Gonzalez v. Etourandtravel, Inc. et al
Filing
64
ORDER granting 44 Motion to Compel answers to interrogatories; granting 45 Motion to Compel responses to requests to produce; granting in part and denying in part 49 Motion to Compel answers to interrogatories and responses to requests to produce. Signed by Magistrate Judge Thomas B. Smith on 3/26/2014. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
AMPARITO GONZALEZ,
Plaintiff,
v.
Case No: 6:13-cv-827-Orl-36TBS
ETOURANDTRAVEL, INC., KOSMAS
GROUP INTERNATIONAL, INC.,
STEVEN P. KOSMAS and J. LANCE
CROFT,
Defendants.
ORDER
Pending before the Court is Plaintiff Amparito Gonzalez’s Motion to Compel
Interrogatory Answers (Doc. 44); Plaintiff’s Motion to Compel Production of Documents
Responsive to Plaintiff’s First Set of Requests for Production (Doc. 45); and Defendants’
Motion to Compel (Doc. 49). For the reasons that follow, Plaintiff’s motions are due to be
granted and Defendants’ motion is due to be granted in part and denied in part.
I.
Background
Plaintiff Amparito Gonzalez’s complaint alleges that during October through
December 2012, she received more than half a dozen autodialed telephone calls,
sometimes referred to as “robocalls,” from Defendants ETourandTravel, Inc. (“ETT”),
Kosmas Group International, Inc. (“Kosmas”), Steven P. Kosmas and J. Lance Croft. 1
(Doc. 44, ¶ 5.3). She alleges that these autodialed calls violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). (Id. ¶ 4.2). She also claims that
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Plaintiff alleges that Mr. Kosmas and Mr. Croft are officers and directors of ETT and Kosmas and
that all four Defendants are alter egos of one another. (Doc. 1 at ¶¶ 3.4-3.6).
Defendants violated the TCPA by failing to honor her request to stop calling her. (Id. ¶
4.3). She seeks damages and injunctive relief under the TCPA on behalf of herself and
on behalf of others who have been subjected to autodialed telephone calls from
Defendants in violation of the TCPA. (Id. ¶ 6.1). Defendants deny liability and have
asserted nineteen affirmative defenses. (Doc. 21).
On May 29, 2013, Plaintiff filed a motion for class certification. (Doc. 2). In that
motion, Plaintiff requested the Court abstain from ruling on the issue until “after the
completion of discovery on class wide issues, at which time Plaintiff will submit a fulsome
memorandum of points and authorities in support of class certification.” (Id. at 1). That
motion remains pending. Defendants have filed a motion for summary judgment which is
also pending. (Doc. 47). In their motion, Defendants argue that it is undisputed that any
telephone calls they made to Plaintiff complied with the TCPA, and, therefore, they are
entitled to summary judgment. (Id.). They reason that because they are entitled to a
summary judgment on Plaintiff’s individual claims, her request to serve as class
representative of the putative class action must fail. (Id. at 2).
The parties have propounded interrogatories and requests for production to each
other and neither side is satisfied with the responses they have received. (Docs. 44-45,
48-49). Their complaints include that Plaintiff asked Defendants to produce 49
categories of documents. (Doc. 48-2). Defendants objected to every request and
produced a total of 5 pages of paper. (Id.). By like token, Defendants asked Plaintiff to
produce 19 categories of documents, and Plaintiff produced a total of 3 pages of paper in
response. (Doc. 49 at 2-3). While the number of pages produced by a party is not
dispositive of anything, the numbers here suggest that the parties are not cooperating in
discovery. The case is now before the Court on their motions to compel. (Docs. 44-45,
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48-49).
II.
Discussion
“The overall purpose of discovery under the Federal Rules is to require the
disclosure of all relevant information so that the ultimate resolution of disputed issues in
any civil action may be based on a full and accurate understanding of the true facts, and
therefore embody a fair and just result.” Oliver v. City of Orlando, No. 6:06-cv-1671-Orl31DAB, 2007 WL 3232227 * 2 (M.D. Fla. Oct. 31, 2007) (citing United States v. Proctor &
Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)). The scope of
discovery under Rule 26(b) is broad and includes “discovery regarding any matter, not
privileged, which is relevant to the claims or defense of any party involved in the pending
action.” Hickman v. Taylor, 329 U.S. 495, 507-08, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
“The Federal Rules of Civil Procedure strongly favor full discovery whenever
possible.” Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).
