Gaston et al v. LexisNexis Risk Solutions, Inc. et al
Filing
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ORDER granting 72 Plaintiffs' Motion to Compel Discovery Responses. Defendant shall provide on or before 1/13/2020. Plaintiffs' counsel may file motion seeking reasonable expenses and attorney's fees by 1/24/2020 if not resolved in good faith. The case deadlines are revised to Discovery due 3/13/2020. Mediation Report due 3/27/2020. Motions due 4/10/2020. Trial set for 9/21/2020. Signed by Magistrate Judge David Keesler on 12/20/2019. (tmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-009-KDB-DCK
DELORIS GASTON, and
LEONARD GASTON,
Plaintiffs,
v.
LEXISNEXIS RISK SOLUTIONS, INC., and
POLICEREPORTS.US, LLC,
Defendants.
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ORDER
THIS MATTER IS BEFORE THE COURT on “Plaintiffs’ Motion To Compel
Discovery Responses” (Document No. 72). This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully
considered the motion and the record, the undersigned will grant the motion.
BACKGROUND
Deloris Gaston and Leonard Gaston (“Plaintiffs”) initiated this lawsuit with the filing of a
“Class Action Complaint” (Document No. 1) on January 12, 2016. Plaintiffs then filed a “Class
Action Amended Complaint” (Document No. 21) (the “Complaint”) on May 12, 2016. The
Complaint asserts a cause of action against LexisNexis Risk Solutions, Inc. (“LexisNexis”) and
PoliceReports.US, LLC (“PoliceReports” or “PRUS”) (together, “Defendants”) for violation of
the Driver’s Privacy Protection Act, 18 U.S.C. § 2721 et seq. ( the “DPPA”). (Document No. 21).
Plaintiffs allege that Defendants obtained Putative Class Representatives’ and Class
Members’ Personal Information from Motor Vehicle Records (“MVRs”) maintained by the State
Motor Vehicle Department (hereinafter globally referred to as “Personal Information”), for
purposes that violate the DPPA including:
processing, re-disclosing, reselling personal
information. (Document No. 21, p. 2).
Defendants acted independently, and in concert, and each
knowingly authorized, directed, ratified, approved, acquiesced, or
participated, in conduct made the basis of this class action.
Defendants obtained Putative Class Representatives’ and Class
Members’ MVRs to use, process, store, re-disclose, and resell
Putative Class Representatives’ and Class Members’ Personal
Information, in an enterprise affecting interstate commerce,
including as a Direct Market Provider of MVRs, to market and
solicit, directly or indirectly, Putative Class Representatives’ and
Class Members’ Personal Identifying Information, without their
express consent. Defendants accomplished such activity covertly,
without actual notice or express consent, and which information
Defendants obtained deceptively, for purposes which included
Defendants’ commercial gain.
(Document No. 21, p. 3).
On June 7, 2016, Defendants filed a “…Motion To Dismiss Plaintiffs’ Class Action
Amended Complaint” (Document No. 25) pursuant to Fed.R.Civ.P. 12(b)(6). The Honorable Max
O. Cogburn, Jr. summarily denied Defendants’ motion to dismiss on September 13, 2017.
Defendants then filed a “…Motion For Certification Of An Interlocutory Appeal Pursuant to 28
U.S.C. § 1292(b)” (Document No. 36) on October 11, 2017.
Judge Cogburn denied Defendants’ motion for an interlocutory appeal on November 13,
2017, stating that “it was clear that plaintiffs had stated a cognizable cause of action.” (Document
No. 42, p. 3). Judge Cogburn further opined:
Applying a modicum of common sense to what is a clearly
written statute, being involved in a fender bender on the way to work
is clearly an insufficient reason to expose protected “personal
information” (especially a person’s name and home address) to a
web audience increasingly inhabited more by identity thieves than
boy scouts. Rather than certify what would most likely be a futile
and expensive interlocutory appeal, the Court will allow defendants
to revisit the legal issue at summary judgment, but only after the
close of discovery.
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(Document No. 42, p. 6) (citing Hatch v. Demayo, 2017 WL 4357447, at *7-8 (M.D.N.C. Sept.
29, 2017); Senne v. Village of Palatine, Ill., 695 F.3d 597 (7th Cir. 2012); Pichler v. UNITE, 542
F.3d 380, 391 (3d Cir. 2008); Pavone v. Meyerkord & Meyerkord, LLC, 118 F.Supp.3d 1046,
1050 (N.D. Ill. 2015); St. Clair v. Capital One Bank (USA), N.A., 2013 WL 1110810, at *5 (D.
Minn. Jan. 22, 2013); and Camara v. Metro-N. R. Co., 596 F.Supp.2d 517, 525 (D. Conn. 2009)).
