Wetzel et al v. CertainTeed Corporation

Filing 44

PROTECTIVE ORDER granting in part and denying in part Defendant's 33 MOTION for Protective Order Re Plaintiffs' Discovery Requests. Signed by Judge Richard A Jones. (TH)

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The Honorable Richard A. Jones 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 PAULA WETZEL AND JOEL WETZEL, ON Case No. 2:16-cv-01160-RAJ BEHALF OF THEMSELVES AND OTHER SIMILARLY SITUATED PERSONS, 11 Plaintiffs, v. 12 CERTAINTEED CORPORATION, JOINT STATUS REPORT RE: MOTION FOR PROTECTIVE ORDER ON PLAINTIFFS’ DISCOVERY REQUESTS; [PROPOSED] ORDER 13 Defendant. 14 JOINT STATUS REPORT 15 16 Defendant and Plaintiffs submit the following Joint Status Report. 17 On August 21, 2017, the parties conducted a telephonic meeting and conferring to find a 18 compromise resolution on Defendant’s Motion for a Protective Order (Dkt. #33). The parties 19 reached certain compromises concerning the limits of discovery related to Defendant’s shingles, 20 including without limitation warranty claims and sales data, unless for good cause the Court or 21 Defendant permits otherwise. The parties also have two disputes which they cannot resolve. 22 A. 23 The Parties’ Agreements 1. Relevant shingles shall be those installed in Washington on buildings whose date of completed construction was in 2004, 2005, 2006, or 2007. 24 a. As a caveat of Defendant concerning discovery directed to Defendant, Defendant 25 acknowledges that it may have knowledge of home construction dates based on 26 27 JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 1 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 claims made by shingle owners, communications from shingle owners to 2 Defendant, or other records. b. Defendant agrees to act in good faith to identify which shingle owners have 3 4 homes whose date of completed construction may be in 2004, 2005, 2006, or 5 2007. c. Plaintiffs acknowledge that via the meet and confer process Defendant 6 7 communicated the possibility that it may not have complete information in its 8 records because Defendant typically does not know where shingles are installed 9 after shingles are sold to distributors unless a warranty claim is made. d. The parties acknowledge that third-party discovery may be necessary to locate 10 11 potentially relevant information, and such third party discovery may provide 12 information which enables Defendant to locate additional, relevant information or 13 materials in its possession, custody or control. 14 2. Relevant shingles shall include shingles from Defendant’s Landmark series. 15 3. If in the future Plaintiffs believe that they have good cause to pursue discovery related to 16 shingles outside the scope of these limits, agreed to in items (1) through (3), then the 17 parties shall meet and confer to reach a compromise on the issue and work diligently to 18 avoid having to bring the matter to the Court for disposition. 19 B. The Parties’ Remaining Disputes The Parties do not agree to the following discovery limitations, and request that the Court 20 21 determine the permissible discovery. 22 1. Homeowners: 23 a. Plaintiffs' Position: With their Complaint, Plaintiffs seek to represent a class of first, second, and subsequent 24 25 owners of homes in Washington with Defendant’s. See Dkt. 2-1 (“Complaint”) at 11, ¶ 32 26 (definition of the class); cf. id. at 11, ¶ 33 (definition of subclass that excludes first and second 27 owners included in the class). Plaintiffs allege that they have claims which share common JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 2 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 questions of law and fact with claims of the class, including first and second owners. See id. at 2 12, ¶ 37. Plaintiffs also allege that their claims are typical of those of other class members, 3 including first and second owners. See id. at 12, ¶ 38. As an example, the Complaint alleges that 4 first, second, and subsequent owners were all harmed when Defendant deceptively and unfairly 5 concealed the defects of Defendant’s shingles. E.g., see id. at 8-9, ¶ 32. Without any evidence of 6 an injury or burden to it, Defendant asks the Court for a protective order which prevents 7 Plaintiffs from conducting any discovery that may help Plaintiffs to substantiate their allegations 8 that sufficient commonality and typicality exists between the Plaintiffs’ claims and those of first 9 and second owners such that the Court can certify the class. Thus, Defendant asks the Court to 10 decide that Plaintiffs can certify the class before Plaintiffs have a chance to conduct discovery on 11 the matter. This is improper. See, e.g., Meyer v. Receivables Performance Mgmt., LLC, No. 12 C12–2013RAJ, 2013 WL 1914392, at *2 (W.D. Wash. May 08, 2013) (Jones, J.) (“[C]ourts 13 typically decide class certification after discovery, not on the pleadings.”). 