United States of America et al v. Dish Network LLC

Filing 517

OPINION entered by Judge Sue E. Myerscough on 8/4/2015. Defendant Dish Network, L.L.C.'s Expedited Motion to Preclude New Expert Opinions and to Compel the Production of Materials Related to Plaintiffs' April 2015 Analysis, d/e 500 is ALLOWED in part and DENIED in part. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Tuesday, 04 August, 2015 02:12:25 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
UNITED STATES OF AMERICA,
and the STATES OF
CALIFORNIA, ILLINOIS,
NORTH CAROLINA, and OHIO,
Plaintiffs,
v.
DISH NETWORK, LLC,
Defendant,

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No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on Defendant Dish
Network, L.L.C’s (Dish) Expedited Motion to Preclude New Expert
Opinions and to Compel the Production of Materials Related to
Plaintiffs’ April 2015 Analysis (d/e 500) (Motion 500). Oral
argument is not necessary since the parties have thoroughly briefed
the matter. Dish’s request for oral argument is denied.
Dish asks the Court to compel compliance with subpoenas
served on Dr. Erez Yoeli and Rick Stauffer. This Court already
explained that it would not compel compliance with subpoenas
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because such motions must be filed in the district where
compliance is required. Text Order entered June 29, 2015; Fed. R.
Civ. P. 45(d)(2)(B)(i). In this case, compliance was required in
Montana and Georgia. See Declaration of Elyse D. Echtman dated
June 24, 2015 (d/e 502) (Echtman Declaration 502), Exhibit C,
Subpoena addressed to Rick Stauffer; and Exhibit G, Subpoena
addressed to Dr. Erez Yoeli. Dish must seek compliance in
appropriate District Courts in those States.
Dish also asks the Court to bar information disclosed by the
Plaintiffs in June 2015. For the reasons set forth below, the Motion
500 is ALLOWED in part and DENIED in part.
BACKGROUND
Dish seeks to bar information that relates to the claims of
Plaintiff States of California, Illinois, North Carolina, and Ohio
(Plaintiff States) against Dish. The Plaintiffs alleged that Dish made
millions of illegal telemarketing calls in violation of the
Telemarketing and Consumer Fraud and Abuse Prevention Act, 15
U.S.C. § 6105 (Telemarketing Act); the Federal Trade Commission
Act, 15 U.S.C. § 45 (FTC Act); the Telephone Consumer Protection
Act, 47 U.S.C. § 227 (TCPA); the Federal Trade Commission (FTC)
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regulation entitled the Telemarketing Sales Rule promulgated under
the Telemarketing Act and the FTC Act, 16 C.F.R. Part 310 (TSR);
the Federal Communications Commission (FCC) regulation
promulgated under the TCPA, 47 C.F.C. § 64.1200 (FCC Rule); and
the laws of each Plaintiff State. Second Amended Complaint and
Demand for Jury Trial (d/e 257) (Second Amended Complaint),
Counts I through XII.
On December 11, 2014, the Court entered partial summary
judgment. Opinion entered December 11, 2014 (d/e 445) (Opinion
445), at 231-38. The Court found that Dish was liable for making
over 50,000,000 calls in violation of the TSR, Telemarketing Act,
and the FTC Act. The Court found Dish engaged in a pattern or
practice of making telemarketing calls nationally to residential
telephone subscribers (including subscribers in the Plaintiff States)
that violated the TCPA and FCC Rule, as well as certain state laws,
but issues of fact remained regarding the number of violations. In
particular, the Court found that one issue of fact existed concerning
whether telephone area codes were sufficient to prove the residency
of the call recipients. Opinion 445, at 210-02, 204-07, 234-37. See

