United States District Court, N.D. California
ORDER RE DISCOVERY DISPUTE Re: Dkt. No. 40
JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE
Sandra McMillion, Jessica Adekoya, and Ignacio Perez bring
this case against Defendant Rash Curtis & Associates
(“Rash Curtis”) as a putative class-action
seeking injunctive relief and statutory damages. Plaintiffs
allege that Rash Curtis, a debt collection agency, violated
the Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”), Fair Debt Collection Practices Act, 15
U.S.C. § 1692 (“FDCPA”) and California's
Rosenthal Fair Debt Collection Practices Act, Civil Code
§ 1788 (“Rosenthal Act”) by repeatedly
calling Plaintiffs' cellular phones using an auto-dialer
and/or artificial or pre-recorded voice. (Dkt. No. 1
¶¶ 1-2, 58-74.) The case has been assigned to the
undersigned magistrate judge for discovery. (Dkt. Nos. 21,
22.) Now pending before the Court is a joint statement
regarding a discovery dispute about four sets of
Plaintiffs' Requests for Production. (Dkt. No. 40.) The
Court sets a hearing on the discovery dispute for April 27,
2017 at 11:00 a.m.
Request for Production No. 1
Request for Production (“RFP”) No. 1 seeks
production of “ALL DOCUMENTS and COMMUNICATIONS
CONCERNING PLAINTIFFS.” (Dkt. No. 40-1 at 16 (emphasis
in original).) While Defendant has produced some responsive
documents from a single software system it used to make debt
collection calls, Plaintiffs lament that Defendant's
production is missing: (1) records from other software
systems; (2) records of calls from after this lawsuit was
initiated; (3) records related to skip traces Defendant
performed to locate Plaintiffs; and (4) communications with
third-party creditors regarding Plaintiffs' accounts.
Defendant contends that the other requested documents are not
relevant or overbroad and that any discovery should be held
in abeyance given Defendant's pending motion to enforce
settlement. The district court has since denied
Defendant's motion to enforce settlement. (Dkt. No. 41.)
Defendant shall come to the April 27, 2017 hearing prepared
to discuss whether each category of document exists, proposed
limitations to the extent Defendant believes any category is
overbroad, whether Defendant has begun to search for those
documents, and how long Defendant will need to produce
Requests for Production Nos. 4-8, 14, 17
next set of RFPs seeks production of several categories of
documents. (Dkt. No. 40-1 at 16-18.) Defendant agrees to
produce these documents. Defendant shall come to the April
27, 2017 discovