Brown et al v. Lowe's Companies, Inc. et al

Filing 167

ORDER granting in part and denying in part 147 Motion to Compel; dft shall organize and label discovery responses to correspond to the categories in the request; dft shall provide its responses within 30 days of this Order; denying 165 Motion for Leave to File a Single Sur-Reply in Opposition to Plfs' Motion to Compel and Motion to Strike Privilege Log. Signed by Magistrate Judge David S. Cayer on 10/13/2016. (Pro se litigant served by US Mail.)(cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:13-CV-00079-RLV-DSC
JASON DAVID BROWN, et al.,
Plaintiffs,
v.
LOWE'S COMPANIES, INC. AND
FIRST ADVANTAGE BACKGROUND
CORP.,
Defendants.

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MEMORANDUM AND ORDER

THIS MATTER is before the Court on “Plaintiffs’ Motion to Compel Discovery
Responses” (document # 147) filed July 22, 2016 and the parties’ briefs and exhibits (documents
##148, 149, 159 and 161). On September 9, 2016, Defendant First Advantage filed a “Motion for
Leave to File a Single Sur-Reply Brief in Opposition to Plaintiffs’ Motion to Compel and Motion
to Strike Privilege Log” (document #165) and Plaintiffs’ filed a brief in opposition (document
#166). Plaintiffs seek an order from the Court compelling Defendant to provide substantive
responses to their written discovery requests. This Motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1), and is now ripe for the Court’s consideration.
The Court has carefully reviewed the parties’ arguments, authorities and the record and
finds that Plaintiffs’ Motion to Compel should be granted in part and denied in part, as discussed
below. The Court denies Defendant’s Motion for Leave to File a Single Sur-Reply.

Federal Rule of Civil Procedure 34 governs production of documents and electronically
stored information. In pertinent part, the Rule provides:
(E) Producing the Documents or Electronically Stored Information. Unless
otherwise stipulated or ordered by the court, these procedures apply to producing
documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of
business or must organize and label them to correspond to the categories in the
request.
(ii) If a request does not specify a form for producing electronically stored
information, a party must produce it in a form or forms in which it is ordinarily
maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in
more than one form.
Fed. R. Civ. P. 34(b)(2)(E). For the reasons stated in Plaintiffs’ briefs, the Court concludes that
Defendant’s discovery responses should be organized and labeled to correspond to the categories
in the request.
The Court also finds that Phase I discovery only covers the individual Plaintiffs’ claims
and the threshold requirements for class certification. Other matters, such as details about First
Advantage’s actions regarding individual putative class members and evidence relevant to
willfulness, are reserved until after the Court rules on motions for class certification and summary
judgment. Therefore, the Court finds that Plaintiffs have exceeded the scope of discovery for
Phase I.
Specifically, the Court denies Plaintiffs request to “compel First Advantage to turn over its
entire National Criminal File Database.” (document #148 at p. 22). The Court finds that Plaintiffs
demand for each and every 613 letter exceeds the scope of Phase 1 discovery and denies Plaintiffs’
request. Plaintiffs’ request for First Advantage’s FCRA procedures, policies, training and overall
compliance also exceeds the scope of Phase I discovery and is denied.

For the reasons stated in Defendant’s response, the Court denies Plaintiffs’ Motion to
Compel the following Interrogatories: 3, 5, 6, 13, 16, 17 and 19.
For the reasons stated in the Defendant’s response, the Court denies Plaintiffs’ Motion to
Compel the following Requests for Production: 17, 24, 47-48, 49, 66, 75-77.
THEREFORE IT IS ORDERED that:
1. “Plaintiffs’ Motion to Compel” (document # 147) is GRANTED IN PART and
DENIED IN PART as stated above. Defendant shall organize and label discovery
responses to correspond to the categories in the request. Defendant shall provide its
responses within thirty days of this Order.
2. “Defendant’s Motion for Leave to File a Single Sur-Reply Brief in Opposition to
Plaintiffs’ Motion to Compel and Motion to Strike Privilege Log” (document #165) is
DENIED.
3. The Clerk is directed to send copies of this Order to counsel for the parties, including
but not limited to moving counsel; and to the Honorable Richard L. Voorhees.
SO ORDERED.
Signed: October 13, 2016