United States District Court, D. Nevada
J. KOPPE UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiffs' motion to compel and
Defendant's counter-motion for protective order, filed as
ajoint statement. Docket No. 96 ("J.S."). Through
that same filing, Plaintiffs also request appointment of a
special master. See Id. The Court held a hearing on
the matter on March 9, 2018. For the reason discussed below,
Plaintiffs' motion to compel is DENIED,
Defendant's motion for protective order is
GRANTED in part and DENIED
in part, and the motion for a special master is
STANDARDS AND ANALYSIS
party fails to provide requested discovery, the requesting
party may move to compel that discovery. See Fed. R.
Civ. P. 37(a)(1). "[B]road discretion is vested in the
trial court to permit or deny discovery." Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are
permitted to seek discovery of any nonprivileged matter that
is relevant and proportional to the needs of the case.
Fed.R.Civ.P. 26(b)(1). The party seeking to avoid discovery
bears the burden of explaining why discovery should be
denied. See U.S. E.E.O.C. v. Caesars Entertainment,
237 F.R.D. 428, 432 (D. Nev. 2006); see also Carr v.
State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469
(N.D. Tex. 2015) (addressing burdens following 2015
amendments to the discovery rules). To the extent the Court
finds any or all of the discovery sought to be improper, it
may issue an order protecting the responding party from that
discovery. Fed.R.Civ.P. 37(a)(5)(B).
CLASS DISCOVERY GENERALLY
parties argue at some length as to whether Plaintiffs have
made a sufficient showing to engage in class discovery
generally. See J.S. at 19-25. This dispute is
not properly before the Court. The parties requested that the
Court delay class certification precisely so that discovery
could occur. Docket No.40 at 2. Equifax has already been
providing class-related discovery for some time. See,
e.g., J.S. at 65 (responding to Request for Production
No. 3 that, inter alia, "Equifax will produce
responsive, non-privileged documents"); J.S. at 22
(Equifax referencing that class discovery has been ongoing
already for eight months). Discovery is now in its final
stages. See Docket No. 103 (setting discovery cutoff
of June 22, 2018). Equifax has not provided in the joint
statement sufficient reason for the Court to opine on this
issue at this time. As the specific discovery disputes maybe
resolved on other grounds, the Court declines to address this
overarching argument at this time.
FIRST SET OF DISPUTES
first set of disputes before the Court involve
Plaintiffs' attempt to obtain discovery specific to the
different manners in which Equifax was notified of a dispute
and information as to its responses broken down by the manner
in which notification was provided. For example, Interrogatory
No. 1 requests the number of disputes received by Equifax
over a two-year period broken down by disputes received by
U.S. mail, email or other electronic means, telephone, or
other means (such as facsimile or Federal Express). J.S. at
26. Equifax responded to that interrogatory by indicating
that it opened 22, 539, 476 new cases collectively for
disputes received by U.S. Mail, email, or other electronic
means. Id.Equifax further objected that, inter
alia, a more individualized response would be unduly
burdensome. Id. The Court agrees with Equifax.
party claiming undue burden or expense ordinarily has far
better information-perhaps the only information-with respect
to that part of the determination." Nationstar Mtg.,
LLC v. Flamingo Trails No. 7 Landscape Maintenance
Assoc, 316 F.R.D. 327, 334 (D. Nev. 2016) (quoting
Fed.R.Civ.P. 26(b)(1), Advisory Committee Notes (2015)). As a
result, it has long been clear that a party claiming that
discovery imposes an undue burden must allege specific facts
which indicate the nature and extent of the burden, usually
by affidavit or other reliable evidence. Jackson v.
Montgomery Ward & Co., 173 F.R.D. 524, 529 (D. Nev.
1997); see also U.S. E.E.O.C v. Caesars
Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006)
(conclusory or speculative statements of harm, inconvenience,
or expense are insufficient). Once a burden has been
established, the question becomes whether that burden is
"undue." As such, the Court must balance the burden
identified with the likely benefit of the discovery being
sought. See, e.g., Roberts v. Clark County School
Dist, 312 F.R.D. 594, 603 (D. Nev. 2016).
case, Equifax has filed a declaration explaining that
complying with the itemized discovery requests would require
an individualized review of millions of files. See
Docket No. 96-39 at ¶¶14-15. Such review would
require an extensive time commitment by Equifax's
employees. See Id. Hence, Equifax has shown by sworn
evidence that complying with these discovery requests would
require a significant effort on its part. Moreover, the
Court fails to discern a sufficiently important benefit in
Plaintiffs' discovery of the information at issue that
outweighs the burden to Equifax identified.
the Court finds that these discovery requests impose an undue
burden on Equifax. The Court therefore
DENIES Plaintiffs' request to compel
further responses and GRANTS Equifax's
request for a protective order.
SECOND SET OF DISPUTES
second set of disputes involves three requests for production
in which Plaintiffs seek documents as to Equifax's
"transmission of Dispute Responses to a Disputing
Consumer" and its policies to ensure the results of a
reinvestigation are "provided to a consumer." J.S.
at 56, 65, 68. This set of disputes appears to encompass
two primary issues, which are addressed below.
Scope of Request ...