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Martin F. Rooney, Individually and On Behalf of All Others Similarly Situated v. Sierra Pacific Windows


June 1, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Martin F. Rooney has moved for evidentiary sanctions against Defendant Sierra Pacific Windows based on Defendant's alleged failure to obey a discovery order. Pursuant to Civil Local Rule 7-1(b), the Court finds that this motion is appropriate for determination without oral 20 argument and vacates the motion hearing scheduled for June 2, 2011. Having carefully considered 21 the submissions of the parties and the relevant law, the Court denies Plaintiff's motion for 22 sanctions. However, in order to minimize any prejudice to Plaintiff caused by Defendant's delay in 23 document production, the Court will continue the hearing and briefing schedule for Plaintiff's 24 motion for class certification, as set forth below.


Plaintiff Martin F. Rooney filed a class action complaint on March 3, 2010. The Complaint alleged that Defendant Sierra Pacific Windows "unilaterally, retroactively and without notification changed the duration of the warranty" on its windows "such that purchasers whose windows failed 2 after ten years from the date of purchase" were required to pay additional amounts for window 3 replacements or repairs. Compl. ¶ 1. Apparently based on Defendant's initial disclosures and 4 responses to discovery, Plaintiff determined that Defendant had not actually changed its warranty, 5 but rather the time-limited warranty had been in place at the time that Plaintiff purchased his 6 windows. See Joint Case Management Statement ("JCMS") at 2-3, 5, Oct. 29, 2010, ECF No. 27.

Thus, on December 2, 2010, Plaintiff filed a First Amended Complaint ("FAC"), which alleged 8 that Defendant failed to adequately convey its written warranty to its customers prior to sale of its 9 window products. FAC ¶ 2, ECF No. 31. The FAC added a new claim for violations of the March 16, 2011, at which the parties raised a number of discovery disputes. Prior to the CMC, Defendant's failure to timely respond to discovery propounded by Plaintiff. See Decl. of Andrew Plaintiff's counsel submitted a timeline which indicated that Plaintiff had served a first set of 18 requests for documents and a first set of special interrogatories on August 20, 2010. Id. Ex. A.

Based on this submission, it appeared that Defendant had not timely responded to the August 20 20 discovery requests, and it was unclear whether Defendant had responded at all.*fn1 Accordingly, at 21 the CMC the Court expressed disappointment at both Defendant's failure to respond to discovery 22 requests and Plaintiff's failure to take appropriate action, such as filing a motion to compel, to 23 ensure that discovery progressed in a timely fashion. The Court advised Plaintiff that if Defendant 24 engaged in further delay or obfuscation, Plaintiff should file a motion for sanctions. The Court Magnusson-Moss Act, 15 U.S.C. §§ 2301 et seq., which requires full and conspicuous disclosure of the terms and conditions of a written warranty, see 15 U.S.C. § 2302(a).

Relevant to this motion, the Court held a Case Management Conference ("CMC") on Plaintiff's counsel filed a declaration in which he claimed that the delay in the case was due to

A. August in Supp. of JCMS ("August JCMS Decl."), ECF No. 38. With his declaration, then discussed what discovery would be needed for the upcoming mediation, and the parties agreed 2 upon a timeline for producing this discovery. Following the CMC, the Court issued an order that 3 required Defendants to produce discovery as follows:

(1) By March 30, 2011, Defendant shall provide discovery regarding the consumers who paid for window repairs or replacement from 2006 forward and the amounts paid;

(2) By April 20, 2011, Defendant shall provide discovery regarding the consumers who paid for window repairs or replacement from 2000-2006 and the amounts paid.

Minute Order and Case Management Order, Mar. 16, 2011, ECF No. 39. The Court's 9 understanding was that the parties needed the aggregate numbers for each of the above categories 10 for mediation.

On March 30, 2011, Defendant served Plaintiff with interrogatory responses that provided the number of consumers who paid for window repairs or replacement, and the total amount paid, 13 between March 3, 2006, and December 31, 2010. Decl. of Meghan M. Baker in Supp. of Opp'n to Pl.'s Mot. for Sanctions ("Baker Decl.") at 4-5, Ex. Z, ECF No. 55. On April 20, 2011, Defendant 15 served Plaintiff with interrogatory responses providing the same information for the period 16 between December 16, 2002, and March 2, 2006. Id. Ex. AA at 4, 6. Defendant claims that it does 17 not have information in its Customer Service Database relating to warranty service provided prior 18 to December 16, 2002.

