Perez et al v. State Farm Mutual Automobile Insurance Company et al

Filing 346

ORDER RE FURTHER DISCOVERY by Judge Paul S. Grewal granting 314 Motion; granting 317 Motion; granting 325 Motion (psglc1, COURT STAFF) (Filed on 5/31/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SARAH PEREZ, ET AL.,

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Plaintiffs,
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v.
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STATE FARM MUTUAL
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AUTOMOBILE INS. CO., ET AL.,
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Defendants.
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__________________________________ )

Case No.: C-06-01962 JW (PSG)
ORDER RE FURTHER DISCOVERY
(Docket Nos. 314, 317, 325, 328, 332,
336)

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Plaintiffs Sarah Perez, Michelle Lackney, Stewart and Rachel Hardyck, on behalf of
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themselves and all others similarly situated (collectively "Plaintiffs"), moved for consideration of
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certain discovery disputes on an expedited basis pursuant to the procedures set forth in the
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court’s April 22, 2011 Order.1 Defendants filed their respective responses on May 25, 2011,2

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and have separately filed various motions for administrative relief from the court’s previous
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orders.3 On May 27, 2011, the parties appeared for hearing. Having reviewed the papers and

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considered the arguments of counsel, the court rules as follows.
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See Docket No. 302.

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See Docket Nos. 338, 339, 340, 341, and 344.

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See Docket Nos. 314, 317, 325, and 328.

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ORDER, page 1

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I.

Plaintiffs’ Motion for Discovery (Docket No. 336)

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A.

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Plaintiffs state that Defendant General Insurance Company (“GEICO”) previously agreed

GEICO’s Document Production

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to produce documents responsive to Document Request Nos. 1(a)-(d), but to date has not done

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so. These document requests seek production of certain premium and loss data. As a result of

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an earlier motion to compel by Plaintiffs, the court previously ordered Defendant Allstate

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Insurance Company (“Allstate”) to produce three years of data responsive to three of these same

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four requests.4

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At a hearing on April 29, 2011, Plaintiffs proposed that Allstate specifically produce data

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from the three-year period previously ordered that is aggregated by year, make, and model

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together with a tally of the number of insured in each of Allstate’s rating categories. By letters

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May 13, 2011 and May 16, 2011, Allstate agrees to produce for the years 2004, 2006, and 2009

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reports that set forth by make, model, and year, the variables needed to identify what rating

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factors would apply, and the actual premiums and losses for each vehicle insured. Separately, on

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April 22, 2011, the court ordered State Farm and Liberty Mutual to produce a statistically valid

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sample of documents responsive to Document Requests 1(a)-1(d).5

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GEICO nevertheless argues that a production of documents responsive to the above

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document requests is unduly burdensome. In support of its undue burden claim, GEICO submits

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the declaration of Dave Fessel, GEICO’s Director of Information Technology. GEICO does not

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dispute that the data requested is discoverable, or that a restriction of the sample period to three

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years would significantly reduce the number of hours Mr. Fessel’s organization would have to

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expend to gather and produce the data.

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The court is not persuaded that GEICO’s burden is any more undue than that of Allstate,

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State Farm or Liberty Mutual. Accordingly, Plaintiffs’ motion as to GEICO therefore is

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GRANTED. GEICO shall produce three years of data responsive to Document Request Nos.

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1(a)-(d). GEICO shall select the three years of the sample so as to provide a statistically valid

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See Docket No. 295 at 6.

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See Docket No. 302 at 5.

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ORDER, page 2

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representation of the entire class period. GEICO shall produce the documents no later than June

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24, 2011.

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B.

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Plaintiffs seek leave to propound interrogatories in excess of both the presumptive 25-

Interrogatory Limits

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interrogatory limit set forth in Fed. R. Civ. P. 33(a)(1) and the additional 10 interrogatories

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authorized by the court’s April 22 Order. Plaintiffs argue that in light of the complexity of the

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action, additional interrogatories on the parties are warranted.

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Defendants object to exceeding the presumptive limits on the grounds that they are

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burdensome, and as drafted, comprise approximate 50 interrogatories, including all discrete sub-

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parts.

