R. Fellen, Inc. et al v. RehabCare Group, Inc. et al, No. 1:2014cv02081 - Document 97 (E.D. Cal. 2016)

Court Description: ORDER granting, in part, and denying, in part, plaintiff's Motion to Compel Defendant Cannon and Associates' Further Responses, document 84 . Order signed by Magistrate Judge Sandra M. Snyder on 2/5/2016. (Rooney, M)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 R. FELLEN, INC.; DAKOTA MEDICAL, INC., Plaintiffs, 10 v. 11 12 REHABCARE GROUP, INC.; CANNON & ASSOCIATES, LLC, 13 CASE NO. 1:14-CV-2081-MCE-SMS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO COMPEL DEFENDANT CANNON & ASSOCIATES’ FURTHER RESPONSES Doc. 84 Defendants. 14 15 Plaintiffs bring this case against Defendants for violations of the Telephone Consumer 16 Protection Act (47 U.S.C. § 227 and 47 C.F.R. § 64.1200) regarding Defendants allegedly sending 17 “junk faxes.” Plaintiff R. Fellen Inc. d/b/a Sunnyside Convalescent Hospital (“Plaintiff”) brings 18 this motion to compel Defendant Cannon & Associates, LLC d/b/a Polaris Group (“Defendant” or 19 “Polaris”) to provide further responses to its interrogatories. Doc. 84. The parties have submitted a 20 joint statement regarding the discovery dispute. Doc. 89. This matter is suitable for decision 21 without oral argument and is considered on the pleadings. Local Rule 230(g). 22 23 I. SUMMARY Plaintiff served interrogatories on Defendant, who, after two extensions and providing 24 exclusively objections, provided supplemental responses. Plaintiff brings this motion to compel 25 further responses to eight interrogatories which primarily seek information regarding Defendant’s 26 affirmative defenses –that they had prior express permission (“PEP”) from, or an existing business 27 relationship (“EBR”) with, the recipients of the faxes. Defendant contends that it has answered 28 each interrogatory in full and provided all information in its possession. The parties have 1 sufficiently met and conferred with each other, and with the Court through informal telephonic 2 conferences, prior to filing this motion. 3 II. 4 RELEVANT RULES 8 Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery: 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. 9 Fed. R. Civ. P. 26(b)(1). If a party fails to answer an interrogatory, a party may move for an order 10 compelling an answer, after attempting to obtain the sought information without court action. Fed. 11 R. Civ. P. 37(3)(B)(iii). Evasive or incomplete responses are treated as a failure to respond. Fed. 12 R. Civ. P. 37(4). 5 6 7 13 District courts have broad discretion to determine relevancy for discovery purposes. Hallett 14 v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). For good cause, the court may order discovery of 15 any matter relevant to the subject matter involved in the action. Relevant information need not be 16 admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 17 admissible evidence. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 18 III. DISCUSSION 19 A. Interrogatories 1 and 5 20 Interrogatories 1 and 5 request that Defendant identify each person it contends gave PEP to 21 be sent faxes and each person with whom it had an EBR at the time faxes were sent. Defendant’s 22 supplemental response to Interrogatory 1 stated that it received requests and authorizations from 23 hundreds or thousands of people and entities to receive information regarding Defendant. 24 Defendant responded that it routinely would receive contact information, including facsimile 25 numbers, by those with whom it conducted business. Defendant referred Plaintiff to Defendant’s 26 customer relationship data, registration logs for 2010-2014 event registrations, and contracts 27 spreadsheet. Defendant also responded that it routinely would obtain contact information, 28 including facsimile numbers, at trade shows. Defendant referred Plaintiff to trade show attendance 2 1 lists, business cards received, and other attendance lists. Defendant also responded that industry 2 association members provided their facsimile numbers to be included in those association 3 membership directories. Defendant provided a non-inclusive list of industry associations. 4 Defendant stated that additional documents were forthcoming, including additional business cards 5 and updated customer relationship data and registration logs. Defendant was not aware of any 6 responsive documents not included in the supplemental response. In responding to Interrogatory 5, 7 Defendant referred to its response to Interrogatory 1. 8 9 Plaintiff argues that these responses are deficient because it contends that the law requires more than an exchange of contact information to constitute PEP or EBR, and Defendant’s 10 response does not demonstrate PEP or EBR from any of the identified parties. This argument is 11 misplaced in a discovery motion. Plaintiff may make its argument regarding the sufficiency of 12 Defendant’s affirmative defense in a motion for summary judgement. Defendant has asserted that 13 this is its only information supporting its PEP and EBR defense, and there are no other responsive 14 documents. Plaintiff must accept this verified assertion. 