HATCH v. DEMAYO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHNATHAN HATCH, et al., )

)

Plaintiffs, )

)

v. ) 1:16cv925

)

MICHAEL A. DEMAYO, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This case comes before the Court on (1) “Plaintiffs’ Motion to

Compel Discovery Responses from the DeMayo, Greve, and Gelshenen

Defendants, and for Sanctions” (Docket Entry 154) (the “Plaintiffs’

Motion”),1 (2) the “Motion to File Material and Related Portions of

Brief Under Seal” (Docket Entry 157) (the “Sealing Motion”) filed

by Johnathan Hatch, Mark Dvorsky, and Kelly Epperson (collectively,

the “Plaintiffs”), and (3) the “Womble Defendants’ Motion to Compel

in Aid of Determining Adequacy of Class Representative and Class

Counsel” (Docket Entry 158) (the “Defendants’ Motion”) filed by

“the Defendants represented by Womble Bond Dickinson”2 (id. at 1).

1 For purposes of the pending motions, (1) “Michael A. DeMayo

and The Law Offices of Michael DeMayo, P.C.” constitute the “DeMayo

Defendants,” (2) “Ted A. Greve and Ted A. Greve & Associates, P.A.”

constitute the “Greve Defendants,” and (3) “John J. Gelshenen and

Davis & Gelshenen, LLP” constitute the “Gelshenen Defendants.”

(Id. at 1 (internal quotation marks omitted).) [Citations herein

to Docket Entry pages utilize the CM/ECF footer’s pagination.

Additionally, for legibility reasons, this Opinion omits all-cap

font in all quotations from the parties’ materials.]

2 Per the signature block on Defendants’ Motion, “Michael A.

(continued...)

For the reasons that follow, the Court will (1) grant in part and

deny in part Plaintiffs’ Motion, (2) grant in part and deny in part

the Sealing Motion, and (3) deny Defendants’ Motion.

BACKGROUND

On July 8, 2016, Johnathan Hatch (at times, “Hatch”) and

Shaterika Nicholson (at times, “Nicholson”) initiated a putative

class action against various lawyers and law firms, including most

Womble Defendants, for allegedly violating the Driver’s Privacy

Protection Act of 1994, 18 U.S.C. § 2721 et seq. (the “DPPA”).

(See Docket Entry 1 (the “Complaint”) at 1-6.)3 The Complaint

noted that “[a] similar action was recently filed in the Middle

District of North Carolina against different law firms for the same

conduct as 1:16-cv-00542[]” (the “Garey Action”). (Id. at 2.)4 On

2(...continued)

DeMayo, the Law Offices of Michael A. DeMayo, P.C., Law Offices of

Michael A. DeMayo, L.L.P., Jason E. Taylor, Law Offices of Jason E.

Taylor, P.C., Benjamin T. Cochran, Hardison & Cochran, PLLC, Carl

B. Nagle, Nagle & Associates, P.A., John J. Gelshenen, Davis &

Gelshenen LLP, Ted A. Greve, Ted A. Greve & Associates, P.A.,

Christopher T. May, and Estwanik & May, P.L.L.C.” (collectively,

the “Womble Defendants”) comprise this group of defendants. (Id.

at 6 (emphasis omitted).)

3 The Complaint named as defendants all Womble Defendants

save Greve Defendants, Estwanik & May, P.L.L.C., and Christopher T.

May. (Id.)

4 More specifically, on May 27, 2016, individuals initiated

a purported class action lawsuit against a lawyer and various law

firms for alleged violations of the DPPA. See Garey v. James S.

Farrin, P.C., No. 1:16cv542, Docket Entry 1 (M.D.N.C. May 27,

2016). Similar to the instant action, that lawsuit challenged the

obtainment and use of allegedly DPPA-protected information from

(continued...)

2

July 29, 2016, Hatch and Nicholson filed an amended complaint,

which added Mark Dvorsky (“Dvorsky”) as a plaintiff and Greve

Defendants, Christopher T. May, and Estwanik & May, P.L.L.C. as

defendants. (Docket Entry 5 (the “Amended Complaint”) at 1-6.)

Both the Complaint and the Amended Complaint challenged the

defendants’ obtainment and use of allegedly DPPA-protected personal

information from accident reports to send legal advertisements to

individuals involved in vehicular accidents within North Carolina.

(See generally Docket Entries 1, 5.) The Complaint and the Amended

Complaint defined the proposed class as:

All natural persons residing in North Carolina identified

on a DMV-349 as either a driver whose address is

designated on the DMV-349 as matching the address on that

person’s driver’s license or a registered owner of a

vehicle registered with the North Carolina Division of

Motor Vehicles to whom a Defendant named in this action

sent a mailing with the words “This is an advertisement

for legal services” printed on the outside of the

envelope within the 4 years preceding the filing of this

action through conclusion of this action.

(Docket Entry 1, ¶ 56; accord Docket Entry 5, ¶ 71.)

The defendants moved to dismiss the Amended Complaint pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure (the “Rules”). (See Docket Entries 21, 23.) One week

after the Court (per United States District Judge Loretta C. Biggs)

denied the dismissal motions, the defendants moved to certify an

interlocutory appeal of that denial. (See Docket Entries 35, 36.)

4(...continued)

accident reports “to send marketing letters.” Id. at 2.

3

While the appellate certification motion remained pending, certain

defendants also moved for reconsideration of the denial. (See

Docket Entry 45 (the “Farbman Motion”).) The Court (per Judge

Biggs) denied the appellate certification motion (see Docket Entry

57), and, less than a month later, Womble Defendants moved for

reconsideration of the denial of their motion to dismiss (see

Docket Entry 59). Shortly thereafter, on November 15, 2018, the

Court (per Judge Biggs) ruled on the Farbman Motion, declining to

dismiss the Amended Complaint. (See Docket Entry 63.) The Court

(per the undersigned) then conducted an initial pretrial conference

(see Docket Entry dated Nov. 26, 2018) and issued a Scheduling

Order, which denied the defendants’ request to delay issuance of

said Scheduling Order pending resolution of Womble Defendants’

reconsideration motion (see Text Order dated Nov. 27, 2018). That

Text Order also “decline[d] to bifurcate (or trifurcate, as

Defendants effectively request) the discovery process,” instead

establishing a deadline of February 28, 2020, to “complete all

discovery.” (Id.) The Court (per the undersigned) subsequently

granted the request to extend deadlines filed by Hatch, Dvorsky,

and Nicholson (collectively, the “Original Plaintiffs”), setting

April 30, 2020, as the new deadline to “complete all discovery.”

(Text Order dated July 24, 2019.)5

5 On April 30, 2020, the parties sought an extension of the

discovery deadline to May 14, 2020, solely for the purpose of

(continued...)

4

On January 7, 2019, Original Plaintiffs served on Womble

Defendants initial discovery requests, which sought information

regarding, inter alia, their “Letter-Writing Program.” (See Docket

Entry 154-1 (the “Written Discovery”) at 1-18.) The Written

Discovery defined “Letter-Writing Program” to mean “the activities

involved in obtaining the names and addresses of people involved in

accidents from NC D[MV]-349 forms, reviewing the forms, deciding

who to mail material to, sending letters and material, and

responding to responses.” (Id. at 4 (internal quotation marks

omitted).) On August 19, 2019, Original Plaintiffs served Rule

30(b)(6) deposition notices on The Law Offices of Michael A.

DeMayo, L.L.P. (the “DeMayo Firm”), Ted A. Greve & Associates, P.A.

(the “Greve Firm”), and Davis & Gelshenen LLP (the “Gelshenen

Firm”). (See Docket Entry 154-2 (the “Deposition Discovery”) at 1-

18.) The Deposition Discovery requested production of certain

documents prior to the noticed Rule 30(b)(6) depositions,

including, as relevant here, Requests “3. Any and all documents

(including copies of the letters themselves) identifying persons to

whom the [relevant] firm sent or attempted to send letters in

connection with its direct mail marketing program at any time on or

after January 1, 2012,” and “9. All records that contain the names

5(...continued)

deposing Plaintiffs’ expert (see Docket Entry 160 at 1-3), which

request the Court (per the undersigned) also granted (see Text

Order dated May 1, 2020).

5

and/or addresses of persons who were sent direct mail advertisement

since January 1, 2012.” (Id. at 4, 5, 10, 11, 16, 17.)

On September 30, 2019, Original Plaintiffs sought leave to

amend their complaint “(1) to streamline the class definition;

(2) to substitute a new class representative (with Defendants’

consent); and (3) to add a claim for punitive damages as to those

Defendants who have continued their marketing campaigns even after

this Court’s Order denying Defendants’ motions to dismiss.”

(See Docket Entry 97 at 2.) In particular, Original Plaintiffs

proposed a new class definition, which “requires that the class

member is a person (a) identified on a DMV-349 which was prepared

by either the Charlotte-Mecklenburg Police Department or the North

Carolina State Highway Patrol; and (b) whose personal information

was received and/or used by Defendants for marketing purposes.”

(Id.) Original Plaintiffs explained that the restriction of class

members to those identified on the specified agencies’ accident

reports “alleviates manageability concerns” and that “[t]he

inclusion of persons whose personal information was ‘received’ by

a Defendant in connection with a mail-marketing campaign is

intended to address challenges created by those Defendants who

claim to have destroyed (and in several cases, to continue to

destroy) records relating to their mailings.” (Id. at 3.)

Original Plaintiffs further sought “to substitute Kelly Epperson

[(‘Epperson’)] for Shaterika Nicholson as a named plaintiff and

6

class representative[ because] Nicholson does not come within the

new class definition[, but] Epperson does.” (Id. at 4.)

On October 21, 2019, the defendants consented to the proposed

amendment. (See Docket Entries 98, 99.) Accordingly, the Court

(per the undersigned) granted the requested leave (see Text Order

dated Oct. 22, 2019), and Plaintiffs filed their amended complaint

on October 23, 2019 (see Docket Entry 100) (the “Second Amended

Complaint”). The Second Amended Complaint provided the following

class definition:

Every natural person identified on a DMV-349, which

was prepared by either the Charlotte-Mecklenburg Police

Department or the North Carolina State Highway Patrol, as

a driver licensed in North Carolina whose address is

designated on the DMV-349 as matching the address on that

person’s driver’s license, (a) with respect to whom a

Defendant received directly or indirectly from the

DMV-349 or its electronic equivalent the person’s name or

address in connection with a Defendant’s direct-mail

marketing program and/or (b) to whom a Defendant named in

this action sent a mailing with the words “This is an

advertisement for legal services” printed on the outside

of the envelope, within the 4 years preceding the filing

of this action through conclusion of this action.

(Id., ¶ 73.)

