Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC et al

Filing 117

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff's 113 FIRST MOTION to Compel Discovery as more fully set forth herein; directing that Defendants are to serve supplemental responses to the discovery requests within fourteen days of the date of this Order and file the requisite certificate of service. Signed by Magistrate Judge Cheryl A. Eifert on 4/3/2024. (cc: counsel of record) (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CARLTON & HARRIS CHIROPRACTIC
INC., individually and as the representative
of a class of similarly situated persons,
Plaintiff,
v.

Case No.: 3:15-cv-14887

PDR NETWORK, LLC, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s First Motion to Compel Discovery. (ECF No.
113). For the reasons that follow, the Court GRANTS, in part, and DENIES, in part,
the motion.
I.

Relevant Facts
This is a putative class action alleging violations of the federal Telephone

Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005
(the “Act”). Plaintiff alleges that Defendants sent unsolicited advertisements via facsimile
(the “advertisements”), including in December 2013, with the goal of having class
members download a free digital version of the Physicians’ Desk Reference (“PDR”), a
resource that contains detailed information about pharmaceuticals listed in the reference.
(ECF No. 82 at 3-4). The advertisements provided instruction on how to obtain the free
digital PDR, or PDR eBook. Plaintiff alleges that “Defendants receive money from the
pharmaceutical companies whose drugs are listed in the Physicians’ Desk Reference, and,
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on information and belief, the amount of money that Defendants receive from the drug
companies whose products are featured in the 2014 PDR e-Book turns on how many
copies of the 2014 PDR e-Book Defendants distribute, and so Defendants stand to profit
when a provider accepts a free copy.” (ECF No. 82 at 5). This allegation by Plaintiff has
been described by various courts as the “commission allegation.” Proving this allegation
is crucial to Plaintiff’s case, because the Act only applies to communications that have a
commercial component or nexus. See Carlton & Harris Chiropractic, LLC v. PDR
Network, LLC, 80 F.4th 466, 475 (4th Cir. 2023).
On October 19, 2023, this Court entered an Order limiting discovery to the
commission allegation. (ECF No. 103). The Court granted the parties six months to
complete the discovery after which they could file summary judgment motions. (Id.).
Following disposition of the motions, the Court will enter a Scheduling Order, if
appropriate. (Id.).
Plaintiff filed its first set of discovery requests on Defendants, which they answered
on February 7, 2024.1 (ECF Nos. 113-1, 113-2). Defendants objected to a number of the
requests, so the parties met and conferred. When they could not resolve all of their
disputes, Plaintiff filed the instant Motion, seeking an order from the Court compelling
Defendants to provide complete answers to Interrogatory Nos. 2, 3, 4, 5, 6, 8, and 9 and
Requests for Production of Documents Nos. 1, 2, 3, 4, 5, 7, 9, and 10.
II.

Applicable Law
Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of discovery

in this action. It states, in relevant part:

