Martin v. Comcast Corporation

Filing 101

ORDER: For the reasons provided, plaintiff Nicholas M. Martin's Motion to Compel 77 is granted. However, defendant's production of the materials is stayed pending the District Judge's ruling on defendant's motion for summary ju dgment. Should defendant's motion for summary judgment be denied, defendant will be required to produce the discovery materials within thirty days following entry of the District Judge's order. [For further details see order]- Signed by the Honorable Susan E. Cox on 1/13/2015. Mailed notice (np, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
)
NICHOLAS MARTIN, on behalf of himself )
and others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
)
COMCAST CORPORATION,
)
)
Defendant.
)
)

Case No: 12 C 6421
District Judge Sharon Johnson Coleman
Magistrate Judge Susan E. Cox

ORDER
For the reasons provided, plaintiff Nicholas M. Martin’s Motion to Compel [77] is granted.
However, defendant’s production of the materials is stayed pending the District Judge’s ruling on
defendant’s motion for summary judgment. Should defendant’s motion for summary judgment be
denied, defendant will be required to produce the discovery materials within thirty days following
entry of the District Judge’s order.

STATEMENT
Before the Court is plaintiff’s motion to compel discovery [77], all of which is aimed at
proving his class-wide allegations that defendant Comcast has violated the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. Section 227. For the reasons stated below, the Court grants
the motion, but stays the production of the materials until thirty days following District Judge
Coleman’s ruling on defendant’s motion for summary judgment (unless judgment is entered in the
defendant’s favor).

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Plaintiff’s allegations in the Amended Complaint center on eight autodialed telemarketing
calls made to his cell phone during the week of October 8th to October 14th in 2011. Count One
alleges that the calls were made to plaintiff without his prior express written consent in violation of
the TCPA. Count Two alleges that defendant violated the “Do Not Call” portion of the TCPA
when it made such calls after having received a demand from plaintiff not to call and that it failed
to adequately record the demand. Count Three alleges that defendant violated the National Do Not
Call Registry of the TCPA by calling plaintiff.
Although plaintiff’s putative class definition for these counts has evolved during the course
of this action, the essence of the defense has not. Comcast consistently and vehemently argued
that plaintiff’s complaint is deficient as a matter of law because he consented to receive these calls
when he gave Comcast his cell phone number as his contact number. Further, Comcast maintains
that the regulations interpreting the TCPA allow for a reasonable grace period and that because
only five days elapsed between plaintiff’s October 4, 2011 written request to Comcast that he not
be called and the cessation of calls, the time period is reasonable as a matter of law.
These arguments received a sympathetic hearing from the previous District Judge who,
although denying the defendant’s motion to dismiss on these grounds, only did so because it was
unclear to him whether plaintiff actually had given Comcast his cell phone number during the
course of the parties’ business relationship. Because this fact was in dispute between the parties,
the Court could not otherwise find for Comcast. The Court also declined to rule on the second
defense, the reasonableness of the time frame to process the request, on a motion to dismiss. It
held that it was unclear how long a period was even in issue between notification and cessation of
calls. Although it did not bifurcate discovery, the Court found that “these arguments should be

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addressed after the facts have been pinned down through discovery….”, 1 thus signaling the District
Judge’s strong preference that the parties focus on the circumstances surrounding how Comcast
obtained plaintiff’s cell phone number in the first place and the timing of the notice to cease calls
and calls to assess the legal impact of these facts on the case.
Shortly after Judge Nordberg’s ruling, Comcast filed a motion to strike the class action
allegations and plaintiff filed a motion to amend his complaint. Judge Sharon Coleman inherited
these motions after the case was reassigned to her in April 2014. Both sides indicated to her that
they were interested in settlement and a conference was set before this court for October 8, 2014.
The parties requested that the Court reset this conference because of the pending motions and the
conference was postponed until December 16, 2014. District Judge Coleman promptly ruled on
both motions on September 16, 2014. In her opinion, denying the motion to strike and granting the
motion to amend, she addressed Comcast’s underlying contentions which it again asserted barred
plaintiff’s individual allegations, describing them as “sound,” but premature before discovery,
“especially with respect to plaintiff’s individual claims, or at the class certification stage.” 2
Plaintiff followed this ruling with a motion to certify the classes set forth in the Amended
Complaint, which was entered and continued (and is not briefed), followed by the instant motion
which was referred to this court on November 4, 2014. 3 Before briefing on the motion to compel
was completed, defendant had filed a motion for summary judgment on all three of plaintiff’s
counts. In its motion, Comcast argues that the fact questions which prevented a ruling in its favor
on its motions to dismiss and to strike have now been resolved and that the undisputed facts
mandate a judgment in its favor. Specifically, defendant argues that plaintiff provided prior express
1

Dkt. 34, p. 8 (Nov. 26, 2013).
Dkt. 68, p. 2.
3
At the initial hearing on this motion on December 10, 2014, both sides informed the Court that they did not believe
that the settlement conference set for the following week would be fruitful and asked that it be stricken. The Court
granted this oral motion.
2

