United States District Court, D. Massachusetts
IN RE COLLECTO, INC., TELEPHONE CONSUMER PROTECTION ACT LITIGATION
Stephen L Meininger, Plaintiff, represented by Kenneth C.
Grace & Thomas A. Lash, Lash, Wilcox & Grace, PL.
Collecto, Inc., Defendant, represented by Benjamin W.
Raslavich, Golden Scaz Gagain, PLLC.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION TO
RICHARD G. STEARNS, District Judge.
February 10, 2016, this court denied defendant Collecto,
Inc.'s motion for summary judgment and ordered the
parties to proceed with discovery regarding class
certification. On February 23, the court set the deadline for
class-related discovery for August 22, 2016, and the deadline
for the consolidated plaintiffs to file any motion for class
certification for December 9, 2016. The parties proceeded
with discovery; on April 20, 2016, plaintiffs filed their
fourth set of requests for admission (RFAs), numbered 58
through 83; their second set of interrogatories; and their
seventh set of requests for production.
responded on May 23, 2016, but did not offer any substantive
responses; instead, Collecto issued blanket objections to
each of the plaintiffs' RFAs. To RFAs 58 through 79,
Collecto submitted the following objection:
Defendant objects to this request on the grounds that the
class has not been defined as no Consolidated Complaint has
been filed. Defendant objects to this request on the grounds
that it is overly broad and not proportional to its likely
benefit and is premature. Defendants object to this request
on the grounds that it is duplicative of previous discovery
and is therefore cumulative and harassing.
respect to RFAs 80 through 83, which seek information
regarding an expert telecommunications consultant retained by
Collecto, Aaron Woolfson, and his personal knowledge of the
call logs and FACS database, Collecto additionally objected
that the requests sought information likely to be in the
custody or control of third parties.
1, 2016, counsel for the plaintiffs requested that the
parties meet and confer regarding Collecto's objections
by June 15, 2016. The plaintiffs allege that Collecto never
responded to this request. Consequently, plaintiffs and
putative class representatives John Lofton and Robert Pegg
filed two motions to compel discovery responses; the first, a
motion to compel responses to RFAs 58 through 83, was filed
on June 16, 2016. Pursuant to Local Rule 7.1(b)(2),
Collecto was to file any opposition within 14 days, or by
June 30, 2016; as yet, Collecto has submitted no opposition
to the motion.
refusal to comply with class discovery because of the absence
of a consolidated complaint is without merit. As the
plaintiffs observe, this court has neither ordered the
plaintiffs to file a consolidated complaint, nor has it
stayed discovery pending such a filing.
through 79 merely request an affirmative or negative response
to a specific inquiry regarding the data included in
Collecto's call logs and FACS database, and whether that
data can be used to identify or exclude potential class
members. The requests are neither overbroad (on the contrary,
they are quite discrete), nor premature, or disproportionate
to their likely benefit (Collecto's response may indicate
whether the plaintiffs can effectively use the call logs and
FACS database to identify a universe of potential class
members, which is an obvious prerequisite for any motion for
class certification). Finally, while Collecto broadly alleges
that each request is duplicative of previous discovery, it
offers no evidence in support. In the absence of any response
from Collecto, the plaintiffs' motion to compel discovery
through 83, on the other hand, relate to Woolfson's
personal knowledge of whether particular computer files
constitute call logs (and whether that personal knowledge is
extensive enough to allow Woolfson to testify). Collecto
reasonably objects that the extent of Woolfson's personal
knowledge is likely known only to Woolfson himself. The
plaintiffs have not demonstrated that Woolfson is within
Collecto's de facto control, which would trigger a duty
on Collecto's part to undertake a "reasonable
inquiry" as to the extent of his personal knowledge.
Fed.R.Civ.P. 36. Moreover, while Woolfson's knowledge of
the call logs and FACS database, and his ability to testify
regarding the same, may be relevant to issues at trial, the
plaintiffs have not demonstrated that Woolfson's
knowledge is relevant to the discrete issue of class
foregoing reasons, the plaintiffs' motion to compel
responses is ALLOWED as to RFAs 58 through 79, and DENIED as
to RFAs 80 through 83. The request for sanctions is DENIED.