Tyrone Henderson, et al. v. Corelogic National Background Data, LLC,, No. 3:2012cv00097 - Document 324 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 09/01/2016. (ccol, )
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Tyrone Henderson, et al. v. Corelogic National Background Data, LLC, Doc. 324 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division TYRONE HENDERSON, et al., Plaintiffs, Civil Action No.: V. 3:12CV97 CORELOGIC NATIONAL BACKGROUND DATA, LLC, Defendant. MEMORANDUM OPINION This matter STRIKE: (1) DECLARATIONS 294). is before PLAINTIFFS' OF ROBERT the Court on PROPOSED SMITH AND DEFENDANT'S SUBCLASSES; MICHAEL For the reasons set forth herein. MOTION AND HOLLANDER TO (2) THE {ECF No. Defendant's motion will be denied. BACKGROUND On July 16, and James complaint situated, Hines on Plaintiffs Tyrone Henderson ("Hines") behalf of filed a second themselves and amended all ("Henderson") class others action similarly alleging that Defendant National Background Data, ("NED") had (Second Amended presents 2015, two violated the Complaint claims under Fair Credit ("SAC"), the Reporting Act ECF FCRA. behalf of the putative nationwide class, No. Count 189), One LLC ("FCRA"). The alleges, SAC on that NBD violated the Dockets.Justia.com FCRA by failing strict to send procedures" provided to violation its of to notices ensure customers 15 U.S.C to that were § consumers the and Count claim on behalf of Henderson and Hines, to criminal "complete 1681k(a). and up Two, "maintain records to an date," it in individual alleges that NBD failed to use reasonable procedures to assure maximum accuracy of its reports, in violation of U.S.C. On August 25, 2015, § 1681e(b). Plaintiffs filed a renewed motion for class certification, seeking to certify the following class: All natural persons residing in the States who (a) were the subject of a sold by NBD to Verifications, ADP Plus, (b) database an where indicates employment "Results NBD's that "Results it purpose, Returned" was Returned" furnished (c) database United report or HR where showed for NBD's that the report contained at least one adverse criminal record "hit," (d) within five years next preceding the filing of this action and during its pendency. (ECF No. 196) . April 18, that the The Court heard oral argument on that motion on 2016. At class tethered Plaintiffs are No. hearing, definition adequately claim. the to required the to the was overly element prove Court to of expressed broad and concerns was "incompleteness" succeed on their § not that 1681k See Transcript of Apr. 18, 2016 Hearing ("Hrg. Tr.," ECF 279). Therefore, the Court denied Plaintiffs' motion without prejudice and ordered the parties to rebrief the class certification issues, mindful of the Court's concerns expressed at the hearing. In motion (ECF No. 275). accordance for with class that Order, certification Plaintiffs on May memorandum in support of that motion. 9, filed third In 2016. a their Plaintiffs argue that the Court should certify the following class: All natural persons residing in the States (a) who were the subject of a sold by NBD to Verifications, ADP Plus, (b) database an where employment NED'S NBD's indicates that purpose Results Returned Results it was (Code United report or HR Returned furnished 6) , database (c) for where showed that the report contained at least one adverse criminal record "Hit," (d) within five years next preceding the filing of this action and during its pendency.,.[excluding] any employees, officers, directors of Defendant, any attorney appearing in this case, and any judge assigned to hear this action. (ECF No. 282). Plaintiffs the Civ. foregoing P. 23, also class contend does not that, meet should the the Court requirements find of that Fed. R. the Court should certify one or more of Plaintiffs' three proposed subclasses, defined as follows: SUBCLASS database 1: (i) shows a Virginia General did not return a (iii) NBD's criminal Results record Returned hit from District Court; (ii) SSN to its customers; a NBD and the computer database of the Executive Secretary contains of a the SSN Supreme or associated with that Court of Virginia Drivers License criminal record. number SUBCLASS 2: database (i) shows a [Pennsylvania] NBD did not NBD's criminal General return Results record District a SSN to Returned hit from Court; its customers; and (iii) the computer database of Pennsylvania Administrative Office