The Court issued a “Pretrial Order And Case Management Plan” (Document No. 48) on
March 6, 2018. The “…Case Management Plan” included the following deadlines: discovery
completion – October 1, 2019; mediation report – October 15, 2019; dispositive motions –
November 1, 2019, and a trial ready date – February 17, 2020. (Document No. 48).
This case was reassigned to the Honorable Kenneth D. Bell on June 14, 2019.
Plaintiffs’ first “…Motion To Compel Discovery Responses And Sanctions and Extend
Discovery By 90 Days” (Document No. 57) was filed August 22, 2019. On September 18, 2019,
at Plaintiffs’ request, the undersigned held a telephone conference to discuss the pending discovery
dispute(s) raised in Plaintiffs’ motion, as well as “Keith Clinic Estramonte Chiropractic, P.A.’s
Motion To Quash….” See (Document Nos. 58, 61, 64). At the conclusion of that telephone
conference, the undersigned directed counsel for both sides to further confer in an attempt to
resolve their disputes, and encouraged Plaintiffs’ counsel to narrow the discovery requests while
advising Defendants’ counsel that they were going to have to respond more fully to Plaintiffs’
discovery requests.
“Keith Clinic Estramonte Chiropractic, P.A.’s Motion To Quash….” was withdrawn on
October 1, 2019. (Document No. 68). In addition, Plaintiffs’ counsel provided email updates to
the undersigned’s staff indicating that the issues in their pending motion to compel were being
substantially narrowed or resolved. Specifically, on October 18, 2019, Plaintiffs’ counsel emailed
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the undersigned’s law clerk, stating: “We believe we are making progress and would like to update
the court again next week. I expect that if the dispute is not resolved, the issues will be narrowed
substantially.”
Plaintiffs’ counsel failed to provide an update the next week, or the week after, and on
November 4, 2019, the Court denied the motion to compel, without prejudice. (Document No.
69). On November 7, 2019, Plaintiffs asked the Court to reconsider its denial of the motion to
compel and to issue a new order compelling Defendants to respond fully and completely to all of
Plaintiff’s First and Second Set of Interrogatories and Requests for Production and to comply with
a 30(b)(6) notice of deposition. (Document No. 70, 70-1). Contrary to the parties’ purported
progress resolving their disputes, counsel have not only failed to resolve or narrow the issues, but
have now expanded their dispute to include all of Plaintiffs’ discovery requests. (Document No.
72).
Plaintiffs argue that they only discovered on or about November 1, 2019, that Defendants
had repeatedly provided improper/incomplete responses to Interrogatory No. 1 by identifying four
(4) entities that purchased the Gaston accident report as an individual report, and not identifying
many other entities that purchased the report as “monthly subscription users” or “monthly
subscription holders.”
(Document No. 70-1).
Plaintiffs contend that by withholding this
information, Defendants misled Plaintiffs and delayed discovery for months. Id. Plaintiffs further
argue that they
need documents from the Defendant that show all the entities that
received the Gastons’, and other class members, accident reports.
Plaintiffs need records of the Defendants’ payments to the law
enforcement agencies to confirm that Plaintiffs have received
records of all the disclosed accident reports, and to measure the
amount that Defendants profited from this activity.
(Document No. 70-1, p. 12).
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The undersigned denied the “Motion For Reconsideration Of Order On Motion To
Compel” (Document No 70), but allowed Plaintiffs an extension of time to file a new motion –
following a final attempt by counsel to resolve their discovery disputes. (Document No. 71).
Now pending is “Plaintiffs’ Motion To Compel Discovery Responses” (Document No. 72)
filed on November 15, 2019. This motion has been fully briefed and is ripe for review and
disposition. See (Document Nos. 75, 76, and 77).
STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties 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, considering the importance of
the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
(1947). However, a court may “issue an order to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s broad
discretion. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th
Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s substantial
discretion in resolving motions to compel); and LaRouche v. National Broadcasting Co., 780 F.2d
1134, 1139 (4th Cir. 1986) (same).
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If the motion is granted--or if the disclosure or requested discovery
is provided after the motion was filed--the court must, after giving
an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.
Fed.R.Civ.P. 37(a)(5)(A) (emphasis added).
