether a class action is maintainable in most cases requires “enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). The plaintiff bears the burden either of advancing a prima facie showing that the class action requirements of Rule 23 are satisfied, or that discovery is likely to produce persuasive information substantiating the class allegations. Id.; Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.), as amended (1985). Absent such a showing, a trial court's refusal to allow class discovery is not an abuse of discretion. Doninger, 564 F.2d at 1313.
*8 Although there is a split among courts across the country in permitting discovery of contact information of putative class members, Putnam v. Eli Lilly and Co., 508 F.Supp.2d 812, 813 (C.D. Cal. 2007), “the Ninth Circuit has favored allowing class contact discovery unless it is apparent that Plaintiff cannot maintain the action on behalf of the class[,]” Perez v. DirecTV Grp. Holdings, LLC, No. SA CV 16-01440-JLS (DFMx), 2020 WL 3124353, at *2 (C.D. Cal. May 14, 2020) (quotations and citations omitted).
C. Analysis
Aside from the names and contact information, the discovery requests at issue arguably seek information regarding policies that are not included within the scope of policies for which Defendant has agreed to provide information. See ECF No. 63-6, Mot. to Compel, Exh. D at 7 (Response to RFP. No. 34 where Defendant is agreeing to provide certain information related to “life insurance policies issued or delivered in California that were in force on or after January 1, 2013 and lapsed for nonpayment of premium”); ECF No. 63-3, Mot. to Compel, Exh. A at 3 (defining “POLICY” to include “any life insurance policy or policies or certificate of insurance sold, issued, delivered, reinstated, renewed, administered in/from, and/or converted in California, and which were in force at any point on or after January 1, 2013”). Plaintiff's briefing, however, focuses on the name and contact information related to the policies that Defendant has agreed to produce. Therefore, the Court will also focus its analysis on the names and contact information.
As for whether Plaintiff has established a prima facie showing that the class action requirements of Rule 23 are satisfied to warrant class-wide discovery, the District Judge ordered that “[c]lass wide discovery in this matter may proceed.” ECF No. 37, Order Granting Mot. to Lift at 3. It was relevant to the Magistrate Judge that this order was granted despite Defendant's request to limit discovery to “Plaintiff's claims and Defendant's defenses to those claims.” ECF No. 33, Def.'s Mem. of Pts. and Auth. in Opp'n to Pl.'s Mot. to Lift the Discovery Stay at 3.
Turning next to the contact information sought by Plaintiff, “the Ninth Circuit has favored allowing class contact discovery unless it is apparent that Plaintiff cannot maintain the action on behalf of the class.” Perez, 2020 WL 3124353, at *2 (quotations and citations omitted); Trujillo v. Chef's Warehouse W. Coast LLC, No. 2:19-CV-08370 DSF (MAAx), 2020 WL 7315346, at *19 (C.D. Cal. Oct. 19, 2020) (collecting cases); Wellens v. Daiichi Sankyo Inc, No. C-13-00581-WHO (DMR), 2014 WL 969692, at *2 (N.D. Cal. Mar. 5, 2014) (noting the importance of permitting class counsel in Rule 23 actions to communicate with potential class members, even prior to certification); Coleman v. Jenny Craig, Inc., No. 11-CV-1301-MMA DHB, 2013 WL 2896884, at *7 (S.D. Cal. June 12, 2013) (collecting cases).
With respect to the relevancy of the information here, the Court is cognizant of Defendant's argument that this information is unnecessary because Plaintiff's counsel has taken the position in other similar cases that the individualized information from the individuals is not relevant to class certification. However, the scope of appropriate discovery includes material relevant to “any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). As Plaintiff explains, discovery of basic policy details and the putative class members' contact information may provide material relevant both (1) to confirming or denying Plaintiff's allegations and (2) to overcoming Defendant's arguments against class certification. ECF No. 63-1, Pl. Memo. at 8-9. Plaintiff correctly points out that Defendant has, in fact, already alleged that class certification is not appropriate here because Plaintiff's claims are not typical of the putative class and that the putative class lacks common questions of law and fact. Id. at 4 (citing ECF No. 13, Answer at 36). Moreover, there is no indication that Defendant has stated it will not contact individuals in an effort to oppose class certification, such that Plaintiff would be at a disadvantage to rebut such a defense. Therefore, class contact information is relevant and Defendant has not carried its burden to show why denying this discovery is appropriate. See Reece, 2014 WL 2565986, at *2 (quoting Blankenship, 519 F.2d at 429).
