NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KENNETH A. BARTON, et al., : Civil Action No.: 10-3657 (PGS)

:

Plaintiffs, :

:

v. : MEMORANDUM OPINION 

: AND ORDER

RCI, LLC, : 

:

Defendant. :

___________________________________ :

ARPERT, U.S.M.J.

I. INTRODUCTION

On July 20, 2010, Plaintiffs filed a Complaint against RCI, LLC (“Defendant” or “RCI”)

alleging “violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. (“NJCFA”)”,

“breach of [the] implied covenant of good faith and fair dealing”, “breach of contract” and

“violation of the Plain Language Act”, and seeking declaratory and injunctive relief in addition

to compensatory and punitive damages related to Defendant’s “Points Program”. See Pl.’s

Compl., dkt. entry no. 1 at 1-33. Plaintiffs maintain that Defendant’s core business is “vacation

exchanges” that “offers its members both week-for-week vacation exchange opportunities and

customized vacation experiences through its...exchange networks”. Id. at 3. Plaintiffs claim that

“[Defendant] boasts of a large affiliate network of resorts world-wide” which includes “the Blue

Bay family of resorts (“Blue Bay”)” and that “[Defendant]...provide[s]...services and support in

helping resorts develop business plans to attract new owners and to sell more vacation ownership

by marketing the exchange programs...[that] [Defendant] offers”. Id. at 3-4. Thus, “[i]nstead of

exchanging one fixed week for another fixed week”, members of Defendant’s “Points Program”

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can “choose where to stay, how many days to stay, rent a car during the stay, and obtain airline

tickets to get to the destination of choice...all by using points”. Id.

In sum, Plaintiffs maintain that “[t]hrough marketing presentations, printed materials, and

written contracts that were uniform in all material respects, [Defendant] sold memberships into

[its] Points Program to each Plaintiff and putative class member in conjunction with each

putative class member’s purchase of an interval of vacation time at a Blue Bay resort” and that

“[a]t all relevant times, Blue Bay acted for [Defendant] with actual authority and apparent

authority”. Id. at 4-5. “[Defendant’s] vacation exchange pitch, communicated by on-site

affiliate staff and supported by RCI-generated point-of-sale printed materials, was...that...[a]

person could purchase as many one night stays at a Blue Bay resort as desired for a low, one

time cost and use the collective point value of those one night stays to customize future vacations

through [Defendant’s] Points Program, including accessing [Defendant’s] Points Partners

Inventory (airline tickets, rental cars, and the like)”. Id. at 5. Plaintiffs claim that “[Defendant’s]

printed materials highlighted the ability to exchange points for worldwide destinations and listed

international and domestic airlines...as readily accessible means for traveling to the desired

destinations through exchanging points” and, further, that “[t]he ability to exchange points for

international and domestic airfare was a particularly attractive aspect of the pitch because the

upfront and total cost of acquiring plenty of points to acquire airfare over many years was less

than the out-of-pocket costs one would have to pay on the open market for such airline tickets”. 

Id. at 5-6. Collectively, the nine named Plaintiffs claim to have purchased 65,700,934 RCI

points. Id. at 15.

At first, Defendant’s “Points Program generally lived up to the expectations set by

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[Defendant’s] sales pitch” as “Plaintiffs were able to exchange points for otherwise expensive

international and domestic air travel and design their desired vacations by using RCI Points

Partner Inventory”. Id. at 15-16. However, in June, July and August 2008, “[Defendant] began

denying Plaintiffs’ point exchanges for Partner Inventory”. Id. “In September 2008,

[Defendant] mailed to each Points Program member who joined through...Blue Bay...prior to

February 29, 2008 a letter notifying them that [Defendant] was unilaterally imposing a 60,000

annual point limit cap on Points Partner Inventory redemptions” in order to “preserve the

integrity of the RCI network”. Id. at 17. Plaintiffs maintain that “[t]he cap equates to essentially

one domestic – one way – airline flight”, that it is “grossly insufficient to ever obtain the type of

international and domestic airfare [Defendant] promoted in its written materials and by its

affiliated sales associates”, and that it was actually imposed “to economically benefit

[Defendant] to the detriment of those Points Program members who joined through Blue Bay”. 

Id. Plaintiffs contend that if the “printed materials and the sales pitch...indicated a 60,000 annual

cap on redemptions for Points Inventory, a reasonable person either would not have joined the

RCI Points Program...or would not have purchased as many points as were often purchased”. Id. 

Based in part on the assertion that “[n]othing in the [t]erms and [c]onditions of RCI[’s] Points

Network Membership...states, implies or reflects the possibility of a cap on the amount of points

redeemed in any given year”, Plaintiffs maintain that “[Defendant’s] unilateral restructuring of

the bargain did and does harm...[them] and putative class members”. Id. at 20-21.

This matter now comes before the Court on two (2) discovery motions. Specifically,

Plaintiffs filed a motion to compel Defendant to provide supplemental answers to certain

Interrogatories and to produce supplemental documents and information in response to certain

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Requests for Production (“RFP”) [dkt. entry no. 49]. Defendant has opposed Plaintiffs’ motion.

See dkt. entry no. 55. Separately, Defendant filed a motion to compel Plaintiffs to produce

certain documents that they have withheld [dkt. entry no. 50]. Plaintiffs have opposed

Defendant’s motion. See dkt. entry no. 56. For the reasons stated on the record and herein, the

Parties’ Motions are GRANTED, in part, and DENIED, in part, as set forth below.

II. LEGAL STANDARDS

(A) Discovery

Pursuant to FED. R. CIV. P. 26(b)(1), “parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense” and “the court may order

discovery of any matter relevant to the subject matter involved in the action”, although “relevant

information need not be admissible at trial if the discovery appears reasonably calculated to lead

to the discovery of admissible evidence”. See also Pearson v. Miller, 211 F.3d 57, 65 (3d Cir.

2000). Importantly, pursuant to FED. R. CIV. P. 26(b)(2)(C), “the court must limit the frequency

or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) 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;

(ii) the party seeking discovery has had ample opportunity to

obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs

its likely benefit, considering the needs of the case, the

amount in controversy, the parties’ resources, the

importance of the issues at stake in the action, and the

importance of the discovery in resolving the issues.

Further, “the Court has a responsibility to protect privacy and confidentiality interests” and “has

authority to fashion a set of limitations that allow as much relevant material to be discovered as

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possible...while preventing unnecessary intrusions into legitimate interests that may be harmed

by the discovery of material sought”. Schmulovich v. 1161 Rt. 9 LLC, 2007 U.S. Dist. LEXIS

59705, at *3-4 (D.N.J. 2007); see also Pearson, 211 F.3d at 65; FED. R. CIV. P. 26(c).

The precise boundaries of the Rule 26 relevance standard depend upon the context of

each particular action, and the determination of relevance is within the discretion of the District

Court. See Barnes Found. v. Twp. of Lower Merion, 1996 WL 653114, at *1 (E.D. Pa. 1996). 

Certainly, “[c]ourts have construed this rule liberally, creating a broad vista for discovery”. 

Takacs v. Union County, 2009 WL 3048471, at *1 (D.N.J. 2009)(citing Tele-Radio Sys. Ltd. v.

DeForest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981)). “Review of all relevant evidence

provides each party with a fair opportunity to present an effective case at trial”. Jones, 238

F.R.D. at 163; see also Caver, 192 F.R.D. at 159; Nestle Foods Corp. v. Aetna Cas. & Sur. Co.,

135 F.R.D. 101, 104 (D.N.J. 1990). “Mutual knowledge of all the relevant facts gathered by

both parties is essential to proper litigation...[and] either party may compel the other to disgorge

whatever facts he has in his possession”. Hickman v. Taylor, 329 U.S. 495, 507 (1947). Indeed,

“all parties will benefit from broad discovery, as the court, when ruling on class certification,

‘will have the necessary data before it to determine if the requirements of FED. R. CIV. P. 23(a)

are met’”. Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 192 (D.N.J. 2010) (citing report of

special master). 

“Whether certain documents are relevant is viewed in light of the allegations of the

complaint, not as to evidentiary admissibility”. Hickman, 329 U.S. at 507; see also Scouler v.

Craig, 116 F.R.D. 494, 496 (D.N.J. 1987). “The party seeking discovery has the burden of

showing that the information sought is relevant to the subject matter of the action and may lead

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to admissible evidence”. Caver, 192 F.R.D. at 159; see also Nestle Foods, 135 F.R.D. at 105. 

Oppositely, “the party resisting discovery has the burden of clarifying and explaining its

objections to provide support therefor”. Tele-Radio, 92 F.R.D. at 375; see also Gulf Oil Corp. v.

Schlesinger, 465 F. Supp. 913, 916-17 (E.D. Pa. 1979); Robinson v. Magovern, 83 F.R.D. 79, 85

(E.D. Pa. 1979); Nestle Foods, 135 F.R.D. at 104-105. More specifically, “[t]he party resisting

production of discovery bears the burden of establishing lack of relevancy or undue burden”,

“must demonstrate to the Court that the requested documents either do not come within the broad

scope of relevance as defined in FED. R. CIV. P. 26(b)(1) or else that they are of such marginal

relevance that the potential harm occasioned by discovery would outweigh the ordinary

presumption in favor of broad disclosure”, and “must do more than argue that to compile and

produce [documents] would be burdensome”. Guiterrez v. Johnson & Johnson, Inc., 2002 U.S.

Dist. LEXIS 15418, at *22-23 (D.N.J. 2002); see also Flora v. Hamilton, 81 F.R.D. 576

(M.D.N.C 1978); Burke v. New York City Police Dep’t, 115 F.R.D. 220, 224 (S.D.N.Y. 1987).