Pennsylvania Courts (AOPC) contains a associated with that SUBCLASS database 3: show criminal a (ii) the of SSN record. (i) NBD's Results Returned [sic] a criminal record hit from a state Sex Offender Registry; (ii) where the age and/or date of birth provided for that consumer by Verifications, ADP or HR Plus did not match the age and/or date of birth contained in that State's publically accessible Sex Offender Registry. Id. In support Plaintiffs ("Smith") of have and their first offered Michael and the second proposed declarations Hollander of subclasses, Robert ("Hollander"), Smith respectively. Smith is an employee in the Office of the Executive Secretary of the Supreme Court of Virginia. declaration. sample of contain Smith General Social license numbers. Community Legal based in explains District Security Id. declaration Court on records, his most ("SSNs") In his review of and/or the of a records operator's Hollander is a staff attorney at Inc., a (ECF No. discusses 282-29 51 2) . based Numbers Services, briefly that, ff 4-5. Pennsylvania. (ECF No. free legal 282-31, *3111 the services 2-3). operation of program Hollander's the records database maintained by the Administrative Office of Pennsylvania Courts and describes the procedures for accessing that database. Id. n 7-10. Pursuant to strike to Fed. R. Plaintiffs' Civ. P. proposed 37(c), NBD has subclasses Hollander declarations offered in support argues that because Plaintiffs' Plaintiffs' proposed and the and First, must of the motion Smith thereof. subclasses "belated disclosure" filed a NBD be stricken subclasses was a "complete surprise" and "Plaintiffs had never mentioned the use of any third-party governmental class certification in this specific to Virginia, websites." (1) case, Memorandum Plaintiffs' to try and Proposed or in state sex Support of Subclasses; 295) at 5) . offender Motion and Declarations of Robert Smith and Michael Hollander ECF No. achieve let alone databases that were Pennsylvania, (Defendant's Strike: databases (2) ("Def. to the Mem.," NBD argues that those subclasses represent a completely new legal theory against which NBD is unprepared to defend. the Id. class definition demonstrate good Therefore, proposed Moreover, NBD NBD contends. alleged cause to concludes, subclasses in in amend the Plaintiffs their the Court deciding are bound by Complaint, and Complaint. should the Id. not cannot at 11. consider the motion for class certification. Second, declarations NBD should argues be that excluded the Smith because and Plaintiffs Hollander did not disclose these witnesses as required by Fed. R. Civ. P. 26 before attaching the declarations in support of their motion for class certification. Id. at 5. NBD also argues that both declarations are irrelevant because the declarations do not show that SSNs were "publically available" in either database, therefore have no analysis relevance to the required 1681k(a), which pertains only to "public records." For the following reasons, to consider will be were not Plaintiffs' denied as disclosed appropriate to to as allow NBD subclasses, And, required an by § Id. at 9-10. it is appropriate for the Court proposed them. and because by Fed. Smith R. opportunity and Civ. to NBD's and P. motion Hollander 26, conduct it is discovery respecting the topics therein presented, and to require briefing on certification of the three subclasses. DISCUSSION Both facets of NBD's motion proceed under Fed. R. Civ. P. 37(c) which provides that: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. Fed. R. Civ. sanctions, in addition P. 37(c). That rule also discussed in more detail below, to or instead of the sanction offers alternative that may be imposed of exclusion at the court's discretion. The impose sanctions such as process of determining whether to those requested by NBD involves three steps: (1) determining that a violation of a discovery order or one of the Federal Rules of Civil Procedure occurred; (2) determining whether that violation substantially was justified, by Southern States Rack & Sherwin-Williams Co., 318 Cir. 2003); and the violation, (3) v. (E.D. This framework NBD's motion 1. reference Fixture, F.3d 592, fitting Ltd. 2016). and a to Inc. v. 597 (4th sanction to i f one is found. Samsung Elecs. Co., Va. harmless Nvidia Corp., is 314 F.R.D. applied to 190, each 195-96 part of in turn. Plaintiffs' Proposed Subclasses For Court But, has as their reasons