Opinion
CIVIL ACTION NO. 02-2695, SECTION "A" (3)
August 26, 2003
Keith Kornman, for the plaintiff
James K. Carroll and Richard Fraser III, for the defendants
MINUTE ENTRY
The matter of plaintiff's Motion to Compel Discovery Responses came on for oral hearing before the undersigned Magistrate Judge in Chambers. Participating were:
For reasons set forth hereinbelow, the plaintiff's motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On May 14, 2002, BB Advisory Services, LLC ("BB") originally filed suit against the defendants in Civil District Court and the matter was removed to this Court on August 30, 2002. Plaintiff sued the three defendants, Bombadier Aerospace, Bombadier Business Jet and Jet Solutions (hereinafter referred to collectively as "Flexjet") for breach of contract, for improperly suspending BB's ability to fly, breach of the January 17, 2000 Non-refundable Deposit Agreement, alleged improper or excessive use of BB's aircraft, inter alia. Flexjet in the business of offering customers fractional share ownership of aircraft in its fleet. Generally, the clients of Flexjet purchase a share in an airplane and Flexjet manages the aircraft on the customer's behalf, including scheduling, ground transportation, catering, and flight crews.
BB's individual claims arise out of a series of agreements entered into in March, 1997, including a Purchase Agreement, a Management Agreement, a Master Interchange Agreement, a Joint Ownership Agreements, a Sideletter Agreement, an Addendum to the Purchase Agreement, and an Addendum to the Management Agreement, collectively referred to throughout these proceedings as "the Learjet 31A Agreements." These agreements provided for BB's purchase of a 12.5% share of a Learjet 31 A.
Additionally at issue is a Non-refundable Deposit Agreement, pursuant to which BB paid $100,000.00 towards the purchase of a share in a Lear 45. The Deposit Agreement provided that, "pursuant to the purchase and sale of the Lear 45 Share, Buyer and Seller shall execute a Purchase Agreement, Management Agreement, Joint Ownership Agreement, and Master Interchange Agreement in substantially similar form as the like-titled agreements executed by Buyer and Seller for the purchase of the existing share. . . ."
Plaintiff alleges that because Flexjet was unwilling to comply with the requirements of the aforesaid Deposit Agreement, BB demanded the return of its $100,000.00 deposit and filed suit when Flexjet refused to return its deposit or to continue negotiations. On November 13, 2002, BB amended its complaint to seek specific performance of the Deposit Agreement. On April 2, Flexjet filed a counterclaim alleging, among other things, that B B refused to either finalize and execute agreements for the Learjet 45 or repurchase an interest in their existing Learjet 31A aircraft and is liable to Flexjet for damages for "loss of management fees, loss of opportunities to market the Learjet 31A and realized management fees and the like with respect to the Learjet 45," and "[o]ther operational and maintenance costs that Flexjet has had to absorb with respect to the Learjet 31A Aircraft." See Flexjet's Counterclaim for Damages.
The particular original claim that propelled the amendment of the captioned proceeding to state a class action under Federal Rule of Civil Procedure 23 was BB's claim that Flexjet "improperly" rounded its flight times or Owner Operation Hours. The salient class action allegations of the putative class representative set forth in the Second Amended Class Action Complaint are set forth below, to wit:
BB brings this action as representative of a class that has been subjected to improper upward rounding of flight times by Flexjet, in violation of Flexjet's contractual policy on the rounding of flight times.
The Class consists of all persons or entities who entered into one of Flexjet's programs for the purchase of a fractional share ownership of an airplane and who were subject to the upward rounding of flight times in breach of Flexjet's contractual policy for the rounding of flight times.
Flexjet's policy for calculating hours flown is to measure time in terms of "Owner Operation Hours." These hours "shall be measured and accounted for in one-tenth of one hour increments," thereby translating into six minute increments for payment and accounting for use of the aircraft.
Upon information and belief, Flexjet has impermissibly rounded the flight time of several hundred clients in violation of their contractual provisions.
a. Flexjet has stated that it "has always rounded owner operation hours, however, Flexjet did change the manner in which it rounded flight times in July 1999." (citation omitted)
b. Flexjet has stated that "in July 1999, at the time Flexjet changed the manner in which it rounded flight times, there were 354 owners" participating in the Flexjet Program, (citation omitted).
Upon information and belief, Flexjet has charged several hundred clients for extra fees due to the upward rounding of flight times.
