Pinero v. Jackson Hewitt Tax Service Inc. et al

Filing 156

MOTION to Compel Production of Documents by Vicki L. Pinero. Motion(s) referred to Daniel E. Knowles, III. Motion Hearing set for 8/12/2009 11:00 AM before Magistrate Judge Daniel E. Knowles III. (Attachments: # 1 Notice of Hearing, # 2 Rule 37.1 Certificate, # 3 Memorandum in Support, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C)(Shartle, Bryan) Modified on 7/24/2009 to edit text (rll, ).

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

VICKI L. PINERO, individually and on behalf of all others similarly situated, Plaintiff, v. JACKSON HEWITT TAX SERVICE INC.; JACKSON HEWITT INC.; and, CRESCENT CITY TAX SERVICE, INC. d/b/a JACKSON HEWITT TAX SERVICE, Defendants.

CASE NO.: 08-3535 SECTION R JUDGE SARAH VANCE MAGISTRATE JUDGE DANIEL E. KNOWLES

JACKSON HEWITT TAX SERVICE INC.'S AND JACKSON HEWITT INC.'S RESPONSE TO PLAINTIFF VICKI L. PINERO'S FIRST REQUEST FOR THE PRODUCTION OF DOCUMENTS Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure and the Local Rules for the United States District Court for the Eastern District of Louisiana, Defendants Jackson Hewitt Tax Service Inc. and Jackson Hewitt Inc. (collectively "Jackson Hewitt") hereby respond to Plaintiff Vicki L. Pinero's First Request for the Production of Documents (the "Request"), as set forth below. INTRODUCTION Jackson Hewitt's responses to any propounded discovery in this litigation may involve information of a confidential or proprietary nature, such that information must be produced pursuant to an appropriate stipulated confidentiality and protective order. The responses should be treated as confidential and not be shared with any third party or used in other litigation even prior to the entry of such an order. By responding to the Request, Jackson Hewitt reserves and does not waive any objections to the admission of any documents at trial, or to the admission of
Exhibit B

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the information contained therein, on grounds of privilege, relevance, hearsay, or other grounds of objection. Jackson Hewitt objects to Plaintiff's "Instructions" and "Definitions" accompanying her Request, to the extent they require Jackson Hewitt to respond to the Request in a manner which deviates from the Federal Rules of Civil Procedure, and will only respond as those Rules require. Furthermore, those Instructions and Definitions do not appear to apply to this Request, as they define terms which are not used within the Request. REQUEST FOR PRODUCTION NUMBER 1: Produce all documents that you believe evidence [Jackson Hewitt's] attempt(s) to comply with the Federal Trade Commission's Safeguards Rule, 16 C.F.R. §§ 314.3-314.4, from January 1, 2005 until June 8, 2009. Include in your response all written policies and procedures designed to (1) insure the security and confidentiality of customer information; (2) protect against any anticipated threats or hazards to the security or integrity of such information; and (3) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer. JACKSON HEWITT'S COMBINED RESPONSE TO REQUEST FOR PRODUCTION NUMBER 1: Jackson Hewitt objects to plaintiff's Request to the extent that: 1. The Request does not properly identify the documents sought, but instead impermissibly seeks documents that may support certain legal contentions, and accordingly is premature, overbroad, unduly burdensome, and calls for legal conclusions, mental impressions of counsel, and other privileged attorney work product and attorney-client communications. 2. The Request seeks information and materials protected by the attorney work product doctrine and attorney-client privilege, as well as the joint defense and common interest doctrines.

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3. The Request is overbroad and unduly burdensome, and seeks irrelevant information including information that is beyond the temporal and geographic scope of this case, and therefore is not reasonably calculated to lead to admissible evidence. 4. The Request is overly vague, using undefined terms which are argumentative and require speculation. 5. The Request seeks information that is neither relevant to Plaintiff's claims nor reasonably calculated to lead to the discovery of admissible evidence. 6. The Request states allegations of facts and presumes conclusions of law that are in dispute in this Action. Jackson Hewitt further objects to this Request to the extent that it purports to define or characterize the Federal Trade Commission's Safeguards Rule. Any response to the Request should not be construed as an admission or concession with respect to any such facts, conclusions, or characterizations. 7. The Request calls for information readily available in the public domain or public record (including but not limited to public filings, articles, or court decisions), within Plaintiff's own knowledge or control, or otherwise easily accessible to Plaintiff. Jackson Hewitt's provision of such information to Plaintiff would be unduly burdensome and would cause Jackson Hewitt to incur unnecessary expense.

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Subject to and without waiving these objections, Jackson Hewitt invites Plaintiff to clarify and reasonably tailor her Request to seek relevant materials in a manner that does not call for attorney mental impressions or work product and is consistent with the Federal Rules of Civil Procedure, such as would allow Jackson Hewitt to amend and/or supplement its response. Respectfully submitted,

___________________________ Donna L. Wilson Andrew S. Wein Veronica D. Jackson Kelley Drye & Warren LLP Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007-5108 [phone] (phone) [phone] (fax) - and ­ Glenn M. Farnet Gina D. Banks Kean, Miller, Hawthorne, D'Armond, McCowan & Jarmon, LLP One American Place, 22nd Floor Baton Rouge, LA 70825 [phone] (phone) [phone] (fax) Counsel for Jackson Hewitt Tax Service, Inc. and Jackson Hewitt, Inc. Certificate of Service I do hereby certify that on July 8, 2009, I mailed and emailed the foregoing to all counsel at the following: Bryan C. Shartle Sessions, Fishman, Nathan & Israel, LLP Lakeway II, Suite 200

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3850 North Causeway Boulevard Metairie, LA 70002 [e-mail] Counsel for Plaintiff Vicki L. Pinero Thomas G. Buck Blue Williams, LLP 3421 North Causeway Boulevard, Suite 900 Metairie, LA 70002 [e-mail] Counsel for Crescent City Tax Service, Inc., d/b/a Jackson Hewitt Tax Service

______________________________ Andrew S. Wein, Esq.

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