The opinion of the court was delivered by: U.S. Magistrate Judge Hon. William V. Gallo
ORDER ON DISCOVERY DISPUTES
Pending before the Court are several discovery disputes initiated by both parties in this case. On February 21, 2013, the parties submitted to the Court a Joint Statement for Determination of Discovery Disputes (hereafter "Joint Statement").
In the Joint Statement, Defendants claim that Plaintiffs failed to comply with this Court's Order*fn1 to provide responsive documents to Defendants' Fourth Set of Requests for Production of Documents ("RFPs"). Defendants also ask the Court to compel Plaintiffs to respond to fifty-eight subpoenas directed to witnesses represented by Plaintiffs' counsel and identified in Plaintiffs' Amended Initial Disclosures. Additionally, Plaintiffs argue that Defendants must seek documents from their remaining former employees and independent contractors listed in Defendants' Supplemental Disclosures.
On February 22, 2013, this Court held a Discovery Hearing related to all of the parties' disputes on the record in open court. Mr. Thomas Merrick, Ms. Rachel Jensen, and Ms. Amber Eck appeared on behalf of Plaintiffs, and Mr. David Schneider appeared on behalf of Defendants. After reviewing the parties' Joint Statements, the documents lodged with the Court, additional exhibits cited by Plaintiffs during the Hearing, and the relevant case law, as well as arguments advanced by counsel for all parties, the Court hereby issues the rulings set forth below.
I. PLAINTIFFS RESPONSE TO DEFENDANTS' RFPS
On September 28, 2012, Defendants served their Fourth Set of RFPs upon Plaintiffs which included (1) one RFP for the "speaker's scripts" that Plaintiffs allege every Trump University instructor was required to use; (2) RFPs regarding the "guaranteed success" that Trump University purportedly represented, telling Plaintiffs that they would make all of their money back on their first or second deal; and (3) RFPs concerning Trump University's alleged representations of "unlimited mentoring" or "one-on-one year-long mentorship."
Defendants requested that Plaintiffs either produce the documents which contain the specific alleged misrepresentations, identify the Bates stamp numbers of the pages which contain the specific alleged misrepresentations, or state that no such documents exist. In response to the RFPs, Plaintiffs responded that all responsive, non-privileged documents had been produced.
After unsuccessful meet and confer efforts, the parties submitted a Joint Statement to the Court, and on December 12, 2012, the Court held a Discovery Hearing. At the Hearing, Plaintiffs objected to the requests as being unduly burdensome and oppressive, citing the fact that over 145,000 pages of documents had already been produced in this litigation. The Court noted that, at this stage in the proceeding, Plaintiffs should be able to identify without extraordinary effort, the representations that they have been relying upon for the entire lawsuit. The Court explained that Plaintiffs brought the lawsuit based on alleged misrepresentations by Defendants, and it is not unreasonable for Plaintiffs to have to identify what they are relying on as a basis for their entire case. On December 23, 2012, the Court issued an Order requiring Plaintiffs to produce just one document in response to each of the three categories requested in the RFPs. (Doc. No. 188 at 15.)
In the instant dispute, Defendants argue that, although Plaintiffs did produce documents in response to the Court's Order, none of the documents produced were responsive to the RFPs, and therefore were not in compliance with the Order.
On September 24, 2012, Plaintiffs filed a Motion for Class Certification, in which they alleged that all of Defendant Trump University's presenters used the same, uniform, and standardized scripts. (Doc. No. 122.) Moreover, various paragraphs throughout Plaintiffs' Third Amended Complaint ("TAC") discuss the script used by speakers, teachers, and mentors. (Doc. No. 128 at 5, 68.) Plaintiffs allege in the TAC that, the in-person Seminars were highly standardized. Speakers used the same slide presentation, the same script, and even had detailed instructions for the presentation, down to where the speakers and coordinators should stand, the temperature of the room and the music to be played during the Introduction -- "Money, Money, Money" from the Apprentice show. (Doc. No. 128 at 5.)
Defendants argue that their presenters did not use scripts, and they served the RFP in an effort to obtain the documents that Plaintiffs rely upon to support these allegations. Defendants now claim that, in response to the Court's Order, Plaintiffs did not produce a speaker's script. Instead, Plaintiffs provided a setter script used by individuals in the call center who set appointments. Defense counsel represented during the Discovery Hearing that none of the named Plaintiffs ever spoke with the call center. Plaintiffs contend that they are simply reading the documents differently than Defendants, and that this is a merits dispute, rather than a discovery dispute.
In their TAC, Plaintiffs allege that they purchased courses from Defendants based on the representation that they were guaranteed to make their money back.*fn2 (TAC, Doc. No. 128 at 3, 53, 56, 59.) In response to the Court's Order, Plaintiffs produced a letter that was sent to individuals after they had already enrolled in Defendants' program. The letter did not contain any guarantees of success.
3. Year-Long or Unlimited Mentoring
Plaintiffs peppered the TAC with alleged quotes from Defendants, offering "unlimited mentoring," or "year-long mentoring." (TAC, Doc. No. 128 at 51, 55.) While Defendants claim that there is no dispute that mentors provided year-long phone support, they argue that there was never a promise of unlimited or year-long mentoring.
In response to the Court's Order, Plaintiffs produced two documents that do not reference unlimited or year-long mentoring. (Joint Statement, Defense Exh. E.) Instead, the documents reference the undisputed one year of support.
Federal Rule of Civil Procedure 37(b)(2)(A) permits a Court to impose sanctions upon a party for failing to obey a discovery order. Fed. R. Civ. P. 37(b)(2)(A). Rule 37(b)(2)(A) states, "If a party or a party's officer, director, or managing agent . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders." Rule 37(b)(2)(A)(ii) notes that possible sanctions may include prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence. Fed.R.Civ.P. 37(b)(2)(A)(ii).
This Court finds that this is a discovery issue, and not a merits issue. Defendants propounded discovery upon Plaintiffs, and Plaintiffs responded that all documents were produced. A dispute arose, and the Court ordered Plaintiffs to produce sample documents in response to the RFPs. After reviewing the documents produced and comparing them against ...