Doherty v. Comenity Capital Bank

Filing 31

ORDER Resolving Discovery Disputes Addressed in the Parties' Joint Statement. The Court Orders Defendants to provide supplemental responses to Plaintiffs' Interrogatories and Requests for Production, in accordance with the terms of this order, no later than 6/8/2017. Signed by Magistrate Judge Bernard G. Skomal on 5/9/2017. (ag)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12
13

MICHAEL DOHERTY & LESLIE
WESTMORELAND, on behalf of
themselves and all others similarly
situated,

Case No.: Case No.: 16cv1321-H-BGS
ORDER RESOLVING DISCOVERY
DISPUTES ADRESSED IN THE
PARTIES’ JOINT STATEMENT

Plaintiff,

14
15

v.

16

COMENITY CAPITAL BANK &
COMENITY BANK,

17
18

Defendant.

19
20
21
22
23
24
25
26
27
28

On April 17, 2017, Plaintiffs Michael Doherty and Leslie Westmoreland
(“Plaintiffs”) and Defendants Comenity Capital Bank and Comenity Bank (“Defendants”)
submitted a Joint Statement About Discovery Dispute Re: Responses of Defendant
Comenity Capital Bank to Plaintiffs’ First Set of Interrogatories and First Set of Requests
for Production (“Joint Statement”). (ECF No. 30.) As first identified during a telephonic
Discovery Conference held on April 5, 2017 with Chambers and thereafter in their Joint
Statement, the Parties dispute the following categories of requested information regarding
call recipients: (1) outbound dial lists; (2) documents related to defendants’ affirmative
defense of “prior express consent;” (3) telephone dialing equipment used, including skip
1
Case No.: 16cv1321-H-BGS

1

trace reports and numbers obtained via number trapping; and (4) employee and dialer

2

manuals used.1 (ECF No. 27.) After considering the arguments of the Parties set forth in

3

the Joint Motion, and its supporting exhibits and declarations, and the applicable law, and

4

for the reasons set forth herein, the Court GRANTS IN PART Plaintiffs’ requests to

5

compel Defendants to produce further responses to Plaintiffs’ First Set of Interrogatories

6

and First Set of Requests for Production as outlined below. All discovery requests not

7

GRANTED IN PART below are hereby DENIED.

8

I.

BACKGROUND

9

This is a class action alleging violations of the Telephone Consumer Protection Act,

10

47 U.S.C. § 227, et seq. (“TCPA”). Defendants are large national banks that “service

11

millions of credit card accounts for consumers throughout the United States.” (ECF Nos.

12

10-11 ¶ 15.) Plaintiffs proceed on their First Amended Complaint (ECF No. 10) and seek

13

to certify the following class from July 31, 2014 to present (“relevant time period”):

14

All individuals in the United States to whom: (1) Defendants placed a call;
(2) using an automatic telephone dialing system [“ATDS”] or using an
artificial or prerecorded voice; (3) to his or her cellular telephone number; and
(4) for whom Defendants did not have express consent to place such call at
the time it was placed.

15
16
17
18

(ECF No. 10 ¶ 33; ECF No. 30 at 1:4-6.) Plaintiffs allege that without prior express

19

consent, Defendants called them on their “cellular phones via an ‘automatic telephone

20

dialing system,’ (‘ATDS’) as defined by 47 U.S.C. § 227 (a)(1) and by using ‘an artificial

21

or prerecorded voice’ as prohibited by 47 U.S.C. § 227 (b)(1)(A). This ATDS has the

22

capacity to store or produce telephone numbers to be called, using a random or sequential

23

number generator.” (ECF No. 10 ¶¶ 27, 32.) Specifically, Plaintiff Doherty alleges that

24
25
26
27
28

1

As requested by the Court, the Parties attached all contested interrogatories and requests for production
to their Joint Statement. (ECF No. 30, Ex. 1.) However, in keeping with the manner in which the Parties
addressed the overarching categories of contested discovery in their Joint Motion, this Order does not
address each individual discovery request. Instead, it analyzes each of the identified overarching
categories. The Parties are to apply this analysis to individual requests and effect discovery in keeping
with this Order.
2
Case No.: 16cv1321-H-BGS

1

on November 29, 2015 and on December 4, 2015, Defendant Comenity Capital Bank called

2

his cellular telephone ending in 7814 with a prerecorded or artificial voice and left

3

automated voicemails regarding his father’s account. (Id. ¶¶ 24-25.)

