Spendlove et al v. RapidCourt, LLC, No. 3:2018cv00856 - Document 132 (E.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/20/2019. (jsmi, )
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Spendlove et al v. RapidCourt, LLC Doc. 132 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division OWEN SPENDLOVE, ^ al., Individually and as Representatives of the Class, Plaintiffs, Civil Action No. 3:18-cv-856 V. RAPIDCOURT, LLC, Defendant. MEMORANDUM OPINION This COMPEL matter AND FOR is before RULE the 37(c)(1) Court on SANCTIONS PLAINTIFF'S (EOF No. MOTION 72). TO Having considered the supporting, opposing, and reply memoranda, and for the reasons stated below, PLAINTIFF'S MOTION TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 72) will be granted in part and denied in part. BACKGROUND A. General Factual Background This matter arises out of a class action under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (^^FCRA") brought by Plaintiffs Owen Spendlove and Jacob Cross ("Plaintiffs") against RapidCourt, L.L.C. ("RapidCourt"). Plaintiffs' assertion that The gravamen of the case is RapidCourt unlawfully reported to Dockets.Justia.com Checkr, Inc. ("Checkr"), a third-party consumer reporting agency not a party in this case, information that Checkr then reported to the Plaintiffs' potential employers in violation of the FCRA. See Pis.' Second Am. Class Action Compl. (ECF No. 113) 1-12. Plaintiffs allege that RapidCourt willfully violated the FRCA by (1) reporting adverse non-conviction information from Virginia older than seven years in violation of § 1681(c)(1); (2) failing to provide consumers with timely notice of the fact that it had furnished an employment report containing adverse information while not following strict procedures designed to ensure that it does not report incomplete or outdated public records in violation of § 1681(k)(a); and (3) failing to provide full copies of consumers' files upon request in violation of § 1681(g). Id. I 1. B. Background RapidCourt filed a Motion to Dismiss or, in the Alternative, Transfer Venue. (ECF No. 25). In response, the Plaintiffs moved the Court to permit jurisdictional discovery. PLS.' MOT. TO PERMIT JURISDICITIONAL granted DISC.(ECF Plaintiffs' No. motion, 32). On ordering May 3, that discovery shall proceed forthwith." (ECF No. 44). 2019, the Court "jurisdictional Thereafter, the Parties proposed a Scheduling Order within the parameters set by the Court for the conduct of jurisdictional discovery. (ECF No. 4 6). Subsequent scheduling orders were entered relating to both the class certification and jurisdictional discovery deadlines, revising the original deadlines established by the Court. (ECF Nos. 49, 67). The discovery disputes at hand arose out of objections to Plaintiff's discovery requests. Plaintiffs served RapidCourt with RapidCourt's On May 8, 2019, Plaintiffs' First Interrogatories and First Set of Document Requests. Set of On May 17, 2019, RapidCourt served its Initial Disclosures to the Plaintiffs. RapidCourt amended its Initial Disclosures on July 26, 2019. See Fed. R. Civ. P. {a)(1)(A) {outlining the requirements for initial disclosures). Following several meet and confer sessions, RapidCourt supplemented its interrogatory responses on July 14, 2019, June 21, 2019, July 3, 2019, and August 20, 2019. On June 20, 2019 and August 20, 2019, RapidCourt supplemented its responses to Plaintiffs' First Set of Document Requests. On May 31, 2019, Plaintiffs served RapidCourt with Plaintiffs' Second Set of Interrogatories and Plaintiffs' Second Set of Requests for Production, to which RapidCourt responded on July 1, 2019. The parties met and conferred, and RapidCourt supplemented its responses on August 20, 2019. (ECF No. 73-4). On June 19, 2019, Plaintiffs served RapidCourt with Plaintiffs' Third Set of Interrogatories and Third Set of Request for Production. RapidCourt responded on July 19, 2019 and supplemented its responses to Plaintiffs' Request for Production on August 20, 2019. In addition, on June 18, 2019, Plaintiffs made a Rule 34 Request requesting that RapidCourt permit Plaintiffs' counsel and a proposed expert witness to access to RapidCourt's property in order to inspect and copy the user interface clients utilize to access court records, the computer software and underlying source code, and to conduct a search of Virginia records for Plaintiffs Spendlove and Cross. See ECF No. 73, Ex. 8 at 2-3. The Parties met and conferred on Plaintiffs' request, and RapidCourt responded to this request on August 20, 2019. On August 30, 2019, Plaintiffs moved the Court to compel Defendant RapidCourt to provide full and