Murray v. Marchbanks et al
MEMORANDUM AND ORDER: Plaintiff's discovery requests seek to identify how she and others' information came to be in the defendants' possession. The requests are directly relevant to her claim and to class certification. The Court encourages the parties to resolve all future discovery issues without the Court's intervention. Signed by District Judge Stephen N. Limbaugh, Jr on 4/14/2017. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
STEVEN MARCHBANKS, et al.,
Case No. 4:16-CV-198 SNLJ
MEMORANDUM AND ORDER
This case comes before the Court on defendants Steven Marchbanks and Premier
Legal Center’s motion for a protective order regarding discovery and to reconsider case
management order and scope of discovery (#41). The plaintiff responded to which
defendants replied. The issues are ripe for disposition.
Plaintiff contends that the defendants violated the Driver’s Privacy Protection Act
(“DPPA”) by using her personal information obtained from the Missouri Department of
Motor Vehicles (“DMV”), without her consent, to solicit her as a client to sue her
automobile’s manufacturer. Plaintiff filed this putative nationwide class action lawsuit
on behalf of herself and others similarly situated who were solicited as potential clients
by the defendants. Defendants acknowledged that they did send the plaintiff solicitation
letters but deny that the information was obtained from the Missouri DMV or from the
DMV of any other state.
Defendants, via Sunshine Law requests, obtained information from the Missouri
DMV regarding requests by certain entities for plaintiff’s specific personal information.
Further, defendants obtained a list of all entities that received bulk record data from the
Missouri DMV. As shown in this information, there were no individual requests for
plaintiff’s personal information by any entity, but there were 39 entities that may have
received plaintiff’s driver and motor vehicle records via bulk record distribution.
Defendants are correct that none of the defendants’ names or businesses are on the list of
those entities that requested or received plaintiff’s information directly the Missouri
DMV. Additionally, Robbie DeShazo, DeShazo Direct Marketing, and DMM,
previously defendants in this action, do not appear on this list.
The instant motion relates to discovery and scheduling issues between the parties.
Specifically, defendants seek (1) a protective order limiting the scope of the plaintiff’s
discovery, (2) an amendment to the scheduling order so that this Court may limit
discovery to plaintiff’s individual claim and discovery relevant to class certification issue
only, and (3) an order that this Court will consider the defendants’ motion for summary
judgment prior to considering plaintiff’s motion for class certification.
Under Federal Rule of Civil Procedure Rule 26(b)(1), parties may obtain
discovery “regarding any matter, not privileged, that is relevant to the claim or defense of
any party.” Relevancy is broadly construed, and “a request for discovery should be
considered relevant if there is any possibility that the information sought may be relevant
to the claim or defense of any party.” Trickey v. Kaman Indus. Techs. Corp., 1:09CV26
SNLJ, 2010 WL 5067421, at *2 (E.D. Mo. Dec. 6, 2010) (quoting Breon v. Coca–Cola
Bottling Co. of New England, 232 F.R.D. 49, 52 (D. Conn. 2005)). This Court is mindful
that discovery is nonetheless not permitted where there is no need shown, where
compliance would be unduly burdensome, or where “harm to the person from whom the
discovery is sought outweighs the need of the person seeking the information.” Id.
(quoting Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197
F.3d 922, 925 (8th Cir. 1999)).
The DPPA, 18 U.S.C. §§ 2721-2725, regulates “the disclosure of personal
information contained in the records of state motor vehicle departments.” Maracich v.
Spears, 133 S.Ct. 2191, 2195 (2013). Personal information is defined under the DPPA as
“information that identifies an individual,” and includes, inter alia, a person’s “name,
address (but not the 5-digit zip code), [or] telephone number.” 18 U.S.C. § 2725(3). It is
unlawful for “any person knowingly to obtain or disclose personal information, from a
motor vehicle record, for any use not permitted under section 2721(b) of this title.” 18
U.S.C. § 2722(a). Further, “A person who knowingly obtains, discloses or uses personal
information, from a motor vehicle record, for a purpose not permitted under this chapter
shall be liable to the individual to whom the information pertains, who may bring a civil
action in a United States district court.” 18 U.S.C. § 2724(a). Regarding the exceptions,
the Supreme Court has expressly held that “sending communications for the predominant
purpose of solicitation is not a use of personal information exempt from DPPA liability”
unless the individual consents to the use of her personal information. Maracich, 133
S.Ct. at 2210.
Defendants request this Court to prohibit the plaintiff from this “broad-based
fishing expedition” and limit the discovery to “reasonable parameters.” Defendants
contend that the plaintiff’s interrogatories and requests for production of documents are
“overly broad, unduly burdensome, [and] are not proportional to the needs of the case.”