4

Westmoreland claims “Comenity Bank called his cellular telephone ending [in] 6053

5

incessantly throughout 2016.”2 (Id. ¶ 26.) Neither of the Plaintiffs are themselves account

6

holders of credit cards that Defendants service; rather they are relatives of such

7

cardholders. (Id. ¶¶ 21-23; ECF No. 30 at 8-9.)

Plaintiff

8

During the class discovery period (see ECF No. 23 ¶ 2), Plaintiffs served Requests

9

for Production and Interrogatories on Defendants. Defendants limited their responses to

10

information and documents pertaining to the named Plaintiffs: they objected to requests

11

regarding all call recipients as premature, irrelevant, overbroad, unduly burdensome, and

12

not proportional to the needs of the case3 given the fact that Plaintiffs are unlikely to

13

succeed on the merits of their action or on a motion for class certification. (See ECF No. 30,

14

Ex 1.) The following four discovery categories remain in dispute: (1) outbound dial lists;

15

(2) documents related to defendants’ affirmative defense of “prior express consent;”

16

(3) telephone dialing equipment used, including skip trace reports and numbers obtained

17

via number trapping; and (4) employee and dialer manuals used. (ECF No. 27.)

18

As noted in the Court’s Order requesting the Joint Statement (id.), despite their

19

awareness of a disagreement over these categories of documents for months (ECF Nos. 19,

20

21, 22), the Parties did not raise this dispute with the Court until March 31, 2017. Class

21
22
23
24
25
26
27
28

Plaintiffs previously maintained that Defendants’ calls to a second cell phone number (ending in 6052)
associated with Plaintiff Westmoreland violated the TCPA; however, as Defendants provided documents
evidencing consent during discovery, Plaintiffs have withdrawn those claims. (ECF No. 30 at 5:12-16.)
Thus, only calls to Plaintiff Westmoreland’s cell phone number ending in 6053 are at issue.
3
In their discovery responses, Defendants asserted boilerplate objections to Plaintiffs’ requests for
production and interrogatories, including that such requests were premature, were vague and ambiguous,
sought confidential/proprietary information, were overbroad and unduly burdensome, infringed on the
privacy rights of third parties, sought irrelevant information, and were not proportional to the needs of the
case. (See ECF No. 30, Ex. 1 at 2-19.) The Court only addresses the objections and arguments Defendants
raise in the Joint Motion.
2

3
Case No.: 16cv1321-H-BGS

1

discovery closed on April 7, 2017 and the June 9, 2017 deadline for filing a motion for

2

class certification is readily approaching. (ECF No. 23.)

3

II.

DISCUSSION

4

Rule 26, as recently amended, provides that a party

5

may obtain discovery regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Fed. R. Civ. P. 26(b)(1). Information need not be admissible in evidence to be
discoverable. Id. The December 2015 amendment to Rule 26 restored the proportionality
factors in defining the scope of discovery. See Advisory Committee Notes to Rule 26(b)(1)
2015 Amendment. Under the amended Rule 26, relevancy alone is no longer sufficient to
obtain discovery: the discovery requested must also be proportional to the needs of the
case. Mora v. Zeta Interactive Corp., No. 116cv00198-DAD-SAB, 2017 WL 1187710, at
*3 (E.D. Cal. Feb. 10, 2017).
The relevance standard is commonly recognized as one that is necessarily broad in
scope in order “to encompass any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495,
501 (1947)). Discovery is designed to help define and clarify the issues. Id. Evidence is
relevant if: (a) “it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the action.” Fed.
R. Evid. 401.
Although relevancy is broadly defined for the purposes of discovery, it does have
“ultimate and necessary boundaries.” Hickman, 329 U.S. at 507. Accordingly, district
courts have broad discretion to determine relevancy for discovery purposes. See Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002); Vinole v. Countrywide Home Loans, Inc., 571
4
Case No.: 16cv1321-H-BGS

1

F.3d 935, 942 (9th Cir. 2009) (“District courts have broad discretion to control the class

2

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

3

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

4

209 (9th Cir. 1975)).

5

Precertification discovery lies entirely within the court's discretion. See Fed. R. Civ.

6

P. 23; see, e.g., Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole,

7

571 F.3d at 942). The Ninth Circuit states that the “advisable practice” for district courts

8

on precertification discovery, “is to afford the litigants an opportunity to present evidence

9

as to whether a class action was maintainable. And, the necessary antecedent to the

10

presentation of evidence is, in most cases, enough discovery to obtain the material,

11

especially when the information is within the sole possession of the defendant.” Doninger

12

v. Pac. Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977); see also Artis, 276 F.R.D.

