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Mirkarimi v. Nevada Property 1 LLC

United States District Court, S.D. California

October 22, 2014

SASAN MIRKARIMI, individually and on behalf of all others similarly situated, Plaintiff,
NEVADA PROPERTY 1 LLC, a Delaware limited liability company dba The Cosmopolitan Hotel of Las Vegas; DOES 1-50, inclusive, Defendants.


DAVID H. BARTICK, Magistrate Judge.

On October 10, 2014, the parties filed a Joint Motion for Determination of Discovery Dispute. (ECF No. 75.) Plaintiff requests the Court to compel Defendant to produce all documents responsive to Plaintiff's requests for production for which Defendant has agreed to produce documents, and to order Defendant to provide supplemental responses to select interrogatories and requests for production. Having considered the arguments of the parties and the applicable law, and for the reasons set forth herein, the Court GRANTS Plaintiff's motion to compel, as set forth below.


Plaintiff commenced this putative class action on July 12, 2012 by filing a complaint in the San Diego Superior Court alleging that Defendant recorded telephone calls with California consumers without their consent in violation of the California Invasion of Privacy Act, Cal. Pen. Code § 632, et seq. (ECF No. 1.) The action was removed to federal court on August 31, 2014. ( Id. ) According to the First Amended Complaint, Plaintiff seeks to certify the following class: "[A]ll natural persons who, while residing in and physically present in the State of California, and during the applicable statute of limitations: (1) participated in at least one telephone communication with a live representative of defendants that was recorded by defendants; (2) were not notified by defendants that their telephone communication was being recorded; and (3) are identifiable through defendant's records." (ECF No. 8 at ¶ 10.)


A. Legal Standards

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.'") (citing Kamm v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir. 1975)). 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 burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2)(C)(iii).

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, 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, ___ U.S. ___, 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.").

B. Plaintiff's Motion to Compel

The parties have engaged in a lengthy meet and confer process concerning discovery in this case. Over the past six months, the Court has extended the class certification discovery cutoff four times, and has granted six extensions of time to bring any discovery disputes to the Court. ( See ECF Nos. 55, 59, 61, 63, 64, 66, 68, 69, 70, 72.) During the meet and confer process, Defendant agreed to produce several categories of documents following an internal investigation to locate and collect responsive data. Plaintiff now moves to compel, on the ground that Defendant's production is incomplete. Specifically, Plaintiff identifies eight categories of documents of which Defendant agreed to produce documents, but has not yet done so. Plaintiff also moves to compel further responses to Interrogatories Nos. 17 and 25, and Request for Production No. 128. Defendant does not dispute that it has agreed to produce the requested information and documents to Plaintiff. Defendant states that it is has been working diligently to collect the information Plaintiff requests, and anticipates completing its production shortly.

1. Outstanding Document Production

Plaintiff argues Defendant has failed to produce any documents for the following categories, despite Defendant's agreement to produce them: (1) the recording policies, procedures, and practices that were in effect during the class period; (2) the telephone lines used for outbound calls that were recorded during the class period, the names and addresses of individuals to whom those calls were made, and the identity of the agent who participated in each call; (3) any instances in which Defendant's agents provided a notice or warning that a call may be recorded, or in which a caller asked whether the call was being recorded; (4) call system and recording system data concerning the subject telephone calls; (5) audio recordings that were made during the class period, the recordings that still exist, the policies, practices, and procedures for maintaining and preserving the recordings, and identification of the audio files; (6) the names contact information, and job titles of current or former personnel in Defendant's Information Technology ("IT") department; (7) information reflecting spa reservations made by telephone; and (8) the name, address, and telephone number of California ...

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