Bridges et al v. Freese et al
Filing
137
ORDER granting in part and denying in part Defendants' Motions 63 , 67 , 68 , 113 , 114 to Quash or for Protective Order; granting in part and denying in part Plaintiffs' Motion 72 to Compel, and Motion for Sanctions and Order of Contempt; and denying Defendants' Motion 116 to Permanently Seal Documents. Signed by Magistrate Judge John C. Gargiulo on 9/11/2014 (HM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARY BRIDGES,
BOBBY GORDON, and
JOHNNIE GRIFFIN, all
individually and on behalf of 345
other named plaintiffs
vs.
PLAINTIFFS
CIVIL ACTION NO.: 3:13-cv-457-TSL-JCG
RICHARD A. FREESE;
TIM K. GOSS;
SHEILA M. BOSSIER;
DENNIS C. SWEET, III;
FREESE AND GOSS PLLC;
SWEET AND FREESE PLLC;
BOSSIER AND ASSOCIATES PLLC; and
DENNIS C. SWEET, d/b/a Sweet and Associates, PLLC
DON A. MITCHELL
DEFENDANTS
THIRD-PARTY DEFENDANT
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS [63, 67, 68, 113, 114] TO QUASH OR FOR PROTECTIVE ORDER;
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION [72]
TO COMPEL, AND MOTION FOR SANCTIONS AND ORDER OF
CONTEMPT; AND DENYING DEFENDANTS’ MOTION [116] TO
PERMANENTLY SEAL DOCUMENTS
BEFORE THE COURT are five Motions [63, 67, 68, 113, 114] to Quash or for
Protective Order, filed by Defendants Richard A. Freese; Tim K. Goss; Sheila M.
Bossier; Dennis C. Sweet, III; Freese and Goss, PLLC; Sweet and Freese, PLLC;
Bossier and Associates, PLLC; and Dennis C. Sweet d/b/a Sweet and Associates,
PLLC (“Defendants”). Defendants’ Motion [116] to Permanently Seal Documents is
also before the Court, as is the Emergency Motion [72] to Compel, and Motion for
Sanctions and Order of Contempt, filed by Plaintiffs Mary Bridges, Bobby Gordon,
and Johnnie Griffin (“Plaintiffs’). The Motions have been fully briefed, and a
telephonic Motions hearing was held on September 5, 2014. Having considered the
submissions of the parties, the record, relevant legal authority, and the argument of
counsel at the Motions hearing, the Court finds that Defendants’ Motions [63, 67,
68, 113, 114] to Quash or for Protective Order should be granted in part and denied
in part; Plaintiffs’ Motion [72] to Compel, and Motion for Sanctions and Order of
Contempt, should be granted in part and denied in part; and Defendants’ Motion
[116] to Permanently Seal Documents should be denied.
I. DISCUSSION
A.
Class-Certification-Related Discovery
On February 3, 2014, a Case Management Order [25] was entered that
provided: “Parties will fully disclose all documents and disclosure items related to
the Motion for Class Certification on or prior to February 21, 2014.” Order [25] 2.
The Case Management Order set a discovery deadline of March 2, 2015, and May 1,
2014, as the deadline for Plaintiffs to file a motion for class certification. In the
interim period between February 3, 2014, and May 1, 2014, the parties did not
comply with their discovery obligations to the extent that the discovery process
completely stalled.
In March 2014, Plaintiffs served numerous subpoenas duces tecum and
notices of deposition. Defendants objected to every subpoena and deposition in full,
filing six Motions [62, 63, 67, 68, 113, 114] to Quash or for Protective Order.
According to Plaintiffs, Defendants have not produced a single document or allowed
any noticed depositions to go forward. Defendants maintain that Plaintiffs are
engaging in a “discovery ‘free-for-all’ targeted at the merits of the case” and not
seeking discovery curtailed to the issue of class certification. Resp. [79] 3.
A significant portion of the Motions’ briefing now before the Court addresses
the parties’ dispute over whether initial discovery in this matter was limited to the
issue of class certification by the Case Management Order [25]. By August 8, 2014,
TEXT ONLY ORDER, the Court clarified that initial discovery is limited to the
issue of class certification.
1.