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The court is not persuaded that the additional requested interrogatories are warranted,

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especially where Plaintiffs have plainly and inappropriately used subparts to address multiple

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topics in a single interrogatory.6 Plaintiffs’ motion as to interrogatories therefore is DENIED.

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Unless and until further ruling by Judge Ware, the presumptive limit shall apply except as to the

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10 merits-focused interrogatories specifically authorized by the court on April 22. No later than

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June 10, 2011, Plaintiffs shall re-serve their outstanding interrogatories consistent with this

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order.

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II.

State Farm’s Motion for Administrative Relief (Docket No. 314)

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In the April 22 Order, State Farm and Liberty Mutual were ordered to “produce a

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statistically valid sample of all documents, including estimates, appraisals and payments,

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responsive both to the requests [], as well as Plaintiffs’ Document Request Nos. 1(a)-(d), 2(a)-

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See Collaboration Properties, Inc. v. Polycom, Inc., 224 F.R.D. 473, 475 (N.D. Cal.
2004) (single interrogatory seeking information about 26 separate products held to contain 26
discrete subparts); Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685-686 (D. Nev.
1997) (“discrete or separate questions should be counted as separate interrogatories,
notwithstanding they are joined by a conjunctive word and may be related”); Willingham v.
Ashcroft, 226 F.R.D. 57, 59 (D.D.C. 2005) (“[O]nce a subpart of an interrogatory introduces an
inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that
precedes it, the subpart must be considered a separate interrogatory no matter how it is
designated.”).
ORDER, page 3

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(d), 3, 4, 5, 8, 9, 10, 11, 12, 17, 18, 19-21, 25, 26, 27.”7

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By administrative motion, State Farm states that an issue arising from the April 22, 2011

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Order requires further clarification. Document Request No. 2 directs State Farm to produce data

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from 1995 to 2010. State Farm, however, claims that it specified non-OEM crash parts only

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until sometime in 1999. State Farm further notes that the putative class period here includes

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March 2002 until the present. State Farm therefore argues that any statistically valid sample that

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includes data beginning in 1995 would be misleading.

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Plaintiffs advance two reasons to justify the discovery sought. First, Plaintiffs argue that

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the alleged conspiracy began in the 1980s and they “believe that a correct sampling of premium

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data by year will demonstrate that there was no sea change in the use of non-OEM and salvage

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parts by State Farm after 1999, and no sea change in the premium impact (or lack thereof) as

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State Farm implies.” Plaintiffs next argue that while State Farm may no longer have specified

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non-OEM crash parts after 1999, the harm from State Farm’s prior conduct extended into the

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class period.

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The court is not persuaded that the production of data that pre-dates the putative class

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period is warranted. Plaintiffs merely speculate that economic modeling based on data from

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1995 to 1999 may support their belief that State Farm insureds realized no additional savings.

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But Plaintiffs present no specific evidence supporting this speculation, even in the face of

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repeated entreaties by the court at the May 27 hearing for something, indeed anything, beyond

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attorney argument. Plaintiffs alternatively speculate that State Farm’s conduct that pre-dated the

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putative class period later caused damages within the class period, but again, offer no evidence

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to support their speculation. Accordingly, State Farm’s administrative motion is GRANTED.

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State Farm’s obligation under the court’s April 22, 2011 Order to produce documents responsive

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to Document Request No. 2 shall not extend to any time period pre-dating March 2002.

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III.

Liberty Mutual Fire Insurance Company’s Motion for Administrative Relief
(Docket No. 317)

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Liberty Mutual Fire Insurance Company (“Liberty Mutual”) likewise seeks clarification

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See Docket No. 302.
ORDER, page 4

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regarding certain parameters of the April 22, 2011 Order.
First, Section V. 4 of the April 22, 2011 Order required Liberty Mutual to produce

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California-specific, disaggregated data from Audatex regarding prices for OEM and non-OEM

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crash parts by vehicle model. No temporal limitations were provided. Liberty Mutual states that

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Audatex’s Insight program does not have data prior to January 2008, and request clarification

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that its obligation under Section V.4 does not extend to any time period pre-dating January 2008.

