SMITH v. NAVIENT SOLUTIONS, LLC
Filing
46
MEMORANDUM OPINION AND ORDER granting in part and denying in part 36 Motion for Protective Order; granting in part and denying in part 39 Motion to Compel. It is further Ordered that the period to conduct discovery is extended. The parties are to complete fact discovery by 2/8/2019. The parties shall complete expert discovery by 3/1/2019. The parties shall file dispositive motions by 3/21/2019. The Post-Discovery Status Conference previously scheduled for 12/7/2018 is hereby cancelled. The Court will hold a Post-Discovery Status Conference on 2/27/2019, at 11:00 a.m., and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 11/8/2018. (dlg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
GREGORY J. SMITH,
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)
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Plaintiff,
CIVIL ACTION NO. 3:17-191
JUDGE KIM R. GIBSON
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V.
NA VIENT SOLUTIONS, LLC,
Defendant.
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MEMORANDUM OPINION
Before the Court is Defendant Navient Solutions, LLC's Motion for Protective Order
(ECF No. 36) and Plaintiff Gregory J. Smith's Motion to Compel Discovery (ECF No. 39). These
motions are fully briefed (see ECF Nos. 36, 40, 42) and are ripe for disposition. The Court held
oral argument on this discovery dispute on November 1, 2018. (See ECF No. 45.) Because the
Motions involve the same issues, the Court will rule on them together. For the reasons that
follow, the Court will GRANT the Motions in part and DENY them in part.
I.
Background
This case arises from a dispute between Smith and Navient regarding Navient's
telephone communications with Smith. (See ECF No. 1.) Smith alleges (1) that Navient violated
the Telephone Consumer Protection Act (TCP A) by calling Smith after Smith revoked consent
to be called, and (2) that Navient tortiously invaded Smith's privacy and seclusion by calling
Smith after Smith revoked consent. (Id.<[<[ 1-2.)
The instant discovery dispute involves three separate issues. First, Navient objects to
Smith's request to take the Rule 30(6)(6) deposition of a Navient corporate designee. (ECF No.
36 at 4-8; ECF No. 40 at 9-11.) Navient argues that in a prior TCPA-based lawsuit against
Navient involving the same plaintiff's counsel, Smith's counsel and Navient's counsel agreed
that the deposition testimony of Navient's 30(6)(6) corporate designee could be reused in future
cases to avoid duplicative discovery. (ECF No. 36 at 6.) Smith disagrees, arguing that the
agreement between counsel in a prior case has no binding effect on this case. (ECF No. 40 at 9.)
Second, Navient objects to Smith's request for production of certain documents,
including (1) documents about Navient's transitioning from a Noble phone system to an ININ
phone system and (2) documents about Navient's efforts to ensure that its call systems comply
with the TCPA. (ECF No. 36 at 6-7; ECF No. 40 at 7-9.) Smith argues that the requested
documents may help prove that Navient willfully or knowingly violated the TCPA, which
would entitle Smith to enhanced damages. (ECF No. 40 at 8.)
And third, Navient objects to Smith's request to depose two Navient employees who
called Smith. (ECF No. 36 at 9; ECF No. 40 at 10-12.) Smith argues that these requests are
proper because the deponents have firsthand knowledge as to whether Smith revoked consent
to be called by Navient. (ECF No. 40 at 11-12.) Smith also seeks testimony from these witnesses
on the training they received. (Id.) Navient argues that these deposition requests are improper
because Navient already produced recordings of the calls to Smith and because the employees
are unlikely remember the calls they made to Smith among the thousands of calls they made to
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other consumers. (ECF No. 36 at 9.) Further, Navient argues that its 30(b)(6) designee can
testify to employee training. (Id.)
II.
Jurisdiction and Venue
The Court has jurisdiction under 28 U.S.C. § 1331. Venue is proper under 28 U.S.C.
§ 1391 because a substantial part of the events giving rise to this case took place in the Western
District of Pennsylvania.
III.
