United States District Court, S.D. California
KENNETH J. MOSER, individually, and on behalf of all others similarly situated, Plaintiff,
HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation, et al., Defendants.
ORDER RE IN CAMERA REVIEW OF SETTLEMENT AGREEMENTS;
KAREN S. CRAWFORD, UNITED STATES MAGISTRATE JUDGE
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.]
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.]
Procedural History Leading to the In Camera Review.
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.]
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.]
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.]
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.
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.]
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.
Scope of Discovery.
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).
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, ...