Because of these discovery requests, defendants claim, they “must pursue a protective
order or in the alternative request that the Court reconsider the issue of discovery and
limit the discovery to that discovery reasonably tailored and necessary for consideration
of class certification.” The defendants identify two interrogatories and six requests for
production of documents that they claim establish their point.
Additionally, it appears that several of the requests pertain to two individuals –
Ruben Leon and Troy Merry – who are not agents of the defendants, as well as two
companies that Leon and Merry presumably work for – Spectrum Mailing Lists and
Natimark, Inc. Defendants disclosed these individuals in their Rule 26(a) initial
disclosures as those who would have discoverable information regarding the source of
information from which plaintiff’s name was obtained. In light of this disclosure by the
defendants, the plaintiff submitted interrogatories asking the defendants to:
Identify the discoverable information in the possession of Ruben
Leon and Troy Merry.
State the role if any that the following individuals and entities
had in obtaining [plaintiff’s] personal information, in
advertising your services to her, or in soliciting her to consult
with you or retain you as a client: Ruben Leon, Spectrum
Mailing Lists, Troy Merry, Natimark, Inc.; if in that role, any of
them dealt with another individual or entity, identify that
individual or entity by name, address and (in the case of an
individual) employer (including the employer’s address).
In conclusory fashion, the defendants argue that these interrogatories are “in no way
tailored to issues regarding class certification” and are “overly broad, unduly
burdensome, are not proportional to the needs of the case and are merely designed to
harass the Defendants in this matter.” The Court disagrees. These requests are directly
relevant to the plaintiff’s claims and likely relevant to potential class members, and are
meant to identify how plaintiff’s and others’ information came to be in the defendants’
Further, one of the discovery requests specifically pertains to Robbie DeShazo,
DeShazo Direct Marketing and DDM. Plaintiff initially alleged that these entities
obtained plaintiff’s personal information from a DMV and provided her information to
the defendants. However, as this Court understands, plaintiff voluntarily dismissed these
three entities because Ms. DeShazo denied that she provided plaintiff’s name to the
defendants and defendant Marchbanks submitted an affidavit in which he stated that any
references to DDM were an error on his behalf. But because of this ongoing discovery
dispute, the defendants apparently have not definitively informed the plaintiff of where
they obtained her information. In an effort to determine that information, plaintiff
requested the following documents:
All correspondence, emails, faxes and texts between defendants
and all persons and entities who provided you with, or were in
the possession of, Plaintiff’s personal information (name and
address) and personal information of other automobile owners
in Missouri or residents of Missouri to whom you sent an
“ADVERTISEMENT IMPORTANT NOTIFICATION” or
letters containing the same or similar content as Exhibits A and
B to the Complaint, soliciting them as clients or describing their
actual or possible automobile ownership.
All agreements, contracts, bills and receipts for your
procurement of Plaintiff’s personal information and the
personal information of other persons and entities in Missouri to
whom or to which you mailed letters containing the same or
similar content as exhibits A and B to the complaint, soliciting
them as clients or describing their actual or possible automobile
All correspondence, emails, facts (sic) and texts with Robbie
DeShazo, DeShazo Direct Marketing and DDM for the year 2015
to the present.
All documents containing [plaintiff’s] personal information and
the personal information of automobile owners in Missouri or
other residents of Missouri to whom you sent solicitation letters.
All faxes, documents, emails and texts to or from Ruben Leon,
Spectrum Mailing Lists, Troy Merry and/or Natimark, Inc.,
referring or related to the personal information of [plaintiff],
other automobile owners in Missouri, or Missouri residents to
whom you sent an “ADVERTISEMENT IMPORTANT
NOTIFICATION” or a letter containing the same or similar
content as Exhibits A and B to the Complaint, soliciting them as
clients or describing their actual or possible automobile
All contracts you entered into with Ruben Leon, Spectrum
Mailing Lists, Troy Merry and/or Natimark, Inc. related to
automobile owners in Missouri.
Again, in conclusory fashion, the defendants argue that these requests are “in no
way tailored to issues regarding class certification” and “overly broad, unduly
burdensome, and not proportional to the needs of this case.” However, these requests
appear to be crafted precisely to seek discovery as to plaintiff’s individual claim and the
claims of others similarly situated. The information sought is directly relevant to class
certification. The Court declines to grant a protective order and declines to reconsider its
case management order in this case. Defendants’ additional request that the Court
address their motion for summary judgment prior to considering plaintiff’s motion for
class certification is not yet ripe because neither motion is before the Court.
Plaintiff’s discovery requests seek to identify how she and others’ information
came to be in the defendants’ possession. The requests are directly relevant to her claim
and to class certification. The Court encourages the parties to resolve all future discovery
issues without the Court’s intervention.
So ordered this 14th day of April, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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