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Erik Knutson and Kevin Lemieux v. Home Service

March 25, 2013


The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge


Plaintiffs and Defendant Schwan's Home Service, Inc. filed a Joint Motion for Determination of Discovery Dispute on February 14, 2013. (ECF No. 36.) The parties submitted a Supplemental Joint Motion on March 12, 2013. (ECF No. 43.) After reviewing the Joint Motions and supporting exhibits, the Court GRANTS Plaintiffs' request to compel, as outlined below.


This is a class action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA"). Plaintiffs seeks to represent a class of individuals who received calls on their cell phones from Defendant without prior express consent. Plaintiffs have served Requests for Production and Interrogatories on Defendant seeking information about: (1) the number of calls Defendant placed to cell phones; (2) Defendant's evidence of "prior express consent;" and (3) Defendant's insurance coverage. Defendant has objected to the discovery requests on grounds that they are not relevant to class certification and are unduly burdensome. In addition to briefing their dispute about these three categories of discovery requests, the parties submitted supplemental briefing addressing two specific requests: Plaintiffs' Interrogatory No. 26 (Set Two) and Plaintiffs' Request for Production No. 28 (Set Two). Interrogatory No. 26 seeks information regarding the number of calls Defendant made on behalf of Nutri-Systems. Request for Production No. 28 requests Defendant's outbound dial list and report for such calls.


The threshold requirement for discoverability under the Federal Rules of Civil Procedure is whether the information sought is "relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). In addition, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The relevance standard is thus commonly recognized as one that is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

However broadly defined, relevancy is not without "ultimate and necessary boundaries." Hickman, 329 U.S. at 507. Accordingly, district courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); Vonole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) ("District courts have broad discretion to control the class certification process, and '[w]hether or not discovery will be permitted . . . lies within the sound discretion of the trial court.'"). District courts also have broad discretion to limit discovery. For example, a court may limit the scope of any discovery method if it determines that "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(C)(I).

Generally at the pre-class certification stage, discovery in a putative class action is limited to certification issues such as the number of class members, the existence of common questions, typicality of claims, and the representative's ability to represent the class. Oppenheimer Fund, Inc., 437 U.S. at 359. Although discovery on the merits is usually deferred until it is certain that the case will proceed as a class action, the merits/certification distinction is not always clear. Facts that are relevant to the class determination frequently will overlap with those relevant to the merits of the case. See Wal-Mart Stores Inc. v. Dukes, 131 S.Ct. 2541, 2551-52 (2011) (explaining that often the "rigorous analysis" under Rule 23(a) "will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.").

Category One: Outbound Dial Lists

Plaintiffs argue Defendant shouldbe compelled to produce its outbound dial lists and call reports for the dial lists. Plaintiffs assert this information is relevant to Plaintiffs' claims regarding outbound autodialed calls and is needed to adequately prepare a motion for class certification. Defendant objects to producing the information. Defendantcontends Plaintiffs' requests are overbroad and seek information that is irrelevant at this stage in the litigation. Defendant also argues it would be unduly burdensome to produce the information sought by Plaintiffs.

As an initial matter, the Court overrules Defendant's objections to the extent they are based on Defendant's assertion that discovery has been bifurcated. The Court clarifies that discovery is not bifurcated in this case. That being said, discovery at this pre-certification stage should be focused on class certification issues.

Plaintiffs argue that the outbound dial lists and reports are necessary to establish the numerosity and ascertainability of the class. Defendant argues the information is not relevant and not necessary at this time. Defendant states that it is willing to stipulate to the numerosity requirement, which alleviates Plaintiffs' need for the information. Defendant also argues Plaintiffs don't need the outbound dial lists to determine if it is possible to identify specific class members.

The Court finds that the information sought by Plaintiffs is relevant to class certification issues. True, it overlaps with the merits of Plaintiffs' case. However, as the Supreme Court recently recognized, this is not altogether uncommon in class actions. See Wal-Mart Stores Inc. v. Dukes, 131 S.Ct. 2541, 2551-52 (2011). The Court finds it is likely the outbound dial lists and reports will illuminate issues such as the number and ascertainability of potential class members, the typicality of their claims, and whether common questions of law or fact exist, thus making the class action device appropriate in this case. See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985) (pre-certification discovery should be allowed if it is likely to substantiate the class allegations). Although Defendant offers to stipulate to the numerosity requirement, the Court notes that the proffered stipulation*fn1 does not include the ascertainability requirement. Also, the Court notes it may be helpful for Plaintiffs to be able to articulate in their motion for class certification how large, or small, the proposed class is expected to be. This information may also be relevant to issues such as manageability.

Defendant also objects that producing the outbound dial lists and reports would be burdensome. Defendant states that Plaintiffs are ...

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