Wetzel et al v. CertainTeed Corporation

Filing 90

ORDER granting in part and denying in part Defendant's 58 Motion for Protective Order; granting in part and denying in part Plaintiffs' 63 Motion to Compel; granting Plaintiffs' 80 Motion for Extension of Time. Signed by Judge Richard A Jones. (TH)

THE HONORABLE RICHARD A. JONES

U.S. DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
PAULA WETZEL and JOEL WETZEL,
individually and on behalf of other similarly
situated persons,

NO. 2:16-cv-01160-RAJ
ORDER

Plaintiffs,
vs.
CERTAINTEED CORPORATION,
Defendant.

This matter comes before the Court on Defendant CertainTeed Corporation’s
Second Motion for Protective Order Re Plaintiffs’ Discovery Requests (Dkt. # 58),
Plaintiffs’ Motion to Compel (Dkt. # 63), and Plaintiffs’ Motion to Extend Deadlines
(Dkt. # 80). 1

1

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around
page limits and formatting requirements dictated by the Local Rules. See Local Rules W.D. Wash. LCR
7(e). Moreover, several courts have observed that “citations are highly relevant in a legal brief” and
including them in footnotes “makes brief-reading difficult.” Wichansky v. Zowine, No. CV-13-01208PHX-DGC, 2014 WL 289924, at *1 (D. Ariz. Jan. 24, 2014). The Court strongly discourages the
parties from footnoting their legal citations in any future submissions. See Kano v. Nat’l Consumer Coop Bank, 22 F.3d 899-900 (9th Cir. 1994).

ORDER-1

I.

BACKGROUND

Plaintiffs are conducting pre-class certification discovery for a lawsuit arising
from Defendant’s allegedly defective shingles. There are four motions pending before
the Court, addressed in turn below.
II.

DISCUSSION

A. Motion for Protective Order
The Court has discretion under Federal Rule of Civil Procedure 26(c) to “for
good cause, 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). Defendants
must show the “specific prejudice or harm [that] will result if no protective order is
granted. . . . Broad allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c) test.” Coleman v. Schwarzenegger,
No. CIV S-90-0520 LKK JFM P, No. C01-1351 TEH, 2008 U.S. Dist. LEXIS 123275,
*20-21 (E.D. Cal. 2008) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
1130 (9th Cir. 2003) and Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th
Cir. 1992)).
In a class action, the parties often have the opportunity to conduct pre-class
certification discovery. This discovery is “limited to certification issues such as the
number of class members, the existence of common questions, typicality of claims, and
the representative’s ability to represent the class.” Gusman v. Comcast Corp., 298
F.R.D. 592, 595 (S.D. Cal. 2014) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 359 (1978)). However, “the merits/certification distinction is not always clear.
Facts that are relevant to the class determination frequently will overlap with those
relevant to the merits of the case.” Id. (citing Wal–Mart Stores Inc. v. Dukes, 564 U.S.
338, 350 (2011)).

ORDER-2

Defendant moves for a protective order because it claims that Plaintiffs’
discovery is targeted at the merits rather than at the appropriate pre-class certification
discovery. Dkt. # 58. Plaintiffs disagree, citing reasons for why each category of
discovery is necessary to establish the class in this class action lawsuit. Dkt. # 61. The
disputed categories are discussed below.
Plaintiffs seek discovery regarding the manufacturing process, research and
development, and testing to prove Rule 23(a)(2)’s commonality element and Rule
23(b)(3)’s predominance element. Dkt. # 61 at 11. When analyzing commonality, the
Court typically examines the parties’ claims and defenses and the relative proof
regarding the same. With regard to predominance, the Court must determine whether
common questions predominate over individual ones such that a class action treatment
is superior to individual lawsuits. Discovery regarding manufacturing and testing is
necessary for Plaintiffs to attempt to prove these elements. However, at this stage, the
Court finds that discovery regarding research and development goes more toward the
strength or weakness of Plaintiffs’ claims rather than toward the requirements of Rule
23. Accordingly, the Court GRANTS in part Defendant’s motion with regard to preclass certification discovery into research and development.
Plaintiffs seek discovery regarding the warranty and warranty claims process to
prove Rule 23(a)(3)’s typicality element and to identify potential class members. Dkt. #
61 at 14. Defendant argues that it already produced warranty claim files as well as a
performance manual. Dkt. # 64 at 7. Discovery regarding the warranty claims process,
such as how agents are trained, goes to the merits of the lawsuit rather than to Rule 23’s
requirements. However, discovery regarding the number of warranty claims paid
related to the shingles at issue and any complaints made to state regulatory or
administrative entities regarding the shingles at issue is relevant to developing a class
list and establishing typicality of claims. Therefore, the Court GRANTS in part

ORDER-3

Defendant’s motion to the extent that discovery regarding the claim process is not
relevant to pre-class certification discovery.
Plaintiffs seek discovery regarding Defendant’s retention policy. Dkt. # 61 at 16.
Defendant appears willing to produce retention policies related to customer claims and
pending litigation matters. Dkt. # 64. The Court finds such policies relevant to preclass certification discovery and therefore Defendant must produce such documents.
However, retention policies regarding topics broader than customer claims, the disputed
shingles, or pending litigation go to the merits of the matter and therefore need not be
produced at this stage. Therefore, the Court GRANTS in part Defendant’s motion for
protective order.
Plaintiffs request documents regarding Defendant’s corporate structure. Dkt. #
61 at 16. Plaintiffs argue that these organizational documents will help in identifying
potential deposition witnesses. Id. The Court finds that an organizational chart—
limited to those departments engaged in manufacturing, testing, sales and marketing,
and warranty claims—is relevant to pre-class certification. This enables Plaintiffs to
target specific corporate witnesses for deposition purposes. Therefore, the Court
DENIES Defendant’s motion with regard to this request.
B. Motion to Compel
The Court has broad discretion to control discovery. Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002); see also Avila v. Willits Envtl. Remediation Trust, 633 F.3d
828, 833 (9th Cir. 2011), In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). That
discretion is guided by several principles. Most importantly, the scope of discovery is
broad. A party must respond to any discovery request that is not privileged and 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,

