Dejesus v. Cigna Corporation
Filing
33
ORDER granting in part and denying in part 22 Motion to Compel requests for admissions, interrogatories and requests for production. Signed by Magistrate Judge Thomas B. Smith on 12/21/2017. (Smith, Thomas)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CRYSTAL DEJESUS,
Plaintiff,
v.
Case No: 6:17-cv-1208-Orl-41TBS
CIGNA CORPORATION,
Defendant.
ORDER
This putative class action comes before the Court without a hearing on Plaintiff’s
Motion to Compel Discovery (Doc. 22). Plaintiff Crystal DeJesus complains that
Defendant Cigna Corporation used an automated telephone dialing system or an artificial
or prerecorded voice to phone her repeatedly in violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227 (Doc. 1). She alleges that Defendant made
these calls without her consent, and that she was not the person Defendant intended to
call (Id., ¶¶ 14, 16-19). Defendant reports that after it received Plaintiff’s complaint it
discovered “apparent systematic data entry errors” which resulted in the incorrect linking
of 29 different people to Plaintiff’s telephone number (Doc. 29 at 4-5). Unaware of the
error, Defendant gave the names of the persons incorrectly linked with Plaintiff’s phone
number to its call services vendor (Id., at 5). Once Defendant realized its mistake, it took
corrective action including placing Plaintiff’s phone number on its do-not-call list (Id.).
Plaintiff seeks to certify a class comprised of all persons in the United States
whose cellular telephone numbers were called more than once by Defendant, in the last
four years, without their consent, using an artificial or prerecorded voice and/or automatic
telephone dialing system (Id., ¶ 23). Plaintiff also seeks to certify a subclass consisting of
everyone in the class who, like Plaintiff, was not the person Defendant’s records show it
intended to call (Id.).
Plaintiff served requests for admissions, interrogatories and requests for
production on Defendant and after several agreed extensions, Defendant responded to
this discovery (Docs. 23-3, 23-4, 23-5). Plaintiff was not satisfied with Defendant’s
responses and counsel met and conferred (Doc. 22 at 2). Defendant agreed to
supplement its responses but failed to do so. When the supplemental discovery was not
forthcoming, Plaintiff filed this motion (Id., at 2-3). In its response, Defendant represents
that after the motion was filed, the parties narrowed the issues so that only Plaintiff’s
interrogatories numbered 2, 6, 9 and 12, and request for production number 1 are still at
issue (Doc. 29 at 12). Nevertheless, the Court addresses all discovery that is the subject
of the motion.
Requests for Admissions
Requests for admission ask a party “to admit, for purposes of the pending action
only, the truth of any matters within the scope of Rule 26(b)(1) relating to” the facts of the
case. FED. R. CIV. P. 36(a)(1). The answering party has 30 days within to serve a written
response, including any objections, to each request or the request is deemed admitted.
FED. R. CIV. P. 36(a)(3). Denials must be specific “or state in detail why the answering
party cannot truthfully admit or deny” the request. FED. R. CIV. P. 36(a)(4). If the
answering party is unable to admit or deny a request due to lack of information or
knowledge, it must “state[] that it has made reasonable inquiry and that the information it
knows or can readily obtain is insufficient to enable it to admit or deny.” Id. If the court
finds, on a motion to determine the sufficiency of the answer, that it “does not comply with
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this rule, the court may order either that the matter is admitted or that an amended
answer be served. The court may defer its final decision until a pretrial conference or a
specified time before trial. Rule 37(a)(5) applies to an award of expenses.” FED. R. CIV. P.
36(a)(6). In response to Plaintiff’s requests for admissions numbered 1-3 Defendant
answered:
Defendant is without sufficient information to admit or deny
this request. Discovery is ongoing.
(Doc. 23-3 at 2). Defendant’s response does not comply with Rule 36(a)(4), and now it
says that it has agreed to supplement its responses to these requests (Doc. 29 at 12).
