throbber
2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 1 of 33 Pg ID 23155
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`) Case No. 12-cv-00103
`
`) Case No. 12-cv-00403
`)
`
`)
`
`
`
`
`
`
` IN RE: AUTOMOTIVE PARTS ) Master File No. 12-md-02311
` ANTITRUST LITIGATION
`
`)
`) Honorable Marianne O. Battani
`
`
`
`
`
`
`
`
`
`
`
`
`)
` IN RE: WIRE HARNESSES
`
`
`
`
`
`
`
`)
`) Case No. 12-cv-00203
` IN RE: INSTRUMENT PANEL
`
` CLUSTERS
`
`
`)
`
`
`
`
`
`
`)
`) Case No. 12-cv-00303
` IN RE: FUEL SENDERS
`
`
`
`
`
`
`
`)
` IN RE: HEATER CONTROL
`
`
` PANELS
`
`
`
`
`
`
`
`
`
`)
`) Case No. 12-cv-00603
` IN RE: OCCUPANT SAFETY
` RESTRAINT SYSTEMS )
`
`
`
`
`
`
`)
`) Case No. 13-cv-00703
` IN RE: ALTERNATORS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01003
` IN RE: RADIATORS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01103
` IN RE: STARTERS
`
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01303
` IN RE: SWITCHES
`
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01403
` IN RE: IGNITION COILS
`
`
`
`
`
`
`)
` IN RE: MOTOR GENERATORS ) Case No. 13-cv-01503
`
`
`
`
`
`
`)
` IN RE: STEERING ANGLE
`
` SENSORS
`
`
`)
`
`
`
`
`
`
`)
`) Case No. 13-cv-01703
` IN RE: HID BALLASTS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01803
` IN RE: INVERTERS
`
`
`
`
`
`
`
`)
` IN RE: AIR FLOW METERS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-02203
` IN RE: FUEL INJECTION
` SYSTEMS
`
`
`)
`
`
`
`
`
`
`)
` IN RE: AUTOMATIC
`
`
` TRANSMISSION FLUID )
` WARMERS
`
`
`)
`
`) Case No. 13-cv-01603
`
`) Case No. 13-cv-02003
`
`) Case No. 13-cv-02403
`
`
`
`1
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 2 of 33 Pg ID 23156
`
`) Case No. 13-cv-02603
`)
`
`)
`) Case No. 13-cv-02503
`
`)
`)
`
`
`
`
`
`
`
`
`
`
` IN RE: VALVE TIMING
` CONTROL DEVICES
`
`
`
`
`
`
` IN RE: ELECTRONIC
`
` THROTTLE BODIES
`
`THIS DOCUMENT RELATES TO ALL END-PAYOR ACTIONS
`__________________________________________________________________
`
`JOINT MOTION BY SETTLEMENT CLASS MEMBERS WILLIAM
`THOMPSON, BENJAMIN FEURY, MARGARET MARASCO, SEAN
`ODWEYER, SYLVIA THOMPSON AND THOMAS SARRIS AND
`ATTORNEY DAVID DISHMAN FOR A PROTECTIVE ORDER
`PRECLUDING DEPOSITIONS AND PRODUCTION OF ADDITIONAL
`SUBPOENAED DOCUMENTS NOT AUTHORIZED IN CLASS NOTICE
`
`NOW COMES WILLIAM THOMPSON, BENJAMIN FEURY,
`
`MARGARET MARASCO, SEAN ODWEYER, SYLVIA THOMPSON,
`
`THOMAS SARRIS AND ATTORNEY DAVID DISHMAN, by and through
`
`counsel, and states:
`
`1. William Thompson, Benjamin Feury, Margaret Marasco, Sean
`
`Odweyer, Sylvia Thompson and Thomas Sarris are unnamed class members who
`
`objected timely pursuant to this Court’s notice.
`
`2.
`
`David Dishman who is an attorney representing the unnamed class
`
`members named in the previous paragraph.
`
`3.
`
`On Wednesday, April 27, 2016 Plaintiff’s Counsel issued subpoenas
`
`and document requests to all of the persons named in paragraphs 1 and 2
`
`(“movants”).
