Young v. GreatCall, Inc.

Filing 91

ORDER by Magistrate Judge Kevin R. Sweazea granting in part and denying in part 78 Plaintiff's Second Motion to Compel (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

TERRY L. YOUNG, as Personal
Representative of the Estate of
Maxine Young,
Plaintiff,
v.

No. 2:17-cv-00692-GBW-KRS

GREATCALL, INC.,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S SECOND MOTION TO COMPEL
THIS MATTER comes before the Court on Plaintiff’s second motion to compel
discovery responses (Doc. 78). Plaintiff contends that Defendant refused to produce TV and
print ads targeting Walmart; identify purchasers of its “Splash” device in New Mexico; and turn
over the personnel file of Renan Quiambao, Defendant’s Rule 30(b)(6) designee. Defendant
asserts these requests are not relevant to the case and/or improperly seek private information.
The Court has considered the parties’ submissions and the applicable law. Having done so, the
Court GRANTS Plaintiff’s motion in part.
BACKGROUND
Maxine Young died on April 26, 2016 after she pressed the button on her “Splash”
emergency-alert device sold by Defendant along with its “5star” urgent-response services for a
monthly subscription fee. Ms. Young reported to Defendant that she was on fire and needed
help. Defendant did not call 911, but ultimately did contact Ms. Young’s daughter who
discovered Ms. Young at home, unresponsive. Ms. Young’s daughter summoned first
responders, but Ms. Young had passed away by the time they arrived. Defendant maintains that
Page 1 of 7

Ms. Young was smoking while on oxygen—the cause of the fire—and its agents understood Ms.
Young to say she was fine, and otherwise followed protocol in responding to the distress signal.
Following Ms. Young’s death, a personal representative was appointed and sued in state court.
(Doc. 1). Defendant removed the matter to this Court on June 30, 2017. (Id.). In her two-count
complaint, Plaintiff alleges Defendant’s negligence was the cause of Ms. Young’s wrongful
death (Count I); and Defendant violated New Mexico’s Unfair Practices Act [“NMUPA”], N.M.
Stat. Ann. § 57-12-2(A) (Count II). (Id.).
On March 5, 2018, Plaintiff propounded a second round of discovery. As is pertinent to
this motion, Plaintiff asked Defendant in Request for Production No. 33 for “GreatCall’s TV
advertisements and print ads used in 2016, including tagging Walmart as a retail location, as
discussed in the Deposition of Renan Quiambao[.]” 1 Defendant objected on relevance grounds,
and did not provide the materials sought. In Request for Production No. 39, Plaintiff wanted that
Defendant identify “all customers in New Mexico who purchased GreatCall’s Splash device
between January 1, 2016 though the date of [Defendant’s Response to this Request].” As before,
Defendant withheld production and objected on relevance and customer privacy grounds.
Finally, in Request for Production No. 41, Plaintiff sought “the personnel file for Renan
Quiambao, [Rule 30(b)(6) designee] in both hardcopy and electronic formats, including training
logs and training spreadsheets[.]” Defendant declined to produce the file on relevance grounds.
This motion to compel followed.

1

The Court reminds the parties that when filing motions to compel, they must attach “a copy of: (a) the
interrogatory, request for production or inspection, relevant portion of deposition transcript, or request for
admission, and (b) the response or objection thereto.” D.N.M. LR-Civ. 37.1(a)-(b). Plaintiff has not done so here,
but replicates the challenged requests for production and objections with sufficient specificity as to permit review.
Defendant appears to agree with the Plaintiff’s recitation of its responses.
Page 2 of 7

LEGAL STANDARD
Federal Rule of Civil Procedure 26(b)(1) allows discovery of any non-privileged matter,
provided such discovery “is relevant to any party’s claim or defense and proportional to the
needs of the case.” An aggrieved party may file a motion to compel, inter alia, where a party
fails to produce documents in response to a properly propounded request. See Fed. R. Civ. P.
37(a)(3). A court may limit a request for production if it is not “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.” Fed. R. Civ. P. 26(b)(1). The movant bears the initial burden of
showing that the information sought is relevant. Metzger v. Am. Fid. Assurance Co., 245 F.R.D.
727 (W.D. Okla. 2007).
DISCUSSION
Request for Production No. 33
According to Plaintiff, TV and print advertisements are relevant to her claim under the
NMUPA. The NMUPA makes unlawful any “[u]nfair or deceptive trade practices [or]
unconscionable trade practices in the conduct of any trade or commerce.” N.M. Stat. Ann. § 5712-3. Four elements comprise the cause of action: (1) the plaintiff must show the defendant
made an “oral or written statement, visual description or other representation” that was either
false or misleading; (2) the false or misleading representation must have been “knowingly made
in connection with the sale . . . of goods or services”; (3) the prohibited conduct must have
occurred in the regular course of the defendant’s commerce; and (4) the defendant’s
representation must have been of the type that “may, tends to or does, deceive or mislead any