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Plaintiffs have no objection to the temporal limitation proposed by Liberty Mutual.

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Accordingly, Liberty Mutual’s request is GRANTED.

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Second, Liberty Mutual refers to Section V.2 of the April 22, 2011 Order and similarly

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notes the lack of any temporal limitations on the production of documents. Liberty Mutual states

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that Plaintiffs seek documents beginning either on or after January 1, 2000 or from January 1999

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up to the present. Plaintiffs advance the same arguments as they did in opposing State Farm’s

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administrative motion discussed above. As discussed above, Plaintiffs have not shown that

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documents that pre-date the putative class period are warranted. Liberty’s request therefore is

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GRANTED. Liberty Mutual’s obligation to produce documents responsive under Section V.2

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shall not extend to any time period pre-dating March 2002.

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Third, Liberty Mutual complains that, like Allstate, it should only have to produce three

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sample years of data responsive to Document Request No. 1(a)-(c). Liberty Mutual contends

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that it should not have to incur any greater obligation than Allstate. Having previously reviewed

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the parties’ respective proposals and considered the arguments of counsel, the court is again

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persuaded that a three year sample adequately balances the parties’ respsctive interests. Liberty

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Mutual’s request to narrow its production obligation to only three sample years is GRANTED.

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Fourth, Liberty Mutual objects to producing any documents it has provided to its

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consulting experts. State Farm joins in this objection. Plaintiffs do not oppose the request, and

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the court agrees. Liberty Mutual’s motion therefore is GRANTED. State Farm and Liberty

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Mutual need not produce any responsive documents that they have provided to consulting

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experts.

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ORDER, page 5

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IV.

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Allstate Indemnity Company’s Motion for Administrative Relief (Docket No. 325)
Allstate requests that the court vacate paragraph 2 of the April 29, 2011 Order. The April

29, 2011 Order specified the following:

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No later than May 13, 2011, Allstate shall supplement the report bearing Bates
number ALLSTATE 0007982 by identifying, for each line item entry, the
PART_CNT and TOTAL_PRICE_AMT figures by aftermarket, OEM, non-OEM,
and recycled parts.

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As an initial matter, Allstate states that it lacks the computer program and data necessary
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to supplement the above report as ordered. In support of its request, Allstate submits a
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declaration from Sandee Lindorfer who has overall responsibility for Allstate’s relationship with
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Audatex. She states that Audatex prepared the report bearing Bates number ALLSTATE
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0007982 and confirms that Allstate lacks the data or program to supplement the report. Allstate
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further notes that Plaintiffs have served a subpoena on Audatex for the same documents as those
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set forth in paragraph 2 of the April 29, 2011 Order. Plaintiffs have not opposed the request.
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Based on Allstate’s representation that it is unable to supplement the report and
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Plaintiffs’ own efforts to subpoena the same documents from Aufatex, Allstate’s motion is
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GRANTED.
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V.

Plaintiffs’ Request for Ruling Regarding Allstate Premium/Rating Discovery
(Docket No. 332)

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In Plaintiffs’ May 24, 2011 letter, they state that no further action by the court is required

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at this time. Allstate represents that it will produce responsive documents to OSKR on or before

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May 31, 2011. Plaintiffs’ request therefore is DENIED as moot.

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VI.

Further Scheduling Order

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Prior to the close of class discovery on July 31, 2011, there will be two additional

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hearings. The first hearing will be held on June 9, 2011 at 10AM. Opening briefs shall be filed

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on June 3, 2011 and any responses shall be filed on June 7, 2011. The second hearing will be

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held on July 1, 2011 at 10AM. Opening briefs shall be filed on June 24, 2011 and any responses

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ORDER, page 6

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shall be filed on June 28, 2011. In each instance, no reply briefs will be considered.
IT IS SO ORDERED.

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Dated: May 31, 2011
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PAUL S. GREWAL
United States Magistrate Judge

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ORDER, page 7