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

Filing 373

ORDER RE PARTIES' DISCOVERY MOTIONS by Judge Paul S. Grewal granting 352 Motion for Discovery; denying 349 Motion for Discovery; denying 354 Motion for Discovery (psglc1, COURT STAFF) (Filed on 6/16/2011)

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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 PARTIES’ DISCOVERY
MOTIONS
(Docket Nos. 352, 349, 354)

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On June 9, 2011, the parties appeared for consideration of a variety of discovery disputes
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on an expedited basis. The procedure for such expedited consideration was set forth by the court
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in an order dated April 22, 2011. The disputes were described in letter submitted on June 3,
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2011, to which responses were filed on June 7, 2011. Having reviewed the papers and
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considered the arguments presented on June 9, the court HEREBY ORDERS as follows:
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1.

In the April 22 order, the court was unequivocal that, no later than May 27, 2011, State

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Farm and Liberty Mutual were to produce all documents responsive to Plaintiffs’ Document
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Request Nos. 1(a)-(d), 2(a)-(d), 3-5, 8-12, 17-21 and 25-27, as well as Rule 56(d) requests
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authorized in Section V(1), unless State Farm and Liberty Mutual each tendered a written
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stipulation that a statistically valid sample of all such documents had been produced. Apart from
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the requirement that the sampling be statistically valid, no specific sampling protocol was
ORDER, page 1

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ordered, so that the parties could utilize their far superior knowledge of their data and documents

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to craft a reasonable implementation. The court authorized a statistically valid sample in

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recognition of the general principle that the burden of document production should be

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proportionate to the legitimate benefit, as well as Judge Ware's instruction that Rule 56(d)

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discovery should be "limited."

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Both State Farm and Liberty Mutual have provided a written stipulation about the

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validity of its produced sample, but each has specifically and explicitly limited the population

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included within the sample to just repair estimates, appraisals and pay screens. Put another way,

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it appears that State Farm and Liberty Mutual decided to provide just a sampling of the ordered

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sample. They did so even though they proposed to the court exactly this approach prior to April

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22, and the court rejected it. Despite being specifically authorized by the court and requested by

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Plaintiffs, the sampling populations did not include, among other things, any communications

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with body shops, any customer communications about repairs, or any communications about the

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quality of non-OEM crash parts. No sampling of particular document custodians was included.

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To the extent there was any doubt about this, at the June 9 hearing, both State Farm and Liberty

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Mutual freely acknowledged their self-imposed restrictions. Liberty Mutual further restricted its

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sample population to exclude documents that are not exclusively directed to California, even

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though the court rejected such an argument in an order dated April 22, 2011.1

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State Farm and Liberty Mutual justify their actions by citing Fed. R. Civ. P.

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26(b)(2)(C)(iii) and pointing to the relative burden of a sampling of anything more than what

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they are willing to produce. But even if State Farm and Liberty Mutual produced specific

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evidence of their burden under even the limited sampling ordered by the court, which they have

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not done, the reasonable opportunity for presenting such argument passed with the briefing and

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hearing in advance of April 22 (or at the very latest, the last day either to request reconsideration

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of the April 22 order or seek relief from the presiding judge pursuant to Fed. R. Civ. P. 72.) At

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this point in time, the only issue is whether State Farm and Liberty Mutual have complied with

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At the hearing, Liberty Mutual purported to correct this error by producing additional
documents that reference California in any way.
ORDER, page 2

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the April 22 order. This they plainly have not done.

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Accordingly, Plaintiffs' request for an order compelling production of documents from

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State Farm and Liberty Mutual is GRANTED. No later than July 26, 2011, the deadline for class

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discovery set by the presiding judge, State Farm and Liberty Mutual shall produce all documents

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responsive to Plaintiffs' Document Request Nos. 1(a)-(d), 2(a)-(d), 3-5, 8-12, 17-21, and 25-27.

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No later than July 29, 2011, State Farm and Liberty Mutual shall produce all documents

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responsive to the Rule 56(d) requests authorized in Section V(1) of the April 22 order. In lieu of

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such a production, State Farm and Liberty Mutual may produce a statistically valid sampling of

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all such documents, and not just repair estimates, appraisals and pay screens, no later than July

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13, 2011. As ordered previously, any party relying upon a statistically valid sampling must

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stipulate as such in writing and further stipulate that it will not argue that Plaintiffs' showing

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under the requirements of Fed. R. Civ. P. 23 or 56 is deficient based on any responsive

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documents not produced.

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The parties should further note that if either State Farm or Liberty Mutual again fails to

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comply with the court's order, the court will entertain a motion for sanctions, including a

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recommendation to the presiding judge of issue preclusion, on shortened time.

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2.

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Finance is DENIED. While the court has jurisdiction to enter such a protective order under Fed.

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R. Civ. P. 26(c)(1), Plaintiffs have no identified no reasonable basis to deny GEICO discovery of

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Ms. Stewart's car loan file. As this court has previously explained, the defendants are entitled to

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discovery on the issue of the pricing of the designated class representative's policies.2 GEICO

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has established that its request is "reasonably calculated to the discovery of admissible evidence"

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on this issue,3 and Plaintiffs have failed to identify any counterbalancing burden from the

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requested production. As it has agreed to do, GEICO shall treat any produced materials as

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highly confidential and shall provide copies of the production to Plaintiffs.

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3.

Plaintiffs' request for a protective order against GEICO's subpoena to Wells Fargo Auto

Plaintiffs' request for an order compelling further interrogatory responses from State

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See Docket No. 301 at 3.

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See Fed. R. Civ. P. 26(b)(1).

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ORDER, page 3

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Farm, Liberty Mutual, Allstate and GEICO is GRANTED, but only in part. The court previously

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explained that subparts may not be used to address multiple topics in a single interrogatory.

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Having reviewed Plaintiffs' reserved interrogatories, the court is not satisfied that Plaintiffs'

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requests adhere to the court’s previous admonition to avoid lumping together in a single

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interrogatory "separate and distinct" inquiries, even if they are "related." As just one example, in

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Interrogatory No. 10 in Plaintiffs’ Second Set of Interrogatories to State Farm, Plaintiffs request

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the following: "(a) the criteria and data used by State Farm to determine whether such sample is

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statistically valid, a description of the unit of observation (e.g. estimates); (b) the number of

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sampled observations/data points (e.g., estimates) in the sample set, and the total number of data

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points (e.g., estimates) in the population form which that sample set was taken; (c) the

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dimensions on which you believe each sample is representative of the population from which it

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is drawn, the value of the relevant statistic (e.g., average, proportion, frequency, etc.) and the

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confidence interval and margin of error around that statistic; (d) the ex ante sampling plan

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developed for each sample (from each distinct population of documents); (e) what steps were

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taken to ensure that no deviation from the protocol occurred, and to ensure and memorialize that

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no post-sample changes were made to the set of sampled documents, such as returning a

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document to the population and replacing it with a newly drawn document; and (f) the identity

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and role of all persons involved in creating, approving, or providing data for each example."

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State Farm, Liberty Mutual and Allstate need only provide responses to those interrogatory parts

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served up to the presumptive limits imposed by Fed. R. Civ. P. 33 and the court's April 22 order.

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4.

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moot. At the June 9 hearing, Plaintiffs did not oppose the request and submitted the materials for

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the court’s inspection.

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State’s Farm’s request for an in camera review of Plaintiffs’ work-product is DENIED as

IT IS SO ORDERED.
Dated: June 16, 2011

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PAUL S. GREWAL
United States Magistrate Judge
ORDER, page 4