Washington et al v. Lumber Liquidators, Inc.

Filing 41

ORDER GRANTING REQUEST FOR EXPEDITED DISCOVERY by Judge Jon S. Tigar; granting 37 Motion to Expedite. (wsn, COURT STAFF) (Filed on 5/5/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LILA WASHINGTON, et al.,

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Case No. 15-cv-01475-JST

Plaintiffs,
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v.

ORDER GRANTING REQUEST FOR
EXPEDITED DISCOVERY

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LUMBER LIQUIDATORS, INC.,

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Re: ECF No. 37

Defendant.

United States District Court
Northern District of California

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This case is one of 19 related cases currently pending in this District concerning

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allegations that Defendant Lumber Liquidators’ laminate wood flooring products contain

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dangerous levels of formaldehyde. 1 Now before the Court is Plaintiffs’ motion for limited

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expedited discovery in connection with their motion for preliminary injunction. ECF No. 37.
Plaintiffs filed a motion for preliminary injunction on April 8, 2015, ECF No. 11, seeking

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to enjoin Defendant from continuing to distribute home testing kits to customers. As alleged in

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that motion, “Lumber Liquidators began offering free do-it-yourself air testing kits upon request to

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customers whose records confirm that they bought certain flooring products from Lumber

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Liquidators.” Id. at 1. Plaintiffs assert that Defendant’s kits “do not comply with accepted

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industry standards, are inherently unreliable, and are likely to under-report the amount of

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formaldehyde present” in tested products, which may cause affected individuals “to delay or

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forego the remedial measures they need to take immediately” to remove their dangerous flooring.

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Dozens of other cases involving similar allegations have been filed across the country. The
Plaintiffs in related case Conte v. Lumber Liquidators, Inc. et al., No. 15-cv-01012-JST, have filed
a motion before the Judicial Panel on Multidistrict Litigation (JPML) pursuant to 28 U.S.C.
§ 1407, requesting the consolidation and transfer of all of these cases for pretrial proceedings.
See In Re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales
Practices and Products Liability Litigation, MDL No. 2627, ECF No. 1 (J.P.M.L. Mar. 9, 2015).
The J.P.M.L. will hear argument on the motion on May 28.

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Id. at 1-2. Plaintiffs also assert that Defendant’s home testing kits and associated correspondence

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“will falsely lead some [putative class members] to believe that their floors are safe.” Id.
Defendant has opposed Plaintiff’s request for an injunction, and supported its opposition

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with six declarations. ECF Nos. 23, 24, 25, 26, 27, 28, 29. Plaintiffs’ present motion seeks to take

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expedited depositions of two of the individuals who submitted declarations: Brian Pullin and

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Dr. Rajiv Sahay. Plaintiffs ask the Court to order that such depositions take place prior to the May

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14, 2015 hearing on that motion.

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I.

LEGAL STANDARD
“[A] party seeking expedited discovery in advance of a Rule 26(f) conference has the

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burden of showing good cause for the requested departure from usual discovery procedures.”

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United States District Court
Northern District of California

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Qwest Commc'ns Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).

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Although “[t]he good cause standard may be satisfied where a party seeks a preliminary

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injunction,” it “is not automatically granted merely because a party seeks a preliminary

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injunction.” Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1066 (C.D. Cal. 2009) (internal

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quotations and citations omitted). Rather “[f]actors commonly considered in determining the

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reasonableness of expedited discovery include, but are not limited to: ‘(1) whether a preliminary

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injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the

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expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far

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in advance of the typical discovery process the request was made.’” Id. at 1067 (quoting

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Disability Rights Council of Greater Washington v. Washington Metro. Area Transit Auth., 234

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F.R.D. 4, 6 (D.D.C. 2006)); Apple Inc. v. Samsung Electronics Co., No. 11-CV-01846-LHK, 2011

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WL 1938154, at *1 (N.D. Cal. May 18, 2011).

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II.

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ANALYSIS
Plaintiffs seek expedited discovery to support their motion for a preliminary injunction.