set declined noted most out to above. recent in a separate Memorandum Opinion, certify the Plaintiffs Renewed Motion proposed have for nationwide proposed Class the class. subclasses Certification in that represent subsets of the proposed nationwide class that will not be certified. impermissible NBD because: legal theory that (2) contends (1) those that the subclasses subclasses represent are a new should have been disclosed in discovery; and Plaintiffs are "bound by" the class definition in the SAC. Neither of these arguments has merit. First, Plaintiffs did not violate Fed. failing to disclose the proposed subclasses. R. Civ. P. 26 by NBD's theory as to the discovery requests have disclosed the however, to the in response to which proposed subclasses extent that NBD is Plaintiffs not actually should entirely clear; is arguing that Plaintiffs should have disclosed that they intended to rely on state court motion, that throughout NBD's databases is course of the its support argument reports provide in this are of their unavailing. Plaintiffs litigation, with all of the own could interrogatory responses, brief. satisfy sought to identifying available in the original court records. NBD's certification Plaintiffs its have And, show that attached as persistently obligations under § information an exhibit argued Ex. Plaintiffs 5) . maintained that not NBD The by the should fact that court have systems obtained from now which verification transform the proposed sub-classes that rely (Def. on into a its by Mem. databases Plaintiffs of to NBD 1681k(a) (2) courthouse records." at to as evidenced by "contemporaneously verify[ing] 1 have, systemically incomplete because NBD fails customers Plaintiffs' class contend records new legal does theory of which NBD lacked notice. Moreover, surprise as a NBD cannot result of credibly the claim proposed either prejudice subclasses. Given or the Court's ruling on summary judgment and the extensive discussion at the April 18, completeness, it 2016 is hearing concerning unremarkable 8 that ascertainability Plaintiffs sought and to define the class by reference to objective specific items of identifying information. surprise that Plaintiffs seek, in criteria, i.e., Nor can it come as a two of their subclass definitions, to tether the concept of incompleteness to records lacking SSNs, because Plaintiffs have touted SSNs as the sine qua non of completeness throughout the course of this action.^ Thus, connecting the subclass definitions to a specific type of missing information is not, as NBD would have it, "radically different" from what was pled in the SAC or the theories that Plaintiffs have previously addition. Plaintiffs pressed. (Def. specifically Mem. raised at the 11) . In issue of supplementing their proposed class definition through subclasses such as Subclass 1 at the April 18, 2016 hearing. 50-53. NBD and SafeRent regularly obtain Finally, as NBD points out, information from the very databases seek to ground their proposed subclasses, that these has databases are in which Plaintiffs so NBD cannot entirely unfamiliar. not been prejudiced by the Hrg. Tr. at claim Therefore, inclusion of the new NBD proposed subclasses in Plaintiffs' motion for class certification. ^ It is not true, as NBD contends, that the Court "rejected" that particular theory at the summary judgment stage. The Court actually held only that i t could not determine whether SSNs are necessary for completeness as a matter of law. Henderson v. CoreLoqic Nat'l Background Data, (E.D. Va. Apr. 18, 2016) . LLC, 2016 WL 1574048, at *12 NBD also contends that "the Court and, are in turn, Plaintiffs ^bound by the class definition provided in the complaint.'" (Def. Mem. amendment the at of class 11). the Although some complaint where definition, many courts have the plaintiffs courts have required seek to held an revise exactly the opposite: that it is inappropriate to constrain the parties to the definition class particularly take in inherent formation Life of Ins. Robidoux light in a of class the 365 Celani, 987 the refinement 414 931, (5th 937 pleadings, and give-and- particularly definition." 