Critchfield Physical Therapy, P.C. v. Techhealth, Inc.

Filing 60

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that, as set forth above, Plaintiff's motion to compel (Doc. No. 39) is GRANTED in part, subject to a protective order to be agreed upon by the parties, and DENIED in part without prejudice to Pl aintiff seeking further production depending upon Defendants objections to Plaintiff's motion for class certification. The parties shall also agree upon a reasonable timeframe within which Defendant shall producethe information subject to produc tion in accordance with this Memorandum and Order. IT IS FURTHER ORDERED that on or before March 11, 2013, the parties shall submit to the Court a new joint proposed scheduling plan to govern the continued proceedings in this case, including the date for the filing of a motion for class certification. IT IS FURTHER ORDERED that Plaintiff's motion for a stay is denied as moot. IT IS FURTHER ORDERED that Plaintiff's second motion for class certification is DENIED as moot without prejudice to refilling by Plaintiff at the time to be provided forby further Court Order. (Doc. No. 29.)(Doc. No. 53.) (Response to Court due by 3/11/2013.) Signed by District Judge Audrey G. Fleissig on 3/4/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CRITCHFIELD PHYSICAL
THERAPY, P.C., individually and on
behalf of all others similarly-situated,
Plaintiff,
vs.
TECHHEALTH, INC.,
Defendant.

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Case No. 4:12CV00268 AGF

MEMORANDUM AND ORDER
This putative class action is before the Court on the motion of Plaintiff Critchfield
Physical Therapy, P.C., to compel Defendant Techhealth, Inc., to provide full and
complete responses to interrogatories that Plaintiff served on May 11, 2012, and to produce
documents that Plaintiff asserts are relevant to class certification. For the reasons set forth
below, the motion to compel shall be denied in part, and granted in part pursuant to the
terms of a protective order to be agreed upon by the parties.
BACKGROUND
Plaintiff initiated this action in state court on December 23, 2011, claiming that
Defendant sent Plaintiff two unsolicited fax advertisements in violation of the Telephone
Consumer Protection Act (ATCPA@), 47 U.S.C. ' 227(b)(1)(C). Plaintiff filed the case as a
nationwide class action seeking an award of statutory damages for each alleged violation of
the TCPA and a declaration that Defendant violated the Act, as well as damages for common

law conversion. Defendant removed the action to this Court.1 Among Defendant=s
defenses is that it did not violate the TCPA because it had an established business
relationship with Plaintiff (and other recipients of its advertising faxes) and that Plaintiff
(and other recipients) consented to receipt of fax advertisements from Defendant.
The Case Management Order governing the case provides that the case is to proceed
in two stages: a class certification phase (Phase I) and a trial phase (Phase II). A schedule
for Phase II discovery is to be set following a ruling on the motion for class certification. In
a pending early motion for class certification, Plaintiff=s proposed class definition is as
follows:
All persons who (1) on or after four years prior to the filing of this action, (2)
were sent telephone facsimile messages of material advertising the
commercial availability of any property, goods, or services by or on behalf of
Defendant (3) with respect to whom Defendant cannot provide evidence of
prior express permission or invitation for the sending of such faxes, (4) with
whom Defendant does not have an established business relationship and (5)
which did not display a proper opt out notice.
(Doc. No. 29 at 1.)
On May 11, 2012, Plaintiff served Defendant with interrogatories and requests for
production, seeking, among other things, the names, addresses, and phone and fax numbers
of the entities to which Defendant sent advertising faxes during the class period (December
23, 2007, to the present); the fax logs produced by the computer software programs used to