*9 Because it does appear the information is relevant, the Court must determine whether the effort needed to produce this information is disproportionate to the needs of the case. In this regard, assertions that the discovery requests are “disproportionate to Plaintiff's ... need for the information,” see ECF No. 64, Opp'n at 5, made without supporting evidence, are unpersuasive. Defendant has failed, for example, to describe the time that would be required to gather the requested information, or to estimate the cost of such efforts. Consequently, these objections are not compelling. See A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“[G]eneral or boilerplate objections such as ‘overly burdensome and harassing' are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.”)
As for the privacy interests of these putative class members, there is a protective order in place that is sufficient to protect the putative class members' information. See, e.g., Razo v. AT&T Mobility Servs., LLC, No. 1:20-CV-172-NONE-HBK, 2021 WL 5989753, at *4 (E.D. Cal. Dec. 17, 2021) (“[D]iscovery of putative class members' contact information is routinely allowed.”); Artis, 276 F.R.D. at 352 (“The disclosure of names, addresses, and telephone numbers is a common practice in the class action context.”). Moreover, Defendant has not indicated how the Protective Order is insufficient to protect the putative class members' privacy interests in their contact information.
Regarding Defendant's argument that Plaintiff is seeking this information for an improper purpose, i.e. to search for a new class representative to allow the case to proceed, the Court cannot conclude that Plaintiff is an inadequate class representative. See ECF No. 64, Opp'n at 9 (arguing that Plaintiff's counsel has an improper purpose for seeking the putative class members' contact information—to find someone who can, unlike Plaintiff, “serve as an adequate class representative”). Specifically, the only information that Defendant points to is that Plaintiff's life insurance policy was eventually reinstated. Id. at 10. This, without more, is not enough to show the Magistrate Judge why Plaintiff is an obviously inadequate class representative and there has been no finding in this case to that effect. Consequently, Defendant's attempt to analogize this situation to Williams-Sonoma is not persuasive because Williams-Sonoma dealt with a situation where “the primary point [of] using discovery [was] to find a client to be the named plaintiff before a class action is certified.” 947 F.3d at 540.
Finally, there are two other cases that have arrived at different results regarding this same type of discovery in almost the exact situation presented here, Small v. Allianz Life Ins. Co of North America, Case No. 2:20-cv-01944-TJH-KES, ECF No. 77 (C.D. Cal. July 13, 2022) (“Small”) and Moreland v. Prudential Ins. Co. of America, Case No. 20-cv-04336-RS (SK), Dkt. No. 49 at 1 (N.D. Cal. July 13, 2022) (“Moreland”).
In Small, which involves the same Plaintiff's counsel, the Magistrate Judge, after conducting a hearing, denied the exact requests for contact and policy information sought here. Specifically, the Magistrate Judge found that the claims in Plaintiff's complaint, similar to those raised here, improperly sought information related to policies issued after the effective date of the Statutes, January 1, 2013, because the allegations in the complaint “pertain to the application of the Statutes to pre-2013 policies.” Id. at 2. Therefore, “[a]llegations about errors in the way [the insurance company] implemented changes to its practices and procedures to comply with the Statutes as to policies issued after 2013 would present different claims and injuries than those being pursued by Plaintiff.” Id. Additionally, the Magistrate Judge found that the definition of the life insurance policies was too broad because it covered those not only “issued and delivered” in California, but also those administered in California, which was contrary to the plain language of the Statutes. Id. at 2-3. Further, the Magistrate Judge ruled that seeking this contact information pre-certification was not consistent with the theory of the case and would be deferred until after the a ruling on class certification. Id. at 3. Plaintiff's counsel has appealed this ruling and it is fully briefed for review by the District Judge. Small at ECF Nos. 78-80.