“[A] discovery request may be denied if, after assessing the needs of the case, the amount

in controversy, the parties’ resources, the importance of the issues at stake in the action, and the

importance of the discovery in resolving the issues, the District Court finds that there exists a

likelihood that the resulting benefits would be outweighed by the burden or expenses imposed as

a consequence of the proposed discovery”. Takacs, 2009 WL 3048471, at *1; see also Bayer AG

v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). “The purpose of this rule of proportionality

is to guard against redundant or disproportionate discovery by giving the court authority to

reduce the amount of discovery that may be directed to matters that are otherwise proper subjects

of inquiry”. Takacs, 2009 WL 3048471, at *1(citing Bowers v. National Collegiate Athletic

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Assoc., 2008 WL 1757929, at *4 (D.N.J. 2008)); see also Leksi, Inc. v. Federal Ins. Co., 129

F.R.D. 99, 105 (D.N.J. 1989); Public Service Group, Inc. v. Philadelphia Elec. Co., 130 F.R.D.

543, 551 (D.N.J. 1990). “Requiring a responding party to perform extensive research or to

compile substantial amounts of data and information does not automatically constitute undue

burden” and “[i]mposing such a burden is particularly proper where...the information is crucial

to the ultimate determination of a crucial issue and where the location of the documents is best

known by the responding party”. Capacchione v. Charlotte-Mecklenburg Sch., 182 F.R.D. 486,

491 (W.D.N.C. 1998). 

(B) Interrogatories to Parties

FED. R. CIV. P. 33 provides:

(a) In General.

. . . 

(2) Scope. An interrogatory may relate to any matter that

may be inquired into under Rule 26(b). An interrogatory is

not objectionable merely because it asks for an opinion or

contention that relates to fact or the application of law to

fact, but the court may order that the interrogatory need not

be answered until designated discovery is complete, or

until a pretrial conference or some other time.

. . . 

(b) Answers and Objections.

. . . 

(3) Answering Each Interrogatory. Each interrogatory

must, to the extent it is not objected to, be answered

separately and fully in writing under oath.

(4) Objections. The grounds for objecting to an

interrogatory must be stated with specificity. Any ground

not stated in a timely objection is waived unless the court,

for good cause, excuses the failure.

“The more progressive approach to interrogatories dealing with legal matters is to view them in

the factual context within which they arise”. Microtron Corp. v. Minnesota Mining & Mfg. Co.,

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269 F. Supp. 22, 25 (D.N.J. 1967); see also Singer Manufacturing Co. v. Brother International

Co., 191 F. Supp. 322 (S.D.N.Y. 1960). “If the answer might serve some legitimate purpose,

either in leading to evidence or in narrowing the issues, and to require it would not unduly

burden or prejudice the interrogated party, the court should require answer”. Id.; see also 4

MOORE’S FEDERAL PRACTICE, 2d Ed. 2534; Gagen v. Northam Warren Corp., 15 F.R.D. 44

(S.D.N.Y. 1953).

The Court notes that “all grounds for objections to interrogatories must be stated with

specificity and...any ground not so stated in a timely objection is waived unless excused by the

Court for good cause”. Hall v. Sullivan, 231 F.R.D. 468, 473 (D. Md. 2005). Although “[t]here

is no similar provision in Rule 34, ...[i]f one looks at the commentary to Rule 34...it is clear that

the procedures under Rule 34 were intended to be governed by the same procedures applied

under Rule 33”. Id. 

(C) Requests for Production of Documents

Pursuant to FED. R. CIV. P. 34,

(a) In General. A party may serve on any other party a request

within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its

representative to inspect, copy, test, or sample the

following items in the responding party’s possession,

custody, or control:

(A) any designated documents or electronically

stored information ... or

(B) any designated tangible things; ...

(b) Procedure.

. . . 

(2) Responses and Objections 

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. . . 

(B) Responding to Each Item. For each item or

category, the response must either state that

inspection and related activities will be permitted as

requested or state an objection to the request,

including the reasons.

(C) Objections. An objection to part of a request

must specify the part and permit inspection of the

rest.

(D) Responding to a Request for Production of

Electronically Stored Information. The response

may state an objection to a requested form for

producing electronically stored information. If the

responding party objects to a requested form – or if

no form was specified in the request – the party

must state the form or forms it intends to use.

(E) Producing the Documents or Electronically

Stored Information. Unless otherwise stipulated or

ordered by the court, these procedures apply to

producing documents or electronically stored

information:

(i) A party must produce documents as they

are kept in the usual course of business or

must organize and label them to correspond

to the categories in the request;

(ii) If a request does not specify a form for

producing electronically stored information,

a party must produce it in a form or forms in

which it is ordinarily maintained or in a

reasonably usable form or forms; and

(iii) A party need not produce the same

electronically stored information in more

than one form.

Pursuant to Armor Screen Corp. v. Storm Catcher, Inc., 2009 WL 291160, at *5, 2009 U.S. Dist.

LEXIS 63538, *7-9 (S.D. Fla. 2009), a case cited by both parties, the Court notes 

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the need to balance Rule 34(b)(2)(E)(i)’s legitimate purpose of

alleviating a responding party’s burden of production while

reasonably assuring a requesting party’s ability to obtain

discoverable documents under Rule 26(b)(1). Rule 34 is generally

designed to facilitate discovery of relevant information by

preventing attempts to hide a needle in a haystack by mingling

responsive documents with large numbers of nonresponsive

documents. A producing party fails to meet its Rule 34 obligations

by producing a mass of undifferentiated documents for the

responding party to inspect. While Rule 34 does not obligate a

producing party to per se organize and label usable documents for

the requesting party’s convenience, a party exercising Rule 34's

option to produce records as they are kept in the usual course of

business should organize the documents in such a manner that the

requesting party may obtain, with reasonable effort, the documents

responsive to their requests. ...The standard this Court will use in

determining what is required will be whether the production allows

the requesting party to reasonably determine what documents are

responsive to its requests. If it does, the production complies with

Rule 34(b)(2)(E)(I). If it does not, then the production does not

comply.

See also Williams v. Taser Int’l, Inc., 2006 WL 1835437, at *7 (N.D. Ga. 2006).

(D) Possession, Custody or Control and/or Agency in Rule 34 Context

“Rule 34(a) provides that a party may serve a request for production of documents that

are ‘in the possession, custody or control of the party upon whom the request is served’”. 

Camden Iron & Metal, Inc. v. Marubeni America Corp., 138 F.R.D. 438, 441 (D.N.J. 1991); see

also FED. R. CIV. P. 34. “In the context of FED. R. CIV. P. 34(a), so long as the party has the

legal right or ability to obtain the documents from another source upon demand, that party is

deemed to have control”. Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir.

2004). “If the producing party has the legal right or the practical ability to obtain the documents,

then it is deemed to have ‘control’...even if the documents are actually in the possession of a

non-party”. Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19, 22 (D. Conn. 2008); see also

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In re Flag Telecomm Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y. 2006); Rosie D.

v. Romney, 256 F. Supp. 2d 115, 119 (D. Mass. 2003). 

“An agency relationship may be established by: (1) express authority; (2) implied

authority...to do all that is proper, usual and necessary for the authority actually granted; (3)

apparent authority, as where the principal holds one out as agent by words or conduct; and (4)

agency by estoppel”. Id. at 161. “It is well settled that apparent authority (1) results from a

manifestation by a person that another is his agent and (2) exists only to the extent that it is

reasonable for the third person dealing with the agent to believe that the agent is authorized”. 

Id.; see also Taylor v. Peoples Natural Gas Co., 49 F.3d 982, 989 (3d Cir. 1995); RESTATEMENT

(SECOND) OF AGENCY § 8, Comment A & C (1958). “There need not be an agreement between

parties specifying an agency relationship; rather, the law will look at their conduct and not to

their intent or their words as between themselves but to their factual relation”. Sears Mortgage

Corp. v. Rose, 134 N.J. 326, 337-38 (N.J. 1993). “Moreover, direct control of principal over

agent is not absolutely necessary; a court must examine the totality of the circumstances to

determine whether an agency relationship existed even though the principal did not have direct

control over the agent”. Id. at 338.

“[A] party seeking production of documents bears the burden of establishing the

opposing party’s control over those documents,” where “[c]ontrol is defined as the legal right,

authority or ability to obtain documents upon demand”. Camden Iron, 138 F.R.D. at 441; see

also United States v. International Union of Petroleum & Industrial Workers, 870 F.2d 1450,

1452 (9th Cir. 1989); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The Court notes

that “federal courts construe ‘control’ very broadly under Rule 34” and “have held that a

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litigating parent corporation has control over documents in the physical possession of its

subsidiary corporation where the subsidiary is wholly owned or controlled by the parent”. Id.;

see also Scott v. Arex, Inc., 124 F.R.D. 39, 41 (D. Conn. 1989); Gerling Int’l Ins. Co. v.

Commissioner, 839 F.2d 131, 140 (3d Cir. 1988). “Conversely, where the litigating corporation

is the subsidiary and the parent possesses the records, courts have found control to exist on the

following alternate grounds:

(1) the alter ego doctrine which warranted ‘piercing the corporate

veil’;

(2) the subsidiary was an agent of the parent in the transaction

giving rise to the lawsuit;

(3) the relationship is such that the agent-subsidiary can secure

documents of the principal-parent to meet its own business needs

and documents helpful for use in litigation;

(4) there is access to documents when the need arises in the

ordinary course of business; and

(5) subsidiary was marketer and servicer of parent’s product

(aircraft) in the United States.

Id. at 441-42; see also Gerling, 839 F.2d at 140-141. “Hence, in parent/subsidiary situations, the

determination of control turns upon whether the intracorporate relationship establishes some

legal right, authority or ability to obtain the requested documents on demand” and “[e]vidence

considered by the courts includes the degree of ownership and control exercised by the parent

over the subsidiary, a showing that the two entities operated as one, demonstrated access to

documents in the ordinary course of business, and an agency relationship”. Id. at 442; see also

Gerling, 839 F.2d at 140-141.

