Hankinson et al v. R.T.G. Furniture Corp
Filing
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ORDER granting in part and denying in part 45 Plaintiffs' Motion to Compel. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 3/28/2016. (pb00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-81139-CIV-COHN/SELTZER
BENJAMIN HANKINSON, JAMES GUERRA,
JEANETTE GANDOLFO, individually and
on behalf of others similarly situated,
Plaintiffs,
vs.
CLASS ACTION
R.T.G. FURNITURE CORP.,
d/b/a ROOMS TO GO,
Defendant.
_________________________________/
ORDER ON PLAINTIFFS’ MOTION TO COMPEL [DE 45]
THIS CAUSE is before the Court upon Plaintiffs’ Motion to Compel Defendant
R.T.G. Furniture Corp. (“RTG”) to Produce Documents and Respond to Interrogatories,
and Comply with ESI Protocol [DE 45]. Plaintiffs ask the Court to overrule certain
objections to interrogatories and requests for production raised by R.T.G.1
This is a class action alleging violations of Florida’s Deceptive and Unfair Trade
Practices Act, Fla. Stat. § 501.201-.213, and unjust enrichment. Plaintiffs allege that RTG
made material misrepresentations or omissions when selling upholstery protection plans
(“FFPP”) to customers and, in some cases, failed to apply the upholstery protection
product that consumers purchased. In large part, the discovery matters in dispute arise
from this case’s status as a class action. Plaintiffs seek discovery related to Defendant’s
affiliates that do business online and in other states, which Defendant argues are not
1
Plaintiffs also request an order requiring RTG “to provide search terms in order
to locate electronically stored information (“ESI”) consistent with the ESI protocol”
stipulated by the parties [DE 41], but that request is moot as the parties report they
have reached an agreement on that issue.
related to the claims brought against it. Plaintiffs also seek discovery of the names and
contact information of RTG’s customers who purchased FFPP, which RTG argues are not
relevant to the case at this stage of pre-class certification.
Finally, Plaintiffs seek
information regarding sales quotas and incentives offered to RTG’s sales force for selling
FFPP, which information RTG contends is not relevant to whether misrepresentations were
made, or whether RTG failed to apply the FFPP product when purchased. In addition to
arguing lack of relevancy, RTG contends that the disputed discovery requests are not
proportional to the needs of the case.
Rule 26(b), Federal Rules of Civil Procedure, permits discovery
regarding any nonprivileged matter that is relevant to any party's claim or
defense and proportional to the needs of the case, considering 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. Information
within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “Relevancy is determined based on the ‘tendency to make a fact
more or less probable than it would be without the evidence, and the fact is of
consequence in determining the action.’ Fed. R. Evid. 401.” Garcia v. Padilla, No.
2:15 CV 735 FTM 29CM, 2016 WL 881143, at *2 (M.D. Fla. Mar. 8, 2016). The Court
has considered the Rule 26(b)(1) factors with respect to each of the discovery requests at
issue.
Discovery Related to Online and Out-of-States Affiliates
RTG has objected to responding to discovery requests directed at online and out-ofstate affiliates. RTG is a Florida corporation that does not own any subsidiaries or affiliates
with stores outside of Florida or that sell any products outside of Florida. [DE 50-3].
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Likewise, RTG does not operate a website and does not sell any products online.2 [DE 503]. Thus, RTG contends that, to the extent Plaintiffs’ discovery requests are directed at
online and out-of-state affiliates, the discovery is neither relevant nor proportional to the
needs of this case.
Plaintiffs argue that all of the RTG entities “appear to have a common parent located
in Seffner, Florida” and that they have served RTG with interrogatories seeking to clarify
the RTG corporate structure. Plaintiffs point to evidence that the online affiliate shares a
customer service number with RTG and that invoices to different out-of-state affiliates are
sent to a “Cost Center” located in Seffner, Florida, at the same address as the Defendant.
Thus, Plaintiffs claim, evidence of sales and application practices from non-Florida affiliates
would be relevant to whether class certification is appropriate.
The Court disagrees. At this stage of the proceedings, the three named Plaintiffs
are Florida residents who purchased upholstery protection from a Florida corporation. Only
the Florida corporation is named as a defendant. The cause of action is based upon
Florida law. Nothing in the current posture of this action makes discovery from the out-ofstate or online affiliates relevant to this case; furthermore, the information sought from the
affiliates is not proportional to the needs of this Florida action. Plaintiffs’ request to compel
discovery from online and out-of-state affiliates is denied and RTG’s General Objections
Nos. 7 and 8, and Definitional Objection No. 5 are sustained.
2
Although a Rooms to Go website does sell furniture online, the website is not
owned or operated by the defendant named in this lawsuit.
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Discovery of Customer Names and Contact Information
Plaintiffs’ interrogatory number 2 asks for a list of customers (name and contact
information) who purchased the FFPP upholstery protection plan from RTG. Plaintiffs
allege that they have requested the customer lists to establish numerosity and
ascertainability of the class, as well as to identify potential witnesses.