ORDER-4

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).
If a party refuses to respond to discovery, the requesting party “may move for an
order compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “The party who
resists discovery has the burden to show that discovery should not be allowed, and has
the burden of clarifying, explaining, and supporting its objections.” Cable & Computer
Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 650 (C.D. Cal. 1997).
As an initial matter, Plaintiffs request that the Court order the parties to utilize
the LCR 37(a)(2) joint submission procedure. The Court will not do so at this time.
Both parties will have the benefit of fully briefing their discovery disputes. However, if
the Court finds that the parties are abusing the discovery process, the Court will reassess
and may order the relief that Plaintiffs request. Furthermore, Plaintiffs request the
ability to utilize a court reporter at their own cost for future conferences with Defendant.
The Court grants this request with the condition that Plaintiffs may not seek these costs
from Defendant in any future motions. Plaintiffs have the sole responsibility for the
cost of the court reporter.
It appears that Plaintiffs’ motion to compel raises identical issues addressed in
Defendant’s motion for protective order. The Court has already ruled on what is
relevant or not to the pre-certification discovery process. For example, the Court found
that Defendant must produce discovery related to warranties (though not with regard to
the warranty process, such as how agents are trained), manufacturing processes, testing,
and document retention policies related to the disputed shingles and pending litigation.
To the extent that the parties raised new or more specific arguments within these
requests, the Court addresses them below.

ORDER-5

Plaintiffs request the warranty claim database in its native format. Defendant
produced the claim files in the form of searchable PDFs. Dkt. # 69 at 8-11. But
Plaintiffs argue that Defendant has not produced the database in any form. Dkt. # 72 at
4. The claim files are sufficient for pre-class certification discovery, and the production
of the database appears unnecessary at the current stage of discovery. However,
Defendant will be expected to produce the database in native format to Plaintiffs if
discovery progresses to the merits.
Plaintiffs argue that Defendant must produce a complete and unredacted set of
claim files. Dkt. # 63 at 11-12. Plaintiffs also contend that Defendant produced the
claim files out of order such that review was dramatically hindered. Dkt. # 66 at 7.
Purposefully producing documents in haphazard order are tactics that this Court will not
tolerate. The Court expects the parties to cooperate with the utmost professionalism;
gamesmanship only acts to delay discovery and wastes judicial time and resources.
Defendant must re-produce all of the claim files to Plaintiffs in bates numbered order.
At this time, and based on the record before it, the Court does not find it necessary for
Defendant to unredact the personal identification information of its customers.
Plaintiffs may raise this issue again during the merits discovery process if their motion
for class certification is granted. Similarly, it appears appropriate for Defendant to
redact information that is unrelated to the shingles or claims at issue. The parties are
ordered to meet and confer within seven (7) days from the date of this Order to
determine what, if anything, may be redacted based on irrelevance or nonresponsiveness, such as information referring to unrelated shingles that have no bearing
on Plaintiffs’ claims. Beyond the personal identification information and information
unrelated to the claims at issue, the Court orders Defendant to produce the remaining
claim file information unredacted.

ORDER-6

Plaintiffs seek documents extending beyond the 2004 to 2007 window of time
when the disputed shingles were in use. The Court agrees that relevant documents may
exist beyond this timeframe, and Defendant must produce relevant documents even if
those documents were created prior to 2004.
The remaining issues in Plaintiffs’ motion to compel were addressed by the
Court with regard to Defendant’s motion for protective order, and therefore will not be
repeated here. Defendant must produce the documents over which the Court grants
the motion to compel or denies the protective order to Plaintiffs within fourteen
(14) days from the date of this Order.
C. Motion to Strike
Plaintiffs filed three replies to its motion to compel. Dkt. ## 66, 72, 75. The
parties stipulated to Plaintiffs filing the first supplemental reply brief, but did not
stipulate to Plaintiffs filing the second supplemental reply brief. Dkt. # 71. Defendant
moves the Court to strike Plaintiffs’ second supplemental reply brief. Dkt. # 78. The
Court finds good cause to strike this brief. This second supplemental reply played no
role in the Court’s determinations above.
D. Motion to Extend Deadlines
Class certification discovery ended on April 13, 2018. On April 5, 2018,
Plaintiffs filed a motion to extend the discovery deadline. Dkt. # 80. The noting date
for the motion was the same date as the discovery cutoff—April 13, 2018. Id. “A
motion for relief from a deadline should, whenever possible, be filed sufficiently in
advance of the deadline to allow the court to rule on the motion prior to the deadline.”
Local Rules W.D. Wash. LCR 7(j). However, the Court finds that Plaintiffs had good
cause to file the motion when they did, and there is good cause to grant the motion and
extend the deadlines. The Court directs the Clerk to enter a new case schedule for
class certification in this matter.

ORDER-7

III.

CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part the
motion for protective order (Dkt. # 58) and motion to compel (Dkt. # 63), and
GRANTS the motion to extend deadlines (Dkt. # 80).

Dated this 19th day of April, 2018.

A
The Honorable Richard A. Jones
United States District Judge

ORDER-8