HATCH et al v. DEMAYO et al

Filing 227

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/21/2020. Plaintiffs' Motion (Docket Entry 154 ) is GRANTED IN PART AND DENIED IN PART as set out herein. FURTHER that the Sealing Motion (Docket Entry 157 ) is GRANTED IN PART and DENIED IN PART as set out herein. FURTHER that Defendants' Motion (Docket Entry 158 ) is DENIED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHNATHAN HATCH, et al.,
Plaintiffs,
v.
MICHAEL A. DEMAYO, et al.,
Defendants.

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1:16cv925

MEMORANDUM OPINION AND ORDER
This case comes before the Court on (1) “Plaintiffs’ Motion to
Compel Discovery Responses from the DeMayo, Greve, and Gelshenen
Defendants, and for Sanctions” (Docket Entry 154) (the “Plaintiffs’
Motion”),1 (2) the “Motion to File Material and Related Portions of
Brief Under Seal” (Docket Entry 157) (the “Sealing Motion”) filed
by Johnathan Hatch, Mark Dvorsky, and Kelly Epperson (collectively,
the “Plaintiffs”), and (3) the “Womble Defendants’ Motion to Compel
in Aid of Determining Adequacy of Class Representative and Class
Counsel” (Docket Entry 158) (the “Defendants’ Motion”) filed by
“the Defendants represented by Womble Bond Dickinson”2 (id. at 1).

1 For purposes of the pending motions, (1) “Michael A. DeMayo
and The Law Offices of Michael DeMayo, P.C.” constitute the “DeMayo
Defendants,” (2) “Ted A. Greve and Ted A. Greve & Associates, P.A.”
constitute the “Greve Defendants,” and (3) “John J. Gelshenen and
Davis & Gelshenen, LLP” constitute the “Gelshenen Defendants.”
(Id. at 1 (internal quotation marks omitted).) [Citations herein
to Docket Entry pages utilize the CM/ECF footer’s pagination.
Additionally, for legibility reasons, this Opinion omits all-cap
font in all quotations from the parties’ materials.]
2

Per the signature block on Defendants’ Motion, “Michael A.
(continued...)

For the reasons that follow, the Court will (1) grant in part and
deny in part Plaintiffs’ Motion, (2) grant in part and deny in part
the Sealing Motion, and (3) deny Defendants’ Motion.
BACKGROUND
On July 8, 2016, Johnathan Hatch (at times, “Hatch”) and
Shaterika Nicholson (at times, “Nicholson”) initiated a putative
class action against various lawyers and law firms, including most
Womble Defendants, for allegedly violating the Driver’s Privacy
Protection Act of 1994, 18 U.S.C. § 2721 et seq. (the “DPPA”).
(See Docket Entry 1 (the “Complaint”) at 1-6.)3

The Complaint

noted that “[a] similar action was recently filed in the Middle
District of North Carolina against different law firms for the same
conduct as 1:16-cv-00542[]” (the “Garey Action”).

(Id. at 2.)4

On

2(...continued)
DeMayo, the Law Offices of Michael A. DeMayo, P.C., Law Offices of
Michael A. DeMayo, L.L.P., Jason E. Taylor, Law Offices of Jason E.
Taylor, P.C., Benjamin T. Cochran, Hardison & Cochran, PLLC, Carl
B. Nagle, Nagle & Associates, P.A., John J. Gelshenen, Davis &
Gelshenen LLP, Ted A. Greve, Ted A. Greve & Associates, P.A.,
Christopher T. May, and Estwanik & May, P.L.L.C.” (collectively,
the “Womble Defendants”) comprise this group of defendants. (Id.
at 6 (emphasis omitted).)
3 The Complaint named as defendants all Womble Defendants
save Greve Defendants, Estwanik & May, P.L.L.C., and Christopher T.
May. (Id.)
4 More specifically, on May 27, 2016, individuals initiated
a purported class action lawsuit against a lawyer and various law
firms for alleged violations of the DPPA. See Garey v. James S.
Farrin, P.C., No. 1:16cv542, Docket Entry 1 (M.D.N.C. May 27,
2016). Similar to the instant action, that lawsuit challenged the
obtainment and use of allegedly DPPA-protected information from
(continued...)
2

July 29, 2016, Hatch and Nicholson filed an amended complaint,
which added Mark Dvorsky (“Dvorsky”) as a plaintiff and Greve
Defendants, Christopher T. May, and Estwanik & May, P.L.L.C. as
defendants.
Both

the

(Docket Entry 5 (the “Amended Complaint”) at 1-6.)

Complaint

and

the

Amended

Complaint

challenged

the

defendants’ obtainment and use of allegedly DPPA-protected personal
information from accident reports to send legal advertisements to
individuals involved in vehicular accidents within North Carolina.
(See generally Docket Entries 1, 5.) The Complaint and the Amended
Complaint defined the proposed class as:
All natural persons residing in North Carolina identified
on a DMV-349 as either a driver whose address is
designated on the DMV-349 as matching the address on that
person’s driver’s license or a registered owner of a
vehicle registered with the North Carolina Division of
Motor Vehicles to whom a Defendant named in this action
sent a mailing with the words “This is an advertisement
for legal services” printed on the outside of the
envelope within the 4 years preceding the filing of this
action through conclusion of this action.
(Docket Entry 1, ¶ 56; accord Docket Entry 5, ¶ 71.)
The defendants moved to dismiss the Amended Complaint pursuant
to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure (the “Rules”).

(See Docket Entries 21, 23.)

One week

after the Court (per United States District Judge Loretta C. Biggs)
denied the dismissal motions, the defendants moved to certify an
interlocutory appeal of that denial.

(See Docket Entries 35, 36.)

4(...continued)
accident reports “to send marketing letters.”
3

Id. at 2.

While the appellate certification motion remained pending, certain
defendants also moved for reconsideration of the denial.
Docket Entry 45 (the “Farbman Motion”).)

(See

The Court (per Judge

Biggs) denied the appellate certification motion (see Docket Entry
57), and, less than a month later, Womble Defendants moved for
reconsideration of the denial of their motion to dismiss (see
Docket Entry 59).

Shortly thereafter, on November 15, 2018, the

Court (per Judge Biggs) ruled on the Farbman Motion, declining to
dismiss the Amended Complaint.

(See Docket Entry 63.)

The Court

(per the undersigned) then conducted an initial pretrial conference
(see Docket Entry dated Nov. 26, 2018) and issued a Scheduling
Order, which denied the defendants’ request to delay issuance of
said Scheduling Order pending resolution of Womble Defendants’
reconsideration motion (see Text Order dated Nov. 27, 2018).
Text

Order

also

“decline[d]

to

bifurcate

(or

That

trifurcate,

as

Defendants effectively request) the discovery process,” instead
establishing a deadline of February 28, 2020, to “complete all
discovery.”

(Id.)

The Court (per the undersigned) subsequently

granted the request to extend deadlines filed by Hatch, Dvorsky,
and Nicholson (collectively, the “Original Plaintiffs”), setting
April 30, 2020, as the new deadline to “complete all discovery.”
(Text Order dated July 24, 2019.)5

5 On April 30, 2020, the parties sought an extension of the
discovery deadline to May 14, 2020, solely for the purpose of
(continued...)
4

On January 7, 2019, Original Plaintiffs served on Womble
Defendants initial discovery requests, which sought information
regarding, inter alia, their “Letter-Writing Program.” (See Docket
Entry 154-1 (the “Written Discovery”) at 1-18.)

The Written

Discovery defined “Letter-Writing Program” to mean “the activities
involved in obtaining the names and addresses of people involved in
accidents from NC D[MV]-349 forms, reviewing the forms, deciding
who

to

mail

material

to,

responding to responses.”
omitted).)

sending

letters

and

material,

and

(Id. at 4 (internal quotation marks

On August 19, 2019, Original Plaintiffs served Rule

30(b)(6) deposition notices on The Law Offices of Michael A.
DeMayo, L.L.P. (the “DeMayo Firm”), Ted A. Greve & Associates, P.A.
(the “Greve Firm”), and Davis & Gelshenen LLP (the “Gelshenen
Firm”). (See Docket Entry 154-2 (the “Deposition Discovery”) at 118.)

The Deposition Discovery requested production of certain

documents

prior

to

the

noticed

Rule

30(b)(6)

depositions,

including, as relevant here, Requests “3. Any and all documents
(including copies of the letters themselves) identifying persons to
whom the [relevant] firm sent or attempted to send letters in
connection with its direct mail marketing program at any time on or
after January 1, 2012,” and “9. All records that contain the names

5(...continued)
deposing Plaintiffs’ expert (see Docket Entry 160 at 1-3), which
request the Court (per the undersigned) also granted (see Text
Order dated May 1, 2020).
5

and/or addresses of persons who were sent direct mail advertisement
since January 1, 2012.”

(Id. at 4, 5, 10, 11, 16, 17.)

On September 30, 2019, Original Plaintiffs sought leave to
amend their complaint “(1) to streamline the class definition;
(2) to substitute a new class representative (with Defendants’
consent); and (3) to add a claim for punitive damages as to those
Defendants who have continued their marketing campaigns even after
this

Court’s

Order

denying

Defendants’

(See Docket Entry 97 at 2.)

motions

to

dismiss.”

In particular, Original Plaintiffs

proposed a new class definition, which “requires that the class
member is a person (a) identified on a DMV-349 which was prepared
by either the Charlotte-Mecklenburg Police Department or the North
Carolina State Highway Patrol; and (b) whose personal information
was received and/or used by Defendants for marketing purposes.”
(Id.)

Original Plaintiffs explained that the restriction of class

members to those identified on the specified agencies’ accident
reports

“alleviates

manageability

concerns”

and

that

“[t]he

inclusion of persons whose personal information was ‘received’ by
a

Defendant

in

connection

with

a

mail-marketing

campaign

is

intended to address challenges created by those Defendants who
claim to have destroyed (and in several cases, to continue to
destroy)

records

relating

to

their

mailings.”

(Id.

at

3.)

Original Plaintiffs further sought “to substitute Kelly Epperson
[(‘Epperson’)] for Shaterika Nicholson as a named plaintiff and

6

class representative[ because] Nicholson does not come within the
new class definition[, but] Epperson does.”

(Id. at 4.)

On October 21, 2019, the defendants consented to the proposed
amendment.

(See Docket Entries 98, 99.)

Accordingly, the Court

(per the undersigned) granted the requested leave (see Text Order
dated Oct. 22, 2019), and Plaintiffs filed their amended complaint
on October 23, 2019 (see Docket Entry 100) (the “Second Amended
Complaint”).

