FLYNN et al v. MANUFACTURERS AND TRADES TRUST COMPANY

Filing 121

MEMORANDUM AND OPINION ORDER. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 10/25/18. 10/25/18 ENTERED AND COPIES E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWARD R. FLYNN, et al
Plaintiffs,

:
:
:
v.
:
:
MANUFACTURERS AND TRADES :
TRUST COMPANY
:
Defendant.
:

CIVIL ACTION

NO. 17-cv-04806-WB

MEMORANDUM
The Plaintiffs filed a Motion to Compel Discovery Responses. Doc. No. 103
(motion); Doc. No. 105 (“Pl. Mem.”). The Defendants responded (Doc. No. 110 (“Def.
Resp.”)) and the Plaintiffs have filed a reply. Doc. No. 111. I have scheduled a hearing on
October 26, 2018. The purpose of this Memorandum is to give the parties my tentative
thoughts concerning the proper disposition of the motion, in an effort to provide them
with guidance to make the hearing productive. I will proceed through the various
discovery requests, outlining my tentative ruling and providing a very short explanation
of my reasoning.
Preliminary Rulings
1)

Generally, Plaintiffs’ requests and interrogatories are clear, directed

toward obviously relevant information, and should be answered. The parties’ main
combat seems to be over whether discovery before class certification should be done by
sampling or class-wide. Many of the subordinate disputes take on their significance as a
result of this issue.
2)

Defendants objections are otherwise non-specific, boiler-plate responses

with very little substance. Particularly when it comes to a showing of disproportionality
or burdensomeness, Defendant’s objections are lacking. The objections are in most
instances overruled. In some instances Defendant contends it has already responded to
interrogatories or demands for production. If it has provided answers or documents,

and has nothing further to add after its objections have been overruled, it will say so
under oath. If it needs to supplement its responses in light of the objections being
overruled, it will do so under oath.
3)

The Defendant’s general objections to interrogatories are overruled.

Objections have to be noted with specificity. Fed. R. Civ. Pro. 33(b)(4); see Covington v.
Sailormen Inc., 274 F.R.D. 692, 693–94 (N.D.Fla. 2011) (“Common sense should have
been enough for Defendant to know that boilerplate, shotgun-style ‘General Objections,’
incorporated without discrimination into every answer, were not consistent with
Fed.R.Civ.P. 33(b)(4)'s directive that ‘[t]he grounds for objecting to an interrogatory
must be stated with specificity.’”). The same holds for requests for production. See Fed.
R. Civ. Pro. 34(b)(2)(B).
4)

An objecting party must “state whether any responsive materials are being

withheld on the basis of that objection.” Fed. R. Civ. Pro. 34(b)(2)(C). In large measure
the Defendant has not complied with this rule. It will do so.
5)

If the Defendant has been notified in writing of purported deficiencies in

its responses to discovery, and its response is that it has nothing, or nothing further to
disclose, it shall respond by affidavit under oath that it has made careful search of
records and information under its control in response to the notice of deficiencies and
has nothing, or nothing further, to disclose. Such an affidavit may be the basis of
precluding evidence submitted by the Defendant at a later stage of the proceeding, if the
discovery request covered the evidence and the evidence was not produced in discovery.
6)

If the Defendant indicates in a discovery response ordered below that all

information responsive to the request or interrogatory has been previously supplied,
Defendant shall make such an assertion under oath and shall supply the bates numbers
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of all responsive documents and refer to the interrogatory answer by number and date
of response.
Sampling Protocol
7)

Plaintiffs want extensive class-wide discovery. Defendant claims undue

burden, and seeks discovery limited to only 150 individuals, which would represent 50
persons in each of the three classes identified in the Amended Complaint, and
approximately 3.8% of the 3,956 people identified by Defendant as the total number of
people who are potential class members. See response to Plaintiffs’ interrogatory 9.
Plaintiffs want complete discovery as to 20% of the potential class members, and classwide discovery as to a number of other issues.
8)

To resolve this impasse, on or before November 9, 2018, the Defendant

shall file under seal separate lists of the names of each potential class member in the
“FORM 1 NOR CLASS,” the “FORM 2 NOR CLASS,” the “NOR ALTERNATIVE CLASS”
and the “POST-SALE NOTICE CLASS.” Defendant shall order the lists by date of
transaction, oldest to most recent. The date of transaction shall appear in a column next
to each name. The parties shall agree on a means of randomly selecting 10% of each
class for sampled discovery. If there is agreement, the parties shall promptly file a
stipulation indicating their agreement and I will enter an order confirming the parties’
protocol.
9)

