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May 2 8 2019 Case 3:17-cv-01127-WQH-KSC Document 142 Filed 05/28/19 PageID.<pageID> Page 1 of 50 1 FILED 2 MAY 2 8 2019 3 CLERK, U.S. DISTRICT COURT SOUTi'lcRN DISi'RICT OF ~)~1.IFORNIA 4 B'f _0:!:. OEP~!JY. 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH J. MOSER, individually, and Case No.: 17cvl 127-WQH(KSC) --~ _ on behalf of all others similarl:x situated,,_.1_________________ 1 __ 12 ORDER RE JOINT MOTION FOR Plaintiff, 13 DETERMINATION OF DISCOVERY v. DISPUTE RE INTERROGATORIES 14 AND DOCUMENT REQUESTS HEALTH INSURANCE 15 SERVED ON PLAINTIFF BY INNOVATIONS, INC., a Delaware DEFENDANT DONIS! JAX, INC. 16 corporation, et al., 17 Defendants. [Doc. Nos. 97 and 98.] 18 19 20 Before the Court are: (1) a 76-page Joint Motion for Determination of Discovery 21 Dispute [Doc. No. 97] addressing interrogatories served on plaintiff by defendant Donisi 22 Jax, Inc.; and (2) a 151-page Joint Motion for Determination of Discovery Dispute 23 addressing document requests served on plaintiff by defendant Donisi Jax, Inc. [Doc. No. 24 98.] In these two Joint Motions, defendant Donisi Jax, Inc. seeks an order compelling 25 plaintiff to provide further, substantive responses to certain interrogatories and document 26 requests. The subject interrogatories and documents requests at issue are interrelated as 27 they seek documents and information on the same topics. These two Motions are the fifth 28 and sixth discovery disputes in this case [Doc. Nos. 75, 83, 84, 87, 99, 100, 101, 102, 118], I . 17cvl 127-WQH(KSC) Case 3:17-cv-01127-WQH-KSC Document 142 Filed 05/28/19 PageID.<pageID> Page 2 of 50 1 and the Court previously addressed some of the issues raised in these new Joint Motions in 2 a prior Order. [Doc. No. 118.] Therefore, the Court expects that the parties have an 3 understanding as to the Court's expectations regarding appropriate discovery requests and 4 responses and that some of the documents and information at issue in these new Joint 5 Motions have already been produced. 6 For the reasons outlined more fully below, the Court finds that the request of 7 defendant Donisi Jax, Inc. for an order compelling plaintiff to provide further responses to 8 certain interrogatories and document requests must be GRANTED in part and DENIED in 9 part. 10 Background 11 The First Amended Complaint includes two causes of action for violations of the -2---Telepnone Consumer Protection Act(''TCPA")-.[Doc:-N0:-3, at pp. 2-9-=-3T:rFor a 13 summary of the allegations in the Complaint and the procedural history of the case, 14 please refer to the Court's prior orders on discovery disputes as the Court will not repeat 15 this background information here. [Doc. Nos. 100, 101, 102, 118.] 16 Some of the issues raised in the current Joint Motions have already been addressed 17 in the Court's prior Order pertaining to the discovery dispute between defendant Health 18 Insurance Innovations, Inc. and plaintiff. [Doc. No. 118.] Therefore, in the interests of 19 brevity and efficiency, the Court will refer to this prior Order where appropriate and will 20 not repeat the reasoning or analysis here. In addition, the discovery requests at issue will 21 be addressed by topic and the Court will not repeat the full text of any of the 22 interrogatories, documents requests, or plaintiffs original responses to these discovery 23 requests. 24 Discussions 25 I. Scope o(Discovery. 26 "Unless otherwise limited by court order, the scope of discovery is as follows: 27 Parties may obtain discovery regarding any non-privileged matter that is relevant to any 28 party's claim or defense and proportional to the needs of the case, considering the 2 17cvl127-WQH(KSC) Case 3:17-cv-01127-WQH-KSC Document 142 Filed 05/28/19 PageID.<pageID> Page 3 of 50 1 importance of the issues at stake in the action, the amount in controversy, the parties' 2 relative access to relevant information, the parties' resources, the importance of the 3 discovery in resolving the issues and whether the burden or expense of the proposed 4 discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(l). 5 If a party fails to answer written interrogatories or produce documents in response 6 to written requests, the party seeking discovery may move for an order compelling 7 disclosure. Fed.R.Civ.P. 37(a)(3)&(4). "While the party seeking to compel discovery 8 has the burden of establishing that its request satisfies relevancy requirements, the party 9 opposing discovery bears the burden of showing that discovery should not be allowed, 10 and of clarifying, explaining, and supporting its objections with competent evidence." 