“Moving past the alter ego argument, the inquiry becomes whether control can be

established on any of the other grounds for litigating subsidiary/parent situations as outlined in

the Gerling decision”. Id. at 443. The Court notes that “[t]he most applicable cases are those

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holding that a company’s ability to demand and have access to documents in the normal course

of business gives rise to the presumption that such documents are in the litigating corporation’s

control”. Id.; see also Cooper Industries, Inc. v. British Aerospace, 102 F.R.D. 918, 919-20

(S.D.N.Y. 1984). “One factor courts have used in making that determination is whether the

agent-principal relationship is connected to the issue being litigated”. Hitachi, Ltd. v. AmTRAN

Technology Co. Ltd., 2006 WL 2038248, at *2 (N.D. Cal. 2006); see also 8A Charles Alan

Wright, Arthur R. Miller, Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2210 (2d

ed. 1987). In fact, a “third party’s financial interest in...litigation might further require its

cooperation in the discovery process”. Id.; see also Golden Trade, S.r.L. v. Lee Apparel Co., 143

F.R.D. 514, 525 (S.D.N.Y. 1992).

(E) Class Certification and the NJCFA

“Class certification is proper only if the trial court is satisfied, after a rigorous analysis,

that the prerequisites of Rule 23 are met”. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d

305, 309 (3d Cir. 2008). As such, “[a] class certification decision requires a thorough

examination of the factual and legal allegations”. Id.; see also Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001). “The trial court, well-positioned to

decide which facts and legal arguments are most important to each Rule 23 requirement,

possesses broad discretion to control proceedings and frame issues for consideration under Rule

23”. Id. at 310. However, “proper discretion does not soften the rule...[that] a class may not be

certified without a finding that each Rule 23 requirement is met.” Id.; see also Newton, 259 F.3d

at 162.

The Court notes that “[t]he following principles guide a district court’s class certification

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analysis”. Id. at 316. “First, the requirements set out in Rule 23 are not mere pleading rules”

and “[t]he court may delve beyond the pleadings to determine whether the requirements for class

certification are satisfied”. Id. “A party’s assurance to the court that it intends or plans to meet

the requirements is insufficient” and “[f]actual determinations necessary to make Rule 23

findings must be made by a preponderance of the evidence”. Id. at 318-20. The trial court must

“consider carefully all relevant evidence and make a definitive determination that the

requirements of Rule 23 have been met before certifying a class”. Id. at 230. 

Further, “[a]n overlap between a class certification requirement and the merits of a claim

is no reason to decline to resolve relevant disputes when necessary to determine whether a class

certification requirement is met” and “[b]ecause the decision whether to certify a class requires a

thorough examination of the factual and legal allegations..., the court’s rigorous analysis may

include a preliminary inquiry into the merits” such that “the court may consider the substantive

elements of the plaintiffs’ case in order to envision the form that a trial on those issues would

take”. Id. at 316-18; see also Newton, 259 F.3d at 166-69. Indeed, “a district court errs as a

matter of law when it fails to resolve a genuine legal or factual dispute relevant to determining

the requirements”. Id. at 320. 

With respect to the NJCFA, the Court notes that in order to state a NJCFA claim, “a

plaintiff must allege...(1) unlawful conduct[,] (2) an ascertainable loss[,] and (3) a causal

relationship between the defendants’ unlawful conduct and the plaintiffs’ ascertainable loss”. 

International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., 192

N.J. 372, 389 (N.J. 2007); see also Indian Brand Farms, Inc. v. Novartis Crop Prot., Inc., 617

F.3d 207, 219 (3d Cir. 2010). With respect to the ascertainable loss prong, the Court notes that

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“[i]n cases involving breach of contract or misrepresentation, either out-of-pocket loss or a

demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the

stage for establishing the measure of damages”. Thiedemann v. Mercedes-Benz USA, LLC, 183

N.J. 234, 248 (N.J. 2005). “At the class certification stage, plaintiffs are not required to prove

damages by calculating specific damages figures for each member of the class” but, instead,

“they need only show that a ‘viable method’ is available to prove damages on a class-wide

basis”. In re Neurontin Antitrust Litig., 2011 WL 286118, at *9 (D.N.J. 2011); see also In re

Vitamins Antitrust Litig., 209 F.R.D. 251, 268 (D.D.C. 2002). The Court also notes that

“evidence of [a] plaintiff’s conduct relevant to the causation issue cannot be ignored without

comment in a predominance analysis” because “the Supreme Court of New Jersey has held that

individual issues regarding [a] plaintiff’s behavior may, in certain cases, defeat predominance in

a NJCFA class action...despite the uniformity of a defendant’s misrepresentations or omissions”.

Nafar v. Hollywood Tanning Sys., 339 Fed. Appx. 216, 222-23 (3d Cir. 2009).

III. PLAINTIFFS’ MOTION

(A) Marketing Materials and Related Correspondence [RFP Nos. 11, 19, 20, 22,

34]

Plaintiffs allege that Defendant violated the NJCFA by omitting and misrepresenting

material information about its “Points Program”. See Pl.’s Br., dkt. entry no. 49-1 at 6-7. As

such, pursuant to Indian Brand Farms, Inc. v. Novartis Crop Protection Inc., 617 F.3d 207, 219

(3d Cir. 2010), Plaintiffs maintain that they must prove that Defendant (1) engaged in unlawful

conduct, (2) that Plaintiffs suffered an ascertainable loss, and (3) that there is a causal connection

between Defendant’s unlawful conduct and Plaintiffs’ ascertainable loss. Id. Pursuant to

Varacallo v. Mass. Mutual Life Ins. Co., 332 N.J. Super. 31, 49 (N.J. Super. Ct. App. Div. 2000)

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and Marcus v. BMW of North Am., 2010 WL 4853308, at *11-12 (D.N.J. 2010)), Plaintiffs

maintain that, for purposes of class certification, they must demonstrate that Defendant’s

misrepresentations and omissions were sufficiently uniform such that liability may be

adjudicated with common proof. Id. at 6-7. Plaintiffs argue that the marketing materials (RFP

No. 19) and related correspondence with Blue Bay regarding use of those marketing materials

and the sale of Points Program memberships (RFP Nos. 11, 20, 22, and 34) that they requested

are highly relevant to an evaluation of the suitability of class treatment of their NJCFA claim. 

Id. at 7. More specifically, if Defendant used the same marketing materials throughout the

relevant period, Plaintiffs maintain that class treatment may be appropriate; oppositely, if

Defendant used a variety of marketing materials throughout the relevant period, class treatment

may not be appropriate. Id.

In opposition, Defendant contends that Plaintiffs’ argument with respect to these RFPs

demonstrates a fundamental problem with the proposed class. See Def.’s Opp’n Br., dkt. entry

no. 55 at 4. That is to say, Blue Bay – not RCI – sold vacation nights to each of the

approximately 4,400 members at four (4) different resorts over a period of more than six (6)

years. Id. Defendant has advised Plaintiffs that any marketing materials related to the Points

Exchange Program that Defendant provided to Blue Bay have been produced to the extent they

are in Defendant’s possession, custody, or control. Id. Defendant contends that it made (and

continues to make) diligent inquiries for documents maintained by RCI in the United States, as

well as documents maintained by its corporate affiliate in Mexico, and has produced more than

6,000 pages of marketing materials. Id.

1. RFP Nos. 11, 20, 22, 34

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Plaintiffs maintain that in response to its RFP Nos. 11, 20, 22, and 34, requesting

communications between “[Defendant] and Blue Bay concerning training for and sales of Points

memberships, and/or the purpose and use of [Defendant’] marketing materials”, Defendant has

only produced one (1) document and one (1) DVD. See Pl.’s Br. at 8-9. Defendant failed to

produce any “letters discussing how particular [marketing and/or training] materials...[were] to

be used”, any “[P]ower [P]oint presentations about marketing and sales of the Points Program”,

or any “memos discussing sales presentations at Blue Bay”. Id. at 9. Further, despite

Defendant’s answer to Interrogatory No. 11, “indicating that Blue Bay consistently purchased

materials...including $2,132 for a luxury market symposium in 2007”, Defendant has not

produced any “materials relating to this symposium or transmittals enclosing purchased point of

sale materials”. Id. Nonetheless, Plaintiffs argue, “[t]here can be no doubt that

communications...[occurred] between [Defendant] and Blue Bay...[related to] sales and

marketing”. Id. By way of example, Plaintiffs note, Defendant “amended its contract with Blue

Bay to create an additional fee...[in order] to offset the possible excessive use of points partners

by putative class members” in October 2003. Id. Plaintiffs believe that Defendant was

concerned because Blue Bay’s sales team “was presenting the Points Program...[as a way to]

‘use some of your room nights to go back to your club and...the rest...to purchase flight tickets’”. 

Id. As a result, Defendant wanted to minimize the fiscal impact of having to purchase airfare for

its members and sought to impose an offsetting fee. Id. Plaintiffs argue that Defendant “came to

know about [Blue Bay’s] sales approach in some manner” and, although it is “possible that

nothing about the sales approach discussed in [the] May 1, 2008 Memo ever materialized in

written form, Plaintiffs find it unlikely that Defendant’s knowledge of the content of the sales

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presentation was gained solely through verbal means”. Id. Plaintiffs maintain that any “such

written communications would be relevant to Court’s analysis of whether Plaintiffs’ [NJ]CFA

claim is suitable for class treatment because they could indicate uniformity in the approach to

sales...from which the Court could infer uniformity in the alleged misrepresentations and

omissions”, thereby “making class certification proper”. Id. at 9-10.

Plaintiffs contend that Defendant’s objections to RFP Nos. 11, 20, 22, and 34, as being

beyond the permissible scope of class certification discovery, are without merit. Id. at 10. 

