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
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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
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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
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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)
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Memorandum Opimon
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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
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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
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Case No ST 2013 CV 00445 2021VISuer 64
Memorandum Opinion
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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
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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
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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
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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
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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
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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
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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
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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
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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