Two days later, the parties jointly moved for entry of “a

Consent Protective Order Governing the Production and Use of

Confidential Material.” (Docket Entry 101 at 1 (emphasis

omitted).) The Court (per the undersigned) granted that motion,

entering the requested “Consent Protective Order” (Docket Entry 103

at 1 (emphasis omitted)). (See id. at 14.) Shortly thereafter,

Plaintiffs moved for class certification (see Docket Entry 104), in

7

connection with which they moved to seal, inter alia, certain

information that the defendants “claim is confidential” (Docket

Entry 107 at 2). The defendants similarly moved to seal certain

information filed in support of their oppositions to class

certification. (See, e.g., Docket Entries 131, 135.) As relevant

here, the Court (per Judge Biggs) granted the parties’ requests to

seal information described as “‘confidential and proprietary

case-selection criteria and strategies’” (Docket Entry 152 (the

“Sealing Order”) at 4), as well as information regarding “‘the

process and procedures that [the Defendant law firms] use in

operating their direct mail programs, including case selection

information’” (id. at 6 (brackets in original)).

Approximately two weeks later, Plaintiffs filed Plaintiffs’

Motion and the Sealing Motion. (See Docket Entries 154, 157.) The

Sealing Motion indicates that, although “Plaintiffs do not claim

the [identified] material is confidential and do not believe any of

it is,” they filed the Sealing Motion because the information at

issue involves discovery materials that “Defendants have marked as

confidential under the Consent Protective Order.” (Docket Entry

157 at 2.) Relying on the Sealing Order (see Docket Entry 162 at

1, 3), Womble Defendants filed a brief in support of the Sealing

Motion. (See Docket Entry 162.) In addition, the relevant

defendants filed an opposition to Plaintiffs’ Motion (see Docket

Entry 161), and, on the final day of the discovery period, Womble

8

Defendants filed Defendants’ Motion (see Docket Entry 158), which

Plaintiffs oppose (see Docket Entry 164). After the parties

finished briefing the pending motions, the Court (per Judge Biggs)

denied Plaintiffs’ class certification request on typicality

grounds. (See Docket Entry 200 (the “Certification Opinion”) at

19.)

DISCUSSION

I. Relevant Standards

A. Discovery Standards

“The purpose of discovery is to provide a mechanism for making

relevant information available to the litigants.” Fed. R. Civ. P.

26 advisory committee’s notes, 1983 Amendment. Thus, parties

generally “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 . . . .” Fed. R. Civ. P. 26(b)(1). “The

parties and the court have a collective responsibility to consider

the proportionality of all discovery and consider it in resolving

discovery disputes.” Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment; see also id. (explaining that Rule 26

imposes an “obligation o[n] the parties to consider the[

proportionality] factors in making discovery requests, responses,

or objections”). In turn, relevancy “essentially involves a

determination of how substantively the information requested bears

on the issues to be tried.” Mills v. East Gulf Coal Preparation

9

Co., LLC, 259 F.R.D. 118, 131 (S.D.W. Va. 2009) (internal quotation

marks omitted); see also Cook v. Howard, 484 F. App’x 805, 812 (4th

Cir. 2012) (“Relevance is thus the foundation for any request for

production, regardless of the individual to whom a request is

made.”). “On relevancy matters, the trial court has broad

discretion.” Watson v. Lowcountry Red Cross, 974 F.2d 482, 489

(4th Cir. 1992).

Moreover, “the simple fact that requested information is

discoverable . . . does not mean that discovery must be had. On

its own initiative or in response to a motion for protective order

under Rule 26(c), a district court may limit [discovery] ... .”

Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 543 (4th Cir. 2004).

Indeed, “[d]istrict courts enjoy nearly unfettered discretion to

control the timing and scope of discovery.” Hinkle v. City of

Clarksburg, 81 F.3d 416, 426 (4th Cir. 1996); accord Cook, 484 F.

App’ x at 812 (observing that “[d]istrict courts are afforded broad

discretion with respect to discovery”).

Importantly, “[t]he civil discovery process is to be engaged

in cooperatively.” Mills, 259 F.R.D. at 130; see also Wagner v.

St. Paul Fire & Marine Ins. Co., 238 F.R.D. 418, 422 (N.D.W. Va.

2006) (observing that “[g]lamesmanship” in discovery “is not

allowed”); M.D.N.C. LR 26.1(b) (1) (“The Court expects counsel to

conduct discovery in good faith and to cooperate and be courteous

with each other in all phases of the discovery process.”).

10

Nevertheless, “hardball discovery is still a problem in some

cases.” Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226,

243 (M.D.N.C. 2010) (internal quotation marks, brackets, and

ellipsis omitted) (“Kinetic Concepts 1”). The Rules therefore

permit litigants to bring unresolved discovery disputes before a

court through a motion to compel discovery. See id. The party

opposing discovery generally bears the burden on a motion to

compel. See id. at 243-44. The Rules further authorize sanctions

in connection with motions to compel discovery and generally

mandate the awarding of attorney’s fees incurred in pursuing a

motion to compel “if the disclosure or requested discovery is

provided after the motion was filed,” Fed. R. Civ. P. 37(a) (5) (A).°

The Rules also provide sanctions for spoliation of evidence,

including the failure to preserve electronically stored information

(“ESI”). See Fed. R. Civ. P. 37(e). In addition, the Court

possesses inherent power to impose sanctions for spoliation of

evidence, at least for non-ESI materials. See Silvestri v. General

Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“The right to

impose sanctions for spoliation arises from a court’s inherent

power to control the judicial process and litigation, but the power

is limited to that necessary to redress conduct ‘which abuses the

6 The Rules additionally authorize sanctions against “a

party, [which] after being properly served with .. .a request for

inspection under Rule 34, fails to serve its answers, objections,

or written response.” Fed. R. Civ. P. 37 (d) (1) (A) (ii).

11

judicial process.’”).7 “Spoliation refers to the destruction or

material alteration of evidence or to the failure to preserve

property for another’s use as evidence in pending or reasonably

foreseeable litigation.” Id.

In this regard, it remains “well settled that a party has a

duty to preserve evidence when the party is placed on notice that

the evidence is relevant to the litigation or when the party should

have known that the evidence may be relevant to future litigation.”

Eckhardt v. Bank of Am., N.A., No. 3:06cv512, 2008 WL 1995310, at

*5 (W.D.N.C. May 6, 2008); see also Silvestri, 271 F.3d at 591

(“The duty to preserve material evidence arises not only during

litigation but also extends to that period before the litigation

when a party reasonably should know that the evidence may be

relevant to anticipated litigation.”). “The duty to preserve

7 As the United States Court of Appeals for the Fourth

Circuit has explained:

The policy underlying this inherent power of the

courts is the need to preserve the integrity of the

judicial process in order to retain confidence that the

process works to uncover the truth. “[B]ecause no one

has an exclusive insight into truth, the process depends

on the adversarial presentation of evidence, precedent

and custom, and argument to reasoned conclusions — all

directed with unwavering effort to what, in good faith,

is believed to be true on matters material to the

disposition.” The courts must protect the integrity of

the judicial process because, “[a]s soon as the process

falters . . . the people are then justified in abandoning

support for the system.”

Id. (citation omitted) (brackets and ellipsis in original).

12

encompasses electronic communications and documents, such as

emails, and documents created by computer, such as invoices.”

Eckhardt, 2008 WL 1995310, at *5 (citing Zubulake v. UBS Warburg,

LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003)). Thus, “once a party

reasonably anticipates litigation, it must suspend its routine

document retention/destruction policy and put in place a

‘litigation hold’ to ensure the preservation of relevant

documents.” Zubulake, 220 F.R.D. at 218.

B. Sealing Standards

“[T]he courts of this country recognize a general right to

inspect and copy . . . judicial records and documents.” Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The right of

public access to documents or materials filed in a district court

derives from two independent sources: the common law and the First

Amendment.” Virginia Dep’t of State Police v. Washington Post, 386

F.3d 567, 575 (4th Cir. 2004). As relevant here, the common-law

presumption of access “can be rebutted if countervailing interests

heavily outweigh the public interests in access,” and “the party

seeking to overcome the presumption bears the burden of showing

some significant interest that outweighs the presumption.” Id.

(internal quotation marks and brackets omitted). “[W]hether to

grant or restrict access to judicial records” under the common law

“is a matter of a district court’s ‘supervisory power,’ and it is

[a decision] ‘best left to the sound discretion of the [district]

13

court, a discretion to be exercised in light of the relevant facts

and circumstances of the particular case.’” Id. (final set of

brackets in original).

“When presented with a request to seal judicial records,” the

Court begins by “determin[ing] the source of the right of access

with respect to each document,” as “only then can it accurately

weigh the competing interests at stake.” Id. at 576 (internal

quotation marks and brackets omitted). The Court thereafter must

evaluate the competing interests under the following approach.

First, “it must give the public notice of the request to seal and

a reasonable opportunity to challenge the request.” Id. Further,

“it must consider less drastic alternatives to sealing.” Id.

Finally, “if it decides to seal[,] it must state the reasons (and

specific supporting findings) for its decision and the reasons for

rejecting alternatives to sealing.” Id.

“Adherence to this procedure serves to ensure that the

decision to seal materials will not be made lightly and that it

will be subject to meaningful appellate review.” Id. This

approach also reflects the reality that “[t]he operations of the

courts and the judicial conduct of judges are matters of utmost

public concern,” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829,

839 (1978), as well as that “the public’s business is best done in

public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725,

727 (M.D.N.C. 2013).

14

However, “the mere filing of a document with a court does not

render the document judicial.” In re Policy Mgmt. Sys. Corp., 67

F.3d 296 (table), Nos. 94–2254 & 94-2341, 1995 WL 541623, *4 (4th

Cir. 1995); see also United States v. Moussaoui, 65 F. App’x 881,

889 (4th Cir. 2003) (“The unclassified appendix contains a wide

variety of materials, such as pleadings, hearing and deposition

transcripts, and some discovery materials. Some of these documents

fall within the common law presumption of access, while others are

subject to the greater right of access provided by the First

Amendment. Still others may not qualify as ‘judicial records’ at

all.” (citing United States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir.

1995))); Amodeo, 44 F.3d at 145 (“We think that the mere filing of

a paper or document with the court is insufficient to render that

paper a judicial document subject to the right of public access.

We think that the item filed must be relevant to the performance of

the judicial function and useful in the judicial process in order

for it to be designated a judicial document.”). Rather, “documents

filed with the court are ‘judicial records’ if they play a role in

the adjudicative process, or adjudicate substantive rights.” In re

U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d

283, 290 (4th Cir. 2013). Accordingly, “[b]ecause discovery

motions” often “involve procedural, rather than ‘substantive’

rights of the litigants,” Kinetic Concepts, Inc. v. Convatec Inc.,

No. 1:08cv918, 2010 WL 1418312, at *9 (M.D.N.C. Apr. 2, 2010)

15

(“Kinetic Concepts II”), courts have found that no right of public

access attaches to materials filed with discovery motions. See

id. at *9-10; see also, e.g., Chicago Tribune Co. Vv.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001)

(“The better rule is that material filed with discovery motions is

not subject to the common-law right of access, whereas discovery

material filed in connection with pretrial motions that require

judicial resolution of the merits is subject to the common-law

right, and we so hold.”).

