McArdle v. AT&T Mobility LLC et al

Filing 219

DISCOVERY ORDER re 218 Letter filed by Steven McArdle. Signed by Judge Maria-Elena James on 3/21/2013. (cdnS, COURT STAFF) (Filed on 3/21/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

Northern District of California

7
8
9

STEVEN MCARDLE, an individual, on
behalf of himself, the general public and those
similarly situated,

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

ORDER RE: DISCOVERY DISPUTE
(DKT. NO. 218)

Plaintiff,

10

No. C 09-1117 CW (MEJ)

vs.

13

AT&T MOBILITY LLC; NEW CINGULAR
WIRELESS PCS LLC; NEW CINGULAR
WIRELESS SERVICES, INC., and Does 1-50

14

Defendants.
_____________________________________/

15

INTRODUCTION

16

Before the Court is the joint discovery dispute letter (“Joint Letter”) filed by Plaintiff, Steven

17

McArdle (“Plaintiff”) and Defendants, AT&T Mobility LLC, New Cingular Wireless PCS LLC, and

18

New Cingular Wireless Services, Inc. (collectively, “Defendants”) on February 25, 2013. Dkt. No.

19

218. After consideration of the parties’ papers, relevant legal authority, and good cause appearing,

20

the Court ORDERS as follows.

21
22

BACKGROUND
On September 14, 2009, the Honorable Claudia Wilken, the presiding judge in this matter,

23

denied Defendants’ motion to compel arbitration of Plaintiff’s claims. Dkt. No. 74. Plaintiff

24

subsequently filed a Second Amended Complaint, and Defendants appealed Judge Wilken’s Order.

25

Dkt. No. 78. On August 31, 2012, in light of the Supreme Court’s decision in AT&T Mobility LLC

26

v. Concepcion, -- U.S. --, 131 S.Ct. 1740 (2011), the Ninth Circuit issued a memorandum decision,

27

remanding for this Court to consider “McArdle’s arguments based on generally applicable contract

28

defenses.” Dk. No. 204 at 2.

1

Thereafter, Judge Wilken granted Plaintiff leave “to conduct limited discovery regarding

2

matters relevant to generally applicable contract defenses” in anticipation of a renewed arbitration

3

motion by Defendants. Order, Dkt. No. 211, at 2. Plaintiff served Defendants with 34 requests for

4

production of documents (“RFP”) and two interrogatories, containing eight subparts, seeking broad

5

discovery into Defendants’ arbitration program from 2002 to the present. Defendants objected to the

6

discovery on the grounds that it exceeded the limited scope contemplated by Judge Wilken’s order.

7

Jt. Ltr., Dkt. 218, at 3.

8

Pursuant to the Court’s Discovery Order, the parties submitted their dispute to Magistrate

USA Inc., 836 F.Supp.2d 994 1006-07 (N.D.Cal. 2011), this Court ruled that Defendants “need not

11

respond to Plaintiff’s requests that relate to other agreements, disputes, arbitrations, and lawsuits

12
For the Northern District of California

Judge James. Order, Dkt. No. 212. On December 21, 2012, in accordance with Meyer v. T-Mobile

10

UNITED STATES DISTRICT COURT

9

relating to other customers.” Order, Dkt. No 215 at 1. The Court instructed the parties to meet and

13

confer about the scope of discovery in light of its ruling and the prior order permitting only “limited

14

discovery.” Jt. Ltr., Dkt. 218 at 1.

15

In response, Plaintiff limited the requests to seek information only from the wireless

16

provider, AT&T Mobility, LLC (“ATTM”). Plaintiff also “narrowed” his discovery requests to

17

demand every arbitration and pre-arbitration notice of dispute involving an ATTM customer since

18

2002, along with all filings by ATTM in any such arbitration and any petition by ATTM to confirm

19

or vacate an arbitral award. Jt. Ltr., Dkt. 218 at 2; RFP Nos. 42-44, 46; Interrog. 1. Plaintiff

20

additionally demanded a broad class of documents relating to “any weakness” or the “fairness” or

21

“unfairness” of the “arbitral process” of the American Arbitration Association (“AAA”) and the

22

AAA’s unrelated moratorium on debt-collection arbitrations by businesses against consumers. Id.;

23

RFP Nos. 63-65.

