FLYNN et al v. MANUFACTURERS AND TRADES TRUST COMPANY, No. 2:2017cv04806 - Document 121 (E.D. Pa. 2018)
Court Description: MEMORANDUM AND OPINION ORDER. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 10/25/18. 10/25/18 ENTERED AND COPIES E-MAILED.(rf, )
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FLYNN et al v. MANUFACTURERS AND TRADES TRUST COMPANY Doc. 121 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA ED W ARD R. FLYN N , e t al Plain tiffs , : : : v. : : MAN U FACTU RERS AN D TRAD ES : TRU ST COMPAN Y : D e fe n d an t. : CIVIL ACTION N O. 17-cv-0 4 8 0 6 -W B MEMORAN D U M The Plaintiffs filed a Motion to Com pel Discovery Responses. Doc. No. 10 3 (m otion); Doc. No. 10 5 (“Pl. Mem .”). The Defendants responded (Doc. No. 110 (“Def. Resp.”)) and the Plaintiffs have filed a reply. Doc. No. 111. I have scheduled a hearing on October 26, 20 18. The purpose of this Mem orandum is to give the parties m y tentative thoughts concerning the proper disposition of the m otion, in an effort to provide them with guidance to m ake the hearing productive. I will proceed through the various discovery requests, outlining m y tentative ruling and providing a very short explanation of m y reasoning. Pre lim in a ry Ru lin gs 1) Generally, Plaintiffs’ requests and interrogatories are clear, directed toward obviously relevant inform ation, and should be answered. The parties’ m ain com bat seem s to be over whether discovery before class certification should be done by sam pling or class-wide. Many of the subordin ate disputes take on their significance as a result of this issue. 2) Defendants objections are otherwise non-specific, boiler-plate responses with very little substance. Particularly when it com es to a showing of disproportionality or burdensom eness, Defendant’s objections are lacking. The objections are in m ost instances overruled. In som e instances Defendant contends it has already responded to interrogatories or dem ands for production. If it has provided answers or docum ents, Dockets.Justia.com and has nothing further to add after its objections have been overruled, it will say so under oath. If it needs to supplem ent its responses in light of the objections being overruled, it will do so under oath. 3) The Defendant’s general objections to interrogatories are overruled. Objections have to be noted with specificity. Fed. R. Civ. Pro. 33(b)(4); see Covington v. Sailorm en Inc., 274 F.R.D. 692, 693– 94 (N.D.Fla. 20 11) (“Com m on sense should have been enough for Defendant to know that boilerplate, shotgun-style ‘General Objections,’ incorporated without discrim ination into every answer, were not consistent with Fed.R.Civ.P. 33(b)(4)'s directive that ‘[t]he grounds for objecting to an interrogatory m ust be stated with specificity.’”). The sam e holds for requests for production. See Fed. R. Civ. Pro. 34(b)(2)(B). 4) An objecting party m ust “state whether any responsive m aterials are being withheld on the basis of that objection.” Fed. R. Civ. Pro. 34(b)(2)(C). In large m easure the Defendant has not com plied with this rule. It will do so. 5) If the Defendant has been notified in writing of purported deficiencies in its responses to discovery, and its response is that it has nothing, or nothing further to disclose, it shall respond by affidavit under oath that it has m ade careful search of records and inform ation under its control in response to the notice of deficiencies an d has nothing, or nothing further, to disclose. Such an affidavit m ay be the basis of precluding evidence subm itted by the Defen dant at a later stage of the proceeding, if the discovery request covered the eviden ce and the evidence was not produced in discovery. 6) If the Defendant indicates in a discovery response ordered below that all inform ation responsive to the request or interrogatory has been previously supplied, Defendant shall m ake such an assertion under oath and shall supply the bates num bers 2 of all responsive docum ents and refer to the interrogatory answer by num ber and date of response. Sa m p lin g Pro to co l 7) Plaintiffs want extensive class-wide discovery. Defendant claim s undue burden, and seeks discovery lim ited to only 150 individuals, which would represent 50 persons in each of the three classes identified in the Am en ded Com plaint, and approxim ately 3.8% of the 3,956 people identified by Defen dant as the total num ber of people who are potential class m em bers. See response to Plaintiffs’ interrogatory 9. Plaintiffs want com plete discovery as to 20 % of the potential class m em bers, an d classwide discovery as to a num ber of other issues. 8) To resolve this im passe, on or before Novem ber 9, 20 18, the Defendant shall file under seal separate lists of the nam es of each potential class m em ber in the “FORM 1 NOR CLASS,” the “FORM 2 NOR CLASS,” the “NOR ALTERNATIVE CLASS” and the “POST-SALE NOTICE CLASS.” Defendant shall order the lists by date of transaction, oldest to m ost recent. The date of transaction shall appear in a colum n next to each n am e. The parties shall agree on a m eans of random ly selecting 10 % of each class for sam pled discovery. If there is agreem ent, the parties shall prom ptly file a stipulation indicating their agreem ent and I will enter an order confirm ing the parties’ protocol. 