Defendants’ Motions to Quash
Plaintiffs submit that the subpoenas issued by Plaintiffs and depositions
noticed by Plaintiffs are necessary in order to allow Plaintiffs a fair opportunity to
establish the prerequisites for class certification, specifically commonality. “To
obtain class certification, parties must satisfy [Federal Rule of Civil Procedure]
23(a)’s four threshold requirements, as well as the requirements of Rule 23(b)(1),
(2), or (3).” Funeral Consumers Alliance, Inc. v. Serv. Corp. Intern., 695 F.3d 330,
345 (5th Cir. 2012). The United States Supreme Court has recently emphasized
that Rule 23 does not set forth a mere pleading standard:
The class action is an exception to the usual rule that
litigation is conducted by and on behalf the individual
named parties only. To come within the exception, a party
seeking to maintain a class action must affirmatively
demonstrate his compliance with Rule 23. The Rule does
not set forth a mere pleading standard. Rather, a party
must not only be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or
fact, typicality of claims or defense, and adequacy of
representation, as required by Rule 23(a). The party must
also satisfy through evidentiary proof at least one of the
provisions of Rule 23(b). . . .
Repeatedly, we have emphasized that it may be necessary
for the court to probe behind the pleadings before coming to
rest on the certification question, and that certification is
proper only if the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been
satisfied. Such an analysis will frequently entail overlap
with the merits of the plaintiff’s underlying claim. That is
so because the class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action.
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013)(internal citations and
quotations omitted).
Class certification hearings should not be mini-trials on the
merits of the class or individual claims. At the same time,
however, going beyond the pleadings is necessary, as a court
must understand the claims, defenses, relevant facts, and
applicable substantive law in order to make a meaningful
determination of the certification issues. To assist the court
in this process it may sanction controlled discovery at the
certification stage. The plain text of Rule 23 requires the
court to “find,” not merely assume, the facts favoring class
certification.
Unger v. Amedisys, Inc., 401 F.3d 316, 321 (5th Cir. 2005); see Funeral Consumers
Alliance, Inc., 695 F.3d at 345-46.
“When there are disputed facts relevant to Rule 23 requirements, overlap
with merits should not be talismanically invoked to artificially limit a trial court’s
examination of the factors necessary to a reasoned determination of whether a
plaintiff has met her burden of establishing each of the Rule 23 class action
requirements.” Funeral Consumers Alliance, Inc., 695 F.3d at 346. The Fifth
Circuit has expressly disagreed with the contention that district courts are
precluded from “rendering merits-based conclusions at the class stage.” Id.
Plaintiffs’ counsel submits that he issued the subpoenas and noticed the
depositions that are the subject of Motions [63, 67, 68, 113, 114] because he is
attempting to establish that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2).
In order to satisfy commonality . . . , a proposed class must
prove that the claims of every class member “depend upon
a common contention . . . that is capable of classwide
resolution,” meaning that the contention is “of such a nature
. . . that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims
in one stroke.”
M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 838 (5th Cir. 2012)(citing Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)).
At the Motions hearing and in his briefing, Plaintiffs’ counsel detailed
Plaintiffs’ claims and his position on how the subpoenas issued and depositions
noticed are needed in order to prove commonality. In response, Defendants offered
a continuing generalized objection that Plaintiffs are attempting to engage in
merits-based discovery. Defendants also suggest that since Plaintiffs have
articulated their claims in detail, those allegations are sufficient to support a
motion for class certification. Reply [130] 4.
The law is clear that Rule 23 requires more than pleading and also clear that
class-certification-related discovery and merits-based discovery frequently overlap.
In the absence of more particularized, legally-supported objections by Defendants,
the Court finds that Defendants have not met their burden of demonstrating that
the subpoenas duces tecum issued by Plaintiffs and depositions noticed by Plaintiffs
should be quashed.
The Court is also not persuaded by Defendants’ argument that Plaintiffs
should not be able to depose people whom Plaintiff’s counsel previously deposed in
other litigation. Defendants have offered no proof substantiating their position that
the information Plaintiffs now seek was covered in previous depositions. Plaintiff’s
counsel, on the other hand, has provided proof supporting his position that prior
depositions were limited in scope. Attachments [86, 87].
The subpoenas duces tecum at issue in Motions [63, 67, 68, 113, 114] will not
be quashed, and responses to those subpoenas must be delivered to Plaintiffs’
counsel on or before September 25, 2014. Also by September 25, 2014, and in an
effort to remedy obstinate delay that is evident in these proceedings, Defendants
must provide to Plaintiffs’ counsel a chart of information as to all claimants who
participated in the underlying PCB settlement, both filed and unfiled. The chart
shall list the claimants only as #1, #2, #3, etc., and provide: (1) whether each
claimant is a filed or unfiled claimant; (2) each claimant’s medical diagnosis; (3)
additional information, if any, which affected the amount of each claimant’s
settlement, specifying the amount of expenses charged to each claimant and the
amount of any Medicaid or Medicare liens affecting each claimant’s settlement; and
(4) the amount of each claimant’s settlement. Plaintiffs’ request for this type of
relief was made at the Motions hearing and is supported by Williamson v.