In such circumstances, the “good cause” standard of Rule 26(c)

applies to the sealing request. See Kinetic Concepts II, 2010 WL

1418312, at *10; see also BASF Agro B.V. v. Makhteshim Agan of N.

Am., Inc., No. 1:10cv276, 2015 WL 12991090, at *4 (M.D.N.C. July

21, 2015) (“If the[ relevant] documents only asked this court to

rule on procedural discovery grounds, this court would only need to

find that good cause existed for sealing these documents.”). Under

Rule 26(c), “[t]he [C]ourt may, for good cause, issue an order to

protect a party or person from,” inter alia, “undue burden or

expense,” Fed. R. Civ. P. 26(c) (1), including by restricting access

to certain materials, see, e.g., Fed. R. Civ. P. 26(c) (1) (F)-(H)

(authorizing sealing of depositions, confidential commercial

information, and “specified documents or information”).

“Similarly, the common law presumption of access may be overcome if

competing interests outweigh the interest in access, such as where

16

a need exists to prevent court files from becoming sources of

business information that might harm a litigant’s competitive

standing.” Kinetic Concepts II, 2010 WL 1418312, at *10 (internal

quotation marks, brackets, and citation omitted).

II. Analysis

A. Plaintiffs’ Motion

Plaintiffs’ Motion seeks to compel, inter alia, “full and

complete responses to [Document] Request Nos. 2, 7, and 14 in [the

Written Discovery] and to Document Request Nos. 3 and 9 in [the

Deposition Discovery].” (Docket Entry 154 at 2.) The relevant

Written Discovery Document Requests state:

2. Any and all documents discussing, relating to, or

constituting communication identified in response to

Interrogatory No. 20.[8]

*****

8 That Interrogatory provides:

20. Identify — (a) by stating the date of the

communication; (b) by stating the name and last-known

address and telephone number of each party who

participated in or was a party to the communication;

(c) by describing the mode of communication (e.g.,

in-person meeting, telephone call, e-mail, etc.); and

(d) by describing the substance of the communication

(without stating any person’s name, address, or driver’s

license information derived from an Accident Report) —

each and every communication between or on behalf of you

and your law firm, on one side, and any person or entity

that provided you or your firm with information derived

from Accident Reports, on the other side, at any time.

(Docket Entry 154-1 at 9.)

17

7. All communication with any outside marketing

entity about the Letter-Writing Program.

*****

14. All electronically stored information created or

received by you or any of your partners, members,

shareholders, or managers dealing with your targeted

direct mail program or Letter-Writing Program.

(Docket Entry 154-1 at 11-12, 14.) In turn, the pertinent

Deposition Discovery Document Requests seek:

3. Any and all documents (including copies of the

letters themselves) identifying persons to whom the

[relevant] firm sent or attempted to send letters in

connection with its direct mail marketing program at any

time on or after January 1, 2012.

*****

9. All records that contain the names and/or

addresses of persons who were sent direct mail

advertisement since January 1, 2012.

(Docket Entry 154-2 at 4, 5, 10, 11, 16, 17.)

In addition to seeking “full and complete responses” to the

foregoing Document Requests, Plaintiffs ask the Court to order the

following:

(2) In the case of the DeMayo and Greve Defendants,

to preserve and to produce records of all persons to whom

mailings continue to be sent;

(3) To compel the Defendants to appear at reconvened

Rule 30(b)(6) depositions at their own expense and to

testify as to matters about which they were unprepared to

answer and/or to order the Defendants to provide sworn

statements relating to such matters;

18

(4) To order that [DeMayo Defendants and Greve

Defendants9] make their computer systems available for

inspection by Information Technology professionals

selected by Plaintiffs’ counsel to locate electronically

stored data that Defendants have failed and refused to

provide, and to pay the expenses related to such

inspection and/or that Defendants cause the person or

persons most familiar with their information technology

[to] conduct a search for and produce the requested

information, and then to make such persons available for

deposition at their expense; and

(5) For an award of sanctions included attorney’s

fees relating to Plaintiffs’ efforts to obtain the

subject documents and information.

(Docket Entry 154 at 2-3.)

In support of these requests, Plaintiffs contend that DeMayo

Defendants, Greve Defendants, and Gelshenen Defendants

(collectively, the “MTC Defendants”) “have failed and refused to

produce their lists of persons whose information they obtained

and/or used in connection with their mass-mailing programs.”

(Docket Entry 156 at 3.) Plaintiffs further emphasize that,

notwithstanding the initiation of this lawsuit, DeMayo Defendants

and Greve Defendants have continued their mailing programs, but

failed to properly preserve, let alone produce, the relevant

spreadsheets and advertising letters. (See id. at 4-6; see

also Docket Entry 156-1 at 12; Docket Entry 156-2 at 12-14; Docket

Entry 156-4 at 15-16.) For instance, per the submitted deposition

9 Plaintiffs’ Motion refers generically to “Defendants”

(Docket Entry 154 at 3) in this request, but their supporting

memorandum clarifies that the request applies only to “the DeMayo

and Greve Defendants” (Docket Entry 156 at 8; see id. at 8-9).

19

testimony, DeMayo Defendants continued to shred the spreadsheets

that they created to determine to whom to send the mailings

involved in this litigation for more than a month after Plaintiffs’

counsel asked Michael DeMayo (“DeMayo”) at his individual

deposition — taken three years after the initiation of this lawsuit

— to “agree from this point forward to make sure that those

spreadsheets are not getting deleted” (Docket Entry 156-1 at 12).

(See Docket Entry 156-2 at 12-14.)10 In addition, at that

deposition, DeMayo confirmed that he had not “made any effort to

determine the names of the people that [DeMayo Firm] ha[d] sent

mailings to.” (Docket Entry 156-1 at 14-15.)

At his own deposition two days later, Theodore A. Greve

(“Greve”) testified that Greve Firm “back[s] up [its] computer

systems regularly” (Docket Entry 156-4 at 15), but otherwise had

taken no “special steps” to ensure the spreadsheets’ preservation

(see id. at 16), even though, per Greve Firm’s subsequent

deposition, Greve Firm’s “practice is just that the[ spreadsheets

and associated mailing labels] get overwritten every day” (Docket

Entry 156-5 at 6) after the relevant “names and addresses are

printed out on labels,” which “get stuck on an envelope” and “put

10 DeMayo Defendants engaged in this practice notwithstanding

their admission that one must “have the filtered data from [their]

office” to determine whether they “sent a mailer to a particular

person who was involved in a wreck.” (Id. at 17-18.)

20

in the mail” (id. at 4).'' Notwithstanding this practice, Greve

Firm understands that “the spreadsheets and the labels[] should be

available in [its] computers” (id. at 7-8). (See also id. at 7

(“It is [Greve’s] understanding that the information, if it came

through the computer, would likely be in the computer system

somewhere.”).) However, Greve Firm testified that it had not

produced any of the requested labels, including those generated

between Greve’s deposition and Greve Firm’s deposition more than

two months later (see, e.g., id. at 10, 23), “[blecause [it]

ha[d]n’t hired someone to go in and dig into the deep, dark reaches

of the computer to see if they’re there” (id. at 9), and that it

would require an expert to locate the relevant information in its

computer system (see id. at 14; accord id. at 10).

Finally, Gelshenen Defendants’ testimony reflects that, prior

to Gelshenen Firm’s deposition, they provided to their counsel the

spreadsheets that they created in 2016 and 2017 based on

information obtained from Digital Solutions of the Carolinas

(“Digital Solutions”). (See, e.g., Docket Entry 156-7 at 3, 7.)

11 Greve Firm disclosed the overwriting in response to

Plaintiffs’ counsel’s question about why Plaintiffs had “not

received any spreadsheets [Jor any labels,” explaining that Greve

Firm’s “practice is not to print those out.” (Id.; see also Docket

Entry 156-4 at 10 (indicating that Greve Firm did not produce “any

Digital Solutions spreadsheets,” which Greve Firm downloads each

business day that such spreadsheets become available, “[b]ecause

[Greve Firm] do[es]n’t print them out”).) Nevertheless, Greve

acknowledged that he bore a duty to preserve ESI relevant to the

lawsuit, not just hard-copy materials. (See Docket Entry 156-4 at

10-12.)

21

Gelshenen Defendants further explained that they obtained “accident

reports from local police departments” and a certain website “from

March 2015 to December 2015,” but used Digital Solutions from

January 2016 until they stopped their mailing program. (Docket

Entry 156-6 at 5.)12 Although Gelshenen Firm testified that it had

produced all of the spreadsheets from 2016 and 2017 to its counsel

(see Docket Entry 156-7 at 3, 7, 17), defense counsel produced only

four days’ worth of spreadsheets from one week in 2016 to

Plaintiffs in connection with Gelshenen Firm’s deposition (see id.

at 6-7). (See also Docket Entry 105-23 at 2-5 (indicating that,

“right before the [Gelshenen Firm] deposition,” Gelshenen Firm’s

“counsel handed” Plaintiffs’ counsel “some stacks of documents,”

id. at 2, as “the documents that are responsive to th[e Deposition

Discovery],” id., including, as “a representative sample,” four

spreadsheets constituting “one week’s” worth of spreadsheets that

Gelshenen Firm’s counsel “just picked . . . somewhere and printed,”

id. at 4).) At its deposition, Gelshenen Firm also committed to

searching for responsive information from 2015 (see Docket Entry

12 Plaintiffs’ memorandum indicates that Gelshenen “[F]irm

stopped mailing to North Carolina residents after it learned about

filing of the Garey action,” but “recommenced the mailings in June

2017, and then stopped once and for all in about September 2017.”

(Docket Entry 156 at 7; see also Docket Entry 156-6 at 5

(testifying that Gelshenen Firm “used Digital Solutions” from

“January 2016 onward” until they stopped the program entirely, but

that “[t]here’s some time periods in there that [they] didn’t —

[they] stopped at different times in those dates”).)

22

156-7 at 14, 16),**? but Plaintiffs’ memorandum asserts that they

“have heard nothing since” the deposition about the results of such

search (see Docket Entry 156 at 8 n.3).