13

at 351. The court should consider “the need for discovery, the time required, and the

14

probability of discovery providing necessary factual information” in exercising its

15

discretion to allow or prohibit discovery. Doninger, 564 F.2d at 1313.

16

Many of the arguments advanced by Defendants go to the ultimate merits of

17

Plaintiffs’ motion for class certification or other potentially dispositive motions. It is Judge

18

Huff who must decide whether the requirements of Rule 23 have been satisfactorily

19

established. For purposes of discovery, a plaintiff must only make a prima facie showing

20

that the class action requirements4 are satisfied or show “that discovery is likely to produce

21

substantiation of the class allegations.” Manolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.

22
23
24
25
26
27
28

4

On a class certification motion, the District Court must determine that the requirements of Rule 23 have
been met. Per Rule 23(a), Plaintiffs must satisfy the prerequisites of: (1) numerosity; (2) commonality;
(3) typicality; and (4) adequacy. Per Rule 23(b), Plaintiffs must establish one of the following three
requirements: (1) risk of inconsistent adjudication, or that the adjudication of individual class member’s
claims would substantially impair non-party members' ability to protect their interests; (2) defendant acted
on grounds generally applicable to the class such that relief is appropriate to the class as a whole; or
(3) common questions of law or fact predominate and class resolution is superior to other available
methods. Fed. R. Civ. P. 23.
5
Case No.: 16cv1321-H-BGS

1

1985).

2

commonality, and numerosity if it would substantiate the class allegations. Kilbourne v.

3

Coca-Cola Co., No. 14CV984 MMA (BGS), 2015 WL 10943611, at *5 (S.D. Cal. Jan. 13,

4

2015). In the context of this discovery dispute, the Court will assess whether Plaintiffs

5

have demonstrated that the information sought is relevant to their preparation for their

6

motion for class certification. See Manolete, 767 F.2d at 1424.

Thus, courts permit precertification discovery on issues like typicality,

7

A. Category One: Outbound Dial Lists

8

Plaintiffs first address discovery requests concerning Defendants’ outbound dial

9

lists, (Interrogatories Nos. 7, 8, and 9; Requests for Production Nos. 10, 41, 43, and 44).

10

They assert that defendants in other TCPA cases regularly produce such outbound dial lists.

11

See, e.g., Webb v. Healthcare Revenue Recovery Grp. LLC, No. C. 13-00737 RS, 2014 WL

12

325132, at *2-3 (N.D. Cal. Jan. 29, 2014); Knutson v. Schwan's Home Serv., Inc., No.

13

12CV964-GPC DHB, 2013 WL 11070939, at *2 (S.D. Cal. July 23, 2013); Gusman v.

14

Comcast Corp., 298 F.R.D. 592 (S.D. Cal. 2014); accord Ossola v. American Express

15

Company, 2015 WL 5158712, at *7 (N.D. Ill. E.D. 2015) (“Call data is relevant, and thus

16

produced as standard practice, only in cases where the defendant is the alleged dialer.”).

17

Defendants object, arguing that Plaintiffs as noncardholders are atypical, will fail on the

18

merits of their class certification motion, and are susceptible to dispositive motions that

19

have not yet been filed. (ECF No. 30 at 7-12.)

20

Defendants essentially seek to litigate Rule 23 class certification prematurely. While

21

these arguments may eventually prove convincing, see e.g., Labou v. Cellco P’ship, No.

22

2:13-CV-00844-MCE, 2014 WL 824225, at *4, *6 (E.D. Cal. Mar. 3, 2014) and Davis v.

23

AT&T Corp., No. 15CV2342-DMS (DHB), 2017 WL 1155350, at *4-6 (S.D. Cal. Mar. 28,

24

2017), they are premature given that discovery is still ongoing and no motion for class

25

certification has yet been filed.

26

Plaintiff[s’] claims may be ultimately found atypical when the Court rules on [a] motion

27

for class certification, that does not impact Plaintiff[s’] right to discover relevant

28

information now during the pre-certification discovery period.” Haghayeghi v. Guess?,

Defendants have conflated these issues – “even if

6
Case No.: 16cv1321-H-BGS

1

Inc., 168 F. Supp. 3d 1277, 1279-80 (S.D. Cal. 2016) (on a motion to compel, rejecting

2

defendant’s reliance on TCPA cases denying class certification where phone number at

3

issue was provided by someone other than plaintiff, such as by a family member). The

4

Court will not attempt to predict whether Plaintiffs’ claims will ultimately be found

5

atypical.

6

distinguish between call recipients who are cardholders and noncardholders, to assess the

7

relevancy of Plaintiffs’ requests.

