Thomas Klotzbach v. Virgin Islands Water and Power Authority

• Court: Superior Court of The Virgin Islands
• Decided: June 14, 2021
• Docket: ST-13-CV-445
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

THOMAS KLOTZBACH ) Individually and on behalf of others ) CASE NO ST 2013 CV 00445 Similarly situated, ) Plaintiff ) vs ) ) ACTION FOR DAMAGES VIRGIN ISLANDS WATER AND ) AND INJUNCTIVE RELIEF POWER AUTHORITY ) Defendant ) _—_—)

2021 VI Super 64

MEMORANDUM OPINION

1‘1 THIS MATTER is before the Court on Motmn to Compel Productmn and

Responses to Interrogatorles and Extend Deadlines ( motlon to compel ) filed by

Plaintiff Thomas Klotzbach 1

I FACTS

112 On September 5 2013 Thomas Klotzbach filed a complaint as a class action,

against the DLfcndant Virgin Islands Water and Power Authonty ( WAPA )

Klotzbach alleges that he ‘installed solar panels at his home on St Thomas before

JunL 2012 and submitted a net mctcring applicatlon to WAPA

‘ The motion to compel was filed March 29 2019, and is fully briefed Klotzhath v VI Water and Power Auth Case No ST 2013 CV 00445 2021VISuper 64 MLmorandum Opmmn Page 2 of 19

fl?) Klotzhach alleges that WAPA wrongfully charged him $30 to suhmlt the net

mLtermg apphcatlon Klotzbach also alleges that WAPA wrongfully requu‘ed him to

install at [his own] expense a ‘knife switch Klotzbach alleges that m September

2012 WAPA installed a net meter that erroneously hllled him “not only for electrimty

supphed by WAPA but also for electricity produced by [Klotzbach] Klotzbach

alleges that [a]fter repeated reports and complamt by [1mm] WAPA in January

2013 replaced [his] electric meter w1th a properly functloning meter ”

114 However Klotzbach also alleges that ‘[d]espitc dLmand, WAPA has failed or

refused to compensate [him] for the overbllls during the [three] months [he] lost

the benefit of hls installed solar panels while the incorrect meter was installed”

Klotzbach alleges that WAPA also failed to relmburse [him] [for] the apphcation

fee” and “for the Lost of the unnecessary ‘krufe switch ”’ Klotzbach alleges that [his]

situatlon ls typical of other members of the proposed [c]1ass ” Klotzbach filed claims

for declaratory judgment consumer fraud and deceptive busmess practices, unfalr

and unconscionable trade practice breach of contract unjust enrichment common

law fraud, breach of the duty of good faith and fair dealing neghgence and permanent

injunctlon

115 On March 29 2019 Klotzhach filed a motlon to compel ‘partlcularly [for

WAPA 5] total failure to produce the relevant bllling related documents and mfo

requested” Addltlonally, Klotzbach ‘requests that the Court further extend the Klotzbach v VI Water and Powtr Auth Case No ST 2013 CV 00445 2021 V1 Super 64 Memorandum Opmion Page 3 of 19

applicable deadlines for fact discovery and for medlation until appropriate dates after

WAPA has provided the required dlscovery ”

II DISCUSSION

116 As a prerequlsxte for motions to compel the Court decides whether the good

faith meet and confer requirement In the Virgin Islands Rules of Civ11 Procedure

37(a)(1)Z and 37 1 has been met 3 See Donastorg 11 Walker 2019 V1 Super 96U TN

13 14 Fensteru Dechabert Case No SX 16 CV 343 2017V1 LEXIS 148 at*10 (VI

Super Ct Oct 4 2017) (unpublished) (citing Demmmg 1) VI Water &P0wer Auth

Case No ST 11 CV 586 2013 VI LEXIS 3 at *8 9 (VI Super Ct Jan 20 2013)