11 Lofton v. Verizon Wireless (VAWJ LLC, 308 F.R.D. 276, 281 (N.D. Cal. 2015). -2- lJnaer RUle2o(15J(2T(C),''llie court must limit ... aiscovery ... irit aetermines 13 that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be 14 obtained from some other source that is more convenient, less burdensome, or less 15 expensive; ... or (iii) the proposed discovery is outside the scope permitted by Rule 16 26(b )(1 )." Fed.R.Civ.P. 26(b )(2)(C)(i)&(ii). In addition, "[t]he court may, for good 17 cause, issue an order to protect a party or person from annoyance, embarrassment, 18 oppression, or undue burden or expense, including ... (A) forbidding the disclosure or 19 discovery; ... (C) prescribing a discovery method other than the one selected by the 20 party seeking discovery; (D} forbidding inquiry into certain matters, or limiting the scope 21 of the disclosure or discovery to certain matters; ... (G) requiring that a trade secret or 22 other confidential research, development, or commercial information not be revealed or 23 be revealed only in a specified way ...." Fed.R.Civ.P. 26(C)(l)(A)-(G). 24 Federal Rule of Civil Procedure 33 states that "[e]ach interrogatory must, to the 25 extent it is not objected to, be answered separately and fully in writing under oath." 26 Fed.R.Civ.P. (b )(1 )(3). In other words, a party to litigation must respond to an opposing 27 party's interrogatories to the fullest extent possible. "The grounds for objecting to an 28 interrogatory must be stated with specificity." Fed.R.Civ.P. 33(b)(4). "Boilerplate, 3 17cvl 127-WQH(KSC) Case 3:17-cv-01127-WQH-KSC Document 142 Filed 05/28/19 PageID.<pageID> Page 4 of 50 1 generalized objections are inadequate and tantamount to not making any objection at all." 2 Walker v. Lakewood Condo. Owners Ass'n, 186 F.R.D. 584, 587 (C.D. Cal. 1999). For 3 example, objections must explain how an interrogatory is overly broad or unduly 4 burdensome. Mitchell v. National R.R. Passenger Corp., 208 F.R.D. 455, 458 at n.4 5 (D.D.C. 2002). 6 Federal Rule 34(b )(1 )(A) states that a request for documents "must describe with 7 reasonable particularity each item or category of items to be inspected." Fed.R.Civ.P. 8 34(b)(1 )(A). Federal Rule 34(b)(2)(B) also provides that a party responding to a 9 document request "must either state that inspection and related activities will be 10 permitted as requested or state with specificity the grounds for objecting to the request, 11 including the reasons. The responding party may state that it will produce copies of -2- aocuments or of electronically stored information instead of permitting inspection ...." 13 Fed.R.Civ.P. 34(b)(2)(B). "An objection must state whether any responsive materials are 14 being withheld on the basis of that objection. An objection to part of a request must 15 specify the part and permit inspection of the rest." Fed.R.Civ.P. 34(b)(2)(B). 16 "[B]oilerplate objections to Rule 34 document requests are inappropriate." Frontier- 17 Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 528 (S.D.W. Va. 2007). 18 Generally, the plaintiff in a TCPA case must meet the following elements of proof: 19 "(1) the defendant called a cellular telephone number; (2) using an automatic telephone 20 dialing system." Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 21 2017); Meyer v. Porifolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). 22 "[P]rior express consent is an affirmative defense, not an element of a TCPA claim." 23 Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (91h Cir. 2017). 24 Although class and fact discovery have not been bifurcated in this case, the focus 25 of discovery at this point in the proceedings is on class-related issues. [Doc. No. 66, at 26 p. 2.] "To maintain a class action, a plaintiff must demonstrate numerosity, commonality, 27 typicality, and adequate representation of the class interest. Fed.R.Civ.P. 23(a). In 28 addition to those requirements, Rule 23(b) provides that a class may be maintained, inter 4 17cvll27-WQH(KSC) Case 3:17-cv-01127-WQH-KSC Document 142 Filed 05/28/19 PageID.<pageID> Page 5 of 50 1 alia, ifthe court finds that the questions oflaw or fact common to class members 2 predominate over any questions affecting only individual members, and that a class 3 action is superior to other available methods for fairly and efficiently adjudicating the 4 controversy. Marlo v.
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