In two recent cases, California and Florida district courts reached divergent views on whether to permit wide-ranging class discovery prior to a certification decision. Interestingly, both decisions involved Ocwen companies. In Weiner, a RICO class action, the class plaintiffs sought discovery of defendants’ “internal communications relating to their decision to spin-off” a subsidiary because those communications ostensibly bore on “classwide intent to fraudulently conceal marked-up default-related costs from consumers.” The court rightly recognized that this discovery really went to the merits, not class issues. It accordingly denied the plaintiffs’ motion to compel.
In Fegadel, however, a day later, a Florida court granted in large part a motion to compel wide-ranging discovery in a Florida Consumer Collection Practices Act claim. The plaintiff alleged that a related Ocwen company improperly sought to collect debt from consumers who had received a discharge in bankruptcy over a two-year period. The court ordered discovery of the defendant’s practices and procedures regarding avoiding violations of the Florida statute. It denied discovery, however, of its practices and procedures regarding avoiding violations of related federal debt collection statutes. It further denied discovery of the identity of those individuals who filed bankruptcy, but granted discovery as to the identity of those individuals who received a bankruptcy discharge, named the defendant as a creditor, but received communications from the defendant. It further denied discovery of damages as not relevant to class certification issues.
The differences between the two orders may well relate to differing attitudes toward a wide-ranging RICO claim and a more narrowly tailored consumer debt claim. In addition, in Weiner, the court had bifurcated discovery into class and merits phases. There is no indication in Fegadel of any similar bifurcation.
Weiner v. Ocwen Financial Corp., 2016 WL 6897250 (E.D. Cal. Nov. 22, 2016); Fegadel v. Ocwen Loan Servicing, LLC, 2016 WL 6893971 (M.D. Fla. Nov. 23, 2016).
