GAREY, et al v. JAMES S. FARRIN, P.C. et al
Filing
211
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 12/20/2019, that the Motion (Docket Entry 170 ) is GRANTED IN PART and DENIED IN PART as follows: on or before January 10, 2020, W. Garey, Aaron Cr uthis, Amanda Reilly, Adilah McNeil, C. Clevenger, and Justin Brent Blakeslee must (1) serve the specified stipulations (see Docket Entry 173 at 10) to Interrogatories 7-11; (2) serve responses to Interrogatories 12 and 13; and (3) identify each common issue of fact that they contend can be resolved on a classwide basis and each individualized issue of fact that they contend cannot be resolved on a classwide basis. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM PARKER GAREY, et al.,
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
JAMES S. FARRIN, P.C., et al.,
Defendants.
1:16cv542
MEMORANDUM OPINION AND ORDER
This case comes before the Court on the “Fox Defendants’
Motion to Compel Against Plaintiffs” (Docket Entry 170) (the
“Motion”).1
For the reasons that follow, the Court will grant in
part and deny in part the Motion.
BACKGROUND
Alleging violations of the Driver’s Privacy Protection Act of
1994, 18 U.S.C. § 2721 et seq. (the “DPPA”), James Garey (“J.
Garey”),
William
Garey
(“W.
Garey”),
and
Aaron
Cruthis
(collectively, the “Original Plaintiffs”) initiated a purported
class action against a lawyer and various law firms.
Entry 1 (the “Complaint”) at 1-4.)
(See Docket
Shortly thereafter, Original
1 For purposes of the Motion, “James S. Farrin, P.C., d/b/a
Law Offices of James Scott Farrin, Marcari, Russotto, Spencer &
Balaban, P.C., Riddle & Brantley, L.L.P, Wallace Pierce Law, PLLC,
Van Laningham & Associates, PLLC d/b/a Bradley Law Group, Lanier
Law Group, P.A., Crumley Roberts, LLP, and Hardee & Hardee LLP”
comprise the “Fox Defendants.” (Id. at 1 n.1) [Citations herein
to Docket Entry pages utilize the CM/ECF footer’s pagination.
Also, for legibility reasons, this Opinion omits all-cap font in
all citations from the parties’ materials.]
Plaintiffs filed an amended complaint, which (1) added Amanda
Reilly, Adilah McNeil, Charlotte Clevenger (“C. Clevenger”), Andrew
Clevenger
(“A.
(collectively
plaintiffs
10.)
with
and
defendants.
Clevenger”),
Original
(2)
added
and
Justin
Plaintiffs,
various
Brent
the
lawyers
Blakeslee
“Plaintiffs”)
and
law
firms
as
as
(See Docket Entry 32 (the “Amended Complaint”) at 1-
The Amended Complaint alleges that “[e]ach [d]efendant
knowingly obtained, disclosed and used one or more Plaintiff’s
protected personal information from a motor vehicle record for the
purpose of marketing that [d]efendant’s legal services” (id.,
¶ 141) without “Plaintiffs’ express consent as required by the
DPPA” (id., ¶ 142).2
The Amended Complaint seeks injunctive
relief, attorney’s fees, and $2,500 in liquidated damages per
Plaintiff “for each instance in which a [d]efendant knowingly
obtained or used that Plaintiff’s protected personal information”
(id. at 36).
(See id. at 35-36.)
The defendants moved to dismiss the Amended Complaint.
As
relevant here, Fox Defendants’ dismissal motion asserted that
“Plaintiffs’
theory
would
unconstitutionally
restrict
Defendants’ Protected ‘Commercial Speech’ Interests.”
[Fox]
(Docket
2 According to the Amended Complaint, “Plaintiffs . . . are
individuals whose protected personal information was improperly
obtained and used by one or more of the [d]efendants in violation
of the DPPA when [d]efendants (a) obtained protected DMV
information copied from their license or registration data onto
accident reports [(each, a ‘DMV-349’)] and (b) used that
information to send marketing letters.” (Id. at 2.)
2
Entry 60 at 2.)
maintained
that
In support of this contention, Fox Defendants
Plaintiffs’
commercial speech precedent.”
theory
“violates
well-established
(Docket Entry 61 at 35.)
More
specifically, Fox Defendants argued that Plaintiffs’ claim fails
“th[e] intermediate-scrutiny test,” under which “any prohibitions
on . . . protected commercial speech must ‘directly advance a
substantial governmental interest and [be] appropriately tailored
to that purpose.’”
(Id. (second set of brackets in original)
(quoting Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 485 (1988)
(citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of
N.Y., 447 U.S. 557, 566 (1980))).)
The Court (per United States District Judge Loretta C. Biggs)
denied the defendants’ various dismissal motions.
(See generally
Docket Entry 93 (the “Dismissal Opinion”).) In so doing, the Court
rejected the defendants’ arguments that Plaintiffs’ interpretation
of the DPPA constitutes “a content-based prohibition on commercial
speech [that] fails to survive intermediate scrutiny.”
22.)
(Id. at
Fox Defendants subsequently sought reconsideration of the
Dismissal Opinion, contending, inter alia, that it “misconstrued
Central Hudson” (Docket Entry 111 at 4), which “set[s] forth a
four-step ‘intermediate scrutiny’ test to determine whether a
regulation of commercial speech is consistent with the First
Amendment” (id. at 3).
Asserting that the Dismissal Opinion erred
at step one of the Central Hudson test, Fox Defendants urged the
3
Court to “continue[] with the Central Hudson analysis” and complete
“steps two through four of the Central Hudson test.”
As
requested,
analysis.
9.)
the
Court
reassessed
its
(Id. at 4.)
Central
Hudson
(Docket Entry 142 (the “Reconsideration Opinion”) at 6-
The Reconsideration Opinion explains that, “[i]n Central
Hudson, the Supreme Court articulated [a] four-part intermediate
scrutiny test to determine the constitutionality of restrictions on
commercial speech.”
(Id. at 8.)
Under Central Hudson,
(1) to receive any First Amendment protection, commercial
speech “must concern lawful activity and not be
misleading”;
(2)
the
asserted
government
interest
“substantial” to justify the restriction;
be
advance[]
the
(3) the restriction must “directly
governmental interest asserted;” and
must
(4) the restriction must not be “more extensive than is
necessary to serve that interest.”
(Id. (brackets in original) (quoting Central Hudson, 447 U.S. at
566).)
Although “[t]he parties d[id] not appear to contest the
first Central Hudson factor,” the Court could not, “[i]n the
absence of a developed record, . . . determine whether, as applied
to [Fox] Defendants’ alleged conduct, the DPPA satisfies the
remaining Central Hudson factors.”
(Id. at 9.)
As such, the Court
concluded that “Plaintiffs’ claim [wa]s . . . not subject to
dismissal, at th[at] time, on First Amendment grounds.”
In
addition
to
seeking
reconsideration
of
the
(Id.)
Dismissal
Opinion, Fox Defendants filed an Answer to the Amended Complaint.
4
(See Docket Entry 97.)
As relevant to the Motion, the Answer
asserts the following defenses:
Second Defense
Plaintiffs and the putative class lack standing to
bring the claim alleged.
This defense is based on
several independent grounds, including but not limited
to, that the Plaintiffs did not suffer a cognizable
injury-in-fact; that Plaintiffs did not suffer an injury
that has been made actionable by Congress; that
Plaintiffs’ alleged injuries are not fairly traceable to
the conduct of [Fox] Defendants because any alleged
personal information had already been made public by the
[law enforcement agencies (the “LEAs”)]; and that
Plaintiffs’ injuries are not redressable by this Court
because any alleged personal information had already been
made public by the LEAs.
