Marsh et al v. Zaazoom Solutions, LLC et al
Filing
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ORDER by Judge Kandis A. Westmore denying 160 Discovery Letter Brief without prejudice; denying 163 Discovery Letter Brief without prejudice. (kawlc2, COURT STAFF) (Filed on 5/1/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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AMBER KRISTI MARSH,
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Plaintiff,
Case No.: 11-cv-5226 YGR (KAW)
ORDER REGARDING DISCOVERY
DISPUTES
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vs.
Northern District of California
United States District Court
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ZAAZOOM SOLUTIONS, et al.,
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Defendants.
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In this putative class action, Plaintiffs Amber Kristi Marsh and Stacie Evans ("Plaintiffs")
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allege that Defendants ZaaZoom Solutions, LLC, Automated Electronic Checking, Inc., and Data
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Processing Systems, LLC, ("Defendants"), together with other Defendants who have not joined in
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the discovery disputes presently before the Court, operated an internet scam in which remotely
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created checks were created to pay monthly membership fees for coupon services, using Plaintiffs’
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personal and banking information, which the Plaintiffs had entered on websites for the purpose of
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obtaining payday loans.
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On April 19, 2013, Plaintiffs' counsel filed a joint letter brief regarding a discovery dispute.
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Dkt # 160. On April 23, the parties filed a stipulated protective order, which the undersigned entered
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on April 25. Dkt # 161, 162. On April 26, Plaintiffs' counsel filed a second joint letter brief
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regarding a second discovery dispute. Dkt # 163.
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The Court notes that neither joint letter is signed by counsel for Defendants. This deficiency
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violates the Court's standing order. See Standing Order for Magistrate Judge Kandis A. Westmore at
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The first joint letter is about Defendants' responses to Plaintiffs' discovery requests.
Defendants listed above. According to the first joint letter, Defendants have objected to all of the
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discovery, and have not provided answers to any of the interrogatories, or produced any documents.
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Dkt #160 at 3-4 ("Defendants did not produce a single document nor any relevant information.
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Instead, Defendants relied on a series of boilerplate objections and claimed they did not have the
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resources to respond"). But according to the second joint letter, Defendants have provided some
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discovery responses in response to the interrogatories, including some of the identities of ZaaZoom
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Northern District of California
Plaintiffs served one set of interrogatories and one set of requests for production on each of the
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United States District Court
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Solutions LLC's former employees, and the existence of an insurance policy pursuant under which
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Defendants are seeking coverage. See Dkt # 163 at 3-4. The parties attached copies of the discovery
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propounded, but not of Defendants' responses, to the first joint letter. It is unclear whether, and to
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what extent, Defendants have responded to the discovery requests.
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Plaintiffs' discovery seeks the following information: contact and other identifying
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information for members of the ZaaZoom class action; copies of and identification of remotely
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created checks pertaining to this suit; documents evidencing the consent of persons to enroll in the
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coupon program; documents showing refunds made by Defendants; identification of membership
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program websites and affiliates, copies of the ZaaZoom and payday loan websites, and agreements,
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communications, and payments between the operators of ZaaZoom and payday loan websites;
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website traffic data about the ZaaZoom websites; identification of payment processors, and
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agreements and communications between ZaaZoom and its payment processors; complaints and
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customer service inquiries about the ZaaZoom programs, and identification of persons who provided
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customer service; identification of employees and former employees; identification of banks where
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Defendants had depository accounts, and into which remotely created checks were deposited; and
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identification of insurance policies that might provide coverage in this action.
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This case has not yet been certified as a class action. Pre-certification discovery of class
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information is proper when the plaintiff either makes a prima facie showing that Rule 23 is satisfied
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or when the plaintiff shows “that discovery is likely to produce substantiation of the class
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allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). Here, it does not appear
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that Plaintiffs have done so. Plaintiffs' portion of the joint letter does not address Rule 23 standards,
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or explain how the discovery sought is likely to produce substantiation of the class allegations. Nor
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have Plaintiffs argued that some of the discovery they seek is merits discovery, rather than class
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discovery, and that merits discovery is appropriate at this stage of the proceedings. See Dukes v.
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Wal-Mart Stores, Inc., 603 F.3d 571, 594 (9th Cir. 2010), rev'd on other grounds, 131 S. Ct. 2541,
including the ability to cut off discovery to avoid a mini-trial on the merits at the certification
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Northern District of California
180 L. Ed. 2d 374 (U.S. 2011) ("district courts retain wide discretion in class certification decisions,
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United States District Court
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stage"). Because these issues must be resolved, the Court will not, at this time, address Defendants'
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request for sharing of the discovery costs or Defendants' objection to some of the discovery on the
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basis of the putative class members' privacy. Plaintiffs' request in the first joint letter to compel
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discovery is, therefore, denied without prejudice.
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The parties may re-file a joint letter signed by counsel for both parties, explaining what, if
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any, discovery has already been produced, with copies of relevant discovery requests and responses,
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and discussing the relevant pre-certification discovery standards. Further meet and confer before
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refiling a joint letter is encouraged.
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The second joint letter is about Defendants' initial disclosures. Federal Rule of Civil
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Procedure 26(a)(1)(c) requires a party to make initial disclosures at or within 14 days of the Rule
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26(f) conference, unless a different time is set by stipulation or court order. The parties stipulated to
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serve their initial disclosures by March 29, 2013. See Dkt # 145 at 12. Plaintiffs and the other
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Defendants in the case met this deadline, but the Defendants who are a party to this joint letter did
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not. Defendants state that the parties subsequently modified this agreement through the meet and
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confer process, and that the parties agreed that the initial disclosures should coincide with the
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production of the rest of the discovery. Plaintiffs contend that the initial disclosures are untimely,
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and seek evidentiary sanctions.
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It appears that there is no further stipulation or court order modifying the due date of the
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initial disclosures. As such, Defendants' initial disclosures are past due. Within seven days of the
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date of this order, the parties are ordered to again meet and confer to agree on a date by which
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Defendants' initial disclosures will be produced. Defendants may not refuse to produce the initial
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disclosures based on the timing of other discovery. If the parties are unable to fully resolve the
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dispute through the meet and confer process, they shall file another joint letter to the Court, at which
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point the Court will consider awarding sanctions against Defendants or Defendants' counsel.
Accordingly, it is hereby ORDERED that:
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The relief requested in the parties' joint letters is denied without prejudice. See Dkt # 160,
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Northern District of California
163.
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United States District Court
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production of Defendants' initial disclosures.
The parties shall meet and confer within seven days of the date of this order regarding the
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DATE: May 1, 2013
__________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE
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