United States District Court, N.D. Ohio
IN RE SONIC CORP. CUSTOMER DATA SECURITY BREACH LITIGATION (FINANCIAL INSTITUTIONS)
ORDER, [RESOLVING DOC. 227]
S. GWIN, UNITED STATES DISTRICT JUDGE.
2017, not yet identified third parties accessed
Sonic customers' payment card data. The
hackers obtained customer payment card information generated
at more than three-hundred Sonic Drive-Ins. This litigation
December 18, 2019, Sonic filed a motion to compel Alcoa
Community Federal Credit Union (“Alcoa”) to
respond to outstanding discovery requests. Plaintiffs oppose
the motion. Sonic replied.
the filing of the First Amended Complaint on October 21,
2019, Alcoa Community Federal Credit Union, one of the
original named plaintiffs, voluntarily dismissed itself from
the litigation. Alcoa is no longer a named party to this
its exit, Alcoa served discovery requests on Sonic and
participated in the parties' mediation session. At the
time Alcoa withdrew with the amended complaint, Sonic had
already served Alcoa with interrogatories and two sets of
requests for production. Alcoa objected to some of the
discovery requests on the grounds that Sonic was improperly
seeking protected mediation materials. Now, Alcoa objects to
the discovery with the argument that Sonic must obtain leave
to conduct discovery of an absent class member. Sonic seeks
to compel Alcoa to respond to the discovery.
Alcoa Is an Absent Class Member.
argues that Alcoa should be treated as a named class member,
rather than as a unnamed member of the class or an
“absent” class member.
argues that Alcoa's case tactics continue a pattern of
misbehavior. For instance, Alcoa, who has joined many data
breach litigations, earlier removed itself as a named
plaintiff in Arby's data breach litigation, only to later
opt back in as a named plaintiff, make the defendant suffer
through additional discovery, and then later reveal that its
customers had not been impacted by the Arby's
essence, Sonic argues that Alcoa should not be allowed to
initiate the litigation and then recuse itself as a named
class representative to avoid discovery.
Sonic's briefs paint this as a continuing pattern of
gamesmanship on Alcoa's part, Alcoa does not appear to
have violated any rules of civil procedure in removing itself
as a named plaintiff, nor does Sonic accuse it of doing so.
Sonic contests Alcoa's characterization as an absent
class member based solely on Alcoa's earlier
participation in the case and its behavior in previous
Sonic's arguments, Alcoa is not a named plaintiff in the
amended complaint. Although Alcoa was previously named, it
does not currently, nor will it moving forward, play the
named plaintiff role in the litigation. As such, treating
Alcoa as a named plaintiff would ignore the litigation
realities in its current state.
Alcoa Is Not Immune from Discovery.
status as an absent class member, however, does not prevent
discovery from Alcoa. Sonic may conduct discovery of an
unnamed member of a proposed class, such as Alcoa, if Sonic
can show need in accordance with the Manual for Complex
Litigation's particularized need test: “Discovery
of unnamed members of a proposed class requires a
demonstration of need. If precertification discovery of
unnamed class members is appropriate, the court should
consider imposing limits beyond those contemplated by the
Federal Rules of Civil Procedure.”
argues that it needs the requested information for its class
certification opposition. It says that Alcoa alone controls
information regarding Alcoa's damages and documents
underlying its settlement demand. Sonic says that it needs
Alcoa's information because it might reveal ...