Although Defendant claims that “producing correspondence between it and Blue Bay...and

communications concerning the purpose and use of [Defendant’s] marketing materials is overly

burdensome”, Plaintiffs note that Defendant has never justified this assertion. Id. Citing Nestle

Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990) and Tele-Radio

Systems Ltd. v. De Forest Electronics, 92 F.R.D. 371, 375 (D.N.J. 1981), Plaintiffs assert that

Defendant has failed to demonstrate “how [the] requested information is maintained, a

description of the activities which would be necessary to retrieve it, the resources necessary to

compile it, the full-time equivalent person hours implicated, or any other concrete information to

substantiate its burden”. Id. Further, citing ACLU v. Gonzales, 237 F.R.D. 120, 128 (E.D. Pa.

2006), Plaintiffs maintain that even if these RFPs were vague and ambiguous – a point which

Plaintiffs do not concede – “so long as the...[RFPs] are not so vague as to ‘defy

comprehension’...[Defendant] must respond to them...[because] objections based on vagueness

and ambiguity will not stand”. Id. at 11. Ultimately, Plaintiffs assert that based on the Parties’

meet and confer efforts, “[Defendant] understands...exactly what information Plaintiffs seek”. 

Id.

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In opposition, Defendant objects to RFP No. 11 on grounds that it exceeds the scope of

permissible class certification discovery, is overly broad/unduly burdensome, and is neither

relevant nor reasonably calculated to lead to discovery of admissible evidence. See Def.’s Opp’n

Br. at 5. Defendant notes that it agreed to make its correspondence with resorts operating under

the name Blue Bay concerning the named Plaintiffs available for inspection and copying. Id. 

However, Defendant maintains that Plaintiffs have failed to articulate why they need or are

entitled to “all correspondence that may have been exchanged with Blue Bay...for purposes of

class certification”. Id. Defendant argues that “such a request, without any limitations

whatsoever, would be overly broad and unduly burdensome at any stage of litigation”. Id. 

Further, Defendant contends that even if “communications between [Defendant] and Blue Bay

about sales and marketing occurred, such documents have no bearing on what, if any, marketing

documents Blue Bay actually shared with particular purchasers”. Id. During oral argument,

Plaintiffs’ counsel agreed to narrow RFP No. 11 to include only “correspondence relating to

marketing materials” and, in return, Defendant’s counsel agreed to produce all responsive

documents. See Joint Letter from Counsel dated July 11, 2012 at 2. Accordingly, based upon

the agreement and representations of counsel, Plaintiffs’ motion with respect to RFP No. 11 is

DENIED without prejudice. 

With respect to RFP No. 20, Defendant objects on grounds that it exceeds the scope of

permissible class certification discovery, is overly broad/unduly burdensome, is neither relevant

nor reasonably calculated to lead to discovery of admissible evidence, and is vague and

ambiguous insofar as “the terms ‘Marketing Materials’, ‘Materials’, and ‘benefits’ are undefined

and susceptible to various interpretations”. See Def.’s Opp’n Br. at 6. Defendant notes that it

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produced its “Points Procedures Manual” in response to this RFP and RFP No. 34. Id. 

With respect to RFP No. 22, Defendant objects on grounds that it exceeds the scope of

permissible class certification discovery and is vague and ambiguous insofar as “the term

‘exemplar’ in the context of ‘RCI’s training and/or instruction materials’ is undefined and

susceptible to various interpretations...because the terms ‘Blue Bay Employees’, ‘sales agents’,

‘materials’, and ‘training sessions’ are undefined and susceptible to various interpretations”. Id.

at 7. Defendant notes that it agreed “to produce training materials relating to the Points

Exchange Program that were provided to Blue Bay during the relevant period of time” in an

effort to resolve the dispute concerning this request. Id.

With respect to RFP No. 34, Defendant objects on grounds that it exceeds the scope of

permissible class certification discovery, is neither relevant nor reasonably calculated to lead to

discovery of admissible evidence, and is vague and ambiguous “insofar as the term ‘marketing

materials’ is undefined and susceptible to various interpretations”. Id. Defendant notes that it

produced its Points Procedure Manual and refers Plaintiffs to same in response to this RFP. Id. 

Further, Defendant claims that RFP No. 34 is duplicative of Plaintiffs’ RFP No. 20. Id.

The Court, having considered the substance of Plaintiffs’ RFP Nos. 20, 22 and 34,

concludes that the materials sought are relevant to issues pertaining to class certification,

including “uniformity.” The Court recognizes that although these Requests are, in some

instances, duplicative, they are not so vague or ambiguous as to be incomprehensible to

Defendant. Accordingly, Plaintiffs’ motion is GRANTED with respect to RFP Nos 20, 22 and

34 and Defendant is directed to produce the materials requested within twenty-one (21) days. 

2. RFP No. 19

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With respect to RFP No. 19, Plaintiffs contend that Defendant “agreed to produce copies

of all marketing materials...as that term is used in [Defendant’s] Affiliate Agreement with Blue

Bay”. See Pl.’s Br. at 7. Although Defendant produced various directories, Plaintiffs contend

this production only included one (1) or two (2) documents that appear to be “appraisal tables”. 

Id. at 7-8. Because these “appraisal tables” are dated 2006 and 2008, Plaintiffs believe “similar

tables should exist” for 2002-2005 and 2007. Id. at 8. In addition, Plaintiffs note that Defendant

produced various “Welcome Kits” but has not produced any exemplars of other point of sales

materials such as posters, brochures, banners, or “Benefits Brochure[s]”. Id. Thus, while

Defendant promotes to its affiliates that “there are ‘many point of sales materials’ available,

hardly any have been produced to Plaintiffs”. Id.

Defendant objects to this RFP on grounds that it exceeds the scope of permissible class

certification discovery, is overly broad/unduly burdensome, is neither relevant nor reasonably

calculated to lead to discovery of admissible evidence, and is vague and ambiguous insofar as

“the term ‘Marketing Materials’ is undefined and susceptible to various interpretations and

insofar as the term ‘exemplar’ in the context of ‘Marketing Materials’ is undefined and

susceptible to various interpretations”. See Def.’s Opp’n Br. at 5. Notwithstanding these

objections, Defendant agreed to make marketing materials (as that term is used in affiliation

agreements and exhibits thereto) available to Plaintiffs for inspection and copying. Id. 

Defendant maintains that it has produced 6,000 pages of documents relating to the Points

Exchange Program, including “appraisal tables” for 2001-2004 and 2006-2008, and continues to

search for additional responsive documents. Id. at 6. However, Defendant has not produced

Spanish versions of Points Rules and benefits brochures for certain years because it does not

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have English versions and because it contends that Spanish versions would not have been

provided to U.S. customers/class members. Id.

During oral argument and in the Joint Letter from Counsel dated July 11, 2012,

Defendant’s counsel represented “that responsive marketing materials within [Defendant’s]

possession have been produced” and that Defendant “will supplement its response in the event

additional responsive documents are found”. See Joint Letter from Counsel dated July 11, 2012

at 2. However, Plaintiffs’ counsel has indicated that to date, Defendant has failed to update its

response to RFP No. 19. Id. Therefore, to the extent Defendant has not updated its response to

RFP No. 19 to indicate that it has currently produced all responsive materials within its

possession, custody or control, this aspect of Plaintiffs’ motion is GRANTED and Defendant is

directed to update its response to this RFP within twenty-one (21) days.

(B) Damages Materials [RFP Nos. 7, 8, 12, 32, 33, 39, 40; Interrogatory Nos. 1, 6,

8]

Initially, Plaintiffs note that pursuant to In re Neurontin Antitrust Litig., 2011 WL 286118

(D.N.J. 2011), part of their “class certification burden includes demonstrating one or more

methodologies exist for proving damages on a class-wide basis”. See Pl.’s Br. at 11. Although

this requirement “is not a strenuous one”, Plaintiffs maintain, “it still must be met” and assert

that “some of the information bearing on [their] expert’s submission is solely within

[Defendant’s] possession”. Id. 

In opposition, Defendant asserts that in addition to “acknowledg[ing] their burden of

demonstrating that a ‘viable method’ is available to prove damages on an class wide basis”,

Plaintiffs have “concede[d] that they cannot meet this burden because their experts lack

sufficient information...[to] determine which, if any, of several methodologies may be

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appropriate”. See Def.’s Opp’n Br. at 8. Ultimately, Defendant maintains that “[n]one of

[P]laintiffs’ requests is relevant...[for purposes of] class certification”. Id.

1. Interrogatory Nos. 1 and 6

With respect to Interrogatory Nos. 1 and 6, Plaintiffs asked Defendant to state “the total

number of nights putative class members purchased and the total equivalent point value of those

nights, and to set forth those totals by year”. See Pl.’s Br. at 11. Plaintiffs maintain that their

“expert could use this information to subtract the total points redeemed prior to imposition of the

cap from the total points purchased to obtain the total number of outstanding points”. Id. at 11-

12. Citing Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (N.J. 2005), Plaintiffs

assert that “[m]ultiplying the outstanding points by the monetary value assigned a point is one

means of measuring the aggregate loss in value sustained by the class” and is, therefore,

“relevant to meeting their class certification burden”. Id. at 12. Plaintiffs note that despite its

failure to originally raise such objections, after counsel engaged in a meet and confer session

Defendant “claimed that the information...[requested] was not within its possession, custody or

control” and, therefore, that it “had no obligation to respond”. Id. at 16. Notwithstanding this

representation, Plaintiffs contend that they “have reason to question [Defendant’s] unverified

assertion” based upon a “May 1, 2008 Memo...[in which] [Defendant] projected a liability of

$3.5 million if the ‘380 million points already in member’s account [sic]’ were ‘all used towards

points partners’...and a potential liability of $9 million if members traded ‘their remaining nights

towards points’”. Id. Plaintiffs argue that “[t]he only way [Defendant] could project liability for

nights not yet exchanged into its system is if it knew how many outstanding nights existed”. Id. 

