Opinion
CIVIL ACTION NO. 03-CV-161-B-M3.
August 2, 2006
Michael W. McKay, Bar Roll # 9362, Michael D. Lutgring, Bar Roll # 24531, McKAY LUTGRING COCHRAN, L.L.C., Baton Rouge, Louisiana, Counsel for VERIZON WIRELESS, PERSONAL CUMMUNICATIONS LP, D/B/A VERIZON WIRELESS D/B/A, VERIZON WIRELESS BUSINESS, SOLUTIONS CENTER.
E. Duncan Getchell, Jr., Howard C. Vick, Jr., Robert L. Hodges, H. Carter Redd, McGuireWoods LLP, Richmond, Virginia.
MEMORANDUM IN OPPOSITION TO PLAINTIFF'S SECOND SUPPLEMENTAL MEMORANDUM ON SPOILATION AND OTHER DISCOVERY ISSUES
Plaintiff persists in pursuing this sanctions motion despite its inability to prove two necessary elements of its motion: bad faith by defendant and prejudice to plaintiff. The absence of bad faith is shown by the uncontroverted facts that (i) the "send logs" (really "receipt logs") were supposedly on a third party website; (ii) Verizon Wireless did not destroy the send logs; (iii) and no one at Verizon Wireless knew that the third party would delete the documents after 90 days pursuant to its normal document retention policy. Plaintiff's manufactured claim of prejudice is belied by the fact that Verizon Wireless does not rely on the absence of the send logs for any purpose in defending this action. While plaintiff has speculated that the send logs would have provided other information about the fax recipients (such as address), they provide no evidence to support that speculation, and HomeGrown has stated to Verizon Wireless that the send logs would not have contained such information. Plaintiff has now litigated for months over documents that were never in Verizon Wireless' possession and are wholly irrelevant to this action. Plaintiff's motion should be denied.
Background
Before we respond to the specific issues raised in plaintiff's supplemental memo, we summarize briefly the relevant facts. Plaintiff's motion alleges a failure by defendant to preserve logs that were supposedly available for a 90-day period on the website of third-party vendor, HomeGrown. The logs supposedly would have shown the telephone numbers that actually received the faxes at issue in this case.
The uncontoverted facts show that Verizon Wireless never downloaded these logs from the HomeGrown website. Indeed, Verizon Wireless never even obtained the necessary information from HomeGrown that would have been necessary to access the logs. Further, it is uncontroverted that HomeGrown did not inform Verizon Wireless that the logs would be deleted after 90 days. While one Verizon Wireless employee was told by HomeGrown that there was a way to check online if the faxes had been sent (See Request for Admission Responses 1 and 5.), this employee was not informed about the specifics of the logs, had no business reason to access the logs, and did not access the logs. Nor is there any evidence that the Verizon Wireless employees who dealt with HomeGrown were aware of the significance (if any) of the fax logs to the litigation, nor is it reasonable to expect such mid to junior level employees to have such sophisticated knowledge. (See attached Affidavit of Candice Leonard). What the record, including the testimony of Victor Fettes, does show is that a search and collection of all documents in the possession of Verizon Wireless relevant to the faxing campaign was promptly completed and responsive documents produced.
Further, the unvarnished record shows that the logs at issue are wholly irrelevant to this action. Plaintiff has received from HomeGrown logs showing the phone numbers to which the faxes were sent. Defendant has stipulated to the fact that each of those phone numbers actually received the fax. Thus, any information that may have been on the logs at issue is immaterial, and defendant does not rely on their absence for any purpose.
As there is no evidence of bad faith on the part of Verizon Wireless and no prejudice suffered by plaintiff, we are left with plaintiff's fishing expedition into Verizon Wireless' attorney client communications and work product. Such discovery into the mental impressions and conclusions of defendant's counsel strike not only at the heart of the work product and attorney-client privileges, but they can serve no useful purpose given the absence of any evidence of bad faith or prejudice.
