Fishman v. Tiger Natural Gas, Inc.

Filing 357

DISCOVERY ORDER by Magistrate Judge Thomas S. Hixson: denying #342 Discovery Letter Brief; denying #343 Discovery Letter Brief; denying #346 Discovery Letter Brief; finding as moot #347 Discovery Letter Brief; granting in part and denying in part #348 Discovery Letter Brief.(rmm2S, COURT STAFF) (Filed on 12/28/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EMILY FISHMAN, et al.,
Plaintiffs,

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Re: Dkt. Nos. 342, 343
TIGER NATURAL GAS, INC., et al.,
Defendants.

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United States District Court
Northern District of California

DISCOVERY ORDER

v.

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Case No. 17-cv-05351-WHA (TSH)

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The parties have filed five discovery letter briefs. ECF Nos. 342, 343, 346, 347 and 348.

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The Court held oral argument on December 28, 2018 and now issues this order.

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A.

ECF No. 342

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1.

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For these rogs, the parties agree that Dyet will need to examine documents before any

Rogs 4, 5, 6, 7, 8, 9, 10, 16, 20, 23, 24

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further information can be provided. The Court and the parties discussed when Dyet can serve

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amended responses. The parties agreed that Dyet will serve amended responses on January 8,

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2019. Thereafter if Plaintiffs remain unsatisfied with Dyet’s responses, the parties should file a

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joint letter brief in sufficient time for the Court to resolve the dispute and any amended responses

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to be served by January 31, 2019. It is too late to file letter briefs raising new discovery disputes.

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However, the Court already ordered Dyet to amend these rog responses, see ECF No. 294, so a

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further letter brief concerning them is not a new discovery issue but relates to the enforcement of

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an existing Court order.

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2.

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Dyet’s amended response is deficient. The Court already ordered Dyet to answer this

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Rog 15

interrogatory, ECF No. 294, and since the amended response contains no information at all, Dyet

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is in violation of the Court’s order. The Court ORDERS Dyet to amend his response again by

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January 15, 2019. In the next amended response, any citation to documents must specify them by

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Bates number. Dyet may no longer merely state that he is investigating or doing a search for

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documents – he must provide the best substantive answer he can to the rog.

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3.

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Dyet must serve his initial disclosures by January 18, 2019.

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4.

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Plaintiffs request “that this Court allow additional Requests for Admission solely for

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Initial Disclosures

Request for more RFAs

authentication of documents.” However, Judge Alsup ruled that “[w]ith respect to non-expert
discovery, no new discovery request may be propounded effective immediately.” ECF No. 274 at

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United States District Court
Northern District of California

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2. Accordingly, Plaintiffs’ request is DENIED.

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B.

ECF No. 343
Plaintiffs served their second set of RFPs on Dyet on November 18, 2018. His responses

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were due on December 18, 2018, which is after the December 14, 2018 fact discovery cutoff.

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Accordingly, Dyet need not produce documents in response to these untimely RFPs. There was

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no reason for Plaintiffs to delay this long in serving these RFPs. Plaintiffs previously served Dyet

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with their first set of RFPs in July – five months before the fact discovery cutoff – and they have

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offered to reason why they could not have also timely served their second set of RFPs. The

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motion to compel is DENIED.

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C.

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ECF No. 346
Plaintiffs seek a second deposition of Tiger’s Controller, Jennifer St. Clair, and its

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President, Lori Johnson. Plaintiffs state that Tiger produced draft scripts, advertising materials,

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advertising strategy materials, two versions of the Master Sheet, and enrollment data after

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Plaintiffs deposed these witnesses. In addition, the Court has ordered Tiger to produce a key or

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legend that would explain the rate codes, see ECF No. 335, which Plaintiffs state Tiger has not yet

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produced.

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As to the scripts, Master Sheets, and key or legend about the rate codes, the Court has
already ordered the re-deposition of a Rule 30(b)(6) witness on a broad scope of topics and a re2

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deposition of Rachel Harvick Strealy in light of those late productions. ECF No. 335. At this

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point Plaintiffs are just piling on. Further re-depositions on St. Clair and Johnson on those topics

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are duplicative and excessive and are DENIED.
The Court ORDERS that Plaintiffs may re-depose Johnson on the limited subjects of

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marketing strategy and sales material documents that were produced after her deposition. The

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Court ORDERS that Plaintiffs may re-depose St. Clair on the limited subjects of documents

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produced after her deposition about enrollment data, payments to Dyet, and her communications

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with Dyet. Both depositions shall be completed by January 18, 2019. Pursuant to Judge Alsup's

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Supplemental Standing Order, Tiger shall bear all expense of these depositions.