Against this backdrop, MTC Defendants raise three arguments in

opposition to Plaintiffs’ Motion. (See _ generally Docket Entry

161.) First, they contend that the requested information,

including “[mJailing lists, distribution lists, and mail merge

materials[,] no longer have any probative value based on the new

class definition” found in the Second Amended Complaint. (Id. at

2; see also, e.g., id. at 3-5.) Second, they contend that

“Plaintiffs have suffered no harm, because other similarly-situated

defendants — who obtained the same DMV-349 public records and

summaries of public records (on Excel spreadsheets) from the same

third-party data aggregators during the same time period — have

already produced those documents.” (Id. at 2.) Third, they

contend that “the discovery sought from the DeMayo Defendants and

the Gelshenen Defendants has been produced” (id. at 3) since the

filing of Plaintiffs’ Motion (see id. at 7, 13), and, “[a]ls a

result, [Plaintiffs’ Motion] is moot, and no sanction should be

awarded” (id. at 3). These arguments lack merit.

To begin, Plaintiffs’ proposed class consisted of every

individual identified on certain accident reports as a North-

13. Gelshenen Firm planned to try to retrieve the filtered

spreadsheets from an old mail room email account to which Gelshenen

Firm sent them. (See id. at 14, 16.)

23

Carolina-licensed driver whose address matched the address on the

individual’s driver’s license (1) whose name or address a defendant

received, directly or indirectly, from such accident reports and/or

(2) to whom a defendant sent a qualifying mailing. (See id. at 4

(quoting Docket Entry 100, ¶ 73).)14 Thus, MTC Defendants err in

asserting that, “[i]n light of the Plaintiffs’ alteration of their

class definition in the Second Amended Complaint (which expands the

scope of liability to include any motorist whose name appeared on

an accident report, rather than motorists like the Named Plaintiffs

who received mailings at their homes), much of the sought-after

discovery has lost its relevance.” (Id. at 2 (emphasis in

original); see also id. (contending that “the defendant-specific

screening or filtering criteria (and resulting mailing lists) now

have no probative value in understanding who are members of the

class”).) Rather, “[m]ailing lists, distribution lists, and mail

merge materials [continued to have] probative value based on the

new class definition” (id. at 2), and “whether [a] motorist’s name

and address was culled or scrubbed by Defendants (because the

motorist was at-fault, because the case did not fit the profile of

cases which a particular law firm would send mailers to, or because

14 Accordingly, contrary to MTC Defendants’ contentions,

neither of Plaintiffs’ subclasses encompassed “‘every natural

person’ who is ‘identified on a DMV-349’ which was prepared either

by the ‘Charlotte-Mecklenburg Police Department o[r] the North

Carolina State Highway Patrol’ for accidents occurring from 2012 to

the present” (id. at 6-7).

24

of any other reason) or whether they received mail from the

Defendants [remained ]relevant” (id. at 4-5) after Plaintiffs filed

the Second Amended Complaint.

Next, relying in part on their contention that, “[u]nder the

revised class definition, only the documents received from Digital

Solutions of the Carolinas are relevant” (id. at 2), MTC Defendants

assert that “Plaintiffs have suffered no harm” (id.) from MTC

Defendants’ failure to timely produce the requested information

because another defendant allegedly produced spreadsheets from

Digital Solutions. (See, e.g., id. at 2, 7.) In particular, MTC

Defendants maintain that “a co-defendant (Estwanik & May) has

produced 1,474,947 pages of documents; primarily the exact same

Excel spreadsheets and .pdf images of accident reports which the

DeMayo firm received from Digital Solutions during the exact same

time period.” (Id. at 7; accord 9-10, 12-13.) They also assert,

as to Greve Defendants, that “other co-defendants who did receive

information from Digital Solutions regarding the Raleigh

metropolitan area (Hardison & Cochran, Law Offices of Jason E.

Taylor, and Estwanik & May) have already produced 395 documents

with responsive information. This is in addition to the documents

– largely the same public records obtained from Digital Solutions

– produced by other co-defendants in this action and in Garey v.

25

Farrin, 1:16-CV-542.” (Id. at 10.)*° However, MTC Defendants

provide no support for these contentions (see id. at 7, 9-10, 12-

13), and “statements by counsel in briefs are not evidence,”

Cochran, 931 F. Supp. 2d at 730.

MTC Defendants further assert that a proffered email

establishes that “Plaintiffs’ counsel is in possession of the[]”

relevant “Digital Solutions documents.” (Docket Entry 161 at 10;

see also id. at 10-11 (“Because only the Digital Solutions

documents are probative, and because Plaintiffs’ counsel is in

possession of them, Plaintiffs’ [M]Jotion should be denied.”).)

However, this email merely reflects that counsel for the plaintiffs

in Garey “has obtained documents from Digital Solutions and others

15 Greve Defendants also appear to argue that the

spreadsheets that they received regarding the Raleigh metropolitan

market “include[] accident reports and public records from the Wake

County Sheriff’s Office, Raleigh Police Department, and local law

enforcement in or around Wake County.” (Id. at 9.) In Greve

Defendants’ view, “[o]nly the public records which the Greve

Defendants received from Digital Solutions, and only records

related to the geographic region included in the class definition

are relevant and probative. Plaintiffs’ request for outgoing mail

list, and requests for information related to the Raleigh

metropolitan area, are not probative on any remaining issue in the

case.” (Id.} This contention also falls short. By virtue of the

proposed classes’ inclusion of the North Carolina Highway Patrol

accident reports, “the geographic region included in the class

definition” (id.) constituted the entire State of North Carolina.

See North Carolina Highway Patrol Troop and District Boundaries,

https://www.ncdps.gov/our-organization/law-enforcement/state-high

way-patrol/troop-offices (last visited Oct. 21, 2020).

Accordingly, information regarding qualifying accident reports that

the North Carolina Highway Patrol prepares in the Raleigh

metropolitan area remained relevant under the Second Amended

Complaint’s proposed class definition.

26

in the Garey case that relate to [this] case.” (Docket Entry 161-1

at 2.) The email provides no insights regarding the nature or

scope of the “obtained documents” (id.) and, in any event, more

than the Digital Solutions documents remained probative (and

responsive) here prior to the Certification Opinion. As such, MTC

Defendants’ “no harm” contention misses the mark.

Finally, MTC Defendants assert that “the information sought by

[Plaintiffs’ M]otion . . . was provided to Plaintiffs on May 5,

2020,” on behalf of Gelshenen Defendants (Docket Entry 161 at 13),

and on April 28, 2020, on behalf of DeMayo Defendants (id. at 7).

Thus, MTC Defendants contend, Plaintiffs’ Motion “is moot, and no

sanction should be awarded.” (Id. at 3.) As a preliminary matter,

MTC Defendants provide no evidence in support of their assertion

that production of (all) the information that Plaintiffs’ Motion

seeks from DeMayo Defendants and Gelshenen Defendants has occurred.

(See id. at 3, 7, 13.) To the contrary, questions remain regarding

the completeness of the belated productions. (See Docket Entry 163

at 2 & n.2.) Accordingly, MTC Defendants have not established that

the alleged belated production mooted Plaintiffs’ Motion as to

DeMayo Defendants and Gelshenen Defendants. See Cochran, 931 F.

Supp. 2d at 730. Moreover, the simple fact that certain MTC

Defendants produced materials after Plaintiffs filed their motion

to compel (see Docket Entry 161 at 3, 7, 13; Docket Entry 163 at 2

& n.2) does not mean that “no sanction should be awarded” (Docket

27

Entry 161 at 3). Rather, the Rules mandate expense-shifting “if

the disclosure or requested discovery is provided after the motion

[to compel i]s filed” unless (1) the movant filed the motion

without first attempting in good faith to obtain the requested

information without court action, (2) “the opposing party’s

nondisclosure, response, or objection was substantially justified,”

or (3) “other circumstances make an award of expenses unjust.”

Fed. R. Civ. P. 37(a)(5)(A).

In sum, MTC Defendants’ arguments do not justify denial of

Plaintiffs’ Motion. See Kinetic Concepts I, 268 F.R.D. at 243-44.

However, after the parties briefed Plaintiffs’ Motion, the

Certification Opinion denied Plaintiffs’ request for class

certification (see Docket Entry 200 at 19), effectively ending

Plaintiffs’ need for MTC Defendants’ “lists of persons whose

information they obtained and/or used in connection with their

mass-mailing programs” (Docket Entry 156 at 3). Under the

circumstances, including the limited continuing relevance of the

requested discovery in light of the Certification Opinion, the

Court finds that proportionality concerns preclude the additional

discovery that Plaintiffs seek (see Docket Entry 154 at 2-3

(requesting, inter alia, additional document production, reconvened

depositions, and forensic inspection of certain MTC Defendants’

computer systems)). See Fed. R. Civ. P. 26 advisory committee’s

notes, 2015 Amendment (“The parties and the court have a collective

28

responsibility to consider the proportionality of all discovery and

consider it in resolving discovery disputes.”).

Although issuance of the Certification Opinion forestalls

compelled compliance with Plaintiffs’ outstanding discovery

requests, it does not absolve MTC Defendants of their discovery

failures. At the very latest,'® DeMayo Defendants and Greve

Defendants were “placed on notice that the [requested] evidence

[wa]s relevant to the litigation,” Eckhardt, 2008 WL 1995310, at

*5, when they were sued in July 2016. (See generally Docket

Entries 1, 5.) Yet, for more than three years, they failed to

preserve (but instead continued to create and destroy) relevant

material, such as the filtered spreadsheets and mailing labels used

in their disputed direct-mail-marketing programs. (See, e.g.,

Docket Entry 156-1 at 12; Docket Entry 156-2 at 12-14; Docket Entry

156-4 at 15-16; Docket Entry 156-5 at 6.) Such conduct,

particularly by experienced litigators like DeMayo Defendants and

Greve Defendants, violates well-recognized standards. See, e.g.,

Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395,

402-07 (W.D. Tenn. 2011) (finding defendant breached its

16 Arguably, given the claims at issue, a duty to preserve

the requested information, including in particular the filtered

spreadsheets and Digital Solutions materials, arose no later than

the date on which MTC Defendants learned of the Garey action, filed

in May 2016, see generally Garey, No. 1:16cv542, Docket Entry 1.

See Silvestri, 271 F.3d at 591 (“The duty to preserve material

evidence arises not only during litigation but also extends to that

period before the litigation when a party reasonably should know

that the evidence may be relevant to anticipated litigation.”).

29

preservation duties, and awarding sanctions for spoliation, “where

[the defendant] failed to timely issue an effective written

litigation hold, to take appropriate steps to preserve any existing

electronic records, to suspend or alter automatic delete features

and routine overwriting features, and to timely and effectively

collect ESI,” id. at 404).