It appears from the docket that neither party filed the required certificate of service documenting when
the discovery requests were served and when the answers to discovery were served.
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[U]nless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter
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, the importance of the discovery in
resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
“Relevancy under this rule has been broadly construed to encompass any
possibility that the information sought may be relevant to the claim or defense of
any party.” Becton, Dickinson & Co. v. BioMedomics, Inc., No. 5:20-CV-536-FL, 2021 WL
3864476, at *3 (E.D.N.C. Aug. 30, 2021) (citations omitted). “Relevance is not, on its own,
a high bar.” Ceresini v. Gonzales, No. 3:21-CV-40 (GROH), 2022 WL 628520, at *3
(N.D.W. Va. Mar. 3, 2022) (citation omitted). As stated in the rule, information “need not
be admissible in evidence to be discoverable.” Id. (quoting Fed. R. Civ. P. 26(b)(1)).
“Federal courts have long understood that relevancy for discovery purposes is defined
more broadly than relevancy for evidentiary purposes.” Id.
Even if seeking relevant information, the discovery request must be proportional
to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Although Rule 26(b)(1)’s relevance
inquiry does not, itself, pose a ‘high bar,’ its proportionality requirement mandates
consideration of multiple factors in determining whether to allow discovery of even
relevant information.” Ceresini, 2022 WL 628520, at *3. The factors include: “the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Id. (quoting Fed. R. Civ. P. 26(b)(1)).
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A party dissatisfied with a discovery response or lack of response can move for an
order compelling disclosure or discovery after attempting to confer with the party that
submitted the response or failed to respond. Fed. R. Civ. P. 37(a). The party resisting
discovery, not the party seeking discovery, bears the burden of persuasion. Jonathan R.
v. Just., No. 3:19-CV-00710, 2023 WL 8629147, at *2 (S.D.W. Va. Dec. 13, 2023); McEvoy
v. Diversified Energy Co. Plc, No. 5:22CV171, 2023 WL 6192769, at *1 (N.D.W. Va. May
15, 2023); Fine v. Bowl Am., Inc., No. CV SAG-21-1967, 2023 WL 8479250, at *2 (D. Md.
Dec. 7, 2023); Perez v. Huneycutt, No. 5:22-CV-00120-MR, 2023 WL 8813553, at *2
(W.D.N.C. Dec. 20, 2023); Doe v. Mast, No. 3:22CV00049, 2023 WL 8481049, at *2
(W.D. Va. Dec. 7, 2023); United States v. White, No. 2:23-CV-00001-BO, 2023 WL
8451744, at *7 (E.D.N.C. Dec. 6, 2023). As such, conclusory and unsubstantiated
allegations are simply insufficient to support discovery objections based on the grounds
of annoyance, burdensomeness, oppression, or expense. Id.
III.

Discussion
A.

Interrogatory No. 2

Plaintiff asks for the identity of every person who participated in the decision to
send the advertisements, as well as the extent and substance of the participation. The
parties met and conferred and apparently agreed that Defendants would provide
information about the “key two or three persons” who participated. Therefore, the motion
to compel an answer to the original interrogatory is DENIED, as moot.
B.

Interrogatory Nos. 3, 4, 5, 6 and Requests for Production Nos. 1,
2, 3, 4, 5

These discovery requests concern the number of facsimile transmissions of the
advertisements that were sent; the number of occasions on which they were faxed; the
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equipment or software used to fax them; how Defendants developed the list of persons or
facsimile numbers to which they sent the advertisements; the identities of the persons or
facsimile numbers to which the advertisements were sent; and any corresponding
documentation. Plaintiffs argue that this information should be compelled, because it is
relevant to the number of eBooks that were actually downloaded, which is relevant to the
commission received by Defendants. Defendants argue that this information does not
show how many PDR eBooks were downloaded, or how many recipients of the
advertisements requested a digital PDR. Defendants surmise that Plaintiff is simply
attempting to conduct “class discovery,” rather than gather information pertinent to the
commission allegation. Defendants contend that the discovery is disproportional to the
current needs of the case.
The Court agrees with Defendants that, while these discovery requests might, in
some roundabout way, eventually lead to relevant information, they are not proportional
to the needs of the case. If Plaintiff wishes to determine the number of eBooks that were
downloaded and the amount of the commissions earned by Defendants based upon the
eBooks downloaded, then it should ask those questions. Moreover, at this point in the
litigation, Plaintiff has no need for the names of the individuals, or the facsimile numbers
of those individuals, who received the advertisement. These particular requests go beyond
the scope of permissible discovery. Therefore, Plaintiff’s motion for an order compelling
complete answers to Interrogatory Nos. 3, 4, 5, 6 and Requests for Production Nos. 1, 2,
3, 4, 5 is DENIED.
C.