`
`
`
`2
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 3 of 33 Pg ID 23157
`
`4.
`
`The subpoenas were for depositions to occur between May 2, 2016
`
`and May 9, 2016. Exhibits 5-9.
`
`5.
`
`The document requests were for proof of membership in the class and
`
`also to question the motives of the movants.
`
`6.
`
`The subpoenas were served between Thursday, April 28, 2016 and
`
`Friday, April 29, 2016.
`
`7.
`
`8.
`
`Based on information and belief, discovery is closed.
`
`Based on information and belief, Fed. Civ. Pro. R. 30 and 45 were not
`
`complied with in regard to these subpoenaes.
`
`9.
`
`The notice given of the depositions are not reasonable as to time as
`
`they give, for example, only 1—2 business days notice to Mr. Thompson.
`
`10. The subpoena does not give the movants 14 days to file objections or
`
`to produce the documents requested.
`
`11. The subpoenas place an undue burden and expense on the movants in
`
`violation of Fed Civ. Pro. R. 26 and 45.
`
`12. The subpoena requests attorney-client privileged documents and
`
`information, especially in regard to the subpoena to Attorney Dishman.
`
`13. Moreover, normally discovery is not proper to unnamed class
`
`members without permission of the Court; upon information and belief, no such
`
`permission was requested and/or granted.
`
`
`
`3
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 4 of 33 Pg ID 23158
`
`14. The undersigned counsel contacted the attorney issuing the subpoenas
`
`requesting concurrence in this motion and concurrence was not given.
`
`15. Pursuant to Local R. 83.20, the undersigned counsel is appearing on
`
`behalf of the movants, however, Attorney Dishman will be seeking admission to
`
`appear before this Court and upon that occurring, the undersigned counsel will be
`
`appearing as local counsel, if local counsel is required by this Court.
`
`WHEREFORE, for the reasons stated in the attached brief, and under the
`
`Federal Rules of Civil Procedure, the movants respectfully request that this
`
`Honorable Court quash the subpoenaes and requests for documents pursuant to
`
`Fed. R. Civ. Pro. 45(c).
`
`Respectfully Submitted on April 29, 2016,
`
`
`
`
`
`
`
`LINDERMAN LAW PLLC
`
`
`/s/ Marla A. Linderman
`Marla A. Linderman (P55759)
`9524 Portage Trail
`White Lake, MI 48386
`(810) 220-0600
`lindermanlaw@sbcglobal.net
`Attorney for Movants
`
`
`
`
`4
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 5 of 33 Pg ID 23159
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`) Case No. 12-cv-00103
`
`) Case No. 12-cv-00403
`)
`
`)
`
`
`
`
`
`
` IN RE: AUTOMOTIVE PARTS ) Master File No. 12-md-02311
` ANTITRUST LITIGATION
`
`)
`) Honorable Marianne O. Battani
`
`
`
`
`
`
`
`
`
`
`
`
`)
` IN RE: WIRE HARNESSES
`
`
`
`
`
`
`
`)
`) Case No. 12-cv-00203
` IN RE: INSTRUMENT PANEL
`
` CLUSTERS
`
`
`)
`
`
`
`
`
`
`)
`) Case No. 12-cv-00303
` IN RE: FUEL SENDERS
`
`
`
`
`
`
`
`)
` IN RE: HEATER CONTROL
`
`
` PANELS
`
`
`
`
`
`
`
`
`
`)
`) Case No. 12-cv-00603
` IN RE: OCCUPANT SAFETY
` RESTRAINT SYSTEMS )
`
`
`
`
`
`
`)
`) Case No. 13-cv-00703
` IN RE: ALTERNATORS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01003
` IN RE: RADIATORS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01103
` IN RE: STARTERS
`
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01303
