Gusman v. Comcast Corporation

Filing 41

ORDER Resolving 29 Joint Motion for Determination of Discovery Dispute. Signed by Magistrate Judge David H. Bartick on 4/2/2014. (srm)(jrd)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13
14

JAMES GUSMAN, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
COMCAST CORPORATION,
Defendant.

Civil No.

13-cv-1049-GPC (DHB)

ORDER RESOLVING JOINT
MOTION FOR
DETERMINATION OF
DISCOVERY DISPUTE
[ECF No. 29]

15
16

On March 5, 2014, Plaintiff James Gusman (“Plaintiff”) and Defendant Comcast

17

Corporation (“Comcast” or “Defendant”) filed a Joint Motion for Determination of

18

Discovery Dispute. (ECF No. 29.) The Court held a telephonic Discovery Conference

19

on March 14, 2014 to discuss issues raised in the joint motion. (ECF No. 33.) Following

20

the Discovery Conference, the parties submitted a Joint Status Report. (ECF No. 37.)

21

Having considered the arguments of the parties and the applicable law, and for the

22

reasons set forth herein, the Court DENIES Plaintiff’s motion to compel Comcast to

23

produce its outbound dial list and documentary evidence of prior express consent.

24

Additionally, the Court GRANTS IN PART Comcast’s motion to compel production of

25

Plaintiff’s retainer and fee agreements.

26

I. BACKGROUND

27

Plaintiff commenced this putative class action on May 2, 2013 by filing a

28

complaint alleging that Comcast violated the Telephone Consumer Protection Act
-1-

13cv1049-GPC (DHB)

1

(“TCPA”), 47 U.S.C. § 227 et seq. (ECF No. 1.) Specifically, Plaintiff alleges that

2

“[b]eginning in February 2013, Defendant began contacting Plaintiff, sometimes as many

3

as ten times in a single day, with an automatic telephone dialing system (‘ATDS’) as

4

defined by 47 U.S.C. § 227(a)(1) using an ‘artificial or prerecorded voice’ as prohibited

5

by 47 U.S.C. [§] 227(b)(1)(A) in order to discuss Defendant’s prescription services with

6

Plaintiff.” (Id. at 4:22-26.) Plaintiff further alleges he informed a representative on each

7

occasion “that Plaintiff was not a current subscriber to Defendant’s servicers nor had

8

Plaintiff ever been a subscriber.” (Id. at 5:4-6.) Plaintiff did not provide his cellular

9

telephone number, which he obtained on or about February 1, 2013, to Comcast at any

10

time. (Id. at 5:7-11.) Plaintiff further alleges Comcast’s use of an ATDS to contact

11

Plaintiff was not done for emergency purposes, the calls constitute solicitations under the

12

TCPA, and “Plaintiff did not provide prior express consent to receive calls or messages

13

on Plaintiff’s cellular telephones.” (Id. at 5:21-26.)

14

According to the operative Complaint, Plaintiff seeks to certify the following class:

15

“[A]ll persons within the United States who received any unsolicited marketing and

16

artificial or prerecorded voice messages from Defendant without prior express consent

17

which message by Defendant or its agents was not made for emergency purposes, within

18

the four years prior to the filing of this action.” (Id. at 6:4-8.)
II. DISCUSSION

19
20

A.

Legal Standards

21

The threshold requirement for discoverability under the Federal Rules of Civil

22

Procedure is whether the information sought is “relevant to any party’s claim or defense.”

23

FED. R. CIV. P. 26(b)(1). In addition, “[f]or good cause, the court may order discovery

24

of any matter relevant to the subject matter involved in the action. Relevant information

25

need not be admissible at the trial if the discovery appears reasonably calculated to lead

26

to the discovery of admissible evidence.” Id. The relevance standard is thus commonly

27

recognized as one that is necessarily broad in scope in order “to encompass any matter

28

that bears on, or that reasonably could lead to other matter that could bear on, any issue
-2-

13cv1049-GPC (DHB)

1

that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

2

(1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)).

