United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTIONS TO
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Amy Converse's
(“Plaintiff”) motion to compel documents reviewed
by Defendant's Rule 30(b)(6) designees, Dkt. 71, and
motion to compel answer to Interrogatory No. 4 (putative
class member contact information), Dkt. 73. The Court has
considered the pleadings filed in support of and in
opposition to the motions and the remainder of the file and
hereby grants the motion for the reasons stated herein.
PROCEDURAL AND FACTUAL HISTORY
December 12, 2018, Plaintiff filed a third amended class
action complaint against Defendant Vizio, Inc.
(“Vizio”) asserting numerous causes of action
based on the underlying allegations that Vizio falsely
advertised and marketed its smart televisions (“Smart
TVs”). Dkt. 54.
to the instant motions, Plaintiff propounded discovery on
Vizio and deposed four 30(b)(6) witnesses. First, Plaintiff
propounded an interrogatory on Vizio requesting “all
email addresses you have access to that are related to
consumers who purchased affected Smart TVs from you from 2009
to present.” Dkt. 74 at 8. Plaintiff contends that
despite numerous meet and confers regarding this request,
Vizio has failed to respond.
Plaintiff deposed four corporate representatives in late
April and early May of 2019. Plaintiff contends that during
the depositions counsel for Vizio instructed the deponents
not to identify what documents each had reviewed in
preparation for the deposition.
6, 2019, Plaintiff filed motions to compel a response to her
interrogatory and the documents reviewed by Vizio's
witnesses. Dkts. 71, 73. On June 17, 2019, Vizio responded.
Dkts. 80, 82. On June 21, 2019, Plaintiff replied. Dkts. 84,
parties do not dispute that if the requested information is
relevant then it must be produced. See Fed. R. Civ.
P. 26, 37.
the class list, Vizio has made the information relevant.
Although Vizio advances a persuasive argument that after
Plaintiff filed her motion for class certification there is
no need for a putative class list, Vizio's response to
Plaintiff's motion to certify attacks the typicality of
the class as well as whether individual issues predominate
over class-wide issues. See Dkt. 98 at 17
(“Plaintiff's putative class fails to satisfy Rule
23(b)(3)'s predominance or superiority requirements, and
Plaintiff fails Rule 23(a)'s typicality
requirement.”). Plaintiff correctly predicted that
Vizio would make these arguments, Dkt. 73 at 7, and requests
putative class members' contact information to gather
actual evidence to respond. In light of Vizio's response
and Plaintiff's showing that the requested information is
relevant, the Court grants Plaintiff's motion on this
issue. The Court, however, cautions Plaintiff that it is
improper to submit new evidence with a reply without allowing
the opposing party an opportunity to respond to that
evidence. See, e.g., Provenz v. Miller, 102
F.3d 1478, 1483 (9th Cir. 1996) (“the district court
should not consider the new evidence without giving the
[non-]movant an opportunity to respond.”)
the 30(b)(6) documents, Vizio argues that the documents are
privileged and that Plaintiff failed to lay the proper
foundation. The latter argument is without merit because
discovery is still ongoing and, even if Plaintiff failed to
lay an extensive foundation for the requested material, that
error could easily be cured with a subsequent discovery
request. Besides, Vizio's counsel directed the witnesses
not to answer Plaintiff's counsel's questions, which
hampered Plaintiff's counsel's ability to lay that
alleged foundation. As to the issue of privilege, the process
for producing privileged material is not to simply claim the
privilege in a response to a motion to compel. Instead, a
privilege log is necessary for those documents that Vizio
claims are privileged. The Court finds it highly unlikely
that every document each corporate representative reviewed in
preparation for his or her deposition is privileged because,
in order for a 30(b)(6) witness to properly prepare for a
deposition, he or she most likely reviews documents produced
in the regular course of business. As to these documents,
Vizio should produce them if they exist. After the production
of a log and possibly other documents, the parties shall meet
and confer regarding the possibility of successive
depositions. The Court is optimistic that another motion on
this issue is not necessary and reserves ruling on sanctions
should further disputes arise.
it is hereby ORDERED that Plaintiff's
motion to compel documents reviewed by Defendant's Rule
30(b)(6) designees, Dkt. 71, and motion to compel answer to
Interrogatory No. 4 ...