Moser v. Health Ins. Innovations, Inc.

KENNETH J. MOSER, individually, and on behalf of all others similarly situated, Plaintiff, v. HEALTH INSURANCE INNOVATIONS, INC., a Delaware corporation, et al., Defendants.AND RELATED COUNTERCLAIMS.

Case No.: 17cv1127-WQH(KSC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

December 21, 2018

ORDER RE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE RE:

DOCUMENT REQUESTS AND INTERROGATORIES SERVED ON PLAINTIFF BY DEFENDANT HEALTH INSURANCE INNOVATIONS, INC. (HII)

[Doc. No. 87.]

Before the Court is the parties' Joint Motion for Determination of Discovery Dispute. [Doc. No. 87.] In the Joint Motion, defendant Health Insurance Innovations, Inc. ("HII") seeks an order compelling plaintiff to provide further, substantive responses to certain document requests and interrogatories. Plaintiff objects to these written discovery requests on various grounds. [Doc. No. 83, at pp. 2-21.] For the reasons outlined more fully below, the Court finds that HII's request for an order compelling plaintiff to provide further responses to certain discovery requests must be GRANTED in part and DENIED in part.

Background

The original class action Complaint was filed on June 5, 2017. [Doc. No. 1.] Plaintiff then filed a First Amended Complaint on June 7, 2017. [Doc. No. 3.] The First Amended Complaint includes two causes of action for violations of the Telephone Consumer Protection Act ("TCPA"). [Doc. No. 3, at pp. 29-31.] Under the TCPA, it is unlawful to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice. . . ." 47 U.S.C. § 227(b)(1)(A). It is also unlawful under the TCPA "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, or is exempted by rule or order by the Commission under paragraph (2)(B)." 47 U.S.C.§ 227(b)(1)(b).

In the first cause of action, plaintiff alleges that defendants violated the TCPA by making multiple, unauthorized calls to his cellular telephone using an automatic dialing system or artificial, pre-recorded voice starting on January 28, 2015. [Doc. No. 3, at p. 30.] The second cause of action alleges that defendants violated the TCPA by making multiple, unauthorized telephone calls to plaintiff's residential telephone line using an artificial or pre-recorded voice to deliver a message beginning on January 28, 2015. [Doc. No. 3, at p. 31.]

According to the First Amended Complaint, defendant Health Insurance Innovations, Inc. (HII) is the "principle actor in a scheme to sell short term non-Affordable Care Act compliant medical insurance plans and other low quality insurance related services through fraud and deceit." [Doc. No. 3, at p. 5.] The scheme allegedly begins when agents under contract to HII make cold calls to consumers using an automatic dialing system and a pre-recorded message. During the pre-recorded message, the consumer canrespond to prompts, such as "press 1." [Doc. No. 3, at p. 6.] The consumer will then be connected with a sales person "who will aggressively and deceitfully attempt to sell the [insurance] bundle." [Doc. No. 3, at pp. 6-7.] Although the First Amended Complaint explains that state regulators are involved in policing these practices, the autodialed/pre-recorded calls to cellular telephones and residential lines are also actionable because they violate the TCPA. [Doc. No. 3, at pp. 8-9.]

Plaintiff used a spreadsheet to make a log of all of the autodialed/pre-recorded sales calls he received and attached it as Exhibit 1 to the First Amended Complaint. The spreadsheet shows the dates and times of the calls and the associated caller identification information. [Doc. No. 3, at p. 9.] The First Amended Complaint also includes a fairly detailed summary of the calls. For example, the First Amended Complaint alleges that plaintiff received fifteen autodialed, pre-recorded calls to his cellular telephones and his residential line from defendant Helping Hand during the period April 6, 2017 through May 10, 2017. [Doc. No. 3, at pp. 9-13.]