Given the above-detailed conduct, Plaintiffs “request that the

Court enter sanctions against the DeMayo, Greve, and Gelshenen

Defendants as provided in Rule 37(a), (d), and (e), including, at

a minimum, an award of reasonable attorneys’ fees. Plaintiffs

submit that severe sanctions are warranted here.” (Docket Entry

156 at 11.) As noted, Rule 37(a) mandates expense-shifting when a

party produces the requested material after a motion to compel’s

filing and (1) the moving party attempted in good faith to obtain

the requested material without court intervention, (2) no

substantial justification appears for the opposing party’s actions,

and (3) no other circumstances render expense-shifting unjust.

See Fed. R. Civ. P. 37(a)(5)(A).

In turn, Rule 37(d) authorizes expense-shifting, as well as

“any of the orders listed in Rule 37(b)(2)(A)(i)-(vi),” Fed. R.

Civ. P. 37(d)(3), where a party fails to appear at a properly

noticed deposition or respond to discovery. Fed. R. Civ. P.

37(d)(1). Those cross-referenced sanction orders include:

30

(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 or defenses, or from

introducing 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; [or]

(vi) rendering a default judgment against the disobedient

party[]. . . .

Fed. R. Civ. P. 37(b)(2)(A).

Finally, Rule 37(e) specifies two options if ESI “that should

have been preserved in the anticipation or conduct of litigation is

lost because a party failed to take reasonable steps to preserve

it, and it cannot be restored or replaced through additional

discovery.” Fed. R. Civ. P. 37(e). First, “upon finding prejudice

to another party from loss of the information, [the Court] may

order measures no greater than necessary to cure the prejudice.”

Fed. R. Civ. P. 37(e)(1). Second, “only upon finding that the

party acted with the intent to deprive another party of the

information’s use in the litigation,” the Court may:

(A) presume that the lost information was unfavorable to

the party;

(B) instruct the jury that it may or must presume the

information was unfavorable to the party; or

31

(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e)(2).

Aside from contending that “severe sanctions are warranted,”

“including, at a minimum, an award of reasonable attorneys’ fees”

(Docket Entry 156 at 11), Plaintiffs do not propose any specific

sanctions (see Docket Entries 154, 156, 163). Further, even

setting aside the effects of the Certification Opinion, the record

does not illuminate what particular sanctions, beyond expense-

shifting, MTC Defendants’ conduct would warrant given the nature of

the information at issue. Accordingly, particularly in light of

the recent developments, the Court finds that an award of

attorney’s fees constitutes an appropriate sanction for MTC

Defendants’ conduct.

The Court further finds expense-shifting appropriate under

Rule 37(a)(5)(A) as to DeMayo Defendants and Gelshenen Defendants

in light of their belated productions. In this regard, the record

reflects Plaintiffs’ good-faith attempts to obtain the requested

discovery without court intervention (see, e.g., Docket Entry 154-3

at 2-15), but reveals neither substantial justification for these

defendants’ refusal to timely provide the requested discovery nor

any circumstances that would render “an award of expenses unjust,”

Fed. R. Civ. P. 37(a)(5)(A)(iii). However, because Gelshenen

Defendants produced their filtered spreadsheets from 2016 and 2017

to their counsel before Gelshenen Firm’s deposition and their

32

counsel decided to produce only four days’ worth of such

spreadsheets from 2016 as “a representative sample” (Docket Entry

105-23 at 4; see id. at 2-6), the Court finds that Gelshenen

Defendants and their counsel shall share responsibility for a

portion of the shifted expenses. See Fed. R. Civ. P. 37 (a) (5) (A)

(authorizing expense-shifting onto responsible attorney).

Finally, the Court finds expense-shifting appropriate under

Rule 37(d) as to Greve Firm, which, inter alia, “failfed] to serve

its answers, objections, or written response,” Fed. R. Civ. P.

(d) (1) (A) (i131), to the Deposition Discovery. In particular, at

Greve Firm’s deposition, Greve conceded that Greve Firm possessed

material responsive to Deposition Discovery Document Requests 3 and

9 but failed to produce it at or before the deposition, as the

Deposition Discovery requested (see Docket Entry 154-2 at 7) and

the Rules permit, see Fed. R. Civ. P. 30(b) (2). (See Docket Entry

156-5 at 12-13, 18-19.)'’ The record further reflects Plaintiffs’

good-faith attempts to obtain the requested discovery without court

intervention (see, e.g., Docket Entry 154-3 at 1, 5-6, 8-9, 12-15),

17 In this regard, although he explicitly conceded Greve

Firm’s failure to produce materials responsive to Document Request

3 (see id. at 13), Greve maintained that “[he was] producing all

the information [responsive to Document Request 9] because [he was]

telling [opposing counsel at the deposition] exactly how to get it

and who has it,” including specifically that “if it’s available in

the computers, an IT person that maybe has a similar background to

Mr. Hatch might be able to access [it]” (id. at 19). That

assertion lacks merit and, in any event, tacitly admits Greve

Firm’s failure to comply with the requirement “to produce documents

and tangible things at the deposition,” Fed. R. Civ. P. 30(b) (2).

33

but reveals neither substantial justification for Greve Firm’s

refusal to provide the requested discovery nor any circumstances

that would render “an award of expenses unjust,” Fed. R. Civ. P.

37(d)(3).

In sum, the recent Certification Opinion obviates the need for

compelled production as to Plaintiffs’ outstanding discovery

requests. However, the Court grants Plaintiffs’ request for

expense-shifting as to Plaintiffs’ Motion, due to the belated

production made after the filing of Plaintiffs’ Motion and Greve

Firm’s failure to serve a proper response to Deposition Discovery

Document Requests 3 and 9.18 As discussed above, Plaintiffs

undertook good-faith efforts to secure the information without

court intervention, MTC Defendants failed to establish substantial

justification for their actions, and no other circumstances render

expense-shifting unjust. Under the circumstances, the Court

further finds that (1) DeMayo Defendants shall bear a third of the

expenses, (2) Greve Firm shall bear a third of the expenses, and

(3) Gelshenen Defendants and their counsel shall bear the remaining

third of the expenses.

B. Sealing Motion

Next, the Sealing Motion seeks to seal certain information in

Plaintiffs’ exhibits and memorandum in support of Plaintiffs’

18 Under the circumstances, the Court need not separately

evaluate the propriety of sanctions under Rule 37(e).

34

Motion. (See Docket Entry 157 at 2.) In particular, the Sealing

Motion requests sealing of portions of certain discovery responses

and deposition testimony by MTC Defendants and the references to

such information in Plaintiffs’ memorandum. (See id.; see

also Docket Entry 156 to 156-7.) As noted, “Plaintiffs do not

claim the material is confidential and do not believe any of it is”

(Docket Entry 157 at 2), but MTC Defendants “seek permanent sealing

of the discovery, or at least until trial” (Docket Entry 162 at 8;

see generally Docket Entry 162). To support their sealing request,

MTC Defendants rely on “the Court’s prior guidance on this same

issue from its [Sealing] Order” (id. at 3), arguing “that the

sealed exhibits (interrogatory responses and deposition transcripts

from [MTC Defendants]) contain sensitive information regarding the

process and procedures that th[e relevant l]law [flirms use in

operating their direct mail programs, including case selection

information” (id. at 6; see also id. (“This Court has already

determined that Defendants’ case selection methods and criteria are

sensitive business information which should be sealed.” (emphasis

omitted))).

Plaintiffs filed the Sealing Motion in April 2020. (See

Docket Entry 157.) Accordingly, the Court finds that all

interested persons have received “notice of the request to seal and

a reasonable opportunity to challenge the request,” Washington

35

Post, 386 F.3d at 576.** Further, given the nature of Plaintiffs’

Motion, arguably no public right of access applies to the relevant

materials, subjecting them only to Rule 26(c)’s “good cause”

standard. See Kinetic Concepts II, 2010 WL 1418312, at *9-10; see

also BASF Agro, 2015 WL 12991090, at *4. Alternatively, to the

extent that the materials qualify as “‘judicial records’ because

they were filed with the objective of obtaining judicial action or

relief pertaining to [Plaintiffs’ Motion],” In re U.S., 707 F.3d at

291, the common-law right of access applies, see BASF Agro, 2015 WL

12991090, at *4 (explaining that, “it may also be that these briefs

and exhibits are judicial records because they were filed with the

objective of . . . supporting . . . a motion to compel” and, as

such, “the common-law presumption of access attaches to these

documents”). Thus, “because the [United States Court of Appeals

for the] Fourth Circuit has not definitively resolved the access

right question in the discovery motion context, the Court will

conduct the ‘competing interests’ balancing test that would govern

if the common-law access right did apply, along with the ‘good

cause’ inquiry.” Kinetic Concepts II, 2010 WL 1418312, at *10.

In this regard, the Court (per Judge Biggs) has already

determined that the specific type of information that MTC

Defendants seek to seal qualifies as “sensitive business

19 The docket reflects no objections to the Sealing Motion.

(See Docket Entries dated Apr. 21, 2020, to present.)

36

information” that warrants sealing (Docket Entry 152 at 5) under

the common-law analysis (see id. at 3-7). Sealing likewise remains

proper under Rule 26(c)’s “good cause” standard, as previously

recognized by the parties (see Docket Entry 103 at 1-3 (defining,

in Consent Protective Order entered “pursuant to Rule 26” (id. at

1), “‘Protected Information’” to include “[d]ocuments or

information that disclose the strategies or internal execution of

a [d]efendant law firm’s efforts to communicate through written

correspondence with those involved in vehicular accidents

. . . .[,] includ[ing] the criteria by which a [d]efendant law firm

selects to whom it will send written communications and the

analyses of the effectiveness of any particular set of criteria”

(id. at 3))), and rulings in analogous cases, see, e.g., Kinetic

Concepts II, 2010 WL 1418312, at *10 (authorizing sealing and

redaction of materials under Rule 26(c), and noting that Rule 26(c)

authorizes “restrict[ed] access to materials that constitute

‘confidential research, development, or commercial information’”).

In addition, “the parties have narrowly tailored their proposed

redactions to allow for public access to the vast majority of the

filings — a less drastic alternative to sealing the documents in

their entireties” (Docket Entry 152 at 4). (See Docket Entries 156

to 156-7.)

However, the proposed redactions in Plaintiffs’ memorandum and

the Greve Firm deposition exhibit encompass publicly disclosed

37

information, negating the justification for sealing. In this

regard, notwithstanding the proposed redactions in the memorandum,

unredacted deposition testimony in the record reveals the fact that

DeMayo Defendants utilize color-coded spreadsheets. (Compare,

e.g., Docket Entry 156 at 4 (“The [redacted] spreadsheet is then

used to perform a mail-merge function.” (citing Docket Entry 156-2

at 12)), with, e.g., Docket Entry 156-2 at 11 (explaining that “a[

DeMayo Firm] staff member will mark the spreadsheet” by

“highlight[ing] in different colors,” including “orange

highlighter” and “yellow”), and id. at 12 (explaining that “th[e]

Excel spreadsheet now that’s been modified three times or

manipulated will now go back to the admin folks, and they will,

depending on the notation, mail merge,” with such “mail merge[]

depending on the category, and they just don’t send to the ones

that are marked in orange”)).