` IN RE: SWITCHES
`
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01403
` IN RE: IGNITION COILS
`
`
`
`
`
`
`)
` IN RE: MOTOR GENERATORS ) Case No. 13-cv-01503
`
`
`
`
`
`
`)
` IN RE: STEERING ANGLE
`
` SENSORS
`
`
`)
`
`
`
`
`
`
`)
`) Case No. 13-cv-01703
` IN RE: HID BALLASTS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-01803
` IN RE: INVERTERS
`
`
`
`
`
`
`
`)
` IN RE: AIR FLOW METERS
`
`
`
`
`
`
`
`)
`) Case No. 13-cv-02203
` IN RE: FUEL INJECTION
` SYSTEMS
`
`
`)
`
`
`
`
`
`
`)
` IN RE: AUTOMATIC
`
`
` TRANSMISSION FLUID )
` WARMERS
`
`
`)
`
`) Case No. 13-cv-01603
`
`) Case No. 13-cv-02003
`
`) Case No. 13-cv-02403
`
`
`
`i
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 6 of 33 Pg ID 23160
`
`
`
`
`
`
`
`
` IN RE: VALVE TIMING
` CONTROL DEVICES
`
`
`
`
`
`
` IN RE: ELECTRONIC
`
` THROTTLE BODIES
`
`THIS DOCUMENT RELATES TO
`ALL END-PAYOR ACTIONS
`
`)
`) Case No. 13-cv-02503
`
`)
`)
`
`
`
`) Case No. 13-cv-02603
`)
`
`
`
`
`
`BRIEF IN SUPPORT OF JOINT MOTION BY SETTLEMENT
`CLASS MEMBERS WILLIAM THOMPSON, BENJAMIN FEURY,
`MARGARET MARASCO, SEAN ODWEYER, SYLVIA THOMPSON AND
`THOMAS SARRIS AND ATTORNEY DAVID DISHMAN FOR A
`PROTECTIVE ORDER PRECLUDING DEPOSITIONS AND
`PRODUCTION OF ADDITIONAL SUBPOENAED DOCUMENTS NOT
`AUTHORIZED IN CLASS NOTICE
`
`
`
`ii
`
`
`
`
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 7 of 33 Pg ID 23161
`
`QUESTIONS PRESENTED
`
`Where subpoenas have been issued to unnamed class members who have
`
`objected to the proposed class settlement, and their attorney, should they be
`
`quashed pursuant to Fed. R. Civ. Pro. 45 where:
`
`The subpoenas were signed on April 27, 2016, served on April 28 and
`29, 2016 and are for depositions from May 2, 2016-May 9, 2016;
`
`The subpoenaes request documents but do not give the persons subject
`to the subpoenaes at least 14 days notice;
`
`The subpoenaes appear not to be sanctioned by the Court, are outside
`of the norms of allowable discovery as to scope and relevance and
`impose undue burdens of time and money on the unnamed class
`members; and
`
`The subpoenaes are requesting attorney-client privileged materials
`and the deposition of the unnamed class member objectors’ attorney.
`
`
`
`The movants state:
`The issuing attorney states:
`
`Yes.
`No.
`
`1.
`
`
`2.
`
`
`3.
`
`
`4.
`
`
`
`
`
`CONTROLLING AUTHORITY
`
`
`Fed R. Civ. Pro. 26(c), 30 and 45(c) are the controlling authority. Also
`relevant is this Court’s Class Notice setting the requirements to object to the
`class settlement.
`
`
`
`iii
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 8 of 33 Pg ID 23162
`
`INTRODUCTION
`
`
`Settlement Class members William Thompson, Benjamin Feury, Margaret
`
`Marasco, Sean Odweyer, Sylvia Thompson and Thomas Sarris1 (the “Objectors”)
`
`and attorney David Dishman by counsel, pursuant to Fed. R. Civ. P. 26(c) AND
`
`45(c), respectfully move the Court for a protective order precluding their
`
`depositions subpoenaed by Plaintiffs’ Class Counsel in the above-captioned case.
`
`The Objectors filed good faith objections to the proposed Settlement Agreements
`
`(“Settlements”) between named Class Representatives (“Plaintiffs”) and the
`
`Settling Defendants named in the attached Updated Settlement Notice (“Class
`
`Notice”), Exhibit “1,” (¶ 3) (“Settling Defendants”).
