United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
BIFURCATE CLASS DISCOVERY AND PLAINTIFFS' MOTION FOR A
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Samuel Katz, Alexander Braurman, and Lynne Rhodes allege
violations of the Telephone Consumer Protection Act of 1991
(“TPCA”) and fraudulent transfers to the
detriment of four putative nationwide classes of persons who
received telemarketing calls on behalf of Defendants Liberty
Power Corp, LLC and Liberty Power Holdings, LLC (together
“Liberty Power”). Before the Court are Liberty
Power's Motion to Bifurcate Class Discovery, [ECF No.
66], and Plaintiffs' Motion for a Protective Order
regarding certain third-party subpoenas, [ECF No. 88]. For
the reasons explained herein, individual and class discovery
are bifurcated, and the Motion for a Protective Order is
GRANTED in part and DENIED in part.
action was filed on March 16, 2018. [ECF No. 1]. The
complaint has been amended twice, most recently on November
14, 2018. [ECF No. 109]. On January 9, 2019, Liberty Power
filed a motion to dismiss the Second Amended Complaint. [ECF
No. 118]. Although the Court has not yet ruled on that
motion, the parties have-quite appropriately- engaged in
considerable discovery. As a result, Liberty Power has
identified several perceived weaknesses in the named
Plaintiffs' claims and argues that it may be able to
show, after limited additional individual discovery, that the
named Plaintiffs lack viable claims. [See ECF No.
67]. Liberty Power requests that the Court bifurcate
discovery and permit a dispositive motion on the named
Plaintiffs' claims before class discovery.
of Liberty Power's efforts to secure discovery to support
its arguments that the named Plaintiffs do not have viable
claims, it issued third-party subpoenas to Verizon, Cellco
Parnership, Vonage, and Google, providers of telephone and
email services used by Plaintiffs. Plaintiffs move for a
protective order prohibiting enforcement of those third-party
subpoenas, or alternatively narrowing their scope. [ECF No.
Bifurcation of Discovery
courts possess “inherent powers that are
‘governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.'” Dietz v. Bouldin, 136 S.Ct. 1885,
1891 (2016) (quoting Link v. Wabash R. Co., 370 U.S.
626, 630-31 (1962)). A district court's exercise of its
“inherent power must be a ‘reasonable response to
the problems and needs' confronting the court's fair
administration of justice” and “cannot be
contrary to any express grant of, or limitation on, the
district court's power contained in a rule or
statute.” Id. at 1892 (quoting Degen v.
United States, 517 U.S. 820, 823-24 (1996)). District
courts “enjoy broad discretion in managing the pace of
pretrial proceedings, including the timing of
discovery.” Vineberg v. Bissonnette, 548 F.3d
50, 54 (1st Cir. 2008). Controlling the scope of discovery is
particularly appropriate where discovery will impose
considerable expense and the claims may be resolved on issues
that require only limited or targeted discovery. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)
(emphasizing the requirement of plausibility at the motion to
dismiss stage, in part because “the threat of discovery
expense will push cost-conscious defendants to settle even
anemic cases before reaching” summary judgment or
trial); see also L.R. 16.3(a)(3)(B) (noting that a
judicial officer may sequence discovery into two or more
stages at a case management conference).
in this district have bifurcated individual merits and class
discovery where doing so served the interests of justice
given the allegations and circumstances of particular cases.
E.g. O'Connell v. Sterling Jewelers, Inc., No.
13-cv-13165-DPW (D. Mass. Dec 14, 2013), ECF No. 61 (denying
motion to strike class claims, but allowing merit discovery
and summary judgment motions as to named plaintiffs'
claims before class discovery); Huzarsky v. Little Kids,
Inc., No. 15-cv-13613-DJC (D. Mass. Feb. 22, 2016), ECF
No. 22 (allowing summary judgment motions on individual
claims before addressing class issues).
the need for class discovery may be eliminated if Liberty
Power is able to demonstrate that all of the named Plaintiffs
lack viable individual claims. See Cruz v.