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That motion asks the Court to enjoin Defendant from “representing that home air testing kits are

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an effective method of detecting the level of formaldehyde in their customers’ home” and to

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require Defendant to “advise inquiring customers to retain a qualified industrial hygienist,

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environmental scientist, or toxicologist to perform proper testing.” ECF No. 11-1 at 1. Plaintiffs
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claim that expedited discovery is necessary to allow Plaintiffs to respond to factual statements

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made in the declarations submitted by Defendant in support of its opposition to Plaintiffs’

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preliminary injunction motion. ECF No. 37. Specifically, Plaintiffs request that the Court allow

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them to conduct the deposition of two of the six individuals who submitted declarations in support

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of the opposition: Brian Pullin, Defendant’s Director of Customer Care and Telesales, and Dr.

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Rajiv Sahay, who manages the labs that are processing the challenged air test kits.

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Defendant argues that Plaintiffs have not demonstrated good cause warranting expedited

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discovery. Defendant notes that Plaintiffs did not request expedited recovery until the case

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management conference which occurred on April 28, 2015, weeks after the filing of their
preliminary injunction motion. Defendant argues that the timing of Plaintiffs’ discovery presents

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United States District Court
Northern District of California

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a burden to Defendant, as having to “prepare and defend these two witnesses in a short time frame

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will be unfair and hugely disruptive.” ECF No. 40 at 8. Defendant notes that the witnesses

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Plaintiffs seek to depose are incredibly busy—Pullin is “providing assistance to customers who

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have concerns about their flooring” and Dr. Sahay is managing “labs that are working literally

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around the clock to process the indoor air test kits and relay those results to customers.” Id.

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Defendant also contends that because the discovery sought “implicates more than 100 nearly

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identical class actions” nationwide, it should therefore wait until the cases are consolidated and

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transferred to one court by the JPML. Id.

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First, although not dispositive, the Court notes that the pendency of Plaintiffs’ motion for a

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preliminary injunction supports their request for expedited discovery. See Am. LegalNet, 673 F.

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Supp. 2d at 1066. The purpose for which the discovery is sought also counsels in favor of

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granting Plaintiffs’ request. See id. Expedited discovery requests in connection with a motion for

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preliminary injunction should generally be related to information sought in order to preserve the

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“status quo.” Id. at 1068. Plaintiffs’ request for expedited discovery concerns the air testing kits

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that Defendants are actively distributing to potential class members, which Plaintiffs allege may be

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“misleading putative class members in an effort to change the status quo.” ECF No. 37 at 1.

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Defendant disputes Plaintiffs’ allegations that the communications regarding the air testing kits are

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deceptive and has supported its position with six declarations. See ECF Nos. 23, 24, 25, 26, 27,
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28, 29. Although Plaintiffs have identified apparent inconsistencies between statements made in

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these declarations and the statements contained in Defendant’s communications to class members,

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ECF No. 37 at 2-3, Plaintiffs express concern that, in the absence of expedited discovery, their

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preliminary injunction motion “will be complicated by disputed facts based on an undeveloped

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record.” Id. at 4. Because Plaintiffs seek development of the factual record in support of their

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preliminary injunction, which seeks to preserve the status quo, the purpose for which discovery is

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sought weighs in favor of expedited discovery.

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Next, the Court concludes that the breadth of Plaintiffs’ requested discovery is

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appropriately tailored in light of the purpose for which the information is sought. Contrary to
Defendant’s characterization, Plaintiffs’ request is not an open-ended “fishing expedition.” ECF

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United States District Court
Northern District of California

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No. 40 at 10. Rather, Plaintiffs merely seek to depose two individuals whose declarations

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Defendant’s counsel prepared and submitted as evidence in support of their opposition to

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Plaintiffs’ motion for preliminary injunction. Among the questions to be resolved by the Court is

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whether a preliminary injunction, corrective notice, or other remedy is appropriate, which in turn

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may depend on whether the Court concludes that Defendant’s communications with putative class

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members regarding its air testing program have been “false, misleading or confusing.” Cox

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Nuclear Med. v. Gold Cup Coffee Servs., Inc., 214 F.R.D. 696, 697-98 (S.D. Ala. 2003); In re

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Sch. Asbestos Litig., 842 F.2d 671, 680 (3d Cir. 1988) (“Misleading communications to class

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members concerning the litigation pose a serious threat to the fairness of the litigation process, the

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adequacy of representation and the administration of justice generally.”). As demonstrated by

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Defendant’s ability to prepare declarations of these individuals in response to Plaintiffs’

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preliminary injunction motion, Defendant has substantially more access to information about the

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design and implementation of its own air testing program than Plaintiffs. Plaintiffs have identified

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disputes between statements made in the declarations and the communications sent to putative

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class members. ECF No. 37 at 2-3. Further discovery limited to developing the factual record

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surrounding the air testing program is therefore appropriate.