*10 Though there may very well be an issue related to the appropriate scope of the policies covered by the Statutes, the information that is being sought and ordered to be produced by this Order is limited to information regarding the policies that Defendant has already agreed to produce. Consequently, the scope of the appropriate policies was not raised here and the Magistrate Judge is not deciding that issue. Therefore, the basis on which the Magistrate Judge in Small denied the motion to compel for similar information is not applicable.
In Moreland, also involving the same Plaintiff's counsel, the Magistrate Judge denied a request for contact information in a similar case and held that “[d]efendant ha[d] already provided anonymized data about policyholders in the form of a 2,944-page spreadsheet showing the policy number, type, date, past premium paid, lapse date, and status of the insured. Under these circumstances, before class certification, discovery about the names and contact information about the putative class members is not appropriate.” The Magistrate Judge further stated that “Plaintiff argue[d] that the information he seeks is relevant to the ... issues [of commonality, typicality, ascertainability, and reliance], but he provide[d] no explanation why the information that [Prudential Ins. Co. of America] ha[d] already provided is insufficient.” The Magistrate Judge also cited to Williams-Sonoma, for the proposition that the Ninth Circuit “rejected the plaintiff's argument that contact information was relevant [to commonality, typicality, ascertainability, and reliance] and found instead that the plaintiff's attempt to find a potential class member did not justify disclosure.” Moreland at 2.
This Magistrate Judge believes that the Moreland court reads Williams-Sonoma too broadly. This is because Williams-Sonoma dealt with a discrete situation where a finding was made that the plaintiff's counsel was searching for a new class representative, based on the inadequacy of the then-named class representative. See Gamino v. KPC Healthcare Holdings, Inc. et al., No. 5:20-CV-01126-SB-SHK, 2021 WL 2309974, at *2 (C.D. Cal. June 2, 2021) (noting that defendant opposing the production of contact information of putative class members read Williams-Sonoma too broadly, because there, the “primary point” was to find a new lead plaintiff and the case “did not bar the production of class contact information for all purposes in all circumstances”). Here, as stated previously, there is no finding or sufficient briefing to conclude that the current named plaintiff is an inadequate class representative such that the request for contact information is for an improper purpose. Moreover, the Moreland court did not address any argument regarding the time, effort, and expense it would take to collect the contact information such that it could conclude it would be disproportionate to require collection of that information.
Finally, it should be noted that another case addressing these same discovery requests, Kelley v. Colonial Penn Life Ins. Co., Case No. 2:20-cv-3348-FLA(Ex), ECF No. 46 at 2 (C.D. Cal. May 19, 2022) (“Kelley”), found that the contact information related to the policies covered by the Statutes should be produced. In Kelley, again involving the same Plaintiff's counsel, the parties submitted a joint stipulation in which the defendant argued that it had “produced a spreadsheet containing information regarding [defendant's] life insurance policies to insures located in California that lapsed between January 1, 2013 and January 14, 2022, and which contains, amongst other information, (i) policy number, (ii) the issue date, (iii) the lapse date, (iv) the insured state, (v) the issue state, (vi) the amount of premiums paid, (vii) death benefit amounts, (viii) the type of policy, and (ix) dates and types of notices that were sent to policy owners.” Kelley, ECF No. 45 at 15. The defendants also provided another spreadsheet including “policies issued to insured located in California that were subject to a Non-Forfeiture Option (NFO) between January 1, 2013, and February 14, 2022.” Id. In the order, the Magistrate Judge found that even though the plaintiff may not have carried their burden to make a prima facie showing that the class action requirements were met, based on the “paucity of the factual record,” and exercising the court's discretion to permit pre-certification discovery, the contact information should be provided. Kelley, ECF No. No. 46 at 2. The order here is narrower as Plaintiff's briefing focuses on the names and contact information and does not address the other objections raised by Defendant.
III. CONCLUSION
*11 Thus, Plaintiff has demonstrated that he is entitled to the name and contact information sought related to the policies identified in Defendant's response to RFP No. 34. As such, Plaintiff's Motion to Compel is GRANTED in that respect, and DENIED in all other respects and Defendant is order to produce this information within 21 days of the issuance of this Order, or as otherwise agreed to by the parties..
IT IS SO ORDERED.