9) If the parties cannot agree, on or before Novem ber 23, 20 18 the parties shall each file a m em orandum of no m ore than 10 pages, exclusive of exhibits, explain ing why discovery should not proceed by selecting every tenth nam e, with a random starting point on each list selected by m e. If Defendant claim s undue burden, Defendant shall supply an estim ate of the num ber of docum ents and pages of records to 3 be supplied for a 10 % sam ple group, and explain how Defen dant arrived at the figure. Defendant shall also supply a thorough accounting of the hours spen t on the 19,0 0 0 pages produced so far (Def. Mem . 16-17) concerning Representative Parties, detailing the persons who spent tim e on producing the docum ents, their job title and function, the hours spent on production of docum ents, an explanation of the n ature of work done, the annual salary and hourly salary rate attributable to that person (for attorneys and paralegals em ployed by its outside counsel, Defendant need only supply hourly billing rate), and an item ization of other costs associated with the production. The estim ate and accounting shall be subm itted under oath. The purpose of the subm ission is to provide m e with reliable inform ation on the projected burdensom eness of the sam pling procedure outlined above. 10 ) If Defendant contends a sm aller sam ple size will produce statistically reliable results fairly representative of the com plete class, it shall file an affidavit under oath from a qualified statistician supporting their contention, and providing concrete suggestions on how to overcom e the statistical concerns. 11) If Plaintiffs contend the sam ple group is too sm all, or otherwise will not produce statistically reliable results fairly representative of the com plete class, they shall file an affidavit under oath from a qualified statistician supporting their contention, and providing concrete suggestions on how to overcom e the statistical concerns. Upon review of the parties’ subm issions I will issue an order fixing the discovery sam pling protocol and addressing the tim ing of com pliance with m y particular discovery rulings, below, ¶¶ 13-15. 12) There shall be no class wide discovery until further court order. Full class- wide discovery at this tim e would be overly burdensom e and disproportionate to the 4 issues an d m onetary am ounts involved in this case. Sam pled discovery should enable the parties to m ake reliable extrapolations about what full scale class-wide discovery would reveal. This should be sufficient to address the legal and factual issues that m ust be resolved prior to class certification. 13) Individual discovery disputes are tentatively resolved below. The discovery ordered below shall be lim ited to the sam pled class m em bers stipulated by the parties or chosen by the court. All discovery ordered below is lim ited to the class period. 14) In te rro gato rie s N o . 1 (Pl. Mem . 12; Def. Mem . 7). Plaintiff asks for identification of the persons who were involved in answering the interrogatories. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. N o . 2 (Pl. Mem . 13; Def. Mem . 8 ). Plaintiff asks for an account of the deficiencies for all class m em bers. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer. If som e of the deficiencies have been discharged in bankruptcy, the Defendant shall note the deficiency is “zero” and explain that it was discharged in bankruptcy. N o . 3 (Pl. Mem . 3; Def. Mem . 9). Plaintiff asks for auto loan deficiency actions. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. N o . 4 (Pl. Mem . 17; Def. Mem . 10 ). Plaintiff asks for persons having knowledge of the facts alleged in the Com plaint. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. 5 N o . 5 (Pl. Mem . 18; Def. Mem . 11). Plaintiff asks for a calculation of m inim um statutory dam ages. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath, or by following the procedure outlined in Fed. R. Civ. Pro. 33(d). N o . 6 (Pl. Mem . 19; Def. Mem . 11). Plaintiff asks for an explanation of the difference in m eaning between two phrases appearing on Defendant’s form s. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. N o . 7 (Pl. Mem . 20 ; Def. Mem . 7). Plaintiff asks for the aggregate am ount Defendant actually paid all third parties for storage expenses. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. N o . 8 (Pl. Mem . 21; Def. Mem . 12). Plaintiff asks for the aggregate am ount Defendant actually paid for storing vehicles. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. N o . 9 (Pl. Mem . 22; Def. Mem . 12-13). Plaintiff asks for the total num ber of people who com prise the various classes defined in the Com plaint. Defendant has supplied figures, subject to non-specific objections. All of Defendant’s objections are overruled. If the overruling of the objections m eans that the answer has to be supplem ented, Defen dant shall supplem ent its answer under oath. N o . 