Plaintiff also alleges in the First Amended Complaint that he received thirty-two autodialed, pre-recorded calls from defendant Nationwide Health Advisors between April 6, 2017 and May 10, 2017. During at least one of these calls, plaintiff "feigned interest to determine the true identity of the caller" and was connected to a live sales representative. [Doc. No. 3, at p. 11.] He then "had to fake buying a policy since the caller would never identify his company. . . ." [Doc. No. 3, at p. 12.] After signing up for an insurance plan to determine the identity of the parties responsible for the autodialed calls, plaintiff received an e-mail from defendant HII. A copy of the e-mail is attached as Exhibit 6 to the First Amended Complaint. [Doc. No. 3, at pp. 18-19; Doc. No. 3-3, at pp. 1-2 (Exhibit 6).] Plaintiff believes he has been receiving calls from the defendants in violation of the TCPA since "early 2015," but he has not documented all of the calls, so some of the specific dates and times of calls are unknown without the aid of discovery. [Doc. No. 3, at p. 13.] On June 27, 2014, in a separate case, plaintiff sued defendants HII and Unified Life Insurance Company, but the action was later settled. [Doc. No. 3, at p. 19.] A copy of thesettlement is attached as Exhibit 8 to the First Amended Complaint. [Doc. No. 3-8 (Exhibit 8).] The First Amended Complaint also alleges there are a number of outstanding "junk call complaints" against the defendants. [Doc. No. 3, at pp. 20-21.]

The class allegations section of the First Amended Complaint indicates that plaintiff plans to seek certification of two sub-classes of plaintiffs: (1) those who have received unauthorized, auto-dialed calls on their cellular telephones from defendants since January 28, 2015; and (2) those who have received unauthorized, auto-dialed calls on the residential telephone lines since January 28, 2015. [Doc. No. 3, at p. 25.]

Discussion

I. Scope of Discovery.

In Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012), the Ninth Circuit indicated that the following are elements of a TCPA claim: (1) the defendant called a cellular telephone; (2) the call was made with an automatic telephone dialing system ("ATDS"); and (3) the recipient of the call did not give prior express consent. Id. at 1043. However, the Meyer case was decided in the context of a motion for preliminary injunction (id. at 1040), and the Ninth Circuit later stated in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), that "prior express consent is an affirmative defense, not an element of a TCPA claim." Id. at 1044 n.3.

"Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged 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 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." Fed.R.Civ.P. 26(b)(1).

If a party fails to answer written interrogatories or produce documents in response to written requests, the party seeking discovery may move for an order compelling disclosure. Fed.R.Civ.P. 37(a)(3)&(4). "While the party seeking to compel discoveryhas the burden of establishing that its request satisfies relevancy requirements, the party opposing discovery bears the burden of showing that discovery should not be allowed, and of clarifying, explaining, and supporting its objections with competent evidence." Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 281 (N.D. Cal. 2015).

Under Rule 26(b)(2)(C), "the court must limit . . . discovery . . . if it determines that: (i) 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; . . . or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed.R.Civ.P. 26(b)(2)(C)(i)&(ii). In addition, "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . (A) forbidding the disclosure or discovery; . . . (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of the disclosure or discovery to certain matters; . . . (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way. . . ." Fed.R.Civ.P. 26(C)(1)(A)-(G).

Federal Rule of Civil Procedure 33 states that "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Fed.R.Civ.P. (b)(1)(3). In other words, parties have an obligation to respond to interrogatories to the fullest extent possible. "The grounds for objecting to an interrogatory must be stated with specificity." Fed.R.Civ.P. 33(b)(4). "Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all." Walker v. Lakewood Condo. Owners Ass'n, 186 F.R.D. 584, 587 (C.D. Cal. 1999). For example, objections must explain how an interrogatory is overly broad or unduly burdensome. Mitchell v. National R.R. Passenger Corp., 208 F.R.D. 455, 458 at n.4 (D.D.C. 2002).

Federal Rule 34(b)(1)(A)...