`
`The Objectors complied with the detailed requirements set forth in the Court
`
`approved notice of settlement concerning the filing of objections. In response to
`
`the exercise of this due process right, Plaintiffs’ Counsel, without any apparent
`
`Court approval, issued Subpoenas to take the deposition of each of the Objectors
`
`and also, their attorney, David Dishman. As to Mr. Dishman, Plaintiffs’ Counsel
`
`seeks to invade the attorney-client privilege through the use of the subpoena2.(The
`
`subpoena served on Mr. Dishman is attached hereto as Exhibit “2”).
`
`The attempt to depose the objectors and their attorney is unduly burdensome
`
`
`1 Mr. Saris timely served his objection pro se on April 8, 2016 and sent the same by express mail
`to the Court.
`
`2 Mr. Dishman represents the class members named in this motion.
`
`
`
`1
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 9 of 33 Pg ID 23163
`
`and will chill the voices of unnamed class members. For example, after Mrs.
`
`Marasco was served, last evening she instructed Attorney Dishman to inform the
`
`Court that she wants to withdraw her objection.
`
`The objectors should be able to object to the settlement of this class action,
`
`without having to submit to discovery and depositionsDepositions of the above
`
`named class member objectors and their counsel should be precluded by the Court
`
`for multiple reasons, including but not limited to the following: (i) under the clear
`
`express terms of the Class Notice, testimony is not a requirement for objecting to
`
`the Settlement (Ex. 1, ¶ 20); (ii) testimony by the Objectors is irrelevant to their
`
`objections and will not inform the Court’s determination of final approval; and (iii)
`
`requiring such depositions of absent settlement class member objectors and their
`
`counsel will simply create annoyance, potential embarrassment, oppression and
`
`undue burden for the Objectors; (iv) the depositions are inappropriate since any
`
`information that Class Counsel might attempt to gain from absent settlement class
`
`members and their counsel is protected by the attorney-client privilege and not
`
`subject to discovery; (v) Plaintiffs’ Class Counsel failed to obtain permission from
`
`the Court prior to subpoenaing the settlement class members, even though at a
`
`minimum, the depositions directly conflict with the terms of the Class Notice; and
`
`(vi)Plaintiffs’ Class Counsel’s subpoenas are both procedurally and substantively
`
`improper.
`
`
`
`2
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 10 of 33 Pg ID 23164
`
`For example, each subpoena requires a l production of documents (all of
`
`which are irrelevant) and provides, at most 7 days and as little as 3 days for
`
`production, as opposed to the required fourteen (14) days under Fed.R.Civ.P. 45.
`
`For the foregoing reasons, the depositions of the Objectors and their counsel are
`
`not permissible would serve no proper purpose and should be precluded through
`
`the entry of a protective order.
`
`Background
`
`The Court-approved Notice of Settlement captioned “Updated Settlement
`
`Notice” was only recently issued. It sets forth the requirements for objecting to the
`
`Settlement. (Ex. 1, ¶ 20). These requirements include “(1) your name, address, and
`
`telephone number; (2) documents reflecting your purchase or lease of a new motor
`
`vehicle and/or purchase of the applicable replacement part. Purchase or lease
`
`documentation should include: (a) the date of purchase or lease, (b) the make and
`
`model year of the new motor vehicle, (c) the state where the new motor vehicle
`
`was purchased or
`
`leased, and (d)
`
`the amount paid. Replacement part
`
`documentation should include: (a) the date of purchase, (b) type of replacement
`
`part purchased, (c) the state where the replacement part was purchased, and (d) the
`
`amount paid; (3) The name of the Settling Defendant whose Settlement you are
`
`objecting to or commenting on; (4) The automotive part case that is the subject of
`
`your objection(s) or comments; (5) The reasons you object to the Settlement, along
`
`
`
`3
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 11 of 33 Pg ID 23165
`
`with any supporting materials; and (6) Your signature.” Id. Additionally, the
`
`Settlement Notice required any Objection to be postmarked by April 11, 2016 and
`
`mailed to the Court and the Notice Administrator. (Ex. 1, ¶ 20).
`
`The Settlement Notice does not provide that an objector has to provide
`
`testimony in order for his or her objection to be considered, and may speak through
`
`counsel:
`
`If you send an objection or comment, you do not have to come to
`Court to talk about it. As long as you mailed your written objection on
`time, the Court will consider it. You may also hire your own lawyer at
`your own expense to attend on your behalf, but you are not required to
`do so.