24

Plaintiff now seeks an order compelling Defendants to provide the above discovery on the

25

issue of whether the arbitration clause in Plaintiff’s wireless service contract is unconscionable

26

under California law. Plaintiff asserts that this information is relevant to his claim that his own

27

arbitration agreement is “substantively unconscionable and illusory.” Jt. Ltr., Dkt. No. 218, at 1.

28
2

1

Plaintiff asserts that these requests comply with the December 20, 2012 Discovery Order because

2

the requests do not seek documents about individual customers’ arbitration proceedings. Id. at 1, fn.

3

1.

4

DISCUSSION

5

The Federal Arbitration Act (“FAA”) calls for “an expeditious summary hearing on [motions

6

to compel arbitration], with only restricted inquiry into factual issues.” Moses H. Cone Mem’l Hosp.

7

v. Mercury Constr. Corp. 460 U.S. 1, 22-23 (1983). However, limited pre-arbitration discovery may

8

be permitted into “issues relating to the making and performance of the agreement to arbitrate”

9

where “‘the making of the arbitration agreement or the failure, neglect, or refusal to perform the

§ 4). Accordingly, “District courts in the Ninth Circuit and the Ninth Circuit itself have allowed a

12
For the Northern District of California

same be in issue.’” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (quoting 9 U.S.C.

11
UNITED STATES DISTRICT COURT

10

party opposing a motion to compel arbitration to conduct discovery relevant to the issue of

13

unconscionability. Meyer, 836 F.Supp.2d at 1006-07.

14

Discovery that does not relate to the validity of the plaintiff’s own arbitration agreement is

15

irrelevant to the unconscionability inquiry, because it does not assist the court in determining

16

whether the agreement at issue is unconscionable. Hodson v. DirectTV, LLC, 2012 WL 5464615, at

17

*8 (N.D. Cal. 2012) (denying arbitration-related discovery focusing on other customers because the

18

only relevant document is the actual arbitration agreement alleged to be unconscionable); Meyer,

19

836 F.Supp.2d at 1007 (disallowing discovery where the requests focused not on the plaintiff’s

20

arbitration agreement, but instead focused on all agreements, disputes, arbitrations and lawsuits

21

relating to T–Mobile customers).

22

Here, Plaintiff seeks pre-arbitration discovery requesting “every arbitration and pre-

23

arbitration notice of dispute involving an ATTM customer since 2002, along with filings by ATTM

24

in any such arbitration and any petition by ATTM to confirm or vacate an arbitral award.” RFP

25

Nos. 42-44, 46, and Interrog. No. 1. These requests are not proper because they pertain to

26

agreements, disputes, arbitrations and lawsuits relating to ATTM customers other than Plaintiff.

27

Meyer, 836 F.Supp.2d at 1007. This Court has already disallowed discovery requests focused on

28
3

1

other ATTM customers. Order, Dkt. 215. Even if Plaintiff did not disregard the Court’s December

2

20, 2012 Order limiting discovery to Plaintiff’s own agreement, these discovery requests would not

3

provide any new information necessary for the Court to determine the issue of unconscionability

4

because the only relevant document is the actual arbitration agreement alleged to be unconscionable.

5

Hodson 2012 WL 5464615, at *8.

6

Plaintiff is also not entitled to the discovery requested in RFP Nos. 63-65, which seeks

7

documents relating to “weakness” or the “fairness” or “unfairness” of the “arbitral process” of the

8

AAA and the AAA’s moratorium on debt-collection arbitrations by businesses against consumers

9

and to and “weakness” or the “fairness” or “unfairness” of the AAA’s arbitration process. RFP 64-

meaning of the words “weakness” or “fairness” or “unfairness” as they relate to any of AAA's

12
For the Northern District of California

65. These requests are impermissibly vague to the extent they require ATTM to interpret the

11
UNITED STATES DISTRICT COURT

10

procedures or administration in the past decade. Moreover, the requests are based solely on

13

suspicion of bias in the arbitration process. In order to gain such discovery, the party opposing

14

arbitration must “show[]” that the “arbitration rules” themselves are “inadequate to guard against

15

potential bias.” Gilmer v. Interstate/Johnson Lane Corp. 500 U.S. 20, 30 (1991). This Plaintiff has

16

not done.

17
18
19
20

CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion to compel responses to RFP
Nos. 42-44, 46, 63-65, and Interrogatory No. 1.
IT IS SO ORDERED.

21
22

Dated: March 21, 2013
_______________________________
Maria-Elena James
United States Magistrate Judge

23
24
25
26
27
28
4