Mary Bilek, Plaintiff, v. Federal Insurance Company d/b/a Chubb, et al., Defendants. (2023)

Order

Pending before the Court is defendant Federal Insurance Company's amended motion to bifurcate discovery [199].¹ The motion is fully briefed. [199, 220, 245]. For the following reasons, the motion is denied.

Background

This case involves plaintiff Bilek's individual claims and a proposed class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 277, the TCPA's internal do-not-call regulations, 47 C.F.R. § 64.1200(d), and the Illinois Automatic Telephone Dialers Act, 815 ILCS 305/1, et seq. The second amended complaint alleges, inter alia, that plaintiff received approximately four telemarketing calls from America's Health Center Inc. (AHC) in 2017, as well as another phone call from AHC in September 2020 that began with a prerecorded message offering health-insurance coverage. [182] 15, at ¶ 74, 18, at ¶ 92. During that call, an unidentified person offered to sell plaintiff “a $359.85/month MultiPlan PPO insurance plan underwritten by ‘Chubb.’ ” [Id.] 19, at ¶ 96. Plaintiff alleges that defendant Federal Insurance Company does business under the name “Chubb.” [Id.] 1, at ¶ 2.

The second amended complaint also alleges that Chubb insurance agents in Fort Lauderdale, Florida engaged a telemarketing company called Health Advisors of America, Inc. (HAA)² to assist with making telemarketing calls to sell Chubb goods and services, and that “all or almost all” of these calls were prerecorded “press 1” robocalls. [Id.] 8–9, at ¶ 35. Plaintiff alleges that in 2018, she received dozens of “spoofed-caller ID, unsolicited, prerecorded” HAA robocalls, repeatedly requested not to receive any more calls, and was placed on HAA's internal do-not-call (IDNC) list. [Id.] 9, at ¶ 37, 16 at ¶ 80. According to plaintiff, due to “Chubb's faulty internal do-not-call policies, practices, and procedures,” plaintiff's phone number was not placed on Chubb's IDNC list until after the instant lawsuit was filed in 2021. [Id.] 9, at ¶ 38. Plaintiff alleges that Chubb failed to obtain HAA's IDNC list and failed to coordinate it with Chubb's IDNC list or those of its other agents, vendors, and sub-vendors. [Id.] 17 at ¶ 84.

Plaintiff seeks to represent three classes of individuals, and a subclass, defined by the second amended complaint as follows:

Robocall Class: All telephone subscribers in the United States whose cellular telephone number AHC or some other third party on Chubb's behalf called using an artificial or prerecorded voice, where prior to such call there existed no signed, written agreement with the recipient that included a disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the caller and Chubb to deliver or cause to be delivered to the signatory telemarketing calls using an artificial or prerecorded voice; and (B) the person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.

Plaintiff alleges a subclass of Illinois consumers who received such challenged calls.

IDNC Class: All residential or cellular telephone subscribers who received more than one telemarketing call in a 12-month period on their phone, that was made by or on behalf of Chubb, where:

(1) such subscriber had previously requested not to receive calls from Chubb or any Chubb vendor, and/or

(2) there was no call script for the initial question and answer portion of the call, and/or the call script that did exist did not specify the caller or Chubb, and/or

(3) calling the caller ID back on the date of the call would not ring a telephone handled by the caller or Chubb, and/or

(4) the caller did not have a written Do Not Call policy at the time of the call, and/or

(5) Chubb's Do Not Call policy did not call for coordination of do-not-call lists among vendors, and/or Chubb had not yet augmented its Do Not Call list to include telephone numbers of persons who had asked not to receive calls from its agents or vendors.

Injunctive Class: All persons who expressed a desire to not be called to [sic] Chubb or any person making calls for the purpose of selling Chubb products or services, or who were placed on the internal do-not-call list of Chubb or anyone who made calls on Chubb's behalf.

[182] 20–21, at ¶ 103.

In its motion to bifurcate discovery, defendant argues that “Plaintiff seeks an improperly broad class (and correspondingly broad discovery) that is not in line with the factual allegations” of the second amended complaint. [199] 3. According to defendant, “[d]espite the lack of factual support for her claims, Plaintiff's broad discovery seeks information regarding the claims of putative absent class members, and requests essentially all data about all calls made by any entity that has any attenuated connection to Federal.” [Id.] 4 (emphases in original). Defendant therefore brings this motion to “to limit the overexpansive discovery requested by Plaintiff in this case to discovery related to AHC and HAA and their respective up/down lines—the entities that Plaintiff alleges are responsible for the calls at issue.” [Id.] Defendant requests that the Court bifurcate discovery into two phases:

Phase one would focus on (a) the merits of Plaintiff's individual claim and, (b) in terms of class discovery, documents and information related only to the marketing of Federal's products by former defendant [AHC's] and HAA's up/down lines’3 ․ in order to use discovery relating to these entities as a “test case” for class certification. Assuming Plaintiff is successful in certifying a class, phase two would consist of class discovery relating to any entities other than AHC and HAA that allegedly made calls to putative class members.