This rule generally entitles a civil litigant “to discovery of any information sought if it
appears reasonably calculated to lead to the discovery of admissible evidence.” Degen
v. United States, 517 U.S. 820, 825-26, 116 S.Ct. 1777,135 L.Ed.2d 102 (1996) (internal
quotations omitted). “The scope of allowable discovery is determined by the claims (and
defenses) raised in the case.” Chudasama v. Mazda Mortor Corp., 123 F.3d 1353,
1368(11th Cir. 1997). “Evidence is relevant if it has any tendency to make the existence
of any fact or consequence more or less probable than it would be without the evidence.”
United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013). Discovery is intended to
operate with minimal judicial supervision unless a dispute arises and one of the parties
files a motion requiring judicial intervention.
S.L. Sakansky & Associates, Inc. v. Allied
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American Adjusting Co. of Florida, LLC, No. 3:05-cv-708-J-32MCR, 2007 WL 2010860,
*1 (M.D. Fla. Jul. 6, 2007).
Under Federal Rule of Civil Procedure 33, any party can serve on any other party
written interrogatories pertaining to matters within the scope of Fed. R. Civ. P. 26(b).
The party upon whom interrogatories are served has 30 days to respond, either by filing
answers or objections. Fed. R. Civ. P. 33(b). If the party propounding the
interrogatories does not receive a response, then it may request an order compelling
disclosure. Fed. R. Civ. P. 37(a). The party resisting discovery carries the burden to
show specifically how the objected-to request is unreasonable or otherwise unduly
burdensome. See Fed. R. Civ. P. 33(b)(4); Panola Land Buyers Ass’n v. Shuman, 762
F.2d 1550, 1559 (11th Cir. 1985); Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D.
Fla. 2000).
Federal Rule of Civil Procedure 34 supplies the procedure for obtaining the
production of documents and things in another party’s “possession, custody, or control.”
Fed .R. Civ. P. 34(a)(1). A request to produce must include a reasonably particular
description of the items to be inspected; specify a reasonable time and place for the
inspection and related acts; and specify the form(s) in which electronically stored
information should be produced. Fed. R. Civ. P. 34(b)(1). The recipient of the request
has 30 days within to respond. Fed. R. Civ. P. 34(b)(2)(A). In its response, the recipient
must state that inspection and related activities will be permitted or object and include the
reasons for the objections. Fed. R. Civ. P. 34(b)(2)(B). Motions to compel responses to
interrogatories and requests for production under Rule 37(a) are committed to the sound
discretion of the trial court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731
(11th Cir.1984).
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Defendants argue that the Court should first decide their motion for summary
judgment and determine whether Plaintiff has standing to bring this lawsuit before
compelling them to produce thousands of pages of documents concerning years of
business activity, including confidential and trade secret information. (Doc. 48 at 4). If
the Court denies their motion for summary judgment, then they maintain the Court should
conduct a preliminary evidentiary hearing to determine if Plaintiff can serve as a
representative of the proposed class she seeks to represent. (Id.). Defendants argue
that until the class action issues are resolved, Plaintiff should not be permitted to obtain
the discovery she is seeking. (Id.).
Defendants’ argument relies in part, upon Fed. R. Civ. P. 23(c)(1)(A) which states
“[a]t an early practicable time after a person sues or is sued as a class representative, the
court must determine by order whether to certify the action as a class action.” Some
courts have held that “to best serve the ends of fairness and efficiency,” class-wide
discovery on the certification issue should be allowed first, while class-wide discovery on
the merits is postponed. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d
1566, 1570 (11th Cir. 1992) (citing Stewart v. Winter, 669 F.2d 328, 331 (5th Cir. 1982).
Here, Defendants argue that Plaintiff should not even be permitted to engage in
discovery on the certification issue. They cite Prado-Steiman v. Bush, 221 F.3d 1266,
1279-1280 (11th Cir. 2000), where the court said: “Thus, it is well-settled that prior to
certification of a class, and technically speaking before undertaking any formal typicality
or commonality review, the district court must determine that at least one named class
representative has Article III standing to raise each class sub-claim.” Defendants
contend that because Plaintiff lacks standing, she cannot serve as class representative,
the class cannot be certified, and, therefore, she should not be permitted to obtain
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discovery on class-wide issues. (Doc. 48 at 5). What Defendants are saying is that
because, in their opinions, Plaintiff’s claim is doomed to fail, they should not be burdened
with complying with her requests for discovery. The merits of Plaintiff’s claims will be
decided by the Court, and possibly, a jury. And, Defendants’ argument ignores the
possibility that Plaintiff’s discovery will uncover the information necessary to defeat their
motion for summary judgment and establish the elements required to certify a class.