3

However broadly defined, relevancy is not without “ultimate and necessary

4

boundaries.” Hickman, 329 U.S. at 507. Accordingly, district courts have broad

5

discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296

6

F.3d 732, 751 (9th Cir. 2002); Vonole v. Countrywide Home Loans, Inc., 571 F.3d 935,

7

942 (9th Cir. 2009) (“District courts have broad discretion to control the class

8

certification process, and ‘[w]hether or not discovery will be permitted . . . lies within the

9

sound discretion of the trial court.’”) (citing Kamm v. Cal. City Dev. Co., 509 F.2d 205,

10

209 (9th Cir. 1975)). District courts also have broad discretion to limit discovery. For

11

example, a court may limit the scope of any discovery method if it determines that “the

12

discovery sought is unreasonably cumulative or duplicative, or can be obtained from

13

some other source that is more convenient, less burdensome, or less expensive.” FED. R.

14

CIV. P. 26(b)(2)(C)(I).

15

Generally at the pre-class certification stage, discovery in a putative class action

16

is limited to certification issues such as the number of class members, the existence of

17

common questions, typicality of claims, and the representative’s ability to represent the

18

class. Oppenheimer Fund, 437 U.S. at 359. Although discovery on the merits is usually

19

deferred until it is certain that the case will proceed as a class action, the

20

merits/certification distinction is not always clear. Facts that are relevant to the class

21

determination frequently will overlap with those relevant to the merits of the case. See

22

Wal-Mart Stores Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2551-52 (2011) (explaining

23

that often the “rigorous analysis” under Rule 23(a) “will entail some overlap with the

24

merits of the plaintiff’s underlying claim. That cannot be helped.”).

25

B.

Plaintiff’s Motion to Compel

26

Plaintiff seeks a court order compelling Comcast to produce (1) its outbound dial

27

list of calls made to consumers using an ATDS (ECF No. 29 at 5:23-8:2), and (2)

28

documentary evidence of prior express consent. (Id. at 8:4-10:25.)
-3-

13cv1049-GPC (DHB)

1

1.

2

Plaintiff’s Request for Production No. 71 to Comcast states:

3

Produce any and all DOCUMENTS relating to or regarding, and including,
any and all reports for each outbound dial list to persons that YOU called on
behalf of YOURSELF, and/or any third party, including those outbound dial
lists, in electronically searchable format (CSV for comma delimited format),
generated by any autodialer campaign in which YOU or YOUR agents
engaged since four years prior the filing of this action to the date of
responding to these document requests.

4
5
6
7

Outbound Dial List

(ECF No. 29-1 at 13:8-14.)

8

Plaintiff claims Comcast’s outbound dial list is discoverable in that it is relevant

9

to Federal Rule of Civil Procedure 23(a) class certification requirements of numerosity

10

and commonality. (ECF No. 29 at 6:6-7:19.) Plaintiff also maintains the outbound dial

11

list is relevant to the issue of manageability under Rule 23(b)(3). (Id. at 7:20-28.)

12

Comcast contends Plaintiff’s request for the outbound dial list is overbroad in light

13

of Comcast’s 22 million subscribers and because the request fails to distinguish between

14

different categories of calls, i.e., collection calls versus marketing calls. (Id. at 16:10-

15

17:6.) Comcast also contends the request is not limited to calls made from any particular

16

type of dialing equipment or calls placed from the particular geographic division as the

17

calls placed to Plaintiff. (Id. at 17:7-14.)
a.

18

Numerosity

19

Plaintiff contends “[t]he outbound dial list during the class period is relevant to the

20

numerosity prerequisite because it will allow Plaintiff to explain to the Court

21

approximately how many cellular telephone numbers were called during the class period,

22

which information can be used to reasonably determine whether there are enough class

23

members that resolving the claims outside the class action mechanism of recovery would

24

be impracticable.” (Id. at 6:6-12.) In support of its contention, Plaintiff relies on Stemple

25

v. QC Holdings, Inc., 2013 U.S. Dist. LEXIS 99582, at *6 (S.D. Cal. June 17, 2013).

26

(ECF No. 29 at 6:13-16.)