complete responses to certain discovery requests and to prohibit RapidCourt from presenting evidence and witnesses not previously disclosed. PLS.' MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF No. 72) at 1. DISCUSSION A. Analysis of RapidCourt's Objections The first objections part in of the analysis perspective of the is to assess Plaintiffs' RapidCourt's arguments. The Plaintiffs make a number of arguments relating to RapidCourt's alleged failures to provide full and complete responses to certain discovery requests. Plaintiff's arguments can be distilled down to five main issues, RapidCourt's use of discovery responses; documents that it which are general (2) discussed form as turn objections RapidCourt's deemed in below: (1) throughout its production relevant and of only responsive; the (3) RapidCourt's determination of the scope of relevant jurisdictional discovery; (4) Plaintiffs' requests to inspect RapidCourt's RCX product and RapidCourt's gain access objections to to the RapidCourt's Plaintiff's database; and (5) class certification discovery requests. a. RapidCourt's Use of General Objections First, the Plaintiffs object to RapidCourt's use of "general objections."^ A review of the record on this issue shows that, in response to every interrogatory and document request, RapidCourt makes what it calls "common specific objections," which include objections for asserted relevance, overbreadth, and burden. Plaintiffs argue that these objections do not comply with the Federal Rules of Civil Procedure, which require objections to be stated with specificity. RapidCourt responds by arguing that the objections at issue are "common specific objections," not general objections. They are, says RapidCourt, instead thoroughly explained objections that apply to several specifically identified discovery requests. See DEF.'S MEMO. IN OPPOSITION TO PLS.' MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF-No. 84) at 4. The analysis of the competing views begins with the governing principle that the grounds for objecting must be "stated with 1 See PLS. ' MEM. IN SUPP. OF MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 73) at 6-7; PLS.' REPLY BRIEF IN SUPP. OF THEIR MOTI. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 88) at 46. specificity. Any ground not stated in a timely objection is waived unless the court, for good causes, excuses the failure." Fed. R. Civ. P. 33(b)(4). In addition, any objection to a request for production of documents must be specifically stated, and the producing party must permit inspection of the non-objectionable part. Fed. R. Civ. P. 36(a)(5)-(6). The necessary corollary to these basic principles is that: [g]eneric, non-specific objections will not suffice when posed in response to reasonable Interrogatories. Objections to reasonable Interrogatories must be specific to each Interrogatory and explain or demonstrate precisely why or how the party is entitled to withhold from answering. VICA Coal Co., Inc., v. Crosby, 212 F.R.D. 498, 503 (S.D.W. Va. 2003). That fundamental precept is rather widely accepted, albeit is often stated somewhat differently. For example, in Barb v. Brown's Buick, Inc., No. l:09-cv-785, 2010 WL 446638, at *1 (E.D. Va. Feb. 2, 2010), the Court explained that Fed. R. Civ. P. 33 requires objections to discovery requests (interrogatories) to be made with specificity. For that reason, this Court discourages the use of "general objections." Id. In Mills v. E. Gulf Coal Prep. Co., 259 F.R.D. 118, 132 (S.D. W. Va. 2009), the principle was applied to objections to document requests posited under Fed. R. Civ. P. 34, holding that such "objections must be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable." Id.; see also Cappetta v. GC Servs. Ltd., No. 3:08-cv-288, 2008 WL 5377934, at *3 (E.D. Va. Dec. 24, 2008); Hanawha Azdel, Inc. v. C&D Zodiac, Inc., No, 6:12- cv-00023, 2013 WL 3660562, at *5 (W.D. W. Va. July 11, 2013). The principle problems with general objections are that (1) they reach so broadly that the requesting party cannot determine what is being answered or responded to and what is not; and (2) the generality obscures what the general objection is foreclosing from discovery. Thus, use of the general objection precludes meaningful negotiation in the meet and confer process (which appears to have happened here), and it allows the producing party a degree of control over the discovery process not intended by the federal discovery rules. Those problems are exacerbated where, as here, there is a general objection on attorney-client and work-product privilege. Here, RapidCourt said: RapidCourt objects to Request Nos. 3, 