Progressive Health and Rehab Corp. v. Quinn Medical Inc. et al
Filing
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OPINION AND ORDER granting Plaintiff's 60 Motion to Compel. Accordingly, Defendant is ORDERED to produce the transmission logs at issue WITHIN SEVEN DAYS. Signed by Magistrate Judge Chelsey M. Vascura on 6/11/2018. (kpt)
UNITED STATES DISTRTICT COURT
SOUTHER DISTRICT OF OHIO
EASTERN DIVISION
PROGRESSIVE HEALTH AND
REHAB CORP.,
Plaintiff,
Civil Action No. 2:17-cv-58
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
v.
QUINN MEDICAL, INC.,
Defendant.
OPINION AND ORDER
Plaintiff, Progressive Health and Rehab Corp., filed this putative class action against
Defendant, Quinn Medical, Inc., under the “junk fax” provision of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227 et
seq. (“TCPA”). This matter is before the Court for consideration of Plaintiff’s Motion to
Compel (ECF No. 60), Defendant’s Response (ECF No. 61), and Plaintiff’s Reply (ECF No. 67).
Through its Motion, Plaintiff seeks an order compelling Defendant to produce fax transmission
logs that identify the fax numbers of each successful recipient for 26 at-issue fax broadcasts. For
the reasons that follow, Plaintiffs’ Motion is GRANTED.
I.
According to Plaintiff’s Complaint (ECF No. 1), Defendant violated the TCPA when it
mass-faxed unsolicited advertisements to Plaintiff and others. In response to Plaintiff’s
discovery requests, Defendant produced 26 emails from the broadcaster it hired to transmit its
facsimile advertisements. These 26 emails show that at Defendant’s request, the broadcaster
completed 26 fax broadcasts between June 2014 and November 2016. For each of these 26
broadcasts, the emails reflect how many faxes were sent and received, as well the number of
pages sent. The 26 emails do not, however, identify either the individuals/entities or the fax
numbers of the individuals/entities who received Defendant’s faxed advertisements. Defendant
is in possession of transmission logs for each of the 26 at-issue transmissions that reflect the fax
numbers where Defendant’s fax advertisement were sent and whether the transmission was
successful for each number, but has objected to Plaintiff’s request for production of these
transmission logs on relevance grounds. Despite conferring in good faith as required under
Federal Rule of Civil Procedure 37(a)(1), the parties have been unable to resolve their dispute
regarding the discoverability of the transmission logs, prompting Plaintiff to file the subject
Motion to Compel.
In its Motion, Plaintiff maintains that the Court should compel production of the
transmission logs because they contain information that its expert needs to complete his report.
In its Reply, Plaintiff elaborates that its expert will use the information the logs contain (such as
how many advertisements were sent, to whom the advertisements were sent, and how many
transmissions were successful) to answer questions regarding ascertainability, numerosity,
commonality, and typicality of the putative class. Plaintiff also submits that the information
contained the transmission logs will enable it to investigate the validity of Defendant’s asserted
defenses.
In its Memorandum in Opposition, Defendant asserts that the information Plaintiff seeks
to obtain through production of the transmission logs lacks relevance at the pre-certification
stage. According to Defendant, the information contained in the logs is not relevant to any
element under Federal Rule of Civil Procedure 23. (See Def.’s Mem. in Opp’n 3-5, ECF No. 61
(“[T]he actual identity of each individual putative class member is not relevant to any
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requirement under Fed.R.Civ.Pro. 23.”).) Defendant further submits that Plaintiff’s assertion
that its expert needs the information contained in the transmission logs lacks merit because the
transmission logs identifying the recipients exist. Defendant explains its position as follows:
A plaintiff in a TCPA fax class action will often use an expert to attempt to
establish ascertainability when the fax lists or the lists of successful fax
transmissions do not exist. That issue does not exist here because Defendant in
this case has the fax lists and the lists of the successful fax transmissions for each
fax . . . .
Because the fax numbers exist, Plaintiff’s argument that its expert needs
the information to identify the class lacks support in the law. The Sixth Circuit
has held that “[i]n the context of the TCPA, where fax logs have existed listing
each successful recipient by fax number, our circuit has concluded that such a
‘record in fact demonstrates that the fax numbers are objective data satisfying the
ascertainability requirement.’” Sandusky Wellness Center, LLC v. ASD Specialty
Healthcare, Inc., 863 F.3d 460, 471 (6th Cir. 2017), quoting, American Copper &
Brass, Inc. v. Lake City Indus. Products, Inc., 757 F.3d 540, 545 (6th Cir. 2014).
