United States District Court, W.D. Washington, Seattle
KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff,
NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, and INFOCISION, INC., a Delaware corporation, Defendants.
ORDER DENYING DEFENDANTS' MOTION TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants InfoCision, Inc.,
and National Rifle Association of America
(“NRA”)'s Motion to Compel. Dkt. #47.
Defendants move to compel responses to their Requests for
Production (“RFPs”) Nos. 20, 21, 23, and 25-29
from Plaintiff Katharyn Kalmbach. These RFPs “seek
documents concerning Kalmbach's service as executor, the
lawsuit filed against her, her bankruptcy, [a company called]
WellsDelta, and [her business] Kathryn's
Kreations.” Id. at 3. Defendants assert that,
during her deposition, Ms. Kalmbach revealed that she was
sued for fraud related to her administration of an estate,
and that this suit claimed she had “looted over $500,
000 from the estate” and “used a company called
WellsDelta to wrongfully take real property from the
estate.” Id. at 2. Defendants assert that Ms.
Kalmbach's bankruptcy filings reveal she owned a business
called Kathryn's Kreations through at least March 2013,
but that she had previously testified that she had not owned
a business since 2000. Id. at 3. Defendants argue
these issues bear on Ms. Kalmbach's fitness to represent
a class. Id.
Kalmbach responded to each of these RFPs with the following:
“Objection, this request is vague, overbroad and beyond
the scope of discoverable evidence set forth in FRCP
26(b)(1), as the Request seeks irrelevant information in no
way related to the claims and allegations at issue in this
case. This request also seeks documents that are
disproportionate to the needs of the case.” Dkt. #47-2
at 105. For RFP No. 23, seeking documents “relating to
your legally changing your first name from Claudia to
Katharyn, ” Ms. Kalmbach also notes
“[f]urthermore, this request seeks discovery of
documents that are public records and are available to
Defendants.” Id. at 106. For RFP No. 25
through 29, Ms. Kalmbach also notes that Defendants are
seeking “information already in the Defendant's
custody and control and that are public records.”
Id. at 107-08. For one RFP at issue, Ms. Kalmbach
objects based on the attorney client privilege. Id.
at 108. Defendants argue that Ms. Kalmbach's objections
are boilerplate and run afoul of Rule 26(b)(1) and Rule
34(b)(2). Dkt. #47 at 5 (citing Athwal v. Nijjer,
No. C17-00740RSL, 2018 WL 1156233, at *7 (W.D. Wash. Mar. 5,
2018); Anderson v. Pac. Crane Maint. Co., L.P., No.
3:16-cv-05825-RJB, 2017 WL 3534576, at *2 (W.D. Wash. Aug.
17, 2017) (quoting Fed.R.Civ.P. 26(b)(1) advisory
committee's note (2015)).
Response to this Motion, Ms. Kalmbach argues that these
discovery requests concerning “Ms. Kalmbach's
administration of an estate of a deceased relative from 2003-
2009…. appear to be made solely to harass Kalmbach and
to force her to re-hash irrelevant events that happened over
a decade ago.” Dkt. #49 at 2. She reminds the Court
that this case is about a putative class action and Ms.
Kalmbach's fitness to represent a class of Washingtonians
who allegedly received unsolicited and prerecorded calls in
violation of several Washington statutes. Ms. Kalmbach
contends that “none of the various allegations with
which Defendants seek to tar Plaintiff has any bearing
whatsoever on her ability to adequately represent other
consumers in Washington State who received the NRA's
unwanted calls, ” and that “Plaintiff will not be
charged with handling any monies on behalf of the Class, nor
does Rule 23(a)(4) contain an implicit requirement that the
proposed class representative have a spotless record of
service.” Id. at 3-4. Ms. Kalmbach cites to
several cases for the proposition that the inquiry into the
fitness of the class representative should be limited to
identifying “conflicts of interest with other class
members” and vigorousness of potential representation,
and that inquiries that veer into “[c]haracter
attacks” are less well received. Id. at 4 - 5
citing, inter alia, Torres v. Air to Ground
Servs., Inc., 300 F.R.D. 386, 401 (C.D. Cal. 2014)
(quoting Staton v. Boeing Co., 327 F.3d 938, 957
(9th Cir. 2003); In re Computer Memories Sec.