Further, “[e]ven if [Defendant] does not itself know the total number of nights putative class

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members purchased and the collective equivalent point value of those nights”, Plantiffs argue

that Defendant “still must provide the information because it is in ‘control’ of the information for

purposes of Rule 34”. Id. at 16-17.

Defendant objects to Interrogatory No. 1 on grounds that it exceeds the scope of

permissible class certification discovery, is unduly burdensome, is vague and ambiguous insofar

as “the phrase ‘purchasing nights at a Blue Bay Resort’ and the terms ‘nights

purchased’...and...‘equivalent RCI points’ are undefined and susceptible to various

interpretations”, and insofar as this interrogatory “incorrectly assumes that an individual

becomes a member of the RCI Points program by ‘purchasing nights at a Blue Bay Resort’”. See

Def.’s Opp’n at 8. Notwithstanding these objections, Defendant answered this interrogatory by

referring Plaintiffs to “Participation Agreements and transaction histories of the named

[P]laintiffs” which were previously produced. Id. Defendant also stated that “there are 4,416

RCI Points Members who own or owned” at one or more of several resorts listed “during the

period of 2002 through 2008”. Id. 

Similarly, Defendant objects to Interrogatory No. 6 on grounds that it exceeds the scope

of permissible class certification discovery. Id. at 9. Notwithstanding this objection, Defendant

answered this interrogatory by stating that “consistent with section 4 of the Terms and

Conditions of RCI Points Subscribing Membership, the number of points assigned to a ‘Blue

Bay night’ ranges from 2,340 to 10,500 points per night depending on the particular unit at

issue”. Id. With respect to both Interrogatory Nos. 1 and 6, Defendant claims that it “has

provided the information available” and that “it does not have and therefore cannot provide

information relating to the total number of nights [P]laintiffs may have purchased from Blue

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Bay”. Id. Finally, Defendant notes that “inasmuch as [P]laintiffs purchased their nights from

Blue Bay, ...[P]laintiffs failed to explain why the requested information is not already in their

possession or why they cannot obtain that information directly from Blue Bay”. Id.

Having considered the Plaintiffs’ Interrogatories Nos. 1 and 6 as well as Defendant’s

answers thereto, the Court concludes the information sought is relevant to the issues that

Plaintiffs must address at the class certification stage and, therefore, Plaintiffs’ motion to compel

more specific responses to these interrogatories is GRANTED and Defendants shall provide

such responses within twenty-one (21) days. 

2. Interrogatory No. 8

With respect to Interrogatory No. 8, Plaintiffs asked Defendant to state “whether it had

ever equated one or more points with a monetary value, and if so, to state each monetary value

and to explain the context in which it was utilized”. See Pl.’s Br. at 12. Despite the fact that

Defendant “acknowleged that it has given points the character of currency...by...allowing

members to ‘rent’ points for a fee”, Plaintiffs argue that Defendant “declined to tell Plaintiffs

what exchange ratio it adopted in this rental example and failed to identify any other

circumstance where points and dollars were equated in some fashion”. Id. For example,

Plaintiffs note that “RCI’s Points Procedures Manual advises...[that customers should]

‘[c]onsult...[their] Account Executive to find out the corresponding prices” and, separately,

maintain that Defendant “failed to identify that it permits Blue Bay to purchase ‘bonus points’ to

be used as purchase incentives in the sale of nights and Points Program memberships”. Id. 

Plaintiffs argue that the fact that “there is no static equation of an RCI Point with a specific

dollar amount...makes a thorough response...even more essential”. Id. at 12-13. Citing

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Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486, 491 (W.D.N.C. 1988),

Plaintiffs maintain that “[t]he mere fact that [Defendant] may have to review seven years of

information...is insufficient to establish an undue burden because [Defendant] has

not...demonstrated that the rates it charged putative class members to ‘rent’ points or the amount

it charged Blue Bay to purchase ‘bonus points’ changed so frequently over the course of seven

years that it would be too taxing to compile that information in response to Plaintiffs’

interrogatory”. Id. at 17-18. 

Defendant objects to Interrogatory No. 8 on grounds that it exceeds the scope of

permissible class certification discovery, is unduly burdensome, is vague and ambiguous insofar

as “the term ‘equated’ is undefined and susceptible to various interpretations”. See Def.’s Opp’n

at 9. Notwithstanding these objections, Defendant answered this interrogatory by stating that

“although it permits Members to ‘rent’ RCI Points in accordance with its Terms and Conditions,

there is no static equation of an RCI Point with a specific dollar amount”. Id. Defendant notes

that Plaintiffs are not satisfied with its response and “have demanded every instance in which

[Defendant] has placed a monetary value on an RCI Point...[based on the contention that] such

information must be considered in crafting a damage model”. Id. at 10. However, Defendant

argues that Plaintiffs have failed “to explain why they need such information to craft a

model...and...fail to provide any guidance on what specific information would satisfy their

expert”. Id. Further, Defendant maintains that despite admitting that their expert “will explore

his own evaluation of the monetary value of a point” with or without the additional information

they seek, Plaintiffs “do not explain what their expert might do with...[additional information]”

and concede that same “may be of only tangential assistance to their expert”. Id.

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Having considered the Plaintiffs’ Interrogatory No. 8, as well as Defendant’s answers

thereto, the Court concludes the information sought is relevant to the issues that Plaintiffs must

address at the class certification stage and, therefore, Plaintiffs’ motion to compel more specific

responses to these interrogatories is GRANTED and Defendants shall provide such responses

within twenty-one (21) days.

3. RFP No. 7

With respect to RFP No. 7, Plaintiffs asked Defendant to produce “all documents that

[Defendant] relied upon in its decision to impose an annual 60,000 point limitation [on]

redemptions for Partner Inventory”. See Pl.’s Br. at 15. Defendant objects to this RFP on

grounds that it exceeds the scope of permissible class certification discovery, is neither relevant

nor reasonably calculated to lead to discovery of admissible evidence, seeks documents

protected from disclosure by the attorney-client privilege and/or work product doctrine, and is

vague and ambiguous insofar as “the terms ‘relied’ and ‘interests’ are undefined and susceptible

to various interpretations”. See Def.’s Opp’n at 12-13. Although Defendant “does not dispute

that it imposed a cap or that the cap applied to the putative class”, Defendant maintains that

Plaintiffs have failed to “explain why documents relating to [Defendant’s] decision to impose the

cap, as opposed to the implementation of the cap, will impact any damages methodology”. Id.

4. RFP No. 8

With respect to RFP No. 8, Plaintiffs asked Defendant to produce “all documents that

reflect why [Defendant] decided to impose an annual 60,000 point limit on redemptions for

Partner Inventory”. See Pl.’s Br. at 13. Defendant objects to this RFP for the same reasons set

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forth with respect to RFP No. 7. See Def.’s Opp’n at 12-13. Again, although Defendant “does

not dispute that it imposed a cap or that the cap applied to the putative class”, Defendant

maintains that Plaintiffs have failed to “explain why documents relating to [Defendant’s]

decision to impose the cap, as opposed to the implementation of the cap, will impact any

damages methodology”. Id.

5. RFP Nos. 12 and 32

With respect to RFP Nos. 12 and 32, Plaintiffs asked Defendant to produce “any notes,

emails, memoranda, reports, meeting minutes and the like concerning the decision to impose the

cap”. See Pl.’s Br. at 13. Despite acknowledging that some materials encompassed in these

RFPs may be of only tangential assistance to their expert’s evaluation of the monetary value of a 

point while others may be crucial, Plaintiffs cite Bell v. Lockheed Martin Corp., 270 F.R.D. 186,

191 (D.N.J. 2010), aff’d, 2010 WL 3724271 (D.N.J. 2010) for the proposition that “broader

rather than narrower discovery better serves the parties and ultimately...the Court...in resolving

the class certification decision”. Id. Although Defendant “admits that ‘it has entered into

agreements with third-party vendors concerning the provision of airline tickets to Points

members’”, Plaintiffs note that Defendant “has only produced one such agreement...[in which] it

redacted all of the pricing information related to those travel services”. Id. Plaintiffs maintain

that because this information is relevant to their presentation of damages at the class certification

stage, “it should be produced in full and without redactions”. Id. Further, citing Roesberg v.

Johns-Manville Corp., 85 F.R.D. 292, 300-302 (E.D. Pa. 1980), Plaintiffs contend that they

“used common words in their ordinary meaning”, that “their requests are clear on their

face...and...in the context of this case”, and that “it is difficult to fathom how [they] could have

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used different words that would have been clearer”. Id. at 15-16.

Defendant objects to RFP No. 12 on grounds that it exceeds the scope of permissible

class certification discovery, is neither relevant nor reasonably calculated to lead to discovery of

admissible evidence, seeks documents protected from disclosure by the attorney-client privilege

and/or work product doctrine, and is vague and ambiguous insofar as “the terms ‘internal RCI

notes’, ‘meeting agenda’, ‘documentation’, and ‘annual cap’ are undefined and susceptible to

various interpretations”. See Def.’s Opp’n at 12. Defendant objects to RFP No. 32 on

substantially similar grounds. Id. at 13. Again, although Defendant “does not dispute that it

imposed a cap or that the cap applied to the putative class”, Defendant maintains that Plaintiffs

have failed to “explain why documents relating to [Defendant’s] decision to impose the cap, as

opposed to the implementation of the cap, will impact any damages methodology”. Id.

Notwithstanding these objections, Defendant agreed to “produce documents reflecting [its]

implementation of a 60,000 Points limit on Points Partner transactions”. Id. 

The Court, having considered the substance of Plaintiffs’ RFP Nos. 7, 8, 12 and 32 agrees 

with Defendant that, inasmuch as Defendant does not dispute that the 60,000 point limit was

implemented, the information requested is not relevant to the issues related to class certification.

Accordingly, Plaintiffs’ Motion is DENIED.