I. Procedural History
On May 30, 2006, Plaintiff brought on for hearing its motions for spoliation sanctions and to compel. (05/30/06 Tr. at 2). In the Fifth Circuit, spoliation requires a showing of bad faith and not mere negligence. Condrey v. Sun Trust Bank of Georgia, 431 F.3d 191, 203 (5th Cir. 2005); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). Furthermore the missing evidence must be sufficiently relevant so that its absence is prejudicial. Condrey, 431 F.3d at 203 n. 8.
At the spoliation hearing Verizon Wireless correctly argued that Plaintiff had not carried its burden of demonstrating subjective bad faith. (05/30/06 Tr., at 23-24). Verizon Wireless also correctly argued that the send logs were not relevant to any issue in the case because Verizon Wireless does not rely on the absence of evidence of actual receipt of a fax in contesting class certification. (05/30/06 Tr. at 24-25). Instead, Verizon Wireless acquiesces in defining the class through use of the surviving log of numbers to be dialed even though a class defined by the send log would have been approximately 10% smaller.
As noted above, although Plaintiff speculated at the hearing that the send log may have contained names and addresses or other information not contained on the surviving log, (05/30/06 Tr. at 4), Home Grown has informed Verizon Wireless that that is not true. At the July 26, 2006 status conference the Court gave Verizon Wireless leave to depose Home Grown to perpetuate this evidence. As the record now stands, Plaintiff has failed to carry two essential elements of its spoliation claim: (1) bad faith and (2) prejudice.
With respect to the motion to compel, Verizon Wireless correctly argued that it had produced responsive documents within the scope of its objections. This discovery had been limited by the Court to issues affecting class certification. With respect to the discovery going to other suits and claims, Verizon Wireless argued that this issue was procedurally defaulted because there was a scheduling order that governed the date by which a motion to compel had to be filed on outstanding discovery, such a motion had been filed and then compromised. (05/30/06 Tr. at 29-35, 52-57). Verizon Wireless also objected that the information being sought was not covered by interrogatories, was not the subject of the motion to compel, and could not be addressed under the local rules and Rule 30(b)(6), F.R. Civ. P. because Plaintiff had not complained of any particular answer with specificity. (05/30/06 Tr. at 60-63).
At the conclusion of the hearing, the Court held the motions in abeyance and directed Plaintiff "to file within the next two weeks specific interrogatories to the Defendants setting forth specifically what you want, basically what you have told me here today, in accordance with the Federal Rules and Local Rules, and, you know, make it specific to get to the heart of what you want." (05/30/06 Tr. at 63).
Interrogatories were propounded and duly answered. Plaintiff's then filed Requests for Admissions which were in addition to the interrogatories granted by the Court. Verizon Wireless did not object to them as going beyond the discovery allowed by the Court. Then on July 19, 2006 Plaintiff sought leave to file its Second Supplemental Memorandum in which it alleges discovery abuse based on nothing more than a blatant and transparent distortion of the record. Verizon Wireless responds as follows.
II. The Illustrative Examples.
A. Plaintiff's charge that "Verizon repeatedly Denied the Occurrence of an Investigation, But now Admits Than [ sic ] an Investigation was Conducted."
Plaintiff's charge that Verizon Wireless failed to disclose the existence of an "investigation" is based upon a blatant distortion of the record and a game of semantics. To be clear what occurred: When the complaint was filed, Verizon Wireless retained outside counsel, who interviewed witnesses and collected documents for production. Verizon Wireless' document custodian, Victor Fettes, likewise attempted to collect responsive documents. The product of that document collection was produced to plaintiff. In short, Verizon Wireless did what every other corporate defendant does when it is sued. Verizon Wireless did not conduct what may be referred to as an internal investigation resulting in a report to senior management or the board of directors.