Litig., 111 F.R.D. 675, 682 (N.D. Cal. 1986)). Because
Defendants have argued that these RFPs address allegations of
fraud or improper handling of an estate, Ms. Kalmbach admits
that “[p]rior criminal convictions can show dishonesty
and can be a basis to bar an individual from acting as a
class representative.” Id. at 5 (citing
Larson v. Trans Union, LLC, No. 12-CV-05726-WHO,
2015 WL 3945052, at *12 (N.D. Cal. June 26, 2015)). However,
Ms. Kalmbach cites to several cases for the proposition that
“‘[f]or an assault on the class
representative's credibility to succeed, the party
mounting the assault must demonstrate that there exists
admissible evidence so severely undermining plaintiff's
credibility that a fact finder might reasonably focus on
plaintiff's credibility, ' thereby adversely
impacting the claims of absent class members.”
Id. at 6 (citing Larson, 2015 WL 3945052 at
*13 (explaining that “[n]either Larson's
misdemeanor conviction, nor any other admissible evidence on
record regarding his credibility, comes close to reaching
that level.”)). Ms. Kalmbach argues that none of the
requested discovery, related to issues upon which Defendants
already have deposed Ms. Kalmbach, can be relevant to the
question of a conflict of interest with other class members.
Id. Ms. Kalmbach argues that the discovery at issue
seeks information that “has no bearing on whether
Kalmbach can represent a class in a case about unwanted phone
calls and simply doesn't come close to ‘so severely
undermining plaintiff's credibility that a fact finder
might reasonably focus on plaintiff's credibility, '
in a way that adversely impacts absent class members.”
Id. at 7. Finally, Ms. Kalmbach contends that
Defendants already have enough information on these topics,
sufficient to have already filed a Motion opposing
certification, and therefore these RFPs are disproportionate
to the needs of the case. Id. at 8.
did not file a reply brief.
may obtain discovery regarding any nonprivileged 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). If requested discovery
is not answered, the requesting party may move for an order
compelling such discovery. Fed.R.Civ.P. 37(a)(1). The party
that resists discovery has the burden to show why the
discovery request should be denied. Blankenship v. Hearst
Corp., 519 F.2d 418, 429 (9th Cir. 1975).
initial matter, the Court notes that Defendants already moved
to deny class certification on February 2, 2018, based on Ms.
Kalmbach's fitness. Dkt. #37. This Motion is still
pending. It is unclear to the Court how Defendants can argue
that the requested discovery, related to her fitness, is
proportional to the needs of this case given that Defendants
felt they already had enough information to move for relief
based on her fitness. This question, raised in the Response
brief, is left unanswered by Defendants.
to relevancy, the Court finds that Ms. Kalmbach has met her
burden to show why the discovery requests should be denied.
See Blankenship, supra. Although the fitness of a
class representative is a relevant topic of discovery, the
cases cited by Ms. Kalmbach indicate that there is a limit.
The key questions for fitness are conflicts of interest with
other class members and vigorousness of potential
representation. Torres, supra. Ms. Kalmbach has
adequately demonstrated that the discovery requests at issue
cannot lead to relevant information as to these questions.
The fact that she settled a lawsuit with accusation of fraud
ten years ago has little bearing on her fitness in this case
with these issues.
Court further finds that Ms. Kalmbach's objections,
although thin on details initially, were supplemented by
further information by her counsel. See Dkt. #49-1
at 2 (“We simply don't believe that the topics of
these requests have anything to do with the case-which is
about the pre-recorded calls Kalmbach and others received
from the NRA. Her administration of an estate has nothing to
do with her ability to adequately representing [sic] a class,
notwithstanding your clients' repeated attempts to target
and harass her.”). In any event, the Court believes
Defendants already knew the bases for these objections given
the deposition and prior briefing before the Court.
all of the above, the Court finds that the requested
discovery seeks irrelevant information not proportional to
the needs of the case under Rule 26(b)(1). Accordingly, and
after having reviewed the relevant briefing and the remainder
of the record, the Court ...