In addition, other proposed redactions from the memorandum and

Greve Firm deposition serve no purpose, given that unredacted

record testimony reveals the filters that Greve Firm uses in

creating their mailing lists. (Compare Docket Entry 156 at 5, and

Docket Entry 156-5 at 24-27, with Docket Entry 156-4 at 8-9, and

Docket Entry 156-5 at 16.) Because the unredacted testimony

submitted in support of Plaintiffs’ Motion publicly discloses both

that DeMayo Defendants use color-coded spreadsheets and the

particular filters that Greve Firm uses, no basis exists to redact

38

such information from other parts of the record. See, e.g.,

Washington Post, 386 F.3d at 579 (“[O]nce announced to the world,

the information lost its secret characteristic.” (internal

quotation marks omitted).) Accordingly, the Court will grant the

Sealing Motion except insofar as it requests redaction of the

references (1) to “color-coded” in Plaintiffs’ memorandum and

(2) to Greve Firm’s filters in Plaintiffs’ memorandum and the Greve

Firm deposition exhibit.

C. Defendants’ Motion

Finally, Womble Defendants seek “an order compelling putative

class representative Johnathan Hatch and third party Mark Jetton to

produce certain documents that have been requested in this action.”

(Docket Entry 158 at 1-2.) According to Womble Defendants, “[t]his

discovery is critical as it bears on a hidden relationship which

has been concealed from Defendants and the Court, which may warrant

further hearings by the Court on this matter and ultimately lead to

a finding that (1) Mr. Hatch is an inadequate class representative

and (2) that counsel of record in this case are inadequate class

counsel.” (Id. at 2.) In support of their request, Womble

Defendants assert that “Hatch’s friend, attorney Mark Jetton” (at

times, “Jetton”), “may have been representing Mr. Hatch since the

beginning of this lawsuit.” (Docket Entry 159 at 3.) According to

Womble Defendants, “Jetton likely has been serving as hidden

counsel for Mr. Hatch and may have a fee-splitting arrangement with

39

putative class counsel.” (Id. at 5.) Womble Defendants further

maintain that, if “Jetton has been serving as ‘hidden’ counsel,

heretofore unknown to Defendants or the Court, then, under numerous

authorities, Mr. Hatch and current counsel of record should both be

found inadequate to represent the class.” (Id. at 4.)20

Based on these assertions, Womble Defendants seek an order:

(1) compelling third party Mark Jetton to produce any

engagement or retainer agreements between Mr. Jetton and

putative class representative Johnathan Hatch;

(2) compelling Mr. Hatch, including his counsel of

record, to produce any engagement letter or retainer

agreement with anyone who is his counsel in this action;

(3) compelling third-party Mark Jetton to produce copies

of any communications between him and putative class

representative Johnathan Hatch or putative class counsel,

Brown, Faucher, Peraldo, & Benson, PLLC;

(4) compelling Mr. Hatch to produce any communications

with third-parties, including emails, text messages, or

written communications with Mr. Jetton;

(5) awarding Defendants their costs and attorney’s fees

incurred in bringing this motion, pursuant to Rule

37(a)(5);

(6) granting any further relief the Court deems just and

proper, which could include a hearing or orders finding

Mr. Jetton, Mr. Hatch, current counsel of record, and

possibly others as inadequate to represent the class in

this matter; and

20 Womble Defendants became aware of Jetton in July 2019

(see Docket Entry 158 at 2), less than halfway through the

discovery period (see Text Orders dated Nov. 27, 2018, and July 24,

2019). Nevertheless, Womble Defendants waited until the final day

of the discovery period — more than three months after briefing on

the class certification motion closed (see Docket Entry 147) — to

file the instant motion. (See Text Order dated July 24, 2019; see

also Docket Entry 158 at 6.)

40

(7) staying a decision on Plaintiffs’ Motion to Certify

the Class until this motion to compel and any related

discovery or in camera investigation is complete.

(Docket Entry 158 at 5 (emphasis in original).) Hatch and Jetton

oppose Defendants’ Motion. (See Docket Entry 164.)

As a preliminary matter, the Certification Opinion arguably

mooted Defendants’ Motion by denying Plaintiffs’ request for class

certification, negating the need for class counsel and class

representatives. (See generally Docket Entry 200.) However,

because the Certification Opinion addresses (and upholds) the

adequacy of Plaintiffs and their counsel for class representation

purposes (see, e.g., id. at 15 (“conclud[ing] that Plaintiffs and

their counsel would adequately represent the class”)), the

undersigned will analyze the merits of Defendants’ Motion.

In July 2019, Womble Defendants deposed Hatch. (See Docket

Entry 164-2 at 2-3.) At that deposition, Hatch testified that he

contacted Jetton shortly after his accident in September 2015

“because [Hatch] received a significant amount of mailers and it

made [him] concerned that [he] was going to be sued or [he] needed

some kind of legal counsel” (id. at 6). (See id. at 5-6.) As

such, Hatch “reached out to [his] lawyer, [his] lawyer,” Mark

Jetton. (Docket Entry 134-8 at 14-15; see also id. at 21

(explaining that, due to the mailers, Hatch “thought that there was

going to be some kind of legal action that was needed, that’s why

[Hatch] reached out to [his] lawyer Jetton”).) Hatch “know[s ]

41

Jetton through college football days[, s]o [Hatch] asked a few

questions of [Jetton] and [Jetton] placed [Hatch] in contact [with

Plaintiffs’ counsel].” (Docket Entry 164-2 at 10.) Hatch had

“reached out to [Jetton] about legal matters before” (id. at 12),

and “ha[s] used [Jetton] as a lawyer in other things” (id. at 13),

but “do[es] not believe” that he either “sign[ed] an engagement

letter with [Jetton]” or “retain[ed Jetton] for this class action”

or “the accident” (id.). Hatch did, however, “consult [Jetton] on

his thoughts on” dealing with the insurance company regarding the

underlying accident. (Docket Entry 134-9 at 81.)

Hatch further testified that he did not know Plaintiffs’

counsel prior to consulting Jetton, who “put [him] in contact” with

Plaintiffs’ counsel. (Docket Entry 164-2 at 10.) More

specifically, Hatch, Jetton, and Plaintiffs’ counsel participated

in a three-way call so that Jetton could “connect [Hatch]” with

Plaintiffs’ counsel. (Id. at 15.) Although Hatch “ha[s] spoken

with [Jetton] about a multitude of things” since that call, Hatch

does not recall speaking to Jetton about either the call or the

lawsuit (id. at 14), other than perhaps “telling [Jetton that Hatch

is] still working with [Plaintiffs’ counsel], but [Hatch] do[es]n’t

remember any specifics or anything of that nature” (Docket Entry

134-9 at 80-81). Hatch also does not recall Jetton participating

“in any other conference calls with [Hatch] and [his] counsel in

this case.” (Id. at 81.) However, Hatch once “had to use

42

[Jetton’s] office because [Plaintiffs’ counsel] and [Hatch] are not

located in the same city, so [Hatch] had to send [Jetton] e-mails

to get some stuff signed.” (Id.) In addition, in connection with

their initial consultation, Hatch provided the mailings that he

received to Jetton to give to Plaintiffs’ counsel. (Id. at 4; see

also Docket Entry 164-2 at 7.)

Finally, during the deposition, Plaintiffs’ counsel and Hatch

repeatedly asserted that attorney-client privilege applied to

Hatch’s initial communications with Jetton. (See, e.g., Docket

Entry 164-2 at 7-9, 13, 15.) For instance, in response to

questions that elicited “advice [Hatch] received from Jetton,”

Plaintiffs’ counsel asserted that such advice “is attorney-client

privileged,” explaining that Hatch “consulted with Mr. Jetton.”

(Id. at 8-9.) In addition, when Womble Defendants asked what

Plaintiffs’ counsel, Hatch, and Jetton discussed during their

telephone call, Hatch responded that “[i]t was a conversation with

my lawyers” and Plaintiffs’ counsel objected to Womble Defendants’

claim that “earlier [Hatch] testified that Mr. Jetton was not your

lawyer,” asserting: “No, he didn’t. Objection to form. No, he

didn’t. He said he didn’t retain him formally. He didn’t say –”

(Id. at 13; see also id. (testifying, in response to Womble

Defendants’ assertion, that “[Hatch] didn’t retain [Jetton] for

this accident, but [Hatch] ha[s] used him as a lawyer in other

43

things,” even if “[Hatch] do[es] not believe” that he “retain[ed

Jetton] for this class action”).)

Thereafter, Womble Defendants served a subpoena on Jetton.

(See Docket Entry 159-1 at 2-5.) The subpoena sought:

1. Any and all written communications including emails,

instant messages, and text messages with attorney Drew

Brown or his law firm, Brown, Faucher, Peraldo, & Benson,

PLLC [(i.e., Plaintiffs’ counsel)], regarding Johnathan

Hatch or the [DPPA].

2. Any and all notes of any telephone calls or other

non-telephonic conversations with Johnathan Hatch between

March 2016 and September 2016.

3. Any and all notes of any telephone calls or other

non-telephonic conversations with attorney Drew Brown or

his law firm, Brown, Faucher, Peraldo, & Benson, PLLC

regarding Johnathan Hatch or the [DPPA].

(Id. at 5.) Jetton objected to each of these requests on the

grounds that “th[e] information is protected by the attorney client

privilege and is work product information.” (Docket Entry 159-2 at

2-3.) According to Womble Defendants, “no privilege log was

produced.” (Docket Entry 159 at 6.)

The memorandum in support of Defendants’ Motion further

states:

Undersigned counsel exchanged meet-and-confer

correspondence with Mr. Jetton, where he repeatedly

referred to Mr. Hatch as his client. Undersigned counsel

called Mr. Jetton to discuss his objections. During the

call, Mr. Jetton stated that he does in fact represent

Mr. Hatch in this class-action and that he has been

working with Mr. Brown and Mr. Faucher since 2016 on the

matter. (Exhibit C, [November 20, 2019, Reich email].

He also said that he “intend[s] to be part of any

settlement or judgment in the case.” (Ex. C.). [sic]

When asked about why his statements contradicted Mr.

44

Hatch’s deposition testimony, Mr. Jetton said that Mr.

Hatch’s testimony was inaccurate and reflects a

misunderstanding of Mr. Jetton’s role in this action.

(Ex. C.)

