Mbazomo v. ETourandTravel, Inc.

Filing 31

ORDER signed by District Judge Stanley A. Bastian on 05/26/17 ORDERING that 20 Plaintiff's Motion to Compel Production of Documents and Further Responses to Interrogatories is GRANTED; the parties are ordered to abide by the discovery decisions rendered by this Court as above. (Benson, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 AT SACRAMENTO 9 10 ONDRA MBAZOMO, on Behalf of No. 2:16-cv-02229-SB 11 Herself and all Others Similarly Situated, 12 Plaintiff, ORDER ON MOTION TO 13 v. COMPEL 14 ETOURANDTRAVEL, INC., Defendant. 15 16 17 Before the Court is Plaintiff’s Notice of Motion and Motion to Compel 18 Production of Documents and Further Responses to Interrogatories, ECF No. 20. 19 The Court has considered the motion, ECF No. 20; Plaintiff’s Notice of Request to 20 Seal Documents, ECF No. 21; the Joint Statement Regarding the Discovery 21 Disagreement, ECF No. 22, and the associated declarations and exhibits; the 22 sealed documents, ECF Nos. 29 and 30; Plaintiff’s Request for Judicial Notice, 23 ECF No. 23; and Plaintiff’s Request for Leave to File Response to Brannon 24 Declaration, ECF No. 25. 25 Fully briefed of the issues, the Court GRANTS the motion, orders the 26 production of discovery as described in detail below, and declines to order the 27 award of costs and fees in preparing this motion. 28 // No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 1 BACKGROUND 1 2 On September 19, 2016 Plaintiff Ondra Mbazomo filed this case under the 3 federal Telephonic Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., 4 alleging that Defendant ETourandTravel, Inc. illegally telephoned her using an 5 autodialier or an artificial or pre-recorded voice. Plaintiff filed the case as a 6 putative class action. Defendant moved to dismiss the case on November 9, 2016 7 and the Court denied the motion on December 8, 2016. 8 The Defendant properly answered and the parties entered a stipulated 9 protective order, which the Court declined to enter itself. An initial scheduling 10 conference occurred on January 23, 2017 where the Court ordered discovery to 11 ensue and set a timeline for a motion for class certification to be filed. The parties 12 met and conferred on several discovery disputes over the month of March 2017. 13 Plaintiff filed the instant motion to compel on March 28, 2017. 14 The parties jointly requested that several documents be filed under seal, and 15 jointly filed their Joint Statement Regarding the Discovery Dispute, ECF No. 22. 16 Plaintiff also requested that judicial notice be taken of an allegedly relevant 17 discovery order before the United States District Court for the Middle District of 18 Florida. 19 Finally, while this motion was pending before the Court, the parties 20 resolved Discovery Dispute No. 8 and stipulated to the extension of the discovery 21 deadline and the deadline to file the forthcoming motion for class certification. See 22 ECF Nos. 27 (proposing extensions) & No. 28 (ordering the extension). 23 STANDARD 24 25 After the 2015 amendments to the Federal Rules of Civil Procedure, 26 27 [p]arties may obtain discovery regarding any non-privileged matter 28 that is relevant to any party’s claim or defense and proportional to the No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 2 1 needs of the case, considering the importance of the issues at stake in 2 the action, the amount in controversy, the party’s access to relevant 3 information, the party's resources, the importance of the discovery in 4 resolving the issues, and whether the burden and expense of the 5 proposed discovery outweighs its likely benefit. 6 7 Fed. R. Civ. P. 26(b)(1). “The parties and the court have a collective responsibility 8 to consider the proportionality of all discovery and consider it in resolving 9 discovery disputes.” In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 10 (D. Ariz. 2016) (quoting Fed. R. Civ. P. 26 Advis. Comm. Notes 2015 Amends.)). 11 In a class action case, “[p]recertification discovery lies entirely within the court’s 12 discretion.” Doherty v. Comenity Capital Bank & Comenity Bank, No. 16CV132113 H-BGS, 2017 WL 1885677, at *3 (S.D. Cal. May 9, 2017) (citing Fed. R. Civ. P. 14 23). See also Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 15 2009) (citing Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 16 1977)) (“District courts have broad discretion to control the class certification 17 process.”). 18 Though in some cases and before some courts discovery may be initially 19 limited to “certification issues such as the number of class members, the existence 20 of common questions, typicality of claims, and the representative’s ability to 21 represent the class,” Gusman v. Comcast Corp., 298 F.R.D. 592, 595 (S.D. Cal. 22 2014) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359 (1978)), the 23 Court is fully within its discretion to set either bifurcated or non-bifurcated 24 discovery schedules in class action cases. McEwan v. OSP Grp., L.P., No. 14-CV25 2823-BEN (WVG), 2016 WL 1241530, at *2 (S.D. Cal. Mar. 30, 2016). See also 26 True Health Chiropractic Inc. v. McKesson Corp., No. 13-cv-02219-JST, 2015 27 WL 273188, at *1 (N.D. Cal. Jan. 20, 2015) (“The decision to bifurcate discovery 28 in putative class actions prior to certification is committed to the discretion of the No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 3 1 trial court.”). Indeed, “[f]acts that are relevant to the class determination 2 frequently will overlap with those relevant to the merits of the case.” Gusman, 298 3 F.R.D. at 595 (citing Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 349 (2011)). 