The Second Amended Complaint provided the following

class definition:
Every natural person identified on a DMV-349, which
was prepared by either the Charlotte-Mecklenburg Police
Department or the North Carolina State Highway Patrol, as
a driver licensed in North Carolina whose address is
designated on the DMV-349 as matching the address on that
person’s driver’s license, (a) with respect to whom a
Defendant received directly or indirectly from the
DMV-349 or its electronic equivalent the person’s name or
address in connection with a Defendant’s direct-mail
marketing program and/or (b) to whom a Defendant named in
this action sent a mailing with the words “This is an
advertisement for legal services” printed on the outside
of the envelope, within the 4 years preceding the filing
of this action through conclusion of this action.
(Id., ¶ 73.)
Two days later, the parties jointly moved for entry of “a
Consent Protective Order Governing the Production and Use of
Confidential
omitted).)

Material.”

(Docket

Entry

101

at

1

(emphasis

The Court (per the undersigned) granted that motion,

entering the requested “Consent Protective Order” (Docket Entry 103
at 1 (emphasis omitted)).

(See id. at 14.)

Shortly thereafter,

Plaintiffs moved for class certification (see Docket Entry 104), in
7

connection with which they moved to seal, inter alia, certain
information that the defendants “claim is confidential” (Docket
Entry 107 at 2).
information

filed

certification.

The defendants similarly moved to seal certain
in

support

of

their

oppositions

(See, e.g., Docket Entries 131, 135.)

to

class

As relevant

here, the Court (per Judge Biggs) granted the parties’ requests to
seal

information

described

as

“‘confidential

and

proprietary

case-selection criteria and strategies’” (Docket Entry 152 (the
“Sealing Order”) at 4), as well as information regarding “‘the
process and procedures that [the Defendant law firms] use in
operating their direct mail programs, including case selection
information’” (id. at 6 (brackets in original)).
Approximately two weeks later, Plaintiffs filed Plaintiffs’
Motion and the Sealing Motion.

(See Docket Entries 154, 157.)

The

Sealing Motion indicates that, although “Plaintiffs do not claim
the [identified] material is confidential and do not believe any of
it is,” they filed the Sealing Motion because the information at
issue involves discovery materials that “Defendants have marked as
confidential under the Consent Protective Order.”
157 at 2.)

(Docket Entry

Relying on the Sealing Order (see Docket Entry 162 at

1, 3), Womble Defendants filed a brief in support of the Sealing
Motion.

(See Docket Entry 162.)

In addition, the relevant

defendants filed an opposition to Plaintiffs’ Motion (see Docket
Entry 161), and, on the final day of the discovery period, Womble

8

Defendants filed Defendants’ Motion (see Docket Entry 158), which
Plaintiffs oppose (see Docket Entry 164).

After the parties

finished briefing the pending motions, the Court (per Judge Biggs)
denied

Plaintiffs’

grounds.

class

certification

request

on

typicality

(See Docket Entry 200 (the “Certification Opinion”) at

19.)
DISCUSSION
I. Relevant Standards
A. Discovery Standards
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”

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
9

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).
Moreover, “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”).
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”); 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

10

of

the

discovery

process.”).

Nevertheless, “hardball discovery is still a problem in some
cases.”
243

Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226,

(M.D.N.C.

2010)

(internal

quotation

marks,

ellipsis omitted) (“Kinetic Concepts I”).

brackets,

and

The Rules therefore

permit litigants to bring unresolved discovery disputes before a
court through a motion to compel discovery.

See id.

The party

opposing discovery generally bears the burden on a motion to
compel.

See id. at 243-44.

The Rules further authorize sanctions

in connection with motions to compel discovery and generally
mandate the awarding of attorney’s fees incurred in pursuing a
motion to compel “if the disclosure or requested discovery is
provided after the motion was filed,” Fed. R. Civ. P. 37(a)(5)(A).6
The Rules also provide sanctions for spoliation of evidence,
including the failure to preserve electronically stored information
(“ESI”).

See Fed. R. Civ. P. 37(e).

In addition, the Court

possesses inherent power to impose sanctions for spoliation of
evidence, at least for non-ESI materials. See Silvestri v. General
Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“The right to
impose sanctions for spoliation arises from a court’s inherent
power to control the judicial process and litigation, but the power
is limited to that necessary to redress conduct ‘which abuses the

6
The Rules additionally authorize sanctions against “a
party, [which] after being properly served with . . . a request for
inspection under Rule 34, fails to serve its answers, objections,
or written response.” Fed. R. Civ. P. 37(d)(1)(A)(ii).
11

judicial process.’”).7

“Spoliation refers to the destruction or

material alteration of evidence or to the failure to preserve
property for another’s use as evidence in pending or reasonably
foreseeable litigation.”

Id.

In this regard, it remains “well settled that a party has a
duty to preserve evidence when the party is placed on notice that
the evidence is relevant to the litigation or when the party should
have known that the evidence may be relevant to future litigation.”
Eckhardt v. Bank of Am., N.A., No. 3:06cv512, 2008 WL 1995310, at
*5 (W.D.N.C. May 6, 2008); see also Silvestri, 271 F.3d at 591
(“The duty to preserve material evidence arises not only during
litigation but also extends to that period before the litigation
when a party reasonably should know that the evidence may be
relevant to anticipated litigation.”).

“The duty to preserve

7
As the United States Court of Appeals for the Fourth
Circuit has explained:
The policy underlying this inherent power of the
courts is the need to preserve the integrity of the
judicial process in order to retain confidence that the
process works to uncover the truth. “[B]ecause no one
has an exclusive insight into truth, the process depends
on the adversarial presentation of evidence, precedent
and custom, and argument to reasoned conclusions — all
directed with unwavering effort to what, in good faith,
is believed to be true on matters material to the
disposition.” The courts must protect the integrity of
the judicial process because, “[a]s soon as the process
falters . . . the people are then justified in abandoning
support for the system.”
Id. (citation omitted) (brackets and ellipsis in original).
12

encompasses

electronic

communications

and

documents,

such

as

emails, and documents created by computer, such as invoices.”
Eckhardt, 2008 WL 1995310, at *5 (citing Zubulake v. UBS Warburg,
LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003)).

Thus, “once a party

reasonably anticipates litigation, it must suspend its routine
document

retention/destruction
to

ensure

policy
the

put

in

place

preservation

of

relevant

‘litigation

hold’

documents.”

and

a

Zubulake, 220 F.R.D. at 218.

B. Sealing Standards
“[T]he courts of this country recognize a general right to
inspect and copy . . . judicial records and documents.”
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).

Nixon v.

“The right of

public access to documents or materials filed in a district court
derives from two independent sources: the common law and the First
Amendment.” Virginia Dep’t of State Police v. Washington Post, 386
F.3d 567, 575 (4th Cir. 2004).

As relevant here, the common-law

presumption of access “can be rebutted if countervailing interests
heavily outweigh the public interests in access,” and “the party
seeking to overcome the presumption bears the burden of showing
some significant interest that outweighs the presumption.”
(internal quotation marks and brackets omitted).

Id.

“[W]hether to

grant or restrict access to judicial records” under the common law
“is a matter of a district court’s ‘supervisory power,’ and it is
[a decision] ‘best left to the sound discretion of the [district]

13

court, a discretion to be exercised in light of the relevant facts
and circumstances of the particular case.’”

Id. (final set of

brackets in original).
“When presented with a request to seal judicial records,” the
Court begins by “determin[ing] the source of the right of access
with respect to each document,” as “only then can it accurately
weigh the competing interests at stake.”
quotation marks and brackets omitted).

Id. at 576 (internal

The Court thereafter must

evaluate the competing interests under the following approach.
First, “it must give the public notice of the request to seal and
a reasonable opportunity to challenge the request.”

Id.

Further,

“it must consider less drastic alternatives to sealing.”

Id.

Finally, “if it decides to seal[,] it must state the reasons (and
specific supporting findings) for its decision and the reasons for
rejecting alternatives to sealing.”
“Adherence

to

this

procedure

Id.
serves

to

ensure

that

the

decision to seal materials will not be made lightly and that it
will be subject to meaningful appellate review.”

Id.

This

approach also reflects the reality that “[t]he operations of the
courts and the judicial conduct of judges are matters of utmost
public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,
839 (1978), as well as that “the public’s business is best done in
public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,
727 (M.D.N.C. 2013).

14

However, “the mere filing of a document with a court does not
render the document judicial.”

In re Policy Mgmt. Sys. Corp., 67

F.3d 296 (table), Nos. 94–2254 & 94-2341, 1995 WL 541623, *4 (4th
Cir. 1995); see also United States v. Moussaoui, 65 F. App’x 881,
889 (4th Cir. 2003) (“The unclassified appendix contains a wide
variety of materials, such as pleadings, hearing and deposition
transcripts, and some discovery materials. Some of these documents
fall within the common law presumption of access, while others are
subject to the greater right of access provided by the First
Amendment.

Still others may not qualify as ‘judicial records’ at

all.” (citing United States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir.
1995))); Amodeo, 44 F.3d at 145 (“We think that the mere filing of
a paper or document with the court is insufficient to render that
paper a judicial document subject to the right of public access.
We think that the item filed must be relevant to the performance of
the judicial function and useful in the judicial process in order
for it to be designated a judicial document.”). Rather, “documents
filed with the court are ‘judicial records’ if they play a role in
the adjudicative process, or adjudicate substantive rights.” In re
U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d
283, 290 (4th Cir. 2013).
motions” often

“involve

Accordingly, “[b]ecause discovery

procedural,

rather

than

‘substantive’

rights of the litigants,” Kinetic Concepts, Inc. v. Convatec Inc.,
No. 1:08cv918, 2010 WL 1418312, at *9 (M.D.N.C. Apr. 2, 2010)

15

(“Kinetic Concepts II”), courts have found that no right of public
access attaches to materials filed with discovery motions.
id.

at

*9-10;

see

also,

e.g.,

Chicago

Tribune

Co.

See
v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)
(“The better rule is that material filed with discovery motions is
not subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require
judicial resolution of the merits is subject to the common-law
right, and we so hold.”).
In such circumstances, the “good cause” standard of Rule 26(c)
applies to the sealing request.

See Kinetic Concepts II, 2010 WL

1418312, at *10; see also BASF Agro B.V. v. Makhteshim Agan of N.
Am., Inc., No. 1:10cv276, 2015 WL 12991090, at *4 (M.D.N.C. July
21, 2015) (“If the[ relevant] documents only asked this court to
rule on procedural discovery grounds, this court would only need to
find that good cause existed for sealing these documents.”). Under
Rule 26(c), “[t]he [C]ourt may, for good cause, issue an order to
protect a party or person from,” inter alia, “undue burden or
expense,” Fed. R. Civ. P. 26(c)(1), including by restricting access
to certain materials, see, e.g., Fed. R. Civ. P. 26(c)(1)(F)-(H)
(authorizing
information,

sealing
and

of

depositions,

“specified

confidential

documents

or

commercial

information”).