It seems that Defendant believed that its interrogatory responses were sufficient to comply with the Court's discovery order, while Plaintiff believed that the Court's order required Defendant 21 to produce all documents regarding consumer repairs or replacements and the amounts paid.

During the months of March and April, the parties continued to meet and confer regarding this 23 dispute, as well as the timing of other discovery requested by Plaintiff. Eventually the parties filed 24 a "Stipulation Regarding the Production of Documents and Information to Plaintiff," which the Court approved. Pursuant to parties' stipulation, Defendant agreed to begin a rolling production of 26 certain documents agreed upon by the parties on April 20, 2011, and to complete production, 27 barring any unforeseen difficulties, by May 2, 2011. See Stipulation Regarding the Production of Documents and Information to Plaintiff at 3, ECF No. 42. The parties dispute what was meant by "rolling production," and it appears that Defendant encountered some difficulty because the search 3 terms it used generated a greater volume of documents than expected. Ultimately, Defendant 4 produced one 28-page product catalogue to Plaintiff on April 20, 2011, and then served nearly 75,000 pages of searchable PDF documents by overnight mail on May 2, 2011. Plaintiff received 6 these documents on May 3, 2011.

On May 13, 2011, Plaintiff filed a motion for evidentiary sanctions based on Defendant's alleged failure to obey the Court's Case Management Order or to comply with the stipulation 9 approved by the Court. Citing Federal Rule of Civil Procedure 37(b)(2), Plaintiff seeks sanctions 10 precluding Defendant from introducing at trial, or in connection with any motion or opposition to any motion, any documents requested by Plaintiff's first request for production of documents that were not produced and received by Plaintiff prior to May 2, 2011. Defendant opposes the motion.

permit discovery . . . the court where the action is pending may issue further just orders." Such 16 orders may include "prohibiting the disobedient party from supporting or opposing designated 17 claims or defenses, or from introducing designated matters in evidence." Fed. R. Civ. P. 37(b)(2)(A)(ii). Here, Plaintiff seeks an order prohibiting Defendant from introducing, at trial or in 19 connection with any motion, any documents covered by Plaintiff's first request for production of 20 documents that were not produced and received by Plaintiff prior to May 2, 2011. Plaintiff argues 21 that such sanctions are warranted based on Defendant's failure to produce documents by the dates 22 set in the Court's March 16, 2011 Case Management Order. Plaintiff also claims that sanctions are 23 warranted because Defendant failed to comply with the spirit of the parties' stipulation, approved 24 by Court order, by "dumping" 75,000 documents on Plaintiff on May 3, 2011, rather than 25 providing the rolling production agreed upon by the parties.*fn2


Pursuant to Federal Rule 37(b)(2)(A), "[i]f a party . . . fails to obey an order to provide or Pioneer letter to all of its customers. See Pioneer Electronics (USA), Inc. v. Superior Court, 40 provide discovery was either substantially justified or harmless. See Lewis v. Ryan, 261 F.R.D. 513, 522 (S.D. Cal. 2009) (noting that exclusion of evidence under Rule 37(b)(2) is not appropriate 4 where the failure to produce documents was either "substantially justified or harmless"); Yeti by "harshness" of Rule 37(c) sanctions excluding expert testimony is ameliorated by an exception 7 permitting testimony if the parties' failure to disclose information is "substantially justified or 8 harmless"). In this case, such a sanction would be particularly harsh, as it would preclude Evidentiary preclusion is a harsh sanction that generally is not imposed where the failure to Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-06 (9th Cir. 2001) (noting that the

Defendant from introducing any of the 75,000 pages of documents served on May 2, 2011, and 10 thus would likely prevent Defendant from effectively opposing class certification or defending on the merits. Having reviewed the evidence, the Court finds that such harsh sanctions are not warranted.

provide discovery. When the Court ordered the production of discovery at the March 16, 2011 CMC, the Court was primarily concerned with ensuring that the parties had enough information to 16 hold a productive mediation session by May 16, 2011. See Transcript of March 16, 2011

