Coleman et al v. Weyerhaeuser Company
ORDER denying in part and denying as moot in part 1 Motion to Quash, by Magistrate Judge Michael E. Hegarty on 4/10/2018. Infinity must respond to subpoena requests six, nine, eleven, twelve, and sixteen to the extent it has not already done so. (tsher, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Misc. Action No. 17-mc-00200-MSK-MEH
INFINITY HOME COLLECTION,
JAMAL COLEMAN, and
SHEENA COLEMAN, individually and on behalf of all others similarly situated,
ORDER ON MOTION TO QUASH
Michael E. Hegarty, United States Magistrate Judge.
Movant Infinity Home Collection (“Infinity”) seeks to quash Plaintiffs Jamal Coleman and
Sheena Coleman’s subpoena. I first find that, although disfavored, class-wide discovery is not
prohibited at this stage. I then find that five of Plaintiffs’ six requests seek relevant, nonburdensome, and non-privileged information. However, Infinity’s motion is moot as to the sixth
disputed request. Therefore, I deny in part and deny as moot in part Infinity’s Motion to Quash
On August 4, 2017, Plaintiffs filed a class action complaint against Weyerhaeuser Company
in the United States District Court for the District of Delaware. See Compl., ECF No. 1, No. 17-cv-
01093-JFB-SRF (D. Del. Aug. 4, 2017). Weyerhaeuser produces and sells joists, which are installed
in homes and other structures. Id. at ¶¶ 3, 27. Plaintiffs allege Weyerhaeuser attempted to enhance
the fire protection of its TJI joists by coating them with “Flak Jacket Protection.” Id. ¶¶ 23–24.
However, according to Plaintiffs, the Flak Jacket Protection contains a formaldehyde-based resin,
which emits excessive levels of noxious and toxic gases. Id. ¶¶ 26, 34. These gases allegedly render
homes unhabitable. Id. ¶ 34.
Based on these allegations, Plaintiffs assert claims for: (1) breach of express warranty, (2)
breach of implied warranty of merchantability, (3) violation of the Magnuson-Moss Warranty Act,
(4) negligence, (5) negligent failure to warn, (6) violation of the Delaware Consumer Fraud Act, (7)
unjust enrichment, and (8) declaratory relief. Id. ¶¶ 58–146. Plaintiffs assert these claims on behalf
of themselves and all individuals and entities who own or have signed contracts to purchase homes
in which Weyerhaeuser’s joists are installed. Id. ¶ 1.
On November 20, 2017, Magistrate Judge Sherry Fallon issued a Scheduling Order.
Scheduling Order, ECF No. 14, No. 17-cv-01093-JFB-SRF (D. Del. Nov. 20, 2017). This order sets
August 1, 2018 as the deadline for a class certification motion. Id. at 6. Additionally, the order
states that the parties will prioritize discovery relating to class certification issues. Id. at 2.
On November 29, 2017, Plaintiffs served a subpoena on Infinity—one of the thirty-five
entities that constructed homes with the allegedly defective joists. See Subpoena, ECF No. 1-3;
Reply in Supp. of Mot. to Quash 3, ECF No. 27 (“Infinity acknowledges that it was one of the thirtyfive (35) builders.”). The subpoena contains eighteen requests for documents. Subpoena 4–7. On
December 14, 2017, Infinity filed the present Motion to Quash Subpoena in this District. Mot. to
Quash, ECF No. 1. Infinity contends the subpoena impermissibly seeks merits-related discovery,
does not allow a reasonable time to comply, seeks disclosure of privileged information, subjects it
to undue burden, and impermissibly asks for information in Weyerhaeuser’s possession. Id. at 4–7.
Plaintiffs’ response brief notes that the parties have narrowed the scope of the subpoena to six
requests. Resp. to Mot. to Quash 6, ECF No. 21. Plaintiffs argue these requests seek relevant and
non-burdensome information. Id. at 6–16. After Plaintiffs filed their brief, Infinity partially
responded to the remaining requests. Reply in Supp. of Mot. to Quash 8–10, ECF No. 27. However,
Plaintiffs still believe that Infinity’s production was inadequate. Id. at 10.
“[T]he scope of discovery under the federal rules is broad.” Gomez v. Martin Marietta
Corp., 50 F.3d 1511, 1520 (10th Cir. 1995). Federal Rule of Civil Procedure 26(b)(1) permits
discovery regarding any nonpriviliged matter that is relevant to a party’s claim or defense and
proportional to the needs of the case. Federal Rule of Evidence 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.” In
considering whether the discovery is proportional to the needs of the case, Rule 26(b)(1) instructs
courts to analyze “the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The party objecting to discovery must
establish that the requested information does not fall under the scope of discovery. Simpson v.
