United States District Court, S.D. New York
OPINION & ORDER
L. COTT, United States Magistrate Judge.
November 24, 2015, plaintiff Josephine James Edwards brought
a class action complaint against Hearst Communications, Inc.,
alleging unlawful disclosure of magazine subscribers'
personal data in violation of a Michigan privacy law.
Class-wide discovery is ongoing. Following a conference to
discuss several discovery disputes, the Court ordered
briefing on the issue of when Hearst's duty to preserve
evidence relevant to Edwards' action arose, and on
Edwards' request for discovery related to Hearst's
document retention policies and practices. For the reasons
set forth below, the Court concludes that Hearst's duty
to preserve arose on May 21, 2015, upon the filing of the
complaint in a case that was subsequently consolidated with
this action. Separately, the Court finds that Hearst has
responded insufficiently to Edwards' request regarding
document retention, and directs that it respond anew and in
conformity with this Opinion.
Court assumes familiarity with the underlying facts in this
action and will not recount them in any detail
here. To determine when Hearst's duty to
preserve evidence arose, the Court must analyze whether (as
Edwards contends) Hearst should have known that it could face
future litigation after the dismissal of a prior action under
Michigan's Video Rental Privacy Act ('VRPA"),
or, alternatively, if (as Hearst contends) its duty to
preserve ceased at the time of the dismissal of the prior
case and arose again only upon the filing of a subsequent
complaint alleging VRPA claims. The Court also considers
whether, regardless of any duty Hearst may have had, Edwards
is entitled to certain documents she seeks about document
retention policies and practices at Hearst before, during,
and after the pendency of the prior suit.
Prior VRPA Litigation
enacted the VRPA in 1988 to protect consumers' privacy
with respect to the purchase, rental, or borrowing of certain
goods. Boelter, 2017 WL 3994934, at *1. As relevant
here, the statute prohibits entities that sell written
materials such as magazines from disclosing information about
the purchase of those materials where that information
identifies the customer. VRPA, H.B. 5331, 84th Leg., Reg.
Sess., P.A. No. 378, § 2 (Mich. 1988). Customers whose
personal information is disclosed in violation of the VRPA
may bring a civil action to recover the greater of actual
damages or $5, 000. Boelter, 2017 WL 3994934, at *2.
first VRPA action against Hearst was filed in the Eastern
District of Michigan on September 24, 2012, by David Grenke.
Grenke v. Hearst Communications, Inc., 12-CV-14221,
Complaint, dated Sept. 24, 2012, Dkt. No. 1; Declaration of
Stephen Yuhan ("Yuhan Decl."), dated Nov. 2, 2017,
Dkt. No. 221-2, at ¶ 5. That same day, Grenke moved to
certify a proposed class of "Michigan residents who had
their Personal Reading Information disclosed to third parties
by Hearst . . . without consent." Grenke, Dkt.
No. 2, at 2. In his motion papers, Grenke explained that he
had moved for certification "simultaneously" with
his complaint in order to prevent Hearst from "pick[ing]
off' his individual claims, and that a more "fulsome
memorandum ... in support of class certification" would
follow after discovery on class-wide issues. Id. at
1 & n.l. The following year, the parties stipulated
to withdrawal of the motion for class certification on the
condition that Hearst would not attempt to "pick off
claims without the consent of Grenke's counsel.
Id., dated August 20, 2013, Dkt. No. 39, at 4. Wtule
a renewed motion for class certification was scheduled for
February 2015, id. at Dkt. No. 52, such a motion was
after it came out during discovery that Grenke had never
subscribed to the Hearst magazine that formed the basis of
his complaint, Hearst moved to dismiss for lack of standing
in October of 2014. Id., Dkt. No. 70. Four months
later, the parties jointly moved for dismissal with prejudice
and the vacatur of all prior orders. Id., Dkt. No.
94. The district court granted the parties' motion on
February 23, 2015. Id., Dkt. No. 95. The dismissal
was not pursuant to a settlement and Hearst did not pay
Grenke anthing. Yuhan Decl. ¶ 7.
to its counsel, Hearst was not subject to any lawsuits
alleging violations of the VRPA prior to the Grenke
litigation, and faced no additional VRPA suits during the
pendency of that action. Id. at ¶ 5.
Hearst's counsel is also unaware of any pre-suit letters
or inquiries about the VHP A, either before or during
Grenke. Id. After the dismissal of Grenke
on February 23, 2015, Hearst was unaware of any complaints,
pre-suit letters, or inquiries regarding alleged violations
of the VRPA until May 21, 2015, when the Boelter
lawsuit was filed in this District. Id. at ¶ 7;
Boelter, No. 15-CV-3934, Dkt. No. 1.
counsel also believes that, at the time the suit was
dismissed, the law firm that had brought Grenke was
the only law firm actively filing any lawsuits under the
VRPA. Yuhan Decl. ¶ 6. According to Hearst's
counsel, an attorney who signed the stipulation of dismissal
on Grenke's behalf stated that his law firm did not
intend to bring another suit against Hearst for violations of
the VRPA. Yuhan Decl. ¶ 6.
The Instant Litigation
21, 2015, Suzanne Boelter filed suit in this District against
Hearst under the VRPA, seeking to represent "all
Michigan residents who had their Personal Reading Information
disclosed to third parties by Hearst without consent."
Boelter, Dkt. No. 1, at ¶¶ 46, 52. Edwards
initiated this class action against Hearst for violations of
the VRPA on November 24, 2015. Dkt. No. 1, at ¶¶
42-57. Edwards' complaint was subsequently consolidated
with Boelter's, Dkt. No. 13 (although Boelter and Hearst
later stipulated to the dismissal of Boelter's claims,
Boelter, Dkt. No. 125).
in this case is being conducted in two phases, and is
currently in "Phase II." See Case
Management Plan, dated Aug. 18, 2016, Dkt. No. 40, at 2. The
first phase was limited to claims of the individually named
plaintiff, id., following which both parties moved
for summary judgment and Hearst moved to dismiss. Dkt, Nos.
132, 140. On September 7, 2017, Judge Torres denied
Hearst's motion to dismiss and granted in part and denied
in part both parties' motions for summary judgment,
Boelter, 2017 WL 3994934, at *26. The second phase
of discovery, which concerns the claims of the putative
class, is now in process. Dkt. No. 190. Judge Torres directed
the parties to address all Phase II discovery disputes to me.
October 26, 2017, the Court held a conference to address
several discovery disputes, including Edwards' requests
that the Court set a briefing schedule for her anticipated
motion for spoliation sanctions and order Hearst to produce
documents responsive to her Request for Production No. 34,
regarding document retention policies and practices from late
2009 through mid-2016. See Letter-motion ("Oct.
19 letter"), dated Oct, 19, 2017, Dkt No. 203.
the conference, the Court ordered further briefing as to
whether Hearst had a duty to preserve evidence after the
dismissal of Grenke but before the filing of
Boelter, and as to Edwards' ...