4 DISCUSSION 5 6 Request for Judicial Notice, ECF No. 23. Because exhibits 11 and 12 were 7 filed with the Joint Statement, the Court takes judicial notice of them. Lee v. City 8 of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (“[A] court may take judicial notice of 9 ‘matters of public record.’”). Plaintiff argues that in another case, Gonzalez v. 10 ETourandTravel, M.D. Fla. 6:13-cv-827, a judge granted a similar motion to 11 compel. However, because the order in question is not binding on this Court, and 12 presented in a different posture, consideration of the Gonzalez order made no 13 effect on the Court’s determinations below. 14 15 Request for Leave to File Response to Declaration of Adam Brannon in 16 Support of Defendant’s Position in Joint Statement Re: Discovery Disagreement, 17 ECF No. 25. 18 Local Rule 251(c) of the United States District Court for the Eastern District 19 of California (construing Fed. R. Civ. P. 37) holds that “[a]ll arguments and 20 briefing that would otherwise be included in a memorandum of points and 21 authorities supporting or opposing the motion shall be included in this joint 22 statement, and no separate briefing shall be filed.” (emphasis added). Defendant 23 filed a separate declaration authored by Adam Brannon on April 14, 2017, which 24 purports to address issues of burdensomeness raised in the Joint Statement, ECF 25 No. 22. Plaintiff argues this is in violation of Local Rule 251(c), and asks that the 26 Court not consider the document. In her Request for Leave to File Response, 27 Plaintiff asks in the alternative that if the Court considers the affidavit filed by Mr. 28 No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 4 1 Brannon, that she be allowed to file a rebuttal affidavit to contest the factual 2 offerings from Defendant. 3 A prior ruling in this district indicates the affidavit should not be 4 considered: “[B]y filing a separate Memorandum of Law, and separate 5 declarations in support of its motion, [a different] defendant was not in compliance 6 with E.D. Cal. R. 251, which permits only the filing of (1) the Notice, and (2) a 7 Joint Statement, and no other documents. The Joint Statement . . . would include 8 all the documents which defendant, improperly, filed separately.” Andrews v. 9 Pride Indus., No. 2:14-CV-2154 KJM AC, 2016 WL 366394, at *1 (E.D. Cal. Jan. 10 29, 2016) (declining to consider separate filings). Thus, the Court will not 11 consider the Brannon affidavit, and will not allow Plaintiff to submit her own 12 affidavit. 13 14 Discovery Disputes 1—11, ECF No. 22. The Court proceeds to decide each 15 of the eleven discovery disagreements the parties have presented, in accord with 16 the above conclusions surrounding what materials to use in analyzing the disputes. 17 18 1. Discovery Issue #1: This dispute is an umbrella challenge to Defendant’s 19 allegedly boilerplate discovery objections regarding confidentiality; burden; 20 vagueness; and relevance. The specific objections to particular numbered issues 21 will be discussed in detail below; these summaries provide the Court’s overall 22 conclusions on the global objections. 23 A. Confidentiality. Defendant objects to the disclosure of names and 24 telephone numbers of potential class members on privacy grounds. Plaintiff 25 further points out that the parties have signed a protective order, while Defendant 26 argues that that protective order has not been, and will not be, signed by the Court. 27 “[T]he right of privacy is not absolute and may be subject to invasion 28 depending on the circumstances. Thus, privacy concerns are not an absolute bar to No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 5 1 discovery, but instead are subject to the balancing of needs.” Burgess v. Wm. 2 Bolthouse Farms Inc., No. 08-CV-1287LJOGSA, 2009 WL 4810170, at *3 (E.D. 3 Cal. Dec. 8, 2009). The requesting party must bear the burden of showing that the 4 need for the information outweighs the privacy right involved. Rangel v. Am. Med. 5 Response W., No. 1:09-cv-01467 AWI GSA, 2010 WL 5477675, at *3-4 (E.D. 6 Cal. Dec. 30, 2010). 7 In determining TCPA actions, California federal courts routinely hold that 8 name and telephone number disclosures do not present a serious privacy invasion. 9 See, e.g., Thrasher v. CMRE Fin. Servs., Inc., 2015 WL 1138469, at *3 (S.D. Cal. 10 Mar. 13, 2015). In contrast, Plaintiff’s need to establish class certification via the 11 disclosure of these names and telephone numbers is essential to her case. Plaintiff 12 has shown that her needs to pursue class action status outweigh this minimal 13 privacy right. 