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For a discussion of the propriety of removal of a private class action under the
TCPA, see St. Louis Heart Center, Inc. v. Vein Centers For Excellence, Inc., 860 F. Supp.
2d 920, 922-23 (E.D. Mo. 2012).
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send the faxes;2 and the name and records of the telephone service provider(s) that provided
service to Defendant=s fax machine during the class period.
In response, Defendant provided two PDF spreadsheets that listed the advertising fax
recipients by identification number, and the area codes of their phone and fax numbers.
The names, addresses, and telephone and fax numbers of the recipients were redacted. On
October 5, 2012, Plaintiff filed the motion to compel now before the Court. As
summarized by Plaintiff, it seeks an Order compelling the production of the following:
(1) unredacted faxing lists (in their native, unadulterated format) used in Defendant’s
faxing campaigns, (2) identities, names, addresses and contact information for
potential class members, (3) telephone records (a/k/a or otherwise stored on
computers as “fax transmission logs”) including telephone numbers and service
providers used in Defendant’s faxing campaigns, (4) faxing software and hardware
models, devices (including manufacturers data) and hard drives used in Defendant’s
faxing campaigns.
(Doc. No. 40 at 9.)
Plaintiff argues that its computer expert needs the spreadsheets in their native
unredacted format to analyze their contents and to determine if any alterations were made.
Plaintiff also argues that it needs access to this information in order to prove numerosity.
Plaintiff has submitted a protective order (Doc. No. 39-6) that it proposed to Defendant to
protect any confidential information contained in the unredacted spreadsheets. Plaintiff
asserts that if Defendant intends to raise an established business relationship defense,
Plaintiff is entitled to know the complete phone numbers of the fax recipients with whom
Defendant claims it had an established business relationship, so that Plaintiff=s expert can

According to Plaintiff, Defendant has stated that it did not use a third party to send the
faxes at issue.

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Acompare the customer database with the excel spreadsheets showing to whom faxes were
sent as well as any logs produced by any fax software used.@ (Doc. No. 39 at 4.) Plaintiff
maintains that it needs the telephone records it requested to determine the number and dates
of faxes sent during the class period.
According to Plaintiff, if Defendant has not retained these telephone records,
Plaintiff will need to subpoena the relevant telephone service provider, and because
telephone carriers do not keep records indefinitely, Plaintiff must obtain a subpoena as soon
as possible. Lastly, Plaintiff states that if a fax broadcasting software program was used, it
Acould contain logs of the faxes that were sent and also contain templates of the faxes sent.
The data produced by the fax software program would be contained on any computer where
that program was installed. Plaintiff=s expert would be able to analyze the data from the
fax software program if a mirror image of the computer hard drive were made.@ Id. at 4-5.
Plaintiff has submitted a proposed protective order (Doc. No. 39-6) to address privacy
concerns of Defendant.
Defendant argues that the names, addresses, and contact information of putative
class members are not relevant to class certification, and that Athe only reason Plaintiff
would need the names and contact information [at this point] in this case is for solicitation
purposes, which is plainly improper.@ (Doc. No. 41 at 7.) Defendant asserts that Plaintiff
has not contended that it needs the names and contact information to establish numerosity.
Defendant argues that its telephone records, faxing software, and mirror images of its hard
drives also have no relevance to class certification, and providing the mirror images would
result in the production of confidential information, including patient information and
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Defendant=s confidential business information and trade secrets. Defendant argues that
Plaintiff=s proposed protective order is insufficient, because it does not prohibit oral
communication with putative class members or expressly prohibit Plaintiff=s counsel from
engaging in improper solicitation. Defendant requests that the Court afford the parties a
short amount of time to provide an agreeable protective order accounting for these concerns,
should the Court grant Plaintiff=s motion. Defendant also asserts that complying with
Plaintiff=s requests would impose an undue burden on Defendant – Defendant would have to
produce voluminous phone records dating back to 2007, most of which have nothing to do
with Plaintiff=s lawsuit.
In reply, Plaintiff submits the sworn declaration of its computer expert, stating that to
conduct a meaningful forensic analysis of the data relevant to this case, he would need the
original and unredacted spreadsheets showing to whom the faxes were sent, as well as any
logs produced by any fax software program used. He states that he would be able to
analyze the data from the fax software program from a Aforensically sound mirror image of
the computer hard drive(s).@ He also declares that he needs the telephone records
requested to determine the number and dates of faxes sent. The expert maintains that
[t]hese types of data are useful to me in forming my opinions. For example,
they are used as to whether recipients of fax transmissions were treated in a
uniform manner or individually; determining the number of recipients that
would fall within the putative class definition; identification of the
jurisdiction of the recipients; and for describing the ease or complexity of
various forms of class notice.
(Doc. No. 42-1 at 3.)