Third Defense
The claims of Plaintiffs and the putative class are
barred because imposing liability on [Fox] Defendants
violates the First Amendment of the United States
Constitution.
This defense is based on several
independent grounds, including but not limited to, that
the DPPA should not be construed so as to create a
constitutional question; that interpreting the DPPA to
impose liability on [Fox] Defendants would not directly
advance a substantial government interest; that [Fox]
Defendants engaged in protected speech; and that [Fox]
Defendants cannot be held liable for allegedly obtaining,
using, and disclosing information that had already been
made publicly available by the LEAs.
******
Fifth Defense
The claims of Plaintiffs and the putative class are
barred because there can be no liability for obtaining,
using, or disclosing information contained in public
records.
5
Sixth Defense
The claims of Plaintiffs and the putative class are
barred because [Fox] Defendants cannot be held liable for
the obtaining, use, or disclosure of information
previously publicly disclosed by a third party.
(Id. at 27-29 (emphasis in original).)
Thereafter,
Fox
Defendants
filed
a
“Joint
Notice
of
Constitutional Challenge to Federal Statute” (Docket Entry 146)
(the “Notice”), which states that certain of their defenses “raise
the question of whether the DPPA violates the First Amendment” (id.
at 1). In particular, the Notice maintains that the “[d]efendants’
filings
question
whether
the
DPPA
may
discriminate
between
categories of private citizens, permitting the speech of some but
not the speech of others.”
(Id.)
It further contends that the
“filings also question whether the DPPA should be interpreted to
prevent them from obtaining, using, and disclosing information that
has previously been made public by the government.”
(Id. at 1-2.)
After the Reconsideration Opinion issued, the Court (per the
undersigned United States Magistrate Judge) entered a Scheduling
Order for this matter.
(See Text Order dated Jan. 28, 2019.)
The
Scheduling Order imposed a discovery deadline of April 30, 2020.
(See Docket Entry 151 at 2.)
It also established a deadline for
filing a motion for class certification of August 31, 2019 (see id.
at 3), which deadline, at the parties’ request, the Court in July
2019 enlarged to October 30, 2019 (see Text Order dated July 6,
2019).
Later that month, Fox Defendants filed the Motion, seeking
6
to
compel
responses
to
multiple
interrogatories
(each,
an
“Interrogatory”), requests for production of documents (each, a
“Document
Request”),
and
requests
for
admission
(each,
an
“Admission Request”). (See Docket Entries 170, 171.) In response,
Plaintiffs revised certain of their discovery responses but opposed
the Motion as to the remaining discovery requests.
Plaintiffs
subsequently
moved
to
amend
their
Amended
Complaint, explaining that “[t]he Second Amended Complaint would
streamline the action in a number of ways.”
“Amendment Motion”) at 3.)
(Docket Entry 176 (the
For instance, Plaintiffs maintained
that the amendment would narrow the scope of the action by dropping
two Plaintiffs with unique claims and adding two Plaintiffs with
claims “similar to the remaining Plaintiffs.”
(Id.)
Plaintiffs
also proposed to narrow the putative class from individuals “listed
on a DMV-349 completed by any law enforcement officer in North
Carolina,”
to
individuals
“listed
on
DMV-349
crash
reports
completed by a select group of [LEAs].” (Id.) Finally, Plaintiffs
explained that,
[w]hereas the action [previously sought] liquidated
damages as a result of Defendants’ obtaining, disclosure,
and use of Plaintiffs’ personal information, the Second
Amended Complaint seeks liquidated damages only for the
[d]efendants’
obtaining
of
Plaintiffs’
personal
information — a change which sidesteps any First
Amendment defense since “the DPPA’s limitation on
obtaining personal information is not a restriction on
speech at all . . . .” Dahlstrom v. Sun-Times Media,
LLC, 777 F.3d 937, 949 (7th Cir. 2015) (emphasis added).
7
(Docket Entry 176 at 3 (emphasis and ellipsis in original).) After
the defendants consented to the Amendment Motion (see Docket
Entries 178, 179), and the Court granted Plaintiffs’ amendment
request (see Text Order dated Oct. 22, 2019), Plaintiffs filed a
“Second Amended and Supplemental Complaint” (Docket Entry 180) (the
“Second Amended Complaint”).
Although the Amendment Motion envisioned limiting Plaintiffs’
claim to obtaining Plaintiffs’ personal information (see Docket
Entry 176 at 3), the Second Amended Complaint does not adopt such
a limited scope.
Rather, it challenges the defendants’ obtaining
and using Plaintiffs’ information.
For instance, in its “Summary
of the Action” (Docket Entry 180 at 2 (emphasis omitted)), the
Second Amended Complaint alleges:
[The d]efendants in this case are lawyers and law
firms that have systematically violated the DPPA by
knowingly obtaining protected personal information from
motor vehicle records, including drivers’ licenses and
vehicle registration cards, and then using that protected
information for hundreds, or possibly thousands, of
people in an effort to sell their legal services. This
systematic abuse has continued even after the United
States Supreme Court held, in 2013, that attorney
solicitation is an improper use of DMV information.
Plaintiffs in this case are individuals whose
protected personal information was improperly obtained
and used by one or more of the [d]efendants in violation
of the DPPA when [the d]efendants (a) obtained protected
DMV information copied from their license or registration
data onto accident reports and (b) used that information
to send marketing letters. Plaintiffs file this case for
themselves, and for others whose privacy was violated, to
do two things: (1) ask the Court for an injunction to
stop [the d]efendants from further abuse of personal DMV
8
information; and, (2) to ask the Court to award damages
as provided by Congress.
(Id. at 2-3 (emphasis added) (citation and footnote omitted).) The
Second Amended Complaint further asserts that specific defendants
used specific Plaintiffs’ protected information for “addressing
marketing materials . . . and mailing said materials.”
¶¶ 66-71.)
(Id.,
It also argues that classwide “final injunctive relief
or corresponding declaratory relief is appropriate” because “each
[d]efendant has obtained and used the names and addresses of the
members of their respective Subclasses, from motor vehicle records
for marketing purposes” and “[e]ach [d]efendant either continues to
so obtain and use names and addresses of persons involved in
accidents or could resume obtaining and using such information at
any time.”
(Id., ¶ 145.)
More specifically, according to the Second Amended Complaint:
120. Upon information and belief, at all relevant times
[the d]efendants have knowingly obtained and reviewed
information from DMV-349 reports that are obtained in
bulk with the intent to determine the names and addresses
of those who are not at fault for each accident; then,
using those names and addresses, [the d]efendants only
send marketing materials to those persons who do not
appear to be at fault.
121. The mailings described above sent by [the
d]efendants are form mailings. The mailing sent by each
[d]efendant to a Plaintiff is identical in all material
respects to the mailings that each [d]efendant regularly
sends to persons whose personal information, including
name and address, has been knowingly obtained from
DMV-349 reports.
122. Upon information and belief, [the d]efendants sent,
and in some cases continue to send, materials marked
9
“This is an advertisement for legal services” only to
persons whose names and addresses [the d]efendants
knowingly obtained and gleaned from DMV-349 reports.
123. Plaintiffs did not consent to allow any [d]efendant
to obtain their personal information from a motor vehicle
record.
124. [The d]efendants regularly and knowingly have
obtained, disclosed, and used (and some of them continue
to knowingly obtain, disclose, and use) protected
personal information, from motor vehicle records, to
market their legal services to accident victims in the
same manner that [the d]efendants knowingly obtained,
disclosed, and used the protected personal information of
Plaintiffs.
125. In sending the above-described mailings, [the
d]efendants disclosed [Plaintiffs’] names and addresses
in connection with the fact that [Plaintiffs] might need
legal services.
