Meredith v. United Collection Bureau, Inc.

Filing 65

Memorandum of Opinion and Order: Plaintiff's Motion to Compel Discovery (Doc. 62 ) is GRANTED IN PART AND DENIED IN PART. Expert discovery and class certification briefing deadlines will be reset at the telephonic status conference on June 11, 2018. Judge Patricia A. Gaughan on 5/31/18. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Deborah Meredith,
Plaintiff,
Vs.
United Collection Bureau, Inc.
Defendant.

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CASE NO. 1:16 CV 1102
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon Plaintiff Deborah Meredith’s Motion to Compel
Discovery (Doc. 62). This is an action under the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 et seq. (“TCPA”). The TCPA makes it unlawful “to make any call (other than a call made
for emergency purposes or made with the prior express consent of the called party) using an
automatic telephone dialing system or an artificial or prerecorded voice...to any telephone
number assigned to a ... cellular telephone service.” 42 U.S.C. § 227(b)(1)(A)(iii). For the
reasons that follow, Plaintiff’s motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND
Plaintiff asserts that Defendant United Collection Bureau (“UCB”) violated the TCPA by
initiating multiple telephone calls to her cell phone in an attempt to collect a debt. The debtor
from whom UCB sought to collect was not Plaintiff. UCB contacted Plaintiff because the
debtor’s cell phone number had been reassigned to her. Plaintiff claims that UCB called her on
three occasions and left a message on her cell phone each time. The messages explained that
UCB is a debt collector, instructed her to call UCB back, and provided a reference number for
her to use when she returned the call. Plaintiff called UCB after the third message and informed
it that she is not the debtor whom it was trying to reach. Plaintiff filed this case as a putative
class action. She seeks to represent the following class:
All persons in the United States who: (a) Defendant and/or someone on
Defendant’s behalf called at least twice on their cellular phone; (b) and played the
same or similarly-created message to the voice mail left for plaintiff; (c) where
the phone number was not obtained from the recipient of the call, as to the alleged
debt being collected; (d) where at least one call was made in the period that
begins four years before the date of filing this Complaint.
The parties have had several disputes about Plaintiff’s discovery requests pertaining to
class data. Plaintiff sought class data in Interrogatory 1, which asked UCB to “[i]dentify all
outgoing calls (including attempted calls) for the set described below, including plaintiff. Please
include all data you have....” (Doc. 19-2, at 6) (emphasis added). After listing the broad range of
information that she was seeking, Plaintiff then described the relevant “set,” which was identical
in relevant part to her proposed class definition. Document Request 2 then asked for “[a]ll
documents or data that concern or relate to any phone call, person or phone number responsive
to interrogatory 1.” In the course of discovery, Plaintiff agreed to limit the request to class
information for “wrong number” call recipients as identified in UCB’s database.
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UCB initially objected to these requests as unduly burdensome, stating that it would be
impossible to electronically search its databases for the relevant information and that it would
have to do so manually. The Court denied Plaintiff’s initial motion to compel, finding that
requiring UCB to perform a manual search would be unduly burdensome. Plaintiff then deposed
UCB’s Chief Technology Officer Mark Beirdneau, who testified that it would, in fact, be
possible to write a program to run a query of its database to identify “wrong number” recipients
of its autodialed, prerecorded-voice calls. As a result, the Court granted Plaintiff’s second motion
to compel, ordering UCB to “either write the program that would produce the class data of
wrong number calls and associated account notes for the class period or produce the relevant
portions of its database to Plaintiff so that her expert...can write the program and conduct the
query himself.” (Doc. 46, at 7). If UCB performed the search itself, the Court ordered Plaintiff to
bear the reasonable costs of doing so.
UCB chose to write the program and perform the search. According to Plaintiff, UCB
refused to provide test samples or coordinate with Plaintiff in the data extraction process. UCB
asked Beirdneau to use Plaintiff’s proposed class definition to run the query. Beirdneau created a
multi-step process to run the query. Plaintiff states that UCB originally produced data showing
1,307,659 “wrong number” calls to 1,076,533 unique phone numbers. It then provided different
data for 808,604 “wrong number” calls to 632,430 unique cell numbers. UCB then narrowed the
results to include only accounts where at least two “FOTI” voicemails were left. (Beirdneau
Decl. ¶ 7).
UCB states that it ran its search through each of its relevant databases. It provided the
following explanations for each of the databases that were searched as well as the correlating

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results:
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BOA database: This database houses calls made to Resurgent and PSECU
accounts. No hits for the query searching for at least two dialer calls in which a
message was left and UCB was informed that it had dialed the wrong number.