Mr. Vick made just this point in responding to the Court's question at the May 30th hearing "But there was an investigation conducted?" by replying:
Mr. Vick: Well, again, I think we're getting into semantics there.
The Court: Mr. ___.
Mr. Vick: To the extent that Mr. Fettes did something, of course, there was. Was there a formal investigation where someone was actually sent forth and said "get to the bottom of this," no. That's my understanding.
Were certain employees spoken to by Mr. Fettes? He said so in his deposition. And clearly, that was the case. There were people who were reprimanded through this because of their admission that they had done this.
(05/30/06 Tr. at 27). It is a grave and surprising fact that when Plaintiff purported to recount this exchange in its Motion for Sanctions, it deleted the italicized sentence without any indication that it had been removed.
The actual issue as framed by Plaintiff at the May 30th hearing was whether Verizon Wireless had followed Plaintiff's interpretation of Verizon Wireless' internal guidelines by conducting an internal investigation and whether any such investigation generated a formal report. (05/30/06 Tr. at 7-14). The answer to that question was and is as Mr. Vick described it: No.
But, Plaintiff now argues, Verizon Wireless "retained Dean Hunt to investigate and interview all witnesses." Second Supplemental Memorandum at 3. Again, this can hardly have come as a surprise to Plaintiff as such interviews are done in all cases See also 05/30/06 Tr. at 12 (". . . we know from their brief that they retained outside counsel, and apparently they issue the retention order. The counsel they retained — and we gave their website — is declared super lawyer in telecommunications.") Of course what Hunt did is not "the investigation" that was placed at issue at the hearing but is simply how law suits are defended.
Plaintiff's argument that "[h]e [Hunt] prepared reports to Verizon that are listed in the privilege log" and that as a consequence it was a misrepresentation for Mr. Vick to say that it was his understanding that "there is no written document of this investigation" is simply baseless. There is no "report" of an "investigation" on the privilege log. Nor is there any basis for alleging that anything done by Dean Hunt was done for any purpose other than litigation.
When examined in light of the actual record Plaintiff's charge is scurrilous.
B. Plaintiff's Charge That "Verizon Wireless Misrepresented the Identity of Individuals Who Had the Opportunity to Preserve Evidence."
Plaintiff complains of two matters under this heading. First Plaintiff bolds certain words in a quotation from Mr. Vick:
Interestingly, your Honor, the person who could have downloaded the send logs off of Homegrown's website, Candace (sic) Leonard is one of the people we've notified Plaintiffs in discovery is a fact witness here, and they haven't even taken her deposition, haven't even seen fit to take her deposition.
That argument is soundly based on the 30(b)(6) deposition of Victor Fettes who testified that Candice Leonard was the person who had the technological access to the send logs, assuming that they were really available. Fettes Depo. 40-41, 44. It remains true that Plaintiff has not deposed Candice Leonard or any of the other persons at Verizon Wireless who had knowledge of the facts but instead prefers to make charges based upon forced inferences to which it is not entitled.
The second complaint Plaintiff makes under this heading arises from this statement from Mr. Vick:
We're surmising that these employees read that invoice and read it as a lawyer would read it, with 20/20 hind sight, and there's absolutely no evidence of that whatsoever.
Not only is this statement not misleading, Plaintiff's counsel conceded it at the hearing. (05/30/06 Tr. at 37, 41) (Describing Candace Leonard as "low-level" and "lowly" and stating "of course, she probably shouldn't have known that, but the document retention manager and the lawyer should, your Honor.")
But Plaintiff argues Hunt and in-house counsel "viewed the documents within the relevant time frame." Second Supplemental Memorandum at 5. That, of course, is what Plaintiff assumed at the hearing and is included in the area of inquiry permitted by the Court. Verizon Wireless's discovery responses confirm that its employees and outside counsel were in the possession of HomeGrown invoices with the legend "Send logs are available to download from website after completion of job." There is no logical basis to infer than any employee or outside counsel was aware of the availability of the send logs during the relevant time period, and more importantly, that the logs would be destroyed if not downloaded before April 10, 2003. Indeed, no Verizon Wireless employee downloaded the "send logs" or sought for any purpose further detail on the faxes sent as part of the alleged fax blast campaign. Nor is there any evidence that HomeGrown informed anyone at Verizon Wireless, or counsel, that the send logs would be destroyed after 90 days.