Legal Standard
Federal Rule of Civil Procedure 26 provides the general framework for discovery in
federal civil litigation.
Rule 26(b )(1) defines the scope of discovery as "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)(l). A matter is relevant if "it has any tendency to make a fact more
or less probable than it would be without the evidence; and ... the fact is of consequence in
determining the action."
See Fed. R. Evid. 401.
In determining whether discovery is
proportional to the needs of the case, courts must consider "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." Fed. R. Civ. P.
26(b )(1).
Rule 37 provides the mechanism to compel discovery from a person or party who
refuses to provide discovery. The party moving to compel discovery under Rule 37 bears the
initial burden of proving the relevance of the material requested. See Morrison v. Phila. Haus.
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Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001) (citations omitted). If the movant meets this initial
burden, then the burden shifts to the party resisting discovery to establish that discovery of the
material requested is inappropriate. Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D.
Pa. 1996) (citation omitted). The party resisting discovery must explain with specificity why
discovery is inappropriate; the boilerplate litany that the discovery sought is overly broad,
burdensome, oppressive, vague, or irrelevant is insufficient. See Josephs v. Harris Corp., 677 F.2d
985, 991-92 (3d Cir. 1982).
Rule 26(c) authorizes a person or party resisting discovery to move for a protective
order. If the movant establishes good cause for such an order, then the court may impose
restrictions on the extent and manner of discovery "to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(l).
"Good cause is established on a showing that disclosure will work a clearly defined and serious
injury to the party seeking closure." Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.
1984) (citation omitted). This injury, too, must be shown with specificity; "[b]road allegations of
harm, unsubstantiated by specific examples or articulated reasoning," do not establish good
cause.
Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986) (citation omitted).
Additionally, Rule 26(b)(2)(C) provides that-on motion or its own initiative-the court must
limit the extent of discovery if it determines that "the discovery sought is unreasonably
cumulative or duplicative or can be obtained from some other source that is more convenient,
less burdensome, or less expensive," or that "the proposed discovery is outside the scope
permitted by Rule 26(b)(l)." Fed. R. Civ. P. 26(b)(2)(B).
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IV.
Discussion
A.
Smith is Entitled to Depose Navient's 30(b)(6) Designee; However, Some
Topics are Irrelevant and Therefore Impermissible, the Scope of Other Topics
Must be Narrowed, and Smith is not Entitled to a List of All Calls that
N avient Placed to Consumers
Smith's 30(b)(6) deposition notice (see ECF No. 36-1 at 3-8) seeks testimony on a wide
range of issues related to Navient's internal processes for calling consumers and retaining
consumer information. While many topics in Smith's 30(b)(6) deposition notice properly seek
relevant information, several topics are overly broad or seek irrelevant information.
Accordingly, the Court will eliminate some topics on Smith's 30(b)(6) deposition notice and
limit the scope of others.
1.
The Prior Agreement Between Smith's Counsel and Navient's Counsel
to Reuse 30(b)(6) Deposition Testimony is not Binding in this Case
As an initial matter, the Court is not persuaded by Navient's argument that Smith's
counsel is bound by a prior agreement between Navient's counsel and Smith's counsel to reuse
the 30(6)(6) deposition testimony of a Navient corporate designee in future cases. Despite
Navient's argument that this agreement is binding on future cases, the Court does not interpret
the agreement that way. When discussing this agreement during a deposition in another case,
Smith's counsel (who acted as counsel for the plaintiff in the other prior case) stated that, "if
appropriate, after reasonable consideration, we may be able to use that technical deposition [of
a Navient designee] in other Navient cases in which the same equipment is at play. That would
be subject to future conversation." (ECF No. 36-3 at 3.) Navient's counsel then stated that
Smith's counsel's remark "accurately reflects our discussion and agreement."
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(Id. at 4.)
Therefore, it does not appear that the parties intended for this agreement to be binding in future
cases.