10 (Pl. Mem . 23; Def. Mem . 10 ). Plaintiffs ask for the process by which Defen dant answered its interrogatories. The question is unduly vague and 6 focuses on the process of answering interrogatories rather than on the substance of the litigation. The Plaintiffs’ m otion as to this interrogatory is DENIED. N o . 11 (Pl. Mem . 24; Def. Mem . 13-14). Plaintiffs ask for specific inform ation about Gene Daisey’s loan. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. Defendant shall als o provide the Bates stam p num ber of each docum ent that it contends supplies the answer to the interrogatory. N o . 12 (Pl. Mem . 25; Def. Mem . 14). Plaintiffs ask for specific inform ation regarding a post-sale notice sen d to Abbott. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. Defendant shall als o provide the Bates stam p num ber of each docum ent that it contends supplies the answer to the interrogatory. N o . 13 (Pl. Mem . 25; Def. Mem . 14). Plaintiffs ask for the criteria Defendants used to calculate the $ 20 0 expen se for preparing/ repairing the repossessed vehicle. The fact that the figure was an “estim ate,” as Defendant contends, does not obviate the responsibility to answer the question. If there were no criteria used, and the figure was selected arbitrarily, Defendant shall so state. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal answer under oath. 15) Re qu e s ts fo r Pro d u ctio n N o s . 1-5 (Pl. Mem . 26-28; Def. Mem . 15). Plaintiffs ask for docum ents supporting specific charges for storing and repairing repossessed vehicles of the representative plaintiffs. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. 7 N o . 6 (Pl. Mem . 29; Def. Mem . 15-16). Plaintiffs seek sam ple discovery of all classes. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 7 (Pl. Mem . 30 ; Def. Mem . 17). Plaintiffs seek com plaints filed against Defendant regarding its repossession policy, practice an d procedure. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 8 (Pl. Mem . 31; Def. Mem . 18). Plaintiffs seek exem plars of every notice of repossession and post-sale notice form sent by Defendant during the class period. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 9 (Pl. Mem . 31; Def. Mem . 18). Plaintiffs seek exem plars of each retail instalm ent sale contract assigned to Defendant during the class period. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 10 (Pl. Mem . 32; Def. Mem . 18). Plaintiffs ask for all docum ents that tend to substantiate Defendants interrogatories. Plaintiffs request is DENIED as phrased because the question is unduly vague. Defendant shall supply all docum ents upon which it relied, or which it consulted, in respondin g to Interrogatories. N o . 11 (Pl. Mem . 32; Def. Mem . 11). Plaintiffs ask for insurance policies that m ay cover Defendant for the claim s asserted by Plaintiffs. Defendant responds that it has already stated in its Rule 26 initial disclosures that it has no 8 such insurance. Plaintiff acknowledges that this answer was provided in Defendant’s initial disclosures. Plaintiffs’ m otion is DENIED. N o . 12 (Pl. Mem . 33-38; Def. Mem . 19-22). Plaintiffs ask for all docum ents concerning the representative plaintiffs or their repossessed vehicles. Defendant responds that it has already supplied all such docum ents. Plaintiff identifies a num ber of deficiencies. Defen dant has responded to the deficiencies. Defendant shall supply its answer, provided at pp. 20 -22, as a supplem ental response, under oath. In addition, the objections identified at Def. Mem . 20 -22, (iii), (iv), (v), (x), (xi) and (xii) are overruled. These deficiencies seem reasonably clear, an d are drawn from language in docum ents already produced by Defendant. N o . 13 (Pl. Mem . 38; Def. Mem . 22). Plaintiffs seek docum ents that concern Defendant’s repossession policies, procedures and practices. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 14 (Pl. Mem . 39; Def. Mem . 23). Plaintiffs seek Defendant’s contracts’ with third party vendors concerning repossession. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. N o . 15 (Pl. Mem . 39; Def. Mem . 23). Plaintiffs dem and an organizational chart. All of Defendant’s objections are overruled. Defendant shall supply an unequivocal response under oath with responsive docum ents. 9 16) Privile ge Lo g (Pl. Mem . 41; Def. Mem . 24). I will resolve privilege log issues after exam ining the m ost recent privilege log in court, hearing argum ent from counsel, and if necessary, exam ining docum ents subject to a privilege claim in cam era. 17) San ctio n s (Pl. Mem . 44-50 ; Def. Mem . 29-30 ). I will deny the sanctions m otion without prejudice to its being renewed once the discovery outlined in this Mem orandum has been undertaken. BY THE COURT: s/ Richard A. Lloret RICHARD A. LLORET U.S. Magistrate J udge 10
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