Farquharson, 252 F.3d 530, 533 (1st Cir. 2001)
(“Despite the fact that a case is brought as a putative
class action, it ordinarily must be dismissed as moot if no
decision on class certification has occurred by the time that
the individual claims of all named plaintiffs have been fully
resolved.”). But see S. Orange Chiropractic Ctr.,
LLC v. Cayan LLC, No. 15-cv-13069-PBS, 2016 WL 1441791,
at *7 (D. Mass. Apr. 12, 2016) (holding that tendering
complete relief of named representative's individual
claim under Rule 68 did not moot TCPA class claims because
class claims fell within “inherently transitory”
exception). Further, class discovery is not necessary to
address certain issues that may be dispositive of
Plaintiffs' individual claims or ability to bring the
asserted class claims, including whether the phone numbers at
issue are within the TCPA, whether named Plaintiffs' are
within the classes they purport to represent, and whether any
named Plaintiffs with a viable claim can demonstrate the
Court's jurisdiction to resolve that claim. [See
ECF No. 67 at 5-10]. The parties shall complete discovery
relevant to the alleged TCPA violations committed against the
named Plaintiffs by May 22, 2019. Class discovery is stayed
until further order of the Court, and the parties shall file
a joint letter setting forth their respective positions
concerning class discovery by May 31, 2019. Liberty Power
shall file any motion for summary judgment based on the named
Plaintiffs' individual claims by June 21, 2019.
Plaintiffs shall respond in accordance with the local rules.
Third-Party Subpoenas for Emails
Power has issued a subpoena to Google that demands all emails
and attachments from Mr. Katz's Gmail account with the
words “liberty, ” “garrison, ” or
“TCPA, ” excluding emails with a limited set of
Mr. Katz's attorneys. [ECF No. 89-6]. The subpoena
requests that those emails be produced to Liberty Power's
counsel in the District of Columbia. [Id. at 2].
Plaintiffs move for a protective order, which they have
standing to pursue because of Mr. Katz's interest in
avoiding the disclosure of personal information and
privileged materials that may be contained in the emails
sought from Google. See Wright & Miller, 9A
Federal Practice & Procedure § 2459 (3d ed.
2018) (“Ordinarily a party has no standing to seek to
quash a subpoena issued to someone who is not a party to the
action, unless the objecting party claims some personal right
or privilege with regard to the documents sought.”).
Rule of Civil Procedure 45 allows third-party subpoenas in
connection with civil litigation but requires parties to
“take reasonable steps to avoid imposing undue burden
or expense on a person subject to the subpoena.”
Fed.R.Civ.P. 45(d)(1). Although the subpoena at issue
requests the production of emails in the District of Columbia
and a motion to quash or modify the subpoena would be more
properly filed in the United States District Court where
performance is required, see Fed.R.Civ.P. 45(d)(3),
this Court retains jurisdiction to restrict the scope of
discovery and issue protective orders in accordance with Rule
26, see Fed. F. Civ. P. 26(b)(2)(C) (“On
motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by
local rule if it determines that . . . the discovery sought
is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive.”).
email is an electronic communication service within the
meaning of the Stored Communications Act, and Google is
generally not permitted and cannot be compelled to respond to
civil subpoenas that seek email communications. See
18 U.S.C. § 2701(c)(1); Bower v. Bower, 808
F.Supp.2d 348, 350 (D. Mass. 2011) (“[C]ourts have
repeatedly held that providers such as Yahoo! and Google may
not produce emails in response to civil discovery
subpoenas.”); see also In re Facebook, Inc.,
923 F.Supp.2d 1204, 1206 (N.D. Cal. 2012) (quashing subpoena
issued pursuant to 28 U.S.C. § 1782 because “civil
subpoenas may not compel production of records from providers
like Facebook”); In re Subpoena Duces Tecum to AOL,
LLC, 550 F.Supp.2d 606, 609 (E.D. Va. 2008)
(“[T]he plain language of the [Stored Communications
Act] prohibits AOL from producing the [plaintiff's]
e-mails, and the issuance of a civil discovery subpoena is
not an exception to the provisions of the [Stored
Communications Act.]”); Viacom Int'l Inc. v.
YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008)
(granting protective order and denying motion to compel
production from YouTube).
Plaintiffs' Motion for a Protective Order with respect to
the subpoena of Mr. Katz's emails from Google is
granted. Given the absolute clarity of the law in
this area, Defendants ...