5, and 7, 9, 10 to the extent that these Requests seek documents protected from disclosure by the attorney-client communication privilege and/or the attorney work product doctrine. ECF. No. 73, Ex. 3 at Common Specific Obj. 3. Such an objection tells neither the Plaintiffs nor the Court what is privileged or why it is asserted. Privilege claims must be raised by a timely filed, legally sufficient privilege list. See Fed. R. Civ. P. 26(b)(5) (stating that a party claiming a privilege must expressly make the claim and describe the nature of the documents so as to enable other parties to assess the claim); ECF No. 42, Ex. 1 at 3 ("If a party objects to the production of documents on the grounds of attorney- client privilege, attorney work product doctrine, or any other privilege, the objecting party must provide the requesting party with an inventory list of the documents to which objection is made, . . ."). Yet another example of the kind of problem created by general objections is found in RapidCourt's general objection as to time frame and proportionality. It states: RapidCourt objects to Request Nos. 5 and 7 as seeking documents that are not relevant to the limited scope of permissible discovery and that are not proportional to the needs of the case because these Requests are not limited in temporal scope. ECF No. 73, Ex. 3 at Common Specific Obj. 2. The objection is insufficient to tee up either the temporal question or the issue of proportionality. Having reviewed objections," the RapidCourt's Court finds that so-called all objections and that they all are improper. of "common them are specific general All of RapidCourt's general objections will be overruled and stricken. 1. RapidCourt's General Objections to Relevance In its "common specific objections," RapidCourt objects to several discovery requests on the basis that the information sought is not relevant to the case. See, e.g., ECF No. 73, Ex/ 2 at 4; ECF No. 73, Ex. 3 at 2-3; ECF No. 73, Ex. 4 at 2; ECF No. 73, Ex. 5 at 2-3. RapidCourt argues that the information sought "is not relevant to Plaintiffs' contention that RapidCourt is subject to specific personal jurisdiction in the Commonwealth of Virginia." ECF No. 73, Ex. 2 at 3. On another occasion. Rapid Court objects to requests on the basis that the requests "are not relevant to the limited scope of permissible discovery and that are not proportional to the needs of the case because these Requests are not limited in temporal scope." ECF No. 73, Ex. 3 at 3. Plaintiffs seek to overrule RapidCourt's General Objections to Relevance and to compel full compliance. Fed. R. Civ. P. 26 governs the scope of discovery requests, providing as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Relevance is broadly construed to include "[a]ny 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." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353 (1978) (citations omitted). RapidCourt claims that its relevance objections are not "general objections" but are rather thoroughlyexplained "common specific objections" that apply only to several specifically identified discovery relevance objections are not specific. requests. However, the For a relevance objection to be adequate, it must be "plain enough and specific enough so that the court can understand in what way the interrogatories [or document requests] are alleged to be objectionable." Panola Land Buyers Ass^n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985). RapidCourt's General Objections to Relevance are framed in such general terms so as not to comply with the requirements of Rules 26 and 33. Having reviewed RapidCourt's so-called "common specific objections" as to relevance and having concluded that they are general objections to relevance that do not satisfy the "plain and specific" requirement so well-outlined in Panola Land, those objections are overruled. 2. RapidCourt's Overbroad and Unduly Burdensome Objections Also, in its "common specific objections," RapidCourt objects to several interrogatories and document requests as "overbroad and unduly burdensome because these interrogatories are not limited in temporal scope, and therefore they seek irrelevant information and 10 also are not proportional to the needs of the case." ECF No. 73, Ex. 2 at 3. stating However, just as objections for relevance, "merely that a discovery request is ^overbroad' or 'unduly burdensome' will not suffice to state a proper objection." Cappetta V. GC Services Ltd., No. 3:08cv288, 2008 WL 5377934, at *3 (E.D. Va. Dec. 24, 2008) (citing Josephs v. Harris Corp., 677 F.2d 985, 991 {3d Cir 1982)). Under Fed. R. Civ. P. 26(b)(2)(C)(iii), the Court