Upon information and belief, the claims of the individual class members each exceeds $75,000.00, exclusive of costs and interests.
* * *
BB avers that a class action is appropriate in this case because, upon information and belief, there are questions of law or fact common to the class, including but not limited to;
a. Whether BB impermissibly rounded flight times;
b. Whether BB impermissibly charged fees for flight times not actually flown;
c. Whether BB impermissibly deducted flight hours from its customers due to its upward rounding of flight times; and
d. Whether Flexjet breached its written policy on rounding flight times.
Second Amended Complaint — Class Action [Rec. Doc. No. 80]. It is important to note that this case has already been through one complete cycle of merits discovery prior to continuance of the first trial setting on July 7, 2003. See Minute Entry dated June 2, 2003 (resetting the trial for May 17, 2004 [Rec. Doc. No. 87]. Currently, the focus of the proceedings is pre-class certification discovery.
CLASS CERTIFICATION STANDARDS
Rule 23 of the Federal Rules of Civil Procedure governs class actions. The rule requires that the court determine, "as soon as practicable" after an action brought on behalf of a class is commenced, whether the suit meets the class certification requirements such that the case should proceed as a class. A class action is not maintainable as such simply because the lawsuit designates the cause as a class action. It is not disputed that the class action proposed in this case must satisfy the requirements for certification outlined in Rule 23(a) and (b).
See Fed.R.Civ.P. 23(c)(1); Castano v. American Tobacco Company, 84 F.3d 734, 741 (5th Cir. 1996).
In ruling upon a motion for class certification, courts treat the substantive allegations contained in the plaintiff's' complaint as true. The issue is not whether the plaintiff's have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met. The court may look past the pleadings to the record and any other completed discovery to make a determination as to the class certification issue.
Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2153 (1974); see also Burrell v. Crown Central Petroleum, Inc., 197 F.R.D. 284, 286 (E. D. Tex. 2000); and In re Lease Oil Antitrust Litigation, 186 F.R.D. 403, 418 (S.D. Tex. 1999).
See General Telephone Company v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2371-72 (1982); Spence v. Glock, 227 F.3d 308, 310 (5th Cir. 2000); and Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).
At the outset, Rule 23(a) sets forth four threshold requirements which must be met in every type of class action case. Rule 23(a) requires that a class: (1) be so numerous that joinder of all members is impractical [numerosity]; (2) have common questions of fact or law [commonality]; (3) have representative parties with typical claims or defenses [typicality]; and (4) have representative parties that will fairly and adequately protect the interests of the proposed class [adequacy]. The first two requirements focus on the characteristics of the class; the second two focus instead on the desired characteristics of the class representatives. The rule is designed "to assure that courts will identify the common interests of class members and evaluate the named plaintiff's' and counsel's ability to fairly and adequately protect class interests." If the Rule 23(a) criteria are satisfied, the plaintiff's must show that class treatment is appropriate under one of three alternative class categories prescribed by Rule 23(b). plaintiff's claim monetary damages seek certification pursuant to Rule 23(b)(3), which sets out two requirements — predominance and superiority. See Fed.R.Civ.P. 23(b)(3). Subsection (b) provides that:
See James v. City of Dallas, 254 F.3d 551, 569 (5th Cir. 2001).
See Fed.R.Civ.P. 23(a); Spence v. Clock. 227 F.3d at 310 n. 4; James v. City of Dallas, 254 F.3d at 569.
In re Lease Oil Antitrust Litigation, 186 F.R.D. at 419 (citing In re General Motors Corp. Pick-Up Truck Fuel Tank Litigation, 55 F.3d 768, 799 (3rd Cir. 1995)).
See Fed.R.Civ.P. 23(b); James v. City of Dallas, 254 F.3d at 568.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
. . .
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of the members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Fed.R.Civ.P. 23(b)(3) (emphasis supplied).
To pass muster under Rule 23(b)(3), plaintiff's must sufficiently demonstrate both predominance of common class issues and that the class action mechanism is the superior method of adjudicating the case. Together, subsection (a) and (b) requirements insure that a proposed class has "sufficient unity so that absent class members can fairly be bound by decisions of the class representatives."
See Mullen v. Treasure Chest Casino. LLC, 186 F.3d 620, 623-24 (5th Cir. 1999) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)).
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 2246 (1997).
In Allison v. Citgo Petroleum, the Fifth Circuit explained the different categories of class actions detailed in Rule 23(b), as follows:
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).