Defendants acknowledge that it is within the Court’s discretion whether to allow
Plaintiff’s discovery at this time. (Id.). They have initiated their own discovery, and offer
no plausible reason why they should be permitted to take discovery while Plaintiff cannot.
Defendants also have not sought a protective order, an order bifurcating discovery, or a
stay of discovery. In the absence of a stay or protective order, Plaintiff is entitled to her
discovery. Now, Defendants’ objections that Plaintiff’s discovery is premature are
OVERRULED.
Defendants’ responses to Plaintiff’s requests for production and interrogatories
include objections they chose not to argue in their response to Plaintiff’s motions to
compel. Regardless, the Court will address those objections, beginning with
Defendants’ objections that Plaintiff’s discovery is overly broad, oppressive, vague,
ambiguous, unduly burdensome, compound, irrelevant, not reasonably calculated to lead
to the discovery of admissible evidence, impermissibly seeks trade secret and privileged
information, requires Defendants to draw legal conclusions, and seek to impose
obligations on Defendants that are broader than their obligations under applicable law.
These objections are of the boilerplate, one size fits all variety, which this and other
courts routinely reject. See Chambers v. Sygma Network, Inc., No. 6:12-cv-1802-Orl37TBS, 2013 WL 1775046 * 3 (M.D. Fla. Apr. 25, 2013); Mendez v. Land Investors,
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Corp., No, 2:12-cv-158-FtM-29SPC, 2012 WL 6012906 * 1 (M.D. Fla. Dec. 3, 2012);
Arthrex, Inc. v. Parcus Medical, LLC, No. 2:11-cv-694-FtM-29SPC, 2012 WL 5382050 * 3
(M.D. Fla. Nov. 1, 2012); Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court, 408
F.3d 1142, 1149 (9th Cir. 2005); FDIC v. Brudnicki, No. 5:12-cv-00398-RS-GRJ, 2013
WL 2948098 *4 n.4 (N.D. Fla. June 14, 2013); Ochoa v. Empresas ICA, S.A.B., No. 1123898-CIV, 2012 WL 3260324 * 2 (S.D. Fla. Aug. 8, 2012); Robinson v. City of Arkansas
City, Kan., No. 10-1431-JAR-GLR, 2012 WL 603576 * 6 (D. Kan. Feb. 24, 2012); Williams
v. Taser Intern., Inc., No. 1:06-CV-0051-RWS, 2007 WL 1630875 * 3 n.3 (N.D. Ga. June
4, 2007); Russell v. Daiichi-Sankyo, Inc., No. CV 11-34-BLG-CSO, 2012 WL 1161435 * 12 (D. Mont. Apr. 6, 2012). Indeed, “[o]bjections which state that a discovery request is
‘vague, overly broad, or unduly burdensome’ are, by themselves, meaningless, and are
deemed without merit by this Court.” Siddiq v. Saudi Arabian Airlines Corp., No. 6:11-cv69-Orl-19GJK, 2011 WL 693685 *3 (M.D. Fla. Dec. 7, 2011) (quoting Milinazzo v. State
Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007)). Accordingly, all of Defendants’
boilerplate objections are OVERRULED.
Although Defendants repeatedly raised privilege and trade secret as objections,
they have not complied with Fed. R. Civ. P. 26(b)(5)(A) which provides: “When a party
withholds information otherwise discoverable by claiming the information is privileged . . .,
the party must: (i) expressly make the claim; and (ii) describe the nature of the
documents, communications or tangible things not produced or disclosed[.]” Defendants
failed to describe the nature of the privileged documents or why the information sought is
confidential or otherwise entitled to protection. They have not filed a motion for a
protective order, they have not entered into a confidentiality agreement with Plaintiff, and
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they have not provided a privilege log. 2 Accordingly, Defendants’ objections based upon
trade secret and privilege are also OVERRULED, because as this Court has said before,
it is “unaware of any statute, rule, or case authority for the proposition that documents are
not discoverable simply because they contain confidential or sensitive information.”
Moss v. Geico Indem. Co., 5:10-cv-104, 2012 WL 682450 *3 (M.D. Fla. Mar. 2, 2012).