C. Plaintiff's charge that "Despite Denials That No Other Documents Existed Verizon Wireless Now Attempts to Assert a Privilege Log."
Plaintiff misstates the procedural posture bearing on this issue. As of the date of the May 30, 2006 hearing, the state of affairs was that no document was being withheld on account of privilege because of no document that was responsive within the scope of Verizon Wireless' objections was privileged. As Verizon Wireless noted at the hearing, "[i]f your Honor were to overrule our objections and say we have to give them this other Blast Fax materials, then that would trigger an obligation to claim privilege within the scope." (05/30/06 Tr. at 33-34). When the Court permitted Plaintiff to propound new discovery "in accordance with the Federal Rules and Local Rules," 5/30/06 Tr. at 63, the documents now listed on the privilege log became responsive for the first time and were duly and timely privileged.
The log provided has sufficient detail to permit an evaluation of the protection claimed for each document, and Plaintiff has made no showing that counsel were employed to spoliate evidence so as to invoke the crime fraud exception to the attorney-client privilege. U.S. v. Edwards, 303 F3d 606, 618 (5th Cir. 2002) ( Client must have improper purpose for seeking legal advice in order for the crime/fraud exception to apply.)
D. Plaintiff's charge that "Verizon Wireless Uses the Destroyed Logs to Challenge the Plaintiff's Entitlement to Recover on At Least (3) Levels"
Without citation to any filing by Verizon Wireless, Plaintiff claims that Verizon Wireless is arguing "that Plaintiff cannot identify WHICH INDIVIDUALS . . . actually received the" faxes and "WHICH FAX MACHINE NUMBERS received" them. Second Supplemental Memorandum at 7. In fact, Verizon Wireless has stipulated to the receipt of each of the faxes. While Verizon Wireless questions Plaintiff's ability to match up the telephone numbers on the master log with names and addresses of those who owned those numbers in 2003, the logs the were allegedly destroyed would not have helped Plaintiff satisfy that burden. Because HomeGrown has informed Verizon Wireless that the missing log simply contained phone numbers, the missing logs simply duplicate the information already available to Plaintiff on logs that HomeGrown was able to produce. Further, because Plaintiff's counsel informed the Court at the June 26, 2006 hearing that Plaintiff has succeeded in identifying the names and addresses from the existing log, it is difficult to see how Plaintiff can claim any prejudice at least until after they have filed their newly authorized expert report.
Certainly, Plaintiff's argument that "[i]f the logs had been properly preserved, the Defendant's protest against inclusion of the Florida class members (2,000 + members) would be precluded" is a non sequitor.
E. Duty to Preserve
Plaintiff argues that Verizon Wireless has violated an affirmative duty to preserve evidence in the hands of third parties prior to discovery, and further that Verizon Wireless' counsel misstated the law applicable to a litigant's duty to preserve evidence in the possession of a third party prior to discovery to this Court. This argument is without merit and should be rejected by the Court.
Verizon Wireless' counsel correctly argued to this Court that there is no caselaw requiring a defendant to ensure that "every third party [it has] dealt with" maintains evidence that might be germane and that the "plaintiff in the suit" might want. ( See Tr. at Pg. 25). In response, Plaintiff cites four cases, two from state courts, that it mistakenly claims defeat the proposition. Two of the cited cases sanction plaintiffs who relied on third party evidence to prepare product liability cases — a car belonging to their landlord or employer in which they were injured — which evidence was destroyed or altered before defendant was provided notice of expert inspections. Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001); Anderson v. Schwartz, 687 N.Y.S. 2d 232 (N.Y. Supp. 1999). These cases are readily distinguishable from the case at bar and do not support plaintiff's argument that defendants have a duty to analyze plaintiff's case and affirmatively seek out and preserve all third party evidence that might be needed to prove plaintiff's case in chief.
