In Diaz-Lebel v. TD Bank USA, N.A., 2018 WL 4145912, at *3 (D.Minn., 2018), Magistrate Judge Thorson found that a request for wrong number data was disproportionate to the litigation, but agreed to throw the Plaintiffs a bone.
The sheer burden and proportionality concerns prevent this Court from ordering that all documents responsive to this request be produced. Plaintiff’s alternative proposals did not end the inquiry, because Plaintiff wanted Target to collect and process a significant number of documents now, reserving the right to demand all of the documents later. As further discussed below, this was no compromise. At the hearing, this Court discussed a number of compromise positions, which Defendants’ counsel agreed to consider, potentially using a subset of records from 2016 from both Buckets as an appropriate sampling. During the course of the hearing, Defendants represented that numerosity would not be challenged in class certification proceedings. Plaintiff, however, insisted that she should still have access to all documents after class certification. In other words, a compromise now would not alter Plaintiff’s demand for potentially all of the documents later. Moreover, Plaintiff did not suggest ways that a limited follow-up request for some documents might be approached if any sampling compromise proved problematic. As is clear by the Scheduling Order, this Court has not bifurcated discovery pre-certification or post-certification. All fact discovery will close on August 30, 2018. Therefore, the dispute regarding the Request at issue must be decided now.  In the end, Plaintiff framed this as an “all or nothing” motion. The discovery demanded in the request at issue is burdensome and not proportional to the needs of the case. See Nece v. Quicken Loans, Inc., Case No. 8:16-cv-2605-T-23CPT, 2018 WL 1072052, at *1 (M.D. Fla. Feb. 27, 2018) (denying discovery where plaintiff sought class-wide data “[r]ather than request a reasonable sample”). This Court could easily justify denying Plaintiff’s “all” and give her “nothing.” Plaintiff’s counsel asserted at the hearing that he has been diligently pursuing this discovery all throughout this case and engaging in multiple meet and confers. But Plaintiff did not file a motion seeking Court intervention after the early meet and confer discussions failed. Plaintiff has not committed to a proposal that would require less than “all” the documents.  Since May 2, 2018, the pretrial clock ticked away and Plaintiff did not express any urgency when filing this motion at the end of June with a hearing set for late August just before the close of discovery.  Despite the appropriateness of the “nothing” option, this Court, in the interests of justice, will order “something” and will require Target to produce all of the Bucket One records and at least 1,000 corresponding account records in 2016 from Bucket Two. See City Select Auto Sales, Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 439 (3d Cir. 2017) (“because the database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists based, in whole or in part, on that database.”). Target must collect and preserve, but not produce, all account records in 2016 in the event it is necessary to cross-reference additional 2016 records, via a showing of sufficient good cause. While this Court understands that this is a burden to Target, the balance of the burden with the benefit warrants this approach. Target’s confidentiality concerns regarding mass production of hundreds of thousands or even tens of thousands of account records is also addressed. The parties must work to confirm protective order protocol for the production no later than September 4, 2018. Defendants must produce the files to Plaintiff by September 14, 2018. With that, discovery is closed.