RTG objects on the grounds that the interrogatory is overly broad, unduly
burdensome, and lacks relevancy and proportionality to the case. RTG further states that
“[c]ustomer names and contact information have no bearing on the merits of Plaintiffs’
individual claims or on the question of class certification. The request seeks confidential
personal information regarding RTGs’ customers that would be relevant, if at all, only if and
after a class is certified.”
RTG fears that Plaintiffs’ counsel will use the customer contact information to solicit
potential plaintiffs, rather than for any proper purpose. Discovery of class members’
identities prior to class certification is not favored where plaintiffs’ attorneys may be seeking
the information to solicit new clients, rather than to establish the propriety of certification.
Levine v. Gunter Motor Co. of Plantation, Inc., No. 10-61812-CIV, 2010 WL 5140590 (S.D.
Fla. Dec. 9, 2010); Dziennikv. Sealift, Inc. No. 05-cv-4659, 2006 WL 1455464, at *1-2
(E.D.N.Y. May 23, 2006). RTG cites to the three Plaintiffs’ testimony that they became
involved in the litigation after learning about the allegations in the Complaint from persons
associated with Plaintiffs’ counsel’s law firm. Plaintiffs deny seeking a customer list so as
to find prospective class representatives.
RTG also argues that customers’ names and contact information are unnecessary
to establish class certification. Evidence regarding numerosity can be shown through the
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data regarding total sales of fabric and leather protection that has already been produced
by RTG.
Likewise, RTG has stipulated that it maintains information that identifies
customers who have purchased the upholstery protection plans, so ascertainability is
established.
Although Plaintiffs must establish numerosity and ascertainability of the class for it
to be certified, the Court finds that the names and contact information of RTG’s customers
are not relevant or proportional to the needs of the case. RTG has provided sales
information and totals, which would be used to establish numerosity, and it has stipulated
that it maintains records of its customers, so that class members can be ascertained.
Plaintiffs have not articulated a legitimate need for customer identities at this stage of the
litigation; indeed, the names and addresses of the customers would add nothing to the
argument for class certification. Therefore, RTG’s objection to interrogatory number 2 is
sustained, and Plaintiffs’ Motion to Compel an answer to interrogatory number 2 is denied.
Discovery of Information Regarding Salespersons, Sales Competition and Sales
Quotas
RTG objected to three interrogatories and six requests to produce seeking
information about individual salespersons’ sales of the upholstery protection products, as
well as quotas, incentives, bonuses, and competitions run by RTG to promote FFPP sales.
Plaintiffs contend this information is necessary to establish that RTG employees engaged
in deceptive acts or practices. Plaintiffs also argue that RTG’s high sales quotas for
upholstery protection would establish that the resulting sales exceeded the factory’s ability
to apply the protection. RTG disputes these contentions. Additionally, RTG argues that
it has agreed to provide Plaintiffs with the materials used to train its sales people about
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the upholstery protection program and, therefore, information about quotas and incentives
to sell have no bearing on the issue of whether RTG’s salespeople were encouraged to
make misrepresentations.
The Court finds that sales information, counseling, and tracking of individual sales
people are not relevant or proportional to the case. However, RTG’s sales quotas,
incentives, and competitions, related specifically to the FFPP upholstery protection plan,
have some nexus to and bearing on the claims in this case. Indeed, as Rule 26(b)
observes,
“discovery need not be admissible in evidence to be discoverable.”
Accordingly, Plaintiffs’ Motion to Compel will be granted as to Interrogatory Numbers 10
and 11, and Request to Produce Number 25. The Motion to Compel is denied as to
Interrogatory Number 8, and Request to Produce Numbers 4, 7, and 27.
Documents Related to “Slamming”
Plaintiffs request all documents related to “slamming,” which is defined as adding
the FFPP upholstery protection plans to customer’s purchases without their knowledge.
RTG objects to this request because Plaintiffs’ Complaint alleges the opposite of
slammming; that is, RTG sales people made material misrepresentations and omissions
in selling the FFPP package.
The Court agrees that this case is not about “slamming” and, therefore, the
documents related to “slamming” are neither relevant nor proportional to the case.
Plaintiff’s Motion to Compel a response to Request to Produce Number 28 is denied.
RTG’s objection to Request to Produce Number 28 is sustained.
In light of the foregoing, it is hereby
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ORDERED
AND ADJUDGED that Plaintiffs’ Motion to Compel [DE 45] is
GRANTED IN PART and DENIED IN PART. The Motion is granted as to interrogatory
numbers 10 and 11 and Request to Produce number 25. RTG shall serve its responses
within ten (10) days of the date of this Order. The Motion is denied as to all other
interrogatories and requests to produce.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 28th day of
March, 2016.
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