Melnick v. Tamko Bldg. Prods.

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MARTIN and BETH MELNICK, et al., Plaintiffs, v. TAMKO BUILDING PRODUCTS, INC., Defendants.

No. 19-2630-JWL-KGG

United States District Court, D. Kansas

February 1, 2022

MEMORANDUM & ORDER ON MOTION TO COMPEL

KENNETH G. GALE, UNITED STATES MAGISTRATE JUDGE

Now before the Court is Plaintiffs' “Motion to Compel.” (Doc. 232.) Having reviewed the submissions of the parties, Plaintiffs' motion is GRANTED in part and DENIED in part as more fully set forth herein.

BACKGROUND

In this putative class action, three sets of Plaintiffs have brought the present lawsuit against Defendant alleging that roofing shingles designed, manufactured, and sold nationwide by Defendant were defective. (See generally Doc. 124.) Defendant's motion to strike Plaintiffs' nationwide class allegations was rejected by Judge Nunley in the Eastern District of California before the case was transferred to the District of Kansas. (Doc. 87.) The Court notes, however, that Judge Nunley stated that “the parties stated Defendant's sales occurred ‘throughout' the country, but have not determined how many states are implicated in the nationwide class, or which states beyond the four Plaintiffs' home states.” (Id., at 5.) The deadline for Plaintiffs to file a motion to certify the class is currently set for September 30, 2022. (Doc. 229.)

With the present motion, Plaintiffs move for an Order compelling Defendant to produce all documents responsive to Plaintiffs' Second Requests for Production of Documents Nos. 8, 38-43, 45 and 46, and provide supplemental responses to Plaintiffs' First Interrogatories to Defendant Nos. 3 12, 13, 14, and 15. Request No. 8 seeks documents “sufficient to show which TAMKO's plants and lines produced Heritage Shingles for what geographic areas of the United States at all times during the Relevant Time Period.” (Doc. 233-17, at 11.) Requests Nos. 38-43 relate to warranty claims and complaints on the Heritage Shingles. Request No. 45 asks for documents “sufficient to show TAMKO's gross revenue and net profits from sales of each Heritage Shingles product during the Relevant Time Period.” (Id., at 32.) Request No. 46 asks for documents “sufficient to show the quantity of each Heritage Shingles product sold by year, including a breakdown of such sales by state and by consumer.” (Id at 33.)

Interrogatory No. 3 asks Defendant to “[i]dentify each and every test that TAMKO used or uses to evaluate its Heritage Shingles pursuant to ASTM D3462, including for tear strength, and TAMKO's current or former officers, directors and employees who were or are responsible for such testing, and the dates of such responsibility.” (Doc. 233-18, at 7.) Interrogatory No. 12 seeks the identity of “all distributors, wholesalers, retailers and installers” who contacted Defendant regarding the quality of the shingles, including the dates of such communications. (Id., at 25.) Interrogatory No. 13 asks for the identities of the individuals responsible for handling “warranty claims and other complaints” on the shingles on behalf of Defendant. (Id., at 25.) Interrogatory No. 14 instructs Defendant to state its “revenue per year during the Relevant Time Period from the sale of Heritage Shingles, broken down by specific Shingle product.” (Id., at 26.) Interrogatory No. 15 asks “the volume of each Heritage Shingle product sold by [Defendant] per year during the Relevant Time Period, including a breakdown of such sales by state.” (Id., at 27.)

ANALYSIS

I. Standards for Discovery.

Fed.R.Civ.P. 26(b) states 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 state in the action, the amount in controversy, the parties' relative access to 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). As such, the requested information must be nonprivileged, relevant, and proportional to the needs of the case to be discoverable. Holick v. Burkhart, No.16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).

Discovery requests must be relevant on their face. Williams v. Board of Co. Comm'rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Relevance is to be “broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action.” Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D. Kan. 1991).

Once this low burden of relevance has been established, the legal burden regarding the defense of a motion to compel resides with the party opposing the discovery request. See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the burden to support the objections). Thus, “the objecting party must specifically show in its response to the motion to compel, despite the broad and liberal construction afforded by the federal discovery rules, how each request for production or interrogatory is objectionable.” Sonnino v. University of Kansas Hosp. Authority, 221 F.R.D. 661, 670-71 (D. Kan. 2004).