is required to "limit the frequency or extent of discovery" if "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii). However, a party objecting to a discovery request as overly burdensome must submit affidavits or other evidence demonstrating the nature and extent of the asserted burden. Id. (citing Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Pa. 1996) (internal citations omitted)). RapidCourt indicating why has any provided of the no affidavit Plaintiffs' overbroad or unduly burdensome. or other discovery evidence requests are Therefore, RapidCourt's general objections as to the overbroad and unduly burdensome scope of Plaintiffs' requests (interrogatories and document requests) are overruled. 11 3. RapidCourt's Privilege Objections Third, within its "common specific objects," RapidCourt objects to several of Plaintiffs' discovery requests on the basis that "these Requests seek documents protected from disclosure by the attorney-client communication privilege and/ or the attorney work product doctrine." EOF No. 73, Ex. 3 at 3; EOF No. 73, Ex. 5 at 2. Fed. R. Civ. P. 26(b)(5) requires that, "when a party withholds information otherwise discoverable by claiming that the information is privileged" the party must "describe the nature of the documents, and information do so in a manner itself privileged or that, protected, without revealing will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5). It is not enough that a party assert an attorney-client or work product doctrine privilege. See, e.g., Westfield Ins. Co. v. Carpenter Reclamation, Inc., 301 F.R.D. 235, 247 (S.D. W. Va. 2014) ("Westfield's assertion of ^attorney-client privilege and/ or the word product doctrine' is too general and will not suffice."). Parties seeking the protection of these privileges must submit timely and adequate privilege logs. Here, RapidCourt has not provided any sort of privilege log pertaining to the documents referred to in its "common specific objections" nor has RapidCourt explained with specificity why the 12 attorney-client or work-product privileges apply. Thus, RapidCourt's general objections as to work-product and attorneyclient privilege are overruled. b. RapidCourt's Production of Only Documents that It Deems Relevant Plaintiffs next assert that RapidCourt impermissibly narrowed its responses to Plaintiff's discovery requests relevant to the jurisdictional inquiry. PLS.' MEMO. IN SUPP. OF MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 73) at 8. Plaintiffs argue that RapidCourt objected Specifically, to Plaintiffs' Interrogatory Numbers 1-5 because "they seek information that is not relevant to Plaintiffs' contention that RapidCourt is subject to specific personal jurisdiction in the Commonwealth of Virginia" is impermissible. ECF No. 73, EX. 2 at 3. Plaintiffs contend that this response is unacceptable because it qualifies Plaintiffs' document production RapidCourt requests as only producing considers relevant and thus documents that limits RapidCourt's responses to only "information and documents" specifically related to the named Plaintiffs. Fed. R. Civ. P. 26(b)(1) provides that "[p]arties 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, . . . Information within this scope of discovery need not be admissible in evidence to be 13 discoverable." Fed. R. Civ. P.26(b)(l). Relevancy is broadly construed to include any information if there is "any possibility" it may be relevant to any claim or defense. See, e.g., Johnson v. Kraft Foods, 236 F.R.D. 535, 541 {D. Kan. 2006). When discovery sought appears relevant on its face, "the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance, . . . or is of such marginal relevant that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." Id. For reasons previously stated, it is improper for RapidCourt to unilaterally withhold information or documents that are responsive to a discovery request by stating that "all relevant, non-privileged" responsive information will be produced. Kraftfoods, 236 F.R.D. at 541. As explained in Kraft: In response to many of Defendant's requests for production and interrogatories, Plaintiff asserts that he has produced, or will produce, 'relevant, non-privileged' responsive documents. Defendants argue use of this language implicitly challenges the relevancy of the request and such a challenge is procedurally improper. The Court agrees. In other words, a party may not unilaterally withhold information or documents that are responsive to a discovery request aby stating that 'all relevant, non-privileged' responsive information or documents have been, or will be, produced. If a party intends to withhold information or documents responsive to a discovery request based on lack of relevancy, an objection based on lack of relevancy must be lodged in the responsive 14 See pleading. Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 541 (D, Kan. 2006); see also Alexander v. No. CIV. 96-2123, 1997 WL 1106579, at *1 (D.D.C. Dec. 22, 1997). Hence, RapidCourt's objection is overruled. By asserting an improper objection, RapidCourt has spent its ammunition on the relevance ground wastefully. It now must pay the price and provide the requested discovery. c. RapidCourt's Definition of the Scope of Jurisdictional Discovery Plaintiffs next assert that RapidCourt's interpretation of what information is relevant to the jurisdictional analysis is legally erroneous because it is too too narrow. PLS.' MEMO. IN SUPP. OF MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF No. 73) at 9. Specifically, Plaintiff asserts that RapidCourt has either refused to answer or has qualified its responses based upon its interpretation of the scope of specific jurisdiction. See ECF No. 73, Ex. 2. That issue has been fully briefed. For the most part, Plaintiffs are correct in their interpretation of what constitutes relevant jurisdictional discovery. The Due Process Clause of the Fourteenth Amendment limits the power of a defendant. judicial State to Pennoyer power over assert v. Neff, persons jurisdiction over 95 (1878). not 15 U.S. 714 within its a nonresident A borders State's can be undertaken by two approaches: by finding specific jurisdiction based on the conduct connected to the suit or by a finding of general jurisdiction. See Helicopteros Nacionales de Colombia, S.A. V. Hall, 466 U.S. 408. 414 (1984). As the Fourth Circuit articulated: [i]f the defendant's contacts with the State are also the basis for the suit, those contacts may establish specific jurisdiction. In determining specific jurisdiction, we consider (1) the extent to which the defendant ^purposefully availed' itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the date; and (3) whether the exercise of personal jurisdiction would be constitutionally ^reasonable.' ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002). RapidCourt takes the position that the second element of the three-part test, whether the plaintiffs' claims arise out of those activities directed at the state, "renders relevant only those documents and information relating to contacts with Virginia that form the ^basis of Plaintiffs' specific claims. However, that position is both unreasonable and is at odds with applicable decisions. three Plaintiffs are entitled to discovery on each of the elements articulated in the three-part test. As the 2 See DEF.'S MEMO. IN OPP'N TO PLS.' MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 84) at 7. 16 Plaintiffs correctly point out, the cases cited by RapidCourt speak to the merits of what is determinative in a specific jurisdiction inquiry, not jurisdiction to what is discovery.^ relevant for Contrary to purposes of RapidCourt's specific position. Plaintiffs are entitled to discovery related to the first element of the ALS purposefully Scan test, availed the itself extent of the to which the privilege of defendant conducting activities in the State. While there constitutes is no "purposeful clear formula availment", for the determining Fourth Circuit what has provided a number of factors to be considered, including: whether the defendant maintains offices or agents in the forum state; whether the defendant owns property in the forum state; whether the defendant reached into the forum state to solicit or initiate business; whether the defendant deliberately engaged in significant or long-term business activities in the forum state; whether the parties contractually agreed that the law of the forum state would govern disputes; whether the defendant made in-person contact with the resident of regarding the the forum in business the forum state relationship; the nature, quality and extent of the parties' communications about the business being transacted; and whether the performance of contractual duties was to occur within the forum. Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 272, 278 3 DEF.'S MEMO. IN OPP'N TO PLS.' MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (EOF No. 84) at 7-11; PI.'s RPLS.' REPLY BR. at 5. 