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Sharon Newton v. Clearwire Corporation

September 22, 2011

SHARON NEWTON, PLAINTIFF,
v.
CLEARWIRE CORPORATION,
DEFENDANT.



ORDER

This matter came before the court on August 26, 2011, for hearing on plaintiff Sharon Newton's motion to compel further responses to discovery requests. Attorney Bryce Miller appeared telephonically on behalf of plaintiff and attorney Kenneth Payson appeared telephonically on behalf of defendant Clearwire Corporation.

After considering all written materials submitted in connection with the motion, and after hearing oral argument, the court took the motion under submission for decision. For the reasons set forth below, plaintiff's motion to compel will be granted in part.

BACKGROUND

Plaintiff, a Clearwire Internet service subscriber, sued defendant Clearwire Corp. alleging that it illegally throttles the internet connection speeds of its customers. Plaintiff asserts claims for violation of California's consumer protection statutes, breach of contract, and unjust enrichment, and seeks declaratory and injunctive relief on behalf of a proposed nationwide class. Defendant disputes plaintiff's claims and contends that those claims are being asserted in the wrong forum. On April 25, 2011, pursuant to stipulation and order this case was stayed pending the decision of the United States Supreme Court in the case of AT&T v. Concepcion. (Doc. No. 14.) On May 13, 2011, the stay was lifted by stipulation and order. (Doc. No. 17.)

On June 9, 2011, defendant Clearwire filed its motion to compel arbitration and stay claims, contending that in her service contract plaintiff had expressly waived her right to participate in class action litigation and instead agreed to arbitrate on an individual basis the claims she seeks to assert here. Responding to defendant's motion to compel arbitration, plaintiff served interrogatories and requests for production of documents which she deemed related to the formation and validity of the arbitration clause. Defendant Clearwire agreed to produce documents related to plaintiff's assent to the arbitration provision contained in the Terms of Service contract, but refused to respond to requests for discovery aimed at information regarding its arbitration and litigation experience with customers other than plaintiff. This motion to compel followed.*fn1

DISPUTED DISCOVERY REQUESTS

The following interrogatories propounded by plaintiff are in dispute:

1. Identify the number of instances in which Clearwire requested or initiated arbitration against a current or former Clearwire customer and for each such instance provide the name of the customer and describe the outcome of the request for arbitration or the arbitration proceedings.

2. Identify the number of instances in which Clearwire has initiated nonarbitration legal or debt collection proceedings*fn2 against a current or former Clearwire customer and for each instance identify the name of customer and describe the outcome of the proceedings.

3. Identify the number of instances in which a current or former Clearwire customer has requested or initiated arbitration of a claim against you and for each such instance provide the name of the customer and describe the outcome of the request for arbitration or arbitration proceedings.

4. Identify the number of instances in which a current or former Clearwire customer has initiated non-arbitration legal proceedings against you and for each such instance identify the name of the customer and describe the outcome of the proceedings.

The following request for production of documents propounded by plaintiff is in dispute:

8. Produce any and all documents that relate to the policies and procedures Clearwire has implemented or followed regarding any arbitration provision found in any alleged Terms of Service, including by not limited to the policies and procedures for handling requests to opt-out of arbitration, requests to arbitrate, or the ...


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