27
28

1

Plaintiff’s Request for Production Nos. 8-10 contain similar language regarding
production of Comcast’s outbound dial list. (ECF No. 29-1 at 13:15-14:12.)
-4-

13cv1049-GPC (DHB)

1

The Court agrees with Plaintiff that Comcast’s outbound dial list is reasonably

2

calculated to determine the number of calls Comcast made to cell phones during the class

3

period. Thus, the outbound dial list is relevant to numerosity. However, the Court

4

concludes that Plaintiff has less intrusive and burdensome means available to him to

5

obtain evidence which could be used to satisfy the Rule 23(a)(1) numerosity prerequisite.

6

Indeed, carefully-drafted interrogatories or requests for admission, or Comcast’s Rule

7

30(b)(6) deposition, can be utilized to obtain the relevant data to determine an

8

approximate number of calls made to cell phones using an autodialer during the proposed

9

class period.

10

One of Plaintiff’s alternative proposals supports the Court’s conclusion. In lieu of

11

production of the outbound dial list, Plaintiff proposes that “Defendant’s technology

12

consultant . . . scrub the outbound dial list for cellular telephone numbers only and then

13

inform Plaintiff’s counsel of the total number of unique cell phones called during the

14

class period and call frequency. This would obviate the need for actual production of the

15

outbound dial list for pre-certification purposes.” (Id. at 5:12-17.) Thus, Plaintiff

16

concedes that production of the list is not necessary if Plaintiff were provided the total

17

number of cell phones called and the call frequency. Such information is obtainable via

18

much less burdensome discovery methods.

19

Comcast argues “[t]he breadth of [Plaintiff’s request] is staggering.” (Id. at 16:11.)

20

While Comcast would have strengthened its position by articulating with specificity the

21

burden it would face in producing its outbound dial list, the Court finds that production

22

of the outbound dial list would impose an undue burden on Comcast in light of the other

23

available means of obtaining the relevant information. As Plaintiff recognizes, “[t]he

24

court is able to make common-sense assumptions in determining numerosity.” McCabe

25

v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002). Similarly, the Court here

26

makes the common-sense assumption that given Comcast’s 22 million subscribers,

27

production of Comcast’s call list over a four-year period will entail significant time and

28

expense. In light of the actual information Plaintiff seeks to obtain, i.e., number of cell
-5-

13cv1049-GPC (DHB)

1

phones called and call frequency, and the availability of other, less burdensome methods

2

of discovering this information, the Court finds that requiring Comcast to expend the time

3

and resources to produce the outbound dial list is not warranted.

4

The Court also concludes the request is also overbroad and unreasonably

5

burdensome given the uncertain nature of Plaintiff’s class allegations. As stated above,

6

Plaintiff’s operative Complaint seeks to certify a class of “all persons within the United

7

States who received any unsolicited marketing and artificial or prerecorded voice

8

messages from Defendant without prior express consent which message by Defendant or

9

its agents was not made for emergency purposes, within the four years prior to the filing

10

of this action.” (ECF No. 1 at 6:4-8 (emphasis added).) Comcast contends that

11

marketing calls are not applicable in this case because Plaintiff did not receive marketing

12

calls. Rather, Plaintiff received collection calls made to a phone number that had

13

previously been assigned to a Comcast subscriber, but was later assigned to Plaintiff, a

14

non-subscriber. Thus, according to Comcast, this case involves a “recycled” phone

15

number. (ECF No. 29 at 15:2-5; ECF No. 29-2 at 2:13-3:2.) Although this distinction

16

goes to the merits of Plaintiff’s allegations and will be decided at the proper time in this

17

case, it is important for discovery purposes because the scope of Plaintiff’s proposed class

18

is not entirely clear. On one hand, the Court is bound by the class definition provided in

19

the Complaint. See Ortiz v. McNeil-PPC, Inc., 2009 U.S. Dist. LEXIS 39584, at *2 (S.D.