(unpublished)) Victor Perez U DLamondrock Frenchman 5 Owner Inc Civ11 No ST

15 CV 387 2018 VI LEXIS 39 at *7 9 (V1 Super Ct Apr 5 2018) (unpubhshed)

(citmg Fenster 2017 VI LEXIS 148 at *9 10) SpeCIfically VI R CIV P 37(a)(1)

states that a motion to compel ‘must include a certificatmn that the movant has m

ZAccordingtoVI R Cw P 37(a)(1) On notice tn other parties and all affected persons, a party may move fox an Ordel Lompelhng disclosure or discovery The motion must include a Lutifieation that the movant has in good faith conferred or attempted to confer with the person or part} failing to make disclosure or discovery in an effort to obtain It Without count actmn VI R CIV P 37(a)(1) 3UndelVI R CIV P 371 Prior to filing any mouon relating to dLSCOVSI‘y pursuant to Rules 26 through 37, other than a motion relating to depositions under Rule 30 counsel for the parties and any self represented parties shall confer in a good faith effcut to eliminate the necessity for the motion or to elimmate as many of the dlsputes as possible 1 VI R Cw P 37 1 KlotAbach v VI Water and Power Auth Case No ST 2013 CV 00445 2021 VI Suer 64 Memorandum Opinion Page 4 of 19

good faith conferred or attempted to confer with the person or party failing to make

disclosure or discovery in an effort to obtain it without court action ”

1E7 Klotzbach contends that he has gone through the process requlred by [VI R

CIV P ] 37 1 Moreover Klotzbach references and attaches a “VI Rule Cw Pros Rule

37 1 letter to WAPA Under VI R CIV P 37 1(b) the party seekmg to compel

discovery must first serve a letter on the other party that meets specific

specificatwns 4 SeeVI R CIV P 37 1(1)) (c)(l)

118 However after serving the letter both parties must meet in person 5

telephomcally or by Video conferencing to try and resolve the discovery ISSUES See

VI R CIV P 37 1(c)(1) (2) 6 Nowhere in Klotzbach s motion or Rule 37 1 letter docs

‘UnderVI R CIV P 57 1(1)) The party requesting Iesolutmn of a dlscovely dispute shall serve a letter on other counsel identifying each issue and/or discovery request in dispute stating briefly thy. moving partys position with respect to each (and providing any legal authonty) and specifying the terms of the dxscovery ordel to be sought VI R CW P 37 Nb) 3 The parties “are encouraged to meet m person if practicable See V I R CW P 37 1(c)(2) 5 VI R Civ P 37 1(a) prov1des Conference Arrangements and Personal Negotiations Requirement (1) Factlltatmg a Conference After service of thL lettu request it shall be the respunsibxhty of Enllnsel fol the requesting party to make any necessaly arrangements for a confluence

(2) Personal Dtscussmns Requirement T0 the extent practicable, counsel are encnuraged to meet In person at a mutually convenient location If, in the consxderation of time and/or resnmces counsel agree that meeting in person Is not practicable the conference may take place telephonically or by Video conferencmg Mail or c mail exchanges are not sufficient

(3) Completion of Negotiations Unless otherwise provided by stipulatmn of the parties, or by written order of the court, the conference shall he completed w1thm 15 days after the moving party serves a letter requesting such conference VI R CIV P 37 1(c)(1) (S) Klotzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opimon PagL 5 of 19

the Court find a certification that [Klotzhach] has 1n good falth conferred or

attempted to confer with WAPA See V I R CIV P 37(a)(1) Klotzbachs letter

request[s] a telephomc meet and confer to dlscuss [deficient dlscovery] matters on

Tuesday February 12 at 3 PM AST or Wednesday February 13 at 3pm AST 7 No

further information is provided, though Therefore, the Court is unsure Whether the

partles actually met and conferrcd, and whether such meeting or attempt to meet,

was conducted in good falth SeeVI R CIV P 37(a)(1)' VI R CIV P 37 1(3) (c)(l)

