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Moser v. Health Insurance Innovations, Inc.

United States District Court, S.D. California

July 8, 2019

KENNETH J. MOSER, individually, and on behalf of all others similarly situated, Plaintiff,
v.
HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation, et al., Defendants.

          ORDER RE IN CAMERA REVIEW OF SETTLEMENT AGREEMENTS; PROTECTIVE ORDER

          HON. KAREN S. CRAWFORD, UNITED STATES MAGISTRATE JUDGE

         Before the Court for in camera review are copies of Settlement Agreements containing confidentiality clauses that plaintiff executed in other litigation involving alleged violations of the Telephone Consumer Protection Act (TCPA). In an Order filed on December 21, 2018, plaintiff was ordered to identify other TCPA claims or lawsuits "settled or resolved in his favor, along with the amounts of any monetary settlements received and the identities of any parties who paid any settlement amounts." [Doc. No. 118, at pp. 28, 36, referring to Interrogatory No. 23.] Based on privacy objections plaintiff made on behalf of non-parties to this action, these Settlement Agreements were submitted for in camera review at the direction of the District Court for "a determination of what, if any, procedures are necessary to allow third parties to assert any privacy rights they may have under the agreements." [Doc. No. 140, at p. 5.] For the reasons outlined more fully below, this Court finds that procedures to allow non-parties to object prior to disclosure of information in the Settlement Agreements to defendants in this case are not necessary or required under the circumstances. Any privacy rights of non-parties in other cases can be adequately addressed by a Rule 26(c)(1) protective order in this case and the confidentiality Protective Order that is already in place in the action. [Doc. No. 100.]

         Background

         The First Amended Complaint in this case includes two causes of action against the defendants for violations of the TCPA. [Doc. No. 3, at pp. 29-31.] Generally, plaintiff alleges defendants violated the TCPA by making multiple, unauthorized calls to his cellular and residential telephones using an automatic dialing system or artificial, prerecorded voice. [Doc. No. 3, at pp. 30-31.] The First Amended Complaint was filed as a class action on behalf of two sub-classes of potential plaintiffs who received similar unauthorized telephone calls from defendants at any time from January 28, 2015 to the present. [Doc. No. 3, at p. 5.]

         Discussion

         I. Procedural History Leading to the In Camera Review.

         Defendant Health Insurance Innovations, Inc. (HII) served plaintiff with discovery requests, including Interrogatory Nos. 10 and 23, which requested identification of other TCPA lawsuits in which plaintiff was a party, as well as any such cases plaintiff settled or resolved in his favor; the amounts of any monetary settlements he received; and the identities of any parties who paid any settlement amounts. [Doc. No. 87, at pp. 29, 35.] Defendant HII appropriately requested this information from plaintiff because it is relevant to matters of credibility and whether plaintiff can adequately represent the interests of the proposed class. [Doc. No. 118, at pp. 28-31.] Plaintiff responded to Interrogatory Nos. 10 and 23 with a list of unsupported, boilerplate objections and did not provide defendant HII with any substantive responses. [Doc. No. 87, at pp. 29-30; 35- 36.] One of these unsupported, boilerplate objections was that the information sought was "protected by contractual privacy obligations." [Doc. No. 87, at pp. 30, 36.]

         Defendant HII's discovery requests to plaintiff also included Document Request No. 39, which seeks production of deposition transcripts from other TCPA cases in which plaintiff was the deponent and testified about the TCPA, autodialing, auto-dialers, prerecorded messages or Do Not Call Lists. [Doc. No. 87, at p. 55.] Plaintiff also responded to this request with a list of unsupported, boilerplate objections. One of these objections was that "some of the items sought are also protected by contractual privacy obligations." [Doc. No. 87, at p. 56.]

         Thereafter, the parties filed a Joint Motion for Determination of Discovery Dispute for the Court's consideration. [Doc. No. 87.] In this Joint Motion, defendant HII requested an order compelling plaintiff to provide substantive responses to Interrogatory Nos. 10 and 23 and to produce documents in response to Document Request No. 39. Again, plaintiff objected on various grounds but did not submit anything in support of its contention that the information requested was "protected by contractual privacy obligations." [Doc. No. 87, at pp. 31, 36, 56-57.] In an Order filed on December 21, 2018 resolving the discovery disputes between plaintiff and defendant HII, plaintiff was ordered to provide full and complete responses to defendant HII's Interrogatory Nos. 10 and 23 and to produce deposition transcripts in response to Document Request No. 39. [Doc. No. 118, at pp. 30-31, 36.]

         In response to the Court's December 21, 2018 Order [Doc. No. 118], plaintiff filed Objections with the District Court [Doc. No. 133]. Plaintiffs objections included an argument that he should not be required to disclose Settlement Agreements from other TCPA cases in response to Interrogatory Nos. 10 and 23, if the Settlement Agreements in those cases include a confidentiality provision, unless there is some procedure for the other parties in these cases to assert their rights to privacy. [Doc. No. 133, at pp. 3-8.] As to Document Request No. 39, plaintiff contends he should not be required to produce a responsive deposition transcript, because it is "covered under a confidentiality provision in the settlement[]" of a case entitled Moser v. American Pacific Mortgage Corp., San Diego Superior Court Case No. 37-2014-21690-CU-BT-CTL. [Doc. No. 133, at p. 2 n.1] However, plaintiff did not submit a copy of the Settlement Agreement in this case for in camera review as proof that the responsive deposition transcript is covered by a confidentiality provision.

         In addition, the Court considered two other Joint Motions that raised similar discovery disputes between defendant Donisi Jax, Inc. and plaintiff. [Doc. Nos. 97 and 98.] In response to various discovery requests, defendant Donisi Jax, Inc. sought disclosure of documents and information from other TCPA lawsuits in which plaintiff was a party, including settlement amounts and "all documents evidencing any settlement" of other TCPA cases filed by plaintiff. [Doc. No. 142, at p. 11; Doc. No. 98, at p. 35.] In addition, defendant Donisi Jax, Inc. requested production of deposition transcripts from other TCPA cases filed by plaintiff. [Doc. No. 142, at p. 11.]. Essentially, the Court ordered plaintiff to disclose the same information and produce the same documents from other TCPA litigation that were previously ordered produced to defendant HII in the Court's December 21, 2018 Order [Doc. No. 118], plus some additional documents and information requested by defendant Donisi Jax, Inc. that had not already been produced to defendant HIL [Doc. No. 142, at pp. 10-17.]

         With respect to the discovery dispute between defendant HII and plaintiff, the District Court overruled plaintiffs objections to this Court's December 21, 2018 Order. [Doc. No. 140, at pp. 1-5.] However, the District Court directed plaintiff to produce any settlement agreements containing confidentiality provisions to this Court for an in camera review to determine "what, if any, procedures are necessary to allow third parties to assert any privacy rights they may have under the agreements." [Doc. No. 140, at p. 5.] Pursuant to the District Court's direction, plaintiff submitted a stack of settlement agreements for in camera review.

         II. Scope of Discovery.

         "Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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 parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(1).

         "The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including .. . (A) forbidding the disclosure or discovery; ... (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of the disclosure or discovery to certain matters;.. . (G) requiring that a trade secret or other confidential research, ...


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