Plaintiff's other two cases. Vela v. Wagner Brown, Ltd., 2006 WL 1684191 (Tex.App. 2006) and Rambus, Inc. v. Infineon Technologies, AG, 222 F.R.D. 280 (E.D. Va. 2004), do not even involve third party evidence. In Vela the Court sanctioned defendants for the conduct of its expert in losing computer data, as part of what the court found was a general pattern of discovery abuse. Id. at *16. Similarly in Rambus, the Court sanctioned defendant for intentionally destroying its own documents. 222 F.R.D. at 290. Both cases are clearly inapposite to the facts presented to the Court. The Rambus decision is also contrary to King v. Illinois Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003) (no bad faith where evidence destroyed in the ordinary course of business). Instead the Court's ruling on the instant motion should be guided by U.S. v. Wise, 221 F.3d 140 (5th Cir. 2000). That case is binding on this Court and holds that there is no duty to preserve evidence in the hands of a third party. The law is just as Verizon Wireless argued at the hearing.
F. Plaintiff is not entitled to any of Its Requested Remedies.
1. Plaintiff is not entitled to an order directing additional responses because Verizon. Wireless has properly responded to discovery.
2. There is no basis for a blanket in camera inspection of documents listed on the privilege log. As Plaintiff's counsel acknowledged at the May 30, 2006 hearing, the purpose of a detailed privilege log is to provide an opportunity for a party to challenge specific documents based upon their supporting description. 5/30/06 Tr. at 17. Not one single document is challenged based on its description. See In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (holding a party claiming a privilege "shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection" and noting this most often is accomplished by submission of a log identifying documents by date, author, recipient and a description of general subject matter).
3. Plaintiff is not entitled to depose either Verizon Wireless' former counsel, Mr. Hunt, or in-house counsel. Here, the evidence shows that Hunt had access to the invoice, which is discussed above, and had notice of the ability to check online if the faxes at issue had been sent. This evidence does not furnish a basis for further inquiry of Hunt. Plaintiff has evidence, and VZW stipulates, that the faxes had been sent. Further, there is no evidence that Hunt knew the records would be retained for only 90 days, and plaintiffs have failed to establish a duty of Hunt to act with respect to these third-party documents. Finally, any inquiry of Hunt would necessarily tread upon the work product and attorney-client privileges. Although objective facts are not privileged "`[a]n attorney's thoughts [are] inviolate . . .'" Nguyen v. Excel Corp., 197 F.3d 200, 210 (5th Cir. 1999). Thus, no further intrusive discovery of counsel is warranted.
For the same reasons, there is no basis for deposing Verizon Wireless's in-house counsel.
4. No award under FRCP 37(b) is available both because there has been no misconduct and because there has been no Rule 37(a) Order on the matters at issue. GFI Computer Industries, Inc., v. Fry, 476 F.2d 1, 17 Fed.R.Serv.2d 510 (5th Cir. 1973).
5. No other remedies are appropriate.
Conclusion
Plaintiff's Proposed Second Supplemental Memorandum is an abusive filing which should neither be accepted nor acted upon. Plaintiff has failed to carry its burden of proof and the pending motions should be denied.
DECLARATION OF CANDICE LEONARD
Candice Leonard, being duly sworn, deposes and states as follows:1. I, Candice Leonard, am a current employee of Verizon Wireless Personal Communications, LP d/b/a Verizon Wireless d/b/a Verizon Wireless Business Solutions Center ("Verizon Wireless").