408, F.2d plaintiff's litigation, class F.3d in "ongoing action workable Co., v. propounded In Cir. (2d re the Monumental 2004); Cir. in see 1993) also (noting that the court is "not bound by the class definition proposed in the complaint"); 4602591 (D. Piotrowski Md. July 29, v. 2015) inquiry is whether Plaintiffs' in an ascertainable meets Rule 23 allegations Abdeljalil (S.D. Cal. Sprinqut, Gen. 2015) definition "having class and to LLP v. that 2015 the WL "proper proposed class definition results Capital that against Commence NA, feasible class and not whether i t precisely tracks the (allowing defend Bank, (observing definition Elec. noting Fargo administratively requirements, and v. and Wells the the Corp., plaintiff there a in is better Corp., 10 272 no amended 306 to complaint"); F.R.D. narrow prejudice pled F.R.D. 303, the class caused class"); 397, 306 402 Kalow by s (D.N.J. 2011) (holding that "Plaintiff is not bound by the class definitions proposed in its Amended Complaint, and the Court can consider Plaintiff's revised definitions, albeit those revisions are made in its motion for class certification") . The Court finds the latter class of decisions persuasive. First, the amendment judgment. 2016 Fed. WL R. Civ. of See, a 23(c) (1) (C) explicitly contemplates class e.g., 1071571 P. (E.D. certification Milbourne v. Va. Mar. order before final JRK Residential Am., 15, 2016) LLC, (amending class definition after certification). Where it becomes apparent that the is proposed or certified class unworkable, discretion to amend or decertify the class. the Court has discretion to consider the Court Similarly, sub-classes has then, that may improve the manageability and viability of the putative class. Second, it would be particularly inappropriate in this case to limit Plaintiffs to the proposed class in the SAC because at the time that Plaintiffs filed the SAC and their previous motion for class certification, they lacked the benefit of the Court's rulings on summary judgment, which necessitated significantly restructuring the class proceedings, that the Court allowed the as evidenced by the parties certification with those rulings in mind. the cases cited by NBD, to re-brief Finally, fact class unlike in Plaintiffs are not attempting to offer an entirely new claim or theory of the case; rather. 11 Plaintiffs merely have attempted the to refine espoused since initiation proposed class more manageable. consider the definitions the class forth in Plaintiffs' of theory this case that so as Accordingly, and proposed they to the have make Court the will sub-classes set certification motion without requiring any amendment of the Complaint. 2. Striking the Declarations NBD also contends that the Court must strike the declarations of Smith and Hollander, on which Plaintiffs rely in support First, of their NBD Hollander proposed asserts or Smith that as sub-classes, Plaintiffs required by for several never Fed. R. reasons. disclosed Civ. P. either 26 before filing their renewed class certification motion on May 10, 2016. (Def, Mem. at 5; Defendants' Motion to Strike: Declarations of Reply," ECF No. (1) Plaintiffs' Robert 312) Reply Smith at 5-6). Memorandum in Proposed Subclasses; and and Michael Second, Hollander (Def. Mem. at and fails 9). to comply with, Third, NBD declaration is inadmissible hearsay. A. Fed. of (2) ("Def. NBD contends that Smith's declaration is an attempt to summarize voluminous is governed by, Support Fed. asserts R. that records that Evid. 1006. Hollander's Id. at 10. The Existence of Violations R. Civ. P. provide to its opponent, 26(a)(1)(A)(i) requires that a party without awaiting a discovery request, 12 the name of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, impeachment. must unless Fed. R. Civ. provide a copy the use would be P. 26(a)(1)(A)(i). or description of solely for Also, a party "all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, be solely for impeachment[.]" unless the use would Fed. R. Civ. P. 26(a) (1) (A) (ii) . These initial disclosures must be made within fourteen days of the parties' first discovery planning conference. P. 26(a) (1) (C) . In addition. Rule 26(e) (1) (A) Fed. R. Civ. requires that a party must supplement or correct these initial disclosures in a timely manner, if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. These rules obligated Fed. R. Civ. P. 26(e)(1)(A). Plaintiffs to disclose Smith Hollander either within fourteen days of the parties' planning conference or "in a timely manner." Here, and initial Plaintiffs have never disclosed Smith or Hollander pursuant to Fed. R. Civ. P. 26. Although NBD was made aware of Smith's and Hollander's existence by the Plaintiffs' filing of their declarations in support of class certification motion. Plaintiffs' failure to give NBD prior notice of Smith's and Hollander's key role in 13 Plaintiffs' try to timely. case fails to satisfy Rule 26. contend that Smith's Therefore, Plaintiffs' and Hollander before May 10, Rule and Plaintiffs do not Hollander's disclosure was failure to have identified Smith 2016 constitutes a violation of 26. B. If Harmlessness and Substantial Justification a party fails to identify witnesses or documents as required by Rules 26(a) and 26(e) or a court order, that party is subject to sanctions pursuant to Fed. R. Civ. P. 37(c)(1). That rule provides that: If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) May order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) May inform the jury of the party's failure; and (C) May impose other including any of the 37(b) (2) (A) (i)-(vi) . Fed. R. Civ. P. 37(c)(1) appropriate orders sanctions, listed in Rule (emphasis added). Fed. R. Civ. P. 37 (b) (2) (A) (i) - (vi) provides the following by way of alternate or additional sanctions: 14 (i) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) Prohibiting the disobedient party from supporting or opposing designated claims defenses, or from introducing or designated matters in evidence; (iii) Striking pleadings in whole or in part; (iv) Staying further proceedings until the order is obeyed; (v) Dismissing the action or proceeding in whole or in part; (vi) Rendering a default judgment against the disobedient party. The basic purpose of these rules is to prevent "surprise and prejudice to the opposing party." at 596. faith or evidence Southern States, 318 F.3d It is not necessary that the nondisclosure be in "bad callous to nondisclosing be disregard of excluded. party to the Id. show discovery The harmlessness rules" burden and is for the on the justification. Wilkins v. Montgomery. 751 F.3d 214, 222 -^(4th Cir. 2014). When assessing whether the nondisclosure was substantially justified or harmless, should consider: the court, its broad discretion, "(1) the surprise to the party against whom the evidence would be offered; cure the surprise; in (2) the ability of the party to (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and 15 (5) the nondisclosing party's disclose the evidence." However, the court reaching a Hoyle V. clear nor that the consider States failure First, to NBD was and Hollander's declarations, of and disclose failure F.3d the (4th Cir. to this was discovery and without any notice to NBD. in See 2011). case, neither long after to 597, factors certainly surprised revealed at justification. 330 factors its 318 all 650 F.3d 321, Southern for States, harmlessness LLC, Plaintiffs' justified. not on Freiqhtliner, Applying Southern need conclusion explanation it is harmless by Smith's the close of Only when Plaintiffs filed the currently pending motion did it become apparent that Smith, Hollander, and the databases that they purport to describe would be critical to NBD's ability to prepare for trial and to oppose Plaintiffs' certification motion. Plaintiffs argue that NBD "cannot credibly claim that it was surprised that establish that incomplete." National the Plaintiffs offered witnesses the (Plaintiffs' Background Plaintiffs' public Proposed records Opposition Data, LLC's Subclasses; Robert Smith and Michael Hollander 311) at 8). surprised supports In other words. by their any evidence theory of that to Motion and (2) ("PI. and evidence to NBD sold Defendant to the were CoreLogic Strike: (1) Declarations of Mem. in 0pp.," ECF No. Plaintiffs argue that NBD cannot be Plaintiffs the case. 16 choose That is to present simply not that the standard. NBD had no reason to anticipate Smith's and Hollander's declarations, and was clearly surprised. Second, class NBD is certification unable has to cure already the been surprise. Briefing on completed. NBD had no opportunity to conduct any analysis of the databases that were described by Smith and Hollander or to depose those individuals or any other representatives judicial systems. on Smith and of the Virginia or Pennsylvania Had Plaintiffs alerted NBD to their reliance Hollander, the Court could have amended the briefing schedule to allow NBD time to formulate its opposition to Plaintiffs' new evidence Smith and Hollander. and In fact, take expedited depositions of the Court explicitly contemplated that possibility at the previous hearing