Bridge v. Credit One Financial

Filing 96

ORDER Granting 72 Motion for an Order Authorizing Time Warner Cable to Produce Documents. Signed by Magistrate Judge Nancy J. Koppe on 6/30/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM BRIDGE,

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Pending before the Court is Defendant’s motion for an order authorizing Time Warner Cable

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to produce documents responsive to subpoena. Docket No. 72. Plaintiff filed a response and

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Defendant filed a reply. Docket Nos. 75, 81. The Court finds this matter properly resolved without

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oral argument. See Local Rule 78-2. For the reasons discussed below, Defendant’s motion (Docket

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No. 72) is hereby GRANTED.

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I.

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Plaintiff(s),
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vs.
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CREDIT ONE FINANCIAL,
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Defendant(s).

Case No. 2:14-cv-01512-LDG-NJK
ORDER
(Docket No. 72)

BACKGROUND

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Plaintiff initiated this class action by filing a complaint against Defendant on September 17,

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2014, alleging that Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 2277,

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et seq. (“TCPA”) by placing a large number of automated calls to Plaintiff’s cellular telephone.

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Docket No. 1, ¶¶ 1-2. On June 26, 2015, Plaintiff filed an Amended Complaint, further alleging that

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Defendant violated the Nevada Deceptive Trade Practices Act, NEV. REV. STAT. § 41.600. Docket

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No. 95, at ¶ 1.

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In its Answer, Defendant asserts that it obtained prior express consent for the telephone

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numbers at issue in this case. Docket No. 11, at 3. Specifically, Defendant contends that it obtained

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consent from Plaintiff’s mother, Nancy Bridge, to contact Ms. Bridge at the subject phone number.

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Docket No. 72, at 2 (asserting Ms. Bridge gave express consent for Defendant “to contact her at any

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phone number she provided to Credit One”).

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On March 3, 2015, Defendant issued a subpoena to non-party Time Warner Cable seeking,

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for the three year period prior to the filing of the Complaint, all incoming and outgoing call records,

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billing statements/records, and payment records for the subject phone number. Id., at 11-16. On

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March 26, 2015, a representative from Time Warner Cable responded to the subpoena, stating that,

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as a cable TV provider, it would need court authorization to disclose personally identifiable

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information pursuant to the Cable Privacy Act, 47 U.S.C. § 551(c). Id., at 18. Thereafter, Defendant

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filed the pending motion requesting the Court issue an order authorizing the disclosure of

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information sought in the subpoena to Time Warner Cable.

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II.

ANALYSIS

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Rule 261 provides for the discovery of relevant, non-privileged information that “appears

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reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1).

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Relevance under Rule 26(b)(1) is liberally construed, and is considerably broader than relevance for

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trial purposes. Oppenheimer Fund v. Sanders, 437 U.S. 340, 351,(1978) (citation omitted); U.S.

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E.E.O .C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 431-32 (D. Nev. 2006). For discovery

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purposes, relevance includes matters that bear on, or that reasonably could lead to other matters that

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bear on, any issue that is or may be in the case. Oppenheimer Fund, 437 U.S. at 351.

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Pursuant to the Cable Privacy Act, a cable operator may disclose personally identifiable

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information concerning a subscriber if the disclosure is “made pursuant to a court order authorizing

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such disclosure, if the subscriber is notified of such order by the person to whom the order is

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directed.” 47 U.S.C. § 551(c)(2)(B). Defendant seeks such an order from the Court authorizing the

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release of subscriber and call record information from non-party Time Warner Cable.

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Plaintiff opposes Defendant’s motion, arguing that the documents sought in the subpoena are

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not relevant. Docket No. 75. Plaintiff asserts that the subject phone number belongs to Plaintiff’s

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Unless otherwise specified, references to “Rules” refer to the Federal Rules of Civil
Procedure.
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mother, Nancy Bridge, which is the target of Defendant’s request for leave to file a third-party

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complaint. Id., at 3; Docket No. 30 (motion for leave to file third-party complaint).

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In reply, Defendant argues that Ms. Bridge authorized Defendant “to call Plaintiff’s phone

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number when she attached the number to her account, at least in part because of the familial,

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financial, and other relationship between Plaintiff and Ms. Bridge.” Docket No. 81, at 3.

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Additionally, Defendant argues that the information sought in the subpoena is “directly relevant

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material and material likely to lead to the discovery of admissible evidence.” Id., at 3.

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The Court finds that the release of subscriber information from non-party Time Warner Cable

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is central to establishing Credit One’s defenses in this case. Prior consent is an affirmative defense

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to calls otherwise made in violation of the Telephone Consumer Protection Act. See 47 U.S.C.

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§ 227(b)(1)(A). Defendant bears the burden of proof in establishing that the subscriber provided

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prior consent. Grant v. Capital Mgmt. Servs., L.P., 449 F. App’x 598, 600 n. 1 (9th Cir. 2011).

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Therefore, the incoming and outgoing call records, billing statements/records, and payment records

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for the subject phone number associated with Ms. Bridge’s account are relevant to addressing the

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issue of whether Defendant received prior consent from Ms. Bridge to contact the subject phone

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number. Accordingly, the Court hereby GRANTS Defendant’s motion for an order authorizing

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Time Warner Cable to produce documents responsive to subpoena (Docket No. 72).

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III.

CONCLUSION

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For the reasons discussed above, Defendant’s motion for an order authorizing Time Warner

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Cable to produce documents responsive to subpoena (Docket No. 72) is hereby GRANTED. To

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ensure compliance with the Telephone Consumer Protection Act, 47 U.S.C. § 2277, Time Warner

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Cable shall serve a copy of the subpoena and a copy of this order to its subscriber prior to producing

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documents responsive to the subpoena.

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IT IS SO ORDERED.

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DATED: June 30, 2015

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NANCY J. KOPPE
United States Magistrate Judge
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