Padberg v. DISH NETWORK LLC et al

Filing 233

ORDER entered by Judge Nanette Laughrey. DISH Network's Motion for Leave to Conduct Discovery, 223 , is DENIED. (Cross, Ashley)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MIKE PADBERG, individually and on
behalf of others similarly situated,
Plaintiffs,
v.
DISH NETWORK LLC,
Defendant.

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Case No. 11-04035-CV-C-NKL

ORDER
In its Motion for Leave to Conduct Discovery [Doc. 223], DISH seeks to depose two
categories of class members. For the following reasons, the Motion is DENIED.
I.

Background
DISH customers temporarily lost access to the FX channel and FOX regional

sports networks from October 1, 2010 to October 28, 2010. Plaintiff, Mike Padberg,
represents two overlapping nationwide classes of present and former DISH subscribers
who paid DISH for programming packages that included those channels. He seeks to
recover for breach of contract, specifically breach of the duty of good faith and fair
dealing.
After the temporary loss of access, Dish sent an email to its customers inviting
them to discuss the issue. Apparently, several of them responded to the email and some
of those responses were identified by DISH in its initial disclosures. Specifically, DISH
indicated it would use in its defense, “documents regarding subscriber complaints about
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the temporary loss of access to the FOX RSN Programming.” Upon request from
Padberg, DISH produced a sample of 200 email complaints from subscribers relating to
the temporary interruption. In February 2014, Padberg deposed DISH’s corporate
representative. During the deposition, Padberg gave 17 of the 200 emails to the corporate
representative and asked questions related to DISH’s response to those complaints. The
representative was asked to explain what the subscriber meant in the email and to opine
whether he thought the customer requests and viewpoints were reasonable or whether the
subscriber was satisfied by DISH’s response to his or her email.
DISH now seeks to depose: “(1) any class member on whose testimony or
statements Padberg relies; and (2) absent class members selected by DISH to balance the
class member testimony on which Plaintiff relies.” [Doc. 228 at 2]. DISH contends that
these depositions are “essential to the fairness of this case and to DISH’S defense.” [Id.]
II.

Discussion
Discovery from absent class members is ordinarily not permitted. Phillips

Petroleum Co. v. Shutts, 472 U.S. 797 (1985). The Supreme Court has held that
“burdens” like discovery are “rarely imposed” on class members. Id. 810. In exceptional
circumstance, however, class members may be deposed when they have been identified
as potential witnesses or have otherwise “injected” themselves into the litigation.
Antoninetti v. Chipotle, Inc., 2011 WL 2003292, at *1 (S.D.Cal. 2011) (discovery of
class members was appropriate where they were identified in disclosures and submitted
declarations used to support a class certification motion); Mas v. Cumulus Media Inc.,
2010 WL 4916402 at *3 (N.D. Cal. 2010) (discovery of absent class members identified
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in the plaintiff’s initial disclosures could be subject to discovery); Moreno v. Autozone,
2007 WL 2288165, at *1 (N.D. Cal. 2007) (discovery of absent class members is
appropriate where they submitted declarations in support of the plaintiff’s motion for
class certification).
Contrary to the cases cited above, DISH’s discovery request is fatally flawed
because it has not identified any specific person it wishes to depose. Instead, it states that
it wishes to depose “any class member on whose testimony or statement Padberg relies.”
But there is nothing in the Federal Rules of Civil Procedure that permits a party to force
their opponent during discovery to identify witnesses or documents on which their
opponent relies. Rather, the parties are required to disclose persons that have
discoverable information that a party may use to support a claim or defense. See Fed. R.
Civ. Pro. 26. Because DISH has not pointed to any class member that Padberg has so
disclosed, its requested discovery is not warranted on that basis. Nor has DISH shown
any class member who has injected themselves into this litigation. The only class
specific evidence identified by DISH in its Motion, are the emails sent to DISH by its
customers in response to DISH’s invitation to comment after the 2010 service
interruption. 1 But a communication that is invited and sent before litigation is even
commenced is not evidence that a class member has inserted himself into this lawsuit.
Therefore, all of the cases cited by DISH in support of it request, are substantially
distinguishable.

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The Court will assume these customers are class members for purposes of this Order.