on class certification. (Hrg. Tr. at 107:3-5). Plaintiffs instead chose to simply file the declarations without any notice to NBD. Plaintiffs contend that NBD was able to cure the surprise because it was able to obtain having reviewed Plaintiffs' 0pp. at remedying 9) . Although the brought about, it is not a declaration from certification motion. that disadvantage a declaration that cure. takes Plaintiffs' As Smith (PI. a Mem. step towards belated noted above, of the databases. And, of course, have the opportunity to depose Hollander, 17 in disclosure NBD did not have the opportunity to depose Smith or to conduct a analysis after NBD also thorough did not and did not obtain a declaration from him. Therefore, Plaintiffs' first argument is unavailing. Plaintiffs also argue that "had NBD met and conferred with the Plaintiffs prior to filing its motion to strike, it would have learned that Plaintiffs would not have opposed an extension of time for NBD to file its opposition brief so that it could take the Hollander." unavailing, expedited (PI. for depositions Mem. two in 0pp. of both at 9). reasons. Mr. Smith and Mr. That argument is also First, NBD did not have an obligation to meet and confer with Plaintiffs before filing its motion to strike because "unlike motions to compel responses to discovery requests, personal consultation is not required prior to a motion for sanctions pursuant to Rule 37(c)." Hansen, 2012 WL 760747, at *14 Fulmore v. (S.D. Ind. conduct is Home Depot, 2006). USA, Second, "symptomatic of (D. Nev. Mar. Inc., NBD a 423 F. argues larger Liquori v. 6, 2012); see also Supp. 2d 861, 871-72 that the Plaintiffs' theme in Plaintiffs' briefing, i.e., so long as discovery can be reopened year after year, there can be no harm, motions practice, expert absent class members, etc." regardless of the prior expense, engagement, tolling (Def. Reply at 11). applied to the That argument is a considerable overstatement given the facts in this case. Nonetheless, pointing the finger at NBD for 18 its failures does not change the fact that the cure factor of the Southern States test must be resolved in favor of NBD. Third, because trial has not yet there is no disruption to the trial. are indisputably Class important certification, as "'generally the most to been Fourth, the course Court the has important set aspect in this these declarations of this litigation. previously of a case, class noted, is action case. If a court certifies the case to proceed as a class action, the case's JRK dynamics change Residential Am., 2016) LLC, dramatically[.]'" 2016 WL 1071564, (quoting Alba Conte Actions § 7.18 declarations (5th ed. have the the at *8 2013)). Here, potential to Plaintiffs' of the 15, Newberg on Class Smith's and Hollander's shape the decision as to class action at all and, the composition of the class or classes. importance v. (E.D. Va. Mar. & Herbert Newberg, whether this litigation proceeds as a if so, Milbourne evidence weighs against Accordingly, a finding that violation was harmless. Finally, Plaintiffs argue that they did not disclose Smith and Hollander "during the discovery period" because they did not realize that the declarations would be necessary until the Court issued its opinion on summary judgment and gave the parties direction as to further briefing at the April 18, 2016 hearing. (PI. are Mem. in 0pp. correct. at 10) . Nonetheless, And, the 19 on that point, proper course the Plaintiffs of action would have been for Plaintiffs to alert NBD and the Court as soon as they realized rather than that additional discovery simply allowing NBD to would find out be necessary, about Plaintiffs' new witnesses through the filing of their declarations. Plaintiffs' Thus, proffered justifications are insufficient to excuse the untimely disclosure. C. The Appropriate Sanction Having determined that a violation occurred, and that the violation was neither harmless nor substantially justified, it is necessary to determine what sanction to impose. "Although Fed. automatic R. Civ. P. 37(c)(1) is often read as an preclusion sanction against a noncomplying party that prevents that party from offering the nondisclosed evidence in support of a motion or at trial, the second sentence of the rule permits 'other appropriate sanctions' automatic preclusion," Rambus, Inc. v. (E.D. Va. in addition to or in lieu of the Samsung, 314 Infineon Techs. AG, 2001)). F.R.D. at 145 F. Supp. 200 (citing 2d 721, 724 District courts enjoy broad discretion to select an appropriate remedy in light of the totality of the circumstances. In Southern States, 318 F.3d at 593. applying Circuit consider: bad faith; caused the (2) that discretion, courts within the Fourth "(1) whether the non-complying party acted in the amount adversary; (3) of the 20 prejudice need for that non-compliance deterrence of the particular sort of noncompliance; sanctions of Am., 2003) would Inc. V. (quoting have Applying Anderson Court and those finds (4) been effective." USA Direct, Employment of Am. and Inc., v. factors to Law Enforcement Alliance 61 F. App'x 822, Found. Indians, For 830 {4th Cir. Advancement, 155 F.3d 500, the whether less drastic 504 circumstances Educ. (4th Cir. of this And 1998)). case, the that the appropriate remedy is to allow the Smith Hollander certification declarations analysis to after be considered allowing a in limited the class reopening of discovery to focus on the topics presented in those declarations and to require rebriefing on class certification of the proposed three narrowed subclasses. First, bad faith. without there is no indication that Plaintiffs have acted in However, allowing supplement on rendering a decision on class certification NBD time the to adequately previously analyze, undisclosed depose, information and would constitute significant prejudice. Not only must NBD be allowed to it depose Smith and Hollander, if must have time to examine and analyze wishes to do so, the databases but that NBD their declarations purport to summarize. Furthermore, remedy such the that acting harm sanctions caused, present similarly." and must but future Beach to be provide parties Mart, 21 "sufficient Inc. a sufficient will v. not be only deterrent forewarned L&L Wings, to Inc., from 302 F.R.D. 396, 414 "deterrence {E.D.N.C. 2014). is... necessary nondisclosure, As the Court recently noted, in left untreated, the broader sense because gives rise to nasty snarls that eat up the parties' time, the Court's time, and the jury's time, in contravention of the rule that cases should be resolved in a just, speedy, Samsung, and inexpensive 314 F.R.D. at 201. manner. Fed. In this case, R. Civ. P. 1." a tailored sanction (reopening discovery and briefing) and requiring the reasonable fees incurred by NBD to deter Plaintiffs' be paid by Plaintiffs' counsel will counsel from engaging in such conduct in the future.^ This alternative certification to be sanction will tailored to allow the the issue evidence of and class to the dimensions of the case that have been defined by the rulings on summary judgment and class certification. Further, NBD is not without need revise fault in the matter because the to the classes is in large measure necessitated by the positions taken by NBD. Complete rejection of the evidence from Smith and Hollander would be an excessive sanction given that the evidence was, in large part, made necessary by NBD's positions and the decision on summary judgment. Likewise, default judgment would be ^^The Court will require a detailed plan for the limited discovery to be allowed and will thus be able to constrain fees to a reasonable amount. 22 excessive for there is evidence that the three proposed subclasses likely should have been the classes proposed at the outset and appear to have merit. Fed. R. Civ. P. 37 (b) (2) (A) (i) , The sanctions available under (iii) , (iv) and (v) simply do not fit this case and, in any event, are not pressed by NBD.^ CONCLUSION For (1) the foregoing PLAINTIFFS' reasons, DEFENDANT'S PROPOSED SUBCLASSES; AND (2) ROBERT SMITH AND MICHAEL HOLLANDER (ECF No. MOTION TO STRIKE: THE DECLARATIONS OF 294) will be denied. Counsel shall immediately develop and submit for review a plan for reopening proposed in limited discovery PLAINTIFFS' relating to the subclasses MEMORANDUM IN SUPPORT OF RENEWED MOTION FOR CLASS CERTIFICATION (ECF No. 282) and additional briefing and shall submit their plan to the Court by September 11, 2016. I t is so ORDERED. fie/ /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: September / , 2016 ^ Given that discovery will be reopened, Hollander's deposition as hearsay affidavit can be submitted. declaration as offensive of Fed. well-taken and is rejected. 23 can be any objection to cured and a revised The objection to Smith's R. Evid. 1006 is simply not
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