Under Rule 23, the different categories of class actions, with their different requirements, represent a balance struck in each case between the need and efficiency of a class action and the interests of class members to pursue their claims separately or not at all. The different types of class actions are categorized according to the nature or effect of the relief being sought. The (b)(1) class action encompasses cases in which the defendant is obliged to treat class members alike or where class members are making claims against a fund insufficient to satisfy all claims. The (b)(2) class action, on the other hand, was intended to focus on cases where broad, class-wide injunctive or declaratory relief is necessary. Finally, the (b)(3) class action was intended to dispose of all other cases in which a class action would be "convenient and desirable," including those involving large-scale, complex litigation for money damages. Limiting the different categories of class actions to specific kinds of relief clearly reflects a concern for how the interests of the class member will vary, depending on the nature of the class injury alleged and the nature of the relief sought.
Id. at 411-12.
A class seeking substantial money damages will more likely consist of members with divergent interests. Recognizing that monetary damages are more often related directly to the disparate merits of individual claims, the drafters of the rule saw fit to provide prospective (b)(3) class members the absolute right to notice, to opt out and not be bound by membership in a class.
Id. at 412.
Id.
Rule 23(b)(3) applies to cases for which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated without sacrificing procedural fairness or bringing about other undesirable results. Whether common issues predominate and the class action is superior requires some understanding of the relevant claims, defenses, facts, and substantive law presented in the case.
See Amchem, 521 U.S. at 615, 117 S.Ct. at 2246.
See Berger v. Compaq Computer Corporation, 257 F.3d 475, 483 (5th Cir. 2001)("`[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Castano, 84 F.3d at 744.).
In the case at bar the plaintiff's bear the burden of proving that: (1) the proposed class satisfies all of the elements of Rule 23(a); and (2) the proposed class also satisfies both requirements of Rule 23(b)(3). Within the confines of Rule 23, a district court maintains substantial discretion in determining whether to certify a class.
See Spence v. Glock, 227 F.3d at 310; Berger, 257 F.3d at 479-80; Mullen, 186 F.3d at 623; and Castano, 84 F.3d at 743-44 (holding that a court cannot rely on assurances of counsel that any problem with predominance or superiority can be overcome).
See Smith v. Texaco, 263 F.3d 394, 403 (5th Cir. 2001) (recognizing that the certification inquiry is essentially fact based and thus the Fifth Circuit defers to the district court's inherent power to manage and control pending litigation, reviewing certification decisions only for abuse of discretion).
MOTION TO COMPEL DISCOVERY
BB complains that, for purposes of preparing for depositions on class certification issues and upcoming motion for class certification, it is necessary that it have responses to all of the discovery it has propounded. It submits that it is entitled to some merits discovery. Plaintiff submits that it is willing to enter a protective order to protect sensitive financial information which Flexjet believes in good faith is confidential. As to Flexjet's assertions that BB's requests are overly broad and unduly burdensome, BB submits that in some instances burdensome discovery bearing on class-certification issues is in fact necessary and this is one of those instances. BB submits that Flexjet is in possession of all of the documents and information and it is the only party in a position to come forward with the evidence necessary to prove class certification issues and its requests are relevant to the issues inherent in class certification, including numerosity, typicality and adequacy, i.e., whether B B will fairly and adequately represent the interests of the class. BB further contends that full responses to the discovery will also demonstrate that Flexjet improperly rounded flight times and overcharged fees on a routine ongoing basis for many years.For its part, Flexjet highlights the facts that the action is in the pre-class certification phase and the merits are not properly the focus at this stage of the proceedings. Defendants argue that BB seeks an order requiring the production of Flexjet's records for all customers since the inception of the program, including all contracts, billing invoices, flight logs and other records pertaining to each and every customer of Flexjet, together with identifying substantially all of Flexjet's operational personnel. Flexjet submits for the most part that the information requested is completely irrelevant to the issues of class certification. Defendants decry specific areas of inquiry at this pre-class certification stage, i.e., sensitive/confidential contracts, flight logs, computer entry logs, customer invoices, expenses and fees billed to all customers, all of which are highly sensitive documents.