Instead, the Court turns to the proposed class definition, which does not

8

The Court finds that outbound dial lists are relevant to establish the issues of

9

numerosity and commonality under Federal Rule of Civil Procedure 23(a) and are therefore

10

discoverable. See Knutson v. Schwan's Home Serv., Inc., No. 12CV964-GPC DHB, 2013

11

WL 11070939, at *1-2 (S.D. Cal. July 23, 2013) (emphasis in original) (“The common

12

question is thus, ‘were we all called on our cellular telephones, by an autodialer or artificial

13

or prerecorded voice, on behalf of [Defendants], without having given express consent’”);

14

Haghayeghi, 168 F. Supp. 3d at 1280-81; Gaines v. Law Office of Patenaude & Felix,

15

A.P.C., No. 13CV1556-JLS DHB, 2014 WL 3894348, at *2 (S.D. Cal. June 12, 2014);

16

Stemple v. QC Holdings, Inc., No. 12-CV-1997-CAB WVG, 2013 WL 10870906, at *2

17

(S.D. Cal. June 17, 2013) (outbound dial lists “will provide Plaintiff a means to ascertain

18

which of the numbers dialed within the statutory term are cellular telephone numbers called

19

by an autodialer”); Gossett v. CMRE Fin. Servs., 142 F. Supp. 3d 1083, 1086-87 (S.D. Cal.

20

2015); Henderson v. United Student Aid Funds, Inc., No. 13CV1845-JLS BLM, 2015 WL

21

4742346, at *7 (S.D. Cal. July 28, 2015); Thrasher v. CMRE Fin. Servs., Inc., No. 14-CV-

22

1540 BEN NLS, 2015 WL 1138469, at *1-3 (S.D. Cal. Mar. 13, 2015); O'Shea v. Am.

23

Solar Sol., Inc., No. 14CV894-L (RBB), 2016 WL 701215, at *3 (S.D. Cal. Feb. 18, 2016).

24

Although the Parties dispute whether outbound dial lists can be generated using a

25

“report generation wizard” via the Avaya Proactive Contact 5.1 system (compare Lahr

26

Declaration [“Decl.”] ¶¶ 9-10 with Hansen Decl. ¶¶ 7-10), Defendants admit that such a

27

list can be produced in approximately five hours utilizing the system (Lahr Decl. ¶ 12).

28

Such a list would not distinguish landlines from cell phones. (ECF No. 30 at 12:26-27.)
7
Case No.: 16cv1321-H-BGS

1

However, Plaintiffs’ expert consultant is able to identify which calls were made to

2

cellphones from the outbound dial list, a common issue as to the class, as well as the

3

number of calls made to each cellphone. (Id. at 6:25-27; Hansen Decl. ¶¶ 11-12.) A list

4

of phone numbers dialed by a dialer by Defendants therefore is relevant, especially in light

5

of the fact that Plaintiffs claim cell phone numbers can be identified within the list. Thus,

6

the production of an outbound dial list utilizing the Avaya Proactive Contact 5.1 system is

7

both relevant and proportional to the needs of the case.

8

However, Defendants maintain that they are unable to “systematically identify all

9

phone numbers called” during the relevant time period, as calls “manually dialed” via the

10

Avaya 9611G desk phone would “not be included in an output of the Avaya Proactive

11

Contact system.” (ECF No. 30 at 12:26-27; Lahr Decl. ¶ 15.) Thus, the Parties contest

12

whether an outbound dial list must be produced for “manually dialed” numbers, which

13

Defendants claim is the method by which all skip traced numbers are first dialed and how

14

Plaintiff Westmoreland’s 6053 cell phone was contacted. (ECF No. 30 at 9:20-23; ECF

15

No. 30, Ex 1 at 10:4-20, 11:3-10; Duchesne Decl. ¶ 5.)

16

Whether calls were made using an ATDS is typically a contested issue in a TCPA

17

case. See Mora, 2017 WL 1187710, at *6. The Parties’ submissions underscore this fact,

18

as Plaintiffs readily contest whether what Defendants refer to as a “manual” call, falls

19

within the statutory ATDS definition.5 (Compare ECF No. 30 at 4:17-24, and Hansen