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Opinion entered May 13, 2015 (d/e 499) (Opinion 499), at 1-11 for
a detailed summary of the relevant issues regarding area codes.
On April 16, 2015, Plaintiff States’ counsel sent a letter (April
16 Letter) to Defense counsel disclosing a new analysis of call
record data by the Plaintiffs’ expert Dr. Erez Yoeli, Ph.D. (April 2015
Analysis). The April 16 Letter also summarized information
collected from databases of PossibleNOW, Inc. (PossibleNOW), that
provided part of the basis for the April 2015 Analysis.1 Dr. Yoeli
collected samples from the records of the calls which the Court
found violated the TSR, Telemarketing Act, and the FTC Act.2 Dr.
Yoeli provided the sample call records to Richard Stauffer (a/k/a
Rick Stauffer) at PossibleNOW. The PossibleNOW databases
contained telephone directories for prior years, including residential
telephone directories. Stauffer and his staff at PossibleNOW
1

PossibleNOW is involved in the telemarketing regulation industry and has provided services to both
sides of this case:
PossibleNOW maintains current and historical databases that contain directory
information about telephone numbers and about numbers on the [National Do-Not-Call]
Registry. Both sides in this case have used PossibleNOW’s services. [Dish’s expert
witness John] Taylor and [Plaintiffs’ consultant Richard] Stauffer both work for
PossibleNOW. PossibleNOW is the subcontractor that maintains the National Do-NotCall Registry for the FTC. Dish also employs PossibleNOW to assist it in complying with
state and federal do-not-call telemarketing laws and regulations. See Opinion 445, at 7173, 141-43.
Opinion 499, at 5
Dr. Yoeli also collected a sample of calls from a set of 2,386,386 calls for which the Court, on
reconsideration, vacated partial summary judgment because issues of fact existed on the question of
liability. Opinion entered February 17, 2015 (d/e 478), at 10-11.
2