“Similarly, the common law presumption of access may be overcome if
competing interests outweigh the interest in access, such as where

16

a need exists to prevent court files from becoming sources of
business information that might harm a litigant’s competitive
standing.”

Kinetic Concepts II, 2010 WL 1418312, at *10 (internal

quotation marks, brackets, and citation omitted).
II. Analysis
A. Plaintiffs’ Motion
Plaintiffs’ Motion seeks to compel, inter alia, “full and
complete responses to [Document] Request Nos. 2, 7, and 14 in [the
Written Discovery] and to Document Request Nos. 3 and 9 in [the
Deposition Discovery].”

(Docket Entry 154 at 2.)

The relevant

Written Discovery Document Requests state:
2. Any and all documents discussing, relating to, or
constituting communication identified in response to
Interrogatory No. 20.[8]
*****

8

That Interrogatory provides:

20. Identify — (a) by stating the date of the
communication; (b) by stating the name and last-known
address and telephone number of each party who
participated in or was a party to the communication;
(c) by describing the mode of communication (e.g.,
in-person meeting, telephone call, e-mail, etc.); and
(d) by describing the substance of the communication
(without stating any person’s name, address, or driver’s
license information derived from an Accident Report) —
each and every communication between or on behalf of you
and your law firm, on one side, and any person or entity
that provided you or your firm with information derived
from Accident Reports, on the other side, at any time.
(Docket Entry 154-1 at 9.)
17

7. All communication with any outside marketing
entity about the Letter-Writing Program.
*****
14. All electronically stored information created or
received by you or any of your partners, members,
shareholders, or managers dealing with your targeted
direct mail program or Letter-Writing Program.
(Docket

Entry

154-1

at

11-12,

14.)

In

turn,

the

pertinent

Deposition Discovery Document Requests seek:
3. Any and all documents (including copies of the
letters themselves) identifying persons to whom the
[relevant] firm sent or attempted to send letters in
connection with its direct mail marketing program at any
time on or after January 1, 2012.
*****
9. All records that contain the
addresses of persons who were sent
advertisement since January 1, 2012.

names and/or
direct mail

(Docket Entry 154-2 at 4, 5, 10, 11, 16, 17.)
In addition to seeking “full and complete responses” to the
foregoing Document Requests, Plaintiffs ask the Court to order the
following:
(2) In the case of the DeMayo and Greve Defendants,
to preserve and to produce records of all persons to whom
mailings continue to be sent;
(3) To compel the Defendants to appear at reconvened
Rule 30(b)(6) depositions at their own expense and to
testify as to matters about which they were unprepared to
answer and/or to order the Defendants to provide sworn
statements relating to such matters;

18

(4) To order that [DeMayo Defendants and Greve
Defendants9] make their computer systems available for
inspection by Information Technology professionals
selected by Plaintiffs’ counsel to locate electronically
stored data that Defendants have failed and refused to
provide, and to pay the expenses related to such
inspection and/or that Defendants cause the person or
persons most familiar with their information technology
[to] conduct a search for and produce the requested
information, and then to make such persons available for
deposition at their expense; and
(5) For an award of sanctions included attorney’s
fees relating to Plaintiffs’ efforts to obtain the
subject documents and information.
(Docket Entry 154 at 2-3.)
In support of these requests, Plaintiffs contend that DeMayo
Defendants,

Greve

Defendants,

and

Gelshenen

Defendants

(collectively, the “MTC Defendants”) “have failed and refused to
produce their lists of persons whose information they obtained
and/or

used

in

connection

with

(Docket Entry 156 at 3.)

their

mass-mailing

programs.”

Plaintiffs further emphasize that,

notwithstanding the initiation of this lawsuit, DeMayo Defendants
and Greve Defendants have continued their mailing programs, but
failed to properly preserve, let alone produce, the relevant
spreadsheets

and

advertising

letters.

(See

id.

at

4-6;

see

also Docket Entry 156-1 at 12; Docket Entry 156-2 at 12-14; Docket
Entry 156-4 at 15-16.)

For instance, per the submitted deposition

9
Plaintiffs’ Motion refers generically to “Defendants”
(Docket Entry 154 at 3) in this request, but their supporting
memorandum clarifies that the request applies only to “the DeMayo
and Greve Defendants” (Docket Entry 156 at 8; see id. at 8-9).
19

testimony, DeMayo Defendants continued to shred the spreadsheets
that they created to determine to whom to send the mailings
involved in this litigation for more than a month after Plaintiffs’
counsel

asked

Michael

DeMayo

(“DeMayo”)

at

his

individual

deposition — taken three years after the initiation of this lawsuit
— to “agree from this point forward to make sure that those
spreadsheets are not getting deleted” (Docket Entry 156-1 at 12).
(See

Docket

Entry

156-2

at

12-14.)10

In

addition,

at

that

deposition, DeMayo confirmed that he had not “made any effort to
determine the names of the people that [DeMayo Firm] ha[d] sent
mailings to.”

(Docket Entry 156-1 at 14-15.)

At his own deposition two days later, Theodore A. Greve
(“Greve”) testified that Greve Firm “back[s] up [its] computer
systems regularly” (Docket Entry 156-4 at 15), but otherwise had
taken no “special steps” to ensure the spreadsheets’ preservation
(see

id.

at

16),

even

though,

per

Greve

Firm’s

subsequent

deposition, Greve Firm’s “practice is just that the[ spreadsheets
and associated mailing labels] get overwritten every day” (Docket
Entry 156-5 at 6) after the relevant “names and addresses are
printed out on labels,” which “get stuck on an envelope” and “put

10 DeMayo Defendants engaged in this practice notwithstanding
their admission that one must “have the filtered data from [their]
office” to determine whether they “sent a mailer to a particular
person who was involved in a wreck.” (Id. at 17-18.)
20

in the mail” (id. at 4).11

Notwithstanding this practice, Greve

Firm understands that “the spreadsheets and the labels[] should be
available in [its] computers” (id. at 7-8).

(See also id. at 7

(“It is [Greve’s] understanding that the information, if it came
through the computer, would likely be in the computer system
somewhere.”).)

However, Greve Firm testified that it had not

produced any of the requested labels, including those generated
between Greve’s deposition and Greve Firm’s deposition more than
two months later (see, e.g., id. at 10, 23), “[b]ecause [it]
ha[d]n’t hired someone to go in and dig into the deep, dark reaches
of the computer to see if they’re there” (id. at 9), and that it
would require an expert to locate the relevant information in its
computer system (see id. at 14; accord id. at 10).
Finally, Gelshenen Defendants’ testimony reflects that, prior
to Gelshenen Firm’s deposition, they provided to their counsel the
spreadsheets
information

that

they

obtained

(“Digital Solutions”).

created

from

in

Digital

2016

and

Solutions

of

2017
the

based

on

Carolinas

(See, e.g., Docket Entry 156-7 at 3, 7.)

11
Greve Firm disclosed the overwriting in response to
Plaintiffs’ counsel’s question about why Plaintiffs had “not
received any spreadsheets []or any labels,” explaining that Greve
Firm’s “practice is not to print those out.” (Id.; see also Docket
Entry 156-4 at 10 (indicating that Greve Firm did not produce “any
Digital Solutions spreadsheets,” which Greve Firm downloads each
business day that such spreadsheets become available, “[b]ecause
[Greve Firm] do[es]n’t print them out”).)
Nevertheless, Greve
acknowledged that he bore a duty to preserve ESI relevant to the
lawsuit, not just hard-copy materials. (See Docket Entry 156-4 at
10-12.)
21

Gelshenen Defendants further explained that they obtained “accident
reports from local police departments” and a certain website “from
March 2015 to December 2015,” but used Digital Solutions from
January 2016 until they stopped their mailing program.
Entry 156-6 at 5.)12

(Docket

Although Gelshenen Firm testified that it had

produced all of the spreadsheets from 2016 and 2017 to its counsel
(see Docket Entry 156-7 at 3, 7, 17), defense counsel produced only
four

days’

worth

of

spreadsheets

from

one

week

in

2016

to

Plaintiffs in connection with Gelshenen Firm’s deposition (see id.
at 6-7).

(See also Docket Entry 105-23 at 2-5 (indicating that,

“right before the [Gelshenen Firm] deposition,” Gelshenen Firm’s
“counsel handed” Plaintiffs’ counsel “some stacks of documents,”
id. at 2, as “the documents that are responsive to th[e Deposition
Discovery],” id., including, as “a representative sample,” four
spreadsheets constituting “one week’s” worth of spreadsheets that
Gelshenen Firm’s counsel “just picked . . . somewhere and printed,”
id. at 4).)

At its deposition, Gelshenen Firm also committed to

searching for responsive information from 2015 (see Docket Entry

12 Plaintiffs’ memorandum indicates that Gelshenen “[F]irm
stopped mailing to North Carolina residents after it learned about
filing of the Garey action,” but “recommenced the mailings in June
2017, and then stopped once and for all in about September 2017.”
(Docket Entry 156 at 7; see also Docket Entry 156-6 at 5
(testifying that Gelshenen Firm “used Digital Solutions” from
“January 2016 onward” until they stopped the program entirely, but
that “[t]here’s some time periods in there that [they] didn’t —
[they] stopped at different times in those dates”).)
22

156-7 at 14, 16),13 but Plaintiffs’ memorandum asserts that they
“have heard nothing since” the deposition about the results of such
search (see Docket Entry 156 at 8 n.3).
Against this backdrop, MTC Defendants raise three arguments in
opposition to Plaintiffs’ Motion.

(See generally Docket Entry

161.)

the

First,

they

contend

that

requested

information,

including “[m]ailing lists, distribution lists, and mail merge
materials[,] no longer have any probative value based on the new
class definition” found in the Second Amended Complaint.
2; see also, e.g., id. at 3-5.)

(Id. at

Second, they contend that

“Plaintiffs have suffered no harm, because other similarly-situated
defendants — who obtained the same DMV-349 public records and
summaries of public records (on Excel spreadsheets) from the same
third-party data aggregators during the same time period — have
already produced those documents.”

(Id. at 2.)

Third, they

contend that “the discovery sought from the DeMayo Defendants and
the Gelshenen Defendants has been produced” (id. at 3) since the
filing of Plaintiffs’ Motion (see id. at 7, 13), and, “[a]s a
result, [Plaintiffs’ Motion] is moot, and no sanction should be
awarded” (id. at 3).
To

begin,

These arguments lack merit.