20
21
22
23
24
25
26
27
28

5

The Court has not reviewed manuals or technical specifications associated with the identified dialing
equipment used by Defendants to contact Plaintiffs, the Avaya Proactive Contact 5.1 system and the
Avaya 9611 G desk phone connected to the Avaya Aura 6.3 phone system. (See ECF No. 30, Ex 1 at
10:4-20, 11:3-10.) However, Defendants assert that their policy is to “manually dial” all numbers obtained
by skip tracing. (Duchense Decl. ¶ 5; ECF No. 30 at 9:20-23.) They claim this “manual dialing” procedure
applied to Plaintiff Westmoreland’s 6053 cell phone, as the output generated by the Avaya Proactive
Contact 5.1 system did not include calls to the 6053 number. (ECF No. 30, Ex. 1 at 10:8-20, 11:3-10;
Duchense Decl. ¶ 5.) Defendants maintain that number was “manually” dialed as it was called using an
Avaya 9611G desk phone connected to the Avaya Aura 6.3 system. (ECF No. 30, Ex. 1 at 10:8-20.)
Plaintiffs’ expert consultant readily contests this assertion. (Hansen Decl. ¶¶ 13-16.) Without further
briefing at this stage, it is unclear whether calls that Defendants state were “manually” dialed using an
Avaya 9611G desk phone would have been placed via an ATDS, defined as equipment “which has the
capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number
8
Case No.: 16cv1321-H-BGS

1

Decl. ¶¶ 13-16, with Lahr Decl. ¶¶15, 17-18 and Duchesne Decl. ¶ 5, 7.) This is a merits

2

issue; and as such, the Court is not inclined to limit the requested outbound dial lists based

3

on Defendants’ use of the term “manual.”6 See Mora, 2017 WL 1187710, at *6 (defendants

4

not allowed to only produce outbound dial lists for calls that they believe meet the

5

definition of using an ATDS).

6

However, Defendants claim there is no way to “systematically identify” manually

7

dialed calls made using Avaya 9611G desk phones during the relevant time period (Lahr

8

Decl. ¶ 15). Without making a premature determination as to Defendants’ “manual”

9

dialing, the production of an outbound dial list for “manually dialed” calls utilizing Avaya

10

9611G desk phones (and not for calls made via the Avaya Proactive Contact system) would

11

be disproportionate to the needs of the case given that discovery at this point is focused on

12

class certification and not merits. See Gusman, 298 F.R.D. at 597 (holding facts on the

13

record did not justify imposing a significant burden on defendant to produce an outbound

14

dial list of marketing calls when the case involved collection calls).

15

Given their relevance to Plaintiffs’ claims and the proportionality to the needs of the

16

case, the Court finds that Plaintiffs’ request for Defendants’ outbound dial list should be

17

GRANTED IN PART. Defendants shall provide Plaintiffs with an outbound dial list for

18

calls made during the relevant time period to the extent they are able to do so. This list is

19

to be comprised of all outbound calls made both to landlines and cell phones that can be

20

generated using the Avaya Proactive Contact 5.1 system.

This includes any calls

21
22
23
24
25
26
27
28

generator; and (B) to dial such numbers” as required by the TCPA, given that capacity “includes potential
functionalities.” 47 U.S.C. § 227(a)(1) (emphasis added); In the Matter of Rules & Regulations
Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961, 7974 (July 10, 2015).
6
The Court finds Defendants’ reliance on Gossett, 142 F. Supp. 3d at 1089-90 inapposite. There,
Defendants submitted sworn statements that numbers obtained by skip tracing and number trapping were
“only physically dialed by humans.” Id. at 1190 (emphasis added). Defendants’ declarations merely refer
to a “manual dialing” procedure; they make no sworn statements in which they refer to humans physically
picking up a phone and dialing a number as occurred in Gossett. In their discovery responses they state
such calls “require human intervention” (ECF No. 30, Ex. 1 at 11:9-10), which does not foreclose the
possibility that such a system could fall into the TCPA’s definition of an “ATDS.” (See Hansen Decl.
¶¶ 13-16.)
9
Case No.: 16cv1321-H-BGS

1

Defendants deem to have been “manually dialed” if they were made using the Avaya

2

Proactive Contact 5.1 system, but excludes any calls that were placed solely utilizing

3

Avaya 9611G desk phones. Plaintiffs’ expert consultant will then be able to use such

4

outbound dial lists to identify which calls were placed to cell phones.

5

B. Category Two: Prior Express Consent of Call Recipients

6

Next, Plaintiffs address discovery regarding information that Defendants plan to rely

7

on to show the prior express consent of call recipients (Interrogatory No. 10) and requesting

8

that Defendants produce any documents to support that contention (Requests for

9

Production Nos. 15-16), as well as documents related to the processes used to verify such

10

consent (Request for Production No. 18). Plaintiffs contend that the “consent issues” at

11

play, which they break down into three categories, can all “be answered on a class-wide or

12

sub-class wide basis.” (ECF No. 30 at 14:9-12.) Accordingly, they request a breakdown

13

as to the number of call recipients that Defendants contend fall within each prior express

14

consent category. (Id. at 15:1-2.)