14 Further, the Court’s refusal to grant the request to enter the protective order 15 does not limit its effectiveness as signed by the parties. The Court concludes that 16 confidentiality concerns do not limit the requested discovery. See Wiegele v. 17 FedEx Ground Package Sys., No. 06–CV01330–JM(POR), 2007 WL 628041, at 18 *2, (S.D. Cal. Feb. 8, 2007) (“[B]efore class certification has taken place, all 19 parties are entitled to equal access to persons who potentially have an interest in or 20 relevant knowledge of the subject of the action, but who are not yet parties.”). 21 22 B. Burden. Plaintiff objects to what she considers insufficiently detailed 23 discovery grounds on the grounds of burden. Plaintiff raises three arguments. 24 First, Defendant’s objections are not specifically factual, nor shown by affidavit or 25 evidence. See, e.g., Sullivan v. Personalized Media Comms., LLC, No. 16-mc26 80183-MEJ, 2016 WL 5109994, at *3 (N.D. Cal. Sept. 21, 2016). Plaintiff states 27 Defendant had the opportunity to secure such an affidavit during their lengthy 28 No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 6 1 meet-and-confer obligations. As discussed above, Defendant eventually filed the 2 affidavit, but the Court finds it untimely and in violation of the local rule. 3 Plaintiff also argues that Defendant’s burden objections are raised only 4 through a nested argument related to relevance. Specifically, Plaintiff argues that 5 Defendant objected to discovery requests because those requests were “overbroad 6 and unduly burdensome insofar as [they] request[] documents that are not 7 relevant to the parties’ claims or defenses.” ECF No. 22 at 11:21-24. In essence, 8 Defendant objected that the requests were burdensome because they were 9 irrelevant. As a result, Plaintiff claims Defendant has waived any ability to make a 10 burden objection independent of the existing relevance objection. Finally, Plaintiff 11 argues that Defendant takes inconsistent positions arguing that some requested 12 material is both needed to establish defenses, and simultaneously too burdensome 13 to produce. 14 Defendant responds that particular burden objections are largely based on 15 the argument that it is overly burdensome to produce discovery related to merits 16 claims during the class certification discovery phase of a bifurcated discovery 17 process. To Defendant, this adequately explains why some information in their 18 possession may be relevant to establishing defenses on the merits, yet burdensome 19 to produce in the class certification stage. 20 As discussed below, the Court concludes that merits and class certification 21 discovery may ensue. Due to the particularity of these requests, there is no 22 overarching conclusion for the Court to reach on the issue of burdensomeness. The 23 Court makes individualized rulings on specific discovery disputes below. 24 25 C. Vagueness. Plaintiff objects to Defendant’s vagueness objections, 26 including phrases “you”; “third parties”; “calls”; “relating to”; and “database.” 27 Defendant responds that “you” and “your” were defined to include parties other 28 than Defendant; this rendered the request vague because Defendant can only No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 7 1 respond on its own behalf. Defendant also argues that “database” was vague when 2 styled in capitals (as in “DATABASE”). 3 “A request is sufficiently clear if it places the party upon reasonable notice 4 of what is called for and what is not.” Bakersfield Pipe & Supply, Inc. v. 5 Cornerstone Valve, LLC, No. 1:14-cv-01445-JLT, 2016 WL 3538251, at *1 (E.D. 6 Cal. June 29, 2016); see also Schwarzer, Tashima & Wagstaffe, CALIFORNIA 7 PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE BEFORE TRIAL (Rev. #1 2011) 8 Discovery, para. 11:1886 (“The apparent test is whether a respondent of average 9 intelligence would know what items to produce.”). Parties must produce 10 documents under the control of the party’s attorney. Meeks v. Parson, No. 0811 50246, 2009 WL 3303718 (E.D. Cal. Sept. 18, 2009). 12 The Court concludes that use of the term “DATABASE” is sufficiently clear 13 to place Defendants upon reasonable notice what information Plaintiff seeks. A 14 person of average intelligence would conclude that Plaintiff’s sought 15 electronically-stored collections of information. A review of the discovery 16 material shows that most operative discovery words were styled in capital letters 17 in the requests. Capitalizing “PERSONS” does not render the term vague, for 18 example. 19 Further, the terms “YOU” and “YOUR” are not vague. Further, the 20 inclusion of subsequent clauses including, for example, “THIRD PARTIES acting 21 on your behalf,” does not render the requests vague. Plaintiff specifically split 22 requests between “YOU” and “YOURSELF” and third parties acting on 23 Defendant’s behalf. This bifurcation between Defendant itself, and others acting 24 on Defendant’s behalf, does not allow Defendant to object to vagueness on 25 documents properly requested within Defendant’s control; rather this split renders 26 Plaintiff’s requests less vague, as they allow Defendant to provide information 27 properly within its control while also objecting in regards to information in the 28 hands of third parties. The Court finds the blanket vagueness objections meritless. No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 8 1 D. Relevance. Defendant makes numerous objections on the grounds of 2 relevance; including broader objections that discovery requests are not relevant to 3 claims or defenses, or narrower objections that some requested documents are not 4 relevant to the issue of class certification in a bifurcated discovery schedule 5 (implying the requests would be meritorious at a merits discovery phase). 