Leeb v. Charter Communications, Inc.

Filing 141

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff Greg Leebs motion to compel entry of randomization protocol ( 134 ) is GRANTED. The parties shall proceed forward with the randomization process as further defined herein. IT IS FURTHER ORDERED that defendant Charter Communications, Inc.s motion to clarify (138) is GRANTED IN PART and DENIED IN PART commensurate with the instructions and conclusions made herein. Signed by District Judge Stephen R. Clark on 9/30/19. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREG LEEB, individually and on behalf
of others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
CHARTER COMMUNICATIONS, INC. )
doing business as SPECTRUM
)
)
Defendant.
)

Case No. 4:17-cv-02780-SRC

MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Greg Leeb’s motion to compel
entry of randomization protocol (134) and defendant Charter Communications, Inc.’s
motion to clarify (138). The Court addresses each in turn.
Despite this Court’s anticipation that the parties could reach an agreement on a
randomization procedure to be used in selecting the 750-account sample addressed in this
Court’s Order, ECF 127, the parties have again stalemated. This time, they disagree about
two issues. First, they cannot agree on whether the sample should include cellular or
landline related data. Leeb argues the information should be limited to cellular data
because “this entire case and class definition are limited to calls to cellular telephones.”
Charter argues “[e]liminating landline numbers from datasets is work typically performed
by a plaintiff’s expert witness in TCPA litigation.” Be that as it may, Charter must
produce only cellular data for the 750-account sample—the Court has already explained

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the need to push this case along and, at this juncture, the lack of document production
accounts for much of the delay.
Second, the parties dispute whether the 750-account sample should include “prerecorded messages.” Leeb “insists upon receiving data concerning calls made with
prerecorded messages … because Charter has moved for judgment on the pleadings as to
plaintiff’s claims concerning use of an ‘automatic telephone dialing system.’” Charter,
meanwhile, suggests “plaintiff now says the ‘random’ sample should include only calls
on which an artificial or pre-recorded voice was used.” ECF 137, p. 3 (emphasis added).
Charter goes on to note that “[the] Court, at Plaintiff’s request, specifically ordered
Charter’s production to include ‘those debt-collection calls made using (1) an unattended
message, (2) TCN, or (3) LiveVox/NetTel.” Id. (emphasis in original). And calls through
LiveVox/NetTel, for example, “are typically live agent calls that do not use any artificial
or pre-recorded voice.” ECF 137, p. 3. The Court does not read, as Charter does, that
Leeb’s request meant he only wants data concerning calls made with prerecorded
messages. In any event, the Court has already ruled on this issue and expects the parties
to abide by it: the 750-account sample shall encompass “universal account-level records,”
which includes “LiveVox, NetTel, TCN, and any other vendor providing unattended
messages.” ECF 127 at p. 11 (emphasis added). Put simply, pre-recorded message data is

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included, but not exclusive, to the extent that term is captured by reference to “LiveVox,
NetTel, TCN, and other any other vendor providing unattended messages.” 1
Charter’s motion to clarify raises what this Court counts as six additional “issues.”
ECF 138, pp. 1-8. First, Charter says it is confused about the meaning of “unattended
message” as one of the categories of production referenced in the class allegations and
this Court’s order, ECF 127 at pp. 8, 11. Charter explains the term “unattended message”
could mean a “voice message blast where the recipient has no option to speak with a live
representative,” or it could “refer instead [to] any call that can use an ‘artificial or
prerecorded voice … even if a recipient is also given the option to speak to a live agent.”
As an undefined term of his choosing, the Court construes the ambiguity against Leeb
and holds that it means—for purposes of this case—the former definition. To be sure, had
Leeb intended to track his class allegations with the “artificial or prerecorded voice”
language used in the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §
227(b)(1)(A)-(B), he could have done so. Instead, he chose to rely on the undefined term
“unattended messages,” ECF 50 at ¶ 57. Serving as some guidance, Newton’s Telecom
Dictionary defines “unattended call” as one in which “no agent is available to serve the