15

Defendants object to the relevancy of these requests based on (1) the unviable nature

16

of Plaintiffs’ individual claims and (2) the various ways that Defendants obtain

17

accountholder consent render a class uncertifiable. (Id. at 16:17-24.) Further, they claim

18

that due to the manner in which Plaintiff Doherty’s phone number was obtained (via online

19

Account Center), the evidence of prior express consent requested by Plaintiffs “would not

20

even uncover other class members similar to Plaintiffs.” (Id. at 16:25-17:4.)

21

Defendants contend that to determine how consent was obtained for a phone number

22

in their system, an account-by-account review of each cardholder would have to be

23

undertaken. They estimate that approximately 18.9 million unique accounts would need

24

to be reviewed for the time period at issue, and assuming an average of 7.5 minutes for

25

review of each account and its corresponding documentation (collection notes, customer

26
27
28
10
Case No.: 16cv1321-H-BGS

1

service notes, call recordings, phone history, and credit application), such a review would

2

cost $18.9 million.7 (Duchesne Decl. ¶¶ 16-17; Lahr Decl. ¶¶ 5-7.)

3

As prior express consent is an affirmative defense in which Defendants will bear the

4

burden of proof in this TCPA action, Gaines v. Law Offices of Patenaude & Felix, A.P.C,

5

No. 13cv1556-JLSDHB, 2014 WL 3894348, at *4 (S.D. Cal. Aug. 7, 2014), the Court finds

6

that such information and documents are relevant to the defenses at issue, as well as Rule

7

23(b)(3) predominance at class certification. See, e.g., Davis, 2017 WL 1155350, at *5-6.

8

Thus, Plaintiffs are entitled to develop classwide evidence/a common method of proof that

9

could address the issue of prior express consent.

10

However, Defendants obtain consent in a variety of ways, including via an online

11

Account Center, over the phone, via Interactive Voice Response, and per credit card

12

applications. At this stage of litigation, an account-by-account review, as Defendants assert

13

would be necessary, to ascertain the method by which consent was obtained for each

14

individual call recipient is disproportionate to the needs of the case and would prove unduly

15

burdensome given Defendants’ time/cost estimates. See Gaines, 2014 WL 3894348, at *5

16

(finding interrogatory requesting the means by which defendant obtained prior express

17

consent to call any call recipient overbroad and unduly burdensome); (Lahr Decl. ¶¶5-8.)

18

Providing a breakdown as to the number of call recipients that fall within each category is

19

similarly unduly burdensome and disproportionate to the needs of the case at this juncture.

20

This is only underscored by the fact that individualized evidence of prior express consent

21

as to account holders may not even pertain to other class members similar to Plaintiffs (i.e.,

22

noncardholders). At this stage of litigation, Defendants need only provide evidence of

23

prior consent if they intend to rely on it at class certification. See Gossett, 142 F. Supp. 3d

24

at 1089; Thrasher, 2015 WL 1138469, at *6.

25
26
27
7

28

Defendants maintain the same account-by-account review would be necessary to ascertain which
numbers were obtained via skip tracing and number trapping. See Section II.C.
11
Case No.: 16cv1321-H-BGS

1

Thus, to the extent Defendants intend to address the affirmative defense of prior

2

express consent at class certification stage, the Court hereby GRANTS IN PART

3

Plaintiffs’ motion to compel further responses as to documents evidencing call recipients

4

prior express consent. To the extent they have not already done so, Defendants are to

5

provide representative samples (blank copies) of all standardized forms/documents (e.g.,

6

credit card applications), scripts for obtaining consent via phone calls or Interactive Voice

7

Response, screen shots of how individuals are able to provide/update phone numbers via

8

the Account Center, documents showing the manner in which prior express consent could

9

be obtained for noncardholders, or any other methods upon which they may rely to show

10

putative class members’ prior express consent during the relevant time period.

11

Defendants are not required to conduct an account-by-account review to produce

12

documents as related to individual call recipients. If a class is certified, Plaintiffs may

13

reassert their request for prior express consent documents as they pertain to individual call

14

recipients during merits discovery.

