Revitch v. Citibank, N.A.

Filing 93

ORDER DENYING 79 MOTION FOR DISCOVERY SANCTIONS by Judge Alsup. (whalc1, COURT STAFF) (Filed on 12/12/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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JEREMIAH REVITCH, on behalf of
himself and all others similarly situated,

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Plaintiff,

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No. C 17-06907 WHA
v.

ORDER DENYING
MOTION FOR
DISCOVERY SANCTIONS

CITIBANK, N.A.,
Defendant.
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INTRODUCTION
In this putative class action under the Telephone Consumer Protection Act, plaintiff

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moves to strike defendant’s affirmative defense for failure to timely produce discovery. For the

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following reasons, the motion is DENIED.

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STATEMENT
Plaintiff Jeremiah Revitch filed this putative class action in December 2017, alleging

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that defendant Citibank, N.A. called him at least five times on his cell phone using an autodialer

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and/or an artificial or prerecorded device despite plaintiff not being a Citibank customer. In its

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April 2018 answer to the complaint, defendant asserted an affirmative defense of “consent,”

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claiming that plaintiff and the putative class were barred from bringing a TCPA claim to the

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extent they provided “prior express consent” to defendant’s calls (Dkt. Nos. 1, 26).

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In September 2018, after plaintiff succeeded in moving to compel its production,
defendant produced between two and three terabytes of customer data relevant to its consent

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defense. From that data, defendant selected a sample set of more than 400 phone numbers

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(associated with more than 1,300 customer accounts) from which to analyze the underlying

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account records in connection with defendant’s defense. During a discovery hearing on

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October 17, defendant agreed to produce these account records — which it intended to rely on

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in support of its defense of consent — by November 9. The undersigned judge so ordered (Dkt.

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Nos. 71, 82-1 ¶¶ 11–12).

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Despite defendant’s agreement to do so, it failed to meet the deadline. Rather, on

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November 9, defendant filed a letter brief explaining that it had completed its collection of the

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account records at issue but that an additional week was needed to redact personally identifiable
information. Three days later, on November 12, plaintiff filed the instant motion to strike

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For the Northern District of California

United States District Court

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defendant’s affirmative defense of consent and to exclude all evidence offered in support of that

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defense for failure to meet the November 9 production deadline. On November 16, a week after

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the agreed-upon deadline, defendant produced the documents, having spent approximately

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$60,000 for an outside vendor to complete the redactions on an expedited basis (Dkt. Nos.

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78–79).

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This order follows full briefing. Pursuant to Civ. L.R. 7-1(b), this order finds the motion

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suitable for submission without oral argument and hereby VACATES the hearing scheduled for

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December 20.

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ANALYSIS
THE OCTOBER 17 DISCOVERY ORDER.

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1.

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Pursuant to FRCP 37(b)(2)(A), if a party fails to obey a discovery order, the district

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court “may issue further just orders,” including an order “prohibiting the disobedient party from

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supporting or opposing designated claims or defenses, or from introducing designated matters in

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evidence.” Defendant’s one-week delay in producing documents that plaintiff knew were

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coming down the pike does not warrant plaintiff’s requested relief of striking defendant’s

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affirmative defense and excluding supporting evidence.

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While defendant’s consent defense seems to be one of the key issues at play in this case,

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plaintiff has not shown any harm resulting from defendant’s failure to produce the documents a

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week earlier. To be sure, plaintiff’s expert had less time with the documents before plaintiff

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filed his motion for class certification. Nevertheless, plaintiff had the documents for nearly two

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weeks prior to the class certification deadline. Although noting that he had less time, plaintiff

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does not assert that he lacked sufficient time to analyze the documents. To the extent plaintiff

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claims to have been prejudiced by changes to the scheduling order, this order disagrees.

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Plaintiff himself asked for and agreed to such extensions (see Dkt. Nos. 64, 81).

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2.

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FRCP 26(a)(1)(ii) requires a party to include with its initial disclosures “a copy — or a

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description by category and location — of all documents . . . that the disclosing party has in its

DEFENDANT’S INITIAL DISCLOSURES.

possession, custody, or control and may use to support its claims or defenses, unless the use

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For the Northern District of California

United States District Court

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would be solely for impeachment.” FRCP 37(c)(1) provides that if a party fails to provide

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information required by FRCP 26(a), that “party is not allowed to use that information or

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witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was

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substantially justified or is harmless.” In addition, the district court “may order payment of the

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reasonable expenses, including attorney’s fees, caused by the failure.”

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Defendant served initial disclosures in May 2018 and first amended initial disclosures in

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June 2018. Those disclosures did not identify the documents at issue here (Dkt. No. 79-1).

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Defendant argues that the documents were not included in its initial disclosures because

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defendant did not identify them until September 2018. Plaintiff disputes this characterization,

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arguing that defendant “always had its call logs and customer data” (Dkt. No. 85 at 3). In any

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event, FRCP 37(c)(1) exempts a party from sanctions where failure to provide the information

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was harmless. For the same reasons explained above, such is the case here.

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3.

ATTORNEY’S FEES.

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Plaintiff also moves for attorney’s fees pursuant to FRCP 37(b)(2)(C), which directs

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district courts to order a “disobedient party, the attorney advising that party, or both to pay the

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reasonable expenses, including attorney’s fees, caused by the failure” to comply with the order,

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“unless the failure was substantially justified or other circumstances make an award of expenses

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unjust.” On November 6, defendant hired an outside team of fifty reviewers to redact highly-

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sensitive information (such as social security numbers and account passwords) from

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voluminous documents on an expedited basis. Moreover, on November 9 (prior to plaintiff

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filing the instant motion), defendant informed the Court of its need for a one-week extension of

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time. Under the circumstances, the one-week delay was substantially justified.

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CONCLUSION

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For the foregoing reasons, plaintiff’s motion for discovery sanctions is DENIED. The

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December 20 hearing is VACATED. Defendant shall ensure its compliance with all deadlines

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going forward.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: December 12, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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