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In Thomas, et al. v. Cricket Wireless, No. 19-cv-07270-WHA (AGT) (N.D. Cal. Mar 16, 2021), California Magistrate Judge Alex G. Tse granted the plaintiffs’ renewed request to compel production of the defendant’s litigation hold letters issued in connection with this case and two others, ordering the defendant to “produce all portions of those letters that address litigation hold and/or preservation issues.”  Judge Tse denied the plaintiffs’ request to compel production of Cricket’s hold letters in two other peripherally related cases.

Case Background

The plaintiffs filed this putative class action in November 2019, alleging that the defendant engaged in a fraudulent scheme to market and sell 4G/LTE devices and service plans to customers nationwide by falsely advertising its 4G/LTE coverage.  However, different plaintiffs brought almost identical allegations against the defendant in Barraza v. Cricket Wireless, LLC in May 2015.  That case was dismissed with prejudice in December 2015 when both named plaintiffs accepted Cricket’s offer of judgement for the full value of their claims.  When Judge Alsup asked if there was “any scenario under which the merits of the case could come back to life,” plaintiffs’ counsel in that case said no, but the statute of limitations had not run on the hundreds of thousands of other putative class members’ claims against Cricket.

During discovery in this case, plaintiffs learned that after Barraza was resolved, the defendant discarded certain documents and data from the putative class period that plaintiffs believe would help substantiate their class allegations…The defendant claimed that it “was entitled to stop preserving documents after Barraza” and that “[i]n any event, [it] has been transparent about what documents were not retained.”  According to plaintiffs, the defendant admittedly: 1) deleted custodial accounts of key decision makers, 2) did not preserve a single custodial account from a single member of the Sales & Operations Planning Committee, 3) did not preserve critical sales data related to its 4G phone sales, including the price customers paid for their devices, and 4) did not even take steps to preserve the 4G advertisements it used during the class period. 

The plaintiffs then sought further discovery about the defendant’s document retention practices in an effort to further investigate a potential spoliation claim and the defendant agreed to produce certain information regarding retention and also agreed to provide a Rule 30(b)(6) deposition about document retention but refused to produce its litigation hold letters and related correspondence, objecting that those documents were irrelevant and privileged.  After the plaintiffs’ moved to compel production of the requested hold letters, the Court held that the requested hold letters were relevant to plaintiffs’ examination of the defendant’s document preservation practices but declined to immediately compel production of the hold letters and denied plaintiffs’ motion “without prejudice to renewal, if warranted, after completion of the upcoming deposition of Cricket’s Rule 30(b)(6) representative on document retention.”  After the plaintiffs deposed two defendant representatives on retention, they renewed their request, arguing that despite the Court’s instructions, the defendant’s Rule 30(b)(6) witnesses either did not know, or were counseled not to answer, basic questions about what kinds and categories of information and documents were covered by the subject hold letters and what specific actions Cricket employees were instructed to take regarding collection and preservation.

Judge’s Ruling

Judge Tse, in responding to the defendant’s contention that it followed the Court’s deposition instructions, stated: “plaintiffs cite to numerous places in both depositions where Cricket’s witnesses could not or would not answer questions specifically seeking information about the ‘basic details’ surrounding the hold letters that the Court outlined in its prior order.”  Judge Tse also provided an example of the defendant’s witnesses refusing to answer questions on instruction by counsel.

As a result, Judge Tse stated: “Based on these examples, the Court disagrees with Cricket that it “honored the line the Court drew in its December 14 order,” ECF No. 161 at 5, and agrees with plaintiffs that at this point, compelling production of Cricket’s hold letters in this case, Barraza, and Bond, is appropriate and the only way plaintiffs will get the information they need to further investigate and possibly prove spoliation. In reaching this conclusion, the Court returns to the undisputed fact that Cricket admittedly destroyed information and documents from the putative class period after the resolution of Barraza…Those admissions raise enough questions about Cricket’s document retention and preservation efforts—questions that Cricket has refused to answer through written discovery and now two Rule 30(b)(6) depositions—to allow plaintiffs “to take the ‘initial step’ of discovering the content of [Cricket’s] litigation hold notice[s]…so that they can ‘investigate and possibly prove spoliation.’ ””

As a result, Judge Tse granted the motion regarding this case, Barraza, and Bond, but denied their request to compel production of the defendant’s hold letters in two other cases “which were not mentioned or discussed in plaintiffs’ initial motion or at the hearing on that motion.”

So, what do you think?  Do you think that the judge should have granted the motion to compel production of the hold letters?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.  Catch the ACEDS #caseoftheweek at 11:30am ET today where Kelly Twigger will discuss this case!

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