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Phillips v. Philip Morris Companies, Inc.

United States District Court, Sixth Circuit

May 24, 2013

EVA MARIE PHILLIPS and GREG A. PHILLIPS, on behalf of themselves and others similarly situated, Plaintiffs,
v.
PHILIP MORRIS COMPANIES INC., nka ALTRIA GROUP, INC., et al., Defendants.

ORDER

GEORGE J. LIMBERT, Magistrate Judge.

This matter is before the Court on the motion to quash or in the alternative for a protective order filed on behalf of Defendant, Philip Morris USA Inc. on April 25, 2013. ECF Dkt. #48. Plaintiff, Eva Marie Phillips[1], on behalf of herself and others similarly situated, filed a response to the motion on May 14, 2013. ECF Dkt. #54. A hearing on the motion was held on May 16, 2012. For the following reasons, the motion to quash is GRANTED in its entirety.

Rule 45 of the Federal Rules of Civil Procedure governs motions to quash subpoenas. Courts must quash or modify subpoenas that "subject[ ] a person to undue burden." Fed.R.Civ.P. 45(c)(3)(A)(iv). The burden of persuasion in a motion to quash a subpoena is borne by the movant. Baugardner v. Louisiana Binding Service, 2013 WL 765574 (2013), see also In re Smirman, 267 F.R.D. 221, 223 (S.D.Ohio.2010); Recycled Paper Greetings, Inc. v. Davis, 2008 WL 440458, at *3 (N.D.Ohio Feb.13, 2008). Rule 26(c) authorizes a court to issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. In order to justify a protective order, one of Rule 26(c)(1)'s enumerated harms "must be illustrated with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.'" Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 550 (6th Cir.2004) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)).

Plaintiff brings this consumer fraud action seeking to recover damages for purchases of Marboro Lights ("Lights") cigarettes. Plaintiff alleges that she was induced to believe that light cigarettes were less harmful than full-flavored cigarettes based upon PM USA's marketing and branding of Lights.

Plaintiffs served a notice of Fed. Civ. Pro. R. 30(b)(6) deposition setting the matter for April 26, 2013 at 9:00 a.m. The notice set forth no less than seventy-four deposition topics and sought the presence of "[t]he person or persons who are most knowledgeable about each of the respective items..." ECF Dkt. #48-2 at 13. The notice indicated that "this means there may be a different person for each topic." Id. Prior to the hearing on the motion, Plaintiff reduced the number of deposition topics from seventy-four to nineteen. During negotiations which occurred immediately prior to the hearing, Plaintiff relinquished five additional deposition topics, leaving the undersigned to resolve PM USA's challenges to the remaining fourteen deposition topics.

Under Rule 30(b)(6), a party may depose a corporation by issuing a notice or subpoena that "describe[s] with reasonable particularity the matters for examination." Fed.R.Civ.P. 30(b) (6). The corporation "must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify." Id. The corporation's designee must be "knowledgeable about the subjects described in the notice" and the corporation must "prepare that witness to testify not just to his or her own knowledge, but the organization's knowledge." Montgomery v. Sanders, No. 3:07cv-470, 2013 U.S. Dist. LEXIS 37757, at *2, 2013 WL 1149240 (S.D.Ohio Mar. 19, 2013) (citing Prosonic Corp. v. Stafford, No. 2:07-CV-0803, 2008 WL 2323528 (S.D.Ohio June 2, 2008)). In other words, the party seeking the Rule 30(b)(6) deposition "must designate the areas of inquiry with reasonable particularity, and the [corporation] must designate and adequately prepare the witness to address those matters." Id.

Corporations have a duty to make "a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter." Starlight International, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D.Kan.1999). "If the rule is to promote effective discovery regarding corporations the spokesperson must be informed." Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D.Neb.1995) (quoting Protective Na'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D.Neb.1989)). The corporation must provide a knowledgeable person, even if this means educating particular witnesses, such as accountants. Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Company, Inc., 201 F.R.D. 33, 38 (D.Mass.2001). "The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions." Martin County Coal Corp. v. Universal Underwriters Ins. Servs., Inc., No. 08-93, 2010 U.S. Dist. LEXIS 118722, at *12, 2010 WL 4629761 (E.D.Ky. Nov. 8, 2010)(quoting United Technologies Motor Systems, Inc. v. Borg-Warner Automotive, Inc., No. 97-cv-71706, 1998 WL 1796257 (E.D.Mich. Sept. 4, 1998)). See also Resolution Trust Corp. v. S. Union Co., 985 F.2d 196, 197 (5th Cir.1993) ("If that [corporate] agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all" and subject to sanctions).

Discovery in this case has been divided into phases, with the first and current phase limited to the issue of class certification. The class-action device was designed as "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545 (1979). Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." Id. at 701, 99 S.Ct. 2545. In such cases, "the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23." Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364 (1982) (quotation omitted).

A party seeking to certify a class is required to show "under a strict burden of proof, " that all the requirements of Rule 23(a) are clearly met. Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988) (quotation omitted). A class action may only be certified "if the court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Gen. Tel. Co., 457 U.S. at 161, 102 S.Ct. 2364; see also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231 (1997) (court must take a "close look" at case before accepting it as a class action). If the court determines that the four prerequisites of Rule 23(a) are satisfied, "it must then examine whether the action falls within one of the three categories of suits set forth in Rule 23(b)." Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir.1988).

The United States Supreme Court has recognized that discovery limited to the issue of class certification may not be neatly parsed. A class certification determination "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Gen. Tel. Co., 457 U.S. at 160, 102 S.Ct. 2364 (internal quotation marks omitted). "Sometimes the issues are plain enough from the pleadings to determine whether [the requirements of Rule 23 are satisfied], and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.... [A]ctual, not presumed, conformance with Rule 23(a) remains... indispensable." Id.; see also Fed.R.Civ.P. 23(b)(3) (court must make "findings" that the requirements of Rule 23 have been satisfied); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454 (1978) ("the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'"); id. at 469 n. 12, 98 S.Ct. 2454, ("Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims. The typicality of the representative's claim or defenses... and the presence of common questions of law or fact are obvious examples. The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits.'")(quoting 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure ยง 3911, p. 485 n. 45 (1976)).

As a consequence, while Rule 23 does not permit the court to inquire into whether a plaintiff will prevail on the merits, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140 (1974), the court may go beyond the pleadings and consider legal and factual issues related to the merits if necessary to determine whether each Rule 23 requirement has been met. Whether to certify a class is within the broad discretion of the district court. Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir.2011).

Federal Rule of Civil Procedure 23(a) sets forth four prerequisites that must be met in order to bring an action as a class action: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409, 416 (6th Cir.2012).These four prerequisites to a class action are referred to as numerosity, commonality, typicality, and adequacy of representation. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 828 n. 6, 119 S.Ct. 2295 (1999). A party seeking class certification must show "under a strict burden of proof" that all four requirements of Rule 23(a) are clearly met. Reed, 849 F.2d at 1309.

"The proposed class must also meet at least one of the three requirements listed in Rule 23(b)." In re Whirlpool, 678 F.3d at 416 (citing Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011)). Federal Rule of Civil Procedure 23(b), captioned "Types of Class Actions, " reads, in its entirety:

A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct ...

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