(3) 119 [T]he certification prerequlsite Is not an empty formality because obliging

attorneys to ccrtlfy to the [c]ourt that they conferred in good faith results[ ] in a large

number of cases[,] in rcsolutwn of discovery disputes by counsel Wlthout interventlon

of the [C]ourt Vzctar Perez 2018 VI LEXIS 39 at *9 (Clting Fenster 2017 V1

LEXIS 148 at *9 10) But see Donastorg 11 17 ( Wh11e the procedural def1c1ency of

[the plaintlffj‘s [m]otion to [c]ompe1 would ordinarlly warrant the denial of the motion

outnght, courts have typically bypassed procedural defects Where there is ‘adequate

support for the finding that the partlLs were at an impasse " (clting Fenster 2017 V I

7 In Vista: Perez v Diumondmck anchmcms Owner Inc , the Supenor Court of the Virgm Islands states that [clourts in other jurisdlctinns applying placedural rules 51m11ar to [VI R CIV P 37 and 37 1] have been unw111ing to decipher letters between Counsel to conclude that the [Lertificatlon] requirement has been met ’ See VLcinr Perez 2018V I LEXIS 39 at *8 9 (alteration in original) (citing Fenster 2017 VI LEXIS 148, at *9) However, since Klotzbach 5 letter does not satisfy the meet and confer requirement the Court need not address this assertion Klotzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opimon Page 6 of 19

LEXIS 148 at*11 Clement u Alegre 99 Cal Rpt!‘ 3d 791 804 (Cal Ct App 2009)) 5

Good faith mandates a genuine attempt to resolve the discovery dlspute through

non judlcial means ’” Victor Perez 2018 VI LEXIS 39 at *6 (Clting Alganqum

Heights v United States No 97 082 C 2008 U S Claims LEXIS 479 at *8 9 (Fed

C1 Feb 29 2008) (unpuhhshed)) “Conferment requires that the movmg party must

personally engage in two way commumcatlon w1th the non respondmg party to

meaningfully discuss each contested discovery dlspute in a genume effort to av01d

judicial 1nterventlon Id (citing Algonquin Heights 2008 U S Claims LEXIS 479

at *9) In fact, in Victor P9122, the Supenor Court of the Vlrgm Islands states that

[I]n [the] future, the Court requests partles to mclude in the certification itself what specific ISSULS were dlscussed during the conference, how each party believed legal authonty apphcd to the facts before them and how one or both partxes attempted to resolve their impasse on each issue This request Is to ensure that both procedural and substantive aspects of the good falth negotlatian requirement are met

Id at *9

1[10 Because Klotzbach failed to mclude a certification that the partles conferred m

good falth or that Klotzbach tned to confer in good faith but WAPA refused the Court

will deny the motion to compel at thls t1me Klotzbach may resuhmlt a motlon to

compel that fully comphes w1th VI R CIV P 37(a) and VI R CIV P 37 1 See VI

R CIV P 37 1(a) (“counsel for the parties shall confer m a good faith effort to

E In Dtmastorg v Walks] thL Lourt acknowledged the V I R CIV P 37 and 37 1 meet and confer requirement and ruled ‘that counsel for the parties did not attempt to meet and confer in good faith ’ But in the interest ofjudlcial economy and effimency, the [c]ourt [still] address[ed] the merits of [plaintiff] s [mjotlon m [c]nmpel Dnnastorg 1m 14 17 Klotzbach V VX Water and Power Auth Case No ST 2013 CV 00445 2021VISuer 64 Memorandum Opinion Page 7 of 19

eliminate the necessity for the motion or to eliminate as many of the disputes as

p0ssxb1e ) VI R CIV P 37 1(c)(2) (counsel are “to meet in person ” telephonically or

by Video conferencing Mail or e mail exchanges are not sufficient”)

1] 11 [I]n [the] future to conserve judicial resources the [c]0urt asks parties

submitting motions to compel to include their good faith negotiation certification in

one document appended to the motion to compel 0r Within a self contained section of

the motion Aruzdsan v Buchar Case No ST 16 CV 410 2018 VI LEXIS 149 at

*10 (VI Super Ct June 6 2018) (unpublished)