[199] 2. Alternatively, defendant requests that the Court order plaintiff share fifty percent of the costs of discovery. [Id.] 15–16.

Legal Standard

“Whether to bifurcate discovery is a determination that rests within the discretion of the trial court.” America's Health & Res. Ctr., Ltd. v. Promologics, Inc., No. 16 C 9281, 2018 WL 3474444, at *5 (N.D. Ill. July 19, 2018) (citing Ocean Atl. Woodland Corp. v. DRH Cambridge Homes, Inc., No. 02 C 2523, 2004 WL 609326, at *2 (N.D. Ill. Mar. 23, 2004)). Although district courts “enjoy[ ] broad discretion in deciding whether to order bifurcation of discovery, because bifurcation of discovery risks additional delay, ‘it has remained the exception and not the rule.’ ” Marshall v. Grubhub Inc., No. 19 C 3718, 2022 WL 1055484, at *3 (N.D. Ill. Apr. 5, 2022) (quoting Tate v. City of Chi., No. 18 CV 7439, 2019 WL 2173802, at *3 (N.D. Ill. May 20, 2019)). “Bifurcation is generally permitted, however, in cases where it promotes fairness and efficiency.” Id. “As the party seeking to limit discovery, [the defendant has] the burden of demonstrating that good cause exists for bifurcation.” Lucas v. Vee Pak, Inc., No. 12 C 9672, 2014 WL 12932245, at *1 (N.D. Ill. Nov. 13, 2014) (citing New England Carpenters Health & Welfare Fund v. Abbott Labs., 2013 WL 690613, at *3 (N.D. Ill. Feb. 20, 2013)).

Discussion

“Though the Federal Rules of Civil Procedure do not explicitly provide for bifurcated discovery, the 2003 Advisory Committee Notes to Rule 23 recognize that bifurcation is often appropriate: ‘it is appropriate to conduct controlled discovery ․ limited to those aspects relevant to making the [class] certification decision on an informed basis.’ ” Harris v. comScore, Inc., No. 11 CV 5807, 2012 WL 686709, at *3 (N.D. Ill. March 2, 2012) (alteration in original) (quoting Fed. R. Civ. P. 23 Advisory Committee's Notes). See also Abramson v. Gohealth LLC, No. 19 C 6318, 2020 WL 5209817, at *1 (N.D. Ill. Sept. 1, 2020) (“Although the Federal Rules of Civil Procedure do not explicitly allow for bifurcated discovery – and that includes Fed. R. Civ. P. 42 ․ – a court has discretion to bifurcate discovery.”); Lucas, 2014 WL 12932245, at *1 (stating that the Advisory Committee's Notes to Rule 23 “recognize that bifurcation is often warranted in class actions”). Here, defendant “moves to bifurcate discovery into two phases pursuant to Federal Rule of Civil Procedure 42(b),” [199] 2, which district courts also use to entertain motions to bifurcate discovery. See, e.g., Tate, 2019 WL 2173802, at *3; Ocean Atl. Woodland Corp., 2004 WL 609326, at *2; Physicians Healthsource, Inc. v. Janssen Pharm., Inc., 2014 WL 413534, at *4 (D.N.J. Feb. 4, 2014).

“In TCPA actions, bifurcation may be appropriate where the resolution of a single issue may resolve the case and render trial on the other issue[s] unnecessary ․ or where a narrow, potentially dispositive issue, being totally distinct from class issues, has the potential to render Plaintiff's TCPA claim baseless.” Marshall, 2022 WL 1055484, at *3 (cleaned up). But “[b]ifurcation is not always warranted in TCPA class actions, nor is it universally appropriate or helpful.” Promologics, Inc., 2018 WL 3474444, at *6. When determining whether to bifurcate discovery, courts consider the following three factors: “(1) whether bifurcation will assist in making a timely ruling on class certification; (2) the impact that granting or denying the request will have on the pending litigation; and (3) the degree to which class and merits discovery are closely intertwined.” Lucas, 2014 WL 12932245, at *1 (citation omitted). See also Harris, 2012 WL 686709, at *3 (collecting cases).