14 Additionally, a significant allegation of the Complaint is that Defendant unfairly coerced 15 Washington homeowners to enter in to confidentiality provisions to obtain warranty benefits for 16 which they were already entitled. See Dkt. #2-1 (“Complaint”) at 8, ¶ 21(a). This was to prevent 17 both existing and prospective homeowners from learning about Defendant’s defective shingles. 18 Id. Plaintiffs are informed and believe that only first and second owners were given any warranty 19 benefits by Defendant. By blocking discovery related to first and second owners, Defendant 20 would block Plaintiffs from conducting any discovery to substantiate this or similar allegations. 21 The Court ordered that Plaintiffs have until December 15, 2017 to complete discovery on 22 class certification. See Dkt. #25 at 1. Defendant’s request for a protective order barring discovery 23 related to first and second owners would deny Plaintiffs the ability to start such discovery. 24 Plaintiffs respectfully ask the Court to deny Defendant’s attempt to obtain a denial of class 25 certification through a protective order. 26 /// 27 /// JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 3 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 b. Defendant's Position: Plaintiffs' Complaint contains allegations as to third generation or later shingle 2 3 owners. See Dkt. #2.1 (“Complaint”) at ¶¶7 & 14. Plaintiffs identify no allegedly injured 4 persons other than the Wetzels—who are third generation owners—and Plaintiffs' Complaint 5 contains no allegations showing that discovery related to any first or second generation 6 homeowner is relevant. The purpose of discovery is not to uncover "similar deficiencies," as 7 argued by Plaintiffs during the August 16, 2017 hearing. See also Cabell v. Zorro Productions, 8 Inc., 294 F.R.D. 604, 609 (W.D. Wash. 2013). Plaintiffs must first demonstrate how first and/or 9 second generation homeowners' claims are relevant to the existing allegations in the 10 Complaint. Cf. In re Fontaine, 402 F. Supp. 1219, 1221 (E.D. N.Y. 1975). Absent some 11 affirmative showing by Plaintiffs that such information is reasonably calculated to lead to the 12 discovery of admissible evidence, Plaintiffs cannot use discovery as a tool to seek new 13 allegations. Defendant believes Plaintiffs are not entitled to discovery related to first or second 14 15 generation homeowners as no such person has a cause of action against Defendant and no such 16 person has been identified as a party (which raises both legal concerns—e.g., standing—and 17 factual concerns—e.g., privacy). Defendant's limited roofing shingle warranties provide 18 coverage only for qualifying first and second generation homeowners. The applicable warranties 19 state: "The warranty for CertainTeed shingles is transferable by the original property 20 owner/consumer to the first subsequent owner." See CERTAIN000544 (this citation was 21 provided to Plaintiffs, but is not in the record before the Court). First and second generation 22 homeowners are not harmed—such persons can, and do, pursue remedies through CertainTeed's 23 warranty program. Discovery relevant to the allegations in the Complaint is available through 24 discovery of third generation or later homeowners. Discovery for first and second generation 25 homeowners should be denied at this time. 26 /// 27 /// JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 4 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 2. Discovery of Non-Landmark Series Shingles: 2 a. Plaintiffs' Position: Plaintiff’s Complaint expressly concerns Defendant’s deceptive and unfair business 3 4 practices in concealing defects as to all of its asphalt shingles it sells in Washington. Defendant’s 5 Landmark series is presented in the Complaint only as an example. See Dkt. #2-1 (“Complaint”) 6 at 7, ¶ 14. Defendant presented testimony that it has at least