15
16

C. Category Three: Telephone Dialing Equipment Used and Skip
Tracing/Number Trapping

17

Plaintiffs next address discovery requests for information regarding (1) manuals

18

relating to all dialers used during the proposed class period (Interrogatories Nos. 11 and

19

13; Requests for Production Nos. 7, 22, 40, 44, 48) and (2) phone numbers obtained

20

classwide by skip tracing or number trapping (Interrogatories Nos. 3-5 and Requests for

21

Production Nos. 23, 28, 31, 36, 37, and 45-47). In the Parties’ Joint Statement, Defendants

22

agree to produce responsive documents as to the dialer manuals. (EFC No. 38 at 18:20-

23

21.) As such, the Court GRANTS Plaintiffs request to compel Defendants’ production of

24

such dialer equipment manuals.

25
26
27
28
12
Case No.: 16cv1321-H-BGS

1

Turning to the skip tracing8 and number trapping9 requests, Plaintiffs maintain that

2

phone numbers obtained utilizing these methods are “not subject to the prior express

3

consent defense,” avoiding a potential predominance issue at class certification, and could

4

potentially constitute their own subclasses. (ECF No. 30 at 18: 8-9.) Thus, information

5

regarding such numbers and the methods by which such numbers are dialed is relevant to

6

the claims and defenses at issue and go to the issues of Rule 23 commonality and

7

predominance.

8

However, Defendants object to producing information about call recipient phone

9

numbers that were obtained via skip tracing or number trapping. First, they argue such

10

information is irrelevant, as (1) neither of the Plaintiffs’ phone numbers were obtained via

11

number trapping and (2) Plaintiff Westmoreland’s 6053 phone number obtained via skip

12

tracing was not autodialed. (Id. at 18:25-19:2.) Further, they claim their policy is to

13

“manually dial” number trapped and skip traced numbers.10 (Duchesne Decl. ¶¶ 5, 7.) If

14

such numbers were truly dialed by a human on a device that does not have the capacity to

15

autodial (so as to fall outside the definition of an ATDS per 47 U.S.C. § 227(a)(1)), then

16

Plaintiffs arguably would not be entitled to the requested discovery. See Gossett, 142 F.

17

Supp. 3d at 1089-90; supra n.6.

18

Defendants maintain that a list of numbers “found via manual skip trace does not

19

exist” and that to compile such a list would require an account-by-account review taking

20
21
22
23
24
25
26
27
28

Per the definitions governing Plaintiffs’ discovery, skip tracing “means or refers to the practice of
locating a PERSON’S contact information, including his or her phone number, through searching phone
number databases, credit reports (e.g., information provided on a loan application, credit card application,
and/or in other debt collector databases), job application information, criminal background checks, utility
bills, social security records, disability records, public tax information, and other public and private
contextual data sources to use available information (such as past or present name or address) to determine
more current contact information.” (ECF No. 30-5 ¶ 23.)
9
Per the definitions governing Plaintiffs’ discovery, number trapping “means or refers to the practice of
utilizing caller identification technology to IDENTIFY and/or collect a PERSON’S phone number when
that PERSON places a call to YOU.” (Id. ¶ 15.)
10
Additionally, Defendants argue that as Plaintiffs are not themselves cardholders, they lack standing to
“assert a class of both cardholders and noncardholders.” (Id. at 19:3-10.) As discussed supra, the Court
is not delving into merits issues for the purposes of this motion and at this stage of the litigation.
8

13
Case No.: 16cv1321-H-BGS

1

an estimated 2,362,500 hours and costing an estimated $18.9 million. (Lahr Decl. ¶¶ 17-

2

20 [emphasis added].) However, they also state that “[f]or Comenity to identify skip traced

3

numbers called by any method [during the relevant time period it] would require

4

approximately 40-80 hours” (Id. ¶ 16 [emphasis added]). These statements taken together

5

indicate that there is a group of skip traced phone numbers that were called utilizing

6

methods other than “manual dialing,” which would presumably include calls made via the

7

Avaya Proactive Contact 5.1 system and other such dialing systems.

8

inconsistent with Defendants’ statements that its “policy and procedure is not to autodial a

9

skip-traced number.” (ECF No. 30 at 9:22-23; Id. at 20:12-14; Duchense Decl. ¶ 5.)

This appears

10

Due to this apparent ambiguity, the Court GRANTS IN PART Plaintiffs’ request

11

for documents and information related to the general policies and processes by which

12

Defendants dial numbers obtained via skip tracing and number trapping for the duration of

13

the relevant time period. To the extent that Defendants are able to identify skip traced

14

numbers that were called “by any method” other than those that were “found via manual

15

skip trace” they are to do so.