DISCUSSION
By the instant motion, Plaintiffs request that the Court compel Defendants to: “respond
completely with respect to Plaintiffs’ First Set of Interrogatories dated October 11, 2018, Plaintiffs’
Second Set of Interrogatories and Requests for Production of Documents served on May 3, 2019,
and Plaintiffs’ Notices of Depositions.” (Document No. 72). Plaintiffs contend that “[d]espite
months of meet and confers between the parties,” Defendants “still refuse to answer significant
parts of Plaintiffs’” discovery requests. Id. In summary, Plaintiffs argue that
To prove their case, Plaintiffs need records from the Defendants
as to which persons or entities had access to the class members
personal information that was contained in accident reports and the
number of times that their protected data was disclosed to these third
parties. To prove that protected data was disclosed, Plaintiff[s] need
the accident reports that were disclosed for all the putative class
members. This information would prove the disclosure prong of the
statute. 18 U.S.C. § 2724. Further, 18 U.S.C. § 2721(c) provides
that an authorized recipient of personal information may resell or
redisclose this personal information only for a permitted use under
18 U.S.C. § 2721(b), and that these resellers of personal information
“must keep for a period of 5 years records identifying each person
or entity that receives information and the permitted purpose for
which the information will be used.” Therefore, Plaintiffs need the
records identifying the person or entities that received the accident
reports and the permitted purpose that the person or entities had for
obtaining the information. If such information does not exist,
Defendants need to say so.
(Document No. 72-1, p. 4).
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In opposition, Defendants describe Plaintiffs’ demand as a “last-attempt to engage in a
fishing expedition in hopes of saving their putative class action.” (Document No. 75, p. 1).
Defendants contend that discovery to date has “confirmed Plaintiffs have no factual or legal
support for the allegations in their Amended Complaint.” Id.
Based on the briefing and the September telephone conference with the Court, it appears
to be Defendants’ view – despite Judge Cogburn’s Orders to the contrary – that Plaintiffs’ case is
without merit, and therefore, Defendants are not required to fully participate in discovery. See
(Documents No. 25, 42 and 75); see also (Document No. 72-9). After declining to provide
evidence through the discovery process, Defendants reach the self-serving conclusion that
“discovery has confirmed that Plaintiffs have no evidence to support [their] allegations.”
(Document No. 75, p. 2) (emphasis added); See also Id. at 7 (“Plaintiffs have no admissible
evidence to meet their burden….”); and Id. at 14 and 15.
Defendants argue that Plaintiffs seek discovery that is overly broad and disproportionate
and contend they have “acted in good faith and proposed a reasonable compromise to Plaintiffs,
which the Court should accept.” (Document No. 75, p. 17). Defendants assert that the motion to
compel should be denied, or in the alternative, the Court should limit the scope of discovery based
on Defendants’ proposals. (Document No. 71, p. 19).
In reply, Plaintiffs note that Defendants have stated via letter that they would not be
providing any documents or answer to Plaintiffs’ Second Set of Interrogatories and Requests for
Production. (Document No. 77, p. 2) (citing Document No. 72-9). Plaintiffs contend that
Defendants want “to stall, prevent discovery in the case, and run out the discovery clock.”
(Document No. 77, p. 3).
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Plaintiffs go on to explain that they just recently were informed for the first time of new
details about how monthly subscription customers viewed or downloaded accident reports.
(Document No. 77, p. 6). Plaintiffs assert that Defendants have not kept records related to these
subscription customers as required by the DPPA, but that if Defendants respond appropriately to
discovery requests, “Plaintiffs can seek more testimony and evidence from third parties such as
Digital Solutions.” Id. See also (Document No. 77-3). Plaintiffs identify Digital Solutions as a
monthly subscription customer that Defendants only recently acknowledged. Id. Plaintiffs suggest
there are additional monthly subscription customers who likely have relevant information.
Plaintiffs conclude that Defendants should be compelled to “fully answer all Interrogatories
and produce documents pursuant to all Requests for Production.” (Document No. 77, p. 15).
It is unfortunate that capable counsel on both sides of this lawsuit have failed to at least
narrow the issues in this discovery dispute, even after multiple conversations and correspondence
with each other and a telephone conference with the Court. After careful consideration of the
record and the parties’ briefs and attachments, as well as arguments during the Court’s telephone
conference, the undersigned finds that the motion to compel should be granted. As noted above,
the rules of discovery are to be accorded broad and liberal construction, and the undersigned finds
that much of the information sought by Plaintiffs is proportional to the needs of this case, and thus
discoverable. The admissibility of that information will be a decision for another day.
Defendants shall provide full responses or amend/supplement their responses to Plaintiffs’
discovery requests as follows:
Plaintiffs’ First Set of Interrogatories
No. 1 – Defendants shall supplement response to include requested identification
information for all monthly subscription users/subscribers who could have accessed
any of the Gastons’ accident reports.
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No. 2 – Defendants shall supplement response.
No. 3 - Defendants shall provide supplemental response confirming position.
No. 4 - Defendants shall provide supplemental response confirming position.
No. 5 - Defendants shall provide the total number of accident reports the CharlotteMecklenburg Police Department (“CMPD”) transmitted to PoliceReports.US
(“PRUS”) from January 1, 2012 to present.
No. 6 - Defendants shall supplement response, to the extent the information is not
already provided in their supplement to No. 1.
No. 9 - Defendants shall supplement response.