When the fax lists/logs do not exist, Plaintiff will attempt to create that objective
data through an expert. However, when the fax lists/logs for successfully
transmitted faxes exist as they do in this case, then the objective data is already
present according to Sixth Circuit precedent. Therefore, an expert report on this
issue is moot.
(Id. at 6-7.) Defendant speculates that the real reason Plaintiff’s counsel seeks the information
contained in the transmission logs is to identify potential new clients. Defendant requests that if
the Court compels production of the transmission logs, that it permit Defendant to redact the last
four digits of each fax number to address this concern. Finally, with respect to Plaintiff’s
contention that it requires the information in the transmission logs to investigate the validity of
its defenses, Defendant offers to produce information relevant to its defenses for a randomly
selected, statistically valid sample.
II.
Determining the scope of discovery is within the Court’s discretion. Bush v. Dictaphone
Corp., 161 F.3d 363, 367 (6th Cir. 1998). As the United States Court of Appeals for the Sixth
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Circuit has recognized, “[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). Federal Rule of Civil Procedure 26(b)(1), which sets forth the permissible scope of
discovery, provides as follows:
(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: 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 proponent of a motion to compel discovery bears the initial burden of proving that
the information sought is relevant.” Guinn v. Mount Carmel Health Sys., No. 2:09-cv-226, 2010
WL 2927254, at *5 (S.D. Ohio July 23, 2010) (Kemp, J.) (quoting Clumm v. Manes, No. 2:08–
cv–567, 2010 WL 2161890 (S.D. Ohio May 27, 2010) (King, J.)); see also Berryman v.
Supervalu Holdings, Inc., No. 3:05-cv-169, 2008 WL 4934007, at *9 (S.D. Ohio Nov. 18, 2008)
(“At least when the relevance of a discovery request has been challenged the burden is on the
requester to show the relevance of the requested information.”) (internal citation omitted)).
III.
The Court finds that Plaintiff has satisfied its burden to demonstrate that the information
contained in the transmission logs is relevant at the pre-certification stage of this TCPA class
action.
In its December 4, 2017 Order, this Court chose to permit Plaintiff to conduct precertification discovery “aimed toward refining the class definition such that the Court may
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determine the certification question . . . .” (ECF No. 46 at p. 9.) The Court rejected Defendant’s
challenge under Rule 23(a)(3) reasoning as follows:
It is true that courts have declined to certify putative TCPA classes when the faxes
plaintiff received do not share the “same essential characteristics” as faxes
received by other putative class members. On the other hand, courts have
certified classes when plaintiffs have shown that the defendant engaged in a
“course of conduct” by faxing substantially similar faxes to—in some cases—the
same list of recipients. The Court does not yet have evidence to determine
whether plaintiff’s claims fall into the former or the latter category—indeed, the
parties do not yet have that evidence. That is why justice requires the Court to
continue to permit controlled discovery to determine whether class certification is
appropriate. Such additional discovery will reveal whether faxes received by other
members of the putative class do or do not share essential characteristics with
those received by Plaintiff.
(Id. at 11-12 (internal citations to authority omitted).)
Plaintiff represents that its expert will use the information contained in the transmission
logs—such as how many advertisements were sent, to whom the advertisements were sent, and
how many transmissions were successful—to answer questions the Court posed in its December
4, 2017 Order. The Court agrees that the information contained in the at-issue transmission logs
could bear on the Rule 23(a) requirements of numerosity, commonality, and typicality, as well as
predominance and implied ascertainability requirements in Rule 23(b)(3). As Plaintiff points
out, in American Copper & Brass, Inc. v. Lake City Industrial Products, Inc., 757 F.3d 540 (6th
Cir. 2014), the Sixth Circuit affirmed the trial court’s certification of a class in an TCPA junk fax
action where the plaintiffs’ expert reviewed the fax logs to conclude “that a total of 10,627
successful transmissions of a complete fax were received by 10,627 unique fax numbers.” Id. at
542-45 (“[T]he record in fact demonstrates that the fax numbers are objective data satisfying the
ascertainability requirement.” (citations omitted)); see also Imhoff Investment, LLC v. Alfoccino,
Inc., 792 F.3d 627, 634 (6th Cir. 2015) (reversing trial court’s grant of summary judgment for
the defendant in junk fax case and remanding for further proceedings where the plaintiff’s expert
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report reflected that the defendant hired contractor to broadcast “two particular advertisements to
[the named plaintiff] and 7,624 other recipients”).1 Cf. Taylor v. Universal Auto Grp. I, Inc., No.
