Greetings TCPAWorld!

I’m back with the latest scoop. As we all know, in the realm of class action litigation, discovery disputes can significantly shift the trajectory of a case. The recent decision in Elliot v. Humana, Inc. from the Western District of Kentucky provides a comprehensive look at the intricacies of Rule 30(b)(6) depositions and electronic discovery in the context of a potential TCPA class action. See Elliot v. Humana, Inc., No. 3:22-CV-00329-RGJ-CHL, 2024 WL 4468654 (W.D. Ky. Oct. 10, 2024). At its core, the case revolves around Plaintiff’s attempt to certify a “wrong number” class action against Humana, with the ensuing discovery battle offering valuable insights for litigators on both sides.

The first major issue addressed by the court was the adequacy of Humana’s Rule 30(b)(6) witnesses. After conducting three depositions of corporate representatives, Plaintiff argued that he still lacked crucial information about Humana’s “Do Not Call” practices. The court’s analysis provides a nuanced look at the requirements and limitations of Rule 30(b)(6) depositions. Drawing on King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995), the court reiterated that if a designated deponent cannot answer questions on noticed topics, the responding party has failed to comply with Rule 30(b)(6). However, the court also acknowledged Pogue v. NorthWestern Mut. Life Ins. Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at *8 (W.D. Ky. Jul. 18, 2017), that the inability of a designee to answer every question on a particular topic does not necessarily mean that the corporation has failed to comply with its obligations under the rule.

In a balanced decision, the court granted Plaintiff’s request for an additional deposition but declined to impose sanctions against Humana. The court stressed that Rule 30(b)(6) requires witnesses to be reasonably prepared on all noticed topics, and although Humana’s witness had responses prepared for many questions, failing to answer specific critical questions required further deposition. Informed by CFPB v. Borders & Borders, PLC, No. 3:13-CV-1047-CRS, 2016 WL 9460471, at *4 (W.D. Ky. June 29, 2016), the court allowed a fourth 30(b)(6) deposition, strictly limited to Humana’s Do-Not-Call list policies and procedures and documents produced since May 15, 2024.

However, the core of this dispute centered on Plaintiff’s request for data from Humana’s CGX system, which potentially contained crucial evidence for class certification. Humana resisted, arguing the request was unduly burdensome and technically infeasible. So what’s the deal? The court’s analysis of this issue demonstrates a sophisticated approach to applying discovery standards to complex electronic systems in the modern era.

Citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978), the court emphasized that information illuminating issues upon which a district court must pass in deciding whether a class should be certified is relevant to the subject matter of the action. The court then conducted a thorough proportionality analysis, applying the factors from Rule 26(b)(1).

Here is where things get spicy. Humana’s argument that searching the CGX system would be incredibly burdensome was rejected. The court engaged in a thorough proportionality analysis, considering factors such as the importance of the issues at stake, the resources of the parties, and the relative access to information. While Humana argued that producing the CGX data was burdensome, the court found that Plaintiff’s need for evidence outweighed Humana’s burden, particularly given Humana’s control over the key information. This analysis underscores the court’s view that the technical burden of accessing digital records does not excuse compliance with discovery requests. The court, citing Groupwell Int’l (HK) Ltd. v. Gourmet Exp., LLC, 277 F.R.D. 348, 360 (W.D. Ky. 2011), reiterated that a party cannot avoid producing discoverable information simply because of inconvenience or expense. This shows a growing judicial understanding of complex digital systems in the age of big data. Take note.

Addressing Humana’s claim that searching CGX was infeasible, the court referenced cases establishing that parties can be required to create programs or queries to extract relevant data from complex systems. These include Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV.2120 (LMM) (AJP), 1995 WL 649934, at *1 (S.D.N.Y. Nov. 3, 1995); Meredith v. United Collection Bureau, Inc., 319 F.R.D. 240, 244 (N.D. Ohio 2017); and Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512, at *3 (N.D. Cal. Aug. 14, 2013).

Humana’s final argument that Plaintiff’s request was untimely also failed to persuade the court. While acknowledging that motions to compel filed after the close of discovery are generally disfavored, citing FedEx Corp. v. United States, No. 08-2423 MA/P., 2011 WL 2023297, at *4 (W.D. Tenn. March 28, 2011), the court found special circumstances justifying the timing of the request. The court emphasized that Plaintiff’s decision not to pursue the CGX data earlier was justified due to earlier witness testimony that misled him into believing the hCAT system contained the relevant data. The court found Plaintiff’s diligence in trying to avoid duplicative discovery efforts a sufficient reason to excuse the timing of the motion. These included Plaintiff’s early efforts to seek relevant documents and the fact that the need for CGX data only became apparent after the third 30(b)(6) deposition.

In its final judgment, the court granted Plaintiff’s motion to compel a fourth 30(b)(6) deposition (with limitations) and production of CGX system data while denying the motion for sanctions related to the 30(b)(6) witnesses. Humana was ordered to produce all documents relating to “invalid” and “wrong number” entries from its CGX system by October 15, 2024. Very interesting! So what’s the takeaway?

The Elliot v. Humana decision serves as a significant precedent in the evolving landscape of electronic discovery. It signals that courts are becoming increasingly sophisticated in understanding complex data systems and that arguments of technical infeasibility will be scrutinized closely. The court referenced case law establishing that parties can be compelled to create custom programs to retrieve data from complex systems. This further reinforces the principle that inconvenience and expense do not absolve a party from its discovery obligations. It also underscores the importance of persistent and focused discovery efforts—particularly when they lead to late-stage requests for crucial information.

As we continue to navigate the era of big data in litigation, decisions like this remind us that the fundamental principles of discovery—relevance, proportionality, and fairness—remain paramount. For litigators on both sides, the lesson is clear: In modern discovery, technical sophistication and unyielding advocacy are more important than ever to access case-defining information.

Keep it legal, keep it smart, and stay ahead of the game.