Accordingly, the motion to compel Plaintiff’s requests for admissions numbered 1-3 is
GRANTED.
Interrogatories
A party has 30 days from service to answer and object to interrogatories. FED. R.
CIV. P. 33(b). “The grounds for objecting to an interrogatory must be stated with
specificity.” FED. R. CIV. P. 33(b)(4). The rules leave no place for generalized, nonspecific, boilerplate objections. “Objections which state that a discovery request is ‘vague,
overly broad, or unduly burdensome’ are, by themselves, meaningless, and are deemed
without merit ….” Siddiq v. Saudi Arabian Airlines Corp., No. 6:11–cv–69–Orl–19GJK, 2011
WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011) (quoting Milinazzo v. State Farm Ins. Co., 247
F.R.D. 691, 695 (S.D. Fla. 2007)).
Interrogatories 2 and 3 ask Defendant to identify every person in the United States
who may qualify as a member of the putative class or subclass (Doc. 23-4 at 4-5).
Defendant objects to these interrogatories on the ground that they are premature because
a class has not been certified (Id.). “Courts have ordinarily refused to allow discovery of
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class members’ identities at the pre-certification stage out of concern that plaintiffs’
attorneys may be seeking such information to identify potential new clients, rather than to
establish the appropriateness of certification.” Dziennik v. Sealift, Inc., No. 05-CV-4659
(DLI) (MDG), 2006 WL 1455464, at *1 (E.D.N.Y. May 23, 2006) (collecting cases). Even in
those circumstances where a court finds that the contact information for some class
members is discoverable “it may be doubted whether any of these purposes would require
compilation of the names and addresses of all members of a large class.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 354, n. 20 (1978) (emphasis in original). Plaintiff has
failed to show why this case should be the exception to the rule. Accordingly, Defendant’s
objections to interrogatories 2 and 3 are sustained, and Plaintiff’s motion to compel
answers is DENIED.
Interrogatories 4, 6 and 12 ask Defendant to: (1) “describe the purpose of calling
Plaintiff’s cellular telephone number;” (2) “[i]dentify all software and equipment by vendor,
model/version, and dates in operation, that were used to make any phone call to”
Plaintiff’s phone number; and (3)identify the vendors Defendant used to phone Plaintiff on
its behalf (Doc. 23-4 at 6-7, 9). Defendant’s boilerplate objections that this discovery is
overly broad, vague, unduly burdensome, not relevant, and not proportional to the needs
of the case are overruled. Defendant also objects to interrogatory number 12 on the
ground that it is not limited to calls made to Plaintiff (Doc. 29 at 11). The Court disagrees.
Interrogatory 12 only concerns calls made to Plaintiff. To establish liability under the
TCPA, Plaintiff must establish that an automated telephone dialing system or
artificial/prerecorded voice was used to facilitate the calls by the defendant or an entity
acting on the defendant’s behalf. AT&T Mobility LLC v. C1F, Inc., CIVIL ACTION NO.
1:09-cv-00277-JOF, 2010 WL 11549600, at *5 (N.D. Ga. Nov. 19, 2010) (“’Liability under
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the TCPA may exist not only for the person making the call, but also for the entity on
whose behalf the call is made.’ Under the Telephone Consumer Protection Act, it is
unlawful for “any person ... to make any call ... using any automated telephone dialing
system or an artificial or prerecorded voice ... to any telephone number assigned to a ...
cellular telephone service.”) (citing 47 U.S.C. § 277(b)(1)(A)(iii)); see also Shamblin v.
Obama for Am., No. 8:13-cv-2428-T-33TBM, 2014 WL 631931, at *2 (M.D. Fla. Feb. 18,
2014). These interrogatories are relevant to Plaintiff’s ability to prove essential elements
of her case. Therefore, Plaintiff’s motion to compel interrogatories 4, 6 and 12 is
GRANTED.