Said disclosures were made, at a
minimum, to employees of the postal or delivery service
that delivered each mailing, as well as to [the
d]efendants’ office staff or contractors who participate
in addressing and sending the mailings.
126. As a proximate result of [the d]efendants’ unlawful
conduct as described above, each [Plaintiff] sustained
actual damages in having their personal information from
a motor vehicle record obtained by [the d]efendants for
use for marketing purposes, in having to retrieve the
mailings addressed to them from a delivery person, from
his or her entryway or mail receptacle or by having his
or her privacy invaded by disclosure of his or her name
or address in connection with a potential need for legal
services.
******
148. As specifically alleged above, [the d]efendants
knowingly
obtained
the
DPPA-protected
personal
information, including the name and address, of one or
more Plaintiffs, from a motor vehicle record, and then
used that personal information as described above.
149. Each [d]efendant knowingly obtained, disclosed, and
used one or more Plaintiff’s protected personal
10
information, from a motor vehicle record, for the purpose
of marketing that [d]efendant’s legal services.
150. When each [d]efendant knowingly obtained, disclosed,
and used one or more Plaintiff’s protected personal
information, said [d]efendant lacked Plaintiffs’ express
consent as required by the DPPA.
151. When each [d]efendant identified a Plaintiff as an
accident victim, used a Plaintiff’s name and address to
create a mailing envelope and letter, and then sent his,
her, or its above-described mailing containing the words
“This is an advertisement for legal services” to one or
more Plaintiffs, [the d]efendants knowingly used and
disclosed said Plaintiff’s personal information from a
motor vehicle record.
152. [The d]efendants knowingly obtained, disclosed, and
used Plaintiffs’ personal information from a motor
vehicle record for the purpose of marketing legal
services.
153. Advertising for legal services for the solicitation
of new potential clients is not a permissible purpose for
obtaining motor vehicle records under the DPPA. Maracich
v. Spears, [570 U.S. 48] (2013).
154. [The d]efendants knowingly obtained, disclosed, and
used Plaintiffs’ personal information, from a motor
vehicle record, for a purpose not permitted under the
DPPA, in violation of the DPPA.
155. Because some [d]efendants continue to regularly and
knowingly obtain, disclose, and use personal information,
from motor vehicle records, for purposes of marketing
their services, violations of the DPPA are likely to
continue.
156. Under 18 U.S.C. § 2724(b)(4), the Court should enter
a permanent injunction prohibiting [the d]efendants from
obtaining personal information from motor vehicle records
for marketing purposes. Specifically, the Court should
enjoin [the d]efendants from obtaining names and
addresses sourced from DMV-349s for purposes of marketing
legal services; [sic]
11
157. Plaintiffs sustained actual damages as described
above as a proximate result of [the d]efendants’ unlawful
conduct.
158. Because [the d]efendants knowingly obtained
Plaintiffs’ personal information, from a motor vehicle
record, for a purpose not permitted under the DPPA, each
Plaintiff is entitled to liquidated damages of $2,500.00
in lieu of actual damages for each instance in which a
[d]efendant knowingly obtained, or caused to be obtained,
that Plaintiff’s personal information, from a motor
vehicle for a purpose not permitted by the DPPA.
(Docket Entry 180, ¶¶ 120-26, 148-58.)3
Rather
than
answering
Defendants moved to dismiss.
the
Second
Amended
Complaint,
(See Docket Entries 188, 189.)
Fox
As
relevant here, Fox Defendants base their dismissal request on the
notion that Plaintiffs lack standing and “failed to plead actual
damages in conformity with Rule 9” of the Federal Rules of Civil
Procedure (the “Rules”).
Motion”) at 1-2.)
(Docket Entry 188 (the “Second Dismissal
More specifically, Fox Defendants’ Second
Dismissal Motion rests on the theory that “Plaintiffs’ sole legal
claim
is
that
[the
d]efendants
violated
the
DPPA
merely
by
obtaining public accident reports that identify them — from police
department
websites.”
counters
and
law-enforcement-maintained
public
(Docket Entry 189 at 1; see also id. (asserting that
“[t]he Second Amended Complaint abandons . . . [Plaintiffs’] legal
3
Plaintiffs subsequently filed a motion for class
certification that similarly emphasizes the allegedly improper
obtainment of information (see generally Docket Entries 184, 185),
but also references the defendants’ alleged improper use of
protected information (see, e.g., Docket Entry 185 at 2, 10).
12
claims
that
the
[d]efendants
violated
the
disclosing their identifying information”).)
DPPA
by
using
or
According to Fox
Defendants, “th[is] change in theory is fatal to Plaintiffs’
tenuous
grasp
on
Article
III
standing”
because
“Plaintiffs’
reconfigured claim now hinges upon whether they suffered an injury
traceable to the moment Defendants got their names and addresses at
the
front
counter
of
the
police
station
enforcement-maintained public website.”
or
from
(Id. at 2.)
a
law-
The Second
Dismissal Motion focuses solely on Fox Defendants’ standing and
damages arguments, without raising any first-amendment issues.
(See id. at 11 n.3 (“Fox Defendants do not believe that Plaintiffs’
change to an ‘obtainment’ theory . . . ‘sidesteps’ relevant First
Amendment defenses, or impacts the rights of members of the public
. . . to receive, review and speak about information the government
releases. [This] issue is not reached by [Fox] Defendants’ current
motion . . . .”).)
However, the Second Dismissal Motion expresses
Fox Defendants’ “inten[t] to fully brief and argue their First
Amendment defenses if Plaintiffs’ claim survives th[e] motion to
dismiss.”
(Id.)
DISCUSSION
I. Relevant Standards
A. Discovery Standards
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
13
Fed. R. Civ. P.
26 advisory committee’s notes, 1983 Amendment.
Thus, parties
generally “may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional
to the needs of the case . . . .”
Fed. R. Civ. P. 26(b)(1).
“The
parties and the court have a collective responsibility to consider
the proportionality of all discovery and consider it in resolving
discovery disputes.”
Fed. R. Civ. P. 26 advisory committee’s
notes, 2015 Amendment; see also id. (explaining that Rule 26
imposes
an
“obligation
o[n]
the
parties
to
consider
the[
proportionality] factors in making discovery requests, responses,
or objections”).
In turn, relevancy “essentially involves a
determination of how substantively the information requested bears
on the issues to be tried.”
Mills v. East Gulf Coal Preparation
Co., LLC, 259 F.R.D. 118, 131 (S.D.W. Va. 2009) (internal quotation
marks omitted); see also Cook v. Howard, 484 F. App’x 805, 812 (4th
Cir. 2012) (“Relevance is thus the foundation for any request for
production, regardless of the individual to whom a request is
made.”).
“On
discretion.”
relevancy
matters,
the
trial
court
has
broad
Watson v. Lowcountry Red Cross, 974 F.2d 482, 489
(4th Cir. 1992).
Importantly,“[t]he civil discovery process is to be engaged in
cooperatively.”
Mills, 259 F.R.D. at 130; see also Wagner v. St.
Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 422 (N.D.W. Va. 2006)
(observing that “[g]amesmanship” in discovery “is not allowed”);
14
M.D.N.C. LR 26.1(b)(1) (“The Court expects counsel to conduct
discovery in good faith and to cooperate and be courteous with each
other in all phases of the discovery process.”).
parties
must
respond
with
specificity
to
discovery
including by making particularized objections.
231 F.R.D. 468, 474 (D. Md. 2005).
Accordingly,
requests,
Hall v. Sullivan,
Thus, general or “boilerplate”
objections to discovery requests lack validity.
See Kinetic
Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 241 (M.D.N.C.