Plaintiffs’

proposed

class

consisted

of

every

individual identified on certain accident reports as a North-

13 Gelshenen Firm planned to try to retrieve the filtered
spreadsheets from an old mail room email account to which Gelshenen
Firm sent them. (See id. at 14, 16.)
23

Carolina-licensed driver whose address matched the address on the
individual’s driver’s license (1) whose name or address a defendant
received, directly or indirectly, from such accident reports and/or
(2) to whom a defendant sent a qualifying mailing.
(quoting Docket Entry 100, ¶ 73).)14

(See id. at 4

Thus, MTC Defendants err in

asserting that, “[i]n light of the Plaintiffs’ alteration of their
class definition in the Second Amended Complaint (which expands the
scope of liability to include any motorist whose name appeared on
an accident report, rather than motorists like the Named Plaintiffs
who received mailings at their homes), much of the sought-after
discovery

has

lost

its

relevance.”

(Id.

at

2

(emphasis

in

original); see also id. (contending that “the defendant-specific
screening or filtering criteria (and resulting mailing lists) now
have no probative value in understanding who are members of the
class”).)

Rather, “[m]ailing lists, distribution lists, and mail

merge materials [continued to have] probative value based on the
new class definition” (id. at 2), and “whether [a] motorist’s name
and address was culled or scrubbed by Defendants (because the
motorist was at-fault, because the case did not fit the profile of
cases which a particular law firm would send mailers to, or because

14
Accordingly, contrary to MTC Defendants’ contentions,
neither of Plaintiffs’ subclasses encompassed “‘every natural
person’ who is ‘identified on a DMV-349’ which was prepared either
by the ‘Charlotte-Mecklenburg Police Department o[r] the North
Carolina State Highway Patrol’ for accidents occurring from 2012 to
the present” (id. at 6-7).
24

of any other reason) or whether they received mail from the
Defendants [remained ]relevant” (id. at 4-5) after Plaintiffs filed
the Second Amended Complaint.
Next, relying in part on their contention that, “[u]nder the
revised class definition, only the documents received from Digital
Solutions of the Carolinas are relevant” (id. at 2), MTC Defendants
assert that “Plaintiffs have suffered no harm” (id.) from MTC
Defendants’ failure to timely produce the requested information
because another defendant allegedly produced spreadsheets from
Digital Solutions.

(See, e.g., id. at 2, 7.)

In particular, MTC

Defendants maintain that “a co-defendant (Estwanik & May) has
produced 1,474,947 pages of documents; primarily the exact same
Excel spreadsheets and .pdf images of accident reports which the
DeMayo firm received from Digital Solutions during the exact same
time period.”

(Id. at 7; accord 9-10, 12-13.)

They also assert,

as to Greve Defendants, that “other co-defendants who did receive
information

from

Digital

Solutions

regarding

the

Raleigh

metropolitan area (Hardison & Cochran, Law Offices of Jason E.
Taylor, and Estwanik & May) have already produced 395 documents
with responsive information.

This is in addition to the documents

– largely the same public records obtained from Digital Solutions
– produced by other co-defendants in this action and in Garey v.

25

(Id. at 10.)15

Farrin, 1:16-CV-542.”

However, MTC Defendants

provide no support for these contentions (see id. at 7, 9-10, 1213), and “statements by counsel in briefs are not evidence,”
Cochran, 931 F. Supp. 2d at 730.
MTC

Defendants

further

assert

that

a

proffered

email

establishes that “Plaintiffs’ counsel is in possession of the[]”
relevant “Digital Solutions documents.”
see

also

id.

at

10-11

(“Because

only

(Docket Entry 161 at 10;
the

Digital

Solutions

documents are probative, and because Plaintiffs’ counsel is in
possession of them, Plaintiffs’ [M]otion should be denied.”).)
However, this email merely reflects that counsel for the plaintiffs
in Garey “has obtained documents from Digital Solutions and others

15
Greve Defendants also appear to argue that the
spreadsheets that they received regarding the Raleigh metropolitan
market “include[] accident reports and public records from the Wake
County Sheriff’s Office, Raleigh Police Department, and local law
enforcement in or around Wake County.”
(Id. at 9.)
In Greve
Defendants’ view, “[o]nly the public records which the Greve
Defendants received from Digital Solutions, and only records
related to the geographic region included in the class definition
are relevant and probative. Plaintiffs’ request for outgoing mail
list, and requests for information related to the Raleigh
metropolitan area, are not probative on any remaining issue in the
case.” (Id.) This contention also falls short. By virtue of the
proposed classes’ inclusion of the North Carolina Highway Patrol
accident reports, “the geographic region included in the class
definition” (id.) constituted the entire State of North Carolina.
See North Carolina Highway Patrol Troop and District Boundaries,
https://www.ncdps.gov/our-organization/law-enforcement/state-high
way-patrol/troop-offices
(last
visited
Oct.
21,
2020).
Accordingly, information regarding qualifying accident reports that
the North Carolina Highway Patrol prepares in the Raleigh
metropolitan area remained relevant under the Second Amended
Complaint’s proposed class definition.
26

in the Garey case that relate to [this] case.” (Docket Entry 161-1
at 2.)

The email provides no insights regarding the nature or

scope of the “obtained documents” (id.) and, in any event, more
than

the

Digital

Solutions

documents

remained

probative

responsive) here prior to the Certification Opinion.

(and

As such, MTC

Defendants’ “no harm” contention misses the mark.
Finally, MTC Defendants assert that “the information sought by
[Plaintiffs’ M]otion . . . was provided to Plaintiffs on May 5,
2020,” on behalf of Gelshenen Defendants (Docket Entry 161 at 13),
and on April 28, 2020, on behalf of DeMayo Defendants (id. at 7).
Thus, MTC Defendants contend, Plaintiffs’ Motion “is moot, and no
sanction should be awarded.”

(Id. at 3.)

As a preliminary matter,

MTC Defendants provide no evidence in support of their assertion
that production of (all) the information that Plaintiffs’ Motion
seeks from DeMayo Defendants and Gelshenen Defendants has occurred.
(See id. at 3, 7, 13.)

To the contrary, questions remain regarding

the completeness of the belated productions. (See Docket Entry 163
at 2 & n.2.) Accordingly, MTC Defendants have not established that
the alleged belated production mooted Plaintiffs’ Motion as to
DeMayo Defendants and Gelshenen Defendants.
Supp. 2d at 730.

See Cochran, 931 F.

Moreover, the simple fact that certain MTC

Defendants produced materials after Plaintiffs filed their motion
to compel (see Docket Entry 161 at 3, 7, 13; Docket Entry 163 at 2
& n.2) does not mean that “no sanction should be awarded” (Docket

27

Entry 161 at 3).

Rather, the Rules mandate expense-shifting “if

the disclosure or requested discovery is provided after the motion
[to compel i]s filed” unless (1) the movant filed the motion
without first attempting in good faith to obtain the requested
information

without

court

action,

(2)

“the

opposing

party’s

nondisclosure, response, or objection was substantially justified,”
or (3) “other circumstances make an award of expenses unjust.”
Fed. R. Civ. P. 37(a)(5)(A).
In sum, MTC Defendants’ arguments do not justify denial of
Plaintiffs’ Motion.
However,

after

Certification

the

See Kinetic Concepts I, 268 F.R.D. at 243-44.
parties

Opinion

briefed

denied

Plaintiffs’

Plaintiffs’

request

Motion,
for

the
class

certification (see Docket Entry 200 at 19), effectively ending
Plaintiffs’ need for MTC Defendants’ “lists of persons whose
information they obtained and/or used in connection with their
mass-mailing

programs”

(Docket

Entry

156

at

3).

Under

the

circumstances, including the limited continuing relevance of the
requested discovery in light of the Certification Opinion, the
Court finds that proportionality concerns preclude the additional
discovery

that

Plaintiffs

seek

(see

Docket

Entry

154

at

2-3

(requesting, inter alia, additional document production, reconvened
depositions, and forensic inspection of certain MTC Defendants’
computer systems)).

See Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment (“The parties and the court have a collective

28

responsibility to consider the proportionality of all discovery and
consider it in resolving discovery disputes.”).
Although issuance of the Certification Opinion forestalls
compelled

compliance

with

Plaintiffs’

outstanding

discovery

requests, it does not absolve MTC Defendants of their discovery
failures.

At

the very latest,16 DeMayo Defendants and Greve

Defendants were “placed on notice that the [requested] evidence
[wa]s relevant to the litigation,” Eckhardt, 2008 WL 1995310, at
*5, when they were sued in July 2016.
Entries 1, 5.)

(See generally Docket

Yet, for more than three years, they failed to

preserve (but instead continued to create and destroy) relevant
material, such as the filtered spreadsheets and mailing labels used
in their disputed direct-mail-marketing programs.

(See, e.g.,

Docket Entry 156-1 at 12; Docket Entry 156-2 at 12-14; Docket Entry
156-4

at

15-16;

Docket

Entry

156-5

at

6.)

Such

conduct,

particularly by experienced litigators like DeMayo Defendants and
Greve Defendants, violates well-recognized standards.

See, e.g.,

Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395,
402-07

(W.D.

Tenn.

2011)

(finding

defendant

breached

its

16 Arguably, given the claims at issue, a duty to preserve
the requested information, including in particular the filtered
spreadsheets and Digital Solutions materials, arose no later than
the date on which MTC Defendants learned of the Garey action, filed
in May 2016, see generally Garey, No. 1:16cv542, Docket Entry 1.
See Silvestri, 271 F.3d at 591 (“The duty to preserve material
evidence arises not only during litigation but also extends to that
period before the litigation when a party reasonably should know
that the evidence may be relevant to anticipated litigation.”).
29

preservation duties, and awarding sanctions for spoliation, “where
[the

defendant]

failed

to

timely

issue

an

effective

written

litigation hold, to take appropriate steps to preserve any existing
electronic records, to suspend or alter automatic delete features
and routine overwriting features, and to timely and effectively
collect ESI,” id. at 404).
Given the above-detailed conduct, Plaintiffs “request that the
Court enter sanctions against the DeMayo, Greve, and Gelshenen
Defendants as provided in Rule 37(a), (d), and (e), including, at
a minimum, an award of reasonable attorneys’ fees.
submit that severe sanctions are warranted here.”
156 at 11.)

Plaintiffs

(Docket Entry

As noted, Rule 37(a) mandates expense-shifting when a

party produces the requested material after a motion to compel’s
filing and (1) the moving party attempted in good faith to obtain
the

requested

material

without

court

intervention,

(2)

no

substantial justification appears for the opposing party’s actions,
and (3) no other circumstances render expense-shifting unjust.
See Fed. R. Civ. P. 37(a)(5)(A).
In turn, Rule 37(d) authorizes expense-shifting, as well as
“any of the orders listed in Rule 37(b)(2)(A)(i)-(vi),” Fed. R.
Civ. P. 37(d)(3), where a party fails to appear at a properly
noticed deposition or respond to discovery.
37(d)(1).

Fed. R. Civ. P.