Decl."), Ex. A at 13-15, 23-26 (discussing discovery needed for purposes of mediation). When 19 asked what information would be necessary for the mediation, the parties focused on "numbers" -- 20 that is, the number of customers who had their windows replaced or repaired and the amount of 21 money paid to Defendant for those repairs and replacements. See id. at 14-15, 23. Accordingly, 22

Cal. 4th 360, 374, 150 P.3d 198 (2007) (holding that a trial court may order a defendant to notify complaining customers of a pending class action lawsuit and disclose contact information for those 24 customers who do not affirmatively object to the disclosure). Plaintiff also claims that Defendant has not facilitated physical inspection of its retail locations in advance of the class certification 25 motion and has delayed the 30(b)(6) deposition requested by Plaintiff. These issues were not addressed in the Court's orders and therefore do not serve as grounds for evidentiary sanctions 26 under Rule 37(b)(2). See Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) ("Rule 37(b)(2)'s requirement that there be some form of court order that 27 has been disobeyed has not been read out of existence; Rule 37(b)(2) has never been read to authorize sanctions for more general discovery abuse.").

As an initial matter, it is not clear that Defendant actually failed to obey a Court order to Proceedings, Decl. of Andrew A. August in Supp. of Mot. for Evidentiary Sanctions ("August 18

when the Court set dates for production of this information, the Court asked the Defendant to 2 provide a date by which it would "give them the numbers for four years back," id. at 17, and 3 another date by which it could "give more numbers further back than four years." Id. at 23. After Defendant provided acceptable dates, the Court stated "I just think it would be beneficial for you 5 all to have exchanged those numbers before mediation." Id. at 24. The parties later confirmed that 6 the production would be two-fold, including both the consumers and the amount paid. Id. at 28.

At no point did the Court specify whether this information needed to be produced through answers 8 to interrogatories, document production, or both. The Court was concerned with ensuring that the 9 parties had the numbers they needed to fully evaluate the case for purposes of mediation, which 10 was set to take place several months before the discovery cut-off. Given the focus on numbers at the CMC, and the lack of specificity in the Court's order, it was not unreasonable for Defendant to believe that it could satisfy the Court's order by providing the required numbers in responses to 13 interrogatories.

does appear that Defendant failed to provide a truly "rolling" production of documents by serving 16 the vast majority of documents on May 2, 2011, the day for completion of the rolling production.*fn3

It is also true that many of the documents ultimately served on May 2, 2011 were requested many 18 months earlier, in August 2010. However, Defendant had repeatedly objected to the breadth of Plaintiff's August 2010 request for production, which demanded an extensive range of documents 20 dating back to 1996. See Request for Production of Documents, Set One, Baker Decl. Ex. B.

Plaintiff had not moved to compel this production, and the parties had not resolved this dispute 22 prior to the March 16, 2011 CMC. While it is quite unfortunate that Defendant did not produce the 23 documents earlier, its failure to provide a truly rolling production does not warrant the harsh 24 sanction Plaintiff seeks. By May 3, 2011, Plaintiff had received nearly all of the documents it

As to Defendant's production of documents pursuant to the Court-approved stipulation, it requested,*fn4 and any resulting prejudice to Plaintiff can be cured through less severe means. See Mixt Greens v. Sprout Cafe©, No. C-08-5175 EMC, 2010 WL 2555753, at *1 (N.D. Cal. June 21, 2010) (finding that preclusion sanction would be "excessively severe" where defendants belatedly 4 produced nearly all discovery sought and plaintiff did not suffer irreparable prejudice). 5

For these reasons, the Court denies Plaintiff's motion for evidentiary sanctions. However, the Court is sensitive to the fact that Plaintiff may be prejudiced by Defendant's delay in producing 7 discovery if the schedule for Plaintiff's class certification motion remains as set. Accordingly, the Court will extend the schedule for briefing and hearing of Plaintiff's class certification motion as 9 follows:

(1) The deadline to file a motion for class certification, as well as any motion challenging subject matter jurisdiction under CAFA, is extended to July 21, 2011.

(2) Opposition briefs are due August 4, 2011.

(3) Replies are due August 11, 2011.

(4) The Court will hold a hearing, if necessary, on September 1, 2011, at 1:30 p.m.

III. Conclusion

For the foregoing reasons, the Court DENIES Plaintiff's motion for evidentiary sanctions and extends the schedule for hearing and briefing of Plaintiff's class certification motion.


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