Brinker v. Normandin's

Filing 85

Order on 81 Discovery Dispute Joint Report 4 by Magistrate Judge Howard R. Lloyd. (hrllc1S, COURT STAFF) (Filed on 4/8/2016)

E-Filed 4/8/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN BRINKER,
Plaintiff,

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ORDER ON DISCOVERY DISPUTE
JOINT REPORT 4

v.
NORMANDIN'S, et al.,

Re: Dkt. No. 81

Defendants.

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United States District Court
Northern District of California

Case No. 14-cv-03007-EJD (HRL)

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Alan Brinker (“Brinker”) sues Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram

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(“Normandin”) and OneCommand, Inc. (“OneCommand”) in this class action for alleged

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violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. The putative class

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includes everyone in the United States “to whom: (a) Defendants made one or more non-

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emergency telephone calls; (b) promoting Defendant Normandin’s goods or services; (c) to their

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cellular telephone number; (d) through the use of an automatic telephone dialing system or an

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artificial or prerecorded voice; and (e) at any time in the period that begins four years before the

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date of filing this Complaint to trial.” Dkt. No. 36 at 4-5. Brinker has not yet moved for class

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certification.

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Brinker and OneCommand filed Discovery Dispute Joint Report (“DDJR”) 4; they dispute

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whether OneCommand should produce any unproduced documents, databases, and other

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electronically stored information that identify putative class members or contain contact

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information for those class members. Dkt. No. 81 at 2-3.

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Discussion

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Brinker argues: (1) OneCommand does not claim that the production of the requested

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discovery would be disproportionate to the needs of this case or unduly burdensome; and (2)

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OneCommand has raised no valid reason to withhold the relevant information Brinker requested.

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Dkt. No. 81 at 5-8. OneCommand responds it is appropriate to withhold the requested information

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because: (1) Brinker’s alleged injury is not typical of the injury that may have been suffered by

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people who were called with a different prerecorded message, and so any information about

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people who were called with a different prerecorded message is irrelevant; and (2) Brinker’s

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request for “additional call data” could have been raised “prior to the submission of” DDJR 3,

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which involved a similar issue, and therefore “in keeping with the Court’s standing order on

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discovery disputes . . . [Brinker] should now be precluded from further delaying his motion for

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class certification and from seeking to expand the scope of the class[.]” Dkt. No. 81 at 8-12.
OneCommand does not clearly state why it believes the undersigned’s Standing Order re:

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Civil Discovery Disputes provides a basis for denying Brinker’s request to compel supplemental

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United States District Court
Northern District of California

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production.

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unresolved until some looming deadline forces them into action,” but that warning does not mean,

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as OneCommand seems to argue, that a litigant waives the ability to raise a discovery dispute if he

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could have discovered and raised that dispute a few months sooner. And although it is true that

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DDJR 3 involved similar issues, that fact does not support OneCommand’s argument that the

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dispute at issue in DDJR 4 should have been raised before DDJR 3 was filed. To the extent that

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the dispute in DDJR 4 is distinct from the dispute in DDJR 3, the undersigned’s standing order

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prohibits parties from filing related-but-distinct disputes together in a single DDJR. To the extent

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that the disputes are the same, the order on DDJR 3 already conclusively ruled that Brinker is

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entitled to discover “the name[]” and “phone number” of each putative class member. Dkt. No. 70

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at 3. The undersigned therefore rejects the argument that Brinker violated the Standing Order re:

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Civil Discovery Disputes by failing to discover and raise the discovery dispute at issue in DDJR 4

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a few months sooner.

That order cautions litigants “not to allow discovery disagreements to drag on

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The court also rejects OneCommand’s typicality argument. The class defined in the

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operative complaint does not narrowly include people who received the same prerecorded message

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as Brinker; instead, the proposed class broadly includes people Defendants called “through the use

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of an automatic telephone dialing system or an artificial or prerecorded voice” in order to

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“promot[e] . . . Normandin’s goods or services[.]” Dkt. No. 36 at 4-5. It would be procedurally
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improper to adjudicate the issue of typicality in the context of a discovery dispute rather than in

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the context of a motion for class certification; accordingly, it was improper for OneCommand to

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withhold relevant and discoverable materials related to members of the proposed class based on

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the belief that an impending motion for class certification should eventually be denied for lack of

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typicality.
The court notes that the order on DDJR 3 already ruled on the extent to which Brinker is

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entitled to discover details about the putative class members—names and phone numbers, but not

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other details, are relevant and discoverable for the use of Brinker in support of the impending

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motion for class certification. Dkt. No. 70 at 3. OneCommand shall therefore produce: (1) the

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documents, databases, and other electronically stored information that contain the names of any

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United States District Court
Northern District of California

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members of the proposed class; and (2) the documents, databases, and other electronically stored

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information that contain the phone numbers for any members of the proposed class. Any such

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discovery materials shall be produced regardless of whether they relate to proposed class members

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who were called with messages different from the message used to call Brinker. OneCommand

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shall complete this production no later than April 14, 2016.

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IT IS SO ORDERED.
Dated: 4/8/16

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HOWARD R. LLOYD
United States Magistrate Judge

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