Those cross-referenced sanction orders include:

30

(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part; [or]
(vi) rendering a default judgment against the disobedient
party[]. . . .
Fed. R. Civ. P. 37(b)(2)(A).
Finally, Rule 37(e) specifies two options if ESI “that should
have been preserved in the anticipation or conduct of litigation is
lost because a party failed to take reasonable steps to preserve
it, and it cannot be restored or replaced through additional
discovery.” Fed. R. Civ. P. 37(e). First, “upon finding prejudice
to another party from loss of the information, [the Court] may
order measures no greater than necessary to cure the prejudice.”
Fed. R. Civ. P. 37(e)(1).

Second, “only upon finding that the

party acted with the intent to deprive another party of the
information’s use in the litigation,” the Court may:
(A) presume that the lost information was unfavorable to
the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or

31

(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e)(2).
Aside from contending that “severe sanctions are warranted,”
“including, at a minimum, an award of reasonable attorneys’ fees”
(Docket Entry 156 at 11), Plaintiffs do not propose any specific
sanctions (see Docket Entries 154, 156, 163).

Further, even

setting aside the effects of the Certification Opinion, the record
does not illuminate what particular sanctions, beyond expenseshifting, MTC Defendants’ conduct would warrant given the nature of
the information at issue.

Accordingly, particularly in light of

the

the

recent

attorney’s

developments,
fees

constitutes

Court

an

finds

appropriate

that

an

sanction

award

of

for

MTC

Defendants’ conduct.
The Court further finds expense-shifting appropriate under
Rule 37(a)(5)(A) as to DeMayo Defendants and Gelshenen Defendants
in light of their belated productions.

In this regard, the record

reflects Plaintiffs’ good-faith attempts to obtain the requested
discovery without court intervention (see, e.g., Docket Entry 154-3
at 2-15), but reveals neither substantial justification for these
defendants’ refusal to timely provide the requested discovery nor
any circumstances that would render “an award of expenses unjust,”
Fed. R. Civ. P. 37(a)(5)(A)(iii).

However, because Gelshenen

Defendants produced their filtered spreadsheets from 2016 and 2017
to their counsel before Gelshenen Firm’s deposition and their

32

counsel

decided

to

produce

only

four

days’

worth

of

such

spreadsheets from 2016 as “a representative sample” (Docket Entry
105-23 at 4; see id. at 2-6), the Court finds that Gelshenen
Defendants and their counsel shall share responsibility for a
portion of the shifted expenses.

See Fed. R. Civ. P. 37(a)(5)(A)

(authorizing expense-shifting onto responsible attorney).
Finally, the Court finds expense-shifting appropriate under
Rule 37(d) as to Greve Firm, which, inter alia, “fail[ed] to serve
its answers, objections, or written response,” Fed. R. Civ. P.
37(d)(1)(A)(ii), to the Deposition Discovery.

In particular, at

Greve Firm’s deposition, Greve conceded that Greve Firm possessed
material responsive to Deposition Discovery Document Requests 3 and
9 but failed to produce it at or before the deposition, as the
Deposition Discovery requested (see Docket Entry 154-2 at 7) and
the Rules permit, see Fed. R. Civ. P. 30(b)(2).
156-5 at 12-13, 18-19.)17

(See Docket Entry

The record further reflects Plaintiffs’

good-faith attempts to obtain the requested discovery without court
intervention (see, e.g., Docket Entry 154-3 at 1, 5-6, 8-9, 12-15),

17
In this regard, although he explicitly conceded Greve
Firm’s failure to produce materials responsive to Document Request
3 (see id. at 13), Greve maintained that “[he was] producing all
the information [responsive to Document Request 9] because [he was]
telling [opposing counsel at the deposition] exactly how to get it
and who has it,” including specifically that “if it’s available in
the computers, an IT person that maybe has a similar background to
Mr. Hatch might be able to access [it]” (id. at 19).
That
assertion lacks merit and, in any event, tacitly admits Greve
Firm’s failure to comply with the requirement “to produce documents
and tangible things at the deposition,” Fed. R. Civ. P. 30(b)(2).
33

but reveals neither substantial justification for Greve Firm’s
refusal to provide the requested discovery nor any circumstances
that would render “an award of expenses unjust,” Fed. R. Civ. P.
37(d)(3).
In sum, the recent Certification Opinion obviates the need for
compelled
requests.

production

as

to

Plaintiffs’

outstanding

discovery

However, the Court grants Plaintiffs’ request for

expense-shifting as to Plaintiffs’ Motion, due to the belated
production made after the filing of Plaintiffs’ Motion and Greve
Firm’s failure to serve a proper response to Deposition Discovery
Document Requests 3 and 9.18

As discussed above, Plaintiffs

undertook good-faith efforts to secure the information without
court intervention, MTC Defendants failed to establish substantial
justification for their actions, and no other circumstances render
expense-shifting

unjust.

Under

the

circumstances,

the

Court

further finds that (1) DeMayo Defendants shall bear a third of the
expenses, (2) Greve Firm shall bear a third of the expenses, and
(3) Gelshenen Defendants and their counsel shall bear the remaining
third of the expenses.
B.

Sealing Motion

Next, the Sealing Motion seeks to seal certain information in
Plaintiffs’ exhibits and memorandum in support of Plaintiffs’

18 Under the circumstances, the Court need not separately
evaluate the propriety of sanctions under Rule 37(e).
34

Motion.

(See Docket Entry 157 at 2.)

In particular, the Sealing

Motion requests sealing of portions of certain discovery responses
and deposition testimony by MTC Defendants and the references to
such

information

in

Plaintiffs’

memorandum.

also Docket Entry 156 to 156-7.)

(See

id.;

see

As noted, “Plaintiffs do not

claim the material is confidential and do not believe any of it is”
(Docket Entry 157 at 2), but MTC Defendants “seek permanent sealing
of the discovery, or at least until trial” (Docket Entry 162 at 8;
see generally Docket Entry 162). To support their sealing request,
MTC Defendants rely on “the Court’s prior guidance on this same
issue from its [Sealing] Order” (id. at 3), arguing “that the
sealed exhibits (interrogatory responses and deposition transcripts
from [MTC Defendants]) contain sensitive information regarding the
process and procedures that th[e relevant l]aw [f]irms use in
operating their direct mail programs, including case selection
information” (id. at 6; see also id. (“This Court has already
determined that Defendants’ case selection methods and criteria are
sensitive business information which should be sealed.” (emphasis
omitted))).
Plaintiffs filed the Sealing Motion in April 2020.
Docket

Entry

157.)

Accordingly,

the

Court

finds

that

(See
all

interested persons have received “notice of the request to seal and
a reasonable opportunity to challenge the request,” Washington

35

Post, 386 F.3d at 576.19

Further, given the nature of Plaintiffs’

Motion, arguably no public right of access applies to the relevant
materials, subjecting them only to Rule 26(c)’s “good cause”
standard.

See Kinetic Concepts II, 2010 WL 1418312, at *9-10; see

also BASF Agro, 2015 WL 12991090, at *4.

Alternatively, to the

extent that the materials qualify as “‘judicial records’ because
they were filed with the objective of obtaining judicial action or
relief pertaining to [Plaintiffs’ Motion],” In re U.S., 707 F.3d at
291, the common-law right of access applies, see BASF Agro, 2015 WL
12991090, at *4 (explaining that, “it may also be that these briefs
and exhibits are judicial records because they were filed with the
objective of . . . supporting . . . a motion to compel” and, as
such, “the common-law presumption of access attaches to these
documents”).

Thus, “because the [United States Court of Appeals

for the] Fourth Circuit has not definitively resolved the access
right question in the discovery motion context, the Court will
conduct the ‘competing interests’ balancing test that would govern
if the common-law access right did apply, along with the ‘good
cause’ inquiry.”

Kinetic Concepts II, 2010 WL 1418312, at *10.

In this regard, the Court (per Judge Biggs) has already
determined

that

the

Defendants

seek

to

specific
seal

type

qualifies

of
as

information
“sensitive

that

MTC

business

19 The docket reflects no objections to the Sealing Motion.
(See Docket Entries dated Apr. 21, 2020, to present.)
36

information” that warrants sealing (Docket Entry 152 at 5) under
the common-law analysis (see id. at 3-7). Sealing likewise remains
proper under Rule 26(c)’s “good cause” standard, as previously
recognized by the parties (see Docket Entry 103 at 1-3 (defining,
in Consent Protective Order entered “pursuant to Rule 26” (id. at
1),

“‘Protected

Information’”

to

include

“[d]ocuments

or

information that disclose the strategies or internal execution of
a [d]efendant law firm’s efforts to communicate through written
correspondence

with

those

involved

in

vehicular

accidents

. . . .[,] includ[ing] the criteria by which a [d]efendant law firm
selects to

whom

it

will

send

written

communications

and

the

analyses of the effectiveness of any particular set of criteria”
(id. at 3))), and rulings in analogous cases, see, e.g., Kinetic
Concepts II, 2010 WL 1418312, at *10 (authorizing sealing and
redaction of materials under Rule 26(c), and noting that Rule 26(c)
authorizes

“restrict[ed]

access

to

materials

that

constitute

‘confidential research, development, or commercial information’”).
In addition, “the parties have narrowly tailored their proposed
redactions to allow for public access to the vast majority of the
filings — a less drastic alternative to sealing the documents in
their entireties” (Docket Entry 152 at 4). (See Docket Entries 156
to 156-7.)
However, the proposed redactions in Plaintiffs’ memorandum and
the Greve Firm deposition exhibit encompass publicly disclosed

37

information, negating the justification for sealing.

In this

regard, notwithstanding the proposed redactions in the memorandum,
unredacted deposition testimony in the record reveals the fact that
DeMayo Defendants utilize color-coded spreadsheets.

(Compare,

e.g., Docket Entry 156 at 4 (“The [redacted] spreadsheet is then
used to perform a mail-merge function.” (citing Docket Entry 156-2
at 12)), with, e.g., Docket Entry 156-2 at 11 (explaining that “a[
DeMayo

Firm]

staff

“highlight[ing]

member

in

will

different

mark
colors,”

the

spreadsheet”

including

by

“orange

highlighter” and “yellow”), and id. at 12 (explaining that “th[e]
Excel

spreadsheet

now

that’s

been

modified

three

times

or

manipulated will now go back to the admin folks, and they will,
depending on the notation, mail merge,” with such “mail merge[]
depending on the category, and they just don’t send to the ones
that are marked in orange”)).
In addition, other proposed redactions from the memorandum and
Greve Firm deposition serve no purpose, given that unredacted
record testimony reveals the filters that Greve Firm uses in
creating their mailing lists.

(Compare Docket Entry 156 at 5, and

Docket Entry 156-5 at 24-27, with Docket Entry 156-4 at 8-9, and
Docket Entry 156-5 at 16.)

Because the unredacted testimony

submitted in support of Plaintiffs’ Motion publicly discloses both
that

DeMayo

Defendants

use

color-coded

spreadsheets

and

the

particular filters that Greve Firm uses, no basis exists to redact

38

such information from other parts of the record.