2010) (collecting cases).
Moreover, the party opposing discovery
generally bears the burden on a motion to compel.
Id. at 243-44
(collecting cases).
Nevertheless, “the simple fact that requested information is
discoverable . . . does not mean that discovery must be had.
On
its own initiative or in response to a motion for protective order
under Rule 26(c), a district court may limit [discovery] . . . .”
Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).
Indeed, “[d]istrict courts enjoy nearly unfettered discretion to
control the timing and scope of discovery.”
Hinkle v. City of
Clarksburg, 81 F.3d 416, 426 (4th Cir. 1996); accord Cook, 484 F.
App’x at 812 (observing that “[d]istrict courts are afforded broad
discretion with respect to discovery”).
B. DPPA Standards
The DPPA arose from Congress’s “[c]oncern[] that personal
information collected by States in the licensing of motor vehicle
15
drivers was being released — even sold — with resulting loss of
privacy
for
Accordingly,
information
many
the
persons.”
DPPA
contained
Maracich,
prohibits
in
the
“the
records
570
U.S.
disclosure
of
state
at
of
motor
51–52.
personal
vehicle
departments (DMVs) . . . . unless for a purpose permitted by an
exception listed in 1 of 14 statutory subsections.”
Id. at 52.
As
relevant to the Motion, these exemptions include:
(6) For use by any insurer or insurance support
organization, or by a self-insured entity, or its agents,
employees, or contractors, in connection with claims
investigation activities, antifraud activities, rating or
underwriting.
(7) For use in providing notice to the owners of towed or
impounded vehicles.
******
(12) For bulk distribution for surveys, marketing or
solicitations if the State has obtained the express
consent of the person to whom such personal information
pertains.
18 U.S.C. § 2721(b).4
“A person is liable under the DPPA if he ‘knowingly obtains,
discloses or uses personal information, from a motor vehicle
record, for a purpose not permitted’ by one of the statutory
4
The DPPA contains additional consent-based exemptions,
including “[f]or any other use in response to requests for
individual motor vehicle records if the State has obtained the
express consent of the person to whom such personal information
pertains,” 18 U.S.C. § 2721(b)(11), and “[f]or use by any
requester, if the requester demonstrates it has obtained the
written consent of the individual to whom the information
pertains,” 18 U.S.C. § 2721(b)(13).
16
exceptions.”
§ 2724(a)).
Maracich,
570
U.S.
at
71
(quoting
18
U.S.C.
Moreover, “[e]ach distinct disclosure or use of
personal information acquired from a state DMV must be permitted by
the DPPA.”
operate
Id. at 74; see also id. (“If the statute were to
otherwise,
permissible
use
obtaining
would
personal
entitle
information
attorneys
to
use
for
that
information at a later date for any other purpose.”).
one
same
Further,
under the DPPA, “[d]irect marketing and solicitation present a
particular concern not only because these activities are of the
ordinary commercial sort but also because contacting an individual
is an affront to privacy even beyond the fact that a large number
of persons have access to the personal information.”
Id. at 67.
After all, as the United States Supreme Court has explained, “state
residents have no real choice but to disclose their personal
information to the state DMV . . . .
The use of that information
by private actors to send direct commercial solicitations without
the license holder’s consent is a substantial intrusion on the
individual privacy the [DPPA] protects.”
Id. at 71.
II. Analysis
A. Initial Matters
The Motion seeks to compel responses to multiple Admission
Requests, Interrogatories, and Document Requests.
Docket Entry 171 at 9 n.3.)
(See, e.g.,
After Fox Defendants filed the Motion,
Plaintiffs served additional discovery responses (see, e.g., Docket
17
Entry 173-2) and Fox Defendants and Plaintiffs resolved certain
outstanding discovery issues (see Docket Entry 173-1 at 19).
Accordingly, “the matters which remain for resolution by the Court
are[ I]nterrogatories 7-20 and 30[] and [Document Requests 45]-8”
(Docket Entry 173 at 2 (emphasis omitted); see also Docket Entry
175 at 2 (detailing evolution of discovery disputes)).6
(See
generally Docket Entries 173, 175 (discussing relevant outstanding
requests).)
For many of the disputed Interrogatories, Plaintiffs raised
similar relevance and/or burden objections:
Objection. Irrelevant to any party’s claim or defense.
For the same reasons stated in the relevance objection to
No. 5 above, whether Plaintiff claims that the [LEA]
acted contrary to law is irrelevant and outside the scope
of discovery.
The legal basis and argument for the
relevance objection to No. 5 is hereby incorporated by
reference as if fully stated in response to this
discovery request.
5 Plaintiffs’ memorandum initially identifies the outstanding
Document Requests as “3-8” (Docket Entry 173 at 2 (emphasis
omitted)), but makes no further reference to Document Request 3
(see id. at 2-23).
Fox Defendants’ reply memorandum likewise
contains no mention of Document Request 3. (See generally Docket
Entry 175.) Moreover, the record before the Court reflects that
Plaintiffs provided supplemental responses to Document Request 3
after Fox Defendants filed the Motion. (See Docket Entry 173-2 at
17-31.)
As such, it appears that the parties resolved their
dispute regarding Document Request 3 and that Plaintiffs’ reference
to this request constitutes a typographical error.
6 As “some minor variations in the numbering among the sets
of discovery served on the named Plaintiffs” exists, Fox Defendants
and Plaintiffs identify particular discovery requests according to
“the numbering in the set of requests served on Plaintiff W[.]
Garey.” (Docket Entry 171 at 3 n.2; see also Docket Entry 173 at
6.) This Opinion does the same.
18
Furthermore, the requirement to “describe in detail”
whether Plaintiff claims that the [LEA] acted contrary to
law is facially burdensome in connection with this
request. “A discovery request can be overly broad or
unduly burdensome on its face, in which case the
proponent of discovery bears the burden of establishing
its relevance.” Harford Mut. Ins. Companies v. Agean,
Inc., No. l:09CV461, 2011 WL 2295036, at *7 (M.D.N.C.
June 8, 2011) (citing Hilt v. SFC Inc., 170 F.R.D. 182,
186 (D.Kan.1997 [sic])).
(Docket Entry 171-1 at 11 (emphasis omitted); see also id. at 1217.)
Among other challenges, Plaintiffs raised similar relevance
objections to the disputed Document Requests:
Objection. Irrelevant. For the same reasons stated in
the relevance objection to No. 2 above, political mail
received by Plaintiff is irrelevant and outside the scope
of discovery.
The legal basis and argument for the
relevance objection to No. 2 is hereby incorporated by
reference as if fully stated in response to this
discovery request.
(Id. at 35 (emphasis omitted); see id. at 34-36.)
Fox Defendants do not address Plaintiffs’ burden objection to
their request to “describe in detail” various matters. (See Docket
Entries 171, 175.)
relevance
However, Fox Defendants argue that Plaintiffs’
objections
constitute
improper
general,
boilerplate
objections that “do not explain why the discovery requests fail to
seek relevant information” (Docket Entry 171 at 5).
6.)
(See id. at 5-
As such, Fox Defendants maintain, Plaintiffs’ relevance
“objections should be stricken” (id. at 5) and Plaintiffs should be
deemed to
have
“waived
objections” (id. at 6).
their
opportunity
to
make
any
proper
Fox Defendants’ contentions lack merit.
19
In their answer to Interrogatory 5 and Document Request 2,
Plaintiffs
detail
their
perspective
regarding
the
discovery
requests’ failure to meet the “[m]inimal relevance threshold of
Rule 26(b)(1),” as well as their lack of “bearing on liability” or
“liquidated
damages”
or
“any
legitimate
affirmative
defense.”