In those instances where Defendants did make more detailed objections to
Plaintiff’s requests to produce and interrogatories, Plaintiff has provided a rebuttal in her
motions, to which Defendants did not respond. The Court is persuaded by Plaintiff’s
reasoning and explanations, and, therefore, Defendants’ more detailed objections are
OVERRULED.
Defendants object to certain defined terms employed by Plaintiff including
“CALLS,” “SUBSCRIBER,” and “PERSONS,” on the grounds that they include classes of
potential claimants who have not been certified by the Court and classes of potential
claimants for whom Plaintiff could not be designated as a representative. For the
reasons already stated, Class certification is not a prerequisite to this discovery, and the
Court is satisfied that these terms do not make Plaintiff’s discovery overly broad.
Accordingly, these objections are OVERRULED.
Defendants object to certain undefined words and phrases used by
Plaintiff on the ground that they are “vague and undefined as used therein.”
These words and phrases include: (1) used to craft responses; (2) predictive
dialer; (3) sales and/or marketing techniques, methods, systems and/or
procedures; (4) complaints; (5) procedures; (6) practices; (7) audits; (8)
2 Defendants include a “GENERAL PRIVILEGE LOG” in their response to Plaintiff’s request for
production. However, this is nothing but another boilerplate assertion of the attorney-client and work
product privileges. (Doc. 48-2 at 3-4).
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investigations; (9) inquiries; (10) studies; (11) judgment that may be entered
against ETT in this action; (12) defense; (13) indemnity; (14) revenue; (15)
purpose; and (16) agreements. The Court finds Defendants’ claim to not
understand these words and phrases possible but improbable. If Defendants
truly don’t understand what these words mean, in the contexts in which they
used, then that is something that should have been taken care of during a good
faith meet and confer. When Defendants provide their full responses to
Plaintiff’s discovery, they shall give all undefined words and phrases their
ordinary meanings and if they find that impossible to do, the parties are
expected to resolve Defendants’ concerns by meeting and conferring.
This brings the Court to Defendants’ interrogatories to Plaintiff.
Interrogatories 9, 10, 15 and 20 ask Plaintiff to state the factual basis for certain
allegations in her complaint. (Doc. 49 at 6-7). These are contention
interrogatories which call upon Plaintiff to state the evidence upon which she
bases certain allegations. In addition to Plaintiff’s boilerplate objections, which
the Court overrules, Plaintiff has objected to these interrogatories on the
grounds that they “improperly request[ ] that Plaintiff compile and analyze
evidence in support of legal theories and claims for relief in contravention of the
attorney work produce doctrine, and [are] unduly burdensome.” (Id.).
Plaintiff’s lawyer has submitted his declaration stating that before filing this
lawsuit, he researched Defendants on the internet to learn about their
telemarketing operations, other complaints about their practices, and the
relationships between the Defendants. (Doc. 53 at 2). Counsel argues that
the information he obtained is privileged fact work product. (Doc. 52 at 4).
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“The work product doctrine was created to allow attorneys to make
careful and thoughtful preparation for litigation, without fear that their
adversaries will unfairly benefit from their efforts.” Bridgewater v. Carnival
Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (citing Hickman v. Taylor, 329 U.S.
495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). The work product privilege is
codified in Fed. R. Civ. P. 26(b)(3). The Rule recognizes fact work product,
which protects information gathered in anticipation of litigation, and opinion work
product, which is the lawyer’s mental impressions. Id. Fact work product is
only discoverable “upon a showing that the party seeking discovery has
substantial need of the materials in preparation of the party’s case, and that the
party is unable without undue hardship to obtain the substantial equivalent of
the materials by other means.” Id. (quoting Calderon v. Reederei Claus-Peter
Offen GmbH & Co., No. 07-61022-civ-Cohn/Seltzer, 2009 WL 1748089 at * 1
(S.D. Fla. June 19, 2009)).
According to Plaintiff, the information in her possession that is responsive
to Defendants’ contention interrogatories was obtained and assembled in
anticipation of litigation. But, it was not prepared by counsel, or at his direction,
as would be the case if, for example, witness statements were obtained in order
to file or defend a potential lawsuit. The information in question is publically
available on the internet. So, while counsel’s research may have been done in
preparation for filing this case, the information he found was not prepared by or
for him, and it does not contain his mental impressions.