16

Further, pursuant to the Court’s order regarding outbound dial lists in Section II.A,

17

Plaintiffs will be in receipt of numbers obtained via skip tracing and number trapping if

18

such numbers were dialed with the Avaya Proactive Contact 5.1 system. To the extent

19

possible without conducting an account-by-account review as set forth in the Lahr

20

Declaration (Lahr Decl. ¶¶ 17-22), Defendants shall identify any numbers on this outbound

21

dial list which were obtained via skip tracing or number trapping. Again, an account-by-

22

account review is not proportional to the needs of the case at this time. See Gaines, 2014

23

WL 3894348, at *6.

24

As discussed supra, Plaintiffs readily contest that Defendants “manually dialed”

25

phone numbers in such a way as to prevent a TCPA violation. See supra n.5. This is

26

largely a merits issue that is not directly before the Court on this motion. However, the

27

Parties’ dispute as to Defendants’ “manual dialing” procedures is a foundational issue in

28

this case, as TCPA claims are conditioned upon the use of an ATDS. See Meyer v. Portfolio
14
Case No.: 16cv1321-H-BGS

1

Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (emphasis added) (“The three

2

elements of a TCPA claim are: (1) the defendant called a cellular telephone number;

3

(2) using an automatic telephone dialing system; (3) without the recipient's prior express

4

consent.”); 47 U.S.C. § 227(b)(1). Without further information regarding what is meant

5

by the term “manually dial,” it is unclear if Plaintiffs’ request for numbers obtained via

6

skip tracing and number trapping as applied to numbers “manually dialed” bears any

7

relevance to their claims or class certification. See Gossett, 142 F. Supp. 3d at 1089-90;

8

supra n.6.

9

The Court will allow limited discovery to address what Defendants refer to as their

10

“manual dialing” procedures and policies, specifically in relation to skip traced and number

11

trapped phone numbers. As part of this limited discovery, Plaintiffs may notice a Rule

12

30(b)(6) deposition to assess the procedures surrounding “manually dialed” calls during

13

the relevant class period. See Gusman, 298 F.R.D. at 596 (“Rule 30(b)(6) deposition can

14

be utilized to obtain the relevant data to determine an approximate number of calls made

15

to cell phones using an autodialer during the proposed class period”). Such limited

16

discovery is to be completed by June 8, 2017. If the “manual dialing” issue has not been

17

resolved following this limited discovery, the Parties can contact the Court, and the Court

18

will treat it as a new discovery dispute pursuant to Chambers rules.

19

D. Category Four: Manuals Used

20

Finally, Plaintiffs address discovery requests for employee and dialer manuals used

21

to procure and dial the numbers of call recipients (Requests for Production Nos. 39 and

22

40). They argue the manner in which employees obtained phone numbers to call (directly,

23

skip tracing, number trapping, etc.) would inform whether prior express consent was given.

24

(ECF No. 30 at 19:24-20:7.) Defendants object to the relevancy of these requests, again

25

asserting that because they did not autodial Plaintiff Westmoreland’s skip traced 6053

26

number and neither of Plaintiffs’ phone numbers were obtained via number trapping, such

27

policies and procedures are irrelevant. (ECF No. 30 at 20:9-25.)

28
15
Case No.: 16cv1321-H-BGS

1

The Court finds the information sought by Plaintiffs not only relevant to the issue of

2

prior express consent, but also to the Rule 23 issues of commonality and predominance.

3

Plaintiff Westmoreland’s 6053 number was obtained via skip tracing, and if Defendants

4

have a policy in place regarding skip tracing and the use of “manual dialing” as they claim,

5

the manner in which that is implemented could serve as common proof relevant as to class

6

certification. As Defendants admit that such a production would not be unduly burdensome

7

(no account-by-account review is required), the Court finds it is proportional to the needs

8

of the case and GRANTS Plaintiffs’ request to compel the production of employee and

9

dialer manuals.

10

Defendants note that several of its methods for obtaining consent have no

11

manual/guide. (ECF No. 30 at 20:11-17.) This does not negate the need to produce

12

employee/dialer manuals that would inform whether prior express consent was obtained

13

on a classwide basis or on a subclass basis. However, Defendants must only produce such

14

manuals that currently exist or were in existence during the proposed class period.

15

III.

CONCLUSION

16

For the foregoing reasons, the Court HEREBY ORDERS Defendants to provide

17

supplemental responses to Plaintiffs’ Interrogatories and Requests for Production, in

18

accordance with the terms of this order, no later than June 8, 2017.

19
20

IT IS SO ORDERED.
Dated: May 9, 2017

21
22
23
24
25
26
27
28
16
Case No.: 16cv1321-H-BGS