*1 Dear Counsel,

Currently pending before the Court is the parties’ joint discovery dispute letter dated November 27, 2023, filed with the Court pursuant to Local Civil Rules 16.1 and 37.1, in which Defendants Indegene, Inc., Indegene Encima, Inc., Indegene Wincere, Incorporated, and Indegene Healthcare, LLC (collectively, “Defendants”) informally seek the Court to compel Plaintiffs to produce documents related to the retainer agreement and fee arrangement between Plaintiff Progressive Health and Rehab Corp. (“Plaintiff”) and their attorneys (the “Informal Dispute”). (Dkt. No. 91). Having considered the parties’ written submissions and having discussed the matter with counsel during a December 20, 2023 telephone conference, for the reasons set forth below, and for good cause shown, the Court DENIES without prejudice Defendants’ Informal Dispute.

I. BACKGROUND

Plaintiff brings this matter on behalf of itself and a putative class, pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, (the “TCPA”) and the regulations promulgated thereunder, based on the allegation that Defendants sent unsolicited fax advertisements. (See generally Dkt. No. 1). The same day that Plaintiff filed its Complaint, it moved for class certification, (Dkt. No. 4), which this Court denied without prejudice as premature, (Dkt. No. 30). On March 30, 2021, the Court entered a Pretrial Scheduling Order, setting a schedule for pre-class certification discovery to proceed. (Dkt. No. 31). Notably, no class has yet been certified in this matter, and class discovery has not yet begun.

On November 27, 2023, the parties raised the instant informal discovery dispute regarding Defendants’ request for Plaintiff to produce the following:

(Dkt. No. 91 at p. 2). Following formal service of their Requests to Produce those documents, Plaintiff objected, arguing that the Requests sought confidential information protected against disclosure by the attorney-client privilege and the work product doctrine. (Dkt. No. 91 at p. 2). Subsequently, when raising the dispute with the Court, Plaintiff also asserted an objection based on the contention that the requests are not relevant, even when considering whether Plaintiff can meet the adequacy of representation requirement under Federal Rule of Civil Procedure 23. (See Dkt. No. 91 at pp. 4-5).

*2 Defendants counter that Plaintiff has not adequately established an applicable privilege precluding the production of the documents because Plaintiff only asserts privileges on a generalized basis without production of a privilege log. (Dkt. No. 91 at p. 2). As to Plaintiff's relevancy objection, Defendants contend that Plaintiff waived the objection by failing to timely raise it in its response to Defendants’ requests for production and asserting it for the first time in the parties’ joint discovery dispute letter to the Court. (Dkt. No. 91 at pp. 2-3). Nevertheless, Defendants assert that retainer agreements and other documents identifying the fee structure and scope of representation are relevant to class certification and thus properly discoverable here. (Dkt. No. 91 at p. 3).

II. LEGAL STANDARD

Generally, parties may seek discovery regarding any nonprivileged matter that is relevant to a party's claim or defense and that is “proportional to the needs of the case, considering ... the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The information need not be admissible at the trial. Id. Whether information is relevant “depends on the facts of each case, and the determination of relevance is within the discretion of the Court.” Carchietta v. Russo, Civ. No. 11-7587, 2014 WL 1789459, at *3 (D.N.J. May 6, 2014); see also Democratic National Comm. v. Repub. National Comm., Civ. No. 18-1215, 2019 WL 117555, at *2 (3d Cir. Jan. 7, 2019) (“The court may limit discovery to ensure its scope is proportional to the needs of the case[.]”).

In addition, the Court must limit discovery “if it determines that ... 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[.]” Fed. R. Civ. P. 26(b)(2)(C)(i). “While the scope of discovery is broad, it is not unlimited ... and should not serve as a fishing expedition.” Burgess v. Galloway, Civ. No. 20-6744, 2021 WL 2661290, at *2 (D.N.J. Jan. 28, 2021) (citation and internal quotation marks omitted). Ultimately, the resolution of the instant dispute lies within the Court's sound discretion. See Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999); Forrest v. Corzine, 757 F. Supp. 2d 473, 477 (D.N.J. 2010) (“Magistrate Judges are given wide discretion to manage cases and to limit discovery in appropriate circumstances.”).

