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Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc.

United States District Court, D. South Carolina, Columbia Division

January 23, 2017

Career Counseling, Inc., d/b/a Snelling Staffing Services, a South Carolina corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,
v.
Amsterdam Printing & Litho, Inc., Taylor Corporation and John Does 1-10, Defendants.

          ORDER AND OPINION

         Plaintiff Career Counseling, Inc. filed this action against Defendants Amsterdam Printing & Litho, Inc., Taylor Corporation, and John Does 1-10 (collectively “Defendants”) seeking recovery of damages for injuries allegedly caused by Defendants' business practice of sending unsolicited facsimile (“fax”) advertisements. (ECF No. 1.)

         This matter is before the court pursuant to Plaintiff's Motion to Compel Defendants to produce documents containing the fax numbers used to transmit thirty faxes to Plaintiff and “exception” reports indicating unsuccessful attempts to send faxes. (ECF No. 50 at 1.) For the reasons set forth below, the court DENIES Plaintiff's Motion to Compel (ECF No. 50) without prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 28, 2015, Plaintiff filed a Complaint alleging that Defendants sent faxes containing unsolicited advertisements in violation of 47 U.S.C. § 227(b) (2015) (“Restrictions on Use of Phone Equipment”). (ECF No. 1.) Plaintiff sought redress from Defendants in the form of “(i) injunctive relief enjoining Defendants, their employees, agents, representatives, contractors, affiliates, and all persons and entities acting in concert with them, from sending unsolicited advertisements . . . and (ii) an award of statutory damages in the minimum amount of $500 for each violation [of the statute], and to have such damages trebled.” (ECF No. 1 at 2-3 ¶ 5.) Plaintiff then filed a Motion to Certify Class on January 4, 2016. (ECF No. 7.) On March 17, 2016, Defendants filed a Response in Opposition to the Motion to Certify Class. (ECF No. 21.) On July 12, 2016, the court denied Plaintiff's Motion to Certify Class as premature, without prejudice. (ECF No. 48.)

         On December 8, 2016, Plaintiff filed a Motion to Compel Requests for Interrogatory Nos. 14, 28, 29, 39, and 40, claiming that disclosure is crucial for Plaintiff to timely file an expert witness report that demonstrates the “ascertainability” of the class. (ECF No. 50.) On December 22, 2016, Defendants filed a Response in Opposition (ECF No. 51), claiming that (1) “Plaintiff fails to demonstrate that the fax target lists are relevant to the ascertainability of the class, ” (2) “[t]he fax target lists are trade secrets, the disclosure of which could harm [Defendants], ” and (3) “[t]his court should protect [Defendants'] customers from Plaintiff's attorneys' intrusion upon their privacy.”

         II. LEGAL STANDARD

         The amendment to Fed.R.Civ.P. 26 provides that “[p]arties 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 the 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). The scope of discovery permitted by Rule 26 is designed to provide a party with information reasonably necessary to afford a fair opportunity to develop its case. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992).

         Fed. R. Civ. P. 33(b)(3) requires that each interrogatory must, to the extent there is no objection, be answered separately and fully in writing under oath. Fed.R.Civ.P. 34(a)(1)(A) permits a party to serve upon any other party a request within the scope of Rule 26(b) to produce and permit the requesting party to inspect, copy, test, or sample any designated tangible things. Fed.R.Civ.P. 34(b)(2)(B) requires that for each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the requests, including the reasons.

         Fed. R. Civ. P. 37 states that “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1). “For purposes of [Rule 37(a)], an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). Specifically, a party “may move for an order compelling an answer, designation, production, or inspection.” Fed.R.Civ.P. 37(a)(3)(B). Broad discretion is given to a district court's decision to grant or deny a motion to compel. See, e.g., Lone Star Steakhouse & Saloon, Inc., v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).

         III. ANALYSIS

         Plaintiff argues that the court must grant the instant motion because (1) Plaintiff's expert report is due January 27, 2017, (2) the information in the documents is at “the heart of that expert report, ” and (3) the information in the documents is necessary to satisfy the Fourth Circuit's implied “ascertainability of the class” requirement. (ECF 50-1 at 11.) Specifically, Plaintiff insists that Defendants be compelled to answer the following interrogatories:

Request No. 14: For any document referred to in Request No. 1, all documents that indicate or may show the number of transmissions, via facsimile by or on behalf of you or Defendant Taylor to telephone numbers during the Relevant Time Period.
Request No. 28: All documents that identify the persons and fax numbers to whom you sent by fax the document(s) attached to the Complaint as Exhibit A.
Request No. 29: All documents that identify the person and fax numbers which were sent any document by fax during the ...

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