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)

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E-Filed 4/8/16 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALAN BRINKER, Plaintiff, 8 9 10 ORDER ON DISCOVERY DISPUTE JOINT REPORT 4 v. NORMANDIN'S, et al., Re: Dkt. No. 81 Defendants. 11 United States District Court Northern District of California Case No. 14-cv-03007-EJD (HRL) 12 Alan Brinker (“Brinker”) sues Normandin’s d/b/a Normandin Chrysler Jeep Dodge Ram 13 (“Normandin”) and OneCommand, Inc. (“OneCommand”) in this class action for alleged 14 violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. The putative class 15 includes everyone in the United States “to whom: (a) Defendants made one or more non- 16 emergency telephone calls; (b) promoting Defendant Normandin’s goods or services; (c) to their 17 cellular telephone number; (d) through the use of an automatic telephone dialing system or an 18 artificial or prerecorded voice; and (e) at any time in the period that begins four years before the 19 date of filing this Complaint to trial.” Dkt. No. 36 at 4-5. Brinker has not yet moved for class 20 certification. 21 Brinker and OneCommand filed Discovery Dispute Joint Report (“DDJR”) 4; they dispute 22 whether OneCommand should produce any unproduced documents, databases, and other 23 electronically stored information that identify putative class members or contain contact 24 information for those class members. Dkt. No. 81 at 2-3. 25 Discussion 26 Brinker argues: (1) OneCommand does not claim that the production of the requested 27 discovery would be disproportionate to the needs of this case or unduly burdensome; and (2) 28 OneCommand has raised no valid reason to withhold the relevant information Brinker requested. 1 Dkt. No. 81 at 5-8. OneCommand responds it is appropriate to withhold the requested information 2 because: (1) Brinker’s alleged injury is not typical of the injury that may have been suffered by 3 people who were called with a different prerecorded message, and so any information about 4 people who were called with a different prerecorded message is irrelevant; and (2) Brinker’s 5 request for “additional call data” could have been raised “prior to the submission of” DDJR 3, 6 which involved a similar issue, and therefore “in keeping with the Court’s standing order on 7 discovery disputes . . . [Brinker] should now be precluded from further delaying his motion for 8 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: 10 Civil Discovery Disputes provides a basis for denying Brinker’s request to compel supplemental 11 United States District Court Northern District of California 9 production. 12 unresolved until some looming deadline forces them into action,” but that warning does not mean, 13 as OneCommand seems to argue, that a litigant waives the ability to raise a discovery dispute if he 14 could have discovered and raised that dispute a few months sooner. And although it is true that 15 DDJR 3 involved similar issues, that fact does not support OneCommand’s argument that the 16 dispute at issue in DDJR 4 should have been raised before DDJR 3 was filed. To the extent that 17 the dispute in DDJR 4 is distinct from the dispute in DDJR 3, the undersigned’s standing order 18 prohibits parties from filing related-but-distinct disputes together in a single DDJR. To the extent 19 that the disputes are the same, the order on DDJR 3 already conclusively ruled that Brinker is 20 entitled to discover “the name[]” and “phone number” of each putative class member. Dkt. No. 70 21 at 3. The undersigned therefore rejects the argument that Brinker violated the Standing Order re: 22 Civil Discovery Disputes by failing to discover and raise the discovery dispute at issue in DDJR 4 23 a few months sooner. That order cautions litigants “not to allow discovery disagreements to drag on 24 The court also rejects OneCommand’s typicality argument. The class defined in the 25 operative complaint does not narrowly include people who received the same prerecorded message 26 as Brinker; instead, the proposed class broadly includes people Defendants called “through the use 27 of an automatic telephone dialing system or an artificial or prerecorded voice” in order to 28 “promot[e] . . . Normandin’s goods or services[.]” Dkt. No. 36 at 4-5. It would be procedurally 2 1 improper to adjudicate the issue of typicality in the context of a discovery dispute rather than in 2 the context of a motion for class certification; accordingly, it was improper for OneCommand to 3 withhold relevant and discoverable materials related to members of the proposed class based on 4 the belief that an impending motion for class certification should eventually be denied for lack of 5 typicality. The court notes that the order on DDJR 3 already ruled on the extent to which Brinker is 7 entitled to discover details about the putative class members—names and phone numbers, but not 8 other details, are relevant and discoverable for the use of Brinker in support of the impending 9 motion for class certification. Dkt. No. 70 at 3. OneCommand shall therefore produce: (1) the 10 documents, databases, and other electronically stored information that contain the names of any 11 United States District Court Northern District of California 6 members of the proposed class; and (2) the documents, databases, and other electronically stored 12 information that contain the phone numbers for any members of the proposed class. Any such 13 discovery materials shall be produced regardless of whether they relate to proposed class members 14 who were called with messages different from the message used to call Brinker. OneCommand 15 shall complete this production no later than April 14, 2016. 16 17 IT IS SO ORDERED. Dated: 4/8/16 18 19 HOWARD R. LLOYD United States Magistrate Judge 20 21 22 23 24 25 26 27 28 3

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