6. RFP No. 39

With respect to RFP No. 39, Plaintiffs asked Defendant to produce “all itemized records

of all costs and expenses that [Defendant] attributes to the Blue Bay Resorts’ affiliation with

[Defendant] with respect to its Points Program”. See Pl.’s Br. at 14. Plaintiffs contend that they

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“could use data in [Defendant’s] possession to model...lost cost savings attributable to

[Defendant’s] conduct”. Id. Further, Plaintiffs assert that “it would be helpful for...[their] expert

to know information about the out-of-pocket expenses [Defendant] incurred to purchase airfare

prior to the cap because that amount could be a proxy for the amounts class members must now

shoulder”. Id.

Defendant objects to this RFP on grounds that it exceeds the scope of permissible class

certification discovery, is neither relevant nor reasonably calculated to lead to discovery of

admissible evidence, and is vague and ambiguous insofar as “the phrase ‘the Blue Bay Resorts’

affiliation with [Defendant]’ is undefined and susceptible to various interpretations”. See Def.’s

Opp’n at 10-11. Defendant maintains that “the burden of identifying and collecting each record

that may reflect costs or expenses relating to Blue Bay is obvious” and Plaintiffs “have not

identified any basis for why such information is necessary for class certification”. Id. at 11.

7. RFP No. 40

With respect to RFP No. 40, Plaintiffs asked Defendant to produce “profit and loss

statements to the extent those statements relate to [Defendant’s] affiliation with Blue Bay”. See

Pl.’s Br. at 17. Despite Defendant’s contention that “it did not maintain profit and loss

statements at such a finite level”, Plaintiffs maintain that “[t]his unverified assertion is difficult

to square with a comment made by [Defendant’s] Senior Vice President and Chief Operating

Officer...during efforts to negotiate a change in the memberships Blue Bay was selling and to

impose the 60,000 point cap”, “suggest[ing] that [Defendant’s] affiliation with Blue Bay,

particularly with respect to the Points program, is traceable in its profit and loss statements”. Id. 

Again, Plaintiffs contend that they “could use data in [Defendant’s] possession to model...lost

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cost savings attributable to [Defendant’s] conduct”. Id. Further, Plaintiffs assert that “it would

be helpful for...[their] expert to know information about the out-of-pocket expenses [Defendant]

incurred to purchase airfare prior to the cap because that amount could be a proxy for the

amounts class members must now shoulder”. Id.

Defendant objects to this RFP on grounds that it exceeds the scope of permissible class

certification discovery, is neither relevant nor reasonably calculated to lead to discovery of

admissible evidence, and is vague and ambiguous insofar as “the phrase ‘the Blue Bay Resorts’

affiliation with [Defendant]’ is undefined and susceptible to various interpretations”. See Def.’s

Opp’n at 10-11. Again, Defendant maintains that “the burden of identifying and collecting each

record that may reflect costs or expenses relating to Blue Bay is obvious” and Plaintiffs “have

not identified any basis for why such information is necessary for class certification”. Id. at 11. 

Nonetheless, Defendant has advised Plaintiffs that “it does not maintain profit and loss

statements specific to Blue Bay...and [Defendant] has no obligation to create them”. Id.

8. RFP No. 33

With respect to RFP No. 33, Plaintiffs asked Defendant to produce “one copy of each

agreement concerning airlines miles and/or airline tickets in any way related to the RCI Points

Program”. See Pl.’s Br. at 15. Plaintiffs maintain that “[t]o the extent that [Defendant] paid for

airfare is a factor in Plaintiffs’ expert’s damages analysis, it is essential to know if those

payments were controlled by contractual...rather than market...rates”. Id. Although Defendant

“admits that ‘it has entered into agreements with third-party vendors concerning the provision of

airline tickets to Points members’”, Plaintiffs note that Defendant “has only produced one such

agreement...[in which] it redacted all of the pricing information related to those travel services”. 

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Id. Plaintiffs maintains that because this information is relevant to their presentation of damages

at the class certification stage, “it should be produced in full and without redactions”. Id.

Defendant objects to this RFP on grounds that it exceeds the scope of permissible class

certification discovery, is neither relevant nor reasonably calculated to lead to discovery of

admissible evidence, and is vague and ambiguous insofar as “the terms ‘airline miles’ and

‘airline tickets’ are undefined and susceptible to various interpretations”. See Def.’s Opp’n at

11. Defendant states that it “has entered into agreements with third-party vendors concerning the

provision of airline tickets to Points Members” and agreed to “produce copies of agreements

with Trilegiant Corporation that were in place from October 2005 to June 2011”. Id. Despite

the fact that Defendant “has produced the relevant agreement”, Defendant maintains that

Plaintiffs “complain that confidential pricing information is necessary to devise a damages

methodology” while ignoring “the distinction between a methodology and a calculation” and

failing “to explain why specific pricing information is relevant to [P]laintiffs’ ability to

demonstrate a viable damages methodology”. Id.

The Court, having considered the substance of Plaintiffs’ RFP Nos. and 39, 40 and 33,

concludes that the informatoin and material sought are not relevant to the issues pertaining to

class certification, including Plaintiffs’ damages methodology. Accordingly, Plaintiffs’ Motion is

DENIED.

(C) Blue Bay Materials [Interrogatory Nos. 1 & 6]

Initially, Plaintiffs note that Defendant did not originally object to any request based on

lack of possession, custody or control. See Pl.’s Br. at 18. Rather, with respect to RCI Mexico,

Defendant represented that it was obtaining responsive information and that delays were

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attributable to these efforts in addition to translating documents. Id. However, to date,

Defendant has not produced any document that has been translated as a result of this litigation. 

Id. Pursuant to Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005), Plaintiffs argue that

Defendant’s failure to timely assert an objection based on lack of possession, custody or control

in its initial or supplemental responses to Interrogatory Nos. 1 and 6 constitutes a waiver. Id. 

Even if Defendant has not waived this objection, Plaintiffs cite Camden Iron and Metal, Inc. v.

Marubeni Am. Corp., 138 F.R.D. 438, 441 (D.N.J. 1991) for the proposition that Defendant

should be compelled to obtain the requested information from Blue Bay because Defendant has

control over same. Id. at 19. Noting that they seek very specific information related to the

number of nights that class members bought annually and the aggregate point value of those

nights, Plaintiffs cite Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004),

Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19, 22 (D. Conn. 2008), and Rosie D. v.

Romney, 256 F. Supp. 2d 115, 119 (D. Mass. 2003) and argue that the Affiliate Agreement

between Defendant and Blue Bay grants Defendant a contractual right to obtain precisely this

information and puts Defendant in control of the information for purposes of responding to

discovery requests. Id. 

Plaintiffs also contend that pursuant to Rosie D., 256 F. Supp. 2d at 119, Defendant may

be compelled to obtain the requested information because Blue Bay is Defendant’s agent. Id. at

20. Citing Sears Mort. Corp. v. Rose, 134 N.J. 326, 337 (N.J. 1993), Plaintiffs maintain that the

Court should consider the circumstances related to the relationship between Defendant and Blue

Bay, arguing that an agency relationship exists when one party consents to have another party act

on its behalf with the principal directing and controlling the acts of the agent and that it is the

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conduct of the principal and agent that cements the relationship, not their intent or the words

they might set forth in a contract. Id. Here, Defendant contractually authorized Blue Bay to act

on its behalf in selling Points Program memberships and carefully controlled the manner in

which Blue Bay could sell those memberships. Id. The Affiliation Agreements between

Defendant and Blue Bay require Blue Bay to provide prospective members with specific

materials furnished by Defendant, authorize Blue Bay to sign Participation Agreements on

Defendant’s behalf, and authorize Blue Bay to collect new member enrollment fees on

Defendant’s behalf. Id. Citing Hitachi, Ltd. v. AmTRAN Tech. Co. Ltd., 2006 WL 2038248, at

*2-3 (N.D. Cal. 2006), Plaintiffs contend that Defendant’s Procedures Manual demonstrates how

Defendant authorized Blue Bay to act on its behalf, controlled how it did so, and was deeply

involved in nearly every aspect of Blue Bay’s sales (not just Points Program sales). Id. at 21. 

For example, Plaintiffs note that the Procedures Manual dictates specifics for what Blue Bay

must include in presentations, requires Blue Bay to undertake extensive reporting with respect to

sales, directs that Points Participation Agreements must be completed properly, directs the steps

that Blue Bay must undertake if class members want to purchase additional points, and sets forth

how Blue Bay could acquire bonus points to offer in the sales process. Id. Alternatively, citing

In re Glenz v. Sharp Elec. Corp., 2010 WL 2758729, at *4 (D.N.J. 2010), Plaintiffs request the

opportunity to conduct specific discovery on the issue of control if the Court remains

unpersuaded that Defendant is in possession, custody or control of the requested information. Id.

at 21-22. 

In opposition, Defendant argues that Plaintiffs ignore the fact that the transactions at

issue did not involve Defendant and that Plaintiffs entered into separate “Membership

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Subscription Contracts” directly with Blue Bay. See Def.’s Opp’n Br. at 13. Thus, it is Plaintiffs

– rather than Defendant – who have access to the requested information. Id. Plaintiffs offer no

reason why they cannot obtain the requested information from class members or directly from

Blue Bay. Id. at 14. Notwithstanding these facts, Defendant maintains that Plaintiffs’ position

that it can be compelled to obtain the requested information lacks legal and logical support given

that a party cannot be obligated to produce that which it does not have simply because it fails to

articulate an objection that the requested materials are not in its “possession, custody or control”

pursuant to FED. R. CIV. P. 34. Id. at 13-14. 

