United States of America et al v. Dish Network LLC
Filing
571
OPINION: Defendant Dish Network, L.L.C.'s Motion in Limine to Preclude Plaintiffs from Presenting Evidence of 2003-2007 Call Records and Memorandum in Support Thereof 535 is DENIED. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 12/16/2015. (GL, ilcd)
E-FILED
Wednesday, 16 December, 2015 12:14:59 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,
Plaintiff,
v.
DISH NETWORK, L.L.C.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
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) Motion in Limine to Preclude Plaintiffs from
Presenting Evidence of 2003-2007 Call Records and Memorandum
in Support Thereof (d/e 535) (Motion). For the reasons set forth
below, the Motion is DENIED.
BACKGROUND
The Plaintiffs allege that Defendant Dish violated the
Telephone Sales Rule (TSR), 16 C.F.R. Part 310, as amended; the
Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227; and
Page 1 of 9
consumer protection and telemarketing laws of each of the State
Plaintiffs. See Pretrial Order (d/e 564), at 2-3. The Federal Trade
Commission (FTC) authorized the Attorney General to bring the TSR
claims against Dish. See Third Amended Complaint (d/e 483), at 12.
The FTC commenced its investigation of Dish’s telemarketing
practices in 2005. During the FTC investigation, Dish produced
calling records from October 2003 through September 2005,
December 2005 through December 2006, and January 2007
through August 2007 (collectively 2003-2007 Call Records). See
Opinion entered December 12, 2014 (d/e 445) (Opinion 445), at
118.
Dish produced the 2003-2007 Call Records on disc in three
stages, the first on September 22, 2005, the second on August 1,
2007, and the last on September 7, 2007. See Plaintiffs’ Third
Motion to Compel Discovery Responses (d/e 143), Exhibits 21, 22,
and 23, Transmittal Letters for Dish CID Production (Transmittal
Letters). Dish’s Corporate Counsel Dana Steele wrote the
transmittal letter accompanying the first portion of the production.
Steele stated, in part:
Page 2 of 9
Per our conversation, please find enclosed the
following in response to the CID issued by your office to
EchoStar Communications Corporation (“EchoStar”) . . . .
1. 1DVD with listing of all outbound telemarketing calls
made on behalf of EchoStar from October 17, 2003
through December 31, 2004* (CONFIDENTIAL);
....
*A second DVD with the listing of calls from January 1,
2005 to date of the CID request was damaged during
copying and will be forwarded to you upon its
completion.
Motion 143, Exhibit 21, Letter from Dana Steele to Russell Deitch
dated September 22, 2005. Dish was named EchoStar
Communications Corporation in 2005. See Opinion entered
December 12, 2014 (d/e 445), at 2.
Dish’s outside counsel Jeffrey Blum wrote the other two
transmittal letters. Blum stated in the second transmittal letter,
“[E]nclosed find nine (9) CD-Rom’s (sic) containing EchoStar Call
Data” from December, 2005 through December, 2006.” Blum
stated in the third transmittal letter, “[E]nclosed find six (6) CDRom’s (sic) containing EchoStar Call Data from January, 2007
through August, 2007.” Motion 143, Exhibits 22 and 23, Letters
Page 3 of 9
from Jeffrey Blum to Russell Deitch dated August 1, 2007, and
September 10, 2007.
On September 18, 2007 Dish representative Robert Menjivar
sent a facsimile transmission to FTC representative Lori Kalani
concerning the meaning of the field codes on the call record data.
Motion 143, Exhibit 24, Facsimile Transmission dated September
18, 2007 (Facsimile). Menjivar stated:
Per our earlier phone conversation, please find the
information you requested below. The field codes in the
call data files you have received from EchoStar are as
follows:
contact_date – Date and Timestamp for when EchoStar
or contracted outbound dialing company made the call
customer_type – Two types (CSG Account Number or
Lead ID) which states if the contact was an Existing
Business Relation (EBR) or potential contact via a lead.
customer_value – Value is either the account number
itself or the lead’s phone number
media_type – only value is Internal Telemarketing
media_value – contact phone number
contact_result_code – disposition result from the
attempted contact
code_desc – complete description for the code
Id. (emphasis in the original).
Page 4 of 9
The Plaintiffs intend to submit the 2003-2007 Call Records as
records of Dish outbound telemarketing calls. The Plaintiffs intend
to use the quoted statements by Dish representatives to show that
the 2003-2007 Call Records are records of outbound telemarketing
calls. Dish moves to bar the 2003-2007 Call Records on relevance
grounds. Motion, at 1-2.
ANALYSIS
To bar evidence on relevance grounds, Dish must show “that
the evidence is inadmissible for any relevant ground.” Sallenger v.
