McMillion et al v. Rash Curtis & Associates

Filing 43

ORDER RE: DISCOVERY DISPUTE. Signed by Magistrate Judge Jacqueline Scott Corley on 4/21/2017. (ahm, COURT STAFF) (Filed on 4/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SANDRA MCMILLION, et al.,
Plaintiffs,

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Re: Dkt. No. 40
RASH CURTIS & ASSOCIATES,
Defendant.

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United States District Court
Northern District of California

ORDER RE DISCOVERY DISPUTE

v.

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Case No.16-cv-03396-YGR (JSC)

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Plaintiffs Sandra McMillion, Jessica Adekoya, and Ignacio Perez bring this case against

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Defendant Rash Curtis & Associates (“Rash Curtis”) as a putative class-action seeking injunctive

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relief and statutory damages. Plaintiffs allege that Rash Curtis, a debt collection agency, violated

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the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), Fair Debt Collection

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Practices Act, 15 U.S.C. § 1692 (“FDCPA”) and California’s Rosenthal Fair Debt Collection

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Practices Act, Civil Code § 1788 (“Rosenthal Act”) by repeatedly calling Plaintiffs’ cellular

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phones using an auto-dialer and/or artificial or pre-recorded voice. (Dkt. No. 1 ¶¶ 1-2, 58-74.)

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The case has been assigned to the undersigned magistrate judge for discovery. (Dkt. Nos. 21, 22.)

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Now pending before the Court is a joint statement regarding a discovery dispute about four sets of

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Plaintiffs’ Requests for Production. (Dkt. No. 40.) The Court sets a hearing on the discovery

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dispute for April 27, 2017 at 11:00 a.m.

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I.

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Request for Production No. 1
Plaintiffs’ Request for Production (“RFP”) No. 1 seeks production of “ALL

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DOCUMENTS and COMMUNICATIONS CONCERNING PLAINTIFFS.” (Dkt. No. 40-1 at 16

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(emphasis in original).) While Defendant has produced some responsive documents from a single

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software system it used to make debt collection calls, Plaintiffs lament that Defendant’s

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production is missing: (1) records from other software systems; (2) records of calls from after this

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lawsuit was initiated; (3) records related to skip traces Defendant performed to locate Plaintiffs;

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and (4) communications with third-party creditors regarding Plaintiffs’ accounts. Defendant

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contends that the other requested documents are not relevant or overbroad and that any discovery

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should be held in abeyance given Defendant’s pending motion to enforce settlement. The district

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court has since denied Defendant’s motion to enforce settlement. (Dkt. No. 41.) Defendant shall

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come to the April 27, 2017 hearing prepared to discuss whether each category of document exists,

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proposed limitations to the extent Defendant believes any category is overbroad, whether

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Defendant has begun to search for those documents, and how long Defendant will need to produce
responsive documents.

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United States District Court
Northern District of California

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II.

Requests for Production Nos. 4-8, 14, 17
The next set of RFPs seeks production of several categories of documents. (Dkt. No. 40-1

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at 16-18.) Defendant agrees to produce these documents. Defendant shall come to the April 27,

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2017 discovery hearing prepared to identify a date certain for production.

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III.

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Requests for Production Nos. 8-11
RFP Nos. 8 through 11 seek documents reflecting policies, procedures, and complaints

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regarding phone calls and FDCPA compliance. (Dkt. No. 40-1 at 16-17.) Plaintiffs seek an order

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compelling Defendant to produce employee disciplinary and audit reports concerning FDCPA

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compliance, the Rosenthal Act, or the TCPA, as well as internal communications concerning

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compliance with those laws. Defendant’s only response is that “employee discipline records are

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privacy protected, and implicate the rights of third parties[,]” and they are not relevant. (Dkt. No.

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40 at 4.) The documents are relevant, as it is broadly construed in the context of discovery.

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As for the privacy objection, under California’s constitutional right to privacy, the

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personnel records of employees are confidential and thus protected from discovery “unless the

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litigant can show a compelling need for the particular documents and that the information cannot

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reasonably be obtained through depositions or from nonconfidential sources.” Foster v. ScentAir

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Techs., Inc., No. 13-cv-05772-TEH (MEJ), 2014 WL 4063160, at *2 (N.D. Cal. Aug. 15, 2014)

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(citing Harding Lawson Assocs. v. Super. Ct., 10 Cal. App. 4th 7, 10 (1992)). Thus, it is
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insufficient for a party to state only that discovery of personnel records is necessary to facilitate

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the prosecution of the action. El Dorado Sav. & Loan Ass’n v. Super. Ct. of Sacramento Cnty.,

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190 Cal. App.3d 342, 345–46 (1987). The party must also show that there are no less intrusive

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means to “satisfy [the party’s] legitimate need for relevant information.” Id. at 346. Plaintiffs

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must come to the April 27, 2017 discovery hearing prepared to identify a compelling need for the

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documents and to demonstrate that the information cannot be obtained through other

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nonconfidential sources.

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IV.

Requests for Production Nos. 19-23
Finally, Plaintiffs challenge the boilerplate objections Defendant raised in response to RFP

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Nos. 19 through 23, which ask Defendant to identify every call recipients’ first name, last name,

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United States District Court
Northern District of California

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area code, cellular telephone number, date, and result of each call for all call campaigns run

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through a number of different autodialers. (Dkt. No. 40-1 at 28-29.) Plaintiffs contend that this

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discovery is crucial to class certification. For each of these requests, Defendant stated the same

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objections based on undue burden, oppression, and cost. Defendant argues that compiling these

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records “is burdensome and quite expensive, especially where it is uncertain whether this case will

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go forward” given its motion to enforce settlement. (See Dkt. No. 40 at 5.) Now that it is clear

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that the case will go forward (see Dkt. No. 41), that argument is a non-starter.
“Although courts sometimes refuse to allow discovery of putative class members’

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identities at the pre-certification stage, a purported ‘class list’ is still discoverable if it bears

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relevance to issues of class certification.” Webb v. Healthcare Revenue Recovery Grp. LLC, No.

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C-13-00737 RS, 2014 WL 325132, at *3 (N.D. Cal. Jan. 29, 2014) (internal citations omitted).

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Courts in this District and elsewhere have found that a list of numbers a particular autodialer

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called is relevant to Rule 23’s commonality requirement. See, e.g., id. (citations omitted); see

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also, e.g., Knutson v. Schwan's Home Serv., Inc., 2013 WL 3746118, at *8 (S.D. Cal. 2013). In

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Webb, the court ordered the defendant to produce the call list with the caveat that plaintiffs’

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counsel was prohibited from contacting any phone numbers on the list before class certification.

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Id.

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Here, Defendant does not contest the documents’ relevance. Instead, it contends that there
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are “less burdensome ways to conduct discovery such as by interrogatories” or by testing a

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random sample of records. (Dkt. No. 40 at 5.) Put simply, Defendant seeks to defer this discovery

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until after the district court has decided class certification. (Id.) There is no information in the

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joint statement regarding the quantity of records Defendant must search or the time and money

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such a search will likely entail. Thus, there is no basis before the Court to decide that these RFPs

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are unduly burdensome. Defendant shall come to the April 27, 2017 hearing prepared to discuss

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the burden of searching for and producing (1) all responsive documents and (2) a proposed

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random sample of documents and how the samples will be chosen.

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IT IS SO ORDERED.
Dated: April 21, 2017

United States District Court
Northern District of California

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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