If the parties cannot agree, on or before November 23, 2018 the parties

shall each file a memorandum of no more than 10 pages, exclusive of exhibits,
explaining why discovery should not proceed by selecting every tenth name, with a
random starting point on each list selected by me. If Defendant claims undue burden,
Defendant shall supply an estimate of the number of documents and pages of records to
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be supplied for a 10% sample group, and explain how Defendant arrived at the figure.
Defendant shall also supply a thorough accounting of the hours spent on the 19,000
pages produced so far (Def. Mem. 16-17) concerning Representative Parties, detailing
the persons who spent time on producing the documents, their job title and function,
the hours spent on production of documents, an explanation of the nature of work done,
the annual salary and hourly salary rate attributable to that person (for attorneys and
paralegals employed by its outside counsel, Defendant need only supply hourly billing
rate), and an itemization of other costs associated with the production. The estimate and
accounting shall be submitted under oath. The purpose of the submission is to provide
me with reliable information on the projected burdensomeness of the sampling
procedure outlined above.
10)

If Defendant contends a smaller sample size will produce statistically

reliable results fairly representative of the complete class, it shall file an affidavit under
oath from a qualified statistician supporting their contention, and providing concrete
suggestions on how to overcome the statistical concerns.
11)

If Plaintiffs contend the sample group is too small, or otherwise will not

produce statistically reliable results fairly representative of the complete class, they shall
file an affidavit under oath from a qualified statistician supporting their contention, and
providing concrete suggestions on how to overcome the statistical concerns. Upon
review of the parties’ submissions I will issue an order fixing the discovery sampling
protocol and addressing the timing of compliance with my particular discovery rulings,
below, ¶¶ 13-15.
12)

There shall be no class wide discovery until further court order. Full class-

wide discovery at this time would be overly burdensome and disproportionate to the
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issues and monetary amounts involved in this case. Sampled discovery should enable
the parties to make reliable extrapolations about what full scale class-wide discovery
would reveal. This should be sufficient to address the legal and factual issues that must
be resolved prior to class certification.
13)

Individual discovery disputes are tentatively resolved below. The discovery

ordered below shall be limited to the sampled class members stipulated by the parties or
chosen by the court. All discovery ordered below is limited to the class period.
14)

Interrogatories
No. 1 (Pl. Mem. 12; Def. Mem. 7). Plaintiff asks for identification of the

persons who were involved in answering the interrogatories. All of Defendant’s
objections are overruled. Defendant shall supply an unequivocal answer under
oath.
No. 2 (Pl. Mem. 13; Def. Mem. 8). Plaintiff asks for an account of the
deficiencies for all class members. All of Defendant’s objections are overruled.
Defendant shall supply an unequivocal answer. If some of the deficiencies have
been discharged in bankruptcy, the Defendant shall note the deficiency is “zero”
and explain that it was discharged in bankruptcy.
No. 3 (Pl. Mem. 3; Def. Mem. 9). Plaintiff asks for auto loan deficiency
actions. All of Defendant’s objections are overruled. Defendant shall supply an
unequivocal answer under oath.
No. 4 (Pl. Mem. 17; Def. Mem. 10). Plaintiff asks for persons having
knowledge of the facts alleged in the Complaint. All of Defendant’s objections are
overruled. Defendant shall supply an unequivocal answer under oath.

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No. 5 (Pl. Mem. 18; Def. Mem. 11). Plaintiff asks for a calculation of
minimum statutory damages. All of Defendant’s objections are overruled.
Defendant shall supply an unequivocal answer under oath, or by following the
procedure outlined in Fed. R. Civ. Pro. 33(d).
No. 6 (Pl. Mem. 19; Def. Mem. 11). Plaintiff asks for an explanation of the
difference in meaning between two phrases appearing on Defendant’s forms. All
of Defendant’s objections are overruled. Defendant shall supply an unequivocal
answer under oath.
No. 7 (Pl. Mem. 20; Def. Mem. 7). Plaintiff asks for the aggregate amount
Defendant actually paid all third parties for storage expenses. All of Defendant’s
objections are overruled. Defendant shall supply an unequivocal answer under
oath.
No. 8 (Pl. Mem. 21; Def. Mem. 12). Plaintiff asks for the aggregate amount
Defendant actually paid for storing vehicles. All of Defendant’s objections are
overruled. Defendant shall supply an unequivocal answer under oath.
No. 9 (Pl. Mem. 22; Def. Mem. 12-13). Plaintiff asks for the total number
of people who comprise the various classes defined in the Complaint. Defendant
has supplied figures, subject to non-specific objections. All of Defendant’s
objections are overruled. If the overruling of the objections means that the
answer has to be supplemented, Defendant shall supplement its answer under
oath.
No. 10 (Pl. Mem. 23; Def. Mem. 10). Plaintiffs ask for the process by
which Defendant answered its interrogatories. The question is unduly vague and