A. Whether Bifurcation Will Assist in Making a Timely Ruling on Class Certification

Courts in this district have recognized that “perhaps the main or most significant factor courts consider is expediency or whether bifurcated discovery will aid the court in making a timely determination on the class certification motion.” Beezley v. Fenix Parts, Inc., 328 F.R.D. 198, 202–03 (N.D. Ill. 2018) (collecting cases). See also Marshall, 2022 WL 1055484, at *5 (same). In cases such as this one “where plaintiffs have not yet filed a motion for class certification, discovery may be used to help determine whether the class can properly be certified, particularly with respect to” Rule 23’s threshold requirements of numerosity, commonality, typicality, and adequacy of representation. Miner v. Gov't Payment Serv., Inc., No. 14-cv-7474, 2017 WL 3909508, at *3 (N.D. Ill. Sept. 5, 2017). “Discovery must be sufficiently broad to give the plaintiff a realistic opportunity to meet the requirements of class certification, but at the same time, a defendant should be protected from overly burdensome or irrelevant discovery.” Id. at *4 (quoting Loy v. Motorola, Inc., No. 03-C-50519, 2004 WL 2967069, at *3 (N.D. Ill. Nov. 23, 2004)).

Defendant asserts that its proposed scope of pre-certification discovery is broad enough to allow the Court to assess typicality, the adequacy of the named plaintiff, commonality, and numerosity. [199] 10–12. Defendant only seeks to limit class discovery to “Plaintiff's allegations, i.e., focusing on the entities that allegedly made the calls at issue.” [Id.] 10. Specifically, defendant proposes narrowing the initial scope of discovery to AHC, HAA, and any entity in either of their up/down lines. [Id.] 10–11. According to defendant, its proposal “comfortably encompasses information relevant” to use AHC and HAA as the “test case” for proving the class certification factors. [Id.] 11.

Plaintiff responds that her second amended complaint attacks Federal's “across-the-board” policies and practices and that her allegations are not limited to Federal's actions or omissions involving only certain telemarketing vendors. [220] 4. Plaintiff asserts that these challenged practices apply uniformly to all entities that telemarket on Federal's behalf. [Id.] 1. Plaintiff also argues that bifurcation would prejudice plaintiff by preventing her from demonstrating Rule 23’s threshold requirements because doing so requires compiling (1) a comprehensive IDNC list comprised of all of Federal's telemarketers’ IDNC lists and (2) a comprehensive set of telemarketing calls made on Federal's behalf. [Id.] 2. Plaintiff asserts that for class certification purposes, plaintiff will eventually need the IDNC lists of all of Federal's other telemarketing vendors making calls on Federal's behalf compile a comprehensive IDNC list and “scrub it” against AHC, HAA and Federal's other vendors’ calling records to determine the scope and contours of the IDNC class. [Id.] 5–6.

The Court acknowledges defendant's argument that if plaintiff cannot obtain class certification based on discovery related to experiences similar to her own involving the entities that placed the calls to her, “she likely will not be able to obtain class certification at all.” [199] 2. But this misses plaintiff's point that information related to these other telemarketing vendors like HAA and AHC is necessary in certifying the classes, as defined by plaintiff, in the first place. It may be that plaintiff is not able to meet her burden and certify what defendant characterizes as an “improperly broad class,” but plaintiff is entitled to discovery that will help her make that argument and defendant has not demonstrated that delaying said discovery will expedite or help make a timely ruling on class certification.

Defendant also argues that discovery should be limited to the marketing of Federal's products through AHC, HAA, and their respective up/down lines because “those are the only allegations in the” second amended complaint “supported by alleged facts rather than speculation.” [199] 5–6 (emphases omitted). Defendant asserts that “broad discovery into all calls by any entity outside of the AHC and HAA up/down-lines is irrelevant to the claims in this case, and would be inappropriate and wasteful at this time.” [Id.] 10.

That, however, is not a persuasive reason to bifurcate discovery. This portion of defendant's brief, along with arguments in the introduction that plaintiff seeks an “improperly broad class” that is “not in line with the factual allegations,” [id.] 2–4, read more like a motion to strike or amend plaintiff's class allegations. But “[b]ifurcation decisions must be made in the absence of a complete understanding of the ultimate scope of the class, and without knowing whether the class will be certified.” Lucas, 2014 WL 12932245, at *2. As plaintiff points out, “the fact that the propriety of class certification will be disputed and the proper definition of any class will be debated does not render discovery relevant to the class, as defined by the Plaintiff, irrelevant. Indeed, the discovery might well aid in the process of resolving class certification issues.” Lanteri v. Credit Prot. Ass'n, L.P., Case No. 1:13–cv–1501–WTL–DKL, 2015 WL 6681049, at *2 (S.D. Ind. June 24, 2015). See Robinson v. Lake Ventures LLC, No. 22 CV 6451, 2023 WL 5720873, at *10 (N.D. Ill. Sept. 5, 2023) (denying motion to strike class allegations and finding that because discovery was lacking and yet necessary to resolve issues on Rule 23’s requirements, it was premature “to strike or even amend Plaintiffs’ class allegations on their behalf”). “[D]iscovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Belcastro v. United Airlines, Inc., No. 17 C 1682, 2019 WL 1651709, at *3 (N.D. Ill. Apr. 17, 2019).