City of Springfield, 2007 WL 2683791, at *1 (C.D. Ill. September 4,
2007). Evidence is relevant if it has a tendency to make a fact more
or less likely to be true and the fact is of consequence in
determining the action. Fed. R. Evid. 401. This case concerns
Dish’s outbound telemarketing calls. The 2003-2007 Call Records
are clearly relevant if they contain telemarketing calls. The
Transmittal Letter from Corporate Counsel Steele states that the
records she produced were a “listing of all outbound telemarketing
calls made on behalf of EchoStar.” Menjivar stated in the Facsimile
that the codes in the records related to telemarketing calls to
existing customers and prospects. These statements support the
Page 5 of 9
inference that the 2003-2007 Call Records were all records of
telemarketing calls. The 2003-2007 Call Records, therefore, may be
relevant to prove or disprove the Plaintiffs’ claims regarding
telemarketing practices. The Court will not bar the 2003-2007 Call
Records on relevance grounds in limine.
Dish argues that other evidence shows that the 2003-2007
Call Records were not all telemarketing calls. The Court will resolve
any conflicts in the evidence at the bench trial. The conflicting
evidence does not support barring admission of the 2003-2007 Call
Records in limine.
Dish also relies heavily on Magistrate Judge Cudmore’s
Opinion entered July 20, 2012 (d/e 165) (Opinion 165). Dish
argues that Opinion 165 shows that the 2003-2007 Call Records
were not all telemarketing calls. Dish argues that the 2003-2007
Call Records are not relevant because the Plaintiffs have no
evidence to separate the telemarketing calls in the 2003-2007 Call
Records from the non-telemarketing calls. The Court disagrees.
Judge Cudmore was deciding the Plaintiffs’ motion to compel
additional discovery from Dish concerning the 2003-2007 Call
Records. Judge Cudmore denied the request because the
Page 6 of 9
additional discovery would result in undue delay. Opinion 165, at
15. Judge Cudmore was not making findings of fact under Federal
Rule of Civil Procedure 52 after consideration of all the evidence.
His factual statements in Opinion 165 are not necessarily
controlling at trial.
Dish notes that Judge Cudmore stated in Opinion 165, “The
Plaintiffs made a choice to focus on the data from the 2007-2010
calls; the Plaintiffs will have to live with their choice.” Id. at 14.
This statement, in context, only means that the Plaintiffs would not
be allowed to secure additional discovery on the 2003-2007 Call
Records. Judge Cudmore did not preclude the Plaintiffs from using
then available evidence concerning the 2003-2007 Call Records,
including the Transmittal Letters and Facsimile. The Transmittal
Letters and the Facsimile sufficiently show that the 2003-2007 Call
Records may be relevant and should not be barred in limine on
relevance grounds.
Dish also notes that Judge Cudmore stated that the 20032007 Call Records “included non-telemarketing calls.” Opinion
165, at 13. Dish argues that after Judge Cudmore made this
statement, the Plaintiffs never secured additional evidence to prove
Page 7 of 9
which of the calls reflected in the 2003-2007 Call Records were
telemarketing calls.
Again, Judge Cudmore made the quoted statement in Opinion
165 in the context of resolving the Plaintiffs’ request to compel
additional discovery about the 2003-2007 Call Records. Judge
Cudmore was not making findings of fact after consideration of all
the evidence at trial.
Furthermore, Judge Cudmore based the quoted statement on
two letters that Dish wrote to the FTC during settlement
negotiations in 2008 (2008 Letters). The letters contained an
analysis of samples of the 2003-2007 Calls Records (2008 Analysis).
See Opinion 165, at 13. This Court has granted Dish’s motion to
exclude the 2008 Letters containing the 2008 Analysis at trial
under Federal Rule of Evidence 408 (d/e 533) in a companion
Opinion filed on the same date as this Opinion. The 2008 Letters,
therefore, cannot be used to prove or disprove the validity of the
Plaintiffs’ claims. Judge Cudmore based his quoted statement on
the 2008 Analysis in the 2008 Letters, and so, his statement cannot
be used to prove or disprove the validity of Plaintiffs’ claims
concerning the 2003-2007 Calls Records.
Page 8 of 9
The Transmittal Letters and the Facsimile tend to show that
the 2003-2007 Call Records may all be records of telemarketing
calls. Because the 2003-2007 Call Records may be relevant, the
Court will not bar the records in limine on relevance grounds.
CONCLUSION
Defendant Dish Network, L.L.C.’s Motion in Limine to
Preclude Plaintiffs from Presenting Evidence of 2003-2007 Call
Records and Memorandum in Support Thereof (d/e 535) is
DENIED.
Enter: December 15, 2015
/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?