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CHASE database: This database houses calls made on behalf of Chase. No hits
for the query searching for at least two dialer calls in which a message was left
and UCB was informed that it had dialed the wrong number.

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GOV database: This database houses debt collection calls that UCB makes on
behalf of state and local municipalities. The query reveals that UCB made a total
of 166 calls to 20 accounts in which at least two calls were made using a dialer in
which voicemail messages were left and someone told the UCB operator that
UCB had dialed the wrong number.

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UCB database: This database houses all of the medical debt collection and utility
debt collection call information. The query reveals that UCB made 164 calls to 27
accounts in which at least two calls were made using a dialer in which voicemail
messages were left and someone told the UCB operator that UCB had dialed the
wrong number. Ten of the calls relate to a phone number, [XXX-XXX-XXXX],
for which UCB has already been sued in a separate lawsuit. Seventeen calls relate
to another phone number, [XXX-XXXXXXX], for which UCB has already been
sued in another lawsuit.

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UCBFS database: This database houses calls made on behalf of Citi. No hits for
the query searching for at least two dialer calls in which a message was left and
UCB was informed that it had dialed the wrong number. Barnett Decl. at ¶ 5, Ex.
A.

After eliminating accounts where customers had previously sued UCB and released further
claims against it, the query yielded 48 individual accounts matching the search criteria. UCB
provided the information to Plaintiff in a redacted .pdf format “so that certain personal
information associated with each account remained private.” (Doc. 63, at 7-8). Plaintiff had
requested that the account notes be produced in delimited TXT or CSV format. UCB sent
Plaintiff a bill for $8,000 for its work in performing the queries.
Thereafter, Plaintiff filed the motion to compel currently before the Court. UCB opposes

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Plaintiff’s motion.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 26(b)(1) sets forth the permissible scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “[T]he scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 402 (6th Cir. 1998). After
making a good faith attempt to resolve a dispute, a party may file a motion to compel discovery
under Rule 37 of the Federal Rules of Civil Procedure if it believes another party has failed to
respond to discovery requests or that the party’s responses are evasive or incomplete. Fed. R.
Civ. P. 37(a). In ruling on such a motion, a trial court has broad discretion in determining the
scope of discovery. Lewis, 135 F.3d at 402.
ANALYSIS
A. Scope of UCB’s query
The parties dispute the scope of the discovery that UCB is required to produce in
compliance with this Court’s Order of April 13, 2017, which granted Plaintiff’s second motion to
compel. UCB argues that it was only required to produce information that would identify
putative class members consistent with the class definition in Plaintiff’s complaint. Plaintiff
believes that the Court ordered UCB to produce all “‘wrong number’ calls UCB made using its
dialer or with an unattended message to Plaintiff and the class.” (Doc. 62, at 1).
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The issue in Plaintiff’s second motion to compel was whether UCB had complied with
Plaintiff’s class data discovery requests in Interrogatory 1 and Document Request 2.1 In
Interrogatory 1, Plaintiff herself limited the information that she sought regarding class data to
the proposed class definition. Thus, when this Court granted the motion to compel, it only
ordered UCB to produce the “class data of wrong number calls and associated notes for the class
period.” (Doc. 46, at 7) (emphasis added). Based on Plaintiff’s own discovery requests, the
“class data” that the Court ordered UCB to produce was limited to Plaintiff’s definition of the
class–the Court would not order UCB to produce more information than Plaintiff herself had
requested. Moreover, the information that Plaintiff believes the Court ordered UCB to produce
and that she now seeks appears to be significantly broader than her own proposed class
definition. Requiring UCB to produce such information would, therefore, not be “proportional to
the needs of the case.” Fed. R. Civ. P. 26(b)(1). Thus, Plaintiff’s motion to compel is denied to
the extent it asks the Court to compel production of all “‘wrong number’ calls UCB made using
its dialer or with an unattended message to Plaintiff and the class.”
Nevertheless, the Court does have concerns with UCB’s production. Specifically, UCB
limited its query to only people who received “at least two FOTI voicemails.” (Beirdneau Decl.
at ¶7). Plaintiff’s proposed class definition does not limit the class in this way. Rather, the class
is first limited to individuals where UCB or someone on its behalf made at least two calls to the
individual’s cell phone. Then, from this set of individuals, it is further limited to situations where