2. At all times from January 1, 2003 to April 10, 2003, I was employed at Verizon Wireless in the State of Louisiana as a Business Sales Associate. During this time period I was the primary point of contact between Verizon Wireless and HomeGrown and was responsible for paying the various invoices issued by HomeGrown.
3. At no time did I know that send logs were available to me for download from HomeGrown's website nor did I have any account information or password to access the send logs on HomeGrown's website. At no time did I visit the HomeGrown website.
4. I did not know during the period January 1, 2003 to April 10, 2003 that the send logs had any significance in this litigation.
5. I was never told by anyone at HomeGrown, nor did I have the information from any other source, that HomeGrown would destroy its send logs after 90 days.
I declare under penalty of perjury that the foregoing is true and correct.
RESPONSES TO REQUEST FOR ADMISSIONS
Pursuant to Rule 36 of the Federal Rules of Civil Procedure and Local Rule 36.1, Defendant Verizon Wireless Personal Communications, L.P. D/B/A Verizon Wireless D/B/A Verizon Wireless Business Solutions Center ("Verizon Wireless"), by counsel, responds to Plaintiff's "Request for Admissions" as follows:
GENERAL OBJECTIONS
1. Verizon Wireless objects to all of Plaintiff's Requests for Admissions to the extent that they seek disclosure or production of information protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or doctrine.
2. Verizon Wireless objects to the Request for Admissions to the extent that it includes requests for information rather than requests for admissions because such requests are beyond the scope of Rule 36 of the Federal Rules of Civil Procedure and Local Rule 36.1
RESPONSES
REQUEST FOR ADMISSION NO. 1 :Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, Dean Hunt was aware that send logs/transmission logs were available for download.
RESPONSE:
Verizon Wireless objects to this Request as vague and ambiguous because it purports to inquire about an individual's "awareness" without defining that term and insofar as it suggests a subjective awareness of the existence of the logs. Verizon Wireless further objects to this request to the extent that it seeks information regarding the mental impressions, conclusions, opinions or legal theories of VZW's prior outside counsel, which are protected by the work product privilege, Fed.R.Civ.P. 26(b)(3), and objects to the request to the extent it seeks disclosure of communications between prior outside counsel and Verizon Wireless employees, as those conversations are protected by the attorney-client privilege. Subject to and without waiving these and its general objections, Verizon Wireless admits that Dean Hunt knew on or before April 10, 2003 that logs were available for download inasmuch as prior to April 10, 2003, Mr. Hunt had in his possession an "invoice" which recited:
"Send price is based on a one-page send with a 50-second send time or less. Artwork consultation is $35 an hour if required. Numbers are guaranteed at 90% connect rate. Send logs are available to download from web-site after completion of job. Price you will be charged is listed in USD. There is a minimum invoice charge of $100."
Further, prior to April 10, 2003, Mr. Hunt knew that Verizon Wireless employee Richard Keller had been told by HomeGrown that there was a way to check online to see if the faxes had been sent.
REQUEST FOR ADMISSION NO. 2 :
Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, Dean Hunt was aware that the send logs/transmission logs were relevant to the claim with reference to the identity of putative class members.
RESPONSE :
Verizon Wireless objects to Request No. 2 on the grounds that it seeks the mental impressions and conclusions of counsel regarding the prosecution or defense of a lawsuit. As those impressions are highly protected by the attorney-client privilege, work product doctrine and applicable case law, Verizon Wireless objects. To the extent that "relevant" is intended to connote any notice of a policy of deletion of send logs on the part of HomeGrown, this request is denied.
REQUEST FOR ADMISSION NO. 3 :
Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, in-house counsel for Verizon was aware that send logs/transmission logs were available for download; identify singularly each counsel.