6 Distinguishing between class certification discovery and merits discovery would 7 be a thorny issue, and Defendant points out that these objections “make up a 8 significant portion of this dispute.” ECF No. 22 at 15:7-8. The Court, however, 9 has not specifically stated that discovery would be bifurcated, and here explicitly 10 rules that discovery will not be bifurcated in this case. 11 “Arbitrary insistence on the merits/class discovery distinction sometimes 12 thwarts the informed judicial assessment that current class certification practice 13 emphasizes.” 21.14 PRECERTIFICATION DISCOVERY, MANUAL COMPLEX LIT. 14 § 21.14 (4th ed.). Indeed, the Manual of Complex Litigation recommends some 15 merits discovery during the precertification phase when a large case is involved. 16 Id. Further, Defendants did not request that discovery be bifurcated during their 17 initial discussions with Plaintiffs. ECF No. 9 at 6:3. And the Court concludes that 18 the discovery information sought is the sort that overlaps the merits/class 19 certification distinction. As a result, the Court orders that discovery on both class 20 certification and merits issues may occur. 21 22 2. Discovery Issue #2: Defendant’s Call Logs, Dial Lists, Etc. Plaintiff 23 requested “ALL call logs, dialing lists, DATABASE(s), DOCUMENTS and/or 24 ESI identifying or listing the names, addresses, telephone numbers, and/or email 25 addresses of CALL RECIPIENTS, including historical copies of any such 26 DATABASES or any other DOCUMENTS showing, or which can be used in 27 reconstructing, the history of any such DATABASES during the CLASS 28 PERIOD.” Defendant objected, as irrelevant for class certification, and therefore No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 9 1 overbroad, not proportional to the needs of the case, on privacy grounds, that 2 “DATABASES” is ambiguous, and that the information sought is protected by 3 attorney client privilege or other privileges. 4 Even if discovery had been phased, the Court agrees with the weight of 5 authority on this matter that call logs and dialing lists are “relevant to [the] 6 commonality” prong of the class certification inquiry. Webb v. Healthcare 7 Revenue Recovery Grp. LLC, No. C. 13-00737 RS, 2014 WL 325132, at *3 (N.D. 8 Cal. Jan. 29, 2014). The requested list would also be relevant to Plaintiff’s need to 9 show numerosity. 10 Gusman v. Comcast Corp., 298 F.R.D. 592 (S.D. Cal. 2014), turned on a 11 weighing of the production of admittedly relevant (under the prongs of 12 commonality and numerosity) out-going call logs against the burden, convenience, 13 and expense of producing a call log of twenty-two million potential class 14 members, an undeniably massive number. Id. at 597-98. There is no showing that 15 the relative burden is so high in this case, while the relevance of the information 16 remains the same. Additionally, there is no stipulation present in this case which 17 would render Plaintiff’s need to prove these elements moot, as there was in 18 Gusman. Since Plaintiff must prove this element, she should have the opportunity 19 to conduct proportional discovery on it. Though the Court is sympathetic to the 20 burden concerns of producing enormous and lengthy data files, the ability to do so 21 via csv and spreadsheet-ready data files reassures the Court that the request is 22 proportional to the needs of the case, especially given that Defendant may rely on 23 these same files to establish defenses. 24 As discussed above, the privacy concerns present are outweighed by 25 Plaintiff’s need, and that conclusion is unremarkable given the conclusions of 26 other courts. Defendants are ORDERED to produce the materials requested 27 through Request for Production No. 9. However, to protect the privacy rights these 28 third parties do possess, the Court will GRANT Defendant’s request to prohibit No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 10 1 Plaintiff and her counsel from contacting any person appearing on the call logs 2 unless and until a class becomes certified in this case at a later date. The call logs 3 and call lists produced in this case may not be used for any purpose if the motion 4 for class certification is denied. The documents shall be unredacted. 