The Federal Rules of Civil Procedure require parties to provide the
identity “of each individual likely to have discoverable information—along with
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the subjects of that information—that the disclosing party may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R.
Civ. P. 26(a)(1)(A)(i). Parties must also disclose “a copy—or description by
category and location—of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use would be solely
for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). Presumably, most, if not all
of the information counsel found on the internet was, or will be disclosed as part
of Plaintiff’s initial disclosures.
Now, the Court OVERRULES Plaintiff’s objections to Defendants’
interrogatories 9, 10, 15 and 20. In answering these interrogatories, Plaintiff is
only required to give factual specifics. She is not required to give her lawyer’s
impressions or analysis of how the law applies to the facts or disclose whether
or how the facts will be presented at hearings and the trial.
Defendants also seek an order compelling Plaintiff to answer their
interrogatories 11, 12, 13 and 19. (Doc. 49 at 9-13). By these interrogatories,
Defendants seek to learn when Plaintiff received offending telephone calls, the
duration of the calls, the identity of the caller(s), what was said during the calls,
whether any solicitation of products or services was made, and the location and
identity of any witnesses to the telephone calls. (Id.). After Defendants filed
their motion to compel, Plaintiff supplemented her answers to these
interrogatories. (Doc. 53-4). Her lawyer has also filed a paper stating that
Plaintiff “has no further recollection at this time beyond what is stated in her
supplemental responses.” (Doc. 52 at 9). The Court ignores Plaintiff’s 3 ½
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pages of general objections and goes directly to her supplemental answers to
the interrogatories. It finds that Plaintiff’s supplemental answers are sufficient
and DENIES Defendant’s motion to compel these interrogatories.
This brings the Court to Defendants’ requests for production 2, 12, 13, 15
and 16. Each of these requests asks Plaintiff to “produce any and all
documents, records or tangible things in Your possession, custody or control
that in any way relates to, references, describes, supports, refutes, or pertains
to any of the allegations set forth in . . .”. (Doc. 49 at 13-16). Plaintiff’s
boilerplate objections to these requests are OVERRULED. Plaintiff responded
to each of these requests as follows: “Plaintiff objects on the grounds that this
request improperly requires Plaintiff to compile evidence in support of legal
theories and claims for relief in contravention of the attorney work product
doctrine, and is unduly burdensome.” (Id.). The Court OVERRULES Plaintiff’s
objection for the same reasons it overruled her assertion of work product
privilege in response to Defendant’s interrogatories.
When the Court grants a motion to compel, it must require the party whose
conduct necessitated the motion to pay the movant’s reasonable expenses incurred in
making the motion. Fed. R. Civ. P. 37(a)(5)(A). Exceptions exist if (1) the movant filed
the motion before attempting in good faith to obtain the discovery without court action; (2)
the opposing party’s nondisclosure was substantially justified; or (3) other circumstances
make an award of expenses unjust. Id. None of the exceptions are present here. But,
no party is without fault and consequently, each side owes the other legal expenses. If
the Court were to order awards the likely result is that no party would gain or lose and
therefore, the exercise is pointless.
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Now, it is ORDERED that:
1. Plaintiff Amparito Gonzalez’s Motion to Compel Interrogatory Answers (Doc. 44)
is GRANTED; Defendants shall respond in full to Plaintiff’s interrogatories numbered: 3-8,
13-15, and 17 within 14 days from the rendition of this Order.
2. Plaintiff Amparito Gonzalez’s Motion to Compel Production of Documents
Responsive to Plaintiff’s First Set of Requests for Production (Doc. 45) is GRANTED;
Defendants shall respond in full to Plaintiff’s requests for production numbered: 1-7, 1316, 18, 21, 23, 27-29, 31, 32, 38, 40, and 42-49 within 14 days from the rendition of this
Order.
3. Defendants’ Motion to Compel (Doc. 49) is GRANTED in part. Plaintiff shall
respond in full to Defendants’ interrogatories numbered: 9, 10, 15 and 20 within 14 days
from the rendition of this Order. Plaintiff shall also respond in full to Defendants’
requests for production numbered: 2, 12, 13, 15 and 16 within 14 days from the rendition
of this Order. In all other respects, Defendants’ motion is DENIED.
4. In fulfilling their discovery obligations, any party asserting a privilege shall
produce a privilege log which fully complies with Fed.R.Civ.P. 26(b)(5)(A).
DONE and ORDERED in Orlando, Florida on March 26, 2014.
Copies furnished to Counsel of Record
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