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Turning to consideration of the burden imposed on Defendant by the expedited discovery

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request, the Court acknowledges that offering two witnesses for deposition on an expedited basis
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imposes an inconvenience on Defendant. Defendant argues these individuals are busy managing

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and implementing the disputed air testing program and do not have time to prepare to sit for

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deposition. But this inconvenience must be weighed against the fact that, if Plaintiffs’ allegations

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are correct, Defendant’s air testing program could lead to the disruption of the status quo in over

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100 cases nationwide, by misleading tens of thousands of putative class members2 about the

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effects of the challenged products or compromising their ability to participate in this litigation.

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And as busy as these two witnesses may be, they have managed to make time in their schedules to

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work with Defendant’s counsel preparing lengthy, detailed declarations describing Defendant’s

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communications and testing programs. In fact, Pullin submitted two such declarations, including
one in support of Defendant’s opposition to the expedited discovery request. So although

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Northern District of California

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participation in this litigation ‒ and specifically in Plaintiffs’ motion for preliminary injunction ‒

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might impose a burden, it is one these individuals have apparently already decided to accept. The

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question now is whether fairness dictates that the testimony they have already given be subject to

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cross-examination before it is considered by the Court. The Court concludes that it does, and that

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the burden on Defendant does not justify denial of expedited discovery.
Finally, the timing of the discovery request does not weigh against granting Plaintiffs’

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relief. The Court previously concluded that, in these related cases, it would “retain the flexibility

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to stay only those matters that should await resolution of the JPML proceeding, while allowing

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other matters to move forward.” Balero v. Lumber Liquidators, Inc., No. 15-cv-1005-JST, ECF

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No. 32 at 2. The Court therefore stayed rulings on dispositive motions, but observed that,

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generally, “a district judge should not automatically stay discovery, postpone rulings on pending

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motions, or generally suspend further rulings upon a parties’ motion to the MDL Panel for transfer

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and consolidation.” Id. at 1-2 (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D.

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Cal. 1997)).
Defendant directs the Court to its statement in the minutes from the case management

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As of April 21, 2015, 24,915 air test kits had been sent to Defendant’s customers. Decl. of Brian
Pullin In Support of Defendants’ Oppositions, ECF No. 26 at 2.
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conference that “no Rule 26 disclosures or discovery shall currently take place.” Balero, ECF No.

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48 at 4 (emphasis added). While that statement reflected the result of the case management

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conference ‒ that no discovery would occur directly as a result of the discussion at the conference

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‒ the Court did not intend to signal the outcome of the present motion. Indeed, the minutes from

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that case management conference expressly acknowledged that Plaintiffs would be filing the

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present motion for expedited discovery. Id. Although Defendant argues that Plaintiffs should

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have requested expedited discovery earlier, perhaps in the case management statement submitted

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prior to the conference, Defendant did not submit their opposition or the declarations in question

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until April 22, 2015, the day after Plaintiffs’ case management statement was due. Therefore,
Plaintiffs did not learn of Defendant’s factual challenges to their motion until after the statement

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United States District Court
Northern District of California

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was due and their request for expedited discovery at the conference was not untimely.

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III.

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CONCLUSION
The Court hereby grants Plaintiffs’ request for limited expedited discovery and orders

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Defendant to produce Pullin and Dr. Sahay for deposition. Because the Plaintiffs in Silverthorn v.

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Lumber Liquidators, Inc., Case No. 15-cv-1428, have requested similar expedited discovery in

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their motion at ECF No. 19, and in light of the fact that no Lead Plaintiffs’ Counsel has yet been

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appointed, the Court will permit counsel for both the Washington and Silverthorn Plaintiffs to

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divide the examination of these witnesses.

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IT IS SO ORDERED.
Dated: May 5, 2015
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JON S. TIGAR
United States District Judge

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