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Spendlove v. Rapidcourt, LLC

United States District Court, E.D. Virginia, Richmond Division

December 20, 2019

OWEN SPENDLOVE, et al., Individually and as Representatives of the Class, Plaintiffs,


          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on PLAINTIFF'S MOTION TO COMPEL AND FOR RULE 37 (c) (1) SANCTIONS (ECF No. 72). Having considered the supporting, opposing, and reply memoranda, and for the reasons stated below, PLAINTIFF'S MOTION TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF No. 72) will be granted in part and denied in part.


         A. General Factual Background

         This matter arises out of a class action under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (``FCRA") brought by Plaintiffs Owen Spendlove and Jacob Cross ("Plaintiffs") against RapidCourt, L.L.C. (``RapidCourt") . The gravamen of the case is Plaintiffs' assertion that RapidCourt unlawfully reported to Checkr, Inc. ("Checkr"), a third-party consumer reporting agency not a party in this case, information that Checkr then reported to the Plaintiffs' potential employers in violation of the FCRA. See Pis.' Second Am. Class Action Compl. (ECF No. 113) ¶¶ 1-12.

         Plaintiffs allege that RapidCourt willfully violated the FRCA by (1) reporting adverse non-conviction information from Virginia older than seven years in violation of § 1681(c)(1); (2) failing to provide consumers with timely notice of the fact that it had furnished an employment report containing adverse information while not following strict procedures designed to ensure that it does not report incomplete or outdated public records in violation of § 1681 (k) (a); and (3) failing to provide full copies of consumers' files upon request in violation of § l68l(g). Id. ¶ 1.

         B. Background

         RapidCourt filed a Motion to Dismiss or, in the Alternative, Transfer Venue. (ECF No. 25) . In response, the Plaintiffs moved the Court to permit jurisdictional discovery. PLS.' MOT. TO PERMIT JURISDICTIONAL DISC. (ECF No. 32). On May 3, 2019, the Court granted Plaintiffs' motion, ordering that "jurisdictional discovery shall proceed forthwith." (ECF No. 44). Thereafter, the Parties proposed a Scheduling Order within the parameters set by the Court for the conduct of jurisdictional discovery. (ECF No. 4 6) . Subsequent scheduling orders were entered relating to both the class certification and jurisdictional discovery deadlines, revising the original deadlines established by the Court. (ECF Nos. 49, 67).

         The discovery disputes at hand arose out of RapidCourt's objections to Plaintiff's discovery requests. On May 8, 2019, Plaintiffs served RapidCourt with Plaintiffs' First Set of Interrogatories and First Set of Document Requests. On May 17, 2019, RapidCourt served its Initial Disclosures to the Plaintiffs. RapidCourt amended its Initial Disclosures on July 26, 2019. See Fed. R. Civ. P. (a)(1)(A) (outlining the requirements for initial disclosures). Following several meet and confer sessions, RapidCourt supplemented its interrogatory responses on July 14, 2019, June 21, 2019, July 3, 2019, and August 20, 2019. On June 20, 2019 and August 20, 2019, RapidCourt supplemented its responses to Plaintiffs' First Set of Document Requests.

         On May 31, 2019, Plaintiffs served RapidCourt with Plaintiffs' Second Set of Interrogatories and Plaintiffs' Second Set of Requests for Production, to which RapidCourt responded on July 1, 2019. The parties met and conferred, and RapidCourt supplemented its responses on August 20, 2019. (ECF No. 73-4).

         On June 19, 2019, Plaintiffs served RapidCourt with Plaintiffs' Third Set of Interrogatories and Third Set of Request for Production. RapidCourt responded on July 19, 2019 and supplemented its responses to Plaintiffs' Request for Production on August 20, 2019. In addition, on June 18, 2019, Plaintiffs made a Rule 34 Request requesting that RapidCourt permit Plaintiffs' counsel and a proposed expert witness to access to RapidCourt's property in order to inspect and copy the user interface clients utilize to access court records, the computer software and underlying source code, and to conduct a search of Virginia records for Plaintiffs Spendlove and Cross. See ECF No. 73, Ex. 8 at 2-3. The Parties met and conferred on Plaintiffs' request, and RapidCourt responded to this request on August 20, 2019. On August 30, 2019, Plaintiffs moved the Court to compel Defendant RapidCourt to provide full and complete responses to certain discovery requests and to prohibit RapidCourt from presenting evidence and witnesses not previously disclosed. PLS.' MOT. TO COMPEL AND FOR RULE 37(c)(1) SANCTIONS (ECF No. 72) at 1.