No. 10 - Defendants shall supplement response with organizational charts with
employees names and positions – as offered by Defendants.
Plaintiffs’ Second Set of Interrogatories
No. 15 - The undersigned finds this request to be overly broad; however,
Defendants shall amend/supplement response to identify persons “who have
knowledge of the policies, practices and procedures you employed concerning the
manner of assessing whether or not your customers or users of your accident data
were ‘permitted users’ as defined by 18 U.S.C. 2721, et. seq.” To the extent
Defendants contend responsive information is privileged, they shall provide a
privilege log.
No. 16 - Further supplementation not required.
No. 17 - Defendants shall amend/supplement response to identify “all policies,
practices or procedures the Defendants used, at any time during the relevant time
period, to assess whether or not your customers or users of your accident data were
‘permitted users’ as defined by 18 U.S.C. 2721, et. seq. Your response to this
request should include a description of any proposed or implemented changes to
that policy, practice, or procedures used during that time frame.
Plaintiffs’ Second Set of Requests for Production of Documents
No. 2 - The undersigned finds this request to be overly broad;
supplementation not required.
further
No. 4 - Defendants shall supplement response to the extent necessary to provide
requested documents as to the Gastons.
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No. 5 - Defendants shall produce responsive documents from the relevant time
period.
No. 6 - Defendants shall produce responsive documents from the relevant time
period.
No. 7 - Defendants shall produce documents as they have indicated they will. See
(Document No. 76, p. 14).
No. 8 - Defendants shall produce documents as they have indicated they will. See
(Document No. 76, p. 14).
No. 9 - Defendants shall produce responsive, non-privileged documents from the
relevant time period, including: all correspondence of any kind between
Defendants and a third-party or customer regarding permissive use as defined by
18 U.S.C. 2721, et. seq, or any other statute, including all correspondence between
CMPD and Defendants.
No. 10 - Defendants shall produce responsive documents from the relevant time
period.
No. 11 - Defendants shall produce responsive documents from the relevant time
period.
No. 12 - Defendants shall produce responsive documents from the relevant time
period.
No. 14 - Defendants shall produce responsive, non-privileged documents from the
relevant time period.
No. 15 - Defendants shall produce responsive, non-privileged documents from the
relevant time period.
No. 17 - No further response required.
No. 18 - Defendants shall respond to the extent there are commercial agreements
for the purchase or sale of accident reports between Defendants and third parties,
that Defendants have not already produced. The Court declines to compel all
related documents and ESI.
No. 19 - Defendants shall produce copies of all contracts between Defendants and
CMPD and all law enforcement agencies in New York. The Court declines to
compel all related documents and ESI.
No. 20 - Defendants shall produce responsive documents including correspondence
with CMPD and law enforcement agencies in New York regarding the DPPA.
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No. 21 - Defendants shall produce documents showing sales and revenue from
the sale of accident reports from CMPD and law enforcement agencies in New
York.
No. 22 - Defendants shall provide responsive documents, including organizational
charts for both Defendants, as requested.
No. 27 - It appears this request is currently “off the table.” No further action
required at this time.
No. 28 - Defendants shall supplement response as proposed. See (Document No.
76, p. 18).
No. 29 - No production required at this time.
No. 30 - No production required at this time.
No. 31 - No production required at this time.
To the extent necessary, the parties shall work together to clarify search terms and
appropriately deal with confidential and/or privileged documents consistent with the Rules and the
“Joint Stipulated Protective Order…” (Document No. 57) in a good faith effort to provide
responses consistent with the directions stated above. Defendants shall also make representatives
available for Rule 30(b)(6) depositions.
Pursuant to Fed.R.Civ.P. 37(a)(5)(A), Defendants shall pay Plaintiffs’ reasonable
expenses, including attorneys’ fees, associated with preparing and filing Document Nos. 72 and
77.
IT IS, THEREFORE, ORDERED that “Plaintiffs’ Motion To Compel Discovery
Responses” (Document No. 72) is GRANTED. Defendants shall provide full and complete
discovery responses as directed herein, on or before January 13, 2020.
IT IS FURTHER ORDERED that Defendants’ counsel shall confer with Plaintiffs’
counsel by telephone or in person, on or before January 20, 2020, in a good faith attempt to
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arrange Defendants’ payment of reasonable expenses and attorney’s fees as directed herein. If
counsel for the parties are unable to resolve the issue of expenses and fees without further Court
intervention, Plaintiffs’ counsel may file a motion with appropriate supporting documentation that
seeks such relief on or before January 24, 2020.
IT IS FURTHER ORDERED that the case deadlines are revised as follows: discovery
completion – March 13, 2020; mediation report – March 27, 2020; dispositive motions – April
10, 2020; trial – September 21, 2020.
SO ORDERED.
Signed: December 20, 2019
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