20

Cal. May 8, 2009). On the other hand, the “recycled” phone number facts presented by

21

Comcast, which are not disputed by Plaintiff, do not justify imposing a significant burden

22

on Comcast to produce an outbound dial list of marketing calls when it appears this case

23

involves collection calls.2

24

Accordingly, although the outbound dial list is relevant to the issue of numerosity,

25

under the circumstances of this case it is appropriate to DENY Plaintiff’s request for the

26

list because “the discovery sought . . . can be obtained from some other source that is

27
28

2

Plaintiff’s counsel even acknowledged during the March 14, 2014 Discovery
Conference that this case involves debt collection calls rather than marketing calls.
-6-

13cv1049-GPC (DHB)

1

more convenient, less burdensome, or less expensive” and Plaintiff “has had ample

2

opportunity to obtain the information by discovery in this action.” FED. R. CIV. P.

3

26(b)(2)(C)(I)-(ii).

4
5
6

b.

Commonality

Plaintiff also contends Comcast’s outbound dial list is relevant to Rule 23(a)(2)’s
commonality prerequisite. (ECF No. 29 at 6:18-7:18.)

7

“Class certification requires a plaintiff to show ‘there are questions of law or fact

8

common to the class.’” Knutson v. Schwan’s Home Serv., Inc., 2013 U.S. Dist. LEXIS

9

98735, at *20 (S.D. Cal. July 15, 2013) (citing FED. R. CIV. P. 23(a)(2)). “To satisfy

10

commonality, a plaintiff must actively show the putative class ‘suffered the same injury

11

. . . such that the . . . class claims will share common questions of law or fact’ with those

12

of the named plaintiffs.” Id. (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S.

13

147, 157 (1982)). “Merely stating questions common to all putative class members is

14

insufficient, however, because ‘[a]ny competently crafted class complaint literally raises

15

common ‘questions.’” Id. at *20-21 (quoting Wal-Mart, 131 S. Ct. at 2551). “As a result,

16

the test of commonality is not whether common questions exist, but whether common

17

answers to critical questions of law and fact can be reached without impediment.” Id. at

18

*21 (citing Wal-Mart, 131 S. Ct. at 2551). “Since the plaintiff carries the burden of

19

demonstrating commonality, such proof may overlap with findings of merit of the

20

plaintiff’s claim.” Id. at *21 (citing Wal-Mart, 131 S. Ct. at 2551-52).

21

In Knutson, Judge Curiel stated:

22

The common question is thus, “were we all called on our cellular
telephones, by an autodialer or artificial or prerecorded voice, on behalf of
[defendant], without having given express consent?” A list of numbers
dialed by an autodialer on behalf of [defendant] for a singular purpose could
be relevant to this inquiry, especially since Plaintiffs claim the cell phone
numbers can be reliably identified within the list and used in conjunction
with evidence of lack of consent.

23
24
25
26

2013 U.S. Dist. LEXIS 98735, at *22.

27

On remand in Knutson, the undersigned concluded that a truncated dial list was

28

indeed relevant to the question of commonality because it would show, after being
-7-

13cv1049-GPC (DHB)

1

analyzed by the plaintiffs’ consultants, whether the calls made by the defendant were

2

made to the putative class members’ cellular telephones. Knutson v. Schwan’s Home

3

Service, Inc., 2013 U.S. Dist. LEXIS 103094, at *4 (S.D. Cal. July 23, 2013).

4

Similarly, here, Comcast’s outbound dial list is relevant to the issue of whether the

5

putative class members were called on their cellular phones by an ATDS. However, as

6

with the issue of numerosity, the Court concludes, in its discretion, that production of the

7

outbound dial list is unwarranted because “the discovery sought . . . can be obtained from

8

some other source that is more convenient, less burdensome, or less expensive” and

9

Plaintiff “has had ample opportunity to obtain the information by discovery in this

10

action.” FED. R. CIV. P. 26(b)(2)(C)(I)-(ii). Specifically, Plaintiff is able to utilize less

11

burdensome methods of discovery to determine whether Comcast made calls to cell

12

phones using an ATDS without having prior express consent. Accordingly, although the

13

outbound dial list is relevant to the issue of commonality, under the circumstances of this

14

case it is appropriate to DENY Plaintiff’s request for the list.3

15

2.