17 (4th Cir. 3:09cv657, 2009); 2010 see WL also 1225620, Reynolds at *3 Foil, (E.D. Inc. Va. v. Mar. Pai, 25, No. 2010); Gillison v. Lead Express, Inc., No. 3:16cv41, 2018 WL 6537151, at *5 n.l9 (E.D. Va. Dec. 12, 2018). Plaintiffs are entitled to These decisions teach that the discoverable information relevant to whether RapidCourt solicited customers in Virginia, held contracts with Virginia business for the purpose of obtaining or transmitting records to customers, or accessed or transmitted Virginia records to third parties. about every objections strained Indeed, the Plaintiffs are entitled to discovery factor described in Geometric. to the discovery requests at issue and untenable view of the ALS Scan RapidCourt's are test. based For on a these reasons, RapidCourt's objections based on that view are overruled. RapidCourt must fully respond to Plaintiffs' discovery requests to include information responsive to jurisdictional discovery. See ECF No. 73, Ex. 2 at 4-16 (ROGs 1, 2, 3, 4, 5, 8); ECF No. 73, Ex. 3 at 4-12 (RFPs 4-7, 9-10, 12-14). d. Inspection of RapidCourt's RCX and Database Products Plaintiffs access to: also served a request for inspection seeking (1) RapidCourt's software that runs its RCX system; and (2) RapidCourt's database product. See ECF No. 73, Ex. 8; ECF No. 73, Ex. 9 (RFP 22). The RCX system and RapidCourt's database represent separate services offered by RapidCourt and will each be discussed in turn below. 18 1. Access to RapidCourt's RCX Product First, Plaintiffs requested that RapidCourt allow an expert to have access to: (1) RapidCourt's user interface that access court records for consumers with Virginia addresses; (2) a complete set of screenshots for all screens in the user interface; (3) the complete system; software, and (4) including login source credentials code, for that operates purposes of the allowing Plaintiffs' expert to access these technologies as a user, and then to conduct Spendlove and a search Cross. See of Virginia records for ECF No.73, Ex. 8. In plaintiffs response to Plaintiffs' request, RapidCourt agreed through e-mail to work with the Plaintiffs to allow their expert to conduct a sample search "for Virginia court records by using RapidCourt's RCXpress technology, as would a customer of RapidCourt." See ECF No. 73, Ex. 9 (detailing the July 18, 2019 e-mail from RapidCourt's counsel to Plaintiff's counsel). Nevertheless, Plaintiffs argue that RapidCourt's offer only provides them with "minimal insight in to the kinds of records that users see when they use Defendant's system, . . ." S^ PLS.' MEMO. IN SUPP. OF MOT. TO COMPEL AND RULE 37(c)(1) SANCTIONS (ECF No. 73) at 16-18. As previously stated, the Federal Rules provide for liberal discovery. "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. 26(b)(1). In interpreting this provision, 19 courts have required consumer reporting agencies to produce source code and/ or algorithm information demonstrating how their software works when relevant to the litigation at issue. See, e.g.. Fair Isaac Corp. v. Equifax, Inc., No. 06-4112 ADM/JSM, 2007 WL 2791168, at *5 (finding that "Fair Isaac's need for the algorithm information to litigate its misappropriation and contract claims outweighs the harm to Defendants under the terms of an appropriate protective order"). RapidCourt has described the technology it uses to facilitate access to public record information, or the RCX System, as "direct to source technology."^ RapidCourt states that, "To the extent Checkr may have utilized the RapidCourt technology to access public records data relating to Owen Spendlove, Jacob Cross, or any other putative class member, Checkr would have done so through electronic transmission with the use of the RapidCourt direct to source technology, which technology is hosted on RapidCourt's secure, non-public server in North Carolina." Id. RapidCourt also admits that information the "Plaintiffs justifiably seek regarding RapidCourt's RCX technology, as that is the product used to access Plaintiffs' information at issue in the case." Id. Under ALS Scan and Geometric, the reach of relevant jurisdictional discovery includes, among other things, information ^ MEMO. OF LAW IN SUPP. OF DEF.'S MOT. TO DISMISS (EOF No. 16) at 5. 20 relevant to whether the defendant deliberately engaged in significant or long-term business activities in the forum state; the nature, quality and extent of the parties' communications about the business being transacted; and contractual duties was to occur whether the within the performance forum. of Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 272, 278 (4th Cir. 2009). The RCX product allows RapidCourt's subscribers to gain access to courthouse website portals and to access information on their websites in real time. Based on the information provided by the RapidCourt about the RCX Technology, the precise mechanics of how the RCX technology searches and accesses public records in Virginia, how