Moreover, Smith has a right to depose Navient's corporate designee even though the
30(b)(6) deposition in this case may overlap with topics covered in 30(b)(6) depositions in prior
cases where Navient was a party. See Nippo Corp.llnt'l Bridge Corp v. AMEC Earth & Environ.,
Inc., No. 09-cv-0956, 2009 WL 4798150, at *4 (E.D. Pa. Dec. 11, 2009) ("Plaintiff's argument that
the 30(b)(6) deposition will elicit duplicative information also does not provide grounds for a
protective order. The Court finds that the mere possibility of repetitious testimony is not by
itself sufficient to justify a protective order barring the taking of depositions.").
2.
The Court Finds that Certain Topics in Smith's 30(b)(6) Deposition
Notice Seek Irrelevant Information or are Overly Broad
While the Court finds that Smith is generally entitled to depose Navient's 30(b)(6)
corporate designee, several topics listed on Smith's 30(b)(6) deposition notice are impermissible
because they seek irrelevant information or are overly broad. Accordingly, the Court will limit
the scope of certain topics and excuse Navient from producing testimony on others.
a.
Topics 4, 10, 18, 19, and 20 Seek Irrelevant Information and
Navient is Not Required to Produce Testimony on These Topics
Topics 4, 10, 18, 19, and 20 in Smith's 30(b)(6) deposition notice seek irrelevant
information about Navient's internal systems and processes.
For example, topic 4 seeks
information on the "[u]se of third parties to collect [debt] for or on behalf of Navient." (ECF No.
36-1 at 4.) This lawsuit, however, does not involve third-party debt collectors.
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Similarly, topic 19 seeks information on the "[m]ethods by which the dialing system
manages call congestion." (Id. at 7.) But this case only involves calls that Navient made to
Smith-congestion on Navient's call system has nothing to do with this case.
Topics 10, 18, and 20 likewise seek information about Navient's internal systems and
processes. (See id. at 5-7.) The Court finds that these topics are wholly irrelevant to Smith's
claims in this case. Accordingly, the Court will not permit Smith to question a Navient designee
on these topics in a 30(6)(6) deposition. Thus, the Court will GRANT Navient's Motion for
Protective Order with respect to topics 4, 10, 18, 19, and 20 in Smith's 30(6)(6) deposition notice.
b.
Topics 5, 7, 8, 9, 14, 21, and 22 are Overly Broad and Navient is
Only Required to Respond to the Extent that the Requests Seek
Information About Calls Made to Smith
Topics 5, 7, 8, 9, 14, 21, and 22 in Smith's 30(6)(6) deposition notice are overly broad.
Each of these topics seeks testimony on Navient's internal processes. These processes, however,
are only relevant in this lawsuit to the extent they relate to calls that Navient made to Smith.
For example, topic 7 seeks information on "[m]ethods by which obtained telephone
numbers are stored and used." (Id. at 5.)
It is possible, yet unlikely, that Navient's storage and
use of Smith's number could lead to the discovery of relevant information. But Smith has not
demonstrated why he needs broad information on Navient's systems for storing and using all
phone numbers. Moreover, discovery on the general methods that Navient uses to store phone
numbers is not proportional to the needs of this case. Thus, Navient need only respond to these
requests to the extent they seek information about the calls Navient made to Smith.
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Similarly, topic 14 seeks information on "[Navient's] policies, procedures, and practices
regarding electronic data retention." (Id. at 6.) This request is unduly broad-it requests all
information regarding Navient's electronic data retention systems. The request does not show
how these processes and systems relate to Smith's claims. 1 Moreover, a 30(6)(6) deposition on
Navient's electronic data retention systems is likely to be highly technical and time consuming,
which is not proportional to the needs of this case.
The Court finds that these topics are overly broad and unlikely to yield information
relevant to Smith's claims in this case. Accordingly, the Court will permit Smith to question a
Navient designee on topics 5, 7, 8, 9, 14, 21, and 22, but only to the extent that the questions
relate directly to Navient's calls to Smith. Smith is not permitted to question a Navient designee
on Navient's general policies and operations.