         A. Analysis of RapidCourt's Objections

         The first part of the analysis is to assess RapidCourt's objections in perspective of the Plaintiffs' arguments. The Plaintiffs make a number of arguments relating to RapidCourt's alleged failures to provide full and complete responses to certain discovery requests. Plaintiff's arguments can be distilled down to five main issues, which are discussed in turn below: (1) RapidCourt's use of general form objections throughout its discovery responses; (2) RapidCourt's production of only the documents that it deemed as relevant and responsive; (3) RapidCourt's determination of the scope of relevant jurisdictional discovery; (4) Plaintiffs' requests to inspect RapidCourt's RCX product and gain access to RapidCourt's database; and (5) RapidCourt's objections to the Plaintiff's class certification discovery requests.

         a. RapidCourt's Use of General Objections

         First, the Plaintiffs object to RapidCourt's use of "general objections."[1] A review of the record on this issue shows that, in response to every interrogatory and document request, RapidCourt makes what it calls "common specific objections," which include objections for asserted relevance, overbreadth, and burden.

         Plaintiffs argue that these objections do not comply with the Federal Rules of Civil Procedure, which require objections to be stated with specificity. RapidCourt responds by arguing that the objections at issue are "common specific objections," not general objections. They are, says RapidCourt, instead thoroughly explained objections that apply to several specifically identified discovery requests. See DEF.'S MEMO. IN OPPOSITION TO PLS.' MOT. TO COMPEL AND FOR RULE 37(c) (1) SANCTIONS (ECF-No. 84) at 4.

         The analysis of the competing views begins with the governing principle that the grounds for objecting must be "stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good causes, excuses the failure." Fed.R.Civ.P. 33(b) (4). In addition, any objection to a request for production of documents must be specifically stated, and the producing party must permit inspection of the non-objectionable part. Fed.R.Civ.P. 36 (a) (5)-(6).

         The necessary corollary to these basic principles is that:

[g]eneric, non-specific objections will not suffice when posed in response to reasonable Interrogatories. Objections to reasonable Interrogatories must be specific to each Interrogatory and explain or demonstrate precisely why or how the party is entitled to withhold from answering.

VICA Coal Co., Inc., v. Crosby, 212 F.R.D. 498, 503 (S.D. W.Va. 2003).

         That fundamental precept is rather widely accepted, albeit is often stated somewhat differently. For example, in Barb v. Brown's Buick, Inc., No. 1:09-cv-785, 2010 WL 446638, at *l (E.D. Va. Feb. 2, 2010), the Court explained that Fed.R.Civ.P. 33 requires objections to discovery requests (interrogatories) to be made with specificity. For that reason, this Court discourages the use of "general objections." Id. In Mills v. E. Gulf Coal Prep. Co., 259 F.R.D. 118, 132 (S.D. W.Va. 2009), the principle was applied to objections to document requests posited under Fed.R.Civ.P. 34, holding that such "objections must be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable." Id.; see also Cappetta v. GC Servs. Ltd., No. 3:08-cv-288, 2008 WL 5377934, at *3 (E.D. Va. Dec. 24, 2008); Hanawha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2013 WL 3660562, at *5 (W.D. W.Va. July 11, 2013).

         The principle problems with general objections are that (1) they reach so broadly that the requesting party cannot determine what is being answered or responded to and what is not; and (2) the generality obscures what the general objection is foreclosing from discovery. Thus, use of the general objection precludes meaningful negotiation in the meet and confer process (which appears to have happened here), and it allows the producing party a degree of control over the discovery process not intended by the federal discovery rules.

         Those problems are exacerbated where, as here, there is a general objection on attorney-client and work-product privilege. Here, RapidCourt said:

RapidCourt objects to Request Nos. 3, 5, and 7, 9, 10 to the extent that these Requests seek documents protected from disclosure by the attorney-client communication privilege and/or the attorney work product doctrine.

ECF. No. 73, Ex. 3 at Common Specific Obj. 3.

         Such an objection tells neither the Plaintiffs nor the Court what is privileged or why it is asserted.

         Privilege claims must be raised by a timely filed, legally sufficient privilege list. See Fed.R.Civ.P. 26(b) (5) (stating that a party claiming a privilege must expressly make the claim and describe the nature of the documents so as to enable other parties to assess the claim); ECF No. 42, Ex. 1 at 3 ("If a party objects to the production of documents on the grounds of attorney-client privilege, attorney work product doctrine, or any other privilege, the objecting party must provide the requesting party with an inventory list of the documents to which objection is made, . . .").

         Yet another example of the kind of problem created by general objections is found in RapidCourt's general objection as to time frame and proportionality. It states:

RapidCourt objects to Request Nos. 5 and 7 as seeking documents that are not relevant to the limited scope of permissible discovery and that are not proportional to the needs of the case because ...

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