16

Plaintiff’s Request for Production No. 12 states:

17

Produce the DOCUMENTS that YOU used to determine whether the
cellular telephone numbers to be called by YOU had provided their “prior
express consent”, as that term is used in 47 U.S.C. Section 227(b)[1](A),
prior to making any attempt to call those numbers, including but not limited
to any electronic notations in the outbound dial list that the called party
provided “prior express consent,” and including all DOCUMENTS that
YOU may rely on at trial or other hearing in this case to establish “prior
express consent” was provided to YOU since four years prior to the filing
of this action to the date of responding to these document requests.

18
19
20
21
22

Prior Express Consent Documentation

(ECF No. 29-1 at 14:20-28.)

23

Plaintiff seeks to compel Comcast to produce all documentary evidence of prior

24

express consent, which Plaintiff characterizes as an affirmative defense rather than an

25

element of his TCPA claim. (ECF No. 29 at 8:15-9:16.) Alternatively, Plaintiff seeks,

26
27

3

In light of the Court’s ruling that Comcast need not produce its outbound dial list,
the Court does not address the parties conflicting arguments regarding the application of
28 the Cable Communications Act of 1984, 47 U.S.C. § 521 et seq.
-8-

13cv1049-GPC (DHB)

1

at a minimum, “the blank customer contracts and other blank forms used by Defendant

2

to purportedly obtain prior express consent.” (Id. at 9:17-18.) Plaintiff claims “[t]hese

3

blank contracts/forms will assist Plaintiff in demonstrating whether the language on the

4

forms are sufficient to obtain prior express consent for Defendant to make automated and

5

or prerecorded calls to the putative class members.” (Id. at 9:20-24.) Absent this

6

documentation, Plaintiff claims he will be prejudiced if Comcast later uses unproduced

7

consent documents in opposing Plaintiff’s anticipated motion for class certification. (Id.

8

at 10:2-19.)

9

In opposition to Plaintiff’s request, Comcast argues that because Plaintiff “has

10

never been a Comcast subscriber [he] lacks standing to challenge the efficacy” of

11

Comcast’s subscriber agreements. (Id. at 13:23-24.) Comcast also contends that it is

12

Plaintiff that must prove lack of consent as an element of his TCPA claim. (Id. at 20:5-

13

14.) Comcast also argues disclosure of its subscriber’s consent documentation raises

14

privacy concerns. (Id. at 20:16-21:6.) Finally, Comcast’s counsel represented during the

15

March 14, 2014 Discovery Conference that Comcast has already produced a screenshot

16

showing that the prior subscriber had provided the phone number at issue as well as

17

copies of its Agreement for Residential Services and its Customer Privacy Notice (see id.

18

at 19:5-8), and that Comcast does not expect to rely on any other documents on the issue

19

of prior express consent.

20

Upon consideration of this issue, the Court concludes that Comcast has satisfied

21

its discovery obligation. Plaintiff agrees with Comcast that he was not a Comcast

22

subscriber at the time he received the phone calls at issue. (ECF No. 1 at 5:4-6.)

23

Moreover, Comcast has produced its Agreement for Residential Services and its

24

Customer Privacy Notice. At this stage of the case it is premature to order Comcast to

25

provide any more specific express consent documents, particularly in light of the fact that

26

Plaintiff, at this juncture, has failed to clearly define the putative class definition. As

27

discussed above, the Complaint alleges a class definition involving marketing calls;

28

however, in the recently filed Joint Status Report (ECF No. 37), Plaintiff’s class
-9-

13cv1049-GPC (DHB)

1

definition emphasis has morphed into an emphasis on debt collection calls. Because the

2

class definition appears to be a moving target, it is inappropriate to require Comcast to

3

provide additional express consent documentation until after Plaintiff has clearly defined

4

his class definition in his formally filed class certification motion. In this regard, any

5

surprise Plaintiff may experience when Comcast opposes class certification is a result of

6

Plaintiff’s own decisions which have left the class definition in flux.

