Kalmbach v. National Rifle Association of America et al
Filing
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ORDER denying Defendants' #47 Motion to Compel. Signed by Judge Ricardo S Martinez. (PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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Case No. C17-399-RSM
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KATHARYN KALMBACH, individually and
on behalf of all others similarly situated,
Plaintiff,
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ORDER DENYING DEFENDANTS’
MOTION TO COMPEL
v.
NATIONAL RIFLE ASSOCIATION OF
AMERICA, a New York corporation, and
INFOCISION, INC., a Delaware corporation,
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Defendants.
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This matter comes before the Court on Defendants InfoCision, Inc., and National Rifle
Association of America (“NRA”)’s Motion to Compel. Dkt. #47. Defendants move to compel
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responses to their Requests for Production (“RFPs”) Nos. 20, 21, 23, and 25–29 from Plaintiff
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Katharyn Kalmbach.
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These RFPs “seek documents concerning Kalmbach’s service as
executor, the lawsuit filed against her, her bankruptcy, [a company called] WellsDelta, and [her
business] Kathryn’s Kreations.” Id. at 3. Defendants assert that, during her deposition, Ms.
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Kalmbach revealed that she was sued for fraud related to her administration of an estate, and
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that this suit claimed she had “looted over $500,000 from the estate” and “used a company
ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 1
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called WellsDelta to wrongfully take real property from the estate.” Id. at 2. Defendants assert
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that Ms. Kalmbach’s bankruptcy filings reveal she owned a business called Kathryn’s
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Kreations through at least March 2013, but that she had previously testified that she had not
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owned a business since 2000. Id. at 3. Defendants argue these issues bear on Ms. Kalmbach’s
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fitness to represent a class. Id.
Ms. Kalmbach responded to each of these RFPs with the following: “Objection, this
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request is vague, overbroad and beyond the scope of discoverable evidence set forth in FRCP
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26(b)(1), as the Request seeks irrelevant information in no way related to the claims and
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allegations at issue in this case. This request also seeks documents that are disproportionate to
the needs of the case.” Dkt. #47-2 at 105. For RFP No. 23, seeking documents “relating to
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your legally changing your first name from Claudia to Katharyn,” Ms. Kalmbach also notes
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“[f]urthermore, this request seeks discovery of documents that are public records and are
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available to Defendants.” Id. at 106. For RFP No. 25 through 29, Ms. Kalmbach also notes
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that Defendants are seeking “information already in the Defendant’s custody and control and
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that are public records.” Id. at 107–08. For one RFP at issue, Ms. Kalmbach objects based on
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the attorney client privilege. Id. at 108. Defendants argue that Ms. Kalmbach’s objections are
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boilerplate and run afoul of Rule 26(b)(1) and Rule 34(b)(2). Dkt. #47 at 5 (citing Athwal v.
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Nijjer, Case No. C17-00740RSL, 2018 WL 1156233, at *7 (W.D. Wash. Mar. 5, 2018);
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Anderson v. Pac. Crane Maint. Co., L.P., Case No. 3:16-cv-05825-RJB, 2017 WL 3534576, at
*2 (W.D. Wash. Aug. 17, 2017) (quoting Fed. R. Civ. P. 26(b)(1) advisory committee’s note
(2015)).