1112 Moreover if Klotzbach files another motion to compel, the Court requests that

he explicitly state in his motion With details that (1) the parties met and conferred

in person, “tclephomcally or by VldeO conferencing 0r (2) WAPA refused to meet and

confer See V I R CIV P 37(a)(1) V I R CIV P 37 1(a) (c)(Z) see also V I R CIV P

37(a)(5)(A) (C) (discussmg payment of reasonable expenses based on Whether a

motion to compel is granted partially granted or denied)

$13 Additionally the Court requests [the] parties include in the certificatiun

itself what specific issues were discussed during the conference how each party

believed legal authority applied to the facts before them, and how one or both parties

attempted to resolve their impasse on each issue See Victor Perez 2018 V I LEXIS

39 at *9 Klotzbach v VI Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opinion Page 8 0f 19

1H4 The Court also requests that Klotzbach include all of the SpLLlfiC

interrogatories and production requests he seeks from WAPA m the motion to compel

This will allow the Court to more efficiently address Klotzbach s discovery concerns

1115 To make a meet and confer between the partles more productive the Court Will

address the arguments WAPA makes in Its opposition to Klotzbach's motion to

compel

1H6 First WAPA claims that [Klotzbach] falsely characterizes []his action as a

class action but this Court has never certified this action as a class action Yet

prominently stated at the top of its motion is CLASS ACTION

1! 17 Second WAPA argucs

[Klotzhach] says he is bringing this attion individually on behalf of others Similarly Situated But he never identified who thost “others” are In order for this action to be certified as a class action a proper motion for certification needs to he filed and then granted by the Court No such motlon was ever filed and consequently never granted

1118 Klotzbach argues that [t]he response [to WAPA s first and second arguments]

is fairly simple “

[Klotzbach] brings this matter on behalf of himself and others Similarly Sltuated [He] has never said that the Court has “certified this action as a class action as WAPA tries to imply [Klotzbach] has not yet filed a [m]0t10n for such purposes mainly because it needs Information through the dISCOVeX'y process to further detail the number of Class members affected and other apprcpnate context for the Court’s consideration of suth a [mlotion As detailed below, that is perfectly appropriate and necessary as a part of class action practice D As such there is nothing improper whatsoever about including class action in the caption as that is how this matter was structured from the beginning KlotzbaLh V VI Water and Power Auth Case No SI 2013 CV 00445 2021VISuper 64 Memorandum Opinion Page 9 cf 19

1[19 The Court agrees that Klotzbach has structured this action as a class action

from the beginning Additionally the Court notes that the V I Rules of Civil

Procedure acknowledge that class action discovery may be needed before class

certification occurs Specifically, the Advisory Committee 5 comment for V1 R CIV

P 23(d)(3) states the following

The Advisory Committee changed the draft rule’s triggering point which was initially proposed to be applicable at the time a certification ruling is made and is recommending the versmn of this rule shown here, WhiLh makes the referral applicable When the pleading purporting to state a class action claim is initially filed Because of the proceedings leading to a certification ruling can take months or years, and may involve extensive pm certification discovery and motion practice, triggering the initial designation as complex upon the initial filing was deemed a safer system by the Adv1sory Committee

VI R CIV P 23 adVISOY‘y committee 5 note subpart (d)(3); see also Cornwall u VI

Indus Mamt Carp , 2019 VI Super 117 1] 35 ( To date a class has not been certified

nor has a motion to certify a class, or to strike the class action allegations, been filed

Thus seventeen years after this action was commenced the Class action aspect of this

case remains in limbo )

1[20 Third WAPA states that it has already voluntarily provided over 5 000 pages

of information to [Klotzbach] that it d[0es] not consider private or confidential But

WAPA argues that “absent a Court order authorizmg production, WAPA has

drawn the line against provxding the personal individual billing information of its

many customers that [Klotzbach] now seeks and to which he has no right to possess Klotzbach V VI Water and Power Auth Case No ST 2013 CV 00445 2021 VI Suer 64 Memorandum Opinion Page 10 of 19