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identified the telephone numbers in Dr. Yoeli’s sets of call records
that were listed on landline residential telephone directories on the
dates of the calls and then collected the addresses listed for those
telephone numbers in the same telephone directories. Stauffer and
his staff also identified the telephone numbers in the samples that
were listed in the PossibleNOW databases as business or wireless
numbers. Some numbers could not be identified by type in the
databases. April 16 Letter, attached Declaration of Rick Stauffer
dated March 25, 2015, at 6-17.
Of the 29,082 identified landline telephone numbers listed in
national residential directories on the relevant dates of the calls,
29,042 of the listed addresses for those numbers were in the same
states to which the area codes were assigned. April 16 Letter, at 3;
see Opinion 499, at 11-13 for a summary of the April 2015 Analysis
and the information collected from PossibleNOW databases.
Dr. Yoeli analyzed the information collected by the
PossibleNOW databases. Dr. Yoeli defined the term “Identified
Calls” as the calls that could be identified as calls to residential
landlines, business numbers, or wireless numbers. Dr. Yoeli then
determined the percentage of all sample calls in each Plaintiff State
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that were made to residential landline telephone numbers in that
State and the percentage of Identified Calls in each Plaintiff State
that were made to residential landline telephone numbers in that
State. April 16 Letter, at 2-3.
The Plaintiff States moved to allow the use of the April 2015
Analysis at trial as a supplement of Dr. Yoeli’s previous expert
opinions and also to allow the use of the underlying factual
information. State Plaintiffs’ Motion in Limine Regarding Admission
of Supplementation Under Rule 26(e) (d/e 489) (Motion 489). Dish
moved to strike the April 2015 Analysis, “(and the new factual data
upon which they are premised).” Defendant Dish Network L.L.C.’s
Cross-Motion to Strike State Plaintiffs’ Post-discovery Expert
Disclosures, Preclude the Use of any Related Evidence at Trial, and
for Costs and Attorneys’ Fees (d/e 491) (Motion 491), attached
Defendant Dish Network L.L.C.’s Memorandum of Law in
Opposition to State Plaintiffs’ Motion in Limine and in Support of
Dish’s Expedited Cross-Motion to Strike State Plaintiffs’ Postdiscovery Expert Disclosures, Preclude the Use of any Related
Evidence at Trial, and for Costs and Attorneys’ Fees (Dish
Memorandum 491), at 16. Motions 489 and 491 were allowed in
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part and denied in part. The Court held that the April 2015
Analysis was a new, untimely expert opinion that could not be used
in the Plaintiffs’ case in chief. The Court determined that the April
2015 Analysis, however, may be appropriate rebuttal depending on
the evidence presented by Dish. Opinion 499, at 13-18. The Court
determined that the existence of the underlying factual data in the
PossibleNOW databases was adequately disclosed in discovery, so
the factual data itself would not be barred under the discovery
rules. Opinion 499, at 18-21.
The Court gave Dish some additional time to conduct limited
discovery on the April 2015 Analysis. The Court gave Dish until
June 15, 2015 to depose Dr. Yoeli and Stauffer, and until July 15,
2015 to provide Plaintiffs with any written response, including the
disclosure of any additional expert opinions. The Court gave the
Plaintiffs until August 1, 2015, to depose any additional Dish expert
witnesses. Opinion 499, at 21.
Dish deposed Stauffer on June 10, 2015. Stauffer testified
that he determined that PossibleNOW made a mistake in collecting
the data supplied to Dr. Yoeli. Stauffer stated that the number of
calls identified as calls to landline numbers listed in residential
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telephone directories may have included some calls to disconnected
or inactive telephone numbers. Stauffer testified that this error led
to a “5 percent overstatement of identifiable residential numbers.”
Echtman Declaration 502, accompanying excerpts of Deposition of
Richard Stauffer (d/e 510), at 35-36. At the time of the deposition,
Stauffer’s staff was revising the data collection to correct this error.
On June 14, 2015, Plaintiffs’ counsel sent Defense counsel
Stauffer’s revised data compilation. Echtman Declaration 502,
Exhibits F, Email dated June 14, 2015.
Dish deposed Dr. Yoeli on June 15, 2015. At that time Dr.
Yoeli provided a revised analysis (June 2015 Analysis) of calls to
residential subscribers in the Plaintiff States, based on the revised
data from PossibleNOW. Plaintiffs’ Opposition to Dish Network,
LLC’s Motion to Preclude, attached excerpts of Deposition of Dr.
Yoeli dated June 15, 2015, at 140-42.
ANALYSIS
Dish now asks the Court to bar the use of the June 2015
Analysis and the underlying data at trial. The June 2015 Analysis
is untimely for the same reasons as the April 2015 Analysis. See
Opinion 499, at 13-18. The June 2015 Analysis may not be used in
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the Plaintiffs’ case in chief for the same reasons. The Plaintiffs may
not present Dr. Yoeli’s expert testimony in the Plaintiffs’ case in
chief about either the April 2015 Analysis or the June 2015
Analysis, including testimony about the sampling process he used
to collect the sample call sets, his analysis of the data from the
PossibleNOW databases, and his opinions regarding any correlation
between area codes and residency based on the data collected from
PossibleNOW databases.
The Plaintiffs may be substantially justified in presenting the
June 2015 Analysis in rebuttal, depending on what Dish presents
in its case in chief regarding area codes and residency. Dish’s
expert has made seemingly inconsistent statements about the
applicability of area codes to determine residency. Until Dish
presents its case, the Court and the Plaintiffs do not know what to
expect from Dish’s expert. Depending on what Dish presents, the
Court, in its discretion, may allow Plaintiffs to present the June
2015 Analysis in rebuttal. See Opinion 499, at 13-18.
The revised data collected from PossibleNOW databases will
not be barred under the discovery rules for the same reasons as the
data underlying the April 2015 Analysis. The existence of the
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factual information in the PossibleNOW databases was adequately
disclosed in discovery, and so, the factual information from those
databases will not be barred by the discovery rules. See Opinion
499, at 18-21; Fed. R. Civ. P. 26(e)(1)(A) (supplemental disclosure
under Rule 26(a) is not required when the information has been
made known to the other parties during discovery).
Any prejudice to Dish from the delay in disclosure of the June
2015 Analysis has been alleviated because the Court limited its use,
if at all, to rebuttal, and because the Court gave Dish additional
time to prepare any response. The Court provided Dish with an
additional two months, until September 15, 2015, to provide any
written response, including the disclosure of any additional expert
opinions. Text Order entered June 29, 2015. The additional time
alleviates any prejudice from any delay in the disclosure of evidence
that might be used in rebuttal only, if at all.
Dish argues that data collected from the PossibleNOW
databases is not factual evidence, but untimely expert testimony.
Dish did not argue in support of its Motion 491 that data collected
from the PossibleNOW databases was expert testimony. See Dish
Memorandum 491, at 15-16. Dish only argued that the content of
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the PossibleNOW databases had not been properly disclosed in
discovery, and so, the data collected from those databases after
discovery closed should be barred. Id. The Court did not discuss
whether the data collection was factual evidence in Opinion 499
because the parties did not dispute the matter.
The Court disagrees with Dish’s current position that the data
collected from PossibleNOW databases at issue in Motion 500
constitutes expert testimony. Expert testimony consists of
testimony in which a witness’ scientific, technical, or specialized
knowledge will help the trier of fact to understand the evidence.
See Fed. R. Evid. 701(c) and 702(a). The existence of a telephone
number on a national residential telephone directory on a given
date is a fact generally understood by the lay public without the
help of an expert’s specialized knowledge. The existence of an
address for the same telephone number on the same date in the
same national telephone directory is a fact generally understood by
the lay public without the help of an expert’s specialized knowledge.
Thus, the factual information collected by Stauffer from
PossibleNOW databases is information generally understood by the
lay public and is not expert testimony. See United States v. Little,
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2005 WL 2334711, at *6 (E.D. Cal. September 23, 2005) (witness
who collected and summarized data from IRS computer data bases
was not presenting expert testimony). The expert discovery rules do
not apply. See Fed. R. Civ. P. 26(a)(2)(A).
Dish cited one case to support its current argument. United
States v. Kavalchuk, 2011 WL 5080314 (D. N.H. October 21, 2011).
The Kavalchuk case concerned a forensic examination of computers
and computer hard drives. Id., at *1. Here, Stauffer did not
conduct a forensic examination. He and his staff collected
addresses for landline telephone numbers from national telephone
directories. The information collected was factual information that
is generally understood by the lay public without the help of an
expert’s specialized knowledge. The information is not expert
testimony.
The Plaintiffs disclosed in discovery that PossibleNOW
databases contained telephone directories with addresses. See
Opinion 499, at 6, 18-20 (citing Plaintiffs’ Summary Judgment
Exhibits (d/e 380), PX 356, Richard Stauffer Deposition, dated
November 28, 2012, at 353.). The disclosed data contained in those