`
`Class Notice, Ex. 1 at ¶ 23. The Class Notice does not identify or require any other
`
`requirements for objecting to the fairness off the Settlement or Plaintiffs’ Class
`
`Counsel’s request for exorbitant attorneys’ fees. Id.
`
`The Objectors, William Thompson, Benjamin Feury, Margaret Marasco,
`
`Sean Odweyer and Sylvia Thompson served their Objection to Final Approval of
`
`Class Action Settlement (“Objection”) on April 11, 2016. Mr. Sarris served his pro
`
`se objection on April 8, 2016. (See Objections attached hereto as Exhibits “3” and
`
`“4”). The Objections satisfied the requirements of the Class Notice. In support of
`
`their objections, William Thompson, Benjamin Feury, Margaret Marasco, Sean
`
`Odweyer, Sylvia Thompson and Thomas Sarris (pro se), submitted copies of
`
`certain documents, which establish their membership in the Settlement Class as
`
`
`
`4
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 12 of 33 Pg ID 23166
`
`requested in the Objection section. Id at Ex. 1, ¶ 20; See, also Ex. 3. The specific
`
`objections raised are that inter alia, (i) The Class Definition is so overbroad and
`
`unrelated so as to dilute the other class member’s legitimate claims. Plaintiffs’
`
`Class Counsel included in the class definition every make and model of every
`
`motor vehicle from 1998-2015, regardless of the existence of price-fixed parts; (ii)
`
`there is no allocation program in place and there is insufficient information
`
`provided in the Class Notice for class members to make informed decisions
`
`concerning the Settlement and releasing their claims; (iii) the Settlements, as
`
`proposed, are not manageable or administratively feasible; (iv) Plaintiffs’ Class
`
`Counsel’s request for attorneys’ fees is unreasonable and excessive for multiple
`
`reasons; and (v) the claims process, as it exists, provides arbitrary results which
`
`will unjustly and disproportionately benefit class members who are not entitled to
`
`recovery.
`
`In response to their objections, on April 27, 2016, subpoenas were issued for
`
`documents and deposition for the attendance of each Objector and their
`
`undersigned Attorney, David Dishman, for the days of May 2–May 9, 2016.
`
`(Notice and Subpoenas to the Objectors are attached hereto as Exhibits “5” through
`
`“9.”) Giving one or two business days’ notice of a deposition is unreasonable; for
`
`example, Mr. Thompson’s subpoena is dated Wednesday, April 27, 2016 and is set
`
`for Monday, May 2, 2016 at 9 a.m.. (Exhibit 5). See Fed R.Civ. Pro 30(b)(1).
`
`
`
`5
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 13 of 33 Pg ID 23167
`
`ARGUMENT
`
`The Depositions Conflict with the Terms of the Notice
`
`The Court should enter a Protective Order precluding the depositions
`
`because they are in direct conflict with the Class Notice, which states that
`
`objections will be considered, and objectors’ counsel may be heard, regardless of
`
`whether the objector appears or speaks in support of the objection. As summarized
`
`above, the Notice not only sets forth several specific requirements for stating an
`
`objection to the Settlement, but it expressly does state that testimony and a
`
`personal appearance are not required. (Ex. 1, ¶ 23). The Notice further states that
`
`objections may also be presented by counsel. Id. In fact, the required items of
`
`information in support of an objection confirm that personal testimony is not
`
`required and that objectors may appear through counsel and submit objections for
`
`consideration by the Court at the final fairness hearing. Id. at ¶ 20.
`
`As the requirements for objecting are expressly stated in the Class Notice,
`
`they encourage Settlement Class members to express their objections in writing
`
`and assure such Class members that they need not personally appear. This not only
`
`facilitates Class members’ exercise of their due process rights, it also facilitates the
`
`important role objectors play in class settlements. See, e.g., MANUAL FOR
`
`COMPLEX LITIG., FOURTH (2010) at § 21.643 (“Objectors can provide
`
`important information regarding the fairness, adequacy and reasonableness of
`
`
`
`6
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 14 of 33 Pg ID 23168
`
`settlements. Objectors can also play a beneficial role in opening a proposed
`
`settlement to scrutiny and identifying areas that need improvement.”)