In Response to this Motion, Ms. Kalmbach argues that these discovery requests
concerning “Ms. Kalmbach’s administration of an estate of a deceased relative from 2003-
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ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 2
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2009…. appear to be made solely to harass Kalmbach and to force her to re-hash irrelevant
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events that happened over a decade ago.” Dkt. #49 at 2. She reminds the Court that this case is
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about a putative class action and Ms. Kalmbach’s fitness to represent a class of Washingtonians
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who allegedly received unsolicited and prerecorded calls in violation of several Washington
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statutes. Ms. Kalmbach contends that “none of the various allegations with which Defendants
seek to tar Plaintiff has any bearing whatsoever on her ability to adequately represent other
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consumers in Washington State who received the NRA’s unwanted calls,” and that “Plaintiff
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will not be charged with handling any monies on behalf of the Class, nor does Rule 23(a)(4)
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contain an implicit requirement that the proposed class representative have a spotless record of
service.” Id. at 3–4. Ms. Kalmbach cites to several cases for the proposition that the inquiry
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into the fitness of the class representative should be limited to identifying “conflicts of interest
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with other class members” and vigorousness of potential representation, and that inquiries that
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veer into “[c]haracter attacks” are less well received. Id. at 4 – 5 citing, inter alia, Torres v. Air
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to Ground Servs., Inc., 300 F.R.D. 386, 401 (C.D. Cal. 2014) (quoting Staton v. Boeing Co.,
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327 F.3d 938, 957 (9th Cir. 2003); In re Computer Memories Sec. Litig., 111 F.R.D. 675, 682
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(N.D. Cal. 1986)). Because Defendants have argued that these RFPs address allegations of
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fraud or improper handling of an estate, Ms. Kalmbach admits that “[p]rior criminal
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convictions can show dishonesty and can be a basis to bar an individual from acting as a class
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representative.” Id. at 5 (citing Larson v. Trans Union, LLC, No. 12-CV-05726-WHO, 2015
WL 3945052, at *12 (N.D. Cal. June 26, 2015)). However, Ms. Kalmbach cites to several
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cases for the proposition that “‘[f]or an assault on the class representative’s credibility to
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succeed, the party mounting the assault must demonstrate that there exists admissible evidence
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so severely undermining plaintiff’s credibility that a fact finder might reasonably focus on
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ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 3
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plaintiff’s credibility,’ thereby adversely impacting the claims of absent class members.” Id. at
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6 (citing Larson, 2015 WL 3945052 at *13 (explaining that “[n]either Larson’s misdemeanor
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conviction, nor any other admissible evidence on record regarding his credibility, comes close
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to reaching that level.”)). Ms. Kalmbach argues that none of the requested discovery, related to
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issues upon which Defendants already have deposed Ms. Kalmbach, can be relevant to the
question of a conflict of interest with other class members. Id. Ms. Kalmbach argues that the
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discovery at issue seeks information that “has no bearing on whether Kalmbach can represent a
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class in a case about unwanted phone calls and simply doesn’t come close to ‘so severely
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undermining plaintiff’s credibility that a fact finder might reasonably focus on plaintiff’s
credibility,’ in a way that adversely impacts absent class members.” Id. at 7. Finally, Ms.
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Kalmbach contends that Defendants already have enough information on these topics,
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sufficient to have already filed a Motion opposing certification, and therefore these RFPs are
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disproportionate to the needs of the case. Id. at 8.
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Defendants did not file a reply brief.
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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
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party’s claim or defense and proportional to the needs of the case, considering the importance
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of the issues at stake in the action, the amount in controversy, the parties’ relative access to
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relevant information, the parties’ resources, the importance of the discovery in resolving the
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issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. 26(b)(1). If requested discovery is not answered, the requesting party
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may move for an order compelling such discovery. Fed. R. Civ. P. 37(a)(1). The party that
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resists discovery has the burden to show why the discovery request should be denied.
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Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
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ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 4
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As an initial matter, the Court notes that Defendants already moved to deny class
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certification on February 2, 2018, based on Ms. Kalmbach’s fitness. Dkt. #37. This Motion is
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still pending. It is unclear to the Court how Defendants can argue that the requested discovery,
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related to her fitness, is proportional to the needs of this case given that Defendants felt they
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already had enough information to move for relief based on her fitness. This question, raised in
the Response brief, is left unanswered by Defendants.
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Turning to relevancy, the Court finds that Ms. Kalmbach has met her burden to show
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why the discovery requests should be denied. See Blankenship, supra. Although the fitness of
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a class representative is a relevant topic of discovery, the cases cited by Ms. Kalmbach indicate
that there is a limit. The key questions for fitness are conflicts of interest with other class
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members and vigorousness of potential representation. Torres, supra. Ms. Kalmbach has
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adequately demonstrated that the discovery requests at issue cannot lead to relevant information
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as to these questions. The fact that she settled a lawsuit with accusation of fraud ten years ago
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has little bearing on her fitness in this case with these issues.
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The Court further finds that Ms. Kalmbach’s objections, although thin on details
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initially, were supplemented by further information by her counsel. See Dkt. #49-1 at 2 (“We
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simply don't believe that the topics of these requests have anything to do with the case—which
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is about the pre-recorded calls Kalmbach and others received from the NRA. Her
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administration of an estate has nothing to do with her ability to adequately representing [sic] a
class, notwithstanding your clients' repeated attempts to target and harass her.”). In any event,
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the Court believes Defendants already knew the bases for these objections given the deposition
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and prior briefing before the Court.
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ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 5
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Considering all of the above, the Court finds that the requested discovery seeks
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irrelevant information not proportional to the needs of the case under Rule 26(b)(1).
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Accordingly, and after having reviewed the relevant briefing and the remainder of the record,
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the Court hereby finds and ORDERS that Defendants’ Motion to Compel, Dkt. #47, is
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DENIED.
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DATED this 29 day of May, 2018.
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A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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ORDER DENYING DEFENDANTS’ MOTION TO COMPEL - 6
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