Berman v. Freedom Financial Network, LLC et al

Filing 92

ORDER by Magistrate Judge Jacqueline Scott Corley Re: 89 Joint Discovery Letter Brief. (ahm, COURT STAFF) (Filed on 11/1/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL BERMAN,
Plaintiff,

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FREEDOM FINANCIAL NETWORK,
LLC, et al.,

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United States District Court
Northern District of California

ORDER RE: DISCOVERY DISPUTE
JOINT LETTER

v.

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Case No.18-cv-01060-YGR (JSC)

Dkt. No. 89

Defendants.

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Plaintiff brings a putative class action against Defendants for violation of the Telephone

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Communications Privacy Act. Now pending before the Court is a discovery dispute joint letter

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from the parties regarding whether Plaintiff can contact consumers identified on the call logs

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produced by or to be produced by Defendants. (Dkt. No. 89.) After considering the parties’ joint

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discovery letter brief, the Court concludes that there is no good reason to bar Plaintiff from

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contacting consumers on the call logs, consumers who are potential percipient witnesses with

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information directly relevant to the issues in this case, including class certification issues. The

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cases cited by Defendants do not persuade the Court otherwise. First, all recognize the

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appropriateness of producing the call log information. Second, the two cases that included a non-

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contact order did not contain any reasoning as to why a complete bar was warranted. Further,

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Defendants’ argument assumes they win the case, an assumption not yet borne out by the

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evidence.

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Nonetheless, the Court is mindful that the only reason Plaintiff can contact these

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consumers is because Plaintiff filed a lawsuit. See Artis v. Deere & Co., 276 F.R.D. 348, 352

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(N.D. Cal. 2011) (putative class members have a privacy interest in their contact information);

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Khalilpour v. CELLCO P’ship, No. C 09-02712 CW MEJ, 2010 WL 1267749, at *3 (N.D. Cal.

Apr. 1, 2010) (“the potential putative class members in this controversy have a legally protected

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interest in the privacy of their phone numbers and a reasonable expectation of privacy”). In other

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words, these potential class members did not consent to being contacted by telephone by

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Plaintiff’s counsel and thus their privacy rights are implicated. See Willner v. Manpower, Inc.,

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No. C 11-2846 JST (MEJ), 2013 WL 12324002, at *2 (N.D. Cal. Mar. 27, 2013) (“Contact by

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telephone constitutes a more serious invasion of privacy because the putative class members

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cannot ignore a telephone call the same way they can ignore a solicitation that arrives by mail.”)

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Accordingly, to ensure that the harm which Plaintiff is attempting to redress through this lawsuit is

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not exacerbated by Plaintiff’s efforts to contact consumers, the Court orders Plaintiff to submit to

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the Court a proposed protective order that includes a detailed plan for how he is going to contact

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United States District Court
Northern District of California

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these consumers and other proposed limitations on the use of this information. See, e.g.,

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Khalilpour, 2010 WL 1267749, at *4. Unless and until the Court approves Plaintiff’s proposed

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protective order, Plaintiff shall refrain from directly contacting consumers identified on the call

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logs. This Order does not prohibit Plaintiff from communicating with consumers who initiate any

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communication.

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This Order disposes of Docket No. 89.

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IT IS SO ORDERED.
Dated: November 1, 2018

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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