VIP Auto Glass, Inc. v. GEICO General Insurance Company

Filing 47

ORDER granting in part and denying in part 1 Motion to Quash Subpoenas. The Clerk is directed to close this miscellaneous proceeding. Signed by Magistrate Judge Julie S. Sneed on 6/12/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VIP AUTO GLASS, INC.,
Plaintiff,
v.

Case No: 8:17-mc-00019-MSS-JSS

GEICO GENERAL INSURANCE
COMPANY,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on the Motion to Quash Subpoenas (“Motion”), filed
by non-parties Safelite Solutions LLC (“Solutions”) and Safelite Fulfillment, Inc. (“Fulfillment”)
(Dkt. 1), VIP Auto Glass, Inc.’s response in opposition (Dkt. 33), and the reply of Solutions and
Fulfillment (Dkt. 40). This miscellaneous proceeding is related to the lawsuit filed by VIP Auto
Glass, Inc. (“Plaintiff”) against GEICO General Insurance Company (“GEICO”) in this Court on
July 13, 2016 (“Main Case”), VIP Auto Glass, Inc. v. GEICO Gen. Ins. Co., 8:16-cv-02012-MSSJSS (M.D. Fla. July 23, 2016). On June 7, 2017, the Court held a hearing on the Motion. For the
reasons that follow, the Motion is granted in part and denied in part.
BACKGROUND
In the Motion, non-parties Solutions and Fulfillment seek to quash subpoenas Plaintiff
served on them seeking the testimony of their corporate representatives. Solutions and Fulfillment
argue that preparing their corporate representatives for the nineteen deposition topics listed in the
subpoenas (“Topics”) (Dkts. 33-4, 33-5), would require many hours of preparation spent analyzing
hundreds of documents. (Dkt. 29-1 ¶ 5.) Therefore, Solutions and Fulfillment maintain this
discovery is unduly burdensome, especially in light of the fact that these entities are not parties to

the Main Case. Also, they argue that this discovery is duplicative because it can be sought from
GEICO. Further, these subpoenas are overly broad as they do not specify a time period or limit
their requests to windshield repairs.

Finally, they argue that the discovery sought is not

proportional to the needs of this case, which has not yet been certified to proceed as a class action.
After the Motion was filed, Plaintiff amended its complaint in the Main Case, adding
specific allegations regarding the relationship between GEICO and Solutions and Fulfillment.
(Main Case Dkt. 47.) In the Amended Complaint, Plaintiff alleges that Solutions acts as GEICO’s
third-party administrator for windshield repair and replacement claims, and that Fulfillment
operates a chain of windshield repair and replacement facilities. (Id. ¶¶ 24, 26.) Solutions enters
into agreements with windshield repair and replacement facilities, including facilities Fulfillment
operates (“Safelite Network”). (Id. ¶ 27.) Plaintiff alleges that, in these agreements, the facilities
agree to accept the prices GEICO has agreed to pay for windshield repair and replacement work
in its contracts with Solutions. (Id. ¶¶ 27–28.)
GEICO, Plaintiff alleges, directs its insureds to have facilities in the Safelite Network
perform the insureds’ windshield repair and/or replacement work. (Id. ¶ 33.) When facilities that
are not in the Safelite Network perform these services for GEICO’s insureds and submit invoices
to GEICO for reimbursement, Plaintiff alleges that GEICO refuses to pay more than the price it
has agreed to pay Safelite Network facilities. (Id. ¶ 34.) Plaintiff argues that this unpaid portion
is “an unlawful de facto deductible” for GEICO insureds. (Id. ¶ 35.) Plaintiff seeks to certify a
class of facilities in the state of Florida who performed windshield repair and/or replacement
services to GEICO insureds, own assignments of benefits from the insureds, and were refused full
reimbursement for their services from GEICO. (Id. ¶ 60.)

-2-

In response to the Motion, Plaintiff argues that it seeks this deposition testimony to
demonstrate that “the predetermined price was set based on the agreements between Safelite and
GEICO, without regard to the standard retail prices suggested by such regularly accepted
standards.” (Dkt. 33 at 14–15.) Citing GEICO’s corporate representative’s deposition testimony
in an unrelated case in a Florida county court, Plaintiff argues that GEICO’s representative testified
that Safelite entities provide GEICO with some of the data GEICO uses to determine the price it
pays the Safelite Network facilities for their windshield repair and/or replacement work. (Dkt. 33
at 8; Dkt. 33-3.) The subpoenas for deposition testimony at issue here, Plaintiff argues, seek
information relevant to its allegations because “testimony regarding the relationship between
Safelite and GEICO, the contracts or other agreements between them, information Safelite relies
on, and any information shared between them will demonstrate that the purported ‘prevailing
competitive price’ is neither ‘prevailing’ nor ‘competitive.’” (Dkt. 33 at 13.) Specifically, “the
requested testimony from Safelite, including testimony regarding any contracts between GEICO
and Safelite – the reliance on which is the basis for every single underpaid claim at issue in this
case – will help Plaintiff establish the elements of class certification under Rule 23(a) and (b),
including commonality, typicality, and predominance.” (Id. at 14.)
APPLICABLE STANDARDS
Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901
F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Through
discovery, parties may obtain materials that are within the scope of discovery, meaning they are
nonprivileged, relevant to any party’s claim or defense, and proportional to the needs of the case.
Fed. R. Civ. P. 26(b)(1). Courts consider the following factors: (1) “the importance of the issues