3.
Smith is not Entitled to a Call Log of All Calls that Navient Placed to
Consumers
In discussions between counsel, Plaintiff's counsel made the following proposition to
Navient's counsel: "we are willing to [re]use Josh [Dries's] deposition [testimony]2 if Navient is
willing to produce a report that provides the actual call volumes of the telephone systems used
to dial Mr. Smith, during the relevant time period, for each mode." (ECF No. 36-2.)
These requests might also seek improper "discovery on discovery." Courts faced with discovery
disputes regarding requests for information on document storage and retention have found that these
requests are impermissible. See Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 426-28 (D. N.J.
2009) (holding that a document request seeking information on Ford's document collection and retention
system was impermissible without a showing of bad faith); Brand Energy & Infrastructure Servs. v. Irex
Corp., 2018 WL 806341, at *6 (E.D. Pa. Feb. 7, 2018) (holding that discovery requests regarding the servers
that Defendants used to access and store digital information were impermissible).
2 Josh Dries is the corporate designee who Navient produced to testify in a prior case involving Smith's
counsel and Navient.
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Like the 30(b)(6) deposition requests discussed in the preceding section, the Court finds
that this request is irrelevant, impermissibly broad, and unduly burdensome. The Court firstly
finds that the information Smith seeks-the total volume of calls made from Navient's systemis irrelevant to the issues in Smith's case. Navient's call volumes do not affect whether Navient
called Smith after Smith revoked consent to be called.
The calls Navient placed to other
consumers or the total number of calls Navient places have no bearing on Smith's claim.
Further, Navient argues that it would be unduly burdensome to produce a report about
call volumes. Navient represents that it does not keep a log of total call volumes in the ordinary
course of business and that it would have to create this report to comply with Smith's request.
Navient should not be forced to expend resources to create a document that is irrelevant to
Smith's claims. Accordingly, the Court finds that Smith is not entitled to a report of all calls
Navient placed on its telephone systems.
Therefore, the Court will GRANT Navient's Motion for Protective Order with respect to
the irrelevant and overly broad topics in Smith's 30(b)(6) deposition notice and the call log that
Smith seeks.
B.
Smith is not Entitled to Documents Regarding Navient's Call-System
Transition and TCPA Compliance
Smith seeks "all documents ... related to Defendant's transition from the Noble phone
system to the ININ system, including any studies or findings that were used in the decisionmaking process." (ECF No. 40 at 7.) Smith argues that these documents will show that Navient
"willfully or knowingly" violated the TCPA, which would enhance Smith's damages. (Id. at 78.)
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Navient argues that Smith's request for documents regarding Navient's transition from
the Noble phone system to the ININ system is irrelevant and unduly burdensome. (ECF No. 42
at 2-3.) The Court agrees.
The Court is not convinced by Smith's argument that these documents will show that
Navient willfully or knowingly violated the TCPA. The issue in this case is whether Navient
continued to call Smith after he revoked his consent to be called.
The phone system that
Navient used to call Smith, in itself, has no effect on whether Navient violated the TCPA.
Therefore, documents about the phone-system transition are not relevant to Smith's claim
under the TCPA. Accordingly, the Court will GRANT Navient's Motion for Protective Order
with respect to documents regarding Navient's phone-system transition and TCPA compliance.
C.
Smith is Entitled to Depose the Two Navient Employees Who Called Smith on
Their Conversations with Smith, but not on Training or TCPA Compliance
Smith moves to compel the deposition testimony of two Navient call representatives
who made collection calls to Smith. 3 (ECF No. 40 at 11.) Smith argues that this testimony is
relevant to his claim against Navient because these two call representatives have firsthand
knowledge as to whether Smith revoked consent to be called. (Id.) Further, Smith argues that
these witnesses can testify on the training they received on collection practices and TCPA
compliance. (Id. at 12.)