Defendant’s seventh affirmative defense alleges that “if it violated the TCPA, which
it denies, that it has established and implemented, with due care, reasonable practices
and procedures to effectively prevent violations of the TCPA.” (Doc. 9 at 6). Defendant’s
ninth interrogatory asks Defendant to identify and explain the policies, practices and
procedures it had in place during the relevant time period to avoid violating the TCPA
(Doc. 22 at 8). Plaintiff also asks Defendant to provide “a detailed description of each
policy, practice or procedure, the date it was first implemented, and all persons involved
in its consideration, implementation and, if applicable, termination.” (Id.). Defendant’s
boilerplate objections that this interrogatory is “overly broad, unduly burdensome, not
reasonably limited as to time and scope, and asks for information that is irrelevant and not
proportional to the needs of the case,” are overruled. Defendant’s remaining objection is
that the information sought is “privileged, confidential and proprietary” and “of limited
relevance to the issues of this case.” (Id.). Defendant has not produced a privilege log or
provided facts to support its conclusory allegations. Consequently, this objection is
overruled and Plaintiff’s motion to compel a full response to interrogatory 9 is GRANTED.
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Interrogatory number 13 asks Defendant to explain how, from whom, and when it
obtained Plaintiff’s telephone number (Doc. 22 at 9). Defendant answered that it obtained
Plaintiff’s number from “a client employer for health care insurance related purposes.”
(Doc. 22 at 9-10). This is not a full or complete answer to the interrogatory. Accordingly,
Plaintiff’s motion to compel interrogatory 13 is GRANTED.
Defendant’s eighth affirmative defense states that “Plaintiff’s TCPA claim, and
those of putative class members, may be barred in whole or in part, if Plaintiff provided
‘prior express consent’ within the meaning of the TCPA...” (Doc. 9 at 6). Plaintiff’s
fourteenth interrogatory asks Defendant to explain the basis for its contention that it had
Plaintiff’s consent to call her (Doc. 22 at 10). Plaintiff also asks Defendant to provide the
Bates number for all documents that support this contention (Id.). Defendant objected that
this is “a contention interrogatory and subject to further investigation and discovery.” (Id.).
Whether Defendant obtained Plaintiff’s consent to receive these phone calls goes to the
heart of the TCPA. See generally, Brown v. Collections Bureau of Am. Ltd., 183 F. Supp.
3d 1004, 1005 (N.D. Cal. 2016) (“The three elements of a TCPA claim are: (1) the
defendant called a cellular telephone number; (2) using an automatic telephone dialing
system; (3) without the recipient's prior express consent.”); Edwards v. Oportun, Inc., 193
F. Supp. 3d 1096, 1100 (N.D. Cal. 2016) (“The TCPA prohibits a caller from using an auto
dialer to place non-emergency phone calls to a cellular telephone number without the
‘called party's’ prior express consent.”). Additionally, Plaintiff’s complaint was served on
Defendant on July 7, 2017 (Doc. 7), and it has alleged consent as an affirmative defense.
Defendant has had more than enough time to investigate this defense and determine
whether it received “prior express consent” from Plaintiff. Therefore, Defendant’s
objection is overruled and Plaintiff’s motion to compel a full response to interrogatory 14 is
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GRANTED.
Requests for Production
Parties can ask each other to produce information within the scope of FED. R. CIV.
P. 26(b). FED. R. CIV. P. 34(a). A party objecting to a request for production must: (1)
“state with specificity the grounds for objecting to the request, including the reasons;” (2)
“state whether any responsive materials are being withheld on the basis of that objection;”
and (3) “[a]n objection to part of a request must specify the part and permit inspection of
the rest.” Rule 34(b)(2). As the court in Liguria Foods, Inc. v. Griffith Lab., Inc. observed,
“’[t]he key requirement in both Rules 33 and 34 is that objections require ‘specificity.’” 320
F.R.D. 168, 184 (N.D. Iowa Mar. 13, 2017). So-called “’generalized objections are
inadequate and tantamount to not making any objection at all.’” Id. at 186 (quoting Jarvey,
Boilerplate Discovery Objections, 61 Drake L. Rev. at 916 (2013)). Plaintiff asked
Defendant to produce the following information and Defendant objected to all but number
20:
1. All documents that refer or pertain to Plaintiff or
telephone number (XXX) XXX-9790, including, but not limited
to, all information indexed, filed or retrievable under Plaintiff’s
telephone number or any other number, datum, symbol,
designation or code (such as an account number or Social
Security number) assigned to her or telephone number.