15 Plaintiff also argues that it cannot discern from Defendant’s response which parties 16 Defendant actually sent or attempted to send a fax. This inquiry is beyond the scope of the 17 interrogatory, which requests the identities of each party from or with whom it had PEP or an EBR 18 when it sent the faxes, defined as any and all materials that discusses, describes, or promotes 19 Defendant’s goods or services sent by facsimile during the relevant time. As written, it does not 20 limit the response to only those to whom Defendant actually sent a promotional fax. 21 However, Defendant’s answer is incomplete in that it identifies various industry 22 associations when asked to identify persons. It also states that the list of associations is non- 23 inclusive. Therefore, this response does not answer the interrogatory which requests the identities 24 of “all persons.” Defendant contends that each person who provided their facsimile information in 25 the membership directory provided permission to receive communications. To the extent that 26 Defendant is aware of the identities of the persons that gave PEP, it must set forth those identities 27 in its response to the interrogatories. Hence, Defendant is directed to provide Plaintiff with an 28 amended response to Interrogatories 1 and 5, either identifying “all persons” on the industry 3 1 association membership directories from or with whom Defendant received PEP or had an EBR, 2 or, if the identities of “all persons” are unknown, a statement regarding the same. 3 B. Interrogatories 2 and 6 4 Interrogatories 2 and 6 follow Interrogatories 1 and 5, requesting that Defendant describe 5 the communications by which each person identified in Interrogatories 1 and 5 gave PEP and the 6 circumstances regarding how the EBR began. Defendant’s supplemental responses to 7 Interrogatories 2 and 6 refer Plaintiff to its response to Interrogatory 1, discussed above. 8 Plaintiff argues that Defendant’s response is incomplete because it does not identify the 9 specific facts -who, what, when, and how- of the alleged communications and circumstances. 10 Plaintiff also takes issue with Defendant’s lack of specificity in answering the interrogatories. 11 Plaintiff argues Defendant's response to the interrogatories should “focus on the Billian Facilities,” 12 even though no such focus is requested in the language of the interrogatories. Defendant argues 13 that it has answered in full. 14 Here, Defendant has provided Plaintiff with the information it has regarding how it came 15 to acquire contact information from each of the identified parties. It has produced the identities of 16 persons it argues gave PEP or had an EBR and stated the nature of their relationship –registration 17 logs from events, tradeshow attendance lists, etc. It also described how some of the contact 18 information was obtained –by exchanging contact information at events or trade shows. Defendant 19 also states that it does not maintain more specific information than that given. These 20 interrogatories have been fully answered. 21 C. Interrogatories 3 and 4 22 Interrogatories 3 and 4 ask defendant Polaris regarding the EBRs established by defendant 23 RehabCare, and how those EBRs came into place. Separate interrogatories were sent to 24 RehabCare. Defendant Polaris responded that it lacks sufficient knowledge to respond to the 25 interrogatories which are more appropriately directed to RehabCare. Defendant Polaris also directs 26 Plaintiff to RehabCare’s discovery response, which it attached. 27 28 Plaintiff argues that Defendant must respond to the interrogatory as to what EBR’s defendant Polaris contends defendant RehabCare had during the relevant time. Defendant is 4 1 correct that this interrogatory is more appropriate directed towards RehabCare, a separate entity 2 not controlled by Polaris. Polaris cannot be compelled to provide information within RehabCare’s 3 possession and control. Polaris’ opinion as to RehabCare’s EBRs is not relevant. Thus, 4 Interrogatories 3 and 4 have been fully answered. 5 D. Interrogatories 7 and 8 6 Interrogatories 7 and 8 seek each facsimile number and its origin to which faxes were sent 7 that did not originate from Billian. Defendant responded that it did not independently track this 8 information and it would be impossible to determine the origin of each fax number. These interrogatories are vague and excessively overbroad. According to the way “faxes” 9 10 are defined as any communication describing Defendant’s services sent by facsimile, Plaintiff 11 potentially seeks the facsimile number of every party to whom Defendant ever sent a facsimile 12 during the relevant time. This request is excessively overbroad and not reasonably calculated to 13 the discovery of admissible evidence. Further, Defendant argues that it does not keep a record of 14 the origination of each facsimile number. The existence of a number on the Billian’s list does not 15 necessarily mean that Defendant’s possession of that number originated from the Billian’s list. 16 Defendant may have possessed that number prior to or independent of the Billian’s list. As 17 written, and because Defendant does not keep a record of each facsimile number’s origin, 18 Defendant is correct that there is no way for it to reasonably respond to this interrogatory. Hence, 19 its further response cannot be compelled. 20 21 22 23 24 25 26 \\\ 27 \\\ 28 \\\ 5 1 IV. ORDER 2 For the foregoing reasons, it is hereby ordered as follows: 3 1. Plaintiff’s motion to compel Interrogatories 1 and 5 is GRANTED IN PART. 4 Defendant shall, within 21 days of entry of this order, provide Plaintiff with an 5 amended response to its Interrogatories 1 and 5, as specified above in this order; and 6 2. Plaintiff’s motion to compel Interrogatories 2, 3, 4, 6, 7, and 8 is DENIED. 7 8 9 10 IT IS SO ORDERED. Dated: February 5, 2016 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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