it stores the records, and how the technology presents the records to its clients all are directly relevant to ascertaining the nature and extent of RapidCourt's contacts with the state of Virginia as they pertain to personal jurisdiction. It is therefore necessary for Plaintiffs to determine precisely how the RCX Technology at issue works and fits into the underlying claims. The Plaintiffs will be permitted to thoroughly examine the RCX Technology. This will include allowing the Plaintiffs' expert access to the interface clients use to access court records for consumers with Virginia addresses, screenshots within the user interface, source code for the technology, and login credentials allowing Plaintiffs access to a user for an extended period of time. Counsel will be required 21 to confer and to submit an appropriate Order providing the details for that access and for protection of RapidCourt's information. 2. Access to RapidCourt's Database The Plaintiffs also request access to RapidCourt's database. EOF No. 73, Ex. 9. According to maintains, RCX records information. RapidCourt's subscribers have the options of choosing conduct to a database it separately from its whether product, a RapidCourt, search containing related to the public database entirely separate from their search using the RCX technology. Plaintiffs database is claim that access necessary certification, as well to find as contacts within Virginia. tO' the information information information relevant related to within the to class RapidCourt's The record made by Plaintiffs show that the information within the database contains information directly relevant to whether RapidCourt purposefully availed itself of the privilege of conducting activities in Virginia. Plaintiffs have provided evidence that RapidCourt sold information from one of its databases regarding third-party. Plaintiff Spendlove on March 1, 2016 to a Thus, even if Checkr did not perform a search of the database as it pertains Plaintiffs Cross and Spendlove, it appears, based on the information provided by the Plaintiffs, that the database contains information relating to Plaintiffs Cross and Spendlove, as well as information regarding other putative class members. If, as appears to be the case, the database contains 22 public records from Virginia that are sold to third parties, the database will jurisdictional likely contain issues, namely information the RapidCourt conducts in Virginia. extent relevant of the to business Therefore, the Court will allow the Plaintiffs' expert to examine the database and the Plaintiffs to conduct a deposition under Fed. R. Civ. P. 30(b)(6) to determine how the database is used by RapidCourt's clients and to determine how use of the database pertains to the underlying claims in the case. e. RapidCourt's Objections to the Class Certification Requests Last, the discoverable Plaintiffs alleged information and that RapidCourt documentation has relevant withheld to class certification, specifically information relating to: (a) putative class members; (b) RapidCourt's designation as a credit reporting agency; and (c) the identity of, and communications with, thirdparty vendors. Rule 26(b)(1) allows parties to "'obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs to the case, . . " Fed. R. Civ. P. 26(b)(1). Once the moving party has established that the information requested is within the scope of permissible discovery, the burden shifts "to the opposing party to specify how the discovery request is irrelevant, overly broad, burdensome, or oppressive." Khalilpour v. CELLCO P'ship, No. C 09-02712, 2010 WL 23 1267749, at *3 (N.D. Cal. Apr. 1, 2010); see also Oppenheimer Fund, Inc. V. Sanders, 437 U.S. 340, 353 n.l7 (1978). Furthermore, the decision of whether "to permit discovery of contact information for putative class members prior to conditional certification of a case lies within the discretion of the district court." Pontones V. San Jose Restaurant, No. 5:18cv219-D, 2019 WL 1548897, at *2 (E.D.N.C. Apr. 9, 2019). And, courts are likely to "permit precertification discovery if it would substantiate the class allegations." Reed v. 1-800 Contacts, Inc., No. 12cv2359-JM (BGS), 2013 WL 12092055, at *2 (S.D. Cal. Mar. 8, 2013) (citing Vallabharpurapu v. Burger King Corp., 276 F.R.D. 611, 615 (N.D. Cal. 2011)). 