It is true that “[o]n issues affecting class certification ․ a court may not simply assume the truth of the matters as asserted by the plaintiff.” Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012). But “[i]f there are material factual disputes, the court must receive evidence ․ and resolve the disputes before deciding whether to certify the class.” Id. (emphasis added) (alteration in original) (citation and internal quotations omitted). And courts are “not limited to the allegations in plaintiffs’ complaint when assessing whether to certify a class but instead ‘should make whatever factual and legal inquiries are necessary under Rule 23.’ ” Pa. Chiropractic Ass'n v. Blue Cross Blue Shield Ass'n, 286 F.R.D. 355, 363 (N.D. Ill. 2012) (emphasis added) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675–76 (7th Cir. 2001)). See also Boulet v. Nat'l Presto Indus., Inc., 11-cv-840-slc, 2012 WL 12996298, at *5 (W.D. Wis. Dec. 21, 2012) (same). This case is only in discovery and plaintiff has not yet moved for class certification. Any concern over disputed facts and speculation at this stage of the case is premature.

The Court finds that this first factor weighs against bifurcating discovery in the manner proposed by defendant.

B. Impact of Granting or Denying the Request on the Pending Litigation

Defendant argues that bifurcating discovery in the manner it proposes will streamline the pending litigation and serve the interests of efficiency and economy. [199] 12. Defendant asserts that discovery in this case has already been “cumbersome and expensive,” that its ongoing document production already involves the review of more than 100,000 documents, and that it has hired an eDiscovery vendor to assist with this production “at significant cost to Federal.” [Id.] 13. Defendant states that the number of documents that need to be reviewed, and the associated cost, would “increase substantially if the scope of discovery were to include information related [to] other entities not alleged to have been involved in the calls at issue.” [Id.] (emphasis in original). Defendant does not elaborate or provide specifics.

In response, plaintiff argues that defendant has failed to explain why the full scope of discovery would be burdensome:

For example, how many other telemarketing vendors does Federal have? Federal knows the answer, but does not say, instead electing to make self-serving, unsubstantiated assertions as to breadth. What has Plaintiff asked for in discovery that has no relevance to the issues at-hand? Again, Federal does not identify the requests to which it objects, or explain why these materials are irrelevant.

[220] 6. Plaintiff also argues that defendant has not explained how two rounds of class certification would be more efficient than one or how an initial class certification as to only HAA and AHC would meaningfully or efficiently progress the case. [Id.] 7. Plaintiff asserts that if the Court were to adopt defendant's bifurcation proposal, then plaintiff would have to conduct multiple sets of depositions of Federal employees in each phase of discovery. [Id.]

There is no question that discovery on a nation-wide, class-wide basis is likely to be very burdensome and costly, and the parties have already been engaged in ongoing discovery for over two years. Defendant asserts that bifurcation will allow the parties to avoid incurring costs of discovery involving information related to entities other than AHC, HAA, and their up/down lines “until a class is certified.” [199] 13. Defendant argues that discovery will be expedited if defendant can “focus its production to the relevant topics rather than sift through millions of documents that ultimately may not be material to the resolution of this case.” [Id.] 14. But plaintiff's point is that discovery covering other telemarketing vendors is necessary for class certification. And the Court agrees that it does not seem much will be gained by undergoing two rounds of class certification, particularly when the information uncovered in the second phase of “discovery might well aid in the process of resolving class certification issues.” Lanteri, 2015 WL 6681049, at *2. Furthermore, although it is true that “[i]n cases that are unlikely to continue if a class is not certified, early merits-based discovery can be a waste of time and effort,” Beezley, 328 F.R.D. at 203, the defendant's proposal does not bifurcate discovery into merits and class discovery. Defendant's suggested first phase of discovery includes “discovery into facts currently relevant to Plaintiff's individual claims and class certification.” [199] 14 (emphasis in original).

The Court finds that the second factor weighs against bifurcating discovery in the manner proposed by defendant.

