Re: PROGRESSIVE HEALTH AND REHAB CORP. v. INDEGENE, INC., et al Civil Action No. 20-10106 (MAS) (RLS) United States District Court, D. New Jersey Filed February 23, 2023 Singh, Rukhsanah L., United States Magistrate Judge LETTER ORDER *1 February 22, 2023 Dear Counsel: Currently pending before the Court is an informal application by Plaintiff Progressive Health and Rehab Corporation, individually and as the representative of a class of similarly situated persons, (“Plaintiff”) seeking to compel certain discovery from Defendants Indegene, Inc., Indegene Encima, Inc., Indegen Wincere, Incorporated, and Indegene Healthcare, LLC (collectively, “Defendants”). (Dkt. No. 74). Specifically, Plaintiff seeks to compel Defendants to produce the fax logs for three fax broadcasts made by Defendants on August 2, 2019, August 15, 2019, and February 7, 2020 (the “Fax Logs”). Plaintiff also seeks to compel the production of a contract purportedly entered into between Defendants and third-party Data Med Solutions, Defendants oppose the request. (See Dkt. No. 74). The Court considers the application without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rules 37.1(b)(4) and 78.1(b). For the reasons set forth herein, Plaintiff's informal application is GRANTED IN PART and DENIED IN PART. As the parties are familiar with the facts and claims at issue, only a brief background is provided herein. Plaintiff brings this action on behalf of a putative class, alleging Defendants have violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, (“TCPA”) by sending certain fax advertisements. The parties are currently engaged in discovery. Through discovery, Plaintiff seeks the production of the Fax Logs, contending that they are proportional to the needs of the case and relevant to whether Plaintiff's putative class meets the Federal Rule of Civil Procedure 23(a) and (b) standards and ascertainability requirements. (See Dkt. No. 74 at p. 2). Plaintiff further contends that the contract between Defendants and Data Med Solutions “may provide relevant information as to Defendants’ faxing campaign.” (Dkt. No, 74 at p. 4). Defendants counter that the Fax Logs would provide information relating to individuals who cannot fall within the scope of the putative class definition and would permit Plaintiff's counsel's an opportunity to locate a new class representative (contending that named Plaintiff fails to fall within the definition of the putative class). (Dkt. No. 74 at p. 4). Defendants, nevertheless, counter that any production of the Fax Logs, or portions thereof, should be produced subject to a discovery confidentiality order and subject to a limitation that Plaintiff and its counsel cannot use the Fax Logs to solicit new clients or a new representative. (Dkt. No. 74 at p. 4). As to the contract with Data Med Solutions, Defendants challenge the relevancy of such agreement. (Dkt. No. 74 at p. 5). Generally, parties may seek discovery regarding any nonprivileged matter that is relevant to a party's claim or defense and that is “proportional to the needs of the case, considering ... the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The information need not be admissible at the trial. Id. The party seeking the discovery bears the burden of showing that the information sought is relevant. Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000). Whether information is relevant “depends on the facts of each case, and the determination of relevance is within the discretion of the Court.” Carchietta v. Russo, No. 11-7587, 2014 WL 1789459, at *3 (D.N.J. May 6, 2014). *2 The Federal Rules of Civil Procedure provide that “the court must limit the ... extent of discovery otherwise allowed ... if it determines that ... the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive[.]” Fed. R. Civ. P. 26(b)(2)(C)(i). “While the scope of discovery is broad, it is not unlimited ... and should not serve as a fishing expedition.” Burgess v. Galloway, No. 20-6744, 2021 WL 2661290, at *2 (D.N.J. Jan. 28, 2021) (citation and internal quotation marks omitted). Importantly, discovery is not limitless and may be circumscribed by the Court within the Court's discretion. See Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Ultimately, the resolution of the instant dispute lies within the Court's sound discretion. See Forrest v. Corzine, 757 F. Supp. 2d 473, 477 (D.N.J. 2010) (“Magistrate Judges are given wide discretion to manage cases and to limit discovery in appropriate circumstances.”). Here, as to the Fax Logs, Plaintiff cites to a series of case law, supporting the relevancy of the Fax Logs to the question of ascertainability in certifying a class such as that sought in this matter. (See Dkt. No. 74 at pp. 2-3 (citing cases)). Notably, the Third Circuit has found that a district court lacked an adequate record on which to determine whether a putative TCPA class met the ascertainability requirement when the court did not compel the production of a database that included potential class members as well as those non-class members who did not receive the fax on the date at issue. See City Select Auto Sales Inc. v. BMW Bank of Am. Inc., 867 F.3d 434, 442-43 (3d Cir. 2017). Given the breadth of permissible discovery under Rule 26, the Court finds that Plaintiff sufficiently establishes that the Fax Logs are both relevant and proportional to the needs of this case, The Court, however, recognizes Defendants’ concerns regarding the confidential nature of the information that may be contained on those Fax Logs and concerns over potential solicitation of new class representatives. Accordingly, the Court will grant Plaintiff's request to compel the production of the Fax Logs, subject to the entry of a discovery confidentiality order and stipulation by counsel that the information will not be used by Plaintiff or its counsel to solicit clients or a new representative plaintiff in this matter. As to Plaintiff's request to compel the production of the Data Med Solutions contract, the Court finds that Plaintiff has not met its burden of showing the relevancy of this document. The mere speculation that it may provide relevant information about Defendants’ faxing campaign and quotation of Federal Rule of Civil Procedure 26 are insufficient to meet its burden on an application to compel. See Caver, 192 F.R.D. at 159. Accordingly, the Court denies Plaintiff's request to compel the production of the Data Med Solutions contract. Accordingly, having considered the submissions of the parties, and for the reasons set forth above, IT IS, THEREFORE, on this 22d day of February 2023, ORDERED that Plaintiff's application to compel Defendants to produce the Fax Logs (Dkt. No. 74) is hereby GRANTED subject to the entry of a discovery confidentiality order and stipulation regarding the limitation of use of such Fax Logs; and it is further ORDERED that, by no later than March 10, 2023, the parties shall file: (1) a proposed Discovery Confidentiality Order; and (2) a stipulation that limits the use of the information contained in the Fax Logs such that Plaintiff and/or its counsel shall not use that information to solicit clients or a new representative plaintiff in this matter; and it is further ORDERED that Plaintiff's application to compel Defendants to produce an agreement between Defendants and Data Med Solutions is hereby DENIED. *3 SO ORDERED.