See, e.g.,

Washington Post, 386 F.3d at 579 (“[O]nce announced to the world,
the

information

lost

its

quotation marks omitted).)

secret

characteristic.”

(internal

Accordingly, the Court will grant the

Sealing Motion except insofar as it requests redaction of the
references (1) to “color-coded” in Plaintiffs’ memorandum and
(2) to Greve Firm’s filters in Plaintiffs’ memorandum and the Greve
Firm deposition exhibit.
C.

Defendants’ Motion

Finally, Womble Defendants seek “an order compelling putative
class representative Johnathan Hatch and third party Mark Jetton to
produce certain documents that have been requested in this action.”
(Docket Entry 158 at 1-2.) According to Womble Defendants, “[t]his
discovery is critical as it bears on a hidden relationship which
has been concealed from Defendants and the Court, which may warrant
further hearings by the Court on this matter and ultimately lead to
a finding that (1) Mr. Hatch is an inadequate class representative
and (2) that counsel of record in this case are inadequate class
counsel.”

(Id. at 2.)

In support of their request, Womble

Defendants assert that “Hatch’s friend, attorney Mark Jetton” (at
times, “Jetton”), “may have been representing Mr. Hatch since the
beginning of this lawsuit.”

(Docket Entry 159 at 3.)

According to

Womble Defendants, “Jetton likely has been serving as hidden
counsel for Mr. Hatch and may have a fee-splitting arrangement with

39

putative class counsel.”

(Id. at 5.)

Womble Defendants further

maintain that, if “Jetton has been serving as ‘hidden’ counsel,
heretofore unknown to Defendants or the Court, then, under numerous
authorities, Mr. Hatch and current counsel of record should both be
found inadequate to represent the class.”

(Id. at 4.)20

Based on these assertions, Womble Defendants seek an order:
(1) compelling third party Mark Jetton to produce any
engagement or retainer agreements between Mr. Jetton and
putative class representative Johnathan Hatch;
(2) compelling Mr. Hatch, including his counsel of
record, to produce any engagement letter or retainer
agreement with anyone who is his counsel in this action;
(3) compelling third-party Mark Jetton to produce copies
of any communications between him and putative class
representative Johnathan Hatch or putative class counsel,
Brown, Faucher, Peraldo, & Benson, PLLC;
(4) compelling Mr. Hatch to produce any communications
with third-parties, including emails, text messages, or
written communications with Mr. Jetton;
(5) awarding Defendants their costs and attorney’s fees
incurred in bringing this motion, pursuant to Rule
37(a)(5);
(6) granting any further relief the Court deems just and
proper, which could include a hearing or orders finding
Mr. Jetton, Mr. Hatch, current counsel of record, and
possibly others as inadequate to represent the class in
this matter; and

20
Womble Defendants became aware of Jetton in July 2019
(see Docket Entry 158 at 2), less than halfway through the
discovery period (see Text Orders dated Nov. 27, 2018, and July 24,
2019). Nevertheless, Womble Defendants waited until the final day
of the discovery period — more than three months after briefing on
the class certification motion closed (see Docket Entry 147) — to
file the instant motion. (See Text Order dated July 24, 2019; see
also Docket Entry 158 at 6.)
40

(7) staying a decision on Plaintiffs’ Motion to Certify
the Class until this motion to compel and any related
discovery or in camera investigation is complete.
(Docket Entry 158 at 5 (emphasis in original).)
oppose Defendants’ Motion.

Hatch and Jetton

(See Docket Entry 164.)

As a preliminary matter, the Certification Opinion arguably
mooted Defendants’ Motion by denying Plaintiffs’ request for class
certification, negating the need for class counsel and class
representatives.

(See generally Docket Entry 200.)

However,

because the Certification Opinion addresses (and upholds) the
adequacy of Plaintiffs and their counsel for class representation
purposes (see, e.g., id. at 15 (“conclud[ing] that Plaintiffs and
their

counsel

would

adequately

represent

the

class”)),

the

undersigned will analyze the merits of Defendants’ Motion.
In July 2019, Womble Defendants deposed Hatch.
Entry 164-2 at 2-3.)

(See Docket

At that deposition, Hatch testified that he

contacted Jetton shortly after his accident in September 2015
“because [Hatch] received a significant amount of mailers and it
made [him] concerned that [he] was going to be sued or [he] needed
some kind of legal counsel” (id. at 6).

(See id. at 5-6.)

As

such, Hatch “reached out to [his] lawyer, [his] lawyer,” Mark
Jetton.

(Docket

Entry

134-8

at

14-15;

see

also

id.

at

21

(explaining that, due to the mailers, Hatch “thought that there was
going to be some kind of legal action that was needed, that’s why
[Hatch] reached out to [his] lawyer Jetton”).)

41

Hatch “know[s ]

Jetton through college football days[, s]o [Hatch] asked a few
questions of [Jetton] and [Jetton] placed [Hatch] in contact [with
Plaintiffs’ counsel].”

(Docket Entry 164-2 at 10.)

Hatch had

“reached out to [Jetton] about legal matters before” (id. at 12),
and “ha[s] used [Jetton] as a lawyer in other things” (id. at 13),
but “do[es] not believe” that he either “sign[ed] an engagement
letter with [Jetton]” or “retain[ed Jetton] for this class action”
or “the accident” (id.).

Hatch did, however, “consult [Jetton] on

his thoughts on” dealing with the insurance company regarding the
underlying accident.

(Docket Entry 134-9 at 81.)

Hatch further testified that he did not know Plaintiffs’
counsel prior to consulting Jetton, who “put [him] in contact” with
Plaintiffs’

counsel.

(Docket

Entry

164-2

at

10.)

More

specifically, Hatch, Jetton, and Plaintiffs’ counsel participated
in a three-way call so that Jetton could “connect [Hatch]” with
Plaintiffs’ counsel.

(Id. at 15.)

Although Hatch “ha[s] spoken

with [Jetton] about a multitude of things” since that call, Hatch
does not recall speaking to Jetton about either the call or the
lawsuit (id. at 14), other than perhaps “telling [Jetton that Hatch
is] still working with [Plaintiffs’ counsel], but [Hatch] do[es]n’t
remember any specifics or anything of that nature” (Docket Entry
134-9 at 80-81).

Hatch also does not recall Jetton participating

“in any other conference calls with [Hatch] and [his] counsel in
this case.”

(Id. at 81.)

However, Hatch once “had to use

42

[Jetton’s] office because [Plaintiffs’ counsel] and [Hatch] are not
located in the same city, so [Hatch] had to send [Jetton] e-mails
to get some stuff signed.”

(Id.)

In addition, in connection with

their initial consultation, Hatch provided the mailings that he
received to Jetton to give to Plaintiffs’ counsel.

(Id. at 4; see

also Docket Entry 164-2 at 7.)
Finally, during the deposition, Plaintiffs’ counsel and Hatch
repeatedly

asserted

that

attorney-client

Hatch’s initial communications with Jetton.
Entry 164-2 at 7-9, 13, 15.)

privilege

applied

to

(See, e.g., Docket

For instance, in response to

questions that elicited “advice [Hatch] received from Jetton,”
Plaintiffs’ counsel asserted that such advice “is attorney-client
privileged,” explaining that Hatch “consulted with Mr. Jetton.”
(Id. at 8-9.)

In addition, when Womble Defendants asked what

Plaintiffs’ counsel, Hatch, and Jetton discussed during their
telephone call, Hatch responded that “[i]t was a conversation with
my lawyers” and Plaintiffs’ counsel objected to Womble Defendants’
claim that “earlier [Hatch] testified that Mr. Jetton was not your
lawyer,” asserting:
didn’t.

“No, he didn’t.

Objection to form.

He said he didn’t retain him formally.

No, he

He didn’t say –”

(Id. at 13; see also id. (testifying, in response to Womble
Defendants’ assertion, that “[Hatch] didn’t retain [Jetton] for
this accident, but [Hatch] ha[s] used him as a lawyer in other

43

things,” even if “[Hatch] do[es] not believe” that he “retain[ed
Jetton] for this class action”).)
Thereafter, Womble Defendants served a subpoena on Jetton.
(See Docket Entry 159-1 at 2-5.)

The subpoena sought:

1. Any and all written communications including emails,
instant messages, and text messages with attorney Drew
Brown or his law firm, Brown, Faucher, Peraldo, & Benson,
PLLC [(i.e., Plaintiffs’ counsel)], regarding Johnathan
Hatch or the [DPPA].
2. Any and all notes of any telephone calls or other
non-telephonic conversations with Johnathan Hatch between
March 2016 and September 2016.
3. Any and all notes of any telephone calls or other
non-telephonic conversations with attorney Drew Brown or
his law firm, Brown, Faucher, Peraldo, & Benson, PLLC
regarding Johnathan Hatch or the [DPPA].
(Id. at 5.)

Jetton objected to each of these requests on the

grounds that “th[e] information is protected by the attorney client
privilege and is work product information.” (Docket Entry 159-2 at
2-3.)

According to Womble Defendants, “no privilege log was

produced.”
The

(Docket Entry 159 at 6.)

memorandum

in

support

of

Defendants’

Motion

further

states:
Undersigned
counsel
exchanged
meet-and-confer
correspondence with Mr. Jetton, where he repeatedly
referred to Mr. Hatch as his client. Undersigned counsel
called Mr. Jetton to discuss his objections. During the
call, Mr. Jetton stated that he does in fact represent
Mr. Hatch in this class-action and that he has been
working with Mr. Brown and Mr. Faucher since 2016 on the
matter. (Exhibit C, [November 20, 2019, Reich email].
He also said that he “intend[s] to be part of any
settlement or judgment in the case.” (Ex. C.). [sic]
When asked about why his statements contradicted Mr.
44

Hatch’s deposition testimony, Mr. Jetton said that Mr.
Hatch’s testimony was inaccurate and reflects a
misunderstanding of Mr. Jetton’s role in this action.
(Ex. C.)
(Docket Entry 159 at 6-7 (brackets and missing closed parenthesis
in original).)21
However, the email on which Womble Defendants rely for these
assertions

does

contentions.

not

constitute

competent

evidence

(See generally Docket Entry 159-3.)

of

their

Rather, this

email, addressed from Womble Defendants’ counsel to Jetton and
dated

as

sent

Defendants’

on

November

counsel’s

20,

2019,

uncorroborated

merely

contains

description

of

Womble

Jetton’s

alleged statements during a purported call with Womble Defendants’
counsel. (Id. at 2.)

The email’s final paragraph asks, “[i]s this

an accurate recollection of our call?” (Id.) Notably, though, the
exhibit contains no response from Jetton.

(See id. at 1-6.)