Flexjet notes that mainstays of numerosity, commonality, typicality, and adequacy are more than adequately addressed by prior discovery; it previously answered discovery acknowledging that flight times for customers were all rounded in the same manner as for BB. Moreover, form contracts were employed and used to effectuate Flexjet's fractional share program involving customer access to its fleet of aircraft. Flexjet submits that the discovery sought is not reasonably related to proof of pre-class certification issues. Instead, Flexjet contends that the focus is individual merits discovery and the purpose is "to further harrass Flexjet as part of BB's ongoing contract negotiations." See Opposition to Motion to Compel at p. 5.
Indeed, information and documentation regarding purchase, registration and certification of all of Flexjet's aircraft, including removal of aircraft from service, training and demonstration hours, FAA Service and Maintenance records, recall bulletins and FAA violations, and all pilot contracts and payrolls, names of all pilots, background of changes in customer contracts, estimates of training hours and details regarding the refurbishing of aircraft can only go to prove the merits of BB's claims individually. While overly broad, even insofar as the requests' applicability to BB's individual claims of breach, the discovery is most apparently drafted with the purpose of eliciting proof that "Flexjet failed to maintain BB's plane with no `squawks' as required by the 1997 Addendum to the Purchase Agreement," failed to "arrange for BB's plane to be `inspected, maintained, serviced, repaired, overhauled, and tested by duly competent personnel, in accordance with approved maintenance and preventive repair programs . . .' as required by the 1997 Management Agreement," and that "Flexjet was unable to appraise the Learjet 31A owned by BB because Flexjet had removed from service and sold BB's aircraft." See Second Amended Complaint, at ¶¶ 110-111 [Rec. Doc. No. 80]. The merits of the plaintiff's individual claims is not properly the focus of pre-class certification discovery.
The Court now addresses the individual items of the putative class action representative's Interrogatories and Requests for Productions and the defendants' Objections serially hereinbelow, to wit:
Requests for Production Nos. 1 and 6 : All documents regarding any expenses and fees billed to Flexjet's customers and all documentation regarding the percentage of ownership for each owner, the length of time each owner has been in the program, and whether the owner still participates in the Flexjet program. BB submits these requests are relevant to defining the parameters of the class and to show that BB's claims are typical of the class. Defendant submits that this all goes to the merits. The Motion to Compel is DENIED in this regard. The request is not reasonably related to proof of pre-class certification issues. Flexjet has previously provided relevant customer information bearing on the Rule 23(a) and (b) issues, except insofar as the Court orders further supplementation hereinbelow.
Request for Production No, 2 : Seeks production of all information regarding the purchase, registration, and certification of all of Flexjet's aircraft, including, but not limited to the tail numbers, date of purchase, date the plane was put in service, and the purchase price. BB submits that this is necessary for determining the size and make-up of Flexjet's fleet of aircraft, which will impact the damages incurred by BB's customers and will also help prove BB's claim that Flexjet improperly removed its plane for service and improperly valued the worth of BB's aircraft. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification or class action issues.
Request for Production No. 3 : Seeks production of documents regarding the removal of all Flexjet's aircraft from service, including but not limited to, the reason for removal from the plane, total flight hours at time of removal, total flight hours logged on the plane at removal, the amount for which the plane was sold by Flexjet and the amount which Flexjet reimbursed its customers for the sale of the plane. BB submits that this information is relevant to its allegation that its own aircraft was improperly removed from service and that Flexjet logged more hours than necessary on BB's aircraft. By comparison, BB submits that it may prove the merits of its own claim of breach. It asserts that by learning of the value at which Flexjet sells its aircraft, BB may determine an accurate fair market value for its own aircraft. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification or class action issues.
Request for Production No. 4 : Seeks production of all documentation regarding pilot payrolls and all contracts for pilots ever used or hired by Flexjet. This is submitted to determine how pilots were paid and if the pilots were contractually obligated to record time in a certain manner. BB submits it has the right to know if pilots were paid based on the amount of flight time actually flown and give it a possible list of witnesses. It further submits that Flexjet is the only source of this information. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification issues.
Request for Production No. 5: All flight logs, computer entry logs, and customer invoices created by Flexjet regarding measuring and billing of flight time of all Flexjet customers past and present. B B submits that it has narrowed this request by attaching examples of three types of reports it seeks at Exhibit "H", "I", and "J", and yet, Flexjet continues to object and refuses to respond. The Motion to Compel is DENIED in this regard. The request is not reasonably related to proof of pre-class certification issues.