(Docket Entry 171-1 at 8-10, 31-33 (emphasis omitted).)
These
responses explain the “three distinct elements giving rise to
liability” under the DPPA,7 as well as the “statutory liquidated
damages” that Plaintiffs seek, and assert that the discovery
requests “ha[ve] no bearing” on those items. (Id. at 9-10, 32-33.)
Thus, although not explicitly updated for each discovery request,
Plaintiffs’ responses provide sufficient information to understand
the grounds for their relevance objection as to each disputed
request.
Under the circumstances, the Court declines to strike
Plaintiffs’ relevance objections.
Finally, in their memorandum in support of the Motion and in
their earlier communications with Plaintiffs regarding discovery,
Fox
Defendants
maintained
that
the
disputed
requests
information “likely to lead to relevant information.”
sought
(Docket
Entry 171 at 16 (discussing Interrogatories 7-11); see also Docket
Entry 173-1 at 6 (“[W]e believe the discovery could lead to
7 Namely, “[t]hat a defendant (1) knowingly obtained,
disclosed or used personal information, (2) from a motor vehicle
record, (3) for a purpose not permitted.”
(Id. at 9 (internal
quotation marks omitted).)
20
admissible evidence . . . .”) (discussing Document Request 4).)
These statements echo Rule 26(b)’s former provision regarding
“information that appears ‘reasonably calculated to lead to the
discovery of admissible evidence,’” which “has been used by some,
incorrectly, to define the scope of discovery.”
Fed. R. Civ. P.
26, advisory committee’s notes, 2015 Amendment.
Because “use of
the ‘reasonably calculated’ phrase to define the scope of discovery
‘might swallow any other limitation on the scope of discovery,’”
and prior attempts to “prevent such misuse” proved ineffective, the
Rules Committee deleted “[t]he ‘reasonably calculated’ phrase” from
Rule 26(b) four years ago.
See id. (explaining that, despite
amendments in 2000, “[t]he ‘reasonably calculated’ phrase has
continued to create problems,” necessitating its removal).
Fox
Defendants’ reliance on relevance concepts predicated on this
rejected language cannot support compelled disclosure and instead
indicates that their discovery requests overreach.
B. Interrogatories 7-11
Turning to the specific discovery requests, Interrogatories 7
through 11 comprise the first set of disputed discovery.
These
Interrogatories state:
7. Describe in detail whether you claim that the [LEA]
acted contrary to law in making public the accident
report of your [specific] traffic accident, and the basis
for any such claim.
8. Describe in detail whether you claim that the [LEA]
should have further redacted the accident report of your
[traffic] accident, what items you believe [the LEA]
21
should have further redacted, and the basis for any such
claim.
9. Describe in detail whether it is your position that
members of the general public are not legally permitted
to view, speak about, or write about the accident report
of your [traffic] accident.
10. Describe in detail whether it is your position that
some, but not all, members of the general public are
permitted to view, speak about, or write about the
accident report of your [traffic] accident, and if so
please identify those members of the general public you
believe have such rights and why.
11. Describe in detail whether it is your position that
representatives of news media outlets, including but not
limited to newspapers, television stations, and radio
stations, are permitted to view, speak about, or write
about the accident report of your [traffic] accident.
(Docket Entry 171-1 at 11-13.)
Plaintiffs’ discovery responses
raise the aforementioned burden and relevance objections to these
Interrogatories.
(See, e.g., id.)
In the memorandum supporting their Motion, Fox Defendants
maintain that these Interrogatories seek to elicit information
regarding
“Plaintiffs’
theory
of
liability
(Docket Entry 171 at 14 (emphasis omitted).)
under
the
DPPA.”
According to Fox
Defendants, “Plaintiffs’ responses are relevant to numerous aspects
of this case.”
(Id. at 15.)
In Fox Defendants’ view, “if the
[LEA] violated the DPPA by publishing the Plaintiffs’ personal
information on the internet, that could preclude a finding of
liability for any entity that later uses that information:
Any
injuries to the Plaintiffs’ privacy interests would have been
caused by someone other than the [d]efendants.”
22
(Id.)
Fox
Defendants further assert that, “if the DPPA actually does punish
any user of information for accessing documents published on the
internet by the government, then the DPPA may violate the First
Amendment.”
(Id.)
“Finally,”
they
assert,
“any
potential
violation of the DPPA by [LEAs] is relevant to the scienter
requirement of the DPPA claim against the Fox Defendants.”
(Id.)
Plaintiffs respond that Interrogatories 7-11 “focus[] squarely
on Plaintiffs’ states of mind and not on the legality of the police
departments’ actions
173 at 9.)
or the other subject facts.”
(Docket Entry
This focus on “Plaintiffs’ beliefs or opinions”
likewise appears in Fox Defendants’ letter to Plaintiffs regarding
their discovery objections.
(Docket Entry 173-1 at 8.)
However,
Plaintiffs emphasize, the arguments that Fox Defendants proffer in
support of the Motion focus on “the relevance of the police
department actions, and police department redactions” rather than
on the “relevance of Plaintiffs’ states of mind.”
(Docket Entry
173 at 9 (emphasis in original).) “The distinction is significant”
(id.), Plaintiffs explain, for, although their “beliefs about the
actions of non-parties” have no “bear[ing] on any issue in this
case” (id. at 11), “Plaintiffs are willing to serve Rule 36
admissions admitting many of the underlying facts that are the
subjects of interrogatories 7-11” (id. at 9). These facts include:
• The local [LEAs] acted contrary to law in making the
subject accident reports available to the public;
23
• The local [LEAs] should have further redacted the
subject accident reports to remove all personal
information from a motor vehicle record, including names
and addresses, and where applicable, the driver’s license
number;
• Members of the general public are legally permitted to
view, speak about, or write about the subject accident
reports so long as they do not obtain, disclose, or use
personal information from a motor vehicle record for a
use not permitted under the DPPA;
• Representatives of news media outlets, including but
not limited to newspapers, television stations, and radio
stations are permitted to view, speak about, or write
about the subject accident reports so long as they do not
obtain, disclose, or use personal information from a
motor vehicle record for a use not permitted under the
DPPA.
(Id. at 10 (formatting in original).)
In their reply, Fox Defendants address neither Plaintiffs’
arguments regarding the asserted distinction nor Plaintiffs’ offer
to admit the foregoing facts.
(See Docket Entry 175 at 3-7.)
Instead, Fox Defendants maintain that the disputed Interrogatories
“ask[] Plaintiffs whether they claim that upstream and downstream
users of Plaintiffs’ information are also violating the DPPA” and
state that, through these Interrogatories, they “seek to learn who
Plaintiffs believe could view those records, and whether Plaintiffs
believe those reports were lawfully released, should have been
redacted before release, or should have been withheld altogether.”
(Id. at 3.)
As an initial matter, the Interrogatories do not ask
whether “downstream users of Plaintiffs’ information are also
violating the DPPA” or whether the accident reports “should have
24
been withheld altogether” (id.).
13.)
(See Docket Entry 171-1 at 11-
Moreover, Plaintiffs appear correct that the Interrogatories
and meet-and-confer letter reflect a focus on “Plaintiffs’ beliefs
or opinions” regarding the actions of LEAs, “the general public[,
and the] media” (Docket Entry 173-1 at 8), while the memoranda in
support of the Motion focus on the underlying facts themselves.
Finally, many of Fox Defendants’ relevance arguments lack
merit, particularly given that “[e]ach distinct . . . use of
personal information acquired from a state DMV must be permitted by
the DPPA,” Maracich, 570 U.S. at 74, and “[t]he use of that
information
by
private
actors
to
send
direct
commercial
solicitations without the license holder’s consent is a substantial
intrusion on the individual privacy,” id. at 71.