Request for Production No. 7

Request for Production No. 7 asks for a copy of any Physicians’ Desk Reference
eBook that was distributed by Defendants during the “relevant time period,” which
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Plaintiff defines as the four years preceding the filing of the complaint through the time
of trial. Defendants object to the discovery request as being irrelevant, duplicative, outside
the scope of permissible discovery, unduly burdensome, overly broad, and not
proportional to the needs of the case.
Plaintiff argues that an answer to the request should be compelled, because that
information will lead to the discovery of relevant evidence regarding how many copies of
the PDR eBooks were distributed by Defendants. That explanation is nonsensical. It does
not follow—in any conceivable way—that Plaintiff’s personal receipt of a copy of the digital
PDRs that were published by Defendants would shed light on the total number of PDR
eBooks downloaded between 2011 and the present. The only information to be gained by
this request is the content of the digital PDRs, which is not an issue in the commission
allegation. Therefore, Plaintiff’s motion for an order compelling a response to Request for
Production No. 7 is DENIED.
D.

Interrogatory No. 8 and Request for Production No. 9

In these discovery requests, Plaintiff asks Defendants to explain how much money
Defendants were paid by pharmaceutical companies that “indirectly funded” Defendants
during the relevant time period and to provide related documents. Plaintiff argues that
this information is critical to the commission allegation, because Plaintiff must establish
how much money Defendants received and how many copies of the eBook were
downloaded. Defendants respond that these requests are not narrowly tailored to the
commission allegation and, thus, are beyond the scope of permissible discovery. Plaintiff
asserts that requiring it to narrow its requests to payments made based on downloaded
copies of the PDR eBook is an “artificial limitation” not imposed by the District Court or
the Fourth Circuit. (ECF No. 115 at 2). Plaintiff is incorrect.
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In order for Plaintiff to prove its commission allegation, it must show that the faxed
advertisements themselves had a commercial nexus; in other words, that Defendants
received a commercial advantage directly from faxing the advertisements when PDR
eBook were downloaded. Carlton & Harris Chiropractic, Inc., 80 F.4th at 475 (“In other
words, PDR Network profits when its fax persuades a medical practitioner to accept the
proffered eBook.”). By separating the issue of the amount of money Defendants received
from pharmaceutical companies from the number of downloaded PDR eBooks, Plaintiff
has expanded the scope of the requests beyond the commission allegation. Defendants
indicate that pharmaceutical companies pay Defendants for services unrelated to
downloads of the PDR eBook. For example, the companies pay Defendants a fee simply
to have the drug information listed in the reference, and that amount is not tied to
downloads of the PDR eBook or the advertisements at issue. Consequently, the only
information relevant to the commission allegation is how much money Defendants earn
when a PDR eBook, or a certain number of PDR eBooks, are downloaded by a recipient
of the advertisement. Id. at 478 (“Carlton & Harris's commission allegation may be
plausible, … but that does not mean it will be borne out by discovery. Instead, discovery
may show that there are no commission payments, nor anything else to support a finding
that PDR Network's free offer is commercial in nature.”). The discovery requests, as
written, do not tie the income to the faxed advertisements. Therefore, the requests are
beyond the scope of permissible discovery. As such, Plaintiff’s motion for an order
compelling complete answers to Interrogatory No. 8 and Request for Production No. 9 is
DENIED.
E.

Interrogatory No. 9 and Request for Production No. 10

Interrogatory No. 9 and Request for Production No. 10 seek information and
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documentation reflecting the number of copies of the PDR eBook that were downloaded
during the relevant time period. Defendants refuse to provide the information on the
ground that Plaintiff should first have to show that a commission was earned on each PDR
eBook downloaded. Plaintiff contends that these requests are key to making that showing.
The undersigned agrees with Plaintiff. The point of the commission allegation is
that the advertisements directly resulted in profit to Defendants if PDR eBooks were
downloaded by facsimile recipients. The amount of the commission may have been
calculated per eBook downloaded. Or perhaps the commission was paid on a volume
basis; for instance, the pharmaceutical companies paid a fee for having their information
included in the PDR eBook, and then paid an additional fee if more than a certain number
of PDR eBooks was downloaded. In either case, the number of eBooks downloaded in
connection with the faxed advertisements would be required to determine how, and if,
the advertisements resulted in profit to Defendants. Defendants do not contend that PDR
eBooks were downloaded by individuals who did not receive the advertisements;
therefore, the presumption is that digital PDRs were only received by recipients of the
advertisements who requested them, making the number of copies downloaded relevant.
Plaintiff is not required to prove its case before discovery is completed.
Defendants also object to the “relevant time period,” which as previously stated,
includes 2011 through trial. In their responses, Defendants arbitrarily limited the time
frame to the filing of the complaint in 2015. However, Defendants have not provided an
acceptable justification for their objection and for their limitation; particularly, as (1)
Plaintiff alleges that Defendants continue to send unsolicited faxed advertisements, and
(2) Plaintiff may amend or supplement its complaint in the future to conform with the
evidence gathered. See Fed. R. Civ. P. 15. Accordingly, as these discovery requests seek
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information relevant to the commission allegation, Plaintiff’s motion for an order
compelling Defendants to provide complete answers to Interrogatory No. 9 and Request
for Production No. 10 is GRANTED. Defendants are ORDERED to serve supplemental
responses to these discovery requests within fourteen days of the date of this Order and
file the requisite certificate of service.
F.

