United States District Court, D. Delaware
ENRICO MORETTI, individually and on behalf of Class Members, Plaintiff,
THE HERTZ CORPORATION, DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., and HOTWIRE, INC., Defendants.
LEONARD P. STARK, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Enrico Moretti's
(“Plaintiff”) motion to compel production of
documents by Defendants, the Hertz Corporation
(“Hertz”) and Dollar Thrifty Automotive Group,
Inc. (“DTAG”) (collectively
“Defendants”). (D.I. 179) For the reasons that
follow, the Court will grant Plaintiff's Motion.
alleges that he was forced to pay for unwanted insurance
services and charged an inflated foreign currency exchange
rate when he went to pick up his rental car, which he had
previously reserved online while in the United States, upon
arrival in Mexico for a vacation. Plaintiff alleges he was
made to pay several hundred dollars more than what he had
been quoted as the final price when he had made the original
online reservation. Plaintiff asserts that these practices -
forcing customers to purchase insurance and using inflated
exchange rates - were widespread and seeks to represent a
class encompassing many thousands of rental car transactions
in Mexico over a nine-year period. The relevant rental car
companies in Mexico are operated by DTAG's Mexican
licensee, Garpa Arrenda S.A. (“Garpa”), and
Hertz's Mexican licensee, Alquiladora de Vehiculos
Automotores, S.A. de C.V. (“Avasa” and,
collectively with Garpa, “Licensees”). Plaintiff
seeks an order compelling Defendants “to produce
documents sufficient to identify who picked up their reserved
rental cars in Mexico; what contract forms they signed;
whether they purchased additional insurance or damage-waiver
products; how much they paid; and the currency conversion
rate applied to the transaction.” (D.I. 180 at 2)
Rule of Civil Procedure 34 (“Rule 34”) allows
“[a] party . . . [to] serve on any other party a
request . . . to produce . . . in the responding party's
possession, custody or control . . . any designated documents
. . . .” “In the absence of control by a
litigating corporation over documents in the physical
possession of another corporation, the litigating corporation
has no duty to produce.” Gerling Int'l Ins. Co.
v. C.I.R., 839 F.2d 131, 140 (3d Cir. 1988). “In
the context of Fed.R.Civ.P. 34(a), so long as the party has
the legal right or ability to obtain the documents from
another source upon demand, that party is deemed to have
control.” Mercy Catholic Med. Ctr. v.
Thompson, 380 F.3d 142, 160 (3d Cir. 2004).
parties' primary dispute is whether Defendants have
“control” over the documents Plaintiff seeks, as
those documents are in the possession and custody of their
Licensees in Mexico. Plaintiff argues that the inspection
provisions in the contracts between Defendants and their
respective Licensees are sufficient to establish control
under Rule 34. (D.I. 180 at 2) Defendants insist that they do
not have control over the requested documents because, in
their view, the contracts provide only limited rights to
audit the documents at their Licensee's locations in
Mexico and to do so for limited purposes - purposes which do
not include making those documents available to third parties
for litigation in the United States. (D.I. 186 at 3)
Court agrees with Plaintiff. Defendants have control over the
disputed documents under Rule 34 and, thus, are required to
produce those documents in this litigation. The record
further establishes that Defendants have the practical
ability to obtain these documents. Defendants' arguments
for a contrary conclusion are unpersuasive.
contractual right to obtain documents in the possession of a
third party can constitute control for Rule 34 purposes.
See, e.g., Integra LifeSciences Corp. v.
HyperBranch Med. Tech., Inc., 2016 WL 675553, at *1 (D.
Del. Feb. 12, 2016) (stock purchase agreement with third
party provided requisite control); Lofton v. Verizon
Wireless (Vaw) LLC, 2014 WL 10965261, at *1 (N.D. Cal.
Nov. 25, 2014) (audit provisions in vendor contracts provided
control over third party's documents); Haskins v.
First Am. Title Ins. Co., 2012 WL 5183908, at *2 (D.N.J.
Oct. 18, 2012) (contracts provided control over and access to
third party agents' files).
to Defendants' arguments, the relevant contractual
provisions governing Defendants' access to documents in
the physical custody of their Licensees do provide Defendants
“the legal right or ability to obtain the documents . .
. upon demand.” Mercy Catholic, 380 F.3d at
contract between Hertz and Avasa states in relevant part:
To allow representatives of International or Hertz, at any
time during normal business hours, to
inspect the premises,
records, and vehicles of the
Licensee used in operation as a Hertz System Licensee
and to examine Licensee's records
ascertaining and verifying the number of
vehicles owned, leased, used or kept by the Licensee for use
in Licensee's Vehicle Renting Business, the revenues
therefrom and any - other information required by
Hertz with respect to the Licensee's Vehicle Renting
(D.I. 181-24 Ex. 24 at pp. 18-19 of 79) (emphasis added)
Thus, as the plain language of the agreement shows, Hertz has
the right “to inspect” and “to
examine” Avasa's “records” and
“any - other information required by Hertz with respect
to the” business Avasa engages in with Hertz.
the contract between DTAG and Garpa states in relevant part:
At any time during normal business hours, representatives of
Licensor may inspect any Station in
the Territory and the other business premises, Vehicles,
books and records of Licensee and
the books and records of the Owners and their Affiliates,
which relate in any way to the Licensed Business,
and may photograph or copy any parts thereof.
(D.I. 181-24 § 205(K)(5)) (emphasis added) Thus, as the
plain language of this agreement shows, DTAG has the right to
“inspect” Garpa's “books and
records” “which relate in any way to the Licensed
Business.” The documents Plaintiff seeks - records
showing customers who used rental cars, any rental insurance
bought, any contracts signed, the amount paid, and the
currency conversion rate used - relate to the ...