5 6 3. Discovery Issue #3: Documents Concerning Do-Not-Call Requests. This 7 issue encompasses Requests for Production Nos. 14, 16-17, and 19-20. Plaintiff 8 requested “ALL DCOUMENTS and/or ESI, including but not limited to 9 DATABASES, identifying or listing the names, addresses, telephone numbers, and 10 email addresses of anyone who requested that YOU or any third party acting on 11 YOUR behalf stop making automated and/or prerecorded calls to them.”; “ALL 12 internal do-not-call lists created or used by YOU (or anyone acting on YOUR 13 behalf) during the CLASS PERIOD”; “ALL COMMUNICATIONS concerning or 14 referencing any internal do-not-call lists created or used by YOU (or anyone 15 acting on your behalf) during the CLASS PERIOD”; “ALL COMMUNICATIONS 16 CONCERNING anyone who asked YOU or anyone acting on YOUR behalf to 17 stop CALLING them during the CLASS PERIOD”; “ALL audio recordings of 18 telephone calls to or from YOU CONCERNING REMOVAL REQUESTS or 19 complaints about CALLS during the CLASS PERIOD.” 20 Plaintiff argues that these discovery requests are necessary and relevant to 21 the certification of a Do-Not-Call Class alleged in the complaint. Do-Not-Call lists 22 also implicate Defendant’s defense that it called people who consented to calls, 23 and whether any alleged violations of the TCPA were willful or knowing. 24 Defendant raises objections on relevancy, burden, and confidentiality. ECF No. 22 25 at 28:16-26. However, much of the same considerations for Discovery Issue #2 26 inform the Court’s reasoning on this issue. A Do-Not-Call list is relevant to the 27 issue of consent, where plaintiffs must prove that calls were made without prior, 28 express consent. See, e.g., 47 U.S.C. § 227(b)(1)(B). Additionally, Defendant’s No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 11 1 stated reliance on a Do-Not-Call list to establish affirmative defenses renders the 2 list relevant. See Fed. R. Civ. P. 26. 3 Though producing an estimated three million numbers may be burdensome, 4 the Court concludes that the ability to produce the requested information in csv 5 data files renders the request a proportional one. And, as discussed above, 6 Plaintiff’s need is favorably weighed against the minimal privacy concerns 7 present. See Thrasher, 2015 WL 1138469, at *3. This is especially the case 8 because the Court will order Plaintiff’s counsel to restrict access and use of the 9 produced information. 10 For the above reasons, the Court ORDERS the production of all non- 11 privileged documents responsive to Requests for Production Nos. 14, 16-17, and 12 19-20. However, to protect the privacy rights these third parties do possess, the 13 Court will GRANT Defendant’s request to prohibit Plaintiff and her counsel from 14 contacting any person appearing on the call logs unless and until a class becomes 15 certified in this case at a later date. The call logs and call lists produced in this 16 case may not be used for any purpose if the motion for class certification is denied. 17 The documents shall be unredacted. 18 19 4. Discovery Issue #4: Documents and Communications Regarding 20 Consent. This issue encompasses Requests for Production Nos. 25 and 42: “ALL 21 DOCUMENTS relating to or supporting the Second Separate Defense [Consent] 22 alleged in ¶ 44 of YOUR Dec. 22, 2016 Answer in this action.”; and “ALL 23 DOCUMENTS and COMMUNICATIONS CONCERNING the procurement of 24 prior express written consent from anyone that YOU (or anyone acting on YOUR 25 behalf) called during the CLASS PERIOD.” 26 Plaintiff seeks these documents in order to counter Defendant’s stated 27 affirmative defense of consent. Plaintiff reports that the parties reached a 28 compromise of allowing the use of search terms and ESI protocols for requested No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 12 1 communications, and the use of exemplars of consent records and other documents 2 Defendant could use to establish a consent defense. Plaintiff contends this 3 compromise was breached when Defendant offered to produce exemplars but not 4 any documents concerning communications concerning the procurement of 5 consent. 6 Defendant argues that it obtains consent through many different methods, 7 and lists eight particular means. Because of these different means, there is no 8 master list or database of consenting individuals. Further, Defendant argues that to 9 prove whether any individual consented would require checking that individual’s 10 phone number in, presumably, up to eight databases. 11 Defendant further argues that Plaintiff’s request for ESI searchable 12 information on related documents is merits-oriented, rather than oriented to 13 determining whether prior express consent can be established on a class-wide 14 basis, because such requests would seek to determine whether any individual 15 provided consent, or if the methods of consent comply with the TCPA. 16 The Court approves of the production of exemplars of each method 17 Defendant will use to establish affirmative consent. The Court also concludes that 18 the existence or use of communications regarding the proposed ESI search terms 19 are a proportionate and reasonable compromise to identify any communications 20 that discuss how Defendant obtains consent. Such documents are relevant for 21 purposes of class certification. 