The Court agrees that the privacy interests of unnamed party members in a class

action warrants special consideration particularly in precertification discovery

1121 Klotzbach argues that WAPA is raismg the issue of the requested information

being private or confidential for the very first time in this paragraph It has never

been raised in its months of discovery responses or objections, correspondence, emails

01' otherwise Any such untimely objection should therefore be deemed to be

waived

T122 Additionally Klotzbach contends that the information provided by WAPA is

largely irrelevant However Klotzhach also contends that WAPA h[as] already

provided its customers’ names as part of the largely irrelevant[] ‘data dumps ”

Klotzhach argues that, “[y]et WAPA has now Conveniently determined that the

Information most likely to be harmful to its case the billing records showing a ‘spike

in energy costs for certain customers followmg their installation of solar panels

(which were intended to reduce energy cost) is private 01' confidential ’” Klotzhach

argues that

If WAPA wished to provide billing information for its solar net metering customers for the relevant periods with the names withheld it could have done so But having already provided its customers’ names as part of the (largely irrelevant) data dumps of net metering applications and agreements etc it cannot claim confidentiality as a reason to Withheld the relevant portion of the information the billing data at the core of this case Any such objection is unreasonable and untimely, therefore waived Klutzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 54 Memorandum Oplnlon Page 11 of 19

fi23 The Court agrees 1f WAPA did not make a timely objection stating the

requested customer informatlon was “private or confidential,“ then WAPA waives

that objection See V I R CIV P 34(b)(2)(B) ( For each item or category the response

must either state that inspection and related activities Will be permitted as requested

or state With specifimty the grounds for objecting to the request including the

reasons ) However the Court will still need to conduct a legal analysis to determine

whether the personal information of unnamed potential class members is

discoverable

1124 The Court 3 impresswn as discussed below, is that at least some of the

requested information Will be discoverable However, the Court recommends that if

a subsequent motion to compel is filed both parties include legal authorities

supporting whether or not the requested personal information of unnamed class

members is indeed discoverable in precertification discovery

1125 Fourth WAPA argues the followmg

[Klotzbach] seeks through improper procedure to obtain private customer information in order to enrich h1mseif9 [(1)] he must file to have a class action certified [(2)] the Court must rule on the motion after considering the opposition thereto [(3)] the court must agree to certify the class in order for it to be a class action [(4)] proper notice must be given to the class and give those who do not Want to be part of the class an opportunity to opt out of membership in the class [Klotzbach] has

9 Klotzbach iephes that ‘WAPA levels the outrageous alngation that [Klotzbach] seeks th[e] discovery information to enrich himself” without evidence or even any explanation or reason given This at face value appears to he libel, plain and simple Which the Cnurt may wish to take into account in evaluating WAPAs defenses more generally Additionally both parties mention Rule 11 sanctions in their motions However the Court declines to address these arguments in this opinion as it has not been properly presented to thc Court Klotzbach V V I Water and Power Auth Case No ST 2013 CV 0044:) 2021 VI Super 64 Memorandum Opinion Page 12 of 19

done none of those thmgs H15 motxon to compel should therefore be denied

WAPA provides no further argument or authoritles to support its assertion that an

opt out notice is requlred in this case A notice is required under VI R CIV P

23(b)(3) but IS optional underVI R CIV P 23(b)(1) (2) SeeVI R CIV P 23(c)(2)(A)

(B) The requlrcd notlce must state that the court W111 exclude from the class any

member who requests exclusion’ SeeVI R CIV P 23(L)(2)(B)(V)

1126 Some California courts have found that a protective order, instead of an opt

out notice is sufficient to protcct the disclosure of putative class members contact

information See Amuraut u Sprmt/Umted Mgmt Co Case No 3 19 LV 411 WQH

AHG 2020 U S Dist LEXIS 7558 at *20 21 (S D Cal Jan 14 2020) (unpubhshed)