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DISCUSSION
A party may generally obtain discovery regarding any nonprivileged matter relevant
to a party’s claim. Federal Rule of Civil Procedure 26(b)(1). Plaintiff, as the moving
party, bears the burden of showing that the requested documents are discoverable within the
meaning of the Rule. Cent. States, Se. & Sw. Areas Pension Fund v. King Dodge, Inc., No.
4:11MC00233 AGF, 2011 WL 2784118, at *2 (E.D. Mo. July 15, 2011).
In general, the Federal Rules promote a Abroad and liberal policy of discovery for the
parties to obtain the fullest possible knowledge of the issues and facts before trial.@ In re
MSTG, Inc., 675 F.3d 1337, 1346 (Fed. Cir. 2012). However, Rule 26(b)(2)(C)(iii)
provides that courts
must limit the frequency or extent of discovery otherwise allowed . . . if it determines
that . . . the burden or expense of the proposed discovery outweighs its likely benefit,
considering the needs of the case, the amount in controversy, the parties= resources,
the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues.
Pursuant to Federal Rule of Civil Procedure Rule 23(a), a plaintiff seeking class
certification must meet four requirements: numerosity, commonality, typicality, and
adequacy of representation. In addition, a named plaintiff seeks certification pursuant to
Rule 23(b)(3), must show that “questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). To determine if these requirements have been satisfied, a district
court must conduct a A>rigorous analysis,=@ making pre-certification discovery appropriate.

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St. Louis Heart Ctr., Inc., 860 F. Supp. 2d at 922 (quoting Landsman & Funk PC v.
Skinder-Strauss Assocs., 640 F.3d 72, 93 (3d Cir. 2011)).
In the context of fax advertising cases like this one, courts have held that at least
some of the data like that sought by Plaintiff is not only relevant to the merits of a
defendant=s established-business-relationship defense, “but it will demonstrate that each
class member is like Plaintiff as to this defense.” See Martin v. Bureau of Collection
Recovery, No. 10 C 7725, 2011 WL 2311869, at *4 (N.D. Ill. June 13, 2011) (rejecting the
argument that this type of discovery should be postponed until after the disposition of the
class certification motion); see also The Savanna Group, Inc. v. Trynex, Inc., No.
10-cv-7995, 2013 WL 66181, at *8-12 (N.D. Ill. Jan 3, 2013).
Here, in light of the discovery produced and the positions Defendant appears to be
taking, much of the discovery Plaintiff seeks seems to be unnecessary and overly
burdensome at the class certification stage. As such, the Court shall allow Plaintiff some of
the discovery sought, but await a further showing of the need for other aspects of the
discovery requests, depending upon the arguments Defendant actually raises in opposition
to Plaintiff’s motion for class certification. At this time, the Court will deny Plaintiff’s
motion, without prejudice, with respect to full contact information of those to whom a
challenged fax was sent. The Court will also deny Plaintiff’s motion to compel production
of a mirror image of Defendant’s hard drive(s). Defendant, however, must produce an
original version, in native form, of the spread sheet it produced, including the full names
and fax numbers of those on the spreadsheet. This production shall be subject to a
protective order to be agreed upon by the parties, which shall include a prohibition against
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Plaintiff contacting any prospective class members without leave of Court. Defendant
shall also produce all the information sought, whether by interrogatory or request for
production, about the fax sending device(s)/ machine(s), and the contact information of
Defendant’s telephone service provider(s) that provided service for the
device(s)/machine(s) used to send the faxes in question. While Defendant is not required
to produce a mirror image of its hard drives, Defendant shall create and preserve a mirror
image of the relevant hard drives should production be ordered at a later date. Defendant is
reminded of its obligation to preserve all electronic and telephonic data that may become
relevant in this case.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that, as set forth above, Plaintiff=s motion to compel
(Doc. No. 39) is GRANTED in part, subject to a protective order to be agreed upon by the
parties, and DENIED in part without prejudice to Plaintiff seeking further production
depending upon Defendant’s objections to Plaintiff’s motion for class certification. The
parties shall also agree upon a reasonable timeframe within which Defendant shall produce
the information subject to production in accordance with this Memorandum and Order.
IT IS FURTHER ORDERED that on or before March 11, 2013, the parties shall
submit to the Court a new joint proposed scheduling plan to govern the continued
proceedings in this case, including the date for the filing of a motion for class certification.
IT IS FURTHER ORDERED that Plaintiff’s motion for a stay is denied as moot.
(Doc. No. 53.)
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IT IS FURTHER ORDERED that Plaintiff’s second motion for class certification
is DENIED as moot without prejudice to refilling by Plaintiff at the time to be provided for
by further Court Order. (Doc. No. 29.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 4th day of March, 2013.

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