`
`By demanding that Objectors each submit to a deposition and produce
`
`additional subpoenaed documents, not required by the Class Notice, Plaintiffs’
`
`Class Counsel are now unilaterally and impermissibly imposing additional burdens
`
`and conditions for an objection to the Settlement. These requirements are not
`
`included in the Notice, are not required as a condition to objecting under
`
`Fed.R.Civ.P. 23(e)(5), and have the effect of harassing and burdening Settlement
`
`Class members who have simply exercised their fundamental right to oppose or
`
`comment on the Settlement. The Objectors have already satisfied the Notice’s
`
`requirements for objecting to the Settlement. They have prepared and filed written
`
`submissions stating their objections. They have set forth the legal and factual bases
`
`for their objections. They have provided documents as requested in the Class
`
`Notice. (Ex. 1, ¶ 20).3 Having already satisfied each of these conditions for
`
`objecting, it would be patently unfair and contrary to the Class Notice to now
`
`impose new, extreme and additional requirements upon the Objectors as a
`
`condition precedent to the exercise of their rights and would violate their rights to
`
`due process.
`
`The Objectors have the right to have their objections considered and to be
`
`3 Class Member Ben Feury is supplementing his objection to include purchase contracts that
`were not readily available.
`
`
`
`7
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 15 of 33 Pg ID 23169
`
`represented by counsel. That certainly does not permit Plaintiffs’ Class Counsel to
`
`subpoena their undersigned attorney, David Dishman, and invade the Objectors’
`
`and Counsel’s attorney-client privilege. The Court should enter a protective order
`
`precluding the depositions of the Objectors, including the production of
`
`subpoenaed documents, in order to hold the settling parties to the terms of the
`
`Settlement Notice, and to prevent the imposition of additional, burdensome and
`
`unfair conditions on objecting Settlement Class members.
`
`Deposition Testimony is Irrelevant to the Objections
`
`The Court should also enter a Protective Order precluding the depositions
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`because individual testimony by the Objectors has no relevance to the actual
`
`objections raised. For example, the Objectors, William Thompson, Benjamin
`
`Feury, Margaret Marasco, Sean Odweyer, Sylvia Thompson and Thomas Sarris,
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`who initially filed an objection pro se, objected to the Settlement on specific
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`grounds set forth in their objections. (See, Exhibits 3 and 4). Deposition testimony
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`by the Objectors will not be relevant to any of these objections and should not be
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`permitted.
`
`First and foremost, each of these objections addresses a burden that must be
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`met by the moving party, not by an objecting class member. Synfuel Techs., Inc. v.
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`DHL Express (USA), Inc., 463 F.3d 646, 652 (7th Cir. 2006) (party seeking
`
`approval carries the burden of proving that a settlement is fair, reasonable, and
`
`
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`8
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`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 16 of 33 Pg ID 23170
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`adequate). The Objectors should not be interrogated for raising concerns with the
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`Court, since they were permitted to do so as set forth in the Class Notice. This is
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`particularly true when the moving parties have not even met their own burden of
`
`proving the adequacy and fairness of the Settlement. It is their burden.
`
`Second, the Objectors have identified objective but fundamental flaws that
`
`affect the Settlement Class as a whole. The issues raised by them, including as to
`
`their objection to Plaintiffs’ Class Counsel’s exorbitant attorneys’ fees, money
`
`which should go to the class, are all issues that can be - and should be - assessed in
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`light of evidence that is common to all Settlement Class members.
`
`The Subpoenas do not seek relevant evidence and should not be enforced.
`
`The standing of the Objectors to oppose the Settlement is not in question. “Any
`
`class member who does not opt out may object to a settlement, voluntary dismissal,
`
`or compromise that would bind the class.” Manual for Complex Litig., Fourth
`
`(2010) at § 21.643. It is also unlikely that Plaintiffs’ counsel actually believe that
`
`personal testimony by the Objectors is necessary to determine the fairness and
`
`adequacy of the Settlement. If it was, one might question whether the fairness of
`
`the Settlements could ever be determined on a class-wide basis.