University of Colo., 220 F.R.D. 354, 359 (D. Colo 2004).
A subpoena served on a third party pursuant to Federal Rule of Civil Procedure 45 is subject
to the same standards that govern discovery between the parties—it must seek relevant information
and be proportional to the needs of the case. Segura v. Allstate Fire & Cas. Ins. Co., No. 16-cv00047-NYW, 2016 WL 8737864, at *5 (D. Colo. Oct. 11, 2016) (citing Rice v. United States, 164
F.R.D. 556, 556–57 (N.D. Okla. 1995)). Rule 45 requires courts to quash a subpoena that “(i) fails
to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical
limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A).
Additionally, a court may quash a subpoena if the subpoena requires disclosure of a trade secret or
other confidential information. Fed. R. Civ. P. 45(d)(3)(B).
I deny Infinity’s request to quash the subpoena. I first find that pre-certification discovery
is not limited to class-certification issues unless the discovery would pose an undue burden on the
responding party. Then, I find that requests six, nine, eleven, twelve, and sixteen seek relevant, nonprivileged, and non-burdensome information. I decline to address the discoverability of request
seventeen, because Infinity has complied with that request.
Class-wide discovery related to the merits of a class action is not categorically prohibited
prior to certification. See In re Bank of Am. Wage & Hour Emp’t Practices Litig., 275 F.R.D. 534,
541 (D. Kan. 2011) (“[T]here is no bright-line rule that in the pre-certification stage of discovery,
plaintiffs must come forward with evidence of a nationwide policy or practice before being allowed
to obtain discovery aimed at that very issue.”). Instead, “the recognized need for pre-certification
discovery is subject to limitations which may be imposed by the court, and any such limitations are
within the sound discretion of the court.” Tracy v. Dean Witter Reynolds, Inc., 185 F.R.D. 303,
304–05 (D. Colo. 1998). To be sure, pre-certification discovery should generally pertain to the
requirements of Rule 23. Allen v. Mill-Tel, Inc., 283 F.R.D. 631, 634 (D. Kan. 2012). The reason
for this general rule is that responding to class-wide discovery before the plaintiff has demonstrated
the requirements for class certification frequently presents an undue burden on the responding party.
See, e.g., Tracy, 185 F.R.D. at 305 (stating that pre-certification discovery should not be “so broad
that the discovery efforts present an undue burden on the defendant”); Nat. Org. for Women,
Farmington Valley Chapter v. Sperry Rand Corp., 88 F.R.D. 272, 276 (D. Conn. 1980) (denying
pre-certification discovery because of the burden it posed on the defendant). However, “when the
burden imposed on the responding party is minimal or non-existent,” the trial court may exercise
its discretion to allow discovery beyond matters related to class certification. See Allen, 283 F.R.D.
In the action underlying this miscellaneous case, the court has not entirely prohibited merits
discovery. Although that court’s Scheduling Order creates a preference for discovery related to
certification, it does not prohibit merits discovery. See Scheduling Order 2, ECF No. 14, No. 17-cv01093-JFB-SRF (D. Del. Nov. 20, 2017) (“The parties agree to prioritize class discovery . . . .”).
Therefore, to the extent Plaintiffs seek information unrelated to class certification, I will limit the
request only if responding prior to class certification would impose an undue burden on Infinity.
See Roberts v. C.R. England, Inc., No. 12-cv-0302, 2013 WL 3893987, at *3 (D. Utah July 26, 2013)
(refusing to limit pre-certification discovery, in part because “[d]iscovery in this case was not
bifurcated . . . .”).
Request Number Six
Plaintiffs’ sixth request seeks:
All documents constituting or relating to communications (written, email, oral or
otherwise) between You and any other individual or entity regarding the TJI Joists,
including, without limitation, any governmental entity, realtor, real estate agent,
prospective homebuyer, insurance company, bank, mortgage lender, contractor,
subcontractor, vendor, inspection company, testing company, engineer, architect,
builder, customer, customer’s lawyer or representative, etc.
Subpoena 5, ECF No. 1-3. This request is relevant to class certification and the merits of Plaintiffs’
class claims. Communications that Infinity had with home buyers may demonstrate potential class
members’ knowledge of the defect and how the joists affected their purchasing decisions.
Correspondence with other individuals and entities may explain how the defects manifested
themselves in the homes Infinity built. This information is relevant to Rule 23’s commonality and
predominance requirements. Indeed, if potential class members learned of the defect at significantly
different times, it may be difficult to establish commonality with regard to Plaintiffs’ negligent
failure to warn claim. Similarly, if the defects with the joists manifested themselves differently, it
may be difficult to establish that common issues predominate, especially with regard to damages.
