Brenner v. Vizio, Inc.

Filing 105

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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