`
`Instead, it seems most likely, based on the documents requested that to the
`
`discovery is aimed at attacking the motives of the Objectors. As found by the court
`
`in In re Fine Paper Antitrust Litig., 751 F.2d 562 (3d Cir. 1984), this is not a
`
`
`
`9
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`

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`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 17 of 33 Pg ID 23171
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`proper basis on which to demand an objector’s deposition:
`
`Sloan & Connelly, P.C. complains that the trial court quashed
`subpoenas served upon objectors’ counsel for the purpose of cross-
`examination to establish the objectors’ motivation in pressing their
`objections to the requested fees. The court’s ruling was, in essence, a
`relevancy ruling under Fed.R.Evid. 403. We find no abuse of
`discretion in the court’s refusal to permit an already cluttered record
`to be further confused by an inquiry so completely collateral to the
`central issue of reasonableness of the fee requests.... We fail to see
`how motives of the objectors, other than the obvious financial one of
`maximizing their recovery, would make any fact of consequence to
`the determination of reasonable fees more or less probable.
`Fed.R.Evid. 401. Certainly we can find no abuse of discretion.
`
`Id. at. 586-87. It is clear that the depositions sought by Plaintiffs’ Class Counsel in
`
`this case seek to raise issues that are irrelevant and collateral to the fairness and
`
`adequacy of the Settlement and their request for attorneys’ fees – all issues which
`
`are common to all Settlement Class Members.
`
`The Depositions Would Create Oppression and Undue Burden for the Objectors
`
`Deposing the Objectors would serve no purpose other than to unduly burden
`
`and oppress the Objectors for raising valid concerns. This Court allowed objectors
`
`to raise objections, for the Court’s consideration, based on a written showing. To
`
`require objectors to also appear for depositions, possibly lose income by being
`
`required to miss work, and be subject to interrogation for objecting would chill the
`
`voices of the unnamed members of the class.
`
`
`
`
`
`10
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`

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`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 18 of 33 Pg ID 23172
`
`On a showing of good cause, a court may issue a protective order forbidding
`
`certain discovery in order to “protect a party or person from annoyance,
`
`embarrassment, oppression, or undue burden or expense....” Fed. R. Civ. P.
`
`26(c)(1). The circumstances of this case certainly warrant the entry of such an
`
`order.
`
`As discussed above, testimony by the Objectors far exceeds - and directly
`
`conflicts with - the requirements for objecting set forth in the Settlement Notice. In
`
`doing so it unduly and unfairly burdens the Objectors, requiring them to personally
`
`participate, potentially
`
`lose
`
`time from work, and subject
`
`themselves
`
`to
`
`interrogation in order to sustain their objections. Not only should this burden not
`
`be imposed as a condition of objecting, it is not supported by any benefit to the
`
`process because the Objectors’ personal testimony is irrelevant to their class-wide
`
`objections. Since the Objectors’ standing to object is beyond question, one can
`
`only assume that a deposition by Plaintiffs’ Class Counsel would question the
`
`Objectors’ motives, and certainly invade the attorney-client privilege as it related
`
`to the subpoena of their counsel, Mr. Dishman. Such inquiries are obviously
`
`beyond the realm of legitimate discovery in this case, and would serve only to
`
`oppress and harass the Objectors and should not be permitted. Fine Paper Antitrust
`
`Litig., 751 F.2d at 586-87.
`
`
`
`
`
`11
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`

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`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 19 of 33 Pg ID 23173
`
`Inappropriateness of the Depositions
`
`It is inappropriate for Plaintiffs’ Class Counsel in the instant case to pursue
`
`said “discovery”, as based on information and belief, discovery is closed as this
`
`matter has settled and will not lead to relevant information. That is especially true
`
`as to the subpoena for deposition of Attorney David Dishman whose only role in
`
`this case is as an attorney to the objectors and any documents or testimony would
`
`infringe on the attorney-client privilege... To attempt said depositions are unduly
`
`burdensome and irrelevant to the issues before the Court – whether the settlement
`
`is fair, adequate and reasonable.