C. Degree to Which Class and Merits Discovery are Closely Intertwined

“There is not always a bright line between pre-certification discovery into facts bearing on” Rule 23’s class certification requirements and merits discovery. Marshall, 2022 WL 1055484, at *4 (citation and internal quotations omitted). See Ahmed v. HSBC Bank USA, Nat'l Ass'n, No. EDCV15057FMOSPX, 2018 WL 501413, at *3 (C.D. Ca. Jan. 5, 2018) (collecting cases demonstrating that “the distinction between class certification and merits discovery is murky at best and impossible to determine at worst”). Courts routinely express concern over these “blurred lines” and the possibility that phased discovery “could well lead to confusion, inefficiency, and claims by [plaintiff] that she was denied the discovery she needed to support her certification motion or to rebut [defendant's] opposition to certification.” Marshall, 2022 WL 1055484, at *4. For example, it does nothing to expedite or streamline a case when “bifurcating discovery may give rise to disputes over whether a particular discovery request relates to the merits or to class certification.” Quinn v. Specialized Loan Servicing, LLC, 321 F.R.D. 324, 327 (N.D. Ill. 2017). See also Rockett v. Renth, No. 14-cv-687-DRH, 2016 WL 913262, at *3 (S.D. Ill. Mar. 9, 2016) (finding that “bifurcation of discovery would inevitably lead to more litigation about where the line between permissible discovery and deferred discovery should be drawn”); True Health Chiropractic Inc. v. McKesson Corp., No. 13-CV-02219-JST, 2015 WL 273188, at *2 (N.D. Cal. Jan. 20, 2015) (noting that “bifurcation could raise a slew of issues as to what discovery relates to the class, as opposed to the named plaintiffs, thereby causing additional litigation regarding the distinction between the two”).

In this case, defendant is not proposing to bifurcate discovery into class and merits phases. [199] 14. Rather, as previously explained, defendant proposes a first phase of discovery involving “documents and information related to the merits of Plaintiff's individual claim, and to the AHC and HAA up/down lines’ marketing of Federal's products.” [Id.] Defendant asserts that if the risk of duplication and delay is minimal, then bifurcation is appropriate. [Id.] (citing Ocean Atl. Woodland Corp., 2004 WL 609326, at *2–3). And according to defendant, there is minimal risk of duplication here because its proposed first phase of discovery is limited to certain entities. [Id.] Because defendant's bifurcation proposal is atypical and does not seek to separate discovery into class and merits phases, this third factor is not helpful in determining whether good cause exists to bifurcate discovery in the manner suggested by defendant. Any question regarding the degree to which class and merits discovery are closely intertwined is irrelevant because defendant asserts its proposal will allow the parties to “efficiently and expediently proceed with discovery into facts currently relevant to Plaintiff's individual claims and class certification.” [199] 14 (emphasis in original).

Furthermore, applying the same observations made by courts as to class versus merits discovery, there is no guarantee that bifurcating discovery as defendant suggests would not “give rise to disputes over whether a particular discovery request relates” to phase one discovery, or would not “inevitably lead to more litigation about where the line between permissible discovery and deferred discovery should be drawn.” Quinn, 321 F.R.D. at 327; Rockett, 2016 WL 913262, at *3. Discovery up to this point has already been fairly contentious and there is “nothing to suggest the parties wouldn't continue in this vein, with time-consuming disputes arising over whether particular discovery” is appropriate. Beezley, 328 F.R.D. at 203–04. Therefore, as the court in Beezley observed, “[f]rom this perspective, there is nothing to gain in terms of judicial economy by bifurcating discovery.” Id. at 204.

D. Defendant's Alternative Request That the Court Order Plaintiff Share in the Cost of Discovery

Defendant argues that if the Court does not order bifurcation of discovery, then the Court should order plaintiff to share fifty percent of the costs of discovery. [199] 15.

The general rule is that the responding party bears the expense of complying with discovery requests. Crandall v. 4Demand, LLC, No. 17 CV 4185, 2020 WL 11191816, at *2 (N.D. Ill. June 15, 2020); Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571–72 (N.D. Ill. 2004); Oppenheimer Fund, 437 U.S. at 358. “However, if the responding party asks the court for an order protecting it from ‘undue burden or expense,’ the court may shift the costs to the non-producing party, rather than just disallowing the requested discovery.” Wiginton at 572 (citations omitted). See Fed. R. Civ. P. 26(c)(1)(B) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ․ specifying terms, including ․ the allocation of expenses[.]”).