Nevertheless,
Plaintiffs have offered to stipulate to certain facts, which
illuminate “Plaintiffs’ theory of liability under the DPPA” (Docket
Entry
171
at
Interrogatory.
14
(emphasis
omitted))
as
it
relates
to
each
Under the circumstances, including Fox Defendants’
failure to object to this approach, the Court will order Plaintiffs
to provide the proffered admissions to Fox Defendants.
C. Interrogatories 12-13, 15-17
Next,
Fox
Defendant
seek
to
Interrogatories 12, 13, 15, 16, and 17.
compel
responses
(See id. at 9 nn.3-4;
Docket Entry 173 at 14-17; Docket Entry 175 at 7 n.1.)
requests state:
25
to
These
12. Identify the date and the circumstances under which
you first became aware that the [LEA] had made available
to the public the accident report of your [specific]
traffic accident.
13. Describe in detail all injuries you suffered as a
result of the [LEA’s] making available to the public the
accident report of your [traffic] accident, and any basis
for such claim.
******
15. Describe in detail whether you have ever produced
your driver’s license as a means of identification in
connection with buying a home or other piece of real
estate, and explain each circumstance.
16. Describe in detail whether you have ever produced
your driver’s license as a means of identification to
vote in any local, state, or national election.
17. Describe in detail whether you have ever produced
your driver’s license as a means of identification in
connection with making a consumer purchase of any kind.
(Docket Entry 171-1 at 14-16.)
requests on relevance grounds.
Plaintiffs objected to these
(See id. at 14-16.)8
8 Plaintiffs also raised a burden objection to Interrogatory
13’s “requirement to ‘describe in detail’” (id. at 15) the
requested information. However, Plaintiffs do not explain how the
“describe in detail” component of this particular Interrogatory “is
facially burdensome” (id.) and the Interrogatory itself does not
compel such a conclusion (see id. at 14). Plaintiffs’ opposition
to the Motion also fails to elaborate upon this objection, aside
from stating — without further detail or any citation to supporting
authority — that such “command is overly broad” (Docket Entry 173
at 8).
(See id. at 1-23.)
Accordingly, in the absence of a
developed argument regarding the burdensomeness of the requested
information, the Court declines to sustain this objection to
Interrogatory 13. See Harford Mut., 2011 WL 2295036, at *7 (“[A]
party resisting discovery must state its objection and set forth
the reasons therefor with specificity.
The use of objections
without explanation is not tolerated . . . .” (citations omitted)).
26
Fox Defendants argue that “this information is highly relevant
to multiple issues in this case” (Docket Entry 171 at 9), including
their first-amendment defense and Plaintiffs’ standing and remedy
(see id. at 9-12). More specifically, Fox Defendants maintain that
the LEAs’ prior disclosure of Plaintiffs’ information precludes any
liability
for
their
subsequent
disclosure
of
Plaintiffs’
information and, under the First Amendment, also “bars or limits
efforts to tag the Fox Defendants with liability for obtaining,
using,
or
disclosing
(See id. at 9-11.)
such
public
information”
(id.
at
10).
Fox Defendants further assert that Plaintiffs’
prior disclosures of their personal information impacts their
standing and potential damages. (See id. at 11-12 (“Fox Defendants
are
entitled
to
discover
whether
their
informational
mailers
‘intruded into a private place’ or whether Plaintiffs and/or the
[LEAs] have torn down whatever veil of ‘private seclusion’ exists
regarding their car accidents on public roadways.”).)
The Second Amended Complaint initially limits its claim to Fox
Defendants’ allegedly improper obtaining and using of Plaintiffs’
protected information. (See Docket Entry 180 at 2-3.) However, in
delineating its DPPA claim, the Second Amendment Complaint also
challenges
the
defendants’
alleged
disclosure
information without Plaintiffs’ consent.
151.)
of
Plaintiffs’
(See, e.g., id., ¶¶ 149-
As a defense to Plaintiffs’ disclosure-related contentions,
Fox Defendants’ Answer maintains that, inter alia, “Plaintiffs’
27
alleged injuries are not fairly traceable to the conduct of [Fox]
Defendants because any alleged personal information had already
been made public by the LEAs.”
(Docket Entry 97 at 27-28.)
Because Plaintiffs’ claim appears to encompass disclosure-related
allegations, this defense renders relevant Interrogatories 12 and
13.
Accordingly, the Court will grant Fox Defendants’ request to
compel disclosure of responses to these Interrogatories.
However,
Plaintiffs’
Interrogatories
claims
and
15
Fox
to
17
Defendants’
lack
relevance
defenses.
to
Because
“contacting an individual is an affront to privacy even beyond the
fact that a large number of persons have access to the personal
information,” Maracich, 570 U.S. at 67, and Plaintiffs challenge
Fox
Defendants’
use
of
their
protected
information
to
send
marketing mailers, Plaintiffs’ use of their drivers’ license for
identification in voting, consumer purchases, and real estate
transactions has no impact on their standing.
Given that their
suit seeks only injunctive relief and liquidated damages, this
information
likewise
has
damages.
Nevertheless,
little
Fox
apparent
Defendants
relevance
for
their
maintain
that
this
information remains relevant to any award of liquidated damages
because such damages “are discretionary, like each of the DPPA’s
remedies” (Docket Entry 175 at 9).
171 at 12.)
28
(See id. at 9-10; Docket Entry
To remedy a violation of the DPPA, a “court may award,” inter
alia, “actual damages, but not less than liquidated damages in the
amount of $2,500.”
18 U.S.C. § 2724(b)(1).
“A plaintiff need not
prove a measure of actual damages to recover liquidated damages
under the DPPA, and certainly need not prove actual damages to
recover the other types of remedies listed in [Section] 2724(b).”
Kehoe v. Fidelity Fed. Bank & Tr., 421 F.3d 1209, 1212 (11th Cir.
2005).
Typically a contractual damages substitute “paid even in
the absence of proof of actual damages,” id. at 1213 (internal
quotation
marks
omitted),
“[l]iquidated
damages
serve
a
particularly useful function when damages are uncertain in nature
or amount or are unmeasurable,” id. (internal quotation marks
omitted). Thus, the availability of “liquidated damages” under the
DPPA likely connotes a congressional recognition of the uncertain
and unmeasurable nature of privacy-related damages under the DPPA,
as well as a deliberate effort to forestall the necessity of a
costly, limitless foray into attempted valuation of amorphous
injuries.
See,
e.g.,
id.
(“Damages
for
a
violation
of
an
individual’s privacy are a quintessential example of damages that
are uncertain and possibly unmeasurable.
Since liquidated damages
are an appropriate substitute for the potentially uncertain and
unmeasurable actual damages of a privacy violation, it follows that
proof of actual damages is not necessary for an award of liquidated
damages.”).
29
Moreover, the DPPA commits the awarding of liquidated damages
(and the other enumerated remedies) to the Court’s discretion.
See 18 U.S.C. § 2724(b); accord Kehoe, 421 F.3d at 1217.
Because
damages remain a question for the Court rather than for a lay jury,
it appears that Fox Defendants already possess the necessary
information for their mitigation arguments.
(See, e.g., Docket
Entry 173-2 at 8 (admitting that, “in addition to producing [his]
driver’s license to law enforcement personnel in connection with”
his accident, W. Garey “also produced [his] driver’s license to
other persons, entities or businesses as a means of identifying
[him]self”);9 see also Docket Entry 173 at 15 (asserting that
Plaintiffs have admitted that “each Plaintiff has also produced
their driver’s license to other persons, entities, or businesses as
a means of identification”).)10
Accordingly, the Court will deny
9 He further admitted receiving both (1) additional “mail on
the same day that [he] received a law firm mailing” from the
relevant defendants (id.) and (2) items of unsolicited commercial
mail since May 27, 2012 (id. at 12).