Therefore, I find this request relevant to the requirements of Rule 23 and to the merits of a potential
Infinity contends the information Plaintiffs seek is privileged and that responding to the
request would impose an undue burden. Mot. to Quash 6–7, ECF No. 1. According to Infinity, the
information is privileged, because request six seeks “lawyer communications.” Id. at 6. However,
the request asks for communications between Infinity and its customer’s lawyer, not
communications between Infinity and its own lawyers. Subpoena 5. Therefore, Infinity has not met
its burden of demonstrating that the requested information is protected by the attorney-client
privilege. See Upjohn Co. v. United States, 449 U.S. 383, 390 (1981) (stating that the purpose of
the attorney-client privilege “is to encourage full and frank communication between attorneys and
their clients” (emphasis added)). Regarding Infinity’s undue burden contention, Infinity does not
specifically explain how responding to this request will be burdensome. See, e.g., Simpson v. Univ.
of Colo., 220 F.RD. 354, 359 (D. Colo. 2004) (“An objecting party cannot sustain [its] burden with
boilerplate claims that the requested discovery is oppressive, burdensome or harassing.”).
Therefore, I deny Infinity’s request to quash the subpoena with regard to request six.1
Request Number Nine
Plaintiffs’ ninth request asks for: “Documents sufficient to show the first date on which
Weyerhaeuser notified You of any problems with the TJI Joists.” Subpoena 6, ECF No. 1-3.
Regardless of whether this case proceeds as a class action, the date on which Weyerhaeuser
informed Infinity of the defects is relevant to the merits of Plaintiffs’ negligence and negligent
failure to warn claims. Plaintiffs allege Weyerhaeuser was negligent and negligently failed to warn
Plaintiffs, because it sold the joists despite being aware of the foreseeable risks associated with
them. Complaint ¶¶ 105, 112, ECF No. 1, No. 17-cv-01093-JFB-SRF (D. Del. Aug. 4, 2017). The
date Weyerhaeuser informed its builders of the defect may help establish when Weyerhaeuser
became aware of the defect. If Weyerhaeuser informed Infinity of the defect long before it informed
Plaintiffs, this would help prove Plaintiffs’ individual claims for negligence and negligent failure
Infinity argues in its motion that the subpoena fails to allow a reasonable time to comply.
Mot. to Quash 5. However, the parties have engaged in a lengthy conferral process since Infinity
raised this objection, and Plaintiffs state they are willing to provide Infinity even more time to
comply. Furthermore, Infinity abandons this argument in its reply brief. Therefore, I need not
decide whether the subpoena provided a reasonable amount of time to respond.
Infinity argues that Plaintiffs’ requests impermissibly seek information available from
Weyerhaeuser.2 Mot. to Quash 7, ECF No. 1. Although a subpoena is more likely to impose an
undue burden when it seeks information available from a party to the action, I have no evidence
before me indicating that Weyerhaeuser preserved its communications with Infinity. Furthermore,
as Plaintiffs recognize, Infinity could likely respond to the request by producing a single letter or
email. Therefore, the request does not subject Infinity to an undue burden, and I decline to quash
the subpoena as to the ninth request.
Request Number Eleven
Plaintiffs’ eleventh request seeks: “All documents constituting or relating to Your efforts to
notify Your customers and/or contractors and/or subcontractors about the problems with the TJI
Joists.” Subpoena 6, ECF No. 1-3. As an initial matter, Infinity has substantially complied with this
request. During the parties’ conferral process, Plaintiffs informally asked for: “All disclosures to
buyers/realtors regarding the joists at issue/formaldehyde/remediation.” Reply in Supp. of Mot. to
Quash 8, ECF No. 27. In response, Infinity produced four letters it sent to a specific home buyer,
a form correspondence sent to home buyers who were under contract, and a form disclosure
provided to home buyers who executed contracts once marketing recommenced on affected homes.
See ECF No. 27-1. Plaintiffs acknowledged in their response brief that “form letters and perhaps
a few individualized communications” would satisfy their eleventh request. Resp. to Mot. to Quash
8, ECF No. 21.
However, to the extent Infinity has responsive documents it has not produced, Infinity must
Infinity does not specify which requests seek information in Weyerhaeuser’s possession.
Because Plaintiffs’ ninth request asks for Weyerhaeuser’s communications, I analyze this objection
as it relates to this request.
provide Plaintiffs with that information. The request is relevant to class certification, because it
seeks information regarding the date each potential class member became aware of the defect. If
Weyerhaeuser informed home buyers of the defect at substantially different times, this may undercut
Plaintiffs’ contention that common issues predominate their negligent failure to warn claim. Indeed,
determining whether Weyerhaeuser was negligent in failing to promptly notify home buyers would
require a different inquiry for each class member. Therefore, Infinity must produce any responsive
material it has not already disclosed.