Plaintiff raises the threshold issue that defendant did not sufficiently confer with plaintiff regarding cost-sharing, stating that “Federal's cost-sharing request in the instant motion came ‘out of the blue.’ ” [220] 8–9. Plaintiff reports that although the parties discussed the possibility of cost-sharing in January and February of 2023, [115] 4–5, the parties resolved this issue on March 3, 2023 by agreeing to narrow plaintiff's search terms: “Federal's counsel sent Plaintiff's counsel an email that stated, ‘Federal is open to a rolling production of documents based on the search terms used in our February 15, 2023 hit report.’ ”⁴ [Id.] 9 (quoting [220-2] 2). Plaintiff's counsel “is not aware of any conferral concerning cost-sharing since” the parties agreed this “rolling production” would be completed by August 30, 2023. [Id.] Plaintiff argues that defendant's request now for cost-sharing contradicts the Court's Stipulated Order for ESI Protocol and Hardcopy Documents, in which the parties agreed that before seeking cost-sharing, they would meet and confer in good faith about the specific discovery requested and “work cooperatively to troubleshoot any purported undue burden.” [Id.] (citing [60] 11, at ¶ 20).

In its reply brief, defendant insists that plaintiff “unequivocally said she would not cost share” and asserts that “[t]his was not a resolution of the cost sharing issue.” [245] 1–2, 4. In support, defendant points to a February 22, 2023 email in which counsel for plaintiff stated, “We do not, in any event, agree to cost-sharing. As I have previously told you, Ms. Bilek is unable to pay for such.” [Id.] 11 (Ex. B, p. 1). See also [id.] 23 (Ex. B, p. 13) (January 18, 2023 email from defense counsel mentioning cost sharing issue). Defendant also takes issue with plaintiff's assertion that defendant did not ask for narrowed requests in light of the second amended complaint and that plaintiff now “may be willing to narrow” certain discovery requests. [Id.] 4 (citing [220] 11). Defendant argues that because plaintiff filed the second amended complaint to expand the scope of discovery and never narrowed her discovery requests, “there was no reason for Federal to assume Plaintiff would suddenly change course.” [Id.]

Local Rule 37.2's meet-and-confer requirement states that all motions for discovery and production of documents must include “a statement (1) that after consultation in person or by telephone and good faith attempts to resolve differences they are unable to reach an accord, or (2) counsel's attempts to engage in such consultation were unsuccessful due to no fault of counsel's.” L.R. 37.2 (N.D. Ill.). “Where the consultation occurred, this statement shall recite, in addition, the date, time and place of such conference, and the names of all parties participating therein. Where counsel was unsuccessful in engaging in such consultation, the statement shall recite the efforts made by counsel to engage in consultation.” Id.

Furthermore, the provision in the order in this case titled “ESI Discovery Dispute Resolution and Cost Shifting” includes the following meet-and-confer requirement:

Prior to any such petition, the producing Party and the requesting Party must meet and confer in good faith. The producing Party shall explain the facts and circumstances surrounding the alleged undue burden, and work cooperatively with the receiving Party to troubleshoot the issue in order to try to alleviate such. Such meet and confer may also include a discussion of whether the requesting Party will pay for some or all of the costs of complying with the discovery request.

[60] 11, at ¶ 20. The order also provides under “Reasonable Discovery Limits” that “[i]f either party believes there to be undue cost or burden to collect any potentially relevant ESI or hardcopy documents, its counsel shall meet and confer with opposing counsel to agree on a resolution.” [Id.] 3–4, at ¶ 5.

Defendant's Local Rule 37.2 statement represents that the parties “have conferred and engaged in good faith efforts to resolve their disputes regarding the issues in this motion without court action” and provides the dates of six telephone calls. [199] 17. However, the statement refers to the issues discussed in vague terms (e.g., “these issues,” “many of these issues,” “on these issues”) or as related to bifurcation. [Id.] Defendant's statement only explicitly mentions the cost-sharing issue once: “There have been additional e-mails between the parties on these issues as well over the course of the last 6+ months, including the issue of sharing costs on January 13, 2023.” [Id.] The parties’ January 25, 2023, Rule 26(f) report states that defendant had “proposed sharing the cost of review of ESI, but that the parties [were] unable to reach agreement.” [115] 4–5. There are no specifics and the Court does not know whether this refers to a January 13 discussion. Defendant's Local Rule 37.2 statement therefore does not state with specificity when and how defendant complied with the meet-and-confer requirement as to the question of cost-sharing.

The Court also notes that Local Rule 37.2 requires parties to consult “in person or by telephone.” L.R. 37.2. In disagreeing over whether their correspondence constituted discussion or resolution of the cost-sharing issue, plaintiff and defendant each point to email correspondence in support of their respective positions. Written correspondence is insufficient to demonstrate that the parties exhausted their meet and confer obligations on the specific issue of cost sharing.