(collectmg cases) Thcsu Courts do not consxder contact informatmn to be partlcularly

sen51tive[ as] disclosure of ‘contact informauon alone involvcs no revelation of

personal or buslness secrets mtimate actlvitles and threatens n0 undue intrusmn

to one’s personal life See Ld at *23 (second alteratmn in origmal) (internal

quotatlons omitted) (mung Tiemo U Rm: Aid Corp No C 05 02520 TEH 2008 U S

Dist LEXIS 58748 at *10 (N D Cal July 31 2008) (unpublished)) see also Johnson

v M093 Bras Auto Grp ED CV 19 2456 FMO (SPx) 2020 U S Dlst LEXIS 167728

at *25 27 (CD Cal Sept 14 2020) (unpublished) Shaw 0 Experzan Info Sols Inc

306 F RD 293 301 (S D Cal 2015) (Cltmg Arm's u Deere & C0 276 F RD 348 r353

(N D Cal 2011)) Acevedo 1) Ace Coffee Bar Inc 248 F R D 550 at 554 55 (N D Ill Klotzhach v V 1 Water and Power Auth Case No ST 2013 CV 00445 2021 VI Suer 64 Memorandum Opinion Page 1‘; of 19

2008) (citing WLegele u Fedex Ground Package Sys CASE NO 06 CV 01330

JM(POR) 2007 U S Dist LEXIS 9444 at *6 (S D Cal Feb 8 2007) (unpublished))

1127 Klotzbach argues that {a]s to [WAPA]s remaining points ‘first’ through

fourth WAPA merely rehashes its claim that the class must be certified before

discovery can be conducted Nothing could he further from the truth Klotzbach

argues the following

[VI R CIV P] 23(0) (11kg [FED R CIV P] 23(0) requlres that class certification be c0n51dered by the [c]ourt “at an early practicable time here however the discovery information is needed from WAPA to better determine the scope and contours of the (.1855 e g roughly how many are affected and to what extent so plainly it is not yet a pYaCtICabie tune for that determination The attached law rev1ew article Schedule 1 details how extensive discovery prior to class certification is frequently deemed necessary by the partles and even required by courts as part of the rigorous reVIeW for class certification Such discovery is necessary here, and the cases [the article] Cites show that it can and should be cunducttd prior to a motion for class certification 1"

[Klotzbach] s counsel [states he] is aware only ofa dozen or two [affected customers],

mostly on St John but has reason to think there are many more on both St John

and St Thomas ” Additionally, Klotzbach argues that WAPA has failed to provide

“relevant billing related info for St Cram, St John and St Thomas Klotzbach also

m Klotzbach mseits the folluwing argument into his motion to compel from the attached article class certification requires some (at least) preliminary consideration of the merits of a plaintiff's claims and as a lesult discovery generally commences prior to a motion for class certification Indeed an increasing majority of federal courts of appeal haw. endorsed a rigorous assessment of whether a plaintiff has met the requirements of Rule 23 See Rebecca Justice Lazarus, Commentary, Dtscouevy Plan [a Class CerthiLalian New Canudezatwm and Challenges 9 21 MEAI FYbLITIb REP CLASS ALTIONS 1 1 2 (2010) Klotzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opinion Page 14 of 19

argues that, ‘full discovery is plainly required at this junctuu to establish the

necessary factual basis for [his] upcoming motion for class certification in this

matter

1128 In Amgen Inc v Connecthut Retirement Plans & Trust Funds 568 U S 455

(2013) the Supreme Court of the United States says [FED R CIV P] 23 grants

courts no hcense to engage in free ranging merits inquiries at the certification

stage Merits questions may bL considered (:0 thL extent but only to the extent that

they aim relevant to determining whether the [FED R CIV P] 23 prerequisites for

class certification are satisfied See Amgen Inc 568 U S at 466 (citing Wal Mart

Stores Inc V Dukes 564 US 3’38 351 n 6 (2011)) 11 Although Amgen Inc is not

binding, the Court finds this passage persuasive

1129 Accordingly, regarding potential class members, only dISCOVLI‘y information

needed to demde class Lertification is likely appropriate at this stagc This may, (1)

help protect potential class members private information and (2) help protect parties

from unnecessary discovery burden and cost See Moore U Westgate Resorts L P

3 18 CV 00410 DCLC 2020U S Dist LEXIS 224283 *11 (E D Tenn Nov 20 2020)