(Docket Entry 159 at 6-7 (brackets and missing closed parenthesis

in original)

However, the email on which Womble Defendants rely for these

assertions does not constitute competent evidence of their

contentions. (See generally Docket Entry 159-3.) Rather, this

email, addressed from Womble Defendants’ counsel to Jetton and

dated as sent on November 20, 2019, merely contains Womble

Defendants’ counsel’s uncorroborated description of Jetton’s

alleged statements during a purported call with Womble Defendants’

counsel. (Id. at 2.) The email’s final paragraph asks, “[i]s this

an accurate recollection of our call?” (Id.) Notably, though, the

exhibit contains no response from Jetton. (See id. at 1-6.) As

such, it amounts to hearsay, see Fed. R. Evid. 801(c), and an

attorney’s unsworn statements, whether in a memorandum or a

supporting exhibit, do not otherwise qualify as evidence,

see Cochran, 931 F. Supp. 2d at 730.

21 In its introduction, Womble Defendants’ memorandum cites

to the ‘(Affidavit of Jonathan Reich)” to support these

contentions. (See Docket Entry 159 at 3.) Womble Defendants

provided no such affidavit (see Docket Entries 158 to 159-5), and

their memorandum elsewhere consistently cites to “(Ex. C.)” to

support the relevant contentions (see Docket Entry 159 at 7, 13,

18). Exhibit C does not qualify as an affidavit. (See generally

Docket Entry 159-3.)

45

In contrast, Jetton provided a sworn affidavit disputing

Womble Defendants’ contentions. (See Docket Entry 164-1 (the

“Affidavit”).) As relevant here, the Affidavit states:

1) I am an attorney licensed to practice in North

Carolina.

2) I have ten years[’] experience practicing law in the

Charlotte area.

3) I graduated from Elon Law School in 2009.

4) During my time at Elon, I developed a professional

relationship with attorney Andrew Brown, who spoke at

Elon Law School.

5) At some point in 2016, I received a call at my

Charlotte office from Mr. Brown.

6) He told me that if I had any car wreck clients who

received solicitation mailings from attorneys following

a wreck, he would be willing to speak with them about

representation under the [DPPA].

7) Following his wreck, my former classmate and client

Johnathan Hatch called me regarding his letters which

reminded me of my conversation with Mr. Brown. I

provided Mr. Hatch with Mr. Brown’s phone number.

8) Mr. Hatch did not know Mr. Brown or any attorney in

this matter prior to me giving him Mr. Brown’s phone

number.

9) I have no engagement agreement written or otherwise

with Mr. Brown or Mr. Hatch regarding this matter.

10) I have had to expend some time dealing with requests

from Womble Bond Dickinson over the last several years

regarding this matter. I had to object to requests and

now am having to provide this Affidavit.

11) I do believe I ought [to] be paid fairly for my time

here. However, no one has offered or agreed to pay me

anything and I have no fee split arrangement with Mr.

Hatch or anyone else regarding the matters.

46

12) I will not seek to receive any fee from any certified

class here.

13) I have not and will not seek to in any way represent

any class here.

14) Mr. Hatch is a client and friend. When he seeks

legal advice from me on any matter, I consider our

communications privileged even if I choose to not take on

the matter or to refer him to another attorney.

15) With that said, there were no communications with him

here other than simply sending him to Mr. Brown. I have

no file of any kind or notes regarding conversations with

Hatch about this.

16) I have performed no legal work here for the class.

My office staff was used once as I recall to notarize Mr.

Hatch’s discovery answers in the case but I did not

review them at all nor have I consulted with Mr. Brown or

anyone else regarding the substance of the representation

beyond him thanking me for sending Mr. Hatch and telling

me that Hatch was a great client.

(Id. at 2-4.)

In response, Womble Defendants raise a number of challenges to

the Affidavit (see Docket Entry 168 at 2-9), which they contend “is

facially invalid” (id. at 2 (emphasis and capitalization omitted)).

First, Womble Defendants find it “strikingly odd” that the

Affidavit “was filed by Class Counsel as an exhibit to the Class

Plaintiffs’ response in opposition to a motion to compel.” (Id. at

4.) In this regard, Womble Defendants contend that, “[d]espite the

Jetton Affidavit adamantly disclaiming any relationship to Class

Counsel or this class action[,] Class Counsel went to the time and

expense of preparing a brief to argue on his behalf.” (Id.) In so

arguing, Womble Defendants overlook the fact that, in addition to

47

Jetton, they also moved to compel against Hatch and Plaintiffs’

counsel. (See, e.g., Docket Entry 158 at 5.) Particularly under

such circumstances, the fact that Plaintiffs submitted the

Affidavit in support of their opposition to Defendants’ Motion

supports no negative inferences.

Womble Defendants then move to other “indicia of

unreliability” (Docket Entry 168 at 5); specifically:

The Jetton Affidavit includes inadmissible hearsay. Dkt.

164-1, ¶6[ ](recounting out-of-court conversation offered

for the truth of the matter asserted), ¶10 (referring to

documents (“requests from Womble Bond Dickinson”) which

were not attached to affidavit). The illegible signature

is dated May 12, 2020, while the notary indicates it was

signed on May 13, 2020. The Jetton Affidavit also

contains unsupported legal conclusions. Dkt. 164-1, ¶14

(making the conclusion that an attorney-client

relationship exists without offering factual declarations

to each element of the privilege).

(Docket Entry 168 at 5.) These contentions miss the mark.

First, the Affidavit’s statement that Plaintiffs’ counsel

“told [Jetton] that if [Jetton] had any car wreck clients who

received soliciation mailings from attorneys following a wreck,

[Plaintiffs’ counsel] would be willing to speak with them about

representation under the [DPPA]” (Docket Entry 164-1, ¶ 6) does not

qualify as hearsay because Jetton recounts the conversation with

Plaintiffs’ counsel not for the truth of the matter asserted – that

Plaintiffs’ counsel would speak with such clients – but rather to

explain why Jetton referred Hatch to Plaintiffs’ counsel (see id.,

¶ 7). See Fed. R. Evid. 801(c)(2). Nor does Jetton’s statement

48

that he “ha[s] had to expend some time dealing with requests from

Womble Bond Dickinson over the last several years regarding this

matter” (Docket Entry 164-1, ¶ 10) qualify as hearsay. See Fed. R.

Evid. 801(a)-(c).

Further, the ostensibly “illegible signature” on the Affidavit

appears to match the signature on Jetton’s objections to the

subpoena. (Compare Docket Entry 164-1 at 4, with Docket Entry 159-

2 at 3-4.) Womble Defendants also fail to explain how the one-day

discrepancy between the preprinted date on the Affidavit and the

notary’s handwritten date (see Docket Entry 164-1 at 4) renders

invalid the Affidavit (see Docket Entry 168 at 5). Finally, rather

than providing “unsupported legal conclusions” (id.), the Affidavit

merely indicates how Jetton perceives his communications with Hatch

“[w]hen [Hatch] seeks legal advice from [Jetton]” (Docket Entry

164-1, ¶ 14).

As a last ground for discounting the Affidavit, Womble

Defendants emphasize its conflict with Hatch’s testimony regarding

the date of Jetton’s referral to Plaintiffs’ counsel. (See Docket

Entry 168 at 5-8.) In particular, Womble Defendants note that

Hatch testified he contacted Jetton soon after an accident, which

occurred in September 2015 (see id. at 5-6; Docket Entry 164-2 at

5-6), but that Jetton averred Plaintiffs’ counsel contacted him in

“[a]t some point in 2016,” following which “Hatch called [Jetton]”

(Docket Entry 164-1, ¶¶ 5, 7). “The fact that [Jetton] may have

49

testified incorrectly regarding the dates of h[is] communications

. . . does not compel an inference that [his communications with

Hatch] were not privileged.” N.L.R.B. v. Interbake Foods, LLC, 637

F.3d 492, 502 (4th Cir. 2011). Moreover, rather than undermining

“the credibility of the Jetton Affidavit” or rendering

“implausible[ Jetton’s] story” (Docket Entry 168 at 7), the fact

that Jetton may have incorrectly testified that his contacts with

Plaintiffs’ counsel and Hatch occurred only four rather than five

years previously arguably bolsters Jetton’s larger point: that he

“ha[s] not and will not seek to in any way represent any class”

(Docket Entry 164-1, ¶ 13) and “ha[s] performed no legal work here

for the class” (id., ¶ 16). After all, a lawyer who “ha[d] been

representing Mr. Hatch since the beginning of this lawsuit” (Docket

Entry 159 at 3) would presumably know the correct duration of such

representation.

In any event, Womble Defendants’ contentions do not undermine

the Affidavit’s main points, namely that (1) Jetton “ha[s] no

engagement agreement written or otherwise with Mr. Brown or Mr.

Hatch regarding this matter” (Docket Entry 164-1, ¶ 9); (2) “no one

has offered or agreed to pay [Jetton] anything and [Jetton] ha[s]

no fee split arrangement with Mr. Hatch or anyone else regarding

the matters” (id., ¶ 11); (3) Jetton “will not seek to receive any

fee from any certified class here” (id., ¶ 12); (4) Jetton “ha[s]

not and will not seek to in any way represent any class here” (id.,

50

¶ 13); (5) Jetton “ha[s] performed no legal work here for the

class” (id., ¶ 16); and (6) “Hatch is a client and friend,” such

that “[w]hen [Hatch] seeks legal advice from [Jetton] on any

matter, [Jetton] consider[s their] communications privileged even

if [he] choose[s] to not take on the matter or to refer [Hatch] to

another attorney” (id., ¶ 14). This sworn testimony accords with

Hatch’s deposition testimony regarding his “belie[f]” that he had

not “sign[ed] an engagement letter with [Jetton]” or “retain[ed

Jetton] for this class action.” (Docket Entry 164-2 at 13.) As

such, Womble Defendants’ contentions regarding hidden counsel with

a close relationship to a putative class representative and an

undisclosed monetary interest in the class action (see, e.g.,

Docket Entry 159 at 2, 4-5, 11-15), lack merit.

Nor do Womble Defendants’ contentions regarding the allegedly

“binary state” of the attorney-client privilege fare any better.

(Docket Entry 168 at 2.) In Womble Defendants’ view, “[t]he

privilege is a binary state; either Mr. Jetton is counsel to Mr.

Hatch in this matter — and thus the privilege adheres — or Mr.

Jetton is not counsel in this matter, and the communications that

his Affidavit acknowledges and which Mr. Hatch testified to are all

discoverable.” (Id. (emphasis added).) Such argument construes

the attorney-client privilege too narrowly. In evaluating the

applicability of the attorney-client privilege, the Court considers

whether “the asserted holder of the privilege is or sought to

51

become a client,” N.L.R.B., 637 F.3d at 501 (emphasis added)

(internal quotation marks omitted),22 not whether an attorney

actually serves as counsel in a particular matter, see id. at 501-

02; see also § 5479 Client — “Would-Be Client”, 24 Fed. Prac. &

Proc. Evid. § 5479 (1st ed.) (explaining that, “[t]he temporal

approach to the privileged relationship may have made some sense

when lawyers were retained by individual clients to perform

discrete tasks[, b]ut it is very difficult to apply in the

contemporary world where many lawyers have long-term relations with

a client that are not task-defined”).