General and Boilerplate Objections

Plaintiff points out that Defendants included general and boilerplate objections in
their responses to discovery, which are not acceptable in this circuit. Defendants’
responses are a perfect example of how not to answer discovery requests. Defendants
preface their responses with a litany of “General Objections” which are expressly
incorporated into each specific response and are “in addition to” any specific objection.
Courts in this circuit disfavor general objections. See, e.g., Mainstreet Collection, Inc. v.
Kirkland's, Inc., 270 F.R.D. 238, 240 (E.D.N.C. 2010) (mere recitation of the familiar
litany that a request is overly broad, burdensome, oppressive, and irrelevant does not
constitute a specific objection); Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W. Va. 2010)
(“general objections to discovery, without more, do not satisfy the burden of the
responding party ... because they cannot be applied with sufficient specificity to enable
courts to evaluate their merits.”); Mills v. East Gulf Coal Preparation Co., LLC, 259
F.R.D. 118, 132 (S.D.W. Va. 2009) (“boilerplate objections regurgitating words and
phrases from Rule 26 are completely unacceptable.”). These “General Objections” raise
the protection for proprietary information, the attorney-client privilege, and attorney
work

product

protection;

they

object

to

vagueness,

ambiguity,

duplication,

burdensomeness, and over breadth; they reserve Defendants’ right to supplement or
revise answers; they refuse to produce documents belonging to third parties; and other
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such nonsense. Of course, they apply only “to the extent” that they are applicable.
The “General Objections” are absolutely improper. Mancia v. Mayflower Textile
Services Co., 253 F.R.D. 354, 358–59 (D. Md. 2008) (court disapproves of a general
objection asserted “to the extent” that it applies). By raising these non-particularized
objections, Defendants run the risk of waiving any valid objections that may exist. Id. at
359; see also Mezu v. Morgan State University, 269 F.R.D. 565, 573 (D. Md. 2010).
Indeed, if there were any responses to which Defendants should have asserted a privilege
and supplied a privilege log, those tasks should have been done at the time of the
responses. The “General Objections” will not preserve a privilege or any protection from
discovery.
Despite listing “General Objections” that are incorporated into every response,
Defendants nonetheless reassert many of them in the actual answers. The answers are so
enmeshed in objections that it is impossible to discern whether the responses are
complete. Answering discovery requests in this manner reflects poor lawyering. A lawyer
should not throw every conceivable objection at a discovery request and then expect the
adverse party to determine which objections might apply. Duplicative, repetitive,
boilerplate objections do nothing but confuse the reader and dodge the question. Such a
litigation tactic is prohibited in federal court. Quite frankly, the undersigned is astounded
and troubled that, despite clear and established case law holding that such objections are
improper, counsel for Defendants asserted unsupported and insupportable general
objections in response to every discovery request.
Having said this, because many of the requests were clearly beyond the scope of
the limited discovery allowed, or were disproportional to the needs of the case, the general
objections were not considered in the undersigned’s rulings. However, Defendants are
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admonished to eliminate all general, unsupported objections from their supplemental
answers to Interrogatory No. 9 and Request for Production No. 10.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: April 3, 2024

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