10 It bears noting that Plaintiffs also offered to stipulate
that (1) “[e]ach Plaintiff except W[.] Garey has produced a
driver’s license as a means of identification in connection with
buying a home or other piece of real estate,” (2) “[e]ach Plaintiff
has produced a driver’s license as a means of identification to
vote in a local, state, or national election,” and (3) “each
Plaintiff has also produced his or her driver’s license to other
persons,
entities,
or
businesses
as
a
means
of
selfidentification.”
(Docket Entry 173-1 at 18.)
Fox Defendants
rejected that offer, stating that “[they] would prefer that
[Interrogatories] 15-17 be answered as posed, instead of converted
to admissions responses.” (Id. at 19.) The only explanation Fox
Defendants gave for rejecting this proposal remains that they “are
(continued...)
30
Fox Defendants’ request to compel answers to Interrogatories 15-17.
See Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).
D. Interrogatories 14, 18-20 and Document Requests 4-8
Fox
Defendant
further
seek
to
compel
responses
to
Interrogatories 14, 18, 19, and 20, as well as to Document Requests
4 through 8.
at 17-22.)
(See Docket Entry 171 at 12 n.5, 20; Docket Entry 173
These requests state:
14. Identify all entities or individuals that contacted
you in writing, or orally, related in any way to your
[specific] traffic accident.
******
18. Identify any insurance companies that contacted you,
or the vehicle owner or person in whose name insurance
was carried, by phone or in writing in connection with
your [specific] traffic accident, and explain the nature
of the oral or written contact.
19. Identify the full name and address of the insurance
company that is reflected on the insurance policy under
which you, or the vehicle owner, carried automobile
liability insurance as of the date of your [specific]
traffic accident.
20. Identify any tow truck or impoundment company entity
or person that contacted you, or the vehicle owner or
person in whose name insurance was carried, by phone or
in writing in connection with your [specific] traffic
accident, and explain the nature of the oral or written
contact.
10(...continued)
entitled
to
answers
under
oath,
as
provided
only
by
interrogatories.” (Docket Entry 175 at 8 (emphasis in original).)
Because
the
proposed
stipulations
would
(1)
answer
the
Interrogatories as stated and (2) “conclusively establish[]” those
matters, Fed. R. Civ. P. 36(b), Fox Defendants’ position appears to
serve little purpose.
31
******
4. Produce all unsolicited pieces or items of mail that
you have received since May 27, 2012 from an entity or
person offering or providing information regarding
commercial services. Plaintiff is requested to retain
all such pieces or items of mail from the date of this
request forward, and to maintain them such that the day
each piece or item of mail was received can later be
determined and the response to this request can be
supplemented.
5. Produce all pieces or items of mail that you have
received since May 27, 2012 from any political candidate
or political party that advocated on behalf of a
political candidate or policy issue.
6. Produce all written documents sent or provided to you
or a family member from any insurance company related to
your [specific] traffic accident.
7. Produce all written documents sent or provided to you
or a family member from any chiropractor or medical
provider related to your [specific]·traffic accident.
8. Produce all written documents sent or provided to you
or a family member from any tow truck or impoundment
company entity or person related to your [specific]
traffic accident.
(Docket Entry 171-1 at 15-17, 34-36.) Plaintiffs objected to these
requests on relevance grounds, as well as, for Interrogatories 18
and 20 and Document Requests 6 and 8, on the grounds that the DPPA
permits the referenced contact, rendering it lawful.
(See id.)
Plaintiffs further objected to Document Request 7 on the grounds
that it sought privileged patient-physician communications (id. at
36) and to Document Request 4 on overbreadth grounds (id. at 34).11
11
More specifically, Plaintiffs stated:
(continued...)
32
In the memorandum supporting the Motion, Fox Defendants argue
that these Interrogatories and Document Requests 5 through 8 “are
highly relevant — indeed fundamental” — because “[t]hey sought
information
about
organizations,
personal
insurance
tow-truck businesses.
information
companies,
used
medical
by
political
providers,
and
The DPPA purports to immunize some of these
industries from its reach.
See 18 U.S.C. § 2721(a)[sic](6), (7).
The First Amendment limits the government’s ability to abridge
speech
using
regulations
that
(Docket Entry 171 at 13.)12
are
riddled
with
exceptions.”
Thus, they maintain, the requested
information “is relevant to the Fox Defendants’ First Amendment
challenge to the DPPA.”
(Id.)
Fox Defendants further assert that
Document Requests 4 and 5, which “ask[] about unsolicited mail
offering commercial services, or unsolicited political mailers, all
received since 2012,” seek information relevant to their firstamendment defense.
(Id. at 20.)
According to Fox Defendants, if
11(...continued)
Objection. Facially over broad. A large volume of such
junk mail is simply addressed to “resident” or to a
street address, shows no connection to any particular
individual, and has nothing to do with any motor vehicle
or a motor vehicle accident, much less any relevant
vehicle or accident. Such mail is not relevant to any
claim or defense in this action and does not implicate
any privacy issues and the request to save such
yet-to-be-received junk mail is overly broad.
(Id. (emphasis in original).)
12 Fox Defendants likely meant 18 U.S.C. § 2721(b)(6), (7),
as 18 U.S.C. § 2721(a) contains only subsections (1) and (2).
33
“Plaintiffs prevail in their novel theory that the DPPA is about
banning
unsolicited
underinclusive
by
mail,
then
the
allowing
some
other
DPPA
may
mailers
be
but
fatally
not
the
Defendants’ mailers. The Fox Defendants are entitled to know about
other commercial mailings to try to trace them back to their
ultimate source, which may in many instances be the DMV.”
(Id.
(citation omitted).)
As to the Interrogatories and Document Requests 5-8, Fox
Defendants also argue that
the requested information is relevant to the Plaintiffs’
standing and damages calculation.
It is necessary to
understand the harm, if any, that Plaintiffs have
suffered at the hands of other entities as compared to
the harm allegedly was [sic] caused by the Fox
Defendants. It is possible that the injuries ascribed to
the [d]efendants may have been caused or exacerbated by
another entity, such as one exempted from the DPPA. The
requested information will assist the Fox Defendants in
making these determinations.
(Id. at 14.)
Finally, in their reply memorandum, Fox Defendants
maintain that “other unsolicited mail . . . matters to Plaintiffs’
assertion that they have standing to sue for the various injuries
they allegedly suffered by receiving or retrieving such mail from
[the d]efendants.”
(Docket Entry 175 at 12.)
According to Fox
Defendants, “[b]ecause Plaintiffs have put this injury in issue,
[they] are entitled to discover its nature by comparing it to the
injuries that Plaintiffs may daily suffer from other unsolicited
mail.”
(Id. at 12-13.)
34
As a preliminary matter, Fox Defendants’ arguments misconstrue
the DPPA.
Contrary to Fox Defendants’ contentions, the DPPA does
not immunize “political organizations, insurance companies, medical
providers, and tow-truck businesses” from its reach. See generally
18 U.S.C. § 2721; see also Maracich, 570 U.S. at 68-71.
Indeed,
the DPPA makes no reference to political organizations or medical
providers.
See 18 U.S.C. §§ 2721-2725.
It also does not limit the
exemption for “use in providing notice to the owners of towed or
impounded
vehicles”
§ 2721(b)(7).
to
tow-truck
businesses.
18
U.S.C.
Further, insurance companies remain subject to the
same solicitation strictures under the DPPA as other entities. See
Maracich,
570
U.S.
at
68-69.