The parties’ arguments, thus far, have not made clear if there is a meaningful difference between
“unattended messages” and “prerecorded messages.” Presumably they are the same in most
situations. Charter notes in its briefing that LiveVox/NetTel, for example, uses calls that are
“typically live agent calls that do not use any artificial or pre-recorded voice.” It would be difficult
to categorize that sort of call as an “unattended” message when a live agent is servicing the call—
this, in comparison, to a call in which a recipient is essentially left listening to an unresponsive,
computerized voice recording. In any event, the class allegations do not limit themselves to
unattended messages; rather, the proposed class consists of “call[s] in connection with debt
collection using (1) an unattended message, (2) TCN, or (3) LiveVox[Net/Tel].” (ECF 50, ¶ 57
(emphasis added)). Thus, to the extent TCN and/or LiveVox/NetTel use live agents or something
other than “unattended messages,” that information must be included in the 750-account sample.
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call.” NEWTON’S TELECOM DICTIONARY 1315 (30th ed. 2016). Again, for sake of
expediency in this long-lingering case, that definition will be adopted moving forward to
resolve any lingering ambiguity.
Second, Charter notes that “plaintiff has sued Charter Communications, Inc., in
this action, [which] is a top-level holding company with many different subsidiaries …
[including] legacy Charter[,] Time Warner Cable Inc.[,] and Bright House Networks,
LLC[.]” Charter questions whether it is required to produced information pertaining only
to legacy Charter, or also Time Warner and Bright House—noting both operate as
companies separate from Charter Communications, Inc. Charter also notes that the
vendors that allegedly called Leeb “were vendors used by legacy Charter (and then by
post-merger Charter) … not customers with the [Time Warner] footprint.” At this stage,
Leeb has made no indication he intends to sue Time Warner or Bright House as separate
subsidiaries, and the time for adding additional parties has passed, ECF 129. Nor has
there been any suggestion of alter ego liability or agency that might otherwise implicate
Time Warner or Bright House. Therefore, the Court finds only Charter and its own
vendors are implicated.
Third, Charter raises concerns that it cannot produce certain discovery-related
information by the October 4 deadline set forth in this Court’s recent Order on the parties’
competing motions to compel, ECF 127. Charter seeks clarification that “it is not being
ordered to identify and produce all ‘Category 1’ evidence for every alleged wrong
number called by October 4, but instead must only identify the types of evidence it will
rely on by October 4, and produce such evidence applicable to the sample 750 accounts
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on November 25, 2019.” Charter must, at minimum, identify the types of evidence it will
rely on by October 4, and produce such evidence on a rolling basis as it becomes
available, up through the final discovery deadline of November 25, 2019.
Similarly, Charter says “the same problem applies to Categories 2 and 3 …
because Charter cannot collect, review, and redact protected subscriber information from
all responsive materials by October 4.” Thus, Charter requests that it be permitted to
identify responsive information by October 4 “with supplementation on a rolling basis
thereafter.” Again, Charter must, at minimum, identify relevant evidence by October 4,
and produce such evidence on a rolling basis as it becomes available, up through the final
discovery deadline of November 25, 2019.
Fourth, Charter points out that this Court’s prior Order, ECF 127, “imposes
several global limitations on the discovery requests, including for Category 3,” to include
that “each discovery request will be limited to information pertaining to calls made ‘in
connection with debt collection’ using either ‘an unattended message,’ ‘TCN,’ or
‘LiveVox.’” ECF 127 at p. 9. However, “the Order’s final ordering clause directs Charter
to ‘respond to each interrogatory and request for production in Category 3 as originally
written,” citing ECF 127 at p. 19. At pages 9 and 10 of that Order, this Court explained
how Category 1—not Category 3—was “in essence, contention interrogatories” that
necessarily proportionately limited themselves to “those records that Charter would
eventually seek to use in its defense during class certification.” ECF 127, pp. 9-10. Thus,
the Court intended to say in its final ordering clause that Category 1 shall be responded
to “as originally written,” recognizing the built-in scope limitations, whereas Categories
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2 and 3 shall be responded to “with the addition limitation that each request is narrowed
to seek information or documents predicated on: (a) outbound debt collection calls; (b)
that are made by Charter via unattended message, TCN, or LiveVox.” In other words,
Categories 1 and 3 should have been and are now hereby switched in the final ordering
clause.
Fifth, and finally, Charter requests “a modest extension of time to comply with all
October 4 deadlines in the Court’s Order through October 18.” The Court denies that
request. For purposes of responding to Categories 1 through 3, the Court has already
explained its expectation that Charter identify what it can by October 4, with the
expectation that it continue to produce relevant documents and information on a rolling
basis up through November 25, 2019. That is not an onerous task, mindful—in
particular—that the questions in those categories have been known to Charter since
January 10, 2019, when Leeb first propounded them. As for the randomization process,
that shall proceed forward immediately. Affected persons are excepted to be notified by
October 4, in part, because those persons will need sufficient time to object—up through
November 4, 2019. Charter has some time to produce the sampling data (through
November 25, 2019), but has failed to sufficiently explain why the random drawing of
750 accounts cannot be done apace. Therefore, the deadlines remain as set in the Court’s
September 20, 2019 Orders, ECF 127 & 128.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff Greg Leeb’s motion to compel entry of
randomization protocol (134) is GRANTED. The parties shall proceed forward with the
randomization process as further defined herein.
IT IS FURTHER ORDERED that defendant Charter Communications, Inc.’s
motion to clarify (138) is GRANTED IN PART and DENIED IN PART
commensurate with the instructions and conclusions made herein.
So ordered this 30th day of September 2019.

STEPHEN R. CLARK
UNITED STATES DISTRICT JUDGE

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