Defendant further maintains that the cases cited by Plaintiffs do not support their position

that a court can compel a party to produce documents or information within the possession of a

non-party entity simply because the party has a contractual right to inspect certain records. Id. at

14-15. Specifically, Defendant argues, Mercy Catholic was premised on a finding that the

entities at issue were interchangeable under applicable Medicare and Medicaid rules and

principles of agency whereas here, Plaintiffs cannot establish that Blue Bay was Defendant’s

agent. Id. at 15. Further, Defendant argues, Sedona Corp. was based on a finding that the

defendant had an exclusive right to materials created by its contract partner during or as a result

of the development of the product at issue and had the ability to obtain these materials upon

request whereas here, Defendant is not a party to any contract with Blue Bay. Id. Likewise,

according to Defendant, Rosie D. was based on a finding of a contractual right to control and

obtain the documents at issue whereas here, even RCI Mexico does not have control over the

documents at issue. Id. Rather, the information requested is contained within contracts between

Plaintiffs and Blue Bay and Plaintiffs have failed to explain why they cannot access this

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information or why it is remotely relevant to issues of class certification. Id. 

Finally, Defendant asserts, Plaintiffs cannot establish that Blue Bay is Defendant’s agent

as any determination of agency would require a factual record that does not exist and likely

would be based on the laws of Mexico, rather than New Jersey. Id. Even if the Court were to

conclude that it has a basis to compel Defendant to instruct RCI Mexico to make a contractual

request for information from Blue Bay, Defendant maintains that the Court would have no ability

to compel production of that information because it does not have jurisdiction over Blue Bay or

RCI Mexico. Id. at 15-16

Here, the Court believes Plaintiffs have articulated a sufficient showing to support an

agency relationship between Defendant and Blue Bay. Therefore, having considered the

Plaintiffs’ Interrogatories Nos. 1 and 6 as well as Defendant’s answers thereto, the Court

concludes the information sought is relevant to the issues that Plaintiffs must address at the class

certification stage and, therefore, Plaintiffs’ motion to compel with respect to these

interrogatories is GRANTED and Defendants shall provide such responses within twenty-one

(21) days.

(D) Other Materials [RFP Nos. 5, 29, 30, 31, 37; Interrogatory Nos. 2, 7, 9, 10]

1. RFP No. 29

With respect to RFP No. 29, Plaintiffs contend that Defendant must produce information

related to document retention policies because same may assist Plaintiffs in narrowing and

specifying future discovery requests in addition to assisting in disputes over what information is

in Defendant’s possession, custody or control. See Pl.’s Br. at 25. In opposition, Defendant

maintains that its document retention policies have no bearing on Plaintiffs’ motion for class

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certification and, further, argues that Plaintiffs’ assertion that production of this information may

assist in narrowing and specifying future discovery requests is insufficient. See Def.’s Opp’n Br.

at 17. 

Having reviewed Plaintiffs’ RFP No. 29 and Defendant’s response thereto, and noting

that FED. R. CIV. P. 26(b)(1) has been construed liberally to create a “broad vista for discovery”

(Takacs, 2009 WL 3048471, at *1), the Court finds the information requested in RFP 29 relevant

and reasonably calculated to lead to the discovery of admissible evidence (FED. R. CIV. P.

26(b)(1); see also Pearson, 211 F.3d at 65). For the reasons previously set forth on the record

and above, this aspect of Plaintiffs’ motion is GRANTED and Defendant is directed to produce

its document retention policy within twenty-one (21) days.

2. RFP No. 30

With respect to RFP No. 30, Plaintiffs contend that Defendant must produce a copy of

each “organizational chart reflecting employees of [Defendant] for the years 2006 through

2010”. See Pl.’s Br. at 24. Plaintiffs maintain that this information is relevant and will assist in

their “understanding...[of] which persons...[at] what level...[and] at which entities...[were]

corresponding with one another in the documents [Defendant] has produced” and will aid

Plaintiffs “in identifying who might need to be deposed in connection with Plaintiffs’ motion for

class certification and/or who might have additional discoverable files containing information

pertaining to Plaintiffs’ class certification motion”. Id. Plaintiffs have agreed to limit their

request to organizational charts for RCI Mexico and RCI NA. Id. Despite the fact that Plaintiffs

have “conceded that an organization chart for RCI Mexico is not relevant to class certification”,

to the extent that they exist, Defendant has agreed to provide organizational charts for RCI

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Mexico for the years 2006 through 2010. See Def.’s Opp’n Br. at 16. To date, however,

Defendant represents that “no such charts have been identified”. Id. With respect to RCI NA,

during oral argument Defendant’s counsel acknowledged Plaintiffs’ position and agreed to

engage in a meet and confer session with Plaintiffs’ counsel in order to narrow Plaintiffs’ request

to a departmental focus, and, thereafter, agreed to produce departmentally-focused

organizational charts for the years 2006 through 2008. 

Based upon these representations and as set forth on the record, this aspect of Plaintiffs’

motion was GRANTED and Defendant was directed to produce the organizational charts. 

Subsequently, Plaintiffs’ counsel advised the Court that Defendant has “provided lists of

management and executive leadership employees for the years 2006 through 2008” and

represented that this “resolv[es]” outstanding issues related to RFP No. 30. See Joint Letter from

Counsel dated July 11, 2012 at 1. 

3. RFP Nos. 5, 31, and 37

With respect to RFP Nos. 5, 31, and 37, Plaintiffs contend that Defendant must produce

transaction history data – including contact information for all putative class members, the

effective date of each putative class member’s RCI membership, and the cancellation date for

each putative class member – in native format or an agreed alternative rather than in PDF format

because, pursuant to FED. R. CIV. P. 34(b)(2)(E)(ii) and Ford Motor Co. v. Edgewood Prop. Inc.,

257 F.R.D. 418, 425 (D.N.J. 2009), the PDF format is unusable. See Pl.’s Br. at 22-24; see also

Joint Letter from Counsel dated May 14, 2012 at 2. Although Defendant previously indicated

that it would produce an “electronic spreadsheet”, Plaintiffs contend that PDF format is not a

spreadsheet and causes a substantial burden and expense for Plaintiffs given that it will require

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retyping more than 16,000 lines of data. Id. Plaintiffs argue that Defendant must be compelled

to produce this information in a tab-delimited format such as Excel and that Defendant’s

contention that it did not prepare or maintain the requested information in such a manner in the

ordinary course of its business is legally irrelevant because, pursuant to Ford Motor, 257 F.R.D.

at 425, Aguilar v. Immigration and Customs Enforc. Div. of US Dep’t Homeland Sec., 255

F.R.D. 350 (S.D.N.Y. 2008), and FED. R. CIV. P. 34 (b)(2)(E)(ii), the appropriate inquiry is

whether the production is in a reasonably usable form rather than whether it had taken that form

in the ordinary course of business. Id. In addition, Plaintiffs argue that Defendant should be

required to add a field to its new production – “company”. Id. 

In opposition, Defendant initially stated that “the requested data does not exist in the

ordinary course of business and was created, at [P]laintiffs’ request, as a courtesy to facilitate

discovery”. See Def.’s Opp’n Br. at 16. However, Defendant subsequently agreed to produce a

“spreadsheet reflecting transaction histories in an electronic format upon [P]laintiffs’ agreement

that the production shall not constitute an admission that such information is relevant or a waiver

of any privilege that may relate to [Defendant’s] preparation of the spreadsheet”. Id. at 16; see

also Joint Letter from Counsel dated May 14, 2012 at 2. 

During oral argument, Defendant’s counsel acknowledged Plaintiffs’ position and agreed

to provide the requested data “in a usable format”. In response, Plaintiffs’ counsel agreed to

WITHDRAW this aspect of its motion without prejudice. Plaintiffs’ counsel has indicated that

Defendant has “provided...putative class member data in a usable electronic format” and has

represented that this “resolv[es]” outstanding issues related to RFP Nos. 5, 31, and 37. See Joint

Letter from Counsel dated July 11, 2012 at 1, 3. Accordingly, based on these representations of

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counsel, this aspect of Plaintiffs’ motion is deemed MOOT.

4. Interrogatory Nos. 2 and 7

With respect to Interrogatory Nos. 2 and 7, Plaintiffs maintain that, in both instances,

Defendant refused to provide summary data about putative class members’ transactions beyond

2008, the year Defendant imposed the annual cap. See Pl.’s Br. at 26. Plaintiffs argue that what,

if anything, putative class members did with their points after the cap was imposed remains a

relevant inquiry. Id. Specifically, Plaintiffs contend that this information is relevant to their

“expert’s damages analysis to the extent he needs to factor in any value received for points after

the cap (such as using points for a traditional timeshare exchange)”. Id. In opposition,

Defendant simply argues that its answers are sufficient and that Plaintiffs have “failed to offer

any explanation as to why additional information...is relevant to class certification”. See Def.’s

Opp’n Br. at 17. 

Having reviewed Plaintiffs’ Interrogatory Nos. 2 and 7 and Defendant’s answers thereto,

and noting that FED. R. CIV. P. 26(b)(1) has been construed liberally to create a “broad vista for

discovery” (Takacs, 2009 WL 3048471, at *1), the Court finds the information requested in

Interrogatory Nos. 2 and 7 is relevant and/or reasonably calculated to lead to the discovery of

admissible evidence (FED. R. CIV. P. 26(b)(1); see also Pearson, 211 F.3d at 65), and finds

Defendant’s answers insufficient. Accordingly, this aspect of Plaintiffs’ motion was

GRANTED. Defendant’s counsel has indicated that “data for 2002 through 2008...has [already]

been provided” and “has agreed to provide data for the years 2009 and 2010”. See Joint Letter

from Counsel dated July 11, 2012 at 2. Based upon this representation, and for the reasons

previously set forth on the record and above, Defendant is directed to provide supplemental

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answers that include the summary data requested about putative class members’ transactions for

the period 2009 through 2010 within twenty-one (21) days.

5. Interrogatory No. 9

With respect to Interrogatory No. 9, although Defendant “generically” identified three (3)

individuals, Plaintiffs contend that Defendant’s answer is insufficient given that they asked for

the identity of each person “who was involved in the decision to impose a 60,000 cap, ...who

provided analytical support for the decision, ...who was in charge of any communications to

putative class members concerning the decision, and...who provided any financial analyses”. 

