Ramirez v. Trans Union, LLC

Filing 75

ORDER RE: JOINT DISCOVERY DISPUTE STATEMENT (Dkt. No. 66). Signed by Magistrate Judge Jacqueline Scott Corley on 3/13/2013. (ahm, COURT STAFF) (Filed on 3/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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SERGIO L. RAMIREZ, on behalf of
himself and all others similar situated,
Plaintiff,

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Case No.: 3:12-cv-00632 JSC
ORDER RE: JOINT DISCOVERY
DISPUTE STATEMENT (Dkt. No. 66)

v.

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TRANS UNION, LLC,
Defendant.

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Now pending before the Court is the parties’ Joint Statement Regarding a Discovery

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Dispute (Dkt. No. 66) wherein Plaintiff seeks to compel responses to written discovery and an

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order directing certain depositions to occur. Having carefully considered the parties’ written

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submissions, and with the benefit of oral argument on March 13, 2013, the Court GRANTS

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Plaintiff’s motion in part and DENIES is it in part.

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DISCUSSION

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A. Defendant’s Request to Stay All Discovery

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Defendant requests that the Court stay all discovery in this action pending disposition

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of the pending motions to dismiss and motion to disqualify counsel and for sanctions (Dkt.

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Nos. 51 & 52.) As the Court stated at oral argument, it intends to deny both motions.

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Accordingly, the motion to stay is denied.

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B. Depositions

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Plaintiff moves to compel four depositions – those of Michael O’Connell, Colleen Gill,

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and Bharat Acharya, and a Rule 30(b)(6) deposition. Federal Rule of Civil Procedure

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30(a)(2)(A)(i) authorizes a party to take up to ten depositions as a matter of course. Plaintiff

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has taken six depositions and noticed a total of thirteen depositions. Defendant objects as

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Plaintiff has not sought leave of the court to exceed the ten deposition limit. The Court

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agrees. At oral argument, Plaintiff identified that the aforementioned four depositions have

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the highest priority. Accordingly, the parties shall work together to schedule these

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depositions as soon as possible. To the extent Plaintiff believes he needs more than 10

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depositions, he should seek leave from the Court pursuant to Rule 30.

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C. Interrogatories

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Plaintiff seeks additional responses regarding interrogatories 2, 4, 5-12, and 15. These

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interrogatories fall within two general categories: (1) those that seek discovery regarding

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numerosity, and (2) those that seek information regarding the identities of unnamed class

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members. Defendant objects to these interrogatories as overbroad and alleges that the

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interrogatories impermissibly seek certain consumer information, including names and

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addresses, which it cannot provide under Section 1681b of the FCRA and Section 1785.11 of

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the CCRAA.

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With respect to the interrogatories regarding numerosity (nos. 5, 7, 9, and 11), the

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interrogatories seek total figures relevant to Plaintiff’s proposed classes (see Dkt. No. 1, ¶¶

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79-81). Specifically, Plaintiff seeks information regarding the number of individuals for

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whom Defendant sold a consumer report which included an Office of Foreign Asset Control

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(OFAC) record in the United States or California, and to whom Defendant sent a file

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disclosure such as the one sent to Plaintiff on February 28, 2011 from February 9, 2010.

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(Dkt. No. 66-2, Interrogatories 5 & 7.) Plaintiff seeks similar information regarding

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individuals with the first name “Sergio” and the last name “Ramirez.” (Dkt. No. 66-2,

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Interrogatories 9 & 11.) Defendant objects to providing this information as overly

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burdensome because it would have to manually compare the records regarding those

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consumers for whom a consumer report was sold against its records regarding consumers to

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whom Defendant sent a file disclosure. Under the proportionality analysis called for by

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Federal Rule of Civil Procedure 26 the Court must weigh Plaintiff’s need for this information

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against the burden on Defendant of providing this discovery. Here, although Defendant has

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asserted burden, it has not offered any evidence regarding the burden in terms of cost or

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hours; indeed, at oral argument Defendant conceded it did not know how long it would take

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to compile the requested information. Plaintiff, on the other hand, contends that this

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information is crucial to establishing numerosity and identifying those class members most

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similarly situated to Plaintiff. Given Plaintiff’s need for this information and in the absence

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of evidence regarding any specific burden, the Court grants Plaintiff’s request to compel

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responses to these interrogatories.

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Interrogatory Nos. 2, 4, 6, 8, 10, and 12 seek information regarding absent class

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members. “While the putative class members have a legally protected interest in the privacy

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of their contact information and a reasonable expectation of privacy the [contact] information

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sought by Plaintiff is not particularly sensitive.” Artis v. Deere & Co., No. 10-5289, 2011

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WL 2580621, at *4 (N.D. Cal. Jun. 29, 2011); see also In re Autozone Wage & Hour Empl.

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Practices Litig., No. 10-md-02159 , 2011 U.S. Dist. LEXIS 132973, at *4-5 (N.D. Cal. Nov.

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17, 2011) (finding that disclosure of names and addresses of putative class members was not

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such an invasion of privacy as to warrant an opt-out procedure). The Court is not persuaded

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by Defendant’s argument that it is prohibited from providing this information by Section

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1681b of the FCRA and Section 1785.11 of the CCRAA as those provisions allow production

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of the information pursuant to a court order. Accordingly, Defendant shall provide names and

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addresses, but not telephone numbers, in response to these interrogatories. As discussed at

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oral argument, Plaintiff must obtain advance permission from the Court prior to sending any

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communication to the absent class members.

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Although Plaintiff groups Interrogatory 15 with the foregoing, it appears to raise an

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additional issue. It seeks “every communication and every person who, within the previous

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five years contacted you to question or dispute the erroneous inclusion of an OFAC alter on

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their consumer report.” (Dkt. No. 66-2.) Defendant objects to the Interrogatory as overbroad

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and failing to seek information relevant to this case as Plaintiff does not claim that Defendant

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failed to properly handle his request to remove OFAC information. Plaintiff asserts this

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information is relevant because these individuals interacted with Defendant in the same way

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as Plaintiff, and “presumably received the same form letters.” As was highlighted at oral

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argument, there is a dispute as to what Plaintiff’s experience with Defendant was and whether

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his experience was typical. The experiences of others who like Plaintiff complained about the

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OFAC alert may be relevant to class certification. Accordingly, Defendant shall respond to

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Interrogatory 15 as well.

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D. Requests for the Production of Documents

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Plaintiff seeks confirmation that Defendant has produced all documents (responsive to

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requests 18, 19, 22, 24, 26, and 27) concerning the policy and procedure changes that it made

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after the Third Circuit’s decision in Cortez v. Trans Union concerning the communication of

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OFAC data to third parties and documents reflecting how this information was conveyed to

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subscribers. Defendant shall review its production and produce any additional responsive

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documents or confirm that it has produced all such documents. Defendant is not entitled to

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produce what it believes is “enough” for the purposes of class certification.
CONCLUSION

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Based on the foregoing, Plaintiff’s request to compel certain discovery is GRANTED

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in part and DENIED in part. The parties shall meet and confer to develop a schedule for

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production of the discovery ordered.

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IT IS SO ORDERED.

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Dated: March 13, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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Northern District of California

United States District Court

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