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Gaston v. Lexisnexis Risk Solutions, Inc.

United States District Court, W.D. North Carolina, Statesville Division

December 20, 2019



          David C. Keesler, United States Magistrate Judge.

         THIS MATTER IS BEFORE THE COURT on “Plaintiffs' Motion To Compel Discovery Responses” (Document No. 72). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion and the record, the undersigned will grant the motion.


         Deloris Gaston and Leonard Gaston (“Plaintiffs”) initiated this lawsuit with the filing of a “Class Action Complaint” (Document No. 1) on January 12, 2016. Plaintiffs then filed a “Class Action Amended Complaint” (Document No. 21) (the “Complaint”) on May 12, 2016. The Complaint asserts a cause of action against LexisNexis Risk Solutions, Inc. (“LexisNexis”) and PoliceReports.US, LLC (“PoliceReports” or “PRUS”) (together, “Defendants”) for violation of the Driver's Privacy Protection Act, 18 U.S.C. § 2721 et seq. (the “DPPA”). (Document No. 21).

         Plaintiffs allege that Defendants obtained Putative Class Representatives' and Class Members' Personal Information from Motor Vehicle Records (“MVRs”) maintained by the State Motor Vehicle Department (hereinafter globally referred to as “Personal Information”), for purposes that violate the DPPA including: processing, re-disclosing, reselling personal information. (Document No. 21, p. 2).

Defendants acted independently, and in concert, and each knowingly authorized, directed, ratified, approved, acquiesced, or participated, in conduct made the basis of this class action. Defendants obtained Putative Class Representatives' and Class Members' MVRs to use, process, store, re-disclose, and resell Putative Class Representatives' and Class Members' Personal Information, in an enterprise affecting interstate commerce, including as a Direct Market Provider of MVRs, to market and solicit, directly or indirectly, Putative Class Representatives' and Class Members' Personal Identifying Information, without their express consent. Defendants accomplished such activity covertly, without actual notice or express consent, and which information Defendants obtained deceptively, for purposes which included Defendants' commercial gain.

(Document No. 21, p. 3).

         On June 7, 2016, Defendants filed a “…Motion To Dismiss Plaintiffs' Class Action Amended Complaint” (Document No. 25) pursuant to Fed.R.Civ.P. 12(b)(6). The Honorable Max O. Cogburn, Jr. summarily denied Defendants' motion to dismiss on September 13, 2017. Defendants then filed a “…Motion For Certification Of An Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b)” (Document No. 36) on October 11, 2017.

         Judge Cogburn denied Defendants' motion for an interlocutory appeal on November 13, 2017, stating that “it was clear that plaintiffs had stated a cognizable cause of action.” (Document No. 42, p. 3). Judge Cogburn further opined:

Applying a modicum of common sense to what is a clearly written statute, being involved in a fender bender on the way to work is clearly an insufficient reason to expose protected “personal information” (especially a person's name and home address) to a web audience increasingly inhabited more by identity thieves than boy scouts. Rather than certify what would most likely be a futile and expensive interlocutory appeal, the Court will allow defendants to revisit the legal issue at summary judgment, but only after the close of discovery.

(Document No. 42, p. 6) (citing Hatch v. Demayo, 2017 WL 4357447, at *7-8 (M.D. N.C. Sept. 29, 2017); Senne v. Village of Palatine, Ill., 695 F.3d 597 (7th Cir. 2012); Pichler v. UNITE, 542 F.3d 380, 391 (3d Cir. 2008); Pavone v. Meyerkord & Meyerkord, LLC, 118 F.Supp.3d 1046, 1050 (N.D. Ill. 2015); St. Clair v. Capital One Bank (USA), N.A., 2013 WL 1110810, at *5 (D. Minn. Jan. 22, 2013); and Camara v. Metro-N. R. Co., 596 F.Supp.2d 517, 525 (D. Conn. 2009)).

         The Court issued a “Pretrial Order And Case Management Plan” (Document No. 48) on March 6, 2018. The “…Case Management Plan” included the following deadlines: discovery completion - October 1, 2019; mediation report - October 15, 2019; dispositive motions - November 1, 2019, and a trial ready date - February 17, 2020. (Document No. 48).

         This case was reassigned to the Honorable Kenneth D. Bell on June 14, 2019.

         Plaintiffs' first “…Motion To Compel Discovery Responses And Sanctions and Extend Discovery By 90 Days” (Document No. 57) was filed August 22, 2019. On September 18, 2019, at Plaintiffs' request, the undersigned held a telephone conference to discuss the pending discovery dispute(s) raised in Plaintiffs' motion, as well as “Keith Clinic Estramonte Chiropractic, P.A.'s Motion To Quash….” See (Document Nos. 58, 61, 64). At the conclusion of that telephone conference, the undersigned directed counsel for both sides to further confer in an attempt to resolve their disputes, and encouraged Plaintiffs' counsel to narrow the discovery requests while advising Defendants' counsel that they were going to have to respond more fully to Plaintiffs' discovery requests.

         “Keith Clinic Estramonte Chiropractic, P.A.'s Motion To Quash….” was withdrawn on October 1, 2019. (Document No. 68). In addition, Plaintiffs' counsel provided email updates to the undersigned's staff indicating that the issues in their pending motion to compel were being substantially narrowed or resolved. Specifically, on October 18, 2019, Plaintiffs' counsel emailed the undersigned's law clerk, stating: “We believe we are making progress and would like to update the court again next week. I expect that if the dispute is not resolved, the issues will be narrowed substantially.”

Plaintiffs' counsel failed to provide an update the next week, or the week after, and on November 4, 2019, the Court denied the motion to compel, without prejudice. (Document No. 69). On November 7, 2019, Plaintiffs asked the Court to reconsider its denial of the motion to compel and to issue a new order compelling Defendants to respond fully and completely to all of Plaintiff's First and Second Set of Interrogatories and Requests for Production and to comply with a 30(b)(6) notice of deposition. (Document No. 70, 70-1). Contrary to the parties' purported progress resolving their disputes, counsel have not only failed to resolve or narrow the issues, but have now expanded their dispute to include all of Plaintiffs' discovery requests. (Document No. 72).

         Plaintiffs argue that they only discovered on or about November 1, 2019, that Defendants had repeatedly provided improper/incomplete responses to Interrogatory No. 1 by identifying four (4) entities that purchased the Gaston accident report as an individual report, and not identifying many other entities that purchased the report as “monthly subscription users” or “monthly subscription holders.” (Document No. 70-1). Plaintiffs contend that by withholding this information, Defendants misled Plaintiffs and delayed discovery for months. Id. Plaintiffs further argue that they

need documents from the Defendant that show all the entities that received the Gastons', and other class members, accident reports. Plaintiffs need records of the Defendants' payments to the law enforcement agencies to confirm that Plaintiffs have received records of all the disclosed accident reports, and to measure the amount that Defendants profited from this activity.

(Document No. 70-1, p. 12).

         The undersigned denied the “Motion For Reconsideration Of Order On Motion To Compel” (Document No. 70), but allowed Plaintiffs an extension of time to file a new motion - following a final attempt by counsel to resolve their discovery disputes. (Document No. 71).

         Now pending is “Plaintiffs' Motion To Compel Discovery Responses” (Document No. 72) filed on November 15, 2019. This motion has been fully briefed and is ripe for review and disposition. See (Document Nos. 75, 76, and 77).


         Rule 26 of the Federal Rules of Civil Procedure provides that:

Parties 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 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 ...

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