Here, the record reflects that the “significant amount of

mailers” Hatch received following his accident “made [him]

concerned that [he] was going to be sued or [he] needed some kind

of legal counsel” (Docket Entry 164-2 at 6), so he “reached out to

[his] lawyer Jetton” (Docket Entry 134-8 at 21; accord Docket Entry

22 More fully, the Court assesses whether:

(1) the asserted holder of the privilege is or sought to

become a client; (2) the person to whom the communication

was made (a) is a member of the bar of a court, or is his

subordinate and (b) in connection with this communication

is acting as a lawyer; (3) the communication relates to

a fact of which the attorney was informed (a) by his

client (b) without the presence of strangers (c) for the

purpose of securing primarily either (i) an opinion on

law or (ii) legal services or (iii) assistance in some

legal proceeding, and not (d) for the purpose of

committing a crime or tort; and (4) the privilege has

been (a) claimed and (b) not waived by the client.

Id. at 501-02 (internal quotation marks omitted).

52

164-2 at 5-6). Jetton then facilitated Hatch’s referral to

Plaintiffs’ counsel to discuss potential “representation under the

[DPPA]” (Docket Entry 164-1, ¶ 6). (See id., ¶ 7; accord Docket

Entry 164-2 at 10, 15.) Thus, except to the extent that Hatch may

have waived such privilege through his deposition testimony — an

issue that Womble Defendants decline to pursue (see Docket Entries

158 (containing no waiver arguments), 159 (same), 168 (same)) — it

appears that the attorney-client privilege would apply to at least

some of the oral and written communications from these

consultations. See N.L.R.B., 637 F.3d at 501-02.

Jetton averred, however, that “there were no communications

with [Hatch] here other than simply sending him to [Plaintiffs’

counsel. [Jetton] ha[s] no file of any kind or notes regarding

conversations with Hatch about this.” (Docket Entry 164-1, ¶ 15.)

He further declared that he has not “consulted with [Plaintiffs’

counsel] or anyone else regarding the substance of the

representation beyond [Plaintiffs’ counsel] thanking [Jetton] for

sending Mr. Hatch and telling [Jetton] that Hatch was a great

client.” (Id., ¶ 16.) Accordingly, the Affidavit establishes that

no relevant responsive documents exist to the subpoena. (See

53

Docket Entry 159-1 at 5.)23 Under the circumstances, the Court will

deny Womble Defendants’ request to compel information from Jetton.

In addition, Defendants’ Motion asks the Court to “compel[]

Mr. Hatch, including his counsel of record, to produce any

engagement letter or retainer agreement with anyone who is his

counsel in this action” (the “Engagement Letter Request”) and to

“compel[] Mr. Hatch to produce any communications with

third-parties, including emails, text messages, or written

communications with Mr. Jetton” (the “Third Party Request”).

(Docket Entry 158 at 5 (emphasis in original).) As a preliminary

matter, the unbounded Third Party Request remains facially

overbroad and thus beyond the scope of permissible discovery, see

Fed. R. Civ. P. 26(b)(1), and therefore unenforceable, see Fed. R.

23 To the extent that Womble Defendants seek information from

Jetton unrelated to the instant class action (see, e.g., id.

(seeking “[a]ny and all notes of any telephone calls or other non-

telephonic conversations with Johnathan Hatch between March 2016

and September 2016”); see also Docket Entry 158 at 5 (asking for

order “compelling third-party Mark Jetton to produce copies of any

communications between him and putative class representative

Johnathan Hatch or putative class counsel, Brown, Faucher, Peraldo,

& Benson, PLLC”)), such information lacks relevance to this action

and thus lies beyond the scope of permissible discovery, see Fed.

R. Civ. P. 26(b)(1); see also Fed. R. Civ. P. 26(b)(2)(C) (“On

motion or on its own, the court must limit . . . the extent of

discovery otherwise allowed by these rules . . . if it determines

that . . . the proposed discovery is outside the scope permitted by

Rule 26(b)(1).”).

54

Civ. P. 26(b)(2)(C). Further, Hatch has disclaimed the existence

of any responsive documents. (See Docket Entry 159-5 at 20.)24

Similarly, both Hatch and Jetton testified that no engagement

agreement exists between them (see Docket Entry 164-1, ¶ 9; Docket

Entry 164-2 at 13), and Jetton further averred that he “ha[s] no

engagement agreement written or otherwise with [Plaintiffs’

counsel]” (Docket Entry 164-1, ¶ 9) and “no one has offered or

agreed to pay [Jetton] anything and [he] ha[s] no fee split

arrangement with Mr. Hatch or anyone else regarding the[se]

matters” (id., ¶ 11). Accordingly, to the extent that Womble

Defendants limit the Engagement Request to Jetton, the record

indicates that no such document exists. To the extent that Womble

Defendants seek to apply the Engagement Request to Hatch’s

engagement agreement with Plaintiffs’ counsel, the Rule 37

Certification in Defendants’ Motion does not clearly reflect that

the necessary pre-filing conferral occurred. (See Docket Entry 158

24 More specifically, in response to a request for “[a]ll

documents and communications exchanged between You and any third

party to this lawsuit regarding claims against the DeMayo Firm for

alleged DPPA violations, as set form in Your Complaint,” Hatch

responded:

Objection . . . . to the extent the Request seeks

documents that are protected from discovery under the

work product doctrine. Without waiving such objections,

other than documents and communications, if any, that may

have been exchanged between Plaintiff’s counsel and third

parties, none.

(Id.)

55

at 7-8 (“[T]he parties[] have met and conferred and the discussions

regarding Mr. Hatch’s written discovery responses (as they relate

to communications with Mr. Jetton and his relationship with Mr.

Jetton) have conclusively ended in an impasse, leaving an open

issue for the Court to resolve.” (emphasis added)).) As such, the

Court will deny Womble Defendants’ requests to compel responses to

the Engagement Letter Request and Third Party Request.

Lastly, Womble Defendants ask the Court to award them their

costs and attorney’s fees associated with Defendants’ Motion. (See

id. at 5.) Given the resolution of Defendants’ Motion, such

expense-shifting remains improper. See Fed. R. Civ. P.

37(a)(5)(B). Plaintiffs do not request expense-shifting (see

generally Docket Entry 164) and, under the circumstances, the Court

finds that each party should bear its own expenses. In that

regard, Defendants’ Motion resulted in clarification of Jetton’s

role in this action via his opposing Affidavit. That circumstance

alone warrants denial of expense-shifting. See Fed. R. Civ. P.

37(a)(5)(B) (precluding expense-shifting “if the motion was

substantially justified or other circumstances make an award of

expenses unjust”).

CONCLUSION

DeMayo Defendants and Gelshenen Defendants produced responsive

materials after the filing of Plaintiffs’ Motion. The subsequent

Certification Opinion renders disproportionate any further

56

compelled response. Additionally, Greve Firm failed to serve a

proper response to the Deposition Discovery. Next, Womble

Defendants have justified their sealing requests, except as to the

information previously, publicly disclosed in this litigation.

Finally, the record does not support a finding that Jetton serves

as “hidden counsel” in this lawsuit, or otherwise warrant compelled

production from Hatch, his counsel, or Jetton regarding such

matters.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion (Docket Entry

154) is GRANTED IN PART AND DENIED IN PART as follows: Upon

determination of the reasonable amount of Plaintiffs’ expenses,

including attorney’s fees, incurred in litigating Plaintiffs’

Motion, (1) DeMayo Defendants, (2) Greve Firm, and (3) Gelshenen

Defendants (along with their counsel) shall each bear one-third of

such expenses.

IT IS FURTHER ORDERED that, on or before November 4, 2020,

Plaintiffs shall serve DeMayo Defendants, Greve Firm, Gelshenen

Defendants, and Womble Defendants’ counsel with a statement setting

out the reasonable expenses, including attorney’s fees, that

Plaintiffs incurred in litigating Plaintiffs’ Motion. Failure by

Plaintiffs to comply with this Order shall result in denial of any

expense-shifting as to Plaintiffs’ Motion.

IT IS FURTHER ORDERED that, if Plaintiffs timely serve such

notice setting forth their reasonable expenses incurred in

57

litigating Plaintiffs’ Motion, DeMayo Defendants, Greve Firm,

Gelshenen Defendants, and Womble Defendants’ counsel shall file, on

or before November 17, 2020, EITHER a memorandum of no more than

five pages (excluding attachments) contesting the reasonableness of

the expenses claimed (along with a certificate that DeMayo

Defendants, Greve Firm, Gelshenen Defendants, and Womble

Defendants’ counsel have conferred in good faith with Plaintiffs

about such matters), OR a notice agreeing to pay the claimed

expenses. The failure by DeMayo Defendants, Greve Firm, Gelshenen

Defendants, or Womble Defendants’ counsel to comply with this Order

will result in an award of expenses claimed by Plaintiffs.

IT IS FURTHER ORDERED that, if DeMayo Defendants, Greve Firm,

Gelshenen Defendants, and Womble Defendants’ counsel timely file a

memorandum contesting the reasonableness of the claimed expenses,

Plaintiffs shall file, on or before November 24, 2020, a memorandum

of no more than five pages (excluding attachments) responding to

such memorandum. Failure by Plaintiffs to comply with this Order

will result in denial of any expenses contested by DeMayo

Defendants, Greve Firm, Gelshenen Defendants, and Womble

Defendants’ counsel.

IT IS FURTHER ORDERED that, if Plaintiffs timely file such a

response memorandum, DeMayo Defendants, Greve Firm, Gelshenen

Defendants, and Womble Defendants’ counsel may file, on or before

58

December 1, 2020, a reply of no more than three pages (excluding

attachments).

IT IS FURTHER ORDERED that the Sealing Motion (Docket Entry

157) is GRANTED IN PART and DENIED IN PART as follows: the Sealing

Motion is granted except insofar as it seeks redaction of the

references (1) to “color-coded” in Plaintiffs’ memorandum and

(2) to Greve Firm’s filters in Plaintiffs’ memorandum and the Greve

Firm deposition exhibit.

IT IS FURTHER ORDERED that, on or before November 4, 2020,

Plaintiffs shall file corrected versions of Plaintiffs’ memorandum

(Docket Entry 156) and the Greve Firm deposition exhibit (Docket

Entry 156-5) that remove such redactions.

IT IS FURTHER ORDERED that Defendants’ Motion (Docket Entry

158) is DENIED.

This 21st day of October, 2020.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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