STANLEY A. BOONE, Magistrate Judge.
Currently before the Court is Plaintiff's motion to compel non-party SureSource to produce documents responsive to a subpoena duces tecum. The Court, having reviewed the record, finds this matter suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on December 9, 2015 will be vacated and the parties will not be required to appear at that time.
Plaintiff Delia Wilson purchased a Conair Instant Heat 1½" Curling Iron in early 2010. (Compl. ¶ 9.) Less than a month after it was purchased, the curling iron malfunctioned and would not turn on. (Compl. ¶ 13.) Plaintiff contacted Conair's Customer Service Department and received a replacement curling iron. (Compl. ¶ 13.) On February 12, 2014, the replacement curling iron malfunctioned, and the power cord began to crackle and emit sparks. (Compl. ¶ 14.) A flash of sparks caused burns on Plaintiff's face and chest. (Compl. ¶ 14.) Plaintiff received a corneal abrasion in her eye. (Compl. ¶ 15.) Plaintiff alleges that the curling iron failed at the point where the curling iron's power cord meets the stress relief. (Compl. ¶ 16.)
Plaintiff filed a class action complaint on June 11, 2014, against Defendant Conair Corporation ("Defendant") and raises three causes of action: 1) violation of the Consumers Legal Remedies Act, California Civil Code § 1750, et seq., 2) violation of the Unfair Competition Law, California Business and Professions Code § 17200, et seq., and 3) breach of implied warranty. Plaintiff alleges that Defendant manufactures a variety of curling irons, straightening irons, and curling brushes. (Compl. ¶ 1.) Defendant's styling irons use a power cord connected to the iron via a "stress relief." (Compl. ¶ 2.) Plaintiff alleges that Defendant expressly and impliedly represent that their styling irons are well-designed and safe to use. (Compl. ¶ 4.) Plaintiff alleges that she, and others similarly situated, purchased Defendant's styling irons based upon those representations regarding their safety and suffered injury from using the styling irons. (Compl. ¶ 5.)
Plaintiff alleges that Defendant knew or should have known that its styling irons were defective. (Compl. ¶ 21.) Plaintiff contends that Defendant received complaints about similar incidents with the power cord from consumers as early as 2012. (Compl. ¶ 21.) Plaintiff further states that Defendant failed to warn consumers about the defects in its styling irons. (Compl. ¶ 24.)
On December 4, 2014, a scheduling order issued in this action setting forth pretrial deadlines. (ECF No. 26.) Plaintiff filed a motion to compel which was granted in part and denied in part on April 30, 2015. (ECF No. 46.) On May 8, 2015, Plaintiff served a subpoena duces tecum on non-party SureSource LLC seeking production of documents. (ECF No. 85 at 54.
On July 22, 2015, Plaintiff filed a second motion to compel Defendants to produce documents which was denied on August 17, 2015. (ECF Nos. 51, 58.) Plaintiff filed a motion for reconsideration by the district judge of the denial of the motion to compel which was denied on September 16, 2015. (ECF Nos. 63, 70.)
On October 21, 2015, Plaintiff filed an action in the United States Court for the District of Connecticut seeking to compel non-party SureSource to comply with the subpoena duces tecum. (ECF No. 85.) On November 13, 2015, the District of Connecticut transferred the motion to compel to this Court. (ECF No. 85 at 4-5.)
Rule 45 of the Federal Rules of Civil Procedure authorizes the issuance of a subpoena to command a nonparty to "produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control. . . ." Fed. R. Civ. P. 45(a)(1)(A)(iii). It is well settled that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and 34. Goodyear Tire & Rubber Co. v. Kirk's Tire &
At the time this motion was filed, Rule 26 provided that "parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.
In Plaintiff's current motion to compel she seeks discovery for forty five models of styling irons that she alleges contain the same allegedly defective power cord. (ECF No. 85 at 14-.) Non-party SureSource objects on the grounds that Plaintiff's requests are overbroad, seek irrelevant information, and burden an unrelated non-party to this action. (ECF No. 85 at 83-101.)
"Prior to certification of a class action, discovery is generally limited and in the discretion of the court."
The Court has already held that Plaintiff was entitled to receive discovery on whether other individuals experienced similar failure in the forty-five styling irons with a similar power cord and stress relief, but that Plaintiff was not entitled to additional discovery on the forty-five styling irons at this time. (ECF No. 46 at 9.) Further, the Court has found that Plaintiff's request to conduct testing on these forty-five models is premature at the pre-class certification stage of the litigation. (ECF No. 58 at 6.)
In deciding the requests to compel production here, the Court considers that while counsel for SureSource is the same counsel for Defendant in this action, SureSource is a non-party to this action and therefore discovery is more limited to protect the third party from harassment, inconvenience, or disclosure of confidential documents.
Request for Production No. 1 seeks:
Defendant's objection states:
Plaintiff argues that this information is necessary to show that the class is ascertainable. Plaintiff states that the parties agreed that SureSource could respond to the request by declaration and limit the response to California. SureSource indicates that it will provide information sufficient to show what data is captured by SureSource regarding purchasers of products.