3. All documents that discuss or relate to policies,
practices or procedures associated with calling (XXX) XXX9790, including any document explaining the reason or
purpose for calling said number.
4. All contracts or manuals regarding all telephone
and/or communications systems(s), equipment and/or
software used by you or on your behalf to place calls to
Plaintiff at any time from June 29, 2013 to the present.
6. Documents sufficient to identify all vendors you used
to place calls on your behalf, or assist you in connection with
placing calls using the system which called (XXX) XXX-9790
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or, using an automated telephone dialing system or an
artificial or prerecorded voice at any time between June 29,
2013 and the present, as well as all contracts with the
vendors, all instructions and other communications between
you and the vendors regarding the requirements, policies or
procedures for making such calls, the numbers to be called,
skip-tracing or otherwise obtaining numbers third parties for
the persons to be called, determining whether the calls were
made to cellular numbers, and handling do-not-call requests.
7. Documents describing any method used by you or
on your behalf to identify whether a telephone number is
assigned to a cellular telephone service, such as a scrubbing
procedure.
10. Copies of any documents filed in connection with
any judicial or administrative proceedings that mention you
and the TCPA.
20. All insurance policies that could possibly afford
coverage with respect to the matters complained of in this
case together with all correspondence accepting or declining
coverage or reserving rights with respect thereto.
(Doc. 22 at 10-15).
Defendant’s unsupported and unexplained boilerplate objections that these
requests are vague, ambiguous, overly broad, unduly burdensome, not reasonably
limited in time and scope, and ask for information that is not relevant or proportional to the
needs of the case are overruled (Id.).
In response to request number 1, Defendant objects that the Health Insurance
Portability and Accountability Act of 1996 (“HIPPA”) prohibits it from producing some
responsive information (Doc. 22 at 10). To the extent Defendant believes HIPPA
precludes the production of information, and the parties are unable to resolve the matter,
Defendant should file a motion for a protective order.
Defendant objects to producing the information described in requests 3, 4, 6 and 7
on the grounds that it is privileged, confidential and proprietary (Id., at 11-14). These
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conclusory objections are not supported by facts and are therefore, overruled. Plaintiff’s
motion to compel requests 3, 4, 6 and 7 are GRANTED.
Discovery requests should “focus on the actual claims and defenses involved in
the action.’” Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 355 (11th Cir. 2012)
(quoting the GAP Report); see also Builders Flooring Connection, LLC v. Brown
Chambless Architects, No. 2:11CV373-MHT, 2014 WL 1765102, at *1 (M.D. Ala. May 1,
2014) (quoting GAP Report of Advisory Committee to 2000 amendments to Rule 26) (In
discovery, “requiring relevance to a claim or defense ‘signals to the court that it has the
authority to confine discovery to the claims and defenses asserted in the pleadings, and
signals to the parties that they have no entitlement to discovery to develop new claims or
defenses that are not already identified in the pleadings.’”). On this basis, Plaintiff’s
motion to compel a better response to request for production 10 is DENIED.
Defendant did not object to request number 20 but, when the motion to compel
was filed, the information still had not been produced (Doc. 22 at 15). Accordingly,
Plaintiff’s motion to compel request number 20 is GRANTED.
To the extent that Plaintiff’s motion to compel has been granted, Defendant shall
provide full and complete discovery no later than January 2, 2018.
DONE and ORDERED in Orlando, Florida on December 21, 2017.
Copies furnished to Counsel of Record
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