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Mbazomo v. Etourandtravel, Inc.

United States District Court, E.D. California, Sacramento

May 26, 2017

ONDRA MBAZOMO, on Behalf of Herself and all Others Similarly Situated, Plaintiff,


          Stanley A. Bastian United States District Judge.

         Before 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.

         Fully 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.


         On 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.

         The 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.

         The 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.

         Finally, 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 extension).


         After 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 benefit.

         Fed. R. 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.”).

         Though 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)).


         Request for Judicial Notice, ECF No. 23.

         Because 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 determinations below.

         Request 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.

         Local 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.

         A prior 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.

         Discovery Disputes 111, ECF No. 22.

         The 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.

         1. Discovery Issue #1:

         This 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.

         A. Confidentiality.

         Defendant 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.

         “[T]he 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).

         In 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.

         Further, 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 ...

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