7

Accordingly, Plaintiff’s motion to compel Comcast to produce further documents

8

regarding prior express consent is DENIED. In light of this ruling, the Court need not

9

address at this stage the parties’ conflicting positions on whether prior express consent

10

is an affirmative defense to be established by Comcast or an element of Plaintiff’s TCPA

11

claim on which Plaintiff bears the burden of proof.

12

C.

Comcast’s Motion to Compel

13

Comcast seeks an order compelling Plaintiff to produce his retainer and fee

14

agreements with counsel in this case and in any other TCPA class actions initiated by

15

Plaintiff. (ECF No. 29 at 22:1-25.)4

16

Defendant served the following document request on Plaintiff: “All DOCUMENTS

17

CONCERNING any agreement with, or the terms pursuant to which [Plaintiff] retained,

18

any attorney to represent [Plaintiff] in this action, including engagement letters or

19

retention agreements between [Plaintiff] and any attorney CONCERNING this action.”

20

(ECF No. 29-2 at 5:24-26, 31:3-6.) Defendant served a separate request seeking the same

21

type of documents with respect to any other putative class action initiated by Plaintiff.

22

(Id. at 5:24-26, 31:14-18.)

23

Defendant claims the responsive documents are not privileged and that, “in

24

putative class actions, retainer and fee agreements are relevant to ‘the ability of named

25
26

4

Comcast’s portion of the parties’ joint motion also addressed Comcast’s request
for Plaintiff’s cell phone records. (ECF No. 29 at 21:8-27.) However, on March 13,
27 2014, Comcast filed a status report indicating that this issue has been “resolved and
Comcast withdraws its request that the Court compel Plaintiff to produce his cell phone
28 records.” (ECF No. 31 at 2:13-14.) Counsel for both parties confirmed during the March
14, 2014 Discovery Conference that this issue has been resolved.
- 10 -

13cv1049-GPC (DHB)

1

plaintiffs to protect the interest of potential class members and hence are a proper subject

2

for discovery.’” (ECF No. 29 at 22:8-17 (quoting Epstein v. Am. Reserve Corp., 1985

3

U.S. Dist. LEXIS 15842, at *3 (N.D. Ill. Sept. 18, 1985)).)

4

Plaintiff objected to both requests on grounds that they are (1) not relevant or

5

reasonably calculated to lead to the discovery of admissible evidence; (2) overbroad as

6

to scope and time and, therefore, unduly burdensome; (3) vague and ambiguous; and (4)

7

seeking documents in violation of the attorney-client privilege. (Id. at 31:8-12, 21-24.)

8

“The Ninth Circuit has repeatedly held retainer agreements are not protected by the

9

attorney-client privilege or work product doctrine.” Hoot Winc, LLC v. RSM McGladrey

10

Fin. Process Outsourcing, LLC, 2009 U.S. Dist. LEXIS 103045, at *5 (S.D. Cal. Nov.

11

4, 2009) (citing Ralls v. United States, 52 F.3d 223, 225 (1995); United States v.

12

Blackman, 72 F.3d 1418, 1424 (9th Cir. 1995); In re Michaelson, 511 F.2d 882 (9th Cir.

13

1975)); see also Carrizosa v. Stassinos, 2006 U.S. Dist. LEXIS 66358, at *3 (N.D. Cal.

14

Aug. 31, 2006) (stating that under Ninth Circuit law, fee agreements generally fall outside

15

the scope of the attorney-client privilege). “Communications between attorney and client

16

that concern the identity of the client, the amount of the fee, the identification of payment

17

by case file name, and the general purpose of the work performed are usually not

18

protected from disclosure by the attorney-client privilege.” Paul v. Winco Holdings, Inc.,

19

249 F.R.D. 643, 654 (D. Idaho Feb. 27, 2008) (quoting Clarke v. Am. Commerce Nat’l

20

Bank, 974 F.2d 127, 129 (9th Cir. 1992)). However, “correspondence, bills, ledgers,

21

statements, and time records which also reveal the motive of the client in seeking

22

representation, litigation strategy, or the specific nature of the services provided, such as

23

researching particular areas of law, fall within the privilege.” Id.