See Pl.’s Br. at 25. Plaintiffs maintain that without a more fulsome response, they have no way

to determine who was actually involved in the decision-making process with respect to the

imposition of the cap. Id. Further, Plaintiffs argue that pursuant to Capacchione v. CharlotteMecklenburg Schools, 182 F.R.D. 486, 490-91 (W.D.N.C. 1988), Defendant “may not simply

point to a pile of documents in response to an interrogatory”. Id. In opposition, Defendant

maintains that it has “already...identified the individuals who were directly included in the

process of initiating the cap...at issue in this case”. See Def.’s Opp’n Br. at 16. Defendant notes

that it will not “identify every person who may have had any involvement in that decision”

because this information “is not relevant to class certification and would impose an undue

burden on [Defendant]”. Id. However, Defendant “has agreed to supplement its response to

specifically identify ‘members of the Deal Pricing Council’ (or at least to specifically identify a

document listing the same)” although it “will not...identify all persons who provided any

analytical support for the decision”. See Joint Letter from Counsel dated May 14, 2012 at 3. 

During oral argument, Defendant’s counsel acknowledged Plaintiffs’ position and

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“agreed to supplement its response...to identify the individuals who made the decision to impose

the cap and individuals who performed a substantive analytical function in assisting those who

made the decision”. See Joint Letter from Counsel dated July 11, 2012 at 2. Based upon this

representation, and for the reasons previously set forth on the record and above, this aspect of

Plaintiffs’ motion is DENIED without prejudice. However, Defendant is directed to provide the

supplemental information set forth above within twenty-one (21) days.

6. Interrogatory No. 10

With respect to Interrogatory No. 10, Plaintiffs note that they requested a specific

description of the information considered in connection with Defendant’s decision to impose the

60,000 point redemption annual cap and to identify the location and/or source of the information. 

See Pl.’s Br. at 25-26. Plaintiffs maintain that Defendant did not provide an adequate answer,

failing to state with particularity both the location and/or source of the information provided. Id. 

In opposition, Defendant contends that its answer is proper and that Plaintiffs have failed to

identify any reason or basis why Defendant should be compelled to provide the location and/or

source of the information beyond what Defendant has already provided. See Def.’s Opp’n Br. at

17. 

Having reviewed Plaintiffs’ Interrogatory No. 10 and Defendant’s answer thereto, and

noting that FED. R. CIV. P. 26(b)(1) permits parties to obtain discovery “including the existence,

description, nature, custody, condition, and location of...documents” and has been construed

liberally to create a “broad vista for discovery” (Takacs, 2009 WL 3048471, at *1), the Court

finds the information requested in Interrogatory No. 10 is relevant and/or reasonably calculated

to lead to the discovery of admissible evidence (FED. R. CIV. P. 26(b)(1); see also Pearson, 211

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F.3d at 65), and finds Defendant’s answer insufficient. For the reasons previously set forth on

the record and above, this aspect of Plaintiffs’ motion is GRANTED and Defendant is directed

to provide a supplemental answer specifically identifying the data and documents that were

considered and/or relied upon in Defendant’s decision to impose the annual cap within twentyone (21) days.

IV. DEFENDANT’S MOTION

The Court notes that in response to Defendant’s motion to compel, “[P]laintiffs produced

amended privilege logs for Plaintiffs Michael Siembida and Angeline Davis and withdrew any

assertion of privilege that had been asserted on behalf of Kenneth Marek”. See Joint Letter from

Counsel dated May 14, 2012 at 1. “Plaintiffs also produced documents corresponding to entries

on their initial privilege logs that had been removed...with the exception of counsel’s

engagement letters with [P]laintiffs, which [P]laintiffs...are [now] withholding based on their

contention that engagement letters are not relevant”. Id. As such, what remains of Defendant’s

motion are two (2) issues: “(1) the adequacy of [P]laintiffs’ amended privilege logs” and “(2)

[P]laintiffs’ failure to produce engagement letters”. Id.

(A) Amended Privilege Logs

Defendant concedes that Plaintiffs’ amended privilege logs address several of the

deficiencies that Defendant identified in Plaintiffs’ original logs. Id. at 2. However, Defendant

maintains that two (2) primary deficiencies remain. Id. 

First, Defendant argues that entries referring to “handwritten notices to attorney

redacted” are insufficient because they fail to identify the author or recipient of the notes and fail

to identify the date of the notes as opposed to the date of the underlying document. Id. Plaintiffs

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agreed to address this deficiency and produced “revised privilege logs on June 15, 2012”. See

Joint Letter from Counsel dated July 11, 2012 at 1. Based upon this production, Defendant’s

counsel has represented that “all remaining issues...have been resolved” and that this aspect of its

motion to compel has been WITHDRAWN. Id. at 2.

Second, Defendant argues that entries “regarding communications between Ryan

Johnson, Esq. (“Johnson”) and Clayton Voegtle, Esq. (“Voegtle”) on one hand, and third parties

or individual [P]laintiffs on the other hand, are insufficient because [P]laintiffs have not

demonstrated [that] the underlying communications...[are] attorney-client communication[s] or

work-product, that [P]laintiffs have standing to assert a privilege, or that any privilege has not

been waived”. See Joint Letter from Counsel dated May 14, 2012 at 2. 

During oral argument, Plaintiffs’ counsel acknowledged Defendant’s position, agreed to

contact Mssrs. Johnson and Voegtle to determine whether they had in fact asserted any privilege

related to the subject communications, and agreed to produce Certifications from Mssrs. Johnson

and Voegtle regarding their assertion of any privilege. Plaintiffs’ counsel also conceded that the

subject communications would be produced if Mssrs. Johnson and Voegtle could not be located

or had not asserted any privilege. Plaintiffs agreed to address this deficiency and, subsequently,

produced “a declaration from...[Mr.] Voegtle concerning work product and/or privilege

protections”. See Joint Letter from Counsel dated July 11, 2012 at 1. Based upon this

production and the representations of Plaintiffs’ counsel, Defendant’s counsel has advised that

“all remaining issues...have been resolved” and that this aspect of its motion to compel has been

WITHDRAWN. Id. at 2.

(B) Engagement Letters

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As stated above, Plaintiffs have withdrawn their assertion of privilege as to engagement

letters between counsel and the proposed class representatives. See Joint Letter from Counsel

dated May 14, 2012 at 2. However, Plaintiffs have not produced these engagement letters and

have refused to testify about them because they maintain that the engagement letters are not

relevant for purposes of class certification. Id.; see also Def.’s Br., dkt. entry no. 50-1 at 4-5. 

Defendant argues that Plaintiffs waived any relevance objection when they included the

engagement letters on their original privilege logs. Id.; see also Def.’s Br. at 6. Further,

Defendant contends that the engagement letters are relevant to the issue(s) of whether Plaintiffs

are adequate class representatives and whether Plaintiffs’ counsel is adequate class counsel. Id.;

see also Def.’s Br. at 5. Defendant notes that certain Plaintiffs “signed an agreement when they

joined the RCI Points Exchange Program...which requires those Plaintiffs to pay RCI’s attorney

fees incurred in defending an action brought by such plaintiff if RCI prevails in the lawsuit” and,

in fact, “Plaintiff Kenneth Marek testified about an understanding with his attorneys with regard

to indemnification for this potential liability”. See Def.’s Br. at 5. Citing Ferraro v. General

Motors Corp., 105 F.R.D. 429, 433 n.3 (D.N.J. 1984), In re Semel, 411 F.2d 195, 197 (3d Cir.

1969), and Montgomery County v. Microvote Corp., 175 F.3d 296, 304 (3d Cir. 1999), and

maintaining that “fee agreements...are generally not privileged”, Defendant argues that it is

“entitled to review [P]laintiffs’ engagement letters to determine the specific terms of the

arrangement” and assess the adequacy concerns set forth above. Id. Notwithstanding their

withdrawal of the assertion of privilege, Plaintiffs disagree with Defendant’s position regarding

the relevance of the engagement letters and continue to object to their production. See Joint

Letter from Counsel dated May 14, 2012 at 2.

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Here, the Court notes that Plaintiffs no longer assert any privilege with respect to the

engagement letters. Given the fact that FED. R. CIV. P. 26(b)(1) has been construed liberally to

create a “broad vista for discovery” (Takacs, 2009 WL 3048471, at *1), the Court finds that

Defendant has articulated a sufficient factual basis to support the relevance of the requested

engagement letters given that “relevant information need not be admissible at trial if the

discovery appears reasonably calculated to lead to the discovery of admissible evidence” (FED.

R. CIV. P. 26(b)(1); see also Pearson, 211 F.3d at 65). For the reasons previously set forth on

the record and above, this aspect of Defendant’s motion was GRANTED and Plaintiffs were

directed to produce the engagement letters. Plaintiffs’ counsel has indicated that it “produced

retainer agreements...as directed” and Defendant’s counsel has represented that “all remaining

issues...have been resolved”. See Joint Letter from Counsel dated July 11, 2012 at 1-2.

Accordingly, this issue is MOOT.

V. CONCLUSION & ORDER

For the reasons previously set forth on the record as well as those set forth above,

IT IS on this 28th day of March, 2013, 

ORDERED that Plaintiffs’ Motion to Compel is GRANTED, in part, and DENIED, in

part, as set forth above; and it is further

ORDERED that Defendant’s Motion to Compel is GRANTED, in part, and DENIED,

in part, as set forth above; and it is further 

ORDERED that Counsel are directed to meet and confer, as required by L. Civ. R.

26.1(d)(3), concerning the current status of discovery and to submit a joint status report to the

Court no later than April 30, 2013. 

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A live status conference will be conducted on May 14, 2013 at 3:30 PM in Courtroom

6W.

s/ Douglas E. Arpert 

DOUGLAS E. ARPERT

UNITED STATES MAGISTRATE JUDGE

DATED: March 28, 2013

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