Edmonds, 880 So. 2d 310, 321 (Miss. 2004).
The depositions noticed by Plaintiffs at issue in Motions [63, 67, 68, 113, 114]
will also not be quashed, with the exception of the depositions of Kris Thomas and
Paula Fairchild. Plaintiffs’ counsel indicated at the Motions hearing that the
depositions of these two individuals was not necessary during the class-certification
phase of discovery. The depositions noticed, with the exception of Thomas and
Fairchild, shall be completed on or before October 30, 2014, which is also the
deadline for the parties to complete class-certification-related discovery.
Plaintiffs will be allowed to amend their Motion for Class Certification, and
their deadline for doing so is November 13, 2014. The briefing schedule for the
Motion for Class Certification is thereafter governed by L.U.Civ.R. 7(b).
2.
Defendants’ Motions for Protective Order
Defendants seek a protective order in Motions [63, 67, 68, 113, 114], but their
request is broad and generalized, and essentially a request that the Court forbid all
discovery now sought by Plaintiffs in full. Defendants mention a protective order
entered in a separate case but have not provided that protective order in this action
or sufficiently explained why the same protective order is appropriate in this case.
Defendants allege that the underlying PCB-litigation settlement agreements, which
contain confidentiality provisions, require that certain information in this case be
subject to a protective order.
In an effort to quickly address Defendants’ concerns regarding confidentiality
and because of the delay in this case, the Court will impose a deadline for
Defendants to submit another motion for protective order, which more aptly
addresses their confidentiality concerns and provides supporting authority for their
positions. Defendants’ deadline for filing a motion for protective order is
September 18, 2014. If Defendants file such a motion, a proposed protective order
must be simultaneously provided to the Court by email to
Gargiulo Chambers@mssd.uscourts.gov, copying opposing counsel.
Plaintiffs will be allowed five (5) days to respond to any motion for protective
order filed by Defendants, calculated from the date that Defendants’ motion is filed.
Plaintiffs may also submit a proposed protective order to chambers’ email,
simultaneous with their response, and must copy opposing counsel. As with any
discovery motion, the parties are subject to Local Uniform Civil Rule 37, and before
serving a motion for protective order, “counsel must confer in good faith to
determine to what extent the issue in question can be resolved without court
intervention.” L.U.Civ.R. 37(a). Class-certification-related discovery will not cease
or be delayed pending resolution of whether a protective order should be entered.
L.U.Civ.R. 37(d)
In summary, Defendants’ Motions [63, 67, 68, 113, 114] to Quash or for
Protective Order are granted in part and denied in part. The Motions are granted
to the extent that (1) the depositions of Kris Thomas and Paula Fairchild will not
occur during the class-certification-related discovery period, and (2) Defendants
may file a motion for protective order, addressing their confidentiality concerns, on
or before September 18, 2014. Defendants’ Motions [63, 67, 68, 113, 114] are denied
in all other respects. Plaintiffs’ Emergency Motion [72] to Compel, and Motion for
Sanctions and Order of Contempt is granted to the extent that the Court has
compelled discovery in this Order. The Motion [72] is denied in all other respects.
B.
Defendants’ Motion to Permanently Seal Documents
Defendants request that the Court permanently seal Exhibit 2 to Plaintiffs’
Motion [105] to Hold Plaintiffs’ Motion to Certify Class in Abeyance Pending the
Defendants’ Compliance with the Discovery Requested. Mot. [116]. Exhibit 2 is a
computer disc containing approximately 630 pages of documents produced to
Plaintiffs’ counsel in another lawsuit. Plaintiffs filed a Motion [106] to Temporarily
Seal Exhibit 2 for fourteen days “because . . . some sensitive information, such as
social security numbers should be redacted” and “in order for Defendants to have an
opportunity to file a Motion to Seal or protective order on certain documents . . . .”
Mot. [106] 1. Plaintiffs’ Motion [106] to Temporarily Seal Exhibit 2 for fourteen
days was granted on May 12, 2014.