In defendant's moving brief, it also mentioned that “[i]f Plaintiff is unwilling to tailor her requests and insists on pursuing all-encompassing discovery that dilutes the likelihood of obtaining critical information, cost-sharing is warranted.” [199] 15. Plaintiff's opposition indicated that she “remains open to discussing additional refinement or re-jiggering of search terms to focus on materials that truly matter.” [220] 9. See also [id.] 2 (stating that “the bulk of materials Federal has produced are pamphlets for bundled services and form contracts that the parties can likely eliminate – or at least minimize – from production by agreement”); 10 (“Had Federal reached out to confer, the undersigned would have shared his ideas about how to limit the volume of documents for review.”); 11 (“What is more, Plaintiff may be willing to narrow those requests as she did in February 2023, but Federal has not asked for such in light of the Second Amended Complaint.”). These comments suggest some flexibility on plaintiff's end and that plaintiff is open to continued discussions regarding discovery, including narrowing requests and limiting document production. In response, defendant insists it should not be faulted because “[g]iven that Plaintiff filed the [second amended complaint] to expand the scope of discovery and never narrowed her discovery requests, there was no reason for Federal to assume Plaintiff would suddenly change course.” [245] 4. This is not a reason to refrain from complying with one's meet-and-confer obligations under Local Rule 37.2. And plaintiff's brief contends that plaintiff did agree to narrow the search terms of her discovery requests at least once, in February and March 2023. [220] 2, 9, 11.

It is clear the parties are not on the same page. Parties can and should work out most discovery disputes before bringing them before the Court. See, e.g., DeGeer v. Gillis, 755 F.Supp.2d 909, 930–31 (N.D. Ill. 2010) (noting that counsel should have collaborated on e-discovery and that going forward, the parties were expected “to genuinely confer in good faith and make reasonable efforts to work together and compromise on discovery issues”); Grundstad v. Ritt, No. 96 C 1857, 1998 WL 178811, *2 (N.D. Ill., Apr. 13, 1998) (stating “the parties should cooperate to work out an arrangement to share the costs associated with producing these documents”); Thornton v. Morgan Stanley Smith Barney, LLC, No. 12–CV–298–JED–FHM, 2013 WL 1890706, at *2 (N.D. Okla. May 3, 2013) (“Notwithstanding the court's order denying Defendant's request for cost shifting or sharing, Plaintiff is hereby ordered to confer with Defendant in a good faith effort to reduce the costs to Defendant.”).

For these reasons, the Court denies without prejudice defendant's cost-sharing request for failure to exhaust the parties’ meet-and-confer obligations.

Finally, although the Court does not reach the merits of defendant's cost-sharing request, the Court notes that even if the meet-and-confer requirement had been exhausted, defendant would not have met its burden of demonstrating that good cause exists for ordering plaintiff “share fifty percent of the costs of discovery.”

Defendant identified and addressed each of the eight factors that courts routinely consider in determining how to allocate costs. [199] 7–8, 15–16. See Wiginton, 229 F.R.D. at 573; E.E.O.C. v. SVT, LLC, 2014 WL 2177796, at *5–6 (N.D. Ind. May 22, 2014) (applying the eight factors and collecting cases). But defendant only provided brief, vague, general, or conclusory statements for each factor.

For example, as to the second factor, defendant asserted that “[e]ven if there is some information that only Federal has in its possession, Plaintiff has obtained information from other sources.” [199] 15. Defendant did not elaborate. In arguing that the third factor favors cost-sharing, defendant stated that “Federal estimates that the cost of discovery will exceed several hundred thousand dollars.” [Id.] Defendant provided no evidence or support for this estimate. As to the fourth factor, defendant appeared to acknowledge the discrepancy in the parties’ resources and then provided a general statement, without support, that plaintiff's counsel's resources and willingness to “front” the costs are also relevant. [Id.] In arguing that the fifth factor favors cost-sharing, defendant asserted that plaintiff's requests require defendant “to engage in extensive and expensive searches in electronically stored data reaching back years” and defendant referred to “the sheer volume of documents and the costs already incurred.” [Id.] 16. Defendant did not go into any specific detail. Earlier in its motion, defendant did mention that “discovery in this case has already been cumbersome and expensive,” and that defendant had “already retained an eDiscovery vendor to assist with this production at significant cost to Federal.” [Id.] 13. But these are also general statements without any further explanation. And in briefly mentioning the eighth factor, defendant speculated that through overbroad discovery requests “[p]laintiff is seemingly trying to gather information to use in her other pending TCPA cases.” [Id.] 16.

