United States District Court, E.D. California, Sacramento
ONDRA MBAZOMO, on Behalf of Herself and all Others Similarly Situated, Plaintiff,
ETOURANDTRAVEL, INC., Defendant.
ORDER ON MOTION TO COMPEL
Stanley A. Bastian United States District Judge.
the Court is Plaintiff's Notice of Motion and Motion to
Compel Production of Documents and Further Responses to
Interrogatories, ECF No. 20. The Court has considered the
motion, ECF No. 20; Plaintiff's Notice of Request to Seal
Documents, ECF No. 21; the Joint Statement Regarding the
Discovery Disagreement, ECF No. 22, and the associated
declarations and exhibits; the sealed documents, ECF Nos. 29
and 30; Plaintiff's Request for Judicial Notice, ECF No.
23; and Plaintiff's Request for Leave to File Response to
Brannon Declaration, ECF No. 25.
briefed of the issues, the Court GRANTS the
motion, orders the production of discovery as described in
detail below, and declines to order the award of costs and
fees in preparing this motion.
September 19, 2016 Plaintiff Ondra Mbazomo filed this case
under the 3 federal Telephonic Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq.,
alleging that Defendant ETourandTravel, Inc. illegally
telephoned her using an autodialier or an artificial or
pre-recorded voice. Plaintiff filed the case as a putative
class action. Defendant moved to dismiss the case on November
9, 2016 and the Court denied the motion on December 8, 2016.
Defendant properly answered and the parties entered a
stipulated protective order, which the Court declined to
enter itself. An initial scheduling conference occurred on
January 23, 2017 where the Court ordered discovery to ensue
and set a timeline for a motion for class certification to be
filed. The parties met and conferred on several discovery
disputes over the month of March 2017. Plaintiff filed the
instant motion to compel on March 28, 2017.
parties jointly requested that several documents be filed
under seal, and jointly filed their Joint Statement Regarding
the Discovery Dispute, ECF No. 22. Plaintiff also requested
that judicial notice be taken of an allegedly relevant
discovery order before the United States District Court for
the Middle District of Florida.
while this motion was pending before the Court, the parties
resolved Discovery Dispute No. 8 and stipulated to the
extension of the discovery deadline and the deadline to file
the forthcoming motion for class certification. See
ECF Nos. 27 (proposing extensions) & No. 28 (ordering the
the 2015 amendments to the Federal Rules of Civil Procedure,
[p]arties may obtain discovery regarding any non-privileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the party's access to relevant
information, the party's resources, the importance of the
discovery in resolving the issues, and whether the burden and
expense of the proposed discovery outweighs its likely
Civ. P. 26(b)(1). “The parties and the court have a
collective responsibility to consider the proportionality of
all discovery and consider it in resolving discovery
disputes.” In re Bard IVC Filters Prod. Liab.
Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)
(quoting Fed. R Civ. P. 26 Advis. Comm. Notes 2015 Amends.)).
In a class action case, “[p]recertification discovery
lies entirely within the court's discretion.”
Doherty v. Comenity Capital Bank & Comenity
Bank, No. 16CV1321-H-BGS, 2017 WL 1885677, at *3 (S.D.
Cal. May 9, 2017) (citing Fed. R Civ. P. 23). See also
Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,
942 (9th Cir. 2009) (citing Doninger v. Pac. Nw. Bell,
Inc., 564 F.2d 1304, 1313 (9th Cir. 1977))
(“District courts have broad discretion to control the
class certification process.”).
in some cases and before some courts discovery may be
initially 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, ” Gusman v. Comcast
Corp., 298 F.R.D. 592, 595 (S.D. Cal. 2014) (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359
(1978)), the Court is fully within its discretion to set
either bifurcated or non-bifurcated discovery schedules in
class action cases. McEwan v. OSP Grp., L.P., No.
14-CV-2823-BEN (WVG), 2016 WL 1241530, at *2 (S.D. Cal. Mar.
30, 2016). See also True Health Chiropractic Inc. v.
McKesson Corp., No. 13-cv-02219-JST, 2015 WL 273188, at
*1 (N.D. Cal. Jan. 20, 2015) (“The decision to
bifurcate discovery in putative class actions prior to
certification is committed to the discretion of the trial
court.”). Indeed, “[f]acts that are relevant to
the class determination frequently will overlap with those
relevant to the merits of the case.” Gusman,
298 3 F.R.D. at 595 (citing Wal-Mart Stores Inc.
v. Dukes, 564 U.S. 338, 349 (2011)).
for Judicial Notice, ECF No. 23.
exhibits 11 and 12 were 7 filed with the Joint Statement, the
Court takes judicial notice of them. Lee v. City
8 of LA., 250 F.3d 668, 689 (9th Cir. 2001)
(“[A] court may take judicial notice of ‘matters
of public record.'”). Plaintiff argues that in
another case, Gonzalez v. ETourandTravel, M.D. Fla.