RESPONSE :
Verizon Wireless objects to this Request as vague and ambiguous because it purports to inquire about an individual's "awareness" without defining that term and insofar as it suggests a subjective awareness of the existence of the logs. Verizon Wireless further objects to this request to the extent that it seeks information regarding the mental impressions, conclusions, opinions or legal theories of VZW's counsel, which are protected by the work product privilege, Fed.R.Civ.P. 26(b)(3), and objects to the request to the extent it seeks disclosure of communications between counsel and Verizon Wireless employees, as those conversations are protected by the attorney-client privilege. Subject to its general objections and based upon reasonably inquiry, Verizon Wireless denies this request but does admit that at least one such counsel, Patricia Sunar, did have possession of an "invoice" which recited:
"Send price is based on a one-page send with a 50-second send time or less. Artwork consultation is $35 an hour if required. Numbers are guaranteed at 90% connect rate. Send logs are available to download from web-site after completion of job. Price you will be charged is listed in USD. There is a minimum invoice charge of $100."REQUEST FOR ADMISSION NO. 4 :
Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, in-house counsel for Verizon was aware that the send logs/transmission logs were relevant to the claim with reference to the identity of putative class members; identify singularly each counsel.
RESPONSE :
Verizon Wireless objects to Request No. 2 on the grounds that it seeks the mental impressions and conclusions of counsel regarding the prosecution or defense of a lawsuit. As those impressions are highly protected by the attorney-client privilege, work product doctrine and applicable case law, Verizon Wireless objects. To the extent that "relevant" is intended to connote any notice of a policy of deletion of send logs on the part of HomeGrown, this request is denied. REQUEST FOR ADMISSION NO. 5 :
Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, other Verizon employees were aware that send logs/transmission logs were available for download; identify singularly each employee.
RESPONSE :
Verizon Wireless objects to this Request as vague and ambiguous because it purports to inquire about an individual's "awareness" without defining that term and insofar as it suggests a subjective awareness of the existence of the logs. Subject to and without waiving its objections, Verizon Wireless denies this request as posed in so far as our reasonable inquiry has not revealed information that any Verizon employee was aware that "send logs" were available for download. Verizon Wireless admits that at some point during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, Richard Keller was told by HomeGrown that there was a way to check online to see if the faxes had been sent.
REQUEST FOR ADMISSION NO. 6 :
Admit or deny that during the time period beginning when Verizon received notice of the subject lawsuit through April 10, 2003, other Verizon employees were aware that the send logs/transmission logs were relevant to the claim with reference to the identity of putative class members; identify singularly each employee.
RESPONSE :
Denied. See Request No. 5.
REQUEST FOR ADMISSION NO. 7 :
Admit or deny that the process of fax-append search or reverse fax search can be used to determine the identity of recipients on a send log/transmission log. RESPONSE :
Subject to and without waiving its objections, Verizon Wireless states that based upon reasonable inquiry into readily accessible sources of information it is unable to admit or deny this request, wherefore this request is denied.
REQUEST FOR ADMISSION NO. 8 :
Admit or deny that through the process of this litigation Dean Hunt has asserted to plaintiff's counsel that the inability to identify putative class members is a basis to deny class certification.
RESPONSE :
Admitted.
REQUEST FOR ADMISSION NO. 9 :
Admit or deny that Verizon is currently maintaining that the inability to identify putative class members is a basis for denial of class certification.
RESPONSE :
Subject to and without waiving its objections, Verizon Wireless states that in its Opposition to Plaintiff's Motion for Class Certification, Verizon Wireless has argued that plaintiff's inability to identify which putative class member is associated with what phone number is a bar to class certification. Such inability does not, however, stem from the absence of the send logs/transmission logs, as Verizon Wireless has stipulated that it will not object to using any telephone number on the call log as a basis for class identification. Because HomeGrown has informed Verizon Wireless that the send logs/transmission logs contain no identifier not contained on the call log, the absence of the send logs/transmission logs has not prejudiced plaintiff in any way. Based upon the foregoing, and upon Verizon Wireless' interpretation of the import of this request, the request is denied.