As

such, it amounts to hearsay, see Fed. R. Evid. 801(c), and an
attorney’s

unsworn

supporting

exhibit,

statements,
do

not

whether
otherwise

in

a

memorandum

qualify

as

or

a

evidence,

see Cochran, 931 F. Supp. 2d at 730.

21 In its introduction, Womble Defendants’ memorandum cites
to the “(Affidavit of Jonathan Reich)” to support these
contentions.
(See Docket Entry 159 at 3.)
Womble Defendants
provided no such affidavit (see Docket Entries 158 to 159-5), and
their memorandum elsewhere consistently cites to “(Ex. C.)” to
support the relevant contentions (see Docket Entry 159 at 7, 13,
18). Exhibit C does not qualify as an affidavit. (See generally
Docket Entry 159-3.)
45

In contrast, Jetton provided a sworn affidavit disputing
Womble Defendants’ contentions.
“Affidavit”).)

(See Docket Entry 164-1 (the

As relevant here, the Affidavit states:

1) I am an
Carolina.

attorney

licensed

to

practice

in

North

2) I have ten years[’] experience practicing law in the
Charlotte area.
3) I graduated from Elon Law School in 2009.
4) During my time at Elon, I developed a professional
relationship with attorney Andrew Brown, who spoke at
Elon Law School.
5) At some point in 2016, I received a call at my
Charlotte office from Mr. Brown.
6) He told me that if I had any car wreck clients who
received solicitation mailings from attorneys following
a wreck, he would be willing to speak with them about
representation under the [DPPA].
7) Following his wreck, my former classmate and client
Johnathan Hatch called me regarding his letters which
reminded me of my conversation with Mr. Brown.
I
provided Mr. Hatch with Mr. Brown’s phone number.
8) Mr. Hatch did not know Mr. Brown or any attorney in
this matter prior to me giving him Mr. Brown’s phone
number.
9) I have no engagement agreement written or otherwise
with Mr. Brown or Mr. Hatch regarding this matter.
10) I have had to expend some time dealing with requests
from Womble Bond Dickinson over the last several years
regarding this matter. I had to object to requests and
now am having to provide this Affidavit.
11) I do believe I ought [to] be paid fairly for my time
here. However, no one has offered or agreed to pay me
anything and I have no fee split arrangement with Mr.
Hatch or anyone else regarding the matters.

46

12) I will not seek to receive any fee from any certified
class here.
13) I have not and will not seek to in any way represent
any class here.
14) Mr. Hatch is a client and friend.
When he seeks
legal advice from me on any matter, I consider our
communications privileged even if I choose to not take on
the matter or to refer him to another attorney.
15) With that said, there were no communications with him
here other than simply sending him to Mr. Brown. I have
no file of any kind or notes regarding conversations with
Hatch about this.
16) I have performed no legal work here for the class.
My office staff was used once as I recall to notarize Mr.
Hatch’s discovery answers in the case but I did not
review them at all nor have I consulted with Mr. Brown or
anyone else regarding the substance of the representation
beyond him thanking me for sending Mr. Hatch and telling
me that Hatch was a great client.
(Id. at 2-4.)
In response, Womble Defendants raise a number of challenges to
the Affidavit (see Docket Entry 168 at 2-9), which they contend “is
facially invalid” (id. at 2 (emphasis and capitalization omitted)).
First,

Womble

Defendants

find

it

“strikingly

odd”

that

the

Affidavit “was filed by Class Counsel as an exhibit to the Class
Plaintiffs’ response in opposition to a motion to compel.” (Id. at
4.) In this regard, Womble Defendants contend that, “[d]espite the
Jetton Affidavit adamantly disclaiming any relationship to Class
Counsel or this class action[,] Class Counsel went to the time and
expense of preparing a brief to argue on his behalf.”

(Id.)

In so

arguing, Womble Defendants overlook the fact that, in addition to

47

Jetton, they also moved to compel against Hatch and Plaintiffs’
counsel.
such

(See, e.g., Docket Entry 158 at 5.)

circumstances,

the

fact

that

Particularly under

Plaintiffs

submitted

the

Affidavit in support of their opposition to Defendants’ Motion
supports no negative inferences.
Womble

Defendants

then

move

to

other

“indicia

of

unreliability” (Docket Entry 168 at 5); specifically:
The Jetton Affidavit includes inadmissible hearsay. Dkt.
164-1, ¶6[ ](recounting out-of-court conversation offered
for the truth of the matter asserted), ¶10 (referring to
documents (“requests from Womble Bond Dickinson”) which
were not attached to affidavit). The illegible signature
is dated May 12, 2020, while the notary indicates it was
signed on May 13, 2020.
The Jetton Affidavit also
contains unsupported legal conclusions. Dkt. 164-1, ¶14
(making
the
conclusion
that
an
attorney-client
relationship exists without offering factual declarations
to each element of the privilege).
(Docket Entry 168 at 5.)

These contentions miss the mark.

First, the Affidavit’s statement that Plaintiffs’ counsel
“told [Jetton] that if [Jetton] had any car wreck clients who
received soliciation mailings from attorneys following a wreck,
[Plaintiffs’ counsel] would be willing to speak with them about
representation under the [DPPA]” (Docket Entry 164-1, ¶ 6) does not
qualify as hearsay because Jetton recounts the conversation with
Plaintiffs’ counsel not for the truth of the matter asserted – that
Plaintiffs’ counsel would speak with such clients – but rather to
explain why Jetton referred Hatch to Plaintiffs’ counsel (see id.,
¶ 7).

See Fed. R. Evid. 801(c)(2).

48

Nor does Jetton’s statement

that he “ha[s] had to expend some time dealing with requests from
Womble Bond Dickinson over the last several years regarding this
matter” (Docket Entry 164-1, ¶ 10) qualify as hearsay.

See Fed. R.

Evid. 801(a)-(c).
Further, the ostensibly “illegible signature” on the Affidavit
appears to match the signature on Jetton’s objections to the
subpoena. (Compare Docket Entry 164-1 at 4, with Docket Entry 1592 at 3-4.)

Womble Defendants also fail to explain how the one-day

discrepancy between the preprinted date on the Affidavit and the
notary’s handwritten date (see Docket Entry 164-1 at 4) renders
invalid the Affidavit (see Docket Entry 168 at 5). Finally, rather
than providing “unsupported legal conclusions” (id.), the Affidavit
merely indicates how Jetton perceives his communications with Hatch
“[w]hen [Hatch] seeks legal advice from [Jetton]” (Docket Entry
164-1, ¶ 14).
As

a

last

ground

for

discounting

the

Affidavit,

Womble

Defendants emphasize its conflict with Hatch’s testimony regarding
the date of Jetton’s referral to Plaintiffs’ counsel.
Entry 168 at 5-8.)

(See Docket

In particular, Womble Defendants note that

Hatch testified he contacted Jetton soon after an accident, which
occurred in September 2015 (see id. at 5-6; Docket Entry 164-2 at
5-6), but that Jetton averred Plaintiffs’ counsel contacted him in
“[a]t some point in 2016,” following which “Hatch called [Jetton]”
(Docket Entry 164-1, ¶¶ 5, 7).

“The fact that [Jetton] may have

49

testified incorrectly regarding the dates of h[is] communications
. . . does not compel an inference that [his communications with
Hatch] were not privileged.” N.L.R.B. v. Interbake Foods, LLC, 637
F.3d 492, 502 (4th Cir. 2011).
“the

credibility

of

the

Moreover, rather than undermining
Jetton

Affidavit”

or

rendering

“implausible[ Jetton’s] story” (Docket Entry 168 at 7), the fact
that Jetton may have incorrectly testified that his contacts with
Plaintiffs’ counsel and Hatch occurred only four rather than five
years previously arguably bolsters Jetton’s larger point:

that he

“ha[s] not and will not seek to in any way represent any class”
(Docket Entry 164-1, ¶ 13) and “ha[s] performed no legal work here
for the class” (id., ¶ 16).

After all, a lawyer who “ha[d] been

representing Mr. Hatch since the beginning of this lawsuit” (Docket
Entry 159 at 3) would presumably know the correct duration of such
representation.
In any event, Womble Defendants’ contentions do not undermine
the Affidavit’s main points, namely that (1) Jetton “ha[s] no
engagement agreement written or otherwise with Mr. Brown or Mr.
Hatch regarding this matter” (Docket Entry 164-1, ¶ 9); (2) “no one
has offered or agreed to pay [Jetton] anything and [Jetton] ha[s]
no fee split arrangement with Mr. Hatch or anyone else regarding
the matters” (id., ¶ 11); (3) Jetton “will not seek to receive any
fee from any certified class here” (id., ¶ 12); (4) Jetton “ha[s]
not and will not seek to in any way represent any class here” (id.,

50

¶ 13); (5) Jetton “ha[s] performed no legal work here for the
class” (id., ¶ 16); and (6) “Hatch is a client and friend,” such
that “[w]hen [Hatch] seeks legal advice from [Jetton] on any
matter, [Jetton] consider[s their] communications privileged even
if [he] choose[s] to not take on the matter or to refer [Hatch] to
another attorney” (id., ¶ 14).

This sworn testimony accords with

Hatch’s deposition testimony regarding his “belie[f]” that he had
not “sign[ed] an engagement letter with [Jetton]” or “retain[ed
Jetton] for this class action.”

(Docket Entry 164-2 at 13.)

As

such, Womble Defendants’ contentions regarding hidden counsel with
a close relationship to a putative class representative and an
undisclosed monetary interest in the class action (see, e.g.,
Docket Entry 159 at 2, 4-5, 11-15), lack merit.
Nor do Womble Defendants’ contentions regarding the allegedly
“binary state” of the attorney-client privilege fare any better.
(Docket Entry 168 at 2.)

In Womble Defendants’ view, “[t]he

privilege is a binary state; either Mr. Jetton is counsel to Mr.
Hatch in this matter — and thus the privilege adheres — or Mr.
Jetton is not counsel in this matter, and the communications that
his Affidavit acknowledges and which Mr. Hatch testified to are all
discoverable.”

(Id. (emphasis added).)

Such argument construes

the attorney-client privilege too narrowly.