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focuses on the process of answering interrogatories rather than on the substance
of the litigation. The Plaintiffs’ motion as to this interrogatory is DENIED.
No. 11 (Pl. Mem. 24; Def. Mem. 13-14). Plaintiffs ask for specific
information about Gene Daisey’s loan. All of Defendant’s objections are
overruled. Defendant shall supply an unequivocal answer under oath. Defendant
shall also provide the Bates stamp number of each document that it contends
supplies the answer to the interrogatory.
No. 12 (Pl. Mem. 25; Def. Mem. 14). Plaintiffs ask for specific information
regarding a post-sale notice send to Abbott. All of Defendant’s objections are
overruled. Defendant shall supply an unequivocal answer under oath. Defendant
shall also provide the Bates stamp number of each document that it contends
supplies the answer to the interrogatory.
No. 13 (Pl. Mem. 25; Def. Mem. 14). Plaintiffs ask for the criteria
Defendants used to calculate the $200 expense for preparing/repairing the
repossessed vehicle. The fact that the figure was an “estimate,” as Defendant
contends, does not obviate the responsibility to answer the question. If there
were no criteria used, and the figure was selected arbitrarily, Defendant shall so
state. All of Defendant’s objections are overruled. Defendant shall supply an
unequivocal answer under oath.
15)

Requests for Production
Nos. 1-5 (Pl. Mem. 26-28; Def. Mem. 15). Plaintiffs ask for documents

supporting specific charges for storing and repairing repossessed vehicles of the
representative plaintiffs. All of Defendant’s objections are overruled. Defendant
shall supply an unequivocal response under oath with responsive documents.
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No. 6 (Pl. Mem. 29; Def. Mem. 15-16). Plaintiffs seek sample discovery of
all classes. All of Defendant’s objections are overruled. Defendant shall supply an
unequivocal response under oath with responsive documents.
No. 7 (Pl. Mem. 30; Def. Mem. 17). Plaintiffs seek complaints filed against
Defendant regarding its repossession policy, practice and procedure. All of
Defendant’s objections are overruled. Defendant shall supply an unequivocal
response under oath with responsive documents.
No. 8 (Pl. Mem. 31; Def. Mem. 18). Plaintiffs seek exemplars of every
notice of repossession and post-sale notice form sent by Defendant during the
class period. All of Defendant’s objections are overruled. Defendant shall supply
an unequivocal response under oath with responsive documents.
No. 9 (Pl. Mem. 31; Def. Mem. 18). Plaintiffs seek exemplars of each retail
instalment sale contract assigned to Defendant during the class period. All of
Defendant’s objections are overruled. Defendant shall supply an unequivocal
response under oath with responsive documents.
No. 10 (Pl. Mem. 32; Def. Mem. 18). Plaintiffs ask for all documents that
tend to substantiate Defendants interrogatories. Plaintiffs request is DENIED as
phrased because the question is unduly vague. Defendant shall supply all
documents upon which it relied, or which it consulted, in responding to
Interrogatories.
No. 11 (Pl. Mem. 32; Def. Mem. 11). Plaintiffs ask for insurance policies
that may cover Defendant for the claims asserted by Plaintiffs. Defendant
responds that it has already stated in its Rule 26 initial disclosures that it has no

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such insurance. Plaintiff acknowledges that this answer was provided in
Defendant’s initial disclosures. Plaintiffs’ motion is DENIED.
No. 12 (Pl. Mem. 33-38; Def. Mem. 19-22). Plaintiffs ask for all
documents concerning the representative plaintiffs or their repossessed vehicles.
Defendant responds that it has already supplied all such documents. Plaintiff
identifies a number of deficiencies. Defendant has responded to the deficiencies.
Defendant shall supply its answer, provided at pp. 20-22, as a supplemental
response, under oath. In addition, the objections identified at Def. Mem. 20-22,
(iii), (iv), (v), (x), (xi) and (xii) are overruled. These deficiencies seem reasonably
clear, and are drawn from language in documents already produced by
Defendant.
No. 13 (Pl. Mem. 38; Def. Mem. 22). Plaintiffs seek documents that
concern Defendant’s repossession policies, procedures and practices. All of
Defendant’s objections are overruled. Defendant shall supply an unequivocal
response under oath with responsive documents.
No. 14 (Pl. Mem. 39; Def. Mem. 23). Plaintiffs seek Defendant’s contracts’
with third party vendors concerning repossession. All of Defendant’s objections
are overruled. Defendant shall supply an unequivocal response under oath with
responsive documents.
No. 15 (Pl. Mem. 39; Def. Mem. 23). Plaintiffs demand an organizational
chart. All of Defendant’s objections are overruled. Defendant shall supply an
unequivocal response under oath with responsive documents.

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16)

Privilege Log (Pl. Mem. 41; Def. Mem. 24). I will resolve privilege log

issues after examining the most recent privilege log in court, hearing argument from
counsel, and if necessary, examining documents subject to a privilege claim in camera.
17)

Sanctions (Pl. Mem. 44-50; Def. Mem. 29-30). I will deny the sanctions

motion without prejudice to its being renewed once the discovery outlined in this
Memorandum has been undertaken.
BY THE COURT:
s/Richard A. Lloret
RICHARD A. LLORET
U.S. Magistrate Judge

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