1. Reguesbs for Production 22 and 23 Plaintiff's Request for Production 22 and 23 both request information regarding putative class member information. Request for Production Number 22 requests "all documents that reflect or provide the information necessary to determine the names and identities of each putative class member" while Request for Production Number 23 requests "all documents referring to the amount of payment made to any independent contractor, subcontractor, vendor, or related entity that provided you with any information members." regarding the Plaintiffs and putative class RapidCourt objects to these requests on the basis that the Plaintiffs are requesting class member information when no 24 class has yet to be certified. Unlike the information sought in Pontones v. irrelevant San to Requests 22 Jose class Restaurant, certification, which the the court information found as sought in and 23 are relevant to identifying putative class members. 2019 WL 1548897, at *2 (E.D.N.C. Apr. 9, 2019). The fact that a discovery request seeks information related to a class that has not been certified is not by itself sufficient to deny production. In response to Request for Production Number 22, RapidCourt must provide a list of the names and identities of all potential class members. In response to Request for Production Number 23, RapidCourt must identify any of its customers that have information pertinent to the identity of the class members and provide the identity of its independent contractors and subcontractors that have information related to Plaintiff Cross and Spendlove and the putative class members. 2. Requests for Production 28, 29, 30, 31, and 41 Request for Production 28 requests "all documents evaluating whether you are subject to the requirements of the Fair Credit Reporting Act." ECF No. 73, Ex. 5 at 7. RapidCourt objected, asserting relevance, proportionality, and overbreadth. However, RapidCourt's objections are overruled. In a class action under the FCRA, documents relating to whether RapidCourt is subject to the FCRA are clearly relevant and discoverable. 25 RapidCourt has not established that this request is overly broad or disproportional. Requests for Production 29, 30, 31, and 37 all request information about RapidCourt's vendors, customers, end-users, and other sources of public record information. ECF No. 73, Ex. 5 at 8, 9, 12. RapidCourt objects irrelevant and Objections to not to proportional Request for these to discovery the Production 28, needs 29, requests of 30 the and as case. 31 are overruled because they seek information that is clearly relevant to class certification and to the common issues of fact and law asserted in the Complaint. The requests for production are clearly relevant and directed to securing discoverable information, but, as RapidCourt says, the requests are broad. However, RapidCourt has not met its burden to demonstrate that the Requests create an undue burden. Nor has RapidCourt explained its proportionality argument. Request 41 requests "all policy manuals, procedure manuals or other documents, which address your policies, practices or procedures designed to assure the maximum possible accuracy of the consumer reports you sell." ECF No. 73, Ex. 5 at 41. The objection is also overruled because the request is clearly relevant to class certification and to common issues of fact and asserted in the Complaint. C. Analysis on Plaintiffs' Request for Sanctions 26 law that are The Plaintiffs request that the Court grant relief under Fed. R. Civ. P. 37 by prohibiting RapidCourt from using in any future motion or at trial evidence to counter: (1) Plaintiff's arguments that RapidCourt and its related entities are one cohesive entity; (2) any witness or document in support of RapidCourt's argument that it is inconvenient to litigate in Virginia; (3) any evidence that RapidCourt does not collect Virginia records through thirdparties; (4) any evidence that RapidCourt has FCRA compliance procedures in place; and (5) any evidence or argument that accuracy is an individualized question. The Plaintiffs motion for sanctions was filed pursuant to Fed. R. Civ. P. 37(c)(1) which provides as follows: Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)—(vi). Fed. R. Civ. P. 37(c) (1). 27 The substance of the Plaintiffs' motion to compel is that RapidCourt did not adequately respond to discovery requests and that RapidCourt's objections were improper, not that RapidCourt violated Rule 26(a) or Rule 26(e) which are focused on disclosures that are to be made, not on discovery requests. Therefore, the invocation of Rule 37(c)(1) is not appropriate. The motion for sanctions will be denied. CONCLUSION For the reasons stated above, PLAINTIFF'S MOTION TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF No. 72) will be granted in part and denied in part. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: December 2019 28
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