In evaluating the

applicability of the attorney-client privilege, the Court considers
whether “the asserted holder of the privilege is or sought to

51

become a client,” N.L.R.B., 637 F.3d at 501 (emphasis added)
(internal

quotation

marks

omitted),22

not

whether

an

attorney

actually serves as counsel in a particular matter, see id. at 50102; see also § 5479 Client — “Would-Be Client”, 24 Fed. Prac. &
Proc. Evid. § 5479 (1st ed.) (explaining that, “[t]he temporal
approach to the privileged relationship may have made some sense
when

lawyers

discrete

were

tasks[,

retained

b]ut

it

is

by

individual

very

clients

difficult

to

to

perform

apply

in

the

contemporary world where many lawyers have long-term relations with
a client that are not task-defined”).
Here, the record reflects that the “significant amount of
mailers”

Hatch

received

following

his

accident

“made

[him]

concerned that [he] was going to be sued or [he] needed some kind
of legal counsel” (Docket Entry 164-2 at 6), so he “reached out to
[his] lawyer Jetton” (Docket Entry 134-8 at 21; accord Docket Entry

22

More fully, the Court assesses whether:

(1) the asserted holder of the privilege is or sought to
become a client; (2) the person to whom the communication
was made (a) is a member of the bar of a court, or is his
subordinate and (b) in connection with this communication
is acting as a lawyer; (3) the communication relates to
a fact of which the attorney was informed (a) by his
client (b) without the presence of strangers (c) for the
purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some
legal proceeding, and not (d) for the purpose of
committing a crime or tort; and (4) the privilege has
been (a) claimed and (b) not waived by the client.
Id. at 501-02 (internal quotation marks omitted).
52

164-2 at

5-6).

Jetton

then

facilitated

Hatch’s

referral

to

Plaintiffs’ counsel to discuss potential “representation under the
[DPPA]” (Docket Entry 164-1, ¶ 6).
Entry 164-2 at 10, 15.)

(See id., ¶ 7; accord Docket

Thus, except to the extent that Hatch may

have waived such privilege through his deposition testimony — an
issue that Womble Defendants decline to pursue (see Docket Entries
158 (containing no waiver arguments), 159 (same), 168 (same)) — it
appears that the attorney-client privilege would apply to at least
some

of

the

consultations.

oral

and

written

communications

from

these

See N.L.R.B., 637 F.3d at 501-02.

Jetton averred, however, that “there were no communications
with [Hatch] here other than simply sending him to [Plaintiffs’
counsel.

[Jetton] ha[s] no file of any kind or notes regarding

conversations with Hatch about this.”

(Docket Entry 164-1, ¶ 15.)

He further declared that he has not “consulted with [Plaintiffs’
counsel]

or

anyone

else

regarding

the

substance

of

the

representation beyond [Plaintiffs’ counsel] thanking [Jetton] for
sending Mr. Hatch and telling [Jetton] that Hatch was a great
client.” (Id., ¶ 16.) Accordingly, the Affidavit establishes that
no relevant responsive documents exist to the subpoena.

53

(See

Docket Entry 159-1 at 5.)23 Under the circumstances, the Court will
deny Womble Defendants’ request to compel information from Jetton.
In addition, Defendants’ Motion asks the Court to “compel[]
Mr.

Hatch,

including

his

counsel

of

record,

to

produce

any

engagement letter or retainer agreement with anyone who is his
counsel in this action” (the “Engagement Letter Request”) and to
“compel[]

Mr.

Hatch

to

third-parties,

including

communications

with

Mr.

produce
emails,

Jetton”

any
text

(the

communications
messages,

“Third

(Docket Entry 158 at 5 (emphasis in original).)
matter,

the

unbounded

Third

Party

Request

Party

or

with

written

Request”).

As a preliminary
remains

facially

overbroad and thus beyond the scope of permissible discovery, see
Fed. R. Civ. P. 26(b)(1), and therefore unenforceable, see Fed. R.

23 To the extent that Womble Defendants seek information from
Jetton unrelated to the instant class action (see, e.g., id.
(seeking “[a]ny and all notes of any telephone calls or other nontelephonic conversations with Johnathan Hatch between March 2016
and September 2016”); see also Docket Entry 158 at 5 (asking for
order “compelling third-party Mark Jetton to produce copies of any
communications between him and putative class representative
Johnathan Hatch or putative class counsel, Brown, Faucher, Peraldo,
& Benson, PLLC”)), such information lacks relevance to this action
and thus lies beyond the scope of permissible discovery, see Fed.
R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 26(b)(2)(C) (“On
motion or on its own, the court must limit . . . the extent of
discovery otherwise allowed by these rules . . . if it determines
that . . . the proposed discovery is outside the scope permitted by
Rule 26(b)(1).”).
54

Civ. P. 26(b)(2)(C).

Further, Hatch has disclaimed the existence

of any responsive documents.

(See Docket Entry 159-5 at 20.)24

Similarly, both Hatch and Jetton testified that no engagement
agreement exists between them (see Docket Entry 164-1, ¶ 9; Docket
Entry 164-2 at 13), and Jetton further averred that he “ha[s] no
engagement

agreement

written

or

otherwise

with

[Plaintiffs’

counsel]” (Docket Entry 164-1, ¶ 9) and “no one has offered or
agreed to pay [Jetton] anything and [he] ha[s] no fee split
arrangement

with

Mr.

Hatch

matters” (id., ¶ 11).

or

anyone

else

regarding

the[se]

Accordingly, to the extent that Womble

Defendants limit the Engagement Request to Jetton, the record
indicates that no such document exists.
Defendants

seek

to

engagement

agreement

apply
with

the

To the extent that Womble

Engagement

Plaintiffs’

Request

counsel,

to

the

Hatch’s
Rule

37

Certification in Defendants’ Motion does not clearly reflect that
the necessary pre-filing conferral occurred. (See Docket Entry 158

24 More specifically, in response to a request for “[a]ll
documents and communications exchanged between You and any third
party to this lawsuit regarding claims against the DeMayo Firm for
alleged DPPA violations, as set form in Your Complaint,” Hatch
responded:
Objection . . . . to the extent the Request seeks
documents that are protected from discovery under the
work product doctrine. Without waiving such objections,
other than documents and communications, if any, that may
have been exchanged between Plaintiff’s counsel and third
parties, none.
(Id.)
55

at 7-8 (“[T]he parties[] have met and conferred and the discussions
regarding Mr. Hatch’s written discovery responses (as they relate
to communications with Mr. Jetton and his relationship with Mr.
Jetton) have conclusively ended in an impasse, leaving an open
issue for the Court to resolve.” (emphasis added)).)

As such, the

Court will deny Womble Defendants’ requests to compel responses to
the Engagement Letter Request and Third Party Request.
Lastly, Womble Defendants ask the Court to award them their
costs and attorney’s fees associated with Defendants’ Motion. (See
id. at 5.)

Given the resolution of Defendants’ Motion, such

expense-shifting
37(a)(5)(B).

remains

improper.

See

Fed.

R.

Civ.

P.

Plaintiffs do not request expense-shifting (see

generally Docket Entry 164) and, under the circumstances, the Court
finds that each party should bear its own expenses.

In that

regard, Defendants’ Motion resulted in clarification of Jetton’s
role in this action via his opposing Affidavit.
alone warrants denial of expense-shifting.
37(a)(5)(B)

(precluding

expense-shifting

That circumstance

See Fed. R. Civ. P.
“if

the

motion

was

substantially justified or other circumstances make an award of
expenses unjust”).
CONCLUSION
DeMayo Defendants and Gelshenen Defendants produced responsive
materials after the filing of Plaintiffs’ Motion.
Certification

Opinion

renders

56

disproportionate

The subsequent
any

further

compelled response.

Additionally, Greve Firm failed to serve a

proper

the

response

to

Deposition

Discovery.

Next,

Womble

Defendants have justified their sealing requests, except as to the
information previously, publicly disclosed in this litigation.
Finally, the record does not support a finding that Jetton serves
as “hidden counsel” in this lawsuit, or otherwise warrant compelled
production from Hatch, his counsel, or Jetton regarding such
matters.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Docket Entry
154) is GRANTED IN PART AND DENIED IN PART as follows:

Upon

determination of the reasonable amount of Plaintiffs’ expenses,
including

attorney’s

fees,

incurred

in

litigating

Plaintiffs’

Motion, (1) DeMayo Defendants, (2) Greve Firm, and (3) Gelshenen
Defendants (along with their counsel) shall each bear one-third of
such expenses.
IT IS FURTHER ORDERED that, on or before November 4, 2020,
Plaintiffs shall serve DeMayo Defendants, Greve Firm, Gelshenen
Defendants, and Womble Defendants’ counsel with a statement setting
out

the

reasonable

expenses,

including

attorney’s

fees,

Plaintiffs incurred in litigating Plaintiffs’ Motion.

that

Failure by

Plaintiffs to comply with this Order shall result in denial of any
expense-shifting as to Plaintiffs’ Motion.
IT IS FURTHER ORDERED that, if Plaintiffs timely serve such
notice

setting

forth

their

reasonable
57

expenses

incurred

in

litigating

Plaintiffs’

Motion,

DeMayo

Defendants,

Greve

Firm,

Gelshenen Defendants, and Womble Defendants’ counsel shall file, on
or before November 17, 2020, EITHER a memorandum of no more than
five pages (excluding attachments) contesting the reasonableness of
the

expenses

Defendants,

claimed
Greve

(along

Firm,

with

a

Gelshenen

certificate

that

DeMayo

Defendants,

and

Womble

Defendants’ counsel have conferred in good faith with Plaintiffs
about such matters), OR a notice agreeing to pay the claimed
expenses.

The failure by DeMayo Defendants, Greve Firm, Gelshenen

Defendants, or Womble Defendants’ counsel to comply with this Order
will result in an award of expenses claimed by Plaintiffs.
IT IS FURTHER ORDERED that, if DeMayo Defendants, Greve Firm,
Gelshenen Defendants, and Womble Defendants’ counsel timely file a
memorandum contesting the reasonableness of the claimed expenses,
Plaintiffs shall file, on or before November 24, 2020, a memorandum
of no more than five pages (excluding attachments) responding to
such memorandum.

Failure by Plaintiffs to comply with this Order

will

denial

result

Defendants,

in

Greve

of

Firm,

any

expenses

Gelshenen

contested

Defendants,

by
and

DeMayo
Womble

Defendants’ counsel.
IT IS FURTHER ORDERED that, if Plaintiffs timely file such a
response memorandum,

DeMayo

Defendants,

Greve

Firm,

Gelshenen

Defendants, and Womble Defendants’ counsel may file, on or before

58

December 1, 2020, a reply of no more than three pages (excluding
attachments).
IT IS FURTHER ORDERED that the Sealing Motion (Docket Entry
157) is GRANTED IN PART and DENIED IN PART as follows:

the Sealing

Motion is granted except insofar as it seeks redaction of the
references (1) to “color-coded” in Plaintiffs’ memorandum and
(2) to Greve Firm’s filters in Plaintiffs’ memorandum and the Greve
Firm deposition exhibit.
IT IS FURTHER ORDERED that, on or before November 4, 2020,
Plaintiffs shall file corrected versions of Plaintiffs’ memorandum
(Docket Entry 156) and the Greve Firm deposition exhibit (Docket
Entry 156-5) that remove such redactions.
IT IS FURTHER ORDERED that Defendants’ Motion (Docket Entry
158) is DENIED.
This 21st day of October, 2020.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

59