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D.

ECF No. 347

United States District Court
Northern District of California

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1.

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There is no dispute for the Court to resolve.

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2.

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Plaintiffs state in the letter brief that “[t]o the extent that the ‘Master Sheets’ are

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incomplete, Plaintiffs request an order that Tiger produce all ‘Master Sheets’ containing class

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members’ information.” From this, it was unclear if there is a dispute for the Court to resolve,

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although a request for every iteration of a constantly updated spreadsheet appears unreasonable.

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At oral argument, however, Plaintiffs clarified that they are actually seeking the most recent

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version of each type of Master Sheet. Tiger represents that it has produced those. Accordingly,

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there is no dispute for the Court to resolve.

TPV Recordings

Master Sheet

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3.

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There is no dispute for the Court to resolve.

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E.

Payment Information

ECF No. 348

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1.

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Plaintiffs state that on December 14, 2018, the last day of fact discovery, Tiger produced

Telemarketer Information

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an incomplete Master Sheet, later supplemented on December 20, 2018, that has a column

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containing the first and last names of the telemarketing agents who contacted members of the

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putative class. Plaintiffs say they did not have this information previously, hindering their ability
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to locate the telemarketers and depose them. Plaintiffs request an order that they be allowed to

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take five additional depositions, including beyond their current limit of 10 and that they may take

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the depositions after January 31, 2019 if necessary. Tiger states that it does not oppose Plaintiffs'

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request to take additional depositions of CGC/ECC employees up to January 31, 2019 and within

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the Plaintiffs’ limit of 10 depositions.
Tiger's position is reasonable. The January 31, 2019 deadline was ordered by Judge Alsup.

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See ECF No. 274. The late discovery of the telemarketer names is unrelated to the number of

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depositions that is reasonable and proportional to the needs of the case. Accordingly, the Court

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ORDERS that Plaintiffs may depose additional CGC/ECC employees up to their limit of 10

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depositions and no later than January 31.1

United States District Court
Northern District of California

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2.

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Citing the late production of certain documents as well as accusations of incomplete

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searches for documents, Plaintiffs “request that a third party be engaged to search Tiger’s servers,

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databases, and email systems for ESI. Also, Plaintiffs request that the endeavor be commenced

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immediately and at Tiger’s expense.” Plaintiffs state that the gist of the problem is that Tiger

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maintains an H drive in which employees maintain folders of custodial documents. Apparently,

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employees were instructed to search those folders on their own, and Plaintiffs maintain those

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searches were inadequate, citing in particular the late production of electronic scripts and Master

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Sheets (including telemarketer information contained on the Master Sheets). Tiger represents that

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it has investigated this issue and determined that Strealy and Johnson did not properly search their

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custodial files on the H drive. Tiger represents that it rectified this issue and produced additional

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responsive documents by December 20, 2018. Tiger also offers to provide Plaintiffs with a list of

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the individuals who searched each employee’s folder on the H drive and what search terms they

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ran. Plaintiffs do not agree this remedy is sufficient, contending that Tiger located these errors

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only in response to Plaintiffs pointing them out, which leaves Plaintiffs guessing if there could be

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additional search errors.

Servers, Hard Drives, Databases and Email Systems

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When this Court orders a witness re-deposed due to the late production of documents, that does
not count as an additional deposition toward Plaintiffs’ limit of 10.
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The Court is sympathetic to Plaintiffs’ frustrations, but the extreme remedy they seek is

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simply not appropriate for this case. As matters stand now, the Court has no basis other than

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conjecture to think that there are any omissions in Tiger’s document productions. In addition, it

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would be impossible to complete Plaintiffs’ requested endeavor by the January 31 deadline. See

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ECF No. 274. Accordingly, the Court ORDERS Tiger to inform Plaintiffs by January 4, 2019 of

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the identities of the individuals who performed searches on employees’ folders on the H drive and

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what search terms they used. Plaintiffs’ request is otherwise DENIED.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: December 28, 2018

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THOMAS S. HIXSON
United States Magistrate Judge

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