“Unless a request is overly broad, irrelevant, or unduly burdensome on its face, the party asserting the objection has the duty to support its objections.” Funk v. Pinnacle Health Facilities XXIII, LP, No. 17-1099-JTM-KGG, 2018 WL 6042762, at *3 (D. Kan. Nov. 19, 2918) (quoting Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670 (D. Kan. 2003)). Further, once the “low burden of relevance is established, the legal burden regarding the defense of a motion to compel resides with the party opposing the discovery request.” Waters v. Union Pac. RR. Co., No. 15-1287-EFM-KGG, 2016 WL 3405173, at *1 (D. Kan. June 21, 2016) (citing Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the burden to support the objections)). Within this framework, the Court will address the discovery requests at issue.

II. Discovery at Issue.

A. Arbitration Clause.

As an initial matter, Defendant argues that “any post-2015 nationwide discovery would be doubly irrelevant in light of the post-2004 Heritage shingles arbitration clause.” (Doc. 238, at 12.) What Defendant refers to as the “mandatory arbitration clause” was included on the wrapper of every package of Heritage shingles sold since late 2004. (Id.) Plaintiffs do not deny the existence of the clause on the wrapper, but point out state courts - including those in Oklahoma and Missouri - that have found the arbitration clause at issue to be unenforceable. (Doc. 241, at 9 (citing Williams v. TAMKO Bldg. Prod., Inc., 451 P.3d 146, 149 (Okla. 2019), cert. denied, 140 S.Ct. 2740, 206 L.Ed.2d 918 (2020) and Hobbs v. TAMKO Bldg. Prod., Inc., 479 S.W.3d 147, 151 (Mo.Ct.App. 2015).)

As a threshold issue, Defendant has not established that the homeowners at issue herein had actual knowledge of the arbitration clause necessary to establish consent to be bound by it. See American Fam. Mut. Ins. Co. v. Tamko Bldg. Prod., Inc., 178 F.Supp.3d 1121, 1125-26 (D. Colo. 2016) (holding “[w]hether the parties agreed to arbitrate ‘is a threshold matter'” governed by state law) (citing Avendon Eng'g, Inc. v. Seatex, 126 F.3d 1279, 1287 (10^th Cir. 1997). Pursuant to Kansas law, the “a binding contract requires a ‘meeting of the minds on all essential elements.'” Braden v. Optum RX, Inc., No. 21-2046-TC-GEB, 2021 WL 5299402 (D.Kan. Nov. 15, 2021) (citing U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d 542, 546 (2012)). Defendant has failed to establish this. As such, further analysis of this issue is in this ruling is unwarranted. Defendant may raise this substantive issue by appropriate motion to the Court. Defendant's objection is overruled.

B. Nationwide Discovery.

Plaintiffs first argue that Defendant “has refused to produce nationwide (i.) warranty claim and product complaint information, and (ii.) sales and distribution information.” (Doc. 233, at 10.) They argue that this information is relevant to Plaintiffs' claims in this nationwide class action.

Defendant responds that nationwide warranty claim files or sales data after 2015 because “there is virtually no chance a nationwide class would be certified in this case” and “any putative class members who purchased their shingles after 2004 would be excluded from the class pursuant to a binding arbitration clause that has been upheld by multiple courts.” (Doc. 238, at 5.) Defendant points out that District Judge Lungstrum previously held in this case that the law of each Plaintiff's home state governs while identifying “a number of material differences among those state laws” that Defendant asserts would preclude nationwide certification. (Id., at 10; see Doc. 120.^[1])

Defendant also contends any minimal relevance of such information is outweighed by the undue burden. (Doc. 238, at 5.) Defendant provides a witness declaration estimating that the process of compiling this information could incur up to $100, 000 in legal fees while reviewing the information thereafter could incur an additional $600, 000 or more. (Id., at 11 (citing Doc. 238-1 (Declaration of Hewett) and Doc. 238-2 (Declaration of Bernardo)).) Plaintiffs reply that Defendant ...