III. DISCUSSION

As to Plaintiff's objection based on the attorney-client privilege and work product doctrine, the Third Circuit has found fee arrangements are not subject to the attorney-client privilege or the work product doctrine. See Montgomery Cnty. v. Microvote Corp., 175 F.3d 296, 304 (3d Cir. 1999). Accordingly, the Court overrules Plaintiff's objection to the production of the fee arrangement based on an applicable privilege at this stage.[1]

Next, the Court declines to find that Plaintiff waived its relevancy objection to the requests by asserting it for the first time with the Court. While Plaintiff should have raised the objection in its response to the requests, which would have permitted the parties an opportunity to meet and confer on the objection, there is no undue prejudice to Defendants by the Court's consideration of relevancy here. Indeed, a party seeking to compel discovery bears the burden of establishing relevancy, and the Court, as the gatekeeper of discovery, must determine relevancy in determining whether to compel such production. Accordingly, the Court considers Plaintiff's relevancy objection here.

*3 Defendants assert that the sought-after documents relate to the class certification analysis. However, this District has found that “[f]ee agreements are generally not discoverable unless the party seeking the discovery makes a preliminary showing of a relevant conflict or a prima facie challenge to the class representatives’ adequacy to act as a class representative.” In re Riddell Concussion Reduction Litig., Civ. No. 13-7585, 2016 WL 7325512, at *3 (D.N.J. Jan. 19, 2016); see also in re Front Loading Washing Mach. Class Action Litig., Civ. No. 08-51, 2010 WL 3025141, at *4 (D.N.J. July 29, 2010). In addition, a party seeking a fee arrangement or retainer agreement should first attempt to obtain information relating to a fee agreement through less intrusive means. See in re Front Loading, 2010 WL 3025141, at *4 (finding production of retainer agreements unwarranted because defendants could pursue fee information through depositions of individual plaintiffs); see also Fed. R. Civ. P. 26(b)(2)(C)(i).

Here, Defendants proffer that the retainer agreements “may be relevant to a plaintiff's ability to protect the interests of potential class members by adequately funding the suit, and to the question of awarding of attorneys’ fees upon settlement or judgment.” (Dkt. No. 91 at p. 4 (quoting Porter v. NationsCredit Consumer Disc. Co., Civ. No. 03-3768, 2004 WL 1753255, at *2 (E.D. Pa. July 8, 2004))). Defendants also contend that the agreements may be relevant to determining if there are any conflicts of interest. (See Dkt. No. 91 (relying upon Dixon v. Jefferson Capital Sys., LLC, Civ. No. 19-2457, 2021 WL 5908431, at *11 (S.D. Ind. Dec. 14, 2021), for the proposition that class counsel should have an “arm's-length relationship” with named plaintiffs to avoid potential conflicts of interest)). At this stage, the Court finds that Defendants have not made the threshold showing of a relevant conflict or challenge to the adequacy of class representation. Permitting “an unnecessary intrusion into the affairs of class counsel and the class representatives” must be based on “a good reason to believe the agreements contain relevant information.” In re Riddell, 2016 WL 7325512, at *3. Moreover, the majority of courts have found that, absent such good reason, fee agreements are not discoverable until after class certification. See, e.g., id. at *2 (citing cases). Accordingly, because Defendants have not proffered a sufficient basis at this stage to seek the sought-after documents and considering the stage of this matter, the Court denies without prejudice Defendants’ application to compel.

IV. CONCLUSION

For the reasons set forth above and good cause shown,

IT IS, THEREFORE, on this 29th day of January 2024 hereby

ORDERED that Defendants’ Informal Dispute, seeking to compel production of certain documents (Dkt. No. 91) is DENIED WITHOUT PREJUDICE; and it is further

ORDERED that the Clerk of Court is hereby directed to TERMINATE the motion pending at Docket Entry No. 91.

SO ORDERED.