Brenner v. Vizio, Inc.
Filing
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ORDER granting 71 Motion to Compel & granting 73 Motion to Compel. Signed by Judge Benjamin H. Settle. (MGC)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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CASE NO. C17-5897 BHS
AMY CONVERSE,
Plaintiff,
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v.
ORDER GRANTING PLAINTIFF’S
MOTIONS TO COMPEL
VIZIO, INC.,
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Defendant.
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This matter comes before the Court on Plaintiff Amy Converse’s (“Plaintiff”)
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motion to compel documents reviewed by Defendant’s Rule 30(b)(6) designees, Dkt. 71,
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and motion to compel answer to Interrogatory No. 4 (putative class member contact
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information), Dkt. 73. The Court has considered the pleadings filed in support of and in
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opposition to the motions and the remainder of the file and hereby grants the motion for
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the reasons stated herein.
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I.
On December 12, 2018, Plaintiff filed a third amended class action complaint
against Defendant Vizio, Inc. (“Vizio”) asserting numerous causes of action based on the
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PROCEDURAL AND FACTUAL HISTORY
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underlying allegations that Vizio falsely advertised and marketed its smart televisions
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(“Smart TVs”). Dkt. 54.
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Relevant to the instant motions, Plaintiff propounded discovery on Vizio and
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deposed four 30(b)(6) witnesses. First, Plaintiff propounded an interrogatory on Vizio
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requesting “all email addresses you have access to that are related to consumers who
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purchased affected Smart TVs from you from 2009 to present.” Dkt. 74 at 8. Plaintiff
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contends that despite numerous meet and confers regarding this request, Vizio has failed
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to respond.
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Second, Plaintiff deposed four corporate representatives in late April and early
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May of 2019. Plaintiff contends that during the depositions counsel for Vizio instructed
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the deponents not to identify what documents each had reviewed in preparation for the
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deposition.
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On June 6, 2019, Plaintiff filed motions to compel a response to her interrogatory
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and the documents reviewed by Vizio’s witnesses. Dkts. 71, 73. On June 17, 2019,
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Vizio responded. Dkts. 80, 82. On June 21, 2019, Plaintiff replied. Dkts. 84, 85.
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II. DISCUSSION
The parties do not dispute that if the requested information is relevant then it must
be produced. See Fed. R. Civ. P. 26, 37.
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Regarding the class list, Vizio has made the information relevant. Although Vizio
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advances a persuasive argument that after Plaintiff filed her motion for class certification
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there is no need for a putative class list, Vizio’s response to Plaintiff’s motion to certify
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attacks the typicality of the class as well as whether individual issues predominate over
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class-wide issues. See Dkt. 98 at 17 (“Plaintiff’s putative class fails to satisfy Rule
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23(b)(3)’s predominance or superiority requirements, and Plaintiff fails Rule 23(a)’s
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typicality requirement.”). Plaintiff correctly predicted that Vizio would make these
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arguments, Dkt. 73 at 7, and requests putative class members’ contact information to
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gather actual evidence to respond. In light of Vizio’s response and Plaintiff’s showing
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that the requested information is relevant, the Court grants Plaintiff’s motion on this
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issue. The Court, however, cautions Plaintiff that it is improper to submit new evidence
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with a reply without allowing the opposing party an opportunity to respond to that
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evidence. See, e.g., Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“the district
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court should not consider the new evidence without giving the [non-]movant an
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opportunity to respond.”)
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Regarding the 30(b)(6) documents, Vizio argues that the documents are privileged
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and that Plaintiff failed to lay the proper foundation. The latter argument is without merit
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because discovery is still ongoing and, even if Plaintiff failed to lay an extensive
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foundation for the requested material, that error could easily be cured with a subsequent
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discovery request. Besides, Vizio’s counsel directed the witnesses not to answer
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Plaintiff’s counsel’s questions, which hampered Plaintiff’s counsel’s ability to lay that
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alleged foundation. As to the issue of privilege, the process for producing privileged
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material is not to simply claim the privilege in a response to a motion to compel. Instead,
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a privilege log is necessary for those documents that Vizio claims are privileged. The
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Court finds it highly unlikely that every document each corporate representative reviewed
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in preparation for his or her deposition is privileged because, in order for a 30(b)(6)
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witness to properly prepare for a deposition, he or she most likely reviews documents
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produced in the regular course of business. As to these documents, Vizio should produce
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them if they exist. After the production of a log and possibly other documents, the parties
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shall meet and confer regarding the possibility of successive depositions. The Court is
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optimistic that another motion on this issue is not necessary and reserves ruling on
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sanctions should further disputes arise.
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III. ORDER
Therefore, it is hereby ORDERED that Plaintiff’s motion to compel documents
reviewed by Defendant’s Rule 30(b)(6) designees, Dkt. 71, and motion to compel answer
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to Interrogatory No. 4 (putative class member contact information), Dkt. 73, are
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GRANTED.
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Dated this 23rd day of July, 2019.
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BENJAMIN H. SETTLE
United States District Judge
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