Request Number Twelve
Plaintiffs’ twelfth request seeks:
Documents sufficient to identify the location and identity of all homes or other
structures that You built that contain or contained the TJI Joists, as well as the
identity of any person(s) or entity(ies) who attended a showing, made an offer on,
purchased, entered into a contract to purchase, or resided in any such home or
structure, and their contact information.
Subpoena 8, ECF No. 21. Similar to Plaintiffs’ eleventh request, Infinity has substantially complied
with this request. Infinity produced a document containing the address of each affected property and
the name of the corresponding home owner. ECF No. 27-1, at 1. Therefore, the only portion of
Plaintiffs’ request with which Infinity has not complied relates to documents identifying individuals
who attended showings or made offers on homes.
I find this remaining information relevant to Plaintiffs’ claims. Individuals who attended
showings and made offers on Infinity’s homes may be able to inform Plaintiffs when they became
aware of the joists and whether the joists affected their purchasing decisions. Although this
information may not be related to class certification, responding to the request will not impose an
undue burden on Infinity. Indeed, the request merely asks Infinity to produce certain individuals’
names. If Infinity possesses this information, it will not be difficult to produce. Because the burden
on Infinity is minimal and because this is the only request that seeks information not directly
relevant to class certification, Infinity must respond to the remaining portion of this request.
Request Number Sixteen
Request sixteen asks for:
Copies of all purchase and sale agreements with homeowners, home purchasers or
prospective purchasers for any home or other structure in which the TJI Joists were
ever installed. This Request includes all purchase and sale agreements regarding the
sale of homes both pre- and post-remediation.
Subpoena 7, ECF No. 1-3. I find this request relevant to class certification. The purchase and sale
agreements list the selling price of each house that contains the joists, which will help establish how
the joists affected home values. Additionally, the agreements may detail any concessions or other
agreements the purchasers made as a result of the joists, which is relevant to creating a class-wide
damages model. Whether damages can be determined on a class-wide basis is an important factor
in deciding whether to certify a class. See Roberts v. C.R. England, Inc., No. 2:12-cv-0302, 2013
WL 3893987, at *2 (D. Utah July 26, 2013) (“Some discovery is necessary prior to a determination
of class certification. This includes the necessity of discovery concerning damages, which must be
rigorously analyzed during the certification process.”); Comcast Corp. v. Behrend, 569 U.S. 27, 34
(2013) (holding that in certain circumstances, being unable to prove class-wide damages may result
in individualized questions that “inevitably overwhelm questions common to the class”).
Infinity objected to a modified version of request sixteen on the basis that the requests
concern confidential and proprietary information. Reply in Supp. of Mot. to Quash 8, ECF No. 27.
However, Infinity does not meet its burden of demonstrating privilege. A party asserting privilege
must “describe the nature of the documents, communications, or tangible things not produced or
disclosed.” Fed. R. Civ. P. 26(b)(5). Infinity does not detail the nature of the documents or explain
why they are privileged. To the extent Infinity believes the agreements contain confidential
information, Infinity may redact any irrelevant personal information, and the documents may be
disclosed pursuant to the protective order in the underlying case. See Stipulated Protective Order,
ECF No. 17, No. 17-cv-01093-JFB-SRF (D. Del. Nov. 30, 2017). Therefore, I find Infinity’s
objection to be without merit, and I deny its request to quash request sixteen.
Request Number Seventeen
Infinity’s motion is moot as to request seventeen, because Infinity has certified that it does
not possess responsive documents. This request seeks: “All documents discussing the effect of the
TJI Joists or the effect of remediation of the TJI Joists on home value(s).” Subpoena 7, ECF No.
1-3. In its reply brief, Infinity details alternative requests that Plaintiffs made while conferring on
this motion. Reply in Supp. of Mot. to Quash 8, ECF No. 27. The first of these requests asks for,
“All documents that relate to diminution in value of homes due to the joists at issue.” Id. Infinity
responded that it “has no documentation related to the diminution in value of homes due to the joists
as issue, and therefore, is unable to produce anything in response to this request.” Id. Because
request seventeen also seeks documents discussing decreases in home value as a result of the joists,
I find the alternative request substantially similar to request seventeen. Infinity has complied with
this request by certifying that it has no responsive documents. Therefore, I deny Infinity’s motion
as moot with regard to request seventeen.
In sum, I find that Infinity must respond to subpoena requests six, nine, eleven, twelve, and
sixteen to the extent it has not already done so. Because Infinity complied with request seventeen,
Infinity’s motion is moot as to this request. Accordingly, Infinity’s Motion to Quash Subpoena
[filed December 14, 2017; ECF No. 1] is denied in part and denied as moot in part.
Entered and dated at Denver, Colorado, this 10th day of April, 2018.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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