22 The Court ORDERS that the parties shall exchange discovery on this issue 23 as contemplated in the March 23, 2017 letter and ESI protocol (Exhibits 8 and 9 to 24 the Joint Statement Re: Discovery Disagreement). However, to protect the privacy 25 rights these third parties do possess, the Court will GRANT Defendant’s request 26 to prohibit Plaintiff and her counsel from contacting any person appearing on the 27 produced documents unless and until a class becomes certified in this case at a 28 later date. The call logs and call lists produced in this case may not be used for any No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 13 1 purpose if the motion for class certification is denied. The documents shall be 2 unredacted. 3 5. Discovery Issue #5: Redacted Documents Responsive to Request for 4 5 Production No. 13. Plaintiff requests “ALL lists, DOCUMENTS and/or 6 DATABASE(s) containing the names, addresses, telephone numbers and/or email 7 addresses of anyone known to have made complaints concerning telephone calls 8 made to them by YOU or by any third party acting on YOUR behalf, including but 9 not limited to complaints to YOU by mail, e-mail or telephone, complaints 10 submitted to any government agency, complaints submitted to any other 11 organization such as the Better Business Bureau, Chamber of Commerce or other 12 consumer advice or protection organization, or any other organization of any 13 kind.” 14 In this request for information on customer complaint, the parties dispute 15 whether Defendant may turn over redacted documents that hide, as Defendant 16 claims, complaints that are irrelevant for purposes of a TCPA claim, and that hide 17 customer identifying information. As discussed above, the Court is convinced that 18 producing customer names and phone numbers is routine in TCPA cases, and will 19 follow suit here. Defendant claims it need not produce information that is not 20 relevant to Plaintiff’s claims. See, e.g., Weidenhamer v. Expedia, Inc., No. C1421 1239RAJ, 2015 WL 7158212, at *4-5 (W.D. Wash. Nov. 13, 2015). Plaintiff 22 contends that it is improper for Defendant to unilaterally decide what evidence to 23 redact. 24 The sealed redacted documents in question, ECF No. 30 at 12 (Ex. 19), do 25 not provide clarity on whether the customer complaints are properly redacted or 26 not, or why they were turned over if they were not relevant. In an abundance of 27 caution, the Court orders that unredacted versions of the documents be turned over 28 to Plaintiff to allow a good faith determination of relevancy. However, the Court No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 14 1 ORDERS that Plaintiff and her counsel be prohibited from contacting any person 2 appearing on the unredacted customer complaints unless a class becomes certified 3 in this case at a later date. The unredacted documents may not be used for any 4 purpose if the motion for class certification is denied. If the unredacted documents 5 are irrelevant to the case, Plaintiff shall destroy any physical or digital copies 6 immediately. 7 8 6. Discovery Issue #6: Documents Responsive to Request for Production 9 Nos. 15 and 43. Plaintiff requests “ALL DOCUMENTS, COMMUNICATIONS 10 and/or ESI referring or relating to any and all policies, procedures and practices 11 regarding whether and how YOU honor a CALL RECIPIENT’S request that YOU, 12 and/or any THIRD PARTY acting on YOUR behalf, stop making automated 13 and/or pre-recorded calls to his or her telephone and/or place him or her on YOUR 14 internal “do not call list.”; and “ALL DOCUMENTS and COMMUNICATIONS 15 CONCERNING YOUR policies and procedures for ensuring compliance with the 16 Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA’’).” 17 Plaintiff states that Defendant has produced written policies responsive to 18 the above requests, but objected to producing responsive emails. Defendant 19 responds that it has produced the responsive policies, but not related email 20 communications and audio recordings due to burden, irrelevance, and merits21 based objections. Defendant states these responsive documents are related to 22 individual requests to be placed on do-not-call lists. As discussed above, the Court 23 did not bifurcate discovery in this matter, and neither party requested that 24 bifurcation take place. The Court finds these requested documents relevant and 25 ORDERS their production. To protect the privacy rights these third parties 26 possess, the Court will GRANT Defendant’s request that Plaintiff and her counsel 27 are prohibited from contacting any person appearing on the call logs unless a class 28 becomes certified in this case at a later date. The call logs and call lists produced No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 15 1 in this case may not be used for any purpose if the motion for class certification is 2 denied. 3 4 7. Discovery Issue #7: Document Request No. 41. Plaintiff requests “ALL 5 DOCUMENTS and COMMUNICATIONS CONCERNING the procurement of 6 the telephone numbers that YOU (or anyone acting on YOUR behalf) called 7 during the CLASS PERIOD.” The parties disagree over whether this request is 8 duplicative of other discovery requests. No party indicates which requests it is 9 duplicative of. The Court finds that the request is relevant and properly sought as 10 it seeks to determine how Defendant sought masses of phone numbers, which 11 would tend to prove commonality and typicality. The request is also relevant to an 12 affirmative defense of consent. Defendant is ORDERED to produce any 13 documents and communications related to Document Request No. 41 not already 14 turned over as a result of other discovery requests. 