`
`Further, Objectors are not free to depose the settling parties and their
`
`attorneys. Therefore, the reverse would hold true under principles of equity and
`
`due process. The Objectors are required to become generally acquainted with the
`
`settlement terms and make their objections known with no right of discovery as is
`
`normally associated with federal jurisprudence.
`
`Furthermore, FedCiv.Pro R. 30., requires that depositions be set upon
`
`reasonable notice. William Thompson, Benjamin Feury, Margaret Marasco, Sean
`
`Odweyer, Sylvia Thompson and Thomas Sarris are working people who cannot
`
`take days off from work to sit for depositions with insufficient notice. None of the
`
`Objectors are presently available and did not intend to personally appear at the
`
`hearing now set for May 11, 2016. Further, the undersigned counsel has
`
`
`
`12
`
`

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`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 20 of 33 Pg ID 23174
`
`commitments in representing clients other than the Objectors and is not able to sit
`
`for eight (8) days of depositions noticed by Plaintiffs’ Class Counsel on a few
`
`days’ notice and for inappropriate purposes. The final hearing can easily proceed
`
`without the harassing depositions of the Objectors and their own Attorney, who
`
`had no voice in the settings and deadlines in this case.
`
`Moreover, the depositions conflict with the Court’s Notice and should not be
`
`permitted. Finally, as discussed below, each of the subpoenas seek substantial
`
`burdensome production of irrelevant documents, all with less than the fourteen
`
`(14) days required by Fed. Rule 45.
`
`The moving parties are unnamed class members who objected to the
`
`Settlement agreements pursuant to the Class Notice requirements on the grounds of
`
`unfairness to the class, and their objections were timely filed with the court. In
`
`retaliation for exercising their right to object to the Settlements, they have now
`
`each been subpoenaed and their own counsel also subpoenaed for deposition in the
`
`hopes that their objection will evaporate and the Settlement will have clear sailing.
`
`In Shulte, et. al v. Fifth Third Bank, 2011 WL 4466951 (N.D. Ill.), the
`
`Plaintiffs’ Counsel, on nearly identical facts, subpoenaed the consumer objectors to
`
`the Settlement and sought to take their depositions and require documents when
`
`the class notice failed to expressly require settlement class members to appear for
`
`deposition, and/or testify. Instead, as is the case here, the class notice required
`
`
`
`13
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 21 of 33 Pg ID 23175
`
`specific criteria for settlement class members to object to and express their
`
`concerns about the settlement were set forth in the class notice and did not require
`
`testimony at a deposition. The objectors moved for a protective order precluding
`
`the depositions and production of subpoenaed documents, neither of which were
`
`specifically set forth in the class notice, as a condition precedent to filing an
`
`objection to the settlement. Based upon the precise grounds raised by the objectors
`
`to the settlement, as in this case, District Judge Robert M. Dow, Jr. granted the
`
`objectors joint motion and entered a Protective Order precluding the depositions
`
`and production of subpoenaed documents. (See Order attached hereto as Exhibit
`
`“10”).
`
`The Court’s Permission is Required Before Deposing
`an Unnamed Class Member
`
`William Thompson, Benjamin Feury, Margaret Marasco, Sean Odweyer,
`
`Sylvia Thompson and Thomas Sarris are unnamed class members who objected to
`
`the proposed settlement. After they filed their objection, Class Counsel subpoenaed
`
`them for their depositions, as well as their own undersigned attorney, even though
`
`the parties have already reached settlements. In the case of Mr. Sarris, he filed a
`
`pro se objection, but now due to the abuse of process which occurred this morning,
`
`he has needed to obtain representation as to the subpoenaes and will be represented
`
`
`
`14
`
`

`
`2:12-md-02311-MOB-MKM Doc # 1306 Filed 04/29/16 Pg 22 of 33 Pg ID 23176
`
`by Attorney Dishman4 to prevent further abuse of process.
`
`The subpoenas are improper because Class Counsel did not obtain
`
`permission for this form of discovery from the Court:
`
`The Court is clear to the view that discovery proceedings, such as the
`proposed interrogatories, are improper, directed as they are to
`members of the class who are not named plaintiffs . . . . It is not
`intended that member of the class should be treated as if they were
`parties plaintiff, subject to the normal discovery procedures, because
`if that were permitted, then t

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