twenty types of asphalt shingle lines 7 like the Landmark series. See Dkt. #33-7 at 2, ¶ 3. As a matter of compromise, Plaintiffs have 8 offered to reduce the scope of their discovery requests by 90% to include only two of these 9 shingle types: the Landmark series and the Presidential series. Defendant insists that Plaintiffs 10 only be permitted discovery related to one of them. Since filing the complaint, Plaintiffs have obtained information which indicates that at 11 12 least some of the homes with problematic shingles are roofed with Defendant’s Presidential line. 13 Defendant offers no evidence of any burden or injury it suffers if Plaintiffs are permitted 14 discovery to ascertain the accuracy of this information. Plaintiffs seek to represent a class of Washington consumers who have any of 15 16 Defendant’s asphalt shingles on their roofs. See Dkt. 2-1 (“Complaint”) at 11, ¶ 32 (definition of 17 the class). To establish that Plaintiffs’ claims have sufficient typicality and commonality with the 18 claims of consumers with other lines of Defendant’s shingles on their homes, Plaintiffs need to 19 begin by obtaining discovery related to at least one of the other nineteen shingle lines. Plaintiffs 20 therefore respectfully ask that Defendant’s request for a protective order to deny such discovery 21 be denied. 22 b. Defendant's Position: The only shingle series identified by Plaintiffs in the Complaint and at the August 16, 23 24 2017 hearing was the Landmark series shingle. Until Plaintiffs amend the Complaint to add 25 representative Named Plaintiffs whose homes have shingles other than the Landmark series and 26 set forth affirmative evidence that another shingle series is at issue in this case, Defendant states 27 that discovery as to other shingle types (including Presidential series shingles) is speculative and JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 5 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 irrelevant. See Cabell v. Zorro Productions, Inc., 294 F.R.D. 604, 609 (W.D. Wash. 2013); In re 2 Fontaine, 402 F. Supp. 1219, 1221 (E.D. N.Y. 1975). Defendant believes that the Plaintiffs must 3 affirmatively supplement the record with direct, concrete evidence and identify an appropriate 4 Named Plaintiff to place non-Landmark series shingles at issue prior to opening discovery into 5 matters not placed at issue in the record. Discovery is not a tool to seek new allegations. 6 DATED this 22nd day of August 2017. 7 8 s/ Catherine J. Fleming Catherine J. Fleming, WSBA #40664 Brad J. Moore, WSBA #21802 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Avenue West, #300 Seattle, WA 98119 Tel: (206) 448-1777 Fax: (206) 728-2131 Email: Catherine@stritmatter.com Brad@stritmatter.com 9 10 11 12 13 14 /s/ Richard D. Ross Richard D. Ross, WSBA #34502 Michael J. Madderra, WSBA #48169 SELMAN BREITMAN LLP 800 Fifth Avenue, Suite 4100 Seattle, Washington 98104 Tel: (206) 447-6461 Fax: (206) 558-4185 Email: rross@selmanlaw.com Attorneys for Defendant CertainTeed Corporation Albert H. Kirby, WSBA #40187 SOUND JUSTICE LAW GROUP, PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103 Tel: (206) 489-3210 Fax: (866) 845-6302 Email: ahkirby@soundjustice.com 15 16 17 18 19 Attorneys for Plaintiffs 20 21 ORDER 22 THIS MATTER having come on by Defendant’s Motion for Protective Order (Dkt. # 33) 23 24 and the foregoing Joint Status Report, and the Court having reviewed counsels’ agreements, the 25 Court ORDERS as follows: 26 1. The parties’ agreements in this Report are hereby adopted as an Order. 27 JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 6 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777 1 2. Further, as to the disagreement of the parties, the Court determines as follows: 2 The Court DENIES IN PART Defendant’s request for a protective order. 3 Discovery for First and Second Generation Homeowners is permitted. 4 The Court GRANTS IN PART Defendant’s request for a protective order. 5 Discovery for Presidential Series Shingles is denied. 6 IT IS SO ORDERED. 7 8 Dated this 6th day of September, 2017. 9 10 A 11 12 The Honorable Richard A. Jones United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JOINT STATUS REPORT; [PROPOSED] ORDER (Case No. 2:16-cv-01160-RAJ) Page 7 STRITMATTER KESSLER WHELAN KOEHLER MOORE KAHLER 3600 15th Ave. W.| Seattle, WA 98119 Tel: 206-448-1777

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