Request for Production No. 2 seeks:
Defendant's objection states:
Since this litigation is at the pre-class certification stage, the Court finds that merits discovery is premature. During meet and confer sessions the parties agreed that this information would not be produced until after a class has been certified and a protective order is in place. Therefore,
Request for Production No. 3 seeks:
Request for Production No. 4 seeks:
Defendant's objection to both requests states:
Plaintiff argues that this information is necessary to demonstrate the existence of a class wide method of awarding relief that is consistent with her theory of liability. The parties have agreed that SureSource may provide a declaration limited to model CD87 and California purchasers. Plaintiff moves for an order compelling production of a declaration that states the average retail and wholesale price for all forty-five models of styling irons sold in California for January 1, 2005 through the present.
SureSource additionally objects on the ground that Plaintiff has provided no basis for which the average wholesale price is relevant to any claim for damages. Plaintiff replies that equitable disgorgement of profits may be awarded for the alleged illegal conduct. While Plaintiff seeks information on the forty-five models of styling irons, there has been no class certification in this action. The information on all forty five of these models may be relevant once a class is certified, however at this time the parties are to be conducting discovery relevant to class certification. While some merits discovery may be relevant to class certification, Plaintiff is not entitled to conduct merits discovery on all forty-five models of styling irons until after a class is certified and the scope of the claims is established. Unless otherwise specified in this order, the Court finds that it would be unduly burdensome to require the non-party to produce responsive information for all forty-five models of styling irons prior to a class being certified in this action.
SureSource agrees to produce a declaration containing the average retail price for the model CD87 sold in California, but argues that the time period requested is overbroad since the statute of limitations in this action is four years. Additionally, SureSource states that sales information is not available beyond 2010.
The Court finds that the request for retail and wholesale price information from 2005 is overbroad and burdensome. Plaintiff contends that this information is relevant to a disgorgement of profits remedy, yet the longest statute of limitations in this action is four years and Plaintiff is seeking ten years of information. Further, SureSource contends that it does not have information prior to 2010. The responding party cannot be required to produce information that is not in its possession.
Request for Production No. 5 seeks:
Defendant's Objection states:
Plaintiff argues that this information is also necessary prior to class certification to demonstrate the existence of a class wide method of awarding relief. The Court finds that this request is overbroad as it seeks information on all forty-five models of styling irons sold from 2005 through the present and did not limit production to the location of sale. Further, this request goes to the merits of the claims and is beyond the scope of class certification discovery. Accordingly,
Request for Production No. 6 seeks:
Request for Production No. 7 seeks:
Defendant's objection for both requests state:
Plaintiff contends that this information is necessary to show that the advertising for all forty-five models failed to warn consumers of the defect in the power cord. However, the Court finds these requests to be beyond the scope of pre-class certification discovery and is related to the merits of the action.
Defendant has agreed to produce responsive documents related to the CD87 and CD12 from 2010 to the present. Therefore,
Request for Production No. 8 seeks:
Request for Production No. 10 seeks:
Request for Production No. 11 seeks:
Defendant's objection to these requests state:
Plaintiff contends that this information is needed to show that the problem with the styling iron was not unique to her styling iron. The Court has previously found that:
(ECF No. 46 at 9:1-13.)
Similarly, SureSource shall be required to provide documents responsive to Request for Production No. 8 regarding all forty-five models where the complaint is a failure of the power cord. However, Requests No. 10 and 11 are beyond the scope of the discovery found to be appropriate at the pre-class certification stage of the proceedings. Accordingly,
Request for Production No. 9 seeks:
Defendant's objection states:
Plaintiff contends that this information is also necessary to demonstrate the existence of a class wide method of awarding relief. Plaintiff seeks a declaration identifying the number of returns or exchanges for the model CD87 from June 2010 through the present. Defendant has agreed to produce such a declaration.
Request for Production No. 12 seeks:
Defendant's objection states:
Plaintiff contends that SureSource has agreed to produce responsive documents relating to CD87 and CD12, but that recall documents regarding all forty-five models must be produced. SureSource argues that information on the other models is overbroad and irrelevant as the information sought is not limited to the subject matter of this litigation, a defective power cord.
Plaintiff's request for production is overbroad as it seeks information regarding recalls beyond the subject matter of this litigation. As SureSource argues, if a product was recalled due to a defective on/off switch it would be irrelevant here. However, a recall that was due to a power cord defect could lead to the discovery of admissible evidence and it does not appear to be overly burdensome to require production of such documents. Accordingly,
Request for Production No. 13 seeks:
Defendant's objection states:
Plaintiff contends that production of the contract between SureSource and Conair is necessary to determine if SureSource is under a contractual agreement to keep information confidential and to understand what information SureSource has that Conair does not. Defendant replies that Plaintiff can obtain this information by way of deposition.
The Court finds that the Request for Production of the contract between SureSource and Conair is beyond the scope of pre-class certification discovery.
Request for Production No. 14 seeks:
Defendant's objection states:
Plaintiff contends that this information is necessary to determine if SureSource has critical documents that Conair claims to not possess. The parties have agreed that SureSource may provide a response to this request by declaration. Accordingly,
Plaintiff requests that SureSource be required to include in their declaration a statement that they will preserve all evidence or notify Plaintiff of the intent to purge or overwrite any information during the course of the litigation. "Litigants owe an uncompromising duty to preserve what they know or reasonably should know will be relevant evidence in a pending lawsuit, or one in the offing. . . ." JUDGE WILLIAM W. SCHWARZER ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125 (2004) (internal quotations and citations omitted);
Based on the foregoing, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
