United States District Court, W.D. Washington Seattle.
PAULA WETZEL and JOEL WETZEL, individually and on behalf of other similarly situated persons, Plaintiffs,
CERTAINTEED CORPORATION, Defendant.
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on Defendant CertainTeed
Corporation's Second Motion for Protective Order Re
Plaintiffs' Discovery Requests (Dkt. # 58),
Plaintiffs' Motion to Compel (Dkt. # 63), and
Plaintiffs' Motion to Extend Deadlines (Dkt. #
are conducting pre-class certification discovery for a
lawsuit arising from Defendant's allegedly defective
shingles. There are four motions pending before the Court,
addressed in turn below.
Motion for Protective Order
Court has discretion under Federal Rule of Civil Procedure
26(c) to “for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense . . . .” Fed.R.Civ.P. 26(c)(1).
Defendants must show the “specific prejudice or harm
[that] will result if no protective order is granted. . . .
Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning, do not satisfy the Rule
26(c) test.” Coleman v. Schwarzenegger, No.
CIV S-90-0520 LKK JFM P, No. C01-1351 TEH, 2008 U.S. Dist.
LEXIS 123275, *20-21 (E.D. Cal. 2008) (citing Foltz v.
State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th
Cir. 2003) and Beckman Indus., Inc. v. Int'l Ins.
Co., 966 F.2d 470, 476 (9th Cir. 1992)).
class action, the parties often have the opportunity to
conduct pre-class certification discovery. This discovery is
“limited to certification issues such as the number of
class members, the existence of common questions, typicality
of claims, and the representative's ability to represent
the class.” Gusman v. Comcast Corp., 298
F.R.D. 592, 595 (S.D. Cal. 2014) (citing Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 359 (1978)).
However, “the merits/certification distinction is not
always clear. Facts that are relevant to the class
determination frequently will overlap with those relevant to
the merits of the case.” Id. (citing
Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350
moves for a protective order because it claims that
Plaintiffs' discovery is targeted at the merits rather
than at the appropriate pre-class certification discovery.
Dkt. # 58. Plaintiffs disagree, citing reasons for why each
category of discovery is necessary to establish the class in
this class action lawsuit. Dkt. # 61. The disputed categories
are discussed below.
seek discovery regarding the manufacturing process, research
and development, and testing to prove Rule 23(a)(2)'s
commonality element and Rule 23(b)(3)'s predominance
element. Dkt. # 61 at 11. When analyzing commonality, the
Court typically examines the parties' claims and defenses
and the relative proof regarding the same. With regard to
predominance, the Court must determine whether common
questions predominate over individual ones such that a class
action treatment is superior to individual lawsuits.
Discovery regarding manufacturing and testing is necessary
for Plaintiffs to attempt to prove these elements. However,
at this stage, the Court finds that discovery regarding
research and development goes more toward the strength or
weakness of Plaintiffs' claims rather than toward the
requirements of Rule 23. Accordingly, the Court GRANTS in
part Defendant's motion with regard to pre-class
certification discovery into research and development.
seek discovery regarding the warranty and warranty claims
process to prove Rule 23(a)(3)'s typicality element and
to identify potential class members. Dkt. # 61 at 14.
Defendant argues that it already produced warranty claim
files as well as a performance manual. Dkt. # 64 at 7.
Discovery regarding the warranty claims process, such as how
agents are trained, goes to the merits of the lawsuit rather
than to Rule 23's requirements. However, discovery
regarding the number of warranty claims paid related to the
shingles at issue and any complaints made to state regulatory
or administrative entities regarding the shingles at issue is
relevant to developing a class list and establishing
typicality of claims. Therefore, the Court GRANTS in part
Defendant's motion to the extent that discovery regarding
the claim process is not relevant to pre-class certification
seek discovery regarding Defendant's retention policy.
Dkt. # 61 at 16. Defendant appears willing to produce
retention policies related to customer claims and pending
litigation matters. Dkt. # 64. The Court finds such policies
relevant to pre-class certification discovery and therefore
Defendant must produce such documents. However, retention
policies regarding topics broader than customer claims, the
disputed shingles, or pending litigation go to the merits of
the matter and therefore need not be produced at this stage.
Therefore, the Court GRANTS in part Defendant's motion
for protective order.
request documents regarding Defendant's corporate
structure. Dkt. # 61 at 16. Plaintiffs argue that these
organizational documents will help in identifying potential
deposition witnesses. Id. The Court finds that an
organizational chart- limited to those departments engaged in
manufacturing, testing, sales and marketing, and warranty
claims-is relevant to pre-class certification. This enables
Plaintiffs to target specific corporate witnesses for
deposition purposes. Therefore, the Court DENIES
Defendant's motion with regard to this request.