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Brodsky v. Humana

July 8, 2009

LAWRENCE S. BRODSKY, PLAINTIFF,
v.
HUMANA, INC., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

Plaintiff filed a complaint on July 23, 2008 on behalf of himself and other persons similarly situated alleging that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. Specifically, Plaintiff alleges that he and at least 39 other potential class members received unsolicited advertisements from Defendant through their fax machines.

On December 18, 2008, Plaintiff propounded his first set of document requests. Plaintiff sought responsive documents dating from July 23, 2004 to present, a time period termed the "Relevant Time Period." Defendant objected to request numbers 1, 9--15, 17, 19--24, 28, 40--43 and 56, stating that each was "overly broad, vague, ambiguous, unduly burdensome and seeks information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence." (Pl.'s Mot. Ex. C.)

Plaintiff filed a motion to compel production of documents responsive to these requests on April 30, 2009. Defendant produced the affidavit of Lori Cooper, Litigation Manager of Defendant, who testified as to the burden Defendant would incur if required to respond to the requests. (Def.'s Resp. Ex. A.) On May 22, 2009, Plaintiff deposed Cooper regarding her affidavit. (Pl.'s Reply Ex. A.)

Rule 34 states the following:

A party may serve on any other party a request within the scope of Rule 26(b) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: any designated documents or electronically stored information... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.

Fed. R. Civ. P. 34(a)(1)(A). Rule 26(b) provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b). The court, for good cause, "may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. "[T]he court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that the burden or expense of the proposed discovery outweighs its likely benefit[.]" Fed. R. Civ. P. 26(b)(2)(C)(iii).

Document Request Number 1 seeks, "Each different form of any document which promotes, advertises, announces, or solicits any property, goods, or services of Defendant which was sent by facsimile transmission during the Relevant Time Period." The documents sought relate to who would be potential class members. Defendant has produced one document. (See Pl.'s Mot. Ex. C.) According to Defendant's affiant, further production of any documents responsive to this request would take about 40 hours. (Cooper Dep. 11:15, May 22, 2009.) Balancing the need of the documents with the burden, the magistrate judge grants Plaintiff's motion to compel these documents.

Document Request Number 9 seeks, "All documents identifying any other entity that sent any facsimile transmissions of any document, by or on behalf of Defendant, to 847-991-0152 during the Relevant Time Period." The number 847-991-0152 is Plaintiff's fax number, to which Defendant sent the allegedly unsolicited faxes. This request is relevant to Plaintiff's individual and class lawsuits. But, production would take about "26 man days." (Id. 13:15.) There are less burdensome methods to identify other entities that sent faxes to Plaintiff on Defendant's behalf. Plaintiff's motion to compel production of these documents is denied.

Document Request Numbers 10--15 seek information relevant to determining whether Defendant used or contracted with a third party for fax broadcasting services. These document requests are relevant to identifying potential class members. Apparently, Defendant did not use or contract with a third party. (Id. 18:14--15.) If Defendant does not have materials responsive to this request in its possession, custody, or control, it should so state. Defendant must respond to these document requests.

Document Request Number 17 seeks, "All telephone records which identify individual telephone calls for the telephone lines used to send facsimile transmissions by or on behalf of Defendant to phone number 847-991-0152 during the Relevant Time Period." The records sought are relevant to Plaintiff's individual and class claims. This information can lead to the discovery of other telephone numbers to which Defendant may have sent unsolicited faxes. Having this will benefit the case's progression as parties prepare for a motion to certify the purported class. Producing these documents would take about "26 man days." (Id. 21:2.) The court does not know of a less burdensome way to get this information. The court grants Plaintiff's motion to compel these documents.

Document Request Number 19 asks for "a mirror image of each hard drive of each device used [to] send facsimile transmissions of any document identified in Request Number 1 during the Relevant Time Period." This document request is overly broad and would produce information not relevant. Further, production would take Defendant about six weeks and would cost Defendant about $25,000. (Id. 33:1--6.) The burden and cost outweigh the likely benefit of this document request. The court denies Plaintiff's motion to compel production of these documents without prejudice.

Document Request Number 20 seeks, "All documents that contain, refer to, set forth, or explain Defendant's policy or practice of obtaining prior express permission or invitation to send any document identified in Request Number 1 via facsimile to any person." Based on the volume of electronic and paper data that would have to be inspected to comply with this request, production would take about two years and would cost about $80,000. (Id. 22:9, 22:25--23:8.) This burden outweighs the likely benefit, and the court denies Plaintiff's motion to compel these documents without prejudice.

Document Request Number 21 seeks, "All documents that contain, refer to, set forth, or explain Defendant's policies or practices regarding the transmission of any document identified in Request Number 1 via facsimile." The policies and practices under which Defendant operates regarding transmission of potentially unsolicited faxes are relevant to Plaintiff's individual and class claims. Production would take about five hours and would cost about $235. (Id. 23:23--24:3.) The ...


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