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databases are not barred by the discovery rules. See Opinion 499,
at 18-20.
The Court, again, is not deciding any evidentiary questions
regarding the foundation and admissibility of these data, only that
the data are not barred by the discovery rules. See Opinion 499, at
20, n. 4. The evidentiary issues have not been presented by the
parties, and the Court makes no comment on such matters.
Dish raises for the first time in its reply a claim that the
Plaintiffs acted in bad faith. Defendant Dish Network L.L.C’s Reply
Memorandum of Law in Further Support of its Motion to Preclude
New Expert Opinions (d/e 512), at 5-8. Dish gives no reason why it
failed to raise its claim of bad faith in the Motion. Raising new
matters in a reply is improper. See e.g., United States v. Hughes,
970 F.2d 227, 235 n. 6 (7th Cir. 1992); Autotech Technologies Ltd.
Partnership v. Automationdirect.com, Inc., 235 F.R.D. 435, 436
(N.D. Ill. 2006). The Court further sees no bad faith in making

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revisions to correct an error in data collection. The Court will not
consider Dish’s improperly raised claim of bad faith.
CONCLUSION
THEREFORE, Defendant Dish Network, L.L.C’s Expedited
Motion to Preclude New Expert Opinions and to Compel the
Production of Materials Related to Plaintiffs’ April 2015
Analysis (d/e 500) is ALLOWED in part and DENIED in part.
Enter: August 4, 2015

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

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