In response, Navient argues that these depositions are unnecessary because Navient
already produced recordings of the calls that these representatives made to Smith. (ECF No. 42
The two Navient call representatives referenced in this section are representatives number E71814 and
number E76910. (ECF No. 40 at 10.)
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3
at 5.) Navient points out that these two call representatives are unlikely to have information
relevant to Smith's claims because they spoke with thousands of consumers while working at
Navient, and are unlikely to remember their calls to Smith. (Id.) Moreover, Navient argues that
testimony from these Navient representatives on training and TCPA compliance is unnecessary
because Navient's corporate designee will testify on these subjects.
The Court finds that Smith is entitled to depose these Navient call representatives about
their phone conversations with Smith. The call representatives have firsthand knowledge about
whether Smith revoked consent to be called.
And although Navient already produced
recordings of these calls, the call representatives may have insight into how they interpreted
Smith's statements. Their testimony may yield relevant information-namely, whether Smith
revoked consent to be called, which is the central issue in this case.
However, the Court finds that Smith is not entitled to depose Navient's call
representatives on the training they received on collections practices and TCPA compliance.
The Court agrees with Navient that this testimony would be duplicative of information Smith
seeks from Navient's 30(b)(6) designee. (See ECF No. 36-1 at 4 (requesting information from
Navient's 30(b)(6) designee on "[t]raining of collectors on compliance with the TCPA" and
"[p]olicies and procedures regarding compliance with the TCPA").) Accordingly, the Court
will GRANT Smith's Motion to Compel the deposition of these two Navient employees and
GRANT Navient's Motion for Protective Order to the extent that Navient's call representatives
do not have to testify about their training on collection practices and TCP A compliance.
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V.
Conclusion
For the foregoing reasons, the Court will GRANT the Motions IN PART and DENY
them IN PART. A corresponding order follows.
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IN THE UNITED STA TES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
GREGORY J. SMITH,
)
)
Plaintiff,
v.
NA VIENT SOLUTIONS, LLC,
Defendant.
AND NOW, this
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8
) CIVIL ACTION NO. 3:17-191
)
) JUDGE KIM R. GIBSON
)
)
)
)
)
)
ORDER
day of November, 2018, upon consideration of Defendant
Navient's Motion for Protective Order (ECF No. 36) and Plaintiff Smith's Motion to Compel
Discovery (ECF No. 39), IT IS HEREBY ORDERED that the Motions are GRANTED IN PART
and DENIED IN PART.
Specifically, the Court orders the following:
(1)
Any prior agreement between Smith's counsel and Navient's counsel to
reuse the 30(b)(6) deposition testimony of Navient's corporate is not
binding in this case;
(2)
Navient is not required to produce deposition testimony on topics 4, 10,
18, 19, and 20 in Smith's 30(b)(6) deposition notice;
(3)
Navient is only required to produce deposition testimony on topics 5, 7,
8, 9, 14, 21, and 22 in Smith's 30(b)(6) deposition notice to the extent that
these topics directly involve calls Navient made to Smith. Smith is not
entitled to deposition testimony on these topics to the extent that he
seeks general information on Navient's practices and procedures;
(4)
Navient is not required to produce a call log that shows the volume of
calls Navient placed to consumers;
(5)
Navient is not required to produce documents regarding Navient's call
system transition and TCP A compliance; and
(6)
Smith is entitled to depose Navient call representatives E71814 and
E76910. However, these depositions are to be limited in scope to the
representatives' conversations with Smith.
Smith shall not seek
testimony about the call representatives' training on TCP A compliance.
IT IS FURTHER ORDERED that the period to conduct discovery is extended. The
parties are to complete fact discovery by February 8, 2019. The parties shall complete expert
discovery by March 1, 2019. The parties shall file dispositive motions by March 21, 2019.
The post-discovery status conference previously scheduled for December 7, 2018 is
hereby cancelled. The Court will hold a post-discovery status conference on February 27, 2019
at 11:00 a.m.
BY THE COURT:
KIM R. GIBSON
UNITED STA TES DISTRICT JUDGE
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