6:13-cv-827, a judge granted a similar motion to compel.
However, because the order in question is not binding on this
Court, and presented in a different posture, consideration of
the Gonzalez order made no effect on the Court's
for Leave to File Response to Declaration of Adam Brannon in
Support of Defendant's Position in Joint Statement Re:
Discovery Disagreement, ECF No. 25.
Rule 251(c) of the United States District Court for the
Eastern District of California (construing Fed.R.Civ.P. 37)
holds that “[a]ll arguments and briefing that
would otherwise be included in a memorandum of points and
authorities supporting or opposing the motion shall be
included in this joint statement, and no separate
briefing shall be filed” (emphasis added).
Defendant filed a separate declaration authored by Adam
Brannon on April 14, 2017, which purports to address issues
of burdensomeness raised in the Joint Statement, ECF No. 22.
Plaintiff argues this is in violation of Local Rule 251(c),
and asks that the Court not consider the document. In her
Request for Leave to File Response, Plaintiff asks in the
alternative that if the Court considers the affidavit filed
by Mr. Brannon, that she be allowed to file a rebuttal
affidavit to contest the factual offerings from Defendant.
ruling in this district indicates the affidavit should not be
considered: “[B]y filing a separate Memorandum of Law,
and separate declarations in support of its motion, [a
different] defendant was not in compliance with E.D. Cal. R.
251, which permits only the filing of (1) the Notice, and (2)
a Joint Statement, and no other documents. The Joint
Statement . . . would include all the documents which
defendant, improperly, filed separately. ” Andrews
v. Pride Indus., No. 2:14-CV-2154 KJM AC, 2016 WL
366394, at *1 (E.D. Cal. Jan. 29, 2016) (declining to
consider separate filings). Thus, the Court will not consider
the Brannon affidavit, and will not allow Plaintiff to submit
her own affidavit.
Disputes 111, ECF No. 22.
Court proceeds to decide each of the eleven discovery
disagreements the parties have presented, in accord with the
above conclusions surrounding what materials to use in
analyzing the disputes.
Discovery Issue #1:
dispute is an umbrella challenge to Defendant's allegedly
boilerplate discovery objections regarding confidentiality;
burden; vagueness; and relevance. The specific objections to
particular numbered issues will be discussed in detail below;
these summaries provide the Court's overall conclusions
on the global objections.
objects to the disclosure of names and telephone numbers of
potential class members on privacy grounds. Plaintiff further
points out that the parties have signed a protective order,
while Defendant argues that that protective order has not
been, and will not be, signed by the Court.
right of privacy is not absolute and may be subject to
invasion depending on the circumstances. Thus, privacy
concerns are not an absolute bar to discovery, but instead
are subject to the balancing of needs.” Burgess v.
Wm. Bolthouse Farms Inc., No. 08-CV-1287LJOGSA, 2009 WL
4810170, at *3 (E.D. Cal. Dec. 8, 2009). The requesting party
must bear the burden of showing that the need for the
information outweighs the privacy right involved. Rangel
v. Am. Med. Response W., No. 1:09-cv-01467 AWI GSA, 2010
WL 5477675, at *3-4 (E.D. Cal. Dec. 30, 2010).
determining TCPA actions, California federal courts routinely
hold that name and telephone number disclosures do not
present a serious privacy invasion. See, e.g.,
Thrasher v. CMRE Fin. Servs., Inc., 2015 WL 1138469,
at *3 (S.D. Cal. Mar. 13, 2015). In contrast, Plaintiff's
need to establish class certification via the disclosure of
these names and telephone numbers is essential to her case.
Plaintiff has shown that her needs to pursue class action
status outweigh this minimal privacy right.
the Court's refusal to grant the request to enter the
protective order does not limit its effectiveness as signed
by the parties. The Court concludes that confidentiality
concerns do not limit the requested discovery. See
Wiegele v. FedEx Ground Package Sys., No.
06-CV01330-JM(POR), 2007 WL 628041, at *2, (S.D. Cal. Feb. 8,
2007) (“[B]efore class certification has taken place,
all parties are entitled to equal access to persons ...