Page 3 of 7

person.” Stevenson v. Louis Dreyfus Corp., 811 P.2d 1308, 1311 (N.M. 1991). “The ‘knowingly
made’ requirement is met if a party was actually aware that the statement was false or misleading
when made, or in the exercise of reasonable diligence should have been aware that the statement
was false or misleading.” Id.
The Court agrees with Plaintiff that TV and print advertisements are representations that
could prove a claim under the NMUPA. Thus, as a broad proposition, Plaintiff has established
relevance. 2 At the same time, the Court is not able to discern how print or TV ads run after
Maxine Young’s device was purchased, no matter how misleading or false, could have any
tendency to make a fact of consequence more or less likely. The Court will therefore limit the
timeframe of Request for Production 33 to the year preceding the purchase of Maxine Young’s
device. See Fed. R. Civ. P. 26(b)(1) & (b)(2)(C)(iii). Additionally, to the extent there are
different advertisements in markets other than New Mexico during the relevant period, the Court
will not require to Defendant to produce them. Subject to these parameters, Defendant shall
produce the TV and print advertisement material on or before July 2, 2018.
Request for Production No. 39
Plaintiff contends she is entitled to know who purchased Defendant’s Splash device in
New Mexico because the purchasers are potential witnesses to Defendant’s negligent service and
training. Defendant refuses to produce purchaser lists on privacy grounds and explains that

2

Defendant argues that it is all but admitted Ms. Young did not see any ads or relied on any ads in purchasing its
device; Plaintiff’s expert admits that GreatCall has not made any express statements that he considers to be a
misrepresentation; and Plaintiff only pleaded “on-line” ads as misleading . With respect to the first contention,
Defendant acknowledges the NMUPA does not require actual reliance. As to the next assertion, even if Plaintiff’s
expert were the only source capable of proving a claim under the NMUPA, Defendant has not produced its ads for
the expert to review and the expert’s opinion is necessarily incomplete. Finally, the Court is not convinced that
simply because Plaintiff identified online ads in connection with her NMUPA count, Plaintiff is precluded from
discovering other representations Defendant may have made in other media. Defendant has not cited to any
authority requiring the Court to deny the motion to compel on that basis. In any event, Plaintiff would not
necessarily be precluded from amending her complaint if information were discovered that suggested other media
were used to transmit misrepresentations.
Page 4 of 7

purchasers may not actually be the end users. The Court agrees that purchasers may possess
evidence germane to Plaintiff’s claims of negligence and unfair practices. Even if the purchasers
are not the actual end users, these individuals still may have firsthand knowledge about the
device or be able to identify the actual end user. The Court, however, does not see how
purchasers of Defendant’s products and services after Maxine’s Young’s death would help
establish Defendant’s negligence in this suit. The Court will therefore adjust the timeframe to
New Mexico purchasers for the year before April 26, 2016.
The Court is also mindful of privacy. Although Defendant has not offered any authority
supporting an absolute privilege under the circumstances, the Court shall safeguard personal
purchaser information as much as possible. To that end, the Court will enter a protective order
preventing disclosure of purchaser information to anyone, person or entity, not involved in the
litigation of this case. While Plaintiff would still be able to contact purchasers, this modest
intrusion is not much beyond what typically might be expected from unsolicited calls or
correspondence resulting from information published in public domain. Plaintiff’s attorney and
agents are bound by ethical rules that prohibit harassing conduct. Subject to the limitation on
timeframe, Defendant must produce the customer list with ten days from the Court’s entry of a
protective order.
Request for Production No. 41
The purpose of obtaining Renan Quiambao’s personnel file, Plaintiff contends, is to
ascertain whether he, as Defendant’s corporate designee on the issue of training, was himself
trained properly. The relevance of Mr. Quiambao’s training is apparent to the Court. Plaintiff’s
negligence claims are premised, in part, on breach of a duty to “ensur[e] the emergency call
personnel were properly trained to handle emergency situations.” (Doc. 1, at 15, ¶3).

Page 5 of 7

Conceptually, however, a “personnel file” could encompass information that has no bearing on
this matter such as Mr. Quiambao’s personal health and financial records. Neither party has
delineated the exact contents of a personnel file, and the Court is unaware of a common
definition of the terminology. Thus, The Court is unable to conduct the relevance or
proportionality inquiry required by Rule 26 and declines to compel Defendant to produce the
file, whatever its contents may be. Instead, Plaintiff should propound a new request for
production that either seeks specific items that might be found in the file that would bear on a her
claims or otherwise define precisely what she means by a personnel file.
CONCLUSION
For the reasons state above, Defendant shall produce advertisements and the identity of
purchasers of the Splash device as set forth below.
IT IS, THEREFORE, ORDERED that Plaintiff’s second motion to compel is
GRANTED in part and DENIED in part. The motion is granted in part as to Requests for
Production Nos. 33 and 39 and as further limited by the Court, but DENIED as to Request for
Production No. 41.
IT IS FURTHER ORDERED that on or before July 2, 2018, Defendant produce TV
and print advertisements but only for the year preceding the purchase of Maxine Young’s device
and only for the New Mexico market.
IT IS FURTHER ORDERED that on or before July 10, 2018, Defendant produce a list
of individuals that purchased its Splash device in New Mexico in the year preceding Maxine
Young’s death. Before producing the list and on or before July 2, 2018, Defendant shall draft
and present to Plaintiff a form of protective order that will keep confidential as between the
litigants in this case and their representatives the personally identifying information for

Page 6 of 7

purchasers disclosed. If Plaintiff agrees to the terms of the protective order, Defendant shall
submit the order to the Court for entry on or before July 10, 2018. If Plaintiff does not agree to
the form of protective order, Defendant shall file an opposed motion for a protective order on or
before July 16, 2018. In the event Defendant files an opposed motion for a protective order,
then Plaintiff shall file her proposed form of proposed protective order as an attachment to
Plaintiff’s response to the opposed motion for protective order. In the event that Defendant files
an opposed motion for a protective order, the Court will stay the production of the purchaser
information until ruling on the opposed motion.

______________________________
KEVIN SWEAZEA
UNITED STATES MAGISTRATE JUDGE

Page 7 of 7