(unpublished) ( The Walker court declined to allow extensive discovery related to a

class that was not yet certified because It would potentially be a wasted effort and

U The US Supreme Court in Amgen Inc also states [it] ha[s] cautioned that a Courts class certification analysis must be rigorous and may entail some overlap with the merits of the plaintiff's underlying claim See Amgen Inc 568 U S at 465 66 (citing Wal Mart Stores Inc 564 U S at 391) The Court IS not addressing whether a class Certification analysis should be rigorous in this opinion Klotzhach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opinion Page 15 of 19

expense ) However this is not unduly limiting Klotzbach should have access, in an

appropriate manner, to the discovcry information needed to determine and tth

argue if necessary that class certification is warranted

$60 Apparently WAPA has already prov1ded personal information about

customers However, prov1ding customers‘ names With specific billing information

would result in even more personal information being released 6 g, speclfic

customers power usage See Amaraut, 2020 U S Dlst LEXIS 7058 at *23 (Citing

Tie) no 2008 U S Dist LEXIS 58748, at *10) (‘contact information alone ‘involvus no

revelation of personal or business secrets intimate acthitleS and threatens no

undue intrusion to one 5 personal life")

1131 Accordingly, the Court is unsure whether customer billing information along

with personal identifying information, is necessary or appropriate at this

precertlfication stage of discovery However, the Court IS inclined to believe that at

least the billing data With persona] customer information redacted may be

important to proving Klotzbach s class claim meets the elements for certification 12

See Jeff Kosseff note The Eluswe Value Protectmg Prwacy Durmg Class ACthn

DLscouery 97 GrO LJ 289 297 (2008) [hereinafter JLff Kosseff note The Elusive

Value] ( When informatlon appears to be necessary to resolve a certification issue

‘2 The Court also takes note of Klotzhach 5 concern that, the applications provided in WAPA 5 data dump were not even Complete as we were able to tell, matching up chm s: Crolx Excel table with the St Croix applications (we have no idea about St Thomas and St John applications, as we had no similar Excel list) Klotzbach v VI Water and Powu Auth Case No ST 2013 CV 00445 2021 VI Super 64 Mumurandum Opinion Page 16 of 19

courts ofth use prothtlve orders and redaction to protect the privacy of absent Llass

mumbcrs ); (RLply Mot Compel 11 7) (footnote omitted) ( the discovery information is

needed from WAPA to better determine the scope and contours of the class e g

roughly how many are affected and to what extent ) see also (Reply Mot Compel fl

5) (WAPA could have provide[d] billing information for its solar net metering

customers for the relevant periods With the names withheld ) Moreover, a protective

order may be sufficient to protect private information See, 9 g , Acevedo, 248 F R D

at 554 55 (allowmg disclosure of potential class members‘ contact information With

protective order) Shaw 306 F R D at 301 (citing Artis 276 F R D at 353 Coleman

u Jenny Craig Inc Civil No 11 CV 1301 MMA (DHB) 2013 U S Dist LEXIS 82815

at *33 35 (S D Cal June 12 2013) (unpublished)) (allowmg disclosure of ACDV data

with all ersonal information redacted’ and sugge‘iting a protective order limiting

the use of the requusted data and protecting it from disclosure ) Caleman 2013 U S

Dist LEXIS 82815 at *35 ( Withholding [dlefendant s payroll records but

allowing production of class member contact information time cards work schedules

and Ghant charts” with a protective order) Jeff Kosseff note The Elusive Value, 97

