United States District Court, M.D. Florida, Tampa Division
LICARI FAMILY CHIROPRACTIC INC. and PETER LICARI, Plaintiffs,
ECLINICAL WORKS, LLC, Defendant.
S. SNRRD UNTTED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant Eclinical Works,
LLC's Motion to Compel Discovery Responses (“Motion
to Compel”) (Dkt. 48) and Plaintiffs' Memorandum of
Law in Opposition to Defendant's Motion to Compel
Discovery Responses (Dkt. 49). On October 31, 2017, the Court
held a hearing on the Motion to Compel. For the reasons
stated at the hearing and that follow, the Motion to Compel
behalf of itself and others similarly situated, Plaintiffs
sue Defendant for violations of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227, as
amended by the Junk Fax Prevention Act of 2005, JUNK FAX
PREVENTION ACT OF 2005, PL 109-21, July 9, 2005, 119 Stat
359. (Dkt. 1.) Plaintiffs allege that on February 4, 2014,
Defendant sent them unsolicited faxes. (Dkt. 1 ¶ 12.) On
April 17, 2017, Defendant served Plaintiffs with its First
Requests for Production of Documents and Entry of Inspection
(“First Request for Production”). (Dkt. 48-1.)
Plaintiffs responded on May 17, 2017. (Dkt. 48-2.)
Defendant's Motion to Compel seeks documents responsive
to request numbers 55, 56, and 57 of Defendant's First
Request for Production. (Dkt. 48.) In their response,
Plaintiffs indicated that they do not have any documents
responsive to request numbers 56 and 57. (Dkt. 49 at 5.) At
the hearing, the parties confirmed that only request number
55 remains in dispute. Request number 55 seeks “[a]ll
‘fee sharing' agreements that exist between you and
any attorney related to Fax or Phone claims.” (Dkt. 48
at 3.) Defendant seeks an order compelling Plaintiffs to
provide any fee sharing agreements made between Plaintiffs
and Plaintiffs' counsel.
maintain great discretion to regulate discovery.
Patterson v. U.S. Postal Serv., 901 F.2d 927, 929
(11th Cir. 1990). The court has broad discretion to compel or
deny discovery. Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
Through discovery, parties may obtain materials that are
within the scope of discovery, meaning they are
nonprivileged, relevant to any party's claim or defense,
and proportional to the needs of the case. Fed.R.Civ.P.
26(b)(1). Federal Rule of Civil Procedure 37 allows any party
“on notice to other parties and all affected persons .
. . [to] move for an order compelling disclosure or
discovery.” Id. at 37.
Motion to Compel, Defendant seeks to compel Plaintiffs to
produce all fee sharing agreements they have entered into
with “any attorney” representing them in matters
involving “Fax or Phone claims.” (Dkt. 48 at 3.)
Defendant maintains that the requested fee sharing agreements
are relevant to the determination of the class certification
issues in dispute in the case. (Dkt. 48 at 5.) Specifically,
at the hearing, Defendant argued that fee sharing agreements
are relevant to determining the adequacy of representation of
the class under Federal Rule of Civil Procedure 23. Defendant
argued that it is entitled to any fee sharing agreements
between Plaintiffs and Plaintiffs' counsel because if the
class representative and Plaintiffs' counsel have any
such agreement, the class representative may be pursuing its
own interests and not the interests of the class. According
to Defendant, this antagonistic interest could preclude class
certification. In response, Plaintiffs argue that fee
agreements are not relevant and Defendant fails to establish
good cause to compel such discovery. (Dkt. 49 at 2-3.)
Plaintiffs further argued at the hearing that fee agreements
do not have bearing on the outcome of this case.
bear the burden of establishing that the requirements for
class certification under Rule 23(a) are met. Rutstein v.
Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th
Cir. 2000). To sue as a class, the following requirements of
Rule 23(a) must be met:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common
to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly
and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Thus, maintaining a class action
requires that “the representative parties will fairly
and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a)(4). With regard to the named plaintiffs
acting as class representatives, courts determine whether any
substantial conflicts of interest exist between the class
representative and putative class members.
Kirkpatrick v. J.C. Bradford & Co., 827
F.2d 718, 726 (11th Cir. 1987); Griffin v. Carlin,
755 F.2d 1516, 1532 (11th Cir. 1985); Miller v. Wells
Fargo Bank N.A., No. 1:16-cv-21145-UU, 2017 WL 698520,
at *6 (S.D. Fla. Feb. 22, 2017); In re Takata Airbag
Products Liability Litigation, No. 15-2599, 2016 WL
5844309, at *4 (S.D. Fla. May 23, 2016). The question rests
upon “whether Plaintiff and putative class members have
‘antagonistic or conflicting claims, ' such that
Plaintiff cannot fairly and adequately” represent
putative class members. Miller, No.
1:16-cv-21145-UU, 2017 WL 698520, at *7 (citing Rosario
v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).
there is no indication that the fee agreement between
Plaintiffs and Plaintiffs' counsel creates a conflict of
interest in which Plaintiffs' interests are antagonistic
to or in conflict with putative class members' interests.
Thus, Defendant has not presented evidence of a potential
conflict that would warrant compelled production of fee
agreements. In re Takata Airbag Products Liability
Litigation, No. 15-2599, 2016 WL 5844309, at *4 (finding
engagement letters in class action lawsuits “are not
typically relevant, absent an indication that there is a
conflict of interest”). In fact, Defendant has made no
showing in this regard whatsoever.
this action on a class-wide basis also requires an analysis
of the adequacy of the putative class' counsel. The court
must determine whether “plaintiffs' counsel are
qualified, experienced, and generally able to conduct the
proposed litigation.” Kirkpatrick, 827 F.2d at
726. Defendant does not dispute that Plaintiffs' counsel
are qualified, experienced and capable of conducting the
proposed litigation. Thus, the discovery Defendant seeks is
neither relevant to a matter in dispute nor proportional to
the needs of the case. Moreover, the requested fee sharing
agreements would have no bearing on the qualifications or
experience of Plaintiffs' counsel.
sharing agreements sought here are neither relevant to either
party's claim or defense, nor proportional to the needs
of the case. Fed.R.Civ.P. 26(b)(1); see In re Nissan
Motor Corp. Antitrust Litigation, No. 74CV1652, 1975 WL
166141, *2 (S.D. Fla. June 4, 1975); see also Bowling v.
Pfizer, Inc., 102 F.3d 777, 781 (6th Cir. 1996).
Therefore, Defendant's request is outside the scope of
discovery. See Chudasama v. Mazda Motor Corp., 123
F.3d 1353, 1368 ...