Requests for Production Nos. 7 and 8 : Seeks production of Service and Maintenance records for all of BB's aircraft, including recall bulletins and records of any FAA violations for which Flexjet has been cited. These questions are posed in order to determine if its aircraft were removed as a result of FAA violations or because of mechanical and service problems. BB notes that the aircraft were removed from service some time in the year 2000 and replaced with other aircraft without explanation. It submits it is entitled to responses to determine whether it flew a safe aircraft and why its plane was removed from service. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification or class action issues.
Request for Production No. 9 : Seeks all contracts governing the share of aircraft owned by each of Flexjet's customers, past and present. BB submits it needs this information to show that all of Flexjet's customers signed the same or similar contracts as BB and that all of these customers were subjected to Flexjet's rounding of flight time policy in violation of the contractual language. It has already been established as a result of prior discovery and it is not disputed that Flexjet's customers executed form contracts. In this pre-certification phase, the production of these documents is unnecessary and not reasonably related to the matter at hand, i.e., the motion for certification of the putative class. The Motion to Compel is DENIED in this regard.
Requests for Production Nos. 10 and 12 : Seek all information regarding the measuring of flight time that Flexjet has disseminated to its customers, including, but not limited to, any promotionals or ads as well as all business plans, business, projections, board meeting minutes, correspondence, internal memos, or other similar documents regarding the measurement of flight times, rate, and fee structures, or the changing of Flexjet's policy of measuring flight times. BB submits that this is relevant to its claim that Flexjet breached its contractual obligations and goes to the issue of typicality and that these customers were told the same thing about rounding of flight times. Plaintiff further submits that it is entitled to determine why Flexjet changed its policy regarding rounding flight times in 1999 and why it changed its contractual language regarding rounding flight times after the instigation of this litigation. The Motion to Compel is GRANTED IN PART, but only insofar as plaintiff seeks production of promotionals, advertisements or correspondence disseminated to customers the measurement of flight time/customer hours. Flexjet shall produce these specific items. If there are no such documentary materials, Flexjet shall amend its supplemental response accordingly. The Court finds that the balance of the information requested is unnecessary and not reasonably related to pre-class certification.
Request for Production No. 14 : seeks production of all information regarding the number of training and demonstration hours flown on all of Flexjet's aircraft since the time that BB entered the Flexjet program. BB avers that this information is necessary to prove that its aircraft were used for a disproportionate number of training and demonstration hours as compared to the other aircraft in Flexjet's fleet in violation of the 1997 Sideletter Agreement entered into by the parties. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification or class action issues.
Request for Production No. 18 : Seeks production of all documentation and proof showing that Flexjet refurbished BB's aircraft (both the original and exchange aircraft) as required by the Sideletter agreement. The Motion to Compel is DENIED in this regard, considering that the request bears no relation to pre-class certification or class action issues.
Interrogatory No. 1 : Seeks all information regarding complaints or lawsuits concerning rounding flight times and breach of contract. BB submits that this goes to typicality and common questions of law or fact. The Motion to Compel is GRANTED IN PART, but only insofar as the plaintiff seeks information regarding written/documented complaints or lawsuits involving claims by Flexjet program customers complaining of improperly rounded flight times/customer hours or breach of contract on account of improperly rounded flights times/customer hours. This may well have some bearing on determining the issues of adequacy, predominance, superiority and/or the lack thereof in this case.
Interrogatory No. 2 : Seeks all information regarding the identity of all customers who have ever participated in Flexjet's fractional share ownership program. The Motion to Compel is DENIED in this regard, considering that the identity of customers is not properly the subject of pre-class certification discovery.
Interrogatory No. 10 : Seeks a description of Flexjet policy addressing complaints concerning the rounding of flight times, and the solutions, compromises, agreements, or bargains that Flexjet made in response to such complaints, including, but not limited to, refunds, additional flight hours, decreased fees, or the waiver of fees. Flexjet responded to this interrogatory, stating that it responds to complaints on an ad hoc basis ( i.e., apparently meaning that it has no uniform policy). BB seeks a supplemental response detailing how each and every complaint was dealt with. The Motion to Compel is GRANTED IN PART. Flexjet supplement its response: (1) to state that it has no uniform policy, if that is indeed the case; and (2) to describe how the only three customer complaints in this vein were resolved. This goes to the issue of predominance and superiority and/or the lack thereof. In all other respects, the interrogatory request is not relevant to pre-class certification issues.