1:14-mc-50, 2015 WL 2406071, at *4-6 (S.D. Ohio, May 20, 2015) (compelling pre-certification
production of the names and contact information of putative class members in TCPA action over
the defendant’s relevance objections); Peters v. Credit Prot. Ass’n LP, No. 2:13-cv-767, 2014
WL 6687146, at *5-9 (S.D. Ohio, Nov. 26, 2014) (same); Kane v. Nat’l Action Fin. Servs., Inc.,
2012 WL 1658643, at *6-8 (E.D. Mich. May 11, 2012) (same).
Defendant’s reliance upon Sandusky Wellness Center to conclude that the information
contained in the subject transmission logs lack relevance is misplaced. In Sandusky, the Sixth
Circuit affirmed the trial court’s denial of class certification in a junk fax TCPA case. 863 F.3d
at 462. The Sandusky Court found no abuse of discretion in either (1) the trial court’s conclusion
that the absence of transmission logs, where the evidence showed that only 75% of the 53,502
numbers on the invoice records were transmitted successfully, raised predominance and
ascertainability issues precluding certification; or (2) the trial court’s conclusion that the
predominance issues precluded certification where the defendant produced evidence showing
that “several thousand” of the 40,343 fax recipients consented and that identification of the
consenting recipients would require “manually cross-checking 450,000 potential consent forms.”
Id. at 465-74. Defendant correctly points out that the Sandusky Court stated that “[i]n the context
of the TCPA, where fax logs have existed listing each successful recipient by fax number, our
circuit has concluded that such a ‘record in fact demonstrates that the fax numbers are objective
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The American Copper and Imhoff Investment cases also reveal the inaccuracy of
Defendant’s suggestion that Plaintiff’s desire to use an expert “lacks support” in light of the
existence of the transmission logs and also its related assertion that experts are only utilized to
create objective data in the absence of transmission logs. (See Def.’s Mem. in Opp’n 6-7, ECF
No. 61.)
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data satisfying the ascertainability requirement.’” Id. at 471 (quoting Am. Copper, 757 F.3d at
545)). But nothing in this statement implies that the fax transmission logs are not discoverable
at the pre-certification stage. To the contrary, in the American Copper case the Sandusky Court
quotes, during pre-certification discovery, the defendant produced the fax transmission logs to
the plaintiff’s expert, who relied upon the logs in generating his report. See Am. Copper, 757
F.3d at 542-45.
Defendant’s objection to production of the transmission logs based upon privacy
concerns and its speculation that Plaintiff’s counsel might use the information to solicit new
clients fail to persuade the Court to reach a different conclusion. As Plaintiff points out,
Defendant’s concerns are addressed by the Court’s entry of the parties’ stipulated Confidentiality
Agreement and Order. (See ECF No. 53 at ¶ 5(a) (“Documents designated confidential and any
information contained therein under this Order shall not be used or disclosed by the parties or
counsel for the parties or any other persons identified below (¶ 5.b.) for any purposes whatsoever
other than preparing for and conducting the litigation in which the documents were disclosed . . .
. Documents designated confidential and any information contained therein also shall not be
used for the purpose of soliciting clients to be represented in any litigation unless that
information is publicly available.”).) See also Taylor, 2015 WL 2406071, at *4 (compelling
production of documents containing identifying information about recipients during the precertification stage of TCPA putative class action and rejecting the defendant’s objections on the
grounds of relevance and that “it would be improper for [the plaintiff] to use that information to
contact or solicit potential class members”).
Finally, Defendant’s proposed alternatives—redaction of all but four digits of the number
and/or utilization of a statistical sampling—fall short. The Court acknowledges that statistical
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sampling could be an efficient approach to investigate the validity of Defendant’s defenses. But
this does not lead the Court to conclude that production of the transmission logs is unnecessary
because both statistical sampling and redaction of all but four digits would prevent Plaintiff’s
expert from ascertaining how many successful faxes were sent to unique numbers and whether
Defendant faxed substantially similar faxes to the same list of recipients, information that could
bear the Rule 23(a) and (b)(3) requirements. (See Dec. 4, 2017 Order, ECF at p. 11-12 (“On the
other hand, courts have certified classes when plaintiffs have shown that the defendant engaged
in a ‘course of conduct’ by faxing substantially similar faxes to—in some cases—the same list of
recipients.”).)
III.
For the reasons set forth above, Plaintiff’s Motion to Compel is GRANTED. (ECF No.
24). Accordingly, Defendant is ORDERED to produce the transmission logs at issue WITHIN
SEVEN DAYS.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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