15 16 8. Discovery Issue #8: The parties have stipulated that this issue has been 17 resolved. See ECF No. 27 & 28. The issue may be re-noted at a later date. 18 19 9. Discovery Issue #9: Documents and Information Concerning 20 Third Party Sources of Phone Numbers, Interrogatory No. 11 and Requests for 21 Production Nos. 38-39. Plaintiff asked Defendant to “IDENTIFY ALL third party 22 companies (including affiliates, marketing companies, consultants, agents or lead 23 generators) who provided YOU, or anyone acting on YOUR behalf, with 24 telephone numbers or calling lists used to make any CALLS during the CLASS 25 PERIOD.” Plaintiff also sought production of “ALL contracts or agreements in 26 which a third party company (including affiliates, marketing companies, 27 consultants, agents or lead generators) agreed to provide YOU telephone numbers 28 or dialing lists to CALL during the CLASS PERIOD”; and “ALL No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 16 1 COMMUNICATIONS with any company identified in YOUR response to 2 Interrogatory No. 11, or with any other third party company who provided YOU 3 telephone numbers or dialing lists to CALL during the CLASS PERIOD.” 4 Plaintiff seeks information on third parties and affiliates who provided 5 Defendant with phone numbers to make calls during the class period. Defendant 6 initially stated no such affiliates or third parties existed. However, Defendant later 7 responded that it acquires telephone numbers from affiliate hotels and from 8 customers who provide phone numbers to Defendant through contractual 9 documents with corporate affiliates. 10 Defendant responds that in each of these circumstances, customers provided 11 their telephone numbers directly to Defendant, not through any purported third 12 party, regardless of whether the third party is affiliated with Defendant. In 13 Defendant’s words, “ETourandTravel obtains telephone numbers from prospective 14 customers through information provided by the customers themselves, when they 15 provide consent to being contacted by ETourandTravel, and has not been provided 16 call lists or telephone numbers from third parties during the class period.” ECF 17 No. 22 at 50:10-13. 18 However, as Plaintiff states, there is evidence that third parties are involved 19 in the manner that Defendant obtains some of its phone numbers. See ECF No. 29 20 at 49:1-11. The issue becomes whether Defendant’s acquisition of phone numbers 21 from “hotels affiliated with ETourandTravel” and through customers “providing 22 their telephone numbers to ETourandTravel in contractual documents with 23 corporate affiliates,” Response to Interrogatory No. 12, counts as the provision of 24 “telephone numbers or calling lists” to Defendant, Interrogatory No. 11, and if 25 such third party entities are acting on Defendant’s behalf. 26 This is certainly the case. There can be no reasonable doubt that when a 27 third party entity (whether a bricks-and-mortar hotel or an affiliated website) 28 records a person’s telephone number and transmits it to Defendant, it is acting on No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 17 1 Defendant’s behalf to provide it with the telephone number. This is the case even 2 if such third party entities disclose that the information will be sent to Defendant. 3 The third party is the entity that is primarily responsible for the act of collection; 4 without the entity’s existence, the number would not be collected at all. Defendant’s argument that it understands that these requests “seek 5 6 information regarding whether any call lists were purchased by or provided to 7 [Defendant] during the putative class periods,” ECF No. 22 at 50:15-16, is 8 disingenuous. Interrogatory No. 11 clearly and plainly asks for “telephone 9 numbers or calling lists” (emphasis added), and interpreting this request to ignore 10 websites and third party affiliates that collect telephone numbers and transmit 11 them to Defendants does not “construe [the request] liberally and with common 12 sense.” Miller v. Panncucci, 141 F.R.D. 292, 292 (C.D. Cal. 1992). Defendant is 13 ORDERED to fully answer Interrogatory No. 11 and produce all non-privileged 14 documents responsive to Requests for Production Nos. 38-39. 15 10. Discovery Issue #10: Defendant’s Proposed “Rolling” Production. 16 17 Plaintiff urges the Court to set a certain date for Defendant to respond to discovery 18 requests, and Defendant responds that it indeed produced all relevant 19 documentation by April 5, 2017. Regardless, the Court’s orders above mean that 20 more documentation will be produced. Additionally, by previous order, the Court 21 set a new discovery deadline of September 15, 2017, and a new deadline for filing 22 a motion to certify a class by September 22, 2017. The parties now have sufficient 23 time to meet and confer in good faith regarding the production of the above 24 discovery requests, and to ensure that the newly produced discovery does not 25 prejudice any party’s attempts to conduct depositions, or any party’s efforts in 26 drafting motions or responses. 