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Further, if DISH is arguing that it should be permitted to wait to take depositions
until after Padberg submits his witness or exhibit list for trial, or submits evidence in
support or opposition to summary judgment, its request is contrary to the Court’s
scheduling order which contemplates the completion of discovery before summary
judgment and trial preparation. Otherwise, the record is forever changing and finality
cannot be achieved in an orderly manner. Moreover, Dish has failed to identify anything
unexpected that would justify doing discovery after discovery has closed. Wanting to see
their opponent’s strategic decisions before taking a deposition is not a justification.
At most, DISH’s request could be interpreted as a request to depose the class
members whose emails were identified by Padberg during the deposition of DISH’s
corporate representative, but those documents were all in the possession of DISH and
only DISH had an obligation to disclose them. Padberg did not have and does not have
an obligation during discovery to tell DISH whether it intends to rely on those
documents, any more than DISH has an obligation to tell Padberg what information it
intends to rely on. Further, and most importantly, DISH has failed to identify any subject
matter that could be explored during such a deposition that would lead to admissible
evidence. Arguably, the statements in the emails may be relevant simply because they
were made, but the subjective intent of the customer making the statement or what the
customer meant by the statement is not relevant. Thus the Court rejects DISH’s
argument that absent class member testimony is relevant and necessary to its defense
because “[t]he actual expectations and understanding of individual class members that
will be obtained through the proposed discovery . . . will demonstrate that the expectation
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that Padberg asserts is not uniformly (or even commonly) held, or is contrary to the
reasonable expectations and understanding of other class members.” [Doc. 224, at p. 12].
The Court has already determined that the “subjective intent of DISH and its customers
when entering into the contract is not relevant because the contract terms are clear.”
[Doc. 180, at p. 8]. Under Colorado law, “reasonable expectations” arising out of a
contract are assessed objectively “by reference to what meaning a person of ordinary
intelligence would attach to” the contractual provision. Simon v. Shelter Gen. Ins. Co.,
842 P.2d 236, 240 (Colo. 1992).
Nonetheless, DISH argues the Court’s ruling is only preliminary and should be
changed based on a recent case applying Colorado law. See Chimney Rock Pub. Power
Dist. v. Tri-State Generation & Transmission Ass’n, Inc., 2014 WL 788057 (D. Colo.
2014). But the holding in that case did not address the same issue that controls here. In
Chimney Rock, over a period of time, the plaintiffs contracted with the defendant to
provide the plaintiff’s electric power requirements. Plaintiffs sued the defendant for
breach of the implied covenant of good faith and fair dealing for failing to fairly set rates.
The Colorado district court, in granting summary judgment, referred to the defendant’s
historical discretion to set rates as being relevant to the parties justified expectations. The
court went on to hold that summary judgment was appropriate because the “undisputed
facts” demonstrated that the parties had a fifty year contractual history wherein the
defendant had repeatedly used its discretion to set rates using the same methodology
plaintiffs were now objecting to. Id. at *4. Nowhere in the opinion, however, does the
Chimney court change the long standing law articulated by the Colorado Supreme Court
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that “reasonable expectations” arising out of a contract are assessed objectively “by
reference to what meaning a person of ordinary intelligence would attach to” the
contractual provision. Simon v. Shelter Gen. Ins. Co., 842 P.2d 236, 240 (Colo. 1992).
The Chimney court’s oblique reference to discretion or the parties’ expectations, does not
imply that it was evaluating the subjective intent of the parties. Such a conclusion would
violate the precedent of the Colorado Supreme Court and should not be implied lightly,
given a federal court’s obligation to apply state law based on the highest precedent in the
state. Thus, the Chimney opinion does not persuade the Court to change its long standing
ruling that the subjective intent of the parties to this contract is not relevant; rather
reasonable expectations are determined by applying an objective standard. The objective
standard also makes common sense. No party to a form contract made with millions of
people would expect the enforcement of the contract to differ from person to person
based on each customer’s individual, subjective intent. Therefore, DISH has failed to
justify its request to depose the authors of the emails which it received.
III.

Conclusion

For the reasons set forth above, DISH’s Motion for Leave to Conduct Discovery,
[Doc. 223], is DENIED.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 8, 2014
Jefferson City, Missouri

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