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consent when he provided his telephone number to Comcast. Comcast’s business records show
that plaintiff proved his cellular telephone number when he signed up as a new customer for
Comcast’s High-Speed Internet service on January 6, 2011, a sales representative confirmed that
the telephone number came from plaintiff and that he could not have registered the account
without providing this number. Because these facts are now established, Comcast argues that it has
established the requisite express prior consent. With respect to Count Two, defendant asserts that
the heretofore open fact question—how much time elapsed between Comcast’s receipt of
plaintiff’s October 4. 2011 letter asking not to receive calls related to his account and the cessation
of those calls—has been established as five days, a per se reasonable time period under the
applicable FCC regulations. Finally, Comcast argues that it is entitled to judgment on plaintiff’s
last claim, the National Do-Not-Call registry claim, because it had a prior or existing business
relationship with plaintiff as defined by the FCC regulations. This motion also is not briefed,
although District Judge Coleman indicated her intent to set the briefing schedule for the motion at
her next status in February.
This background is important because it is clear from the Court’s review of the pending
motion and the history of the case, particularly the language of the previous rulings, that the
pending motion for summary judgment may very well resolve the case in Comcast’s favor. This is
not to say that this is a guaranteed outcome, but Comcast has raised defenses to this action which
previously have been described as sound but for the unresolved fact questions noted by both
District Judges. These facts, if Comcast is correct and they are no longer in dispute, have only
strengthened Comcast’s hand.
This reality informs the outcome of the instant dispute. Comcast already has produced
information specific to this plaintiff, as well as its general policies and procedures related to its do-

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not-call list, its Subscriber Agreement and Privacy Policy applicable to all of its customers. It has
offered to produce a corporate representative to testify about these procedures, as well as how and
why Comcast obtains its customers’ telephone numbers. Comcast has further offered sworn
testimony that there exists no other customer like plaintiff. What plaintiff seeks now is extensive
discovery of information about Comcast’s interaction with other potential class members in his
broadly defined proposed classes. 4 In assessing the appropriateness of this discovery, we are
mindful of Rule 26’s directive that we limit the extent of discovery if we find the burden of
expense of the proposed discovery outweighs its likely benefit. In this case, there is no question
that plaintiff will be entitled to the information he is requesting. For example, plaintiff seeks
deposition testimony pursuant to a Rule 30(b)(6) notice about Comcast’s policies concerning
complaints about its call practices; the revenue generated by such calls; and all data bases or
documents which contain names and other identifying data for potential class members.
Interrogatory No. 1 and Document Request 2 asks Comcast to provide all relevant information
about the calls or attempted calls to class members, including the script used and the outcome of
the calls. Many courts, including this one, have ordered that this kind of discovery is appropriate
in this type of case, although methods such as sampling can be employed to address the burden if
the vast numbers of potential class members justify that kind of a limitation on the scope of
discovery. 5 The issue is not so much whether plaintiff is entitled to the discovery, but when?

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For example, the class plaintiff seeks to certify in Count One, the “Robocall Class” is defined as “[p]ersons who, on
or after August 14, 2008, Comcast or someone on its behalf called their cellular telephone number using an automatic
telephone dialing system and/or a prerecorded or artificial voice where the purpose of the call was to “win back”
customers after they had cancelled a service, where: (a) Comcast obtained the phone number from some other source
than the called party as to the account that was cancelled, and/or (b) Comcast does not have a record that shows the
facts and circumstances regarding such consumer providing their cellular phone number to Comcast, including but not
limited to the specific time and date that the consumer provided their cellular phone number to Comcast and the
manner in which the number was provided” (Amended Complaint, p. 11, par. 35.)
5
Martin v. Bureau of Collection Recovery, 2011 WL 2311869, at *5 (N.D. Ill. June 13, 2011); Balbarin v. North Star
Capital Acquisition, LLC, 2010 U.S. Dist.LEXIS 118992, *3 (N.D. Ill. Nov. 9, 2010).

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Clearly the discovery sought is expensive and burdensome. Plaintiff claims that Comcast
has not been specific enough about how burdensome this discovery would be, but it is obvious to
the Court just based on the broad categories of information plaintiff seeks. The District Judge has
granted to this Court the power to manage the discovery schedule. The Court can see no prejudice
to plaintiff in delaying the production of these materials until after the District Judge’s ruling on
defendant’s motion for summary judgment. As the Court already has said, Comcast’s arguments
go to the heart of whether plaintiff can maintain any action here and have already been found to
present a serious challenge to his ability to do so by the District Judges who have presided over
this action. It does not make sense to subject defendant to the burden of producing these materials
until after there is a ruling on that motion which may, at a minimum, contract the scope of the
allegations plaintiff may advance, or could defeat his action entirely.
The Court proposes the following process, which will ensure that there are no
unnecessary delays after the ruling, if the action is not dismissed. The Court will schedule a
discovery conference within one week of the ruling to discuss with counsel the remaining
discovery both sides will need to take to complete discovery and to set a firm discovery cut-off
consistent with the trial date (February 2016) set by District Judge Coleman. The Court orders
Comcast to be prepared to discuss a production schedule which would provide plaintiff with the
materials sought in the instant motion within thirty days of the Court’s summary judgment ruling
unless the action is dismissed. By this Order, the Court overrules all relevance objections to the
discovery, including those raised by defendant to the FTC consent decree and its compliance with
that decree, which bear directly on the record-keeping issues raised by plaintiff in his complaint.
Of course, Comcast can still raise any privilege objections it may possess to those materials
provided it also compiles a clear privilege log. Comcast may also, depending on the numbers of

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potential class members it identifies about whom it may have to produce information, propose
ways of limiting the scope of the production if it can also demonstrate a demonstrable burden to it
resulting from producing this information about all of the putative class members. This topic will
also be discussed and resolved at the discovery conference which the Court will conduct after the
ruling if necessary.

ENTERED:
Date: January 13, 2015

/s/ Susan E. Cox
U.S. Magistrate Judge

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