Defendant offered no support for its assertions, such as affidavits, transcripts, declarations, logs, search results, or invoices, to substantiate its cost-allocation request. See, e.g., Wiginton, 229 F.R.D. at 575 (noting plaintiffs’ expert estimated the production costs); Byers v. Ill. State Police, No. 99 C 8105, 2002 WL 1264004, at *11 (N.D. Ill. June 3, 2002) (receiving testimony as to the “significant financial burden” plaintiff's request would impose on defendants); Adams Pointe I, L.P. v. Tru-Flex Metal Hose Corp., 16-CV-00750-CRE, 2017 WL 11552833, at *3 (W.D. Pa. July 14, 2017) (finding that defendants failed to meet their burden of proving that cost-sharing was appropriate in part because defendants’ estimated cost to conduct ESI was “unsupported by any invoice or detailed proposal outlining these costs”); Cochran v. Caldera Med., Inc., No. 12–5109, 2014 WL 1608664, at *2 (E.D. Pa. Apr. 22, 2014) (finding that defendant's assertion “that an unnamed vendor has estimated it would cost $500,000.00” to comply with plaintiff's discovery demands was “unsupported by any invoice or detailed proposal” and “insufficient to satisfy defendant's burden”); Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 324 (S.D. N.Y. 2003) (noting that “the cost-shifting analysis is so fact-intensive” and requesting additional information, including “an affidavit detailing the results of [defendant's sample] search, as well as the time and money spent,” before conducting the appropriate cost-shifting analysis). “[B]ecause the presumption is that the responding party pays for discovery requests, the burden remains with [defendant] to demonstrate that costs should be shifted to” plaintiff. Wiginton, 229 F.R.D. at 573 (citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283 (S.D. N.Y. 2003)). See Fed. R. Civ. P. 26(c)(1)(B) (providing that a party from whom discovery is sought may move for a protective order for the allocation of expenses for the discovery for good cause shown). On this record, defendant's unsupported and conclusory arguments would not satisfy this burden.

* * * * *

As discussed above, the Court finds that defendant Federal Insurance Company has not met its burden of demonstrating that good cause exists to bifurcate discovery. The factor that courts consider the most significant —whether bifurcation will assist in making a timely ruling on class certification—weighs against bifurcating discovery in the manner proposed by defendant. Beezley, 328 F.R.D. at 202–03; Marshall, 2022 WL 1055484, at *5. And “because bifurcation of discovery risks additional delay, ‘it has remained the exception and not the rule.’ ” Marshall, 2022 WL 1055484, at *3) (quoting Tate, 2019 WL 2173802, at *3). Furthermore, the Court denies without prejudice defendant's alternative request that plaintiff be ordered to share fifty percent of the costs of discovery. Defendant has not established that it exhausted its meet-and-confer requirement on this issue. Defendant's Local Rule 37.2 statement does not state with specificity when and how defendant complied with the meet-and-confer requirement and the exchange of email correspondence is insufficient to comply with Local Rule 37.2.

Conclusion

For the foregoing reasons, Defendant Federal Insurance Company's Motion to Bifurcate Discovery [199] is denied. The Court also denies without prejudice Defendant Federal's alternative request that plaintiff be ordered to share fifty percent of the costs of discovery.

FOOTNOTES

1.   Bracketed numbers refer to entries on the district court docket. Referenced page numbers are taken from the CM/ECF header placed at the top of filings.

2.   The second amended complaint also occasionally refers to Benefytt Technologies, Inc. as another of Chubb's agents/third party administrators. [182] 4, at ¶¶ 15–16; 6, at ¶ 24; 12, at ¶ 52. The parties’ filings related to the instant motion do not mention Benefytt, [199, 220, 245], and the Court therefore does not discuss that particular entity.

3.   Defendant explains that there is an “up/down line” of entities in the chain between Federal and the alleged callers: “producer Ocean Consulting Group, an affiliate of Cost Containment Group (collectively ‘Ocean/CCG’) → sub-producer Insurance Care Direct aka Health Option One (‘ICD’) → sub-sub-producer AHC → unknown lead generators making calls on behalf of AHC.” [199] 5 (citing [193] 86, at 67:2–10). “In industry parlance, ICD, Ocean/CCG, and Federal are the ‘up-line’ for AHC, and AHC's ‘down’ line would be any lead generator of AHC.” [Id.]

4.   Plaintiff does not further elaborate on how exactly this statement demonstrates that the cost-sharing issue was resolved, but the Court presumes plaintiff means to suggest that agreeing to narrowed search terms lowers the associated costs.

HEATHER K. McSHAIN United States Magistrate Judge