GLO L J at 297

1132 Fifth WAPA argues that “[Klotzbach] inappropriately bundles his motion to

compel with a request to extend the discovery deadlines so that he may engage in

even more unsanctioned class action discovery WAPA provides no authority to

support thls assertion However, because the Court is denying Klotzbach s motion to Klotzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 64 Memorandum Opinion Page 17 of 19

compel the Court Wlll not consider Klotzbach 5 request to extend deadlines at this

time

1l33 Slxth, WAPA argues that some of the Information [Klotzbach] seeks may no

longer exist WAPA has made a good faith effort to provide non confidential records

in 1ts possession 0f1ts customers in St Thomas St John and St Crmx ThlS sat1sfies

the V I Rules of Civil Procedure ’ The Court will not address this argument at length

at thls tlme However the Court notes an excerpt from Castillo v St Crow Basu

Servs Inc 2020 VI Super 35 In CastLllo the V I Superlor Court states,

[A] class complaint notifies the defendants not only of the substantive Llaims being brought agamst them but also of the number and generic ident1ties of the potential plaintxffs who may participate m the judgment The defendant will be aware ofthe need to preserve ev1dane and witnesses respecting the claims of all the members of the class

Castillo Tl 31 (quotmg Crawn 11 Parker 462 U S 345 353 (1983))

1134 The Court Wlll not address WAPA s seventh argument, or Klotzbach 5 reply to

the argument, in thls opimon The arguments regard what informatlon should be

disclosed and the usability of thls mformatmn However the Court recommends the

parties discuss these tomes 1f they meet and Lonfer

1135 Elghth WAPA argues that the Informatlon [Klotzbach] scuks should be in the

possession of the others he purports falsely to represent ” Add1tlonally WAPA

argues that “[Klotzbach] needs to contact [these others] and ask them to produce the

personal blllmg mfermatlon he seeks, not WAPA ” However Klotzbach argues that

he needs the requested discovery information to 1dent1fy the number of class Klotzhach V V I Water and Power Auth Case No ST 2013 CV 00445 2021VISupcr 64 Memolandum Opinion Page 18 of 19

members Addltionally Klotzbach alleges that WAPA CuStOmLI‘S do not have access

to the billing information for the years relevant to thxs case

fll36 Ninth WAPA argues that extending dlscovery deadlines is mappropnate to

resolve the personal claim of [Klotzbach] He has already recelvcd all of the

mformatwn that relates to his personal clalm The dlscovery deadlines should

therefore not be extended Th1s argument IS not persuaswe As noted above,

Klotzbach structured his action as a class actlon from the beginmng and may be

entitled to precertification class discovery See eg V I R CIV P 23 advisory

committee’s note, subpart (d)(3)

III CONCLUSION

{[37 The Court finds that Klotzbach did not comply with the meet and confer

requurement in VI R CIV P 37(a)(1) and 37 1 Therefore the Court W111 deny

Klotzbaths motlon to compel at the tune If another motion to compel is filed, the

partles should endeavor to comply with the guidelines 11) this opmion Moreover the

partles should consuier the Court 3 discussmn of WAPA‘s arguments to help facihtate

a productive meet and confer

1‘38 Once these discovery issues are resolved the Court expects there will be

enough information to rule on class certlflcation See Cornwall fl 40 n 9 ( The [c]ourt

has not concluded and leaves the question oan, whether thls case can proceed as a

class action To expedlte that determination the [c]ourt prevmusly gave the Plamtiffs Klotzbach v V I Water and Power Auth Case No ST 2013 CV 00445 2021 VI Super 54 Memorandum Opimon Page 19 of 19

untll September 16 2019 to move to certify a class”) Baptiste u St Craix Basw Serve

Case No SX 05 CV 042 2007 VI LEXIS 38 at *1 2 (VI Super Ct Apr 24 2007)

(unpublished) (citmg Perez v Gav tofthe VI 109 F R D 384 386 (D VI 1986) aff d

847 F 2d 104 (3d C1r 1988)) ( Nelther party has requested a ruling on certificatmn

However, the [c]ourt has an independent obligatlon to demde whether an action is

properly brought as a class action even Where neither party moves for a ruling on

class certification )

An Order con51stent w1th this Memorandum Opinion will be entercd

DATED June /¢ 2021 & f’g ééfi Kathleen Mackay Judge of the Supenor Court of the Virgm Islands

ATTEST TAMARA CHARLES Clerk of the Con

LATO A CAMACHO Court rk Superv1sorl D dAtZ-ml