-3-

at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant
information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the
issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Id.
A court must quash or modify a subpoena that subjects a person to undue burden. Fed. R.
Civ. P. 45(d)(3)(A)(iv). Further, a court may quash or modify a subpoena that requires “disclosing
a trade secret or other confidential research, development, or commercial information.” Id. at
45(d)(3)(B)(i).
A party may depose any person without leave of court and may compel the person’s
attendance by subpoena. Fed. R. Civ. P. 30(a)(1). A party may take the deposition of an
organization pursuant to Federal Rule of Civil Procedure 30(b)(6). In its notice of deposition to
the organization, the requesting party “must describe with reasonable particularity the matters for
examination.” Fed. R. Civ. P. 30(b)(6). “The named organization must then designate one or
more officers, directors, or managing agents, or designate other persons who consent to testify on
its behalf; and it may set out the matters on which each person designated will testify.” Id. “The
persons designated must testify about information known or reasonably available to the
organization.” Id.
“The testimony of a Rule 30(b)(6) witness represents the collective knowledge of the
corporation, not of the specific individual deponents. A Rule 30(b)(6) designee presents the
corporation’s position on the listed topics.” QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D.
676, 688 (S.D. Fla. 2012). “Thus, a Rule 30(b)(6) witness need not have personal knowledge of
the designated subject matter.” Id. The subpoenaed party “has a duty to designate more than one
deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or

-4-

subpoena.” Id. “Not only must the designee testify about facts within the corporation’s collective
knowledge, including the results of an investigation initiated for the purpose of complying with
the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and
opinions.” Id. at 689.
ANALYSIS
The discovery sought from Solutions and Fulfillment is relevant to Plaintiff’s allegations
regarding the relationships between Solutions, Fulfillment, and GEICO and the effect of these
relationships on GEICO’s payment of windshield repair and/or replacement claims. Plaintiff’s
claims against GEICO in the Main Case turn on its allegations that because GEICO and Solutions
have agreed upon a price GEICO pays the Safelite Network facilities for its insureds’ windshield
repair and/or replacement claims, GEICO refuses to pay facilities not in the Safelite Network more
than the amount it pays Safelite Network facilities, which violates GEICO’s insurance policies and
Florida law by imposing a de facto deductible on GEICO insureds. (Main Case Dkt. 47.)
Considering the factors set forth in Rule 26(b)(1), the discovery sought from Solutions and
Fulfillment is “important” to resolving the issues in this action. See Fed. R. Civ. P. 26(b)(1).
Nevertheless, the Court must limit discovery otherwise allowable if “the discovery sought
is unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Here, the
discovery sought is not duplicative of the discovery obtained from GEICO. While Plaintiff has
obtained contracts between GEICO and Solutions (Dkt. 50 at 13–14), Plaintiff seeks testimony
from Solutions and Fulfillment regarding the ways in which Solutions reached the agreements with
GEICO and regarding the services these entities provide to GEICO.

-5-

To that end, the Motion is denied as to Topics 1 and 2 (testimony regarding the
relationships between GEICO, Solutions, and Fulfillment, and the services Solutions and
Fulfillment provide GEICO), and Topics 7, 8, 11, 15, and 16 (testimony regarding the methods
and information used to determine the amount paid to the Safelite Network facilities), as these
Topics seek relevant information. However, the subject matter of these Topics is limited to
information regarding windshield repair and/or replacement in Florida because repairs and/or
replacements of windshields is what is at issue in Plaintiff’s Amended Complaint, rather than the
overly broad automobile glass repair and/or replacement. (Main Case Dkt. 47 ¶ 60.) Topics 12
through 14, requesting information about the Safelite Network facilities, are duplicative, and
therefore, the Court limits these Topics to the general nature of the Safelite Network Participation
Agreements concerning GEICO insureds in Florida. The Motion is also denied as to Topic 19, as
this seeks information relating to the claim of the GEICO insured which forms the basis of
Plaintiff’s class action.
The subpoenas, however, request discovery of information without specifying a time
limitation for the Topics. Such a request is overly broad and not proportional to the needs of the
case. Given the overbreadth, during the hearing, Plaintiff’s counsel agreed to limit the timeframe
of the Topics to align with the scope of its proposed class, which is the five-year period prior to
Plaintiff’s filing the lawsuit against GEICO. (Main Case Dkt. 47 ¶ 60.) Thus, the timeframe of
the Topics is limited to 2011 to the present.
The Motion is granted as to Topics 3, 4, 5, 6, 9 and 10 (the software used, procedures
followed, and documents generated by Solutions and Fulfillment in administering GEICO’s
claims, and the documents provided to Solutions and Fulfillment by GEICO), as these Topics are
overly broad and the burden and expense of this discovery outweighs its likely benefit. See Fed.

-6-

R. Civ. P. 26(b)(1). The Motion is also granted as to Topics 17 and 18, which request the prices
the Safelite Network facilities charge to customers for windshield repair and/or replacement who
are not insured by GEICO or who are insured by companies other than GEICO, because this
discovery is not proportional to the needs of the case and is of low importance to resolving
Plaintiff’s allegations. Id. Further, the burden and expense of this discovery to the non-parties
outweighs its likely benefit. Id.
Accordingly, with these modifications to the subpoenas, see Fed. R. Civ. P. 26(b)(1),
26(b)(2)(C)(iii), 45(d)(3)(A)(iv), it is
ORDERED:
1.

The Motion to Quash Subpoenas (Dkt. 1) is GRANTED in part as to Topics 3

through 6, 9, 10, 17, and 18, and DENIED in part as to Topics 1, 2, 7, 8, 11 through 16, and 19,
as modified herein.
2.

The Clerk is directed to close this miscellaneous proceeding.

DONE and ORDERED in Tampa, Florida, on June 12, 2017.

Copies furnished to:
Counsel of Record

-7-