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Saul M. Kaufman and Kimberly Steigh v. American Express Travel Related Services Company

January 14, 2011

SAUL M. KAUFMAN AND KIMBERLY STEIGH,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Before the court is the motion to compel of Intervenor Plaintiffs Goodman and Santsche (the "Goodman Intervenors"). For the reasons stated below, the motion is granted.

I.BACKGROUND

On August 19, 2010, the court stated that the available record did not enable it to determine: (1) whether class members could be identified through reasonable effort, such that individual notice of the settlement was required per Rule 23(c)(2)(B), and (2) whether the court should sanction American Express Travel Related Services, Inc. ("American Express") for the deletion of customer-identifying information. (Op. 9-10, ECF No. 205. (hereinafter, "Op.")) The court identified several problems with the available record, including that it "does not clearly identify what customer-identifying information is recoverable, or at what cost," (Op. 10), American Express "puts forth no evidence of what effort . . . would be required to retrieve the data," (Op. 8), and the parties "do not appear to have subjected [affidavit averments regarding how American Express stores and retains customer-identifying information] to any meaningful discovery," (Op. 10). In addition, the court stated, "The amount and location of customer- identifying information might be better revealed through limited discovery, such as a deposition of a representative of American Express." (Op. 10.)

Given this, on September 22, 2010, the Goodman Intervenors served American Express with a deposition notice and four document requests. (See Mot. to Compel Exs. A & B, ECF Nos. 210-1 & 210-2.) The deposition notice sought the deposition of American Express, "by a corporate designee with knowledge of issues related to Defendants' retention and destruction of documents which contain identifying data for purchasers and/or users of American Express Gift Cards." (Mot. to Compel Ex. B, ECF No. 210-2.) The document requests referred to "the period from January 1, 2000 through the trial date of this action" and sought:

1. All documents relating to [American Express'] policies for retaining records of Gift Card transactions, including purchases thereof.

2. All documents relating to [American Express'] policies for retaining data which identifies Gift Card purchasers and/or users.

3. All documents relating to the destruction of data which identifies Gift Card purchasers and/or users.

4. All communications between or among [American Express] personnel and/or legal counsel with respect to the preservation and/or destruction of data which identifies Gift Card purchasers and/or users.

(Mot. to Compel Ex. A, ECF No. 210-1.)

American Express responded to the Goodman Intervenors' deposition notice by objecting to it on the grounds that it and its counsel were unavailable on the proposed date, the deposition topic was vague, ambiguous, overbroad, unduly burdensome, harassing, argumentative, not limited to a time period relevant to the events at issue, assumed matters in dispute, sought testimony on confidential, proprietary business information, and sought testimony protected by attorney client privilege and/or the attorney work product doctrine. (See Mot. to Compel Ex. C, ECF No. 210-3.) Nevertheless, American Express agreed to make its representative, Chris Seibert, available for deposition. (Joint Status Conference Statement at 2, ECF No. 223.) On October 15, 2010, American Express provided the parties with Seibert's affidavit. (Joint Status Conference Statement at 2, ECF No. 223.) On November 17, 2010, counsel for the plaintiffs and Intervenor Plaintiffs Kambiz Kazemi and Katayoun Kazemi deposed Seibert. (Pls.' Resp. to Supplemental Status Report and Decl. of Richard D. Greenfield at 2, ECF No. 232.) The Goodman Intervenors chose not to attend, presumably because they did not want to take Seibert's deposition on what they viewed as "a scanty record and a partially informative [affidavit] that contradicts earlier statements made by [American Express], its counsel, and plaintiffs' counsel" and because, in their view, "Seibert appears to be only peripherally involved, if at all, with the efforts (or lack thereof) . . . to retain Class member identifying data." (Supplemental Decl. of Richard D. Greenfield at 5, ECF No. 225.)

American Express responded to the Goodman Intervenors' document requests by objecting that those requests were, inter alia, overbroad, burdensome, harassing, not limited to the relevant time period or the events at issue, sought documents protected by attorney client privilege and/or the attorney work product doctrine, and sought confidential proprietary documents. (See Mot. to Compel Ex. D, ECF No. 210-4.) Notably, despite asserting that documents were protected by attorney client privilege and the attorney work product doctrine, American Express did not submit a privilege log.

After an unsatisfactory meet and confer, the Goodman Intervenors filed a motion to compel American Express to respond to their document requests and to overrule American Express' objections to their deposition notice. (See Mot. to Compel, ECF No. 209.) Even after American Express represented to the court at a November 3, 2010 status hearing that it would inform the Goodman Intervenors what additional documents it would produce in response to their document requests, American Express merely sent along amended responses to the first three document requests that instructed the Goodman Intervenors to look to the Seibert affidavit and deposition in full satisfaction of those requests. (See Supplemental Status Report and Brief in Supp. of Mot. to Compel Ex. B, ECF No. 225-2.) American Express also produced a few documents, at least one of which was redacted. (Supplemental Decl. of Richard D. Greenfield at 1, ECF No. 225.)

American Express does not contend that it has produced all documents that are responsive to the Goodman Intervenors' requests. Rather, American Express argues that the Seibert affidavit and deposition develop the record enough to allow the court to determine whether individual notice is required and that American Express did not spoil evidence (Resp. ...


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