United States District Court, N.D. California
ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR SANCTIONS Re: Dkt. No. 162
DONNA M. RYU, Magistrate Judge.
Plaintiffs filed a motion for sanctions for Defendants' alleged failure to produce discovery previously ordered by this court. [Docket No. 162.] The court held a hearing on the motion on March 26, 2015. For the reasons stated below and at the hearing, the court grants in part Plaintiffs' motion.
I. BACKGROUND AND PRIOR COURT ORDERS
This is a putative class action brought under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 ("TCPA"). It challenges Defendants' alleged practice of sending unsolicited facsimile advertisements, or so-called "junk faxes."
This is the parties' third time before the court on the same discovery issues. In October 2013, Plaintiffs served the document requests, interrogatories, and requests for admission that form the basis for the underlying disputes. Mot. at 3. Plaintiffs filed their first motion to compel Defendants to produce "all facsimile advertisements that it transmitted during the four-year period prior to the filing of the Complaint" on June 23, 2014. [Docket No. 79.] Judge Tigar, the then-presiding judge, handled the dispute and delayed a determination on the matter because Defendants' motion to stay the case was still pending. See Docket No. 87. On October 22, 2014, Judge Tigar denied the motion to stay and referred Docket No. 79 to this court for resolution. On November 13, 2014, the court held a hearing on Docket No. 79, as well as two other discovery letters the parties had filed in the meantime, see Docket Nos. 110, and 111. On November 14, 2014, this court issued an order compelling Defendants to produce discovery, after some additional meet and confer discussions to narrow the scope of discovery. See November 14 Order [Docket No. 127]. The parties met and conferred, but were unable to agree upon a narrower scope for the discovery, and thus presented their dispute again to this court. [Docket No. 133.] The court issued an order on Docket No. 133 on December 5, 2014, directing Defendants to produce certain discovery. See December 5 Order [Docket No. 143].
Because the specifics of the December 5 Order are at issue in the sanctions motion, the court will review its prior order in greater detail.
A. Exemplar Faxes [Docket No. 79]
In Docket No. 79, Plaintiffs moved to compel Defendants to produce exemplars of all fax advertisements that did not include an opt-out notice that Defendants sent during the class period. In the November 14 Order, the court granted Plaintiffs' motion to compel and ordered Defendants to produce "all unique fax ads without opt-out notices sent by Defendants during the class period." However, the court noted that "the discovery request propounded by Plaintiffs is too broadly worded, and could capture documents well beyond the fax advertisements without opt-out notices' that are the subject of this case." The court therefore ordered the parties to "have a detailed and specific meet and confer session so that they can identify the types of documents that fall within the scope of this case, and those that are outside that scope." November 14 Order at 2.
The parties met and conferred, but were unable to agree upon a narrower scope for this discovery. Plaintiffs proposed that Defendants produce exemplar faxes that fall within the following description:
Any document that was: (1) created, in whole or in part, by one or more employees of the marketing department of McKesson corporation, McKesson Technologies, Inc., McKesson Provider Technologies, or other McKesson entity; (2) transmitted to one or more fax numbers via server, computer, or other automated function; (3) that advertised the commercial availability or quality of any property, good, or service or McKesson; (4) after June 20, 2009.
In the December 5 Order, the court found Plaintiffs' proposal to be reasonable "in that it describes the relevant documents while also incorporating measures likely to reduce burden and weed out non-responsive documents." December 5 Order at 3. The court also noted that Plaintiffs' definition would avoid "word-mincing disputes" about the scope of discovery. Id. The court then ordered Defendants to produce "exemplar documents meeting the definition in Plaintiffs' proposal" by December 12, 2014. Id.
B. Discovery Related to Prior Express Permission Defense [Docket No. 110]
In Docket No. 110, Plaintiffs moved to compel documents showing that the recipients of fax advertisements sent by Defendants had given Defendants prior express permission to send those faxes (i.e., documents relevant to the "permission defense"). The court granted Plaintiffs' motion to compel, stating that the "evidence sheds light on the question of whether the permission defense is an individualized inquiry or a generalized argument." November 14 Order at 2-3. However, the court also expressed its "concern that Plaintiffs' request as currently written will be burdensome." Id. at 3. The court thus ordered the parties to "meet and confer regarding a more efficient way for Plaintiffs to discover information about Defendants' permission defense. For example, if Defendants contend that a customer's software registration constitutes that customer's express permission to receive fax ads, Defendants could produce an example of one customer's software registration, and explain in an interrogatory response which recipients allegedly granted Defendants permission to send fax ads by completing similar software registrations." Id.
The parties met and conferred and Defendants agreed to produce "a supplemental interrogatory response that details the categories of permission... [and] identify the evidentiary categories that would frame discovery." Docket No. 133 at 6. However, the parties disagreed as to one aspect of this discovery request: Plaintiffs wanted Defendants to identify the recipients that allegedly fall into each category of permission, but Defendants proposed to list the number of recipients that fall into each category with no individually identifying information.
In the December 5 Order, the court rejected Defendants' proposal and stated, "The court has already ordered Defendants to identify the recipients, and has already found that the protective order is sufficient to safeguard Defendants' proprietary interests. Accordingly, Defendants shall respond to the discovery request at issue in Docket No. 110, including by identifying the names and fax numbers of the recipients, by December 12, 2014." December 5 Order at 4.
C. Transmission Records [Docket No. 111]
In Docket No. 111, Plaintiffs moved to compel the production of documents containing information about recipients of the fax ads sent by Defendants during the class period, including their identities and fax numbers, and the dates and times they received transmissions. The court found "this information to be relevant to class certification issues, and further finds that Defendants' concerns about the recipients' confidential information are adequately addressed by the parties' protective order" and therefore granted Plaintiffs' motion to compel. November 14 Order at 3. Furthermore, the court held that "[t]he universe of recipients shall be bounded by the group of fax advertisements' identified... [for] Docket No. 79." Id.
On December 5, 2014, the court noted that it had "resolve[d] the issues in Docket No. 79, " and therefore required Defendants to produce documents responsive to the discovery request ...