Defendants request that Exhibit 2 be permanently sealed because the
documents therein contain confidential personal information, settlement documents
that include the amounts paid to individuals in the underlying PCB-litigation
settlement, and attorney-client privileged communications. Mot. [116] 3-4.
Plaintiffs object to Exhibit 2 being permanently sealed, urging that Defendants’
concerns do not overcome the presumption in favor of public access to court records
and submitting that redaction of personal identifiers is sufficient. Resp. [121] 1-5.
Plaintiffs also note that Defendants’ request to permanently seal some of the
documents contained in Exhibit 2 was denied by the Mississippi Supreme Court in
other litigation. Resp. [121] 2; Miss. Sup. Ct. Order, Ex. [121-2].
The Court finds that it is premature to decide whether the documents or
types of documents contained in Exhibit 2 should be sealed. Federal Rule of Civil
Procedure 5 provides that discovery is not to be filed with the Court until “used in
the proceeding or the court orders filing.” Fed. R. Civ. P. 5(d)(1). Plaintiffs filed 630
pages of what are, in essence, discovery documents, as an attachment to a relatively
straightforward Motion [102] for time. Plaintiffs generically referenced Exhibit 2 in
one sentence of a six-page Motion but cited to no particular portion of the 630-page
exhibit. The one sentence referencing Exhibit 2 states, “[s]ee the documents that
[Defendants] produced in another case to show as an example that they settled the
claims together for the 348, and only they control all of the documents.” Mot. [105]
5.
The documents in Exhibit 2 were not utilized in any meaningful way towards
securing the relief requested in Plaintiffs’ Motion [102] for time, yet their inclusion
in the record now raises highly-contested and intricate issues regarding
confidentiality. Plaintiffs furthermore filed Exhibit 2 without first redacting
personal identifiers, which is contrary to Administrative Procedures for Electronic
Case Filing Section 9. Under the circumstances, the Court finds that there is a
more reasonable course than permanently sealing a voluminous exhibit that serves
no genuine purpose in the record at this time. Exhibit 2 will instead be stricken
from the record. If the parties wish to utilize the documents in Exhibit 2 as exhibits
to future pleadings, such as in support or response to Plaintiffs’ amended motion for
class certification, a motion to seal may be made at that time in accordance with the
procedures provided in Local Uniform Civil Rule 79. Defendants’ Motion [116] to
Permanently Seal Documents should be denied; however, Exhibit 2 to Motion [105]
will be stricken from the record.
II. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED, that Defendants’
Motions [63, 67, 68, 113, 114] to Quash and for Protective Order are granted in part
and denied in part. The Motions are granted to the extent that (1) the depositions
of Kris Thomas and Paula Fairchild will not occur during the class-certificationrelated discovery period, and (2) Defendants may file a motion for protective order,
addressing their confidentiality concerns, on or before September 18, 2014.
Defendants’ Motions [63, 67, 68, 113, 114] are denied in all other respects.
Responses to the subpoenas duces tecum at issue in Motions [63, 67, 68, 113,
114] shall be delivered to Plaintiffs’ counsel on or before September 25, 2014. The
depositions at issue in Motions [63, 67, 68, 113, 114], with the exception of the
depositions of Thomas and Fairchild, shall be completed on or before October 30,
2014, which is also the deadline for completion of class-certification-related
discovery.
IT IS, FURTHER, ORDERED AND ADJUDGED that by September 25,
2014, Defendants must provide to Plaintiffs’ counsel a chart of information as to all
claimants who participated in the underlying PCB settlement, both filed and
unfiled. The chart shall list the claimants only as #1, #2, #3, etc., and provide: (1)
whether each claimant is a filed or unfiled claimant; (2) each claimant’s medical
diagnosis; (3) additional information, if any, which affected the amount of each
claimant’s settlement, specifying the amount of expenses charged to each claimant
and the amount of any Medicaid or Medicare liens affecting each claimant’s
settlement; and (4) the amount of each claimant’s settlement.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs’
Emergency Motion [72] to Compel, and Motion for Sanctions and Order of Contempt
is granted to the extent that the Court has compelled discovery in this Order. It is
denied in all other respects.
IT IS, FURTHER, ORDERED AND ADJUDGED that Defendants’ Motion
[116] to Permanently Seal Documents is DENIED. However, Exhibit 2 to Motion
[105] is stricken from the record.
SO ORDERED AND ADJUDGED, this the 11th day of September, 2014.
s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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