24

Here, the Court concludes Plaintiff’s retainer and fee agreement with counsel in

25

this case is relevant to the Rule 23(a)(4) analysis of whether Plaintiff is an adequate

26

representative of the class. See Rolex Emps. Ret. Trust v. Mentor Graphics Corp., 136

27

F.R.D. 658, 666 (D. Or. 1991); Epstein, 1985 U.S. Dist. LEXIS 15842, at *7 (“Fee

28

agreements are relevant to the ability of named plaintiffs to protect the interest of
- 11 -

13cv1049-GPC (DHB)

1

potential class members and hence are a proper subject for discovery.” (citing Klein v.

2

Miller, 82 F.R.D. 6, 8-9 (N.D. Tex. 1978) (“[I]nquiry into Plaintiffs’ . . . fee arrangement

3

is relevant to the question of Plaintiffs’ ability to protect the interests of potential class

4

members by adequate funding of this lawsuit, and the question of award of attorneys fees

5

in the settlement of possible judgment of this lawsuit.”)).

6

Moreover, the attorney-client privilege generally does not preclude disclosure of

7

fee agreements. Epstein, 1985 U.S. Dist. LEXIS 15842, at *7 (“[F]ee agreements are not

8

ordinarily subject to the attorney-client privilege.”) (citing Klein, 82 F.R.D. at 8-9)). In

9

resolving the instant dispute, the Court relies on a similar analysis performed by

10

Magistrate Judge Barbara L. Major in Stanley v. Bayer Healthcare LLC, 2011 U.S. Dist.

11

LEXIS 132363, at *12-13 (S.D. Cal. Nov. 16, 2011). In that case, Judge Major

12

concluded “it is clear that retainer agreements are not typically protected by

13

attorney-client privilege.” Id. at *12. However, in light of the plaintiff’s claim that the

14

contents of her retainer agreement would reveal privileged communications, Judge Major

15

ordered that an unredacted copy of the agreement be submitted to chambers for in camera

16

review. Id.

17

The Court concludes that Plaintiff’s retainer and fee agreement with counsel

18

pertaining to the instant lawsuit is relevant to class certification and should be produced

19

to the Court for in camera review to determine whether disclosure would reveal

20

privileged communications. However, Comcast has not established the relevancy or need

21

for Plaintiff’s retainer and fee agreements pertaining to other TCPA class actions.

22

Accordingly, Comcast’s motion to compel production of Plaintiff’s retainer and fee

23

agreements is GRANTED IN PART and DENIED IN PART.

24

///

25

///

26

///

27

///

28

///
- 12 -

13cv1049-GPC (DHB)

III. CONCLUSION5

1
2

Based on the foregoing, IT IS HEREBY ORDERED:

3

1.

additional documentation regarding prior express consent is DENIED.

4
5

Plaintiff’s motion to compel Comcast to produce its outbound dial list and

2.

Comcast’s motion to compel Plaintiff to produce his retainer and fee

6

agreement pertaining to this case is GRANTED IN PART. On or before

7

April 11, 2014, Plaintiff shall lodge directly with the chambers of the

8

undersigned Magistrate Judge an unredacted copy of his retainer and fee

9

agreement pertaining to this case.

10

3.

agreements pertaining to other TCPA class actions is DENIED.

11
12
13

Comcast’s motion to compel Plaintiff to produce his retainer and fee

IT IS SO ORDERED.
DATED: April 2, 2014

14

DAVID H. BARTICK
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25

5

The Court notes that it received and reviewed a joint statements from the parties,
which was emailed to chambers on March 31, 2014, regarding Plaintiff’s anticipated
26 request for an extension of the class discovery cutoff and Plaintiff’s deadline to file his
motion for class certification. Initially, the Court advises that any request for extension
27 must be properly filed via CM/ECF. Moreover, because Plaintiff’s anticipated requested
appears to be premised on an expectation that additional documents would be
28 forthcoming from Comcast, given the Court’s ruling on the instant discovery dispute, the
Court does not believe that any extensions of the deadlines are warranted at this time.
- 13 -

13cv1049-GPC (DHB)