27 // 28 // No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 18 1 11. Discovery Issue #11: Fees and Costs Pursuant To Rule 37(a)(5)(A). The 2 Court must award reasonable expenses and attorney’s fees if a motion to compel is 3 granted, unless the non-movant’s position was substantially justified or if 4 awarding such costs and fees would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(ii) & 5 (iii); Hyde & Drath v. Baker, 24 F.3d 1162, 1171-72 (9th Cir. 1994). Plaintiff 6 provides six reasons that Defendant’s position was not substantially satisfied. 1) Plaintiff argues that Defendant refused to turn over documents and 7 8 information that a Florida court ordered be produced in a different case. However, 9 that court’s decisions are not binding on this court, and the discovery decision was 10 decided in a different posture. Thus, this Court will not consider the Gonzalez 11 issue. 12 2) Plaintiff argues that Defendant refused to produce merits-oriented 13 discovery, insisting that a bifurcated discovery schedule existed despite not asking 14 for bifurcated discovery in the Joint Status Certificate, ECF No. 9, and despite that 15 the Court ordered that discovery not be bifurcated at the May 22, 2017 discovery 16 conference or telephonic case scheduling conference. 17 However, the Court recognizes that the initial scheduling order was not 18 perfectly clear on whether discovery would be bifurcated between merits issues 19 and class certification issues. The Court decides that for this reason, Defendants 20 carried a substantial justification in their position regarding the discovery dispute. 21 3) Plaintiff argues that Defendant unfairly entered privacy-based objections 22 to many discovery requests despite signing a protective order binding between the 23 parties in this case. Further, Plaintiff contends Defendant was arbitrary in selecting 24 which allegedly confidential documents to withhold, indeed producing some 25 confidential documents when it suited. 26 Defendant replies that its privacy objections were proper. The Court 27 ultimately disagreed. A protective order bound the parties in this case, regardless 28 No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 19 1 of whether the Court agreed to it. However, it was reasonable for Defendant to 2 question the extant of the applicability of the protective agreement. 4) As discussed in Discovery Issue No. 9, supra, the Court concludes that 3 4 Defendant was unreasonable in its responses to Interrogatory No. 11 and Requests 5 for Production Nos. 38-39. Defendant was not substantially justified in this factor. 6 5) Plaintiff argues that Defendant unreasonably objected on the basis of 7 burden, without evidence, and even in regard to items identified in initial 8 disclosures and/or with intent to use in establishing defenses. The Court 9 concludes, however, that Defendant’s objection that merits-oriented discovery 10 could be burdensome in a bifurcated discovery process was not unreasonable. 11 However, Defendant’s evidentiary affidavit was untimely, and thus no evidence 12 was presented on the issue of burden. 13 6) Plaintiff argues that Defendant violated Fed. R. Civ. P. 34(b)(2)(C) by 14 not disclosing whether it withheld documents on the basis of its objections. 15 Defendant responds that it notified Plaintiff through meet-and-confer and 16 supplemental responses whether it was withholding on the basis of objections. The 17 Court considers these late responses inadequate, as Fed. R. Civ. P. 34(b)(2)(C) 18 states that “objections” must state whether the material is being withheld on the 19 basis of the objection, not supplemental responses. The Court concludes this 20 behavior could reasonably lead to extra work on part of Plaintiff. 21 Given the above considerations, the Court concludes that Defendant was 22 substantially justified in its discovery objections and positions and declines to 23 order fees or sanctions. 24 CONCLUSION 25 26 For the reasons above, the Court grants the motion to compel, in accordance 27 with the orders regarding each individual discovery dispute. Because Defendant’s 28 position was substantially justified, the Court declines to order fees or costs. No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 20 1 Accordingly, IT IS HEREBY ORDERED THAT: 2 1. Plaintiff’s Motion to Compel Production of Documents and Further 3 Responses to Interrogatories, ECF No. 20, is GRANTED. 4 2. The parties are ordered to abide by the discovery decisions rendered by 5 this Court as above. 6 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 7 and forward copies to counsel. 8 DATED this 26th day of May, 2017. 9 10 11 12 13 Stanley A. Bastian 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 2:16-cv-02229-SB ORDER ON MOTION TO COMPEL ^ 21

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