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Plaintiff’s motion, entitled “Motion to Compel Defendant to Produce Class Data,”
addressed Plaintiff’s “discovery requests to UCB aimed at identifying class
members and the calls Defendant made to them in violation of the TCPA.” (Doc.
35, at 5) (identifying Interrogatory 1 and Document Request 2 as the discovery
requests at issue in the motion).
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UCB “played the same or similarly created message to the voicemail left for plaintiff.”2 This
portion of the definition does not limit the calls to only situations where two voicemail messages
were left. Rather, as long as UCB played the same language as the language in the messages left
for Plaintiff at least one time, the information is discoverable. That is true whether the language
was left as a voicemail message or played to a live person who answered the phone. Thus, UCB
is ordered to re-run its query to produce this information. In performing this query, the Court
agrees with Plaintiff that UCB must search for all calls that were “wrong number” calls, as
determined by any method that UCB uses for designating such calls: wrong number coding,
freehand account notes, and their removal by the system. (See Doc. 64, at 2) (citing Beirdneau
Dep. at 29, 35). Prior to performing the data extraction process, UCB must meet and confer with
Plaintiff’s counsel and her expert regarding the process. The revised query will be done at
UCB’s expense.
Although UCB’s initial query was too narrow, the Court is satisfied that it adequately
explained its method for searching its databases. For this reason, and because UCB must perform
a new query after meeting and conferring with Plaintiff’s counsel and her expert, the Court
denies Plaintiff’s request to order UCB to sit for a deposition regarding UCB’s data and the
process it undertook to extract the data.

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The Court agrees with UCB that it need only produce data where voice messages
like the ones Plaintiff received were played because “her proposed language in
the class definition is too vague and ambiguous to allow UCB to determine the
scope of what other messages would be adequately similar to the ones Plaintiff
received.”
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B. Format of UCB’s responses
Plaintiff requested that UCB’s data be produced in a format that can be “reviewed and
manipulated in a way that still maintains its integrity.” (Doc. 64, at 2) (“Plaintiff asked that
UCB’s data be produced in delimited TXT or CSV format...Plaintiff needs UCB’s data to be
produced as data–not in a fixed PDF–in order to permit her expert to run queries and physically
join and analyze it in comparison to UCB’s separately-produced call data.”).
According to Beirdneau, “the account level information cannot be extracted and then
imported into an Excel spreadsheet with the other call data.” (Beirdneau Decl. ¶ 13). Based on
Beirdneau’s statement, UCB claims that “there was no other way UCB could produce the
account level information” other than in the fixed .pdf format that it produced. (Id.)
Rule 34(b)(1)(C) allows a requesting party to “specify the form or forms in which
electronically stored information is to be produced.” Moreover, according to the Advisory
Committee Notes, “[i]f the responding party ordinarily maintains the information it is producing
in a way that makes it searchable by electronic means, the information should not be produced in
a form that removes or significantly degrades this feature.” Advisory Comm. Notes to the 2006
Amendments. The information that UCB produced is ordinarily maintained in a way that makes
it searchable by electronic means, but the fixed .pdf document that UCB produced removes this
feature. Beirdneau stated only that the requested data cannot be extracted and then imported into
an Excel spreadsheet; he did not testify that it is impossible to produce the data in a searchable
format. Thus, when UCB produces the results of the new query that the Court has ordered, it
must do so in a manner that is electronically searchable. In addition, in light of the protective
order in place in this case, UCB has not adequately explained the need for redacting the material

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that it is producing. Thus, the data must be produced without redactions.
C. Itemization of UCB’s bill for initial query
UCB states that it will provide the additional details that Plaintiff requests regarding its
$8,000 bill for running the initial query and will work with Plaintiff’s counsel to reach a
reasonable resolution on this issue without Court intervention.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel Discovery (Doc. 62) is
GRANTED IN PART AND DENIED IN PART. Expert discovery and class certification
briefing deadlines will be reset at the telephonic status conference on June 11, 2018.
IT IS SO ORDERED.

Dated: 5/31/18

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge

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