In
addition,
for
the
reasons
discussed above, Fox Defendants’ contentions regarding standing and
damages fall short.
Moreover, Document Requests 4 and 5, which
seek more than seven years’ worth of unsolicited commercial and
political mail (see Docket Entry 171-1 at 34-35), remain patently
overbroad and unduly burdensome, particularly given that (1), as to
the named Plaintiffs, the events at issue occurred in a roughly
six-month period in 2016, and (2), in any event, the DPPA prohibits
“bulk
distribution
without
the
[of]
affected
surveys,
person’s
marketing
“express
or
solicitations”
consent,”
18
U.S.C.
§ 2721(b)(12). Accordingly, the Court declines to compel responses
to these requests.
See Fed. R. Civ. P. 26(b)(2)(C)(iii).
35
E. Interrogatory 30
Finally,
Fox
Defendants
seek
to
compel
a
response
to
Interrogatory 30, which states: “Describe in detail your plan for
trying the common and individualized issues of fact in this case,
including the common proof that you will rely upon to try each
common issue of fact.”
objected to
this
(Docket Entry 171-1 at 21.)
Interrogatory
on
the
grounds
that
Plaintiffs
it
seeks
privileged work-product information and remains “overly broad and
unduly burdensome and beyond the scope of reasonable discovery.”
(Id.)13
13
Plaintiffs further noted that, “[t]o
the extent not
More specifically, Plaintiffs stated:
Objection. Any plan for trial and marshalling of facts
for a particular point will constitute the mental
impressions, conclusions, opinions, or legal theories of
Plaintiffs’ attorneys and, under Rule 26(b)(3)(B), are
not subject to discovery[.]
As a further objection, this interrogatory seeking trial
plans and the and [sic] facts which Plaintiff intends to
use at trial, and the manner in which Plaintiff intends
to use those facts is overly broad and unduly burdensome
and beyond the scope of reasonable discovery. See IBP,
Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 322
(D. Kan. 1998) (“The interrogatory would have plaintiff
itemize its evidence and trial strategy.
This goes
beyond the scope of reasonable discovery.”).
As a further objection, the requirement to “describe in
detail” the trial plan and the common proof of each
factual issue is unduly burdensome on its face.
“A
discovery request can be overly broad or unduly
burdensome on its face, in which case the proponent of
discovery
bears
the
burden
of
establishing
its
relevance.” Harford Mut. Ins. Companies v. Agean, Inc.,
No. 1:09CV461, 2011 WL 2295036, at *7 (M.D.N.C. June 8,
(continued...)
36
objected to above, Plaintiff[s are] leaving proof and trial plans
to [their] attorneys.” (Id.; see, e.g., Docket Entry 171-2 at 21.)
In countering Plaintiffs’ objections, Fox Defendants maintain
that, under the Rules, trial plans do not constitute work product
and, alternatively, “Fox Defendants and the Court both have a
‘substantial need for the materials’” because, without the trial
plan, “Fox Defendants cannot determine what discovery is needed to
oppose the class-certification motion”14 and “th[e] Court cannot
certify a class.”
(Docket Entry 171 at 22-23 (quoting Fed. R. Civ.
P. 26(b)(3)(A)(ii)).)15
Indeed, Fox Defendants argue that “[a]
district court’s failure to consider the manageability of a trial
plan at class certification is reversible error.”
175 at 14.)
(Docket Entry
However, the Court bears no obligation to compel
production of, or otherwise consider, a trial plan in analyzing
13(...continued)
2011) (citing Hilt v. SFC Inc., 170 F.R.D. 182, 186
(D.Kan.1997 [sic])).
To the extent not objected to above, Plaintiff is leaving
proof and trial plans to his attorneys.
(Docket Entry 171-1 at 21.)
14 The filing of Plaintiffs’ class certification motion (see
Docket Entry 184) — to which Fox Defendants have already responded
(see Docket Entry 201) — moots this rationale for compelling a
response to Interrogatory 30.
15
Fox Defendants also argue
scope objection “[i]s nothing but a[n
(Id. at 21.)
However, Plaintiffs’
sufficiently explains the grounds for
above a mere boilerplate response.
37
that Plaintiffs’ burden and
improper] general objection.”
case citation parenthetical
their objection, elevating it
class certification.
committee’s
notes,
See, e.g., Fed. R. Civ. P. 23 advisory
2003
Amendment
(explaining
that,
“[a]n
increasing number of courts require a party requesting class
certification to present a ‘trial plan’ that describes the issues
likely
to
be
presented
at
trial
and
tests
whether
they
are
susceptible of class-wide proof,” an observation that concedes the
discretionary nature of such trial plan considerations).
Moreover, the decision upon which Fox Defendants rely for
their assertion that “courts have compelled Plaintiffs to produce
‘information regarding each and every cause and each common issue
that Plaintiffs contend can be resolved on a class wide basis’”
(Docket Entry 171 at 22 (quoting Horizon Sec. & Vault Complex, Inc.
v. BFI Waste Sys. of N. Am., Inc., No. Civ.A. 03-1214, 2003 WL
22326519, at *4 (E.D. La. Oct. 8, 2003))), denied the defendant’s
request to compel “a detailed synopsis of the plaintiff’s ‘trial
plan’ or ‘litigation plan,’” Horizon Sec., 2003 WL 22326519, at *4.
Instead, the Horizon Sec. court ordered the plaintiff to supplement
its identification of class issues and causes, to prevent any
“eleventh hour surprises with respect to the issues that the
plaintiff maintains should be resolved on a class-wide basis,” id.
A similar approach appears appropriate here.
Accordingly, the
Court will deny Fox Defendants’ request insofar as it seeks to
compel a detailed trial plan and information regarding the evidence
upon which Plaintiffs “will rely,” but will grant it insofar as it
38
seeks identification of each common issue of fact that Plaintiffs
contend
can
be
resolved
on
a
classwide
basis
and
each
individualized issue of fact that Plaintiffs contend cannot be
resolved on a classwide basis.
III. Expense-Shifting Request
Finally, Fox Defendants seek to “be awarded their fees and
expenses involved in compelling these responses.”
170 at 2.)
(Docket Entry
Rule 37 makes expense-sifting discretionary when, as
here, a motion to compel is granted in part and denied in part.
See Fed. R. Civ. P. 37(a)(5)(C).
Under the circumstances, the
Court concludes that the parties should bear their own expenses.
Accordingly, the Court will deny Fox Defendants’ expense-shifting
request.
CONCLUSION
The Second Amended Complaint drops J. Garey and A. Clevenger
and
their
unnecessary.
claims,
rendering
further
discovery
as
to
them
In addition, Plaintiffs proposed stipulations, to
which Fox Defendants did not object, that resolve Interrogatories
7-11. Interrogatories 12 and 13 remain relevant to Fox Defendants’
defenses; however, Interrogatories 14-20 and Document Requests 4-8
lack relevance, and Document Requests 4-5 further qualify as unduly
burdensome and overbroad.
Finally, Plaintiffs must identify the
common and individualized issues of fact in this matter.
39
IT IS THEREFORE ORDERED that the Motion (Docket Entry 170) is
GRANTED IN PART and DENIED IN PART as follows:
on or before
January 10, 2020, W. Garey, Aaron Cruthis, Amanda Reilly, Adilah
McNeil, C. Clevenger, and Justin Brent Blakeslee must (1) serve the
specified
stipulations
(see
Docket
Entry
173
at
10)
to
Interrogatories 7-11; (2) serve responses to Interrogatories 12 and
13; and (3) identify each common issue of fact that they contend
can be resolved on a classwide basis and each individualized issue
of fact that they contend cannot be resolved on a classwide basis.
This 20th day of December, 2019.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
40
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