Interrogatory No. 11 : Seeks statistical information regarding the total time for all Flexjet customers that has been rounded and the average amount of time that has been rounded for each customer. BB submits this is highly relevant to typicality and to whether there are common questions of law or fact. The Motion to Compel is GRANTED IN PART. Flexjet shall provide BB the following statistical information: (1) the figure approximating the total time for all Flexjet customers that has been rounded; and (2) the figure approximating the average amount of time that has been rounded for each customer.
Interrogatory No. 12 : BB seeks identification of the exact regulation and rule that requires flight time be kept in the manner in which Flexjet measures customer time. The Motion to Compel is GRANTED and Flexjet shall supplement its response to state the exact regulation and/or rule that requires flight time be kept in the manner in which Flexjet measures customer's flight time, if this has not already been accomplished. Flexjet's extant response specifically states: "The FAA requires the relevant method of rounding to record flight hours. . . ." However, in the event that it is determined that there is no FAA requirement addressing the relevant method of rounding, the defendant shall supplement its response in that regard.
Interrogatory No. 15 : BB seeks the identification of the names of all pilots ever hired or used by Flexjet to fly any aircraft belonging to its fractional share program. Flexjet objected on the basis of relevance. BB seeks to interview these witnesses regarding the initial recordation of flight times. The Motion to Compel is DENIED in this regard, considering that this goes to the merits.
Interrogatory No. 17 : BB seeks a statement of when the phrase "with rounding as necessary and customary in the aviation industry" was added to Flexjet's standard Management Agreement, who added the phrase, and why the phrase was added. Flexjet's response was "see answer to Interrogatory No. 12. (Andrew?)." BB's position is that the response is incomplete and it appears to be so. BB further notes that the focus of Interrogatory No. 12 is the FAA regulations and cannot be reasonably related to the form Management Agreement which is the subject of Interrogatory No. 17, without some further explanation. The Court notes that Flexjet undertook a response to this question and, thus, it should provide a cogent and intelligible response. The Motion to Compel is GRANTED in this regard. More particularly, Flexjet shall supplement its response to answer the question directly without reference to its responses to other interrogatories, and so that its answer fully intelligible. If the Flexjet does not know and cannot find out who added the phrase at issue, then it should supplement its response to definitively so state. If some FAA rule or regulation prompted the addition, it shall definitively cite the particular rule or regulation.
Interrogatory No. 18 : BB seeks an explanation of how Flexjet estimated that not more than 10 training hours were conducted on the N126FX aircraft per year owned by BB. Flexjet previously provided information on this, but did not break the usage time down year by year. In Flexjet's Third Supplemental Set of Responses to Interrogatory No. 15 previously propounded, Flexjet estimated that no more than 10 hours were conducted per year, but provided no basis for this explanation. The Court here finds that the "how" of Interrogatory No. 18 is irrelevant to the pre-class certification issues or class certification issues at all. Instead, the focus is training hours conducted on BB's aircraft. The Motion to Compel is DENIED in this regard.
Interrogatory No. 20 : Seeks information as to the type of aircraft owned by each customer, percentage of ownership of each customer, and how long each customer has been in Flexjet's program. The Motion to Compel is DENIED in this regard. Information as to the type of aircraft owned by each customer, percentage of ownership and how long each customer had or has been in Flexjet's program is not relevant to pre-class certification discovery. The Court notes that the putative class is not limited by the particular type of aircraft owned, the percentage ownership of the customer, or the length of time in the program. The only factors delimiting the putative class appear to be that they are or were at one time (1) Flexjet contract customers, (2) participating in the Flexjet fractional share program, and (3) damaged by Flexjet's alleged practice of improperly rounded flight times/customer hours.
Interrogatory No. 21 : BB seeks a description in detail of any actions taken to refurbish BB's aircraft as required by the 1997 Sideletter Agreement. Flexjet directs BB's attention to Maintenance Records previously produced. BB submits that the answer is not responsive because Maintenance Records have nothing to do with refurbishment once within 60 days following the date of the Management Agreement, as required by the subject Sideletter Agreement. The evidence narrative sought goes to proof of the merits of BB's claim ( i.e., whether or not BB's plane was fairly valued and breach of contract.) plaintiff's interrogatory request has nothing to do with either pre-class certification or class action issues. The Motion to Compel is DENIED in this regard.
Accordingly,
IT IS ORDERED that the plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART, all as more specifically set forth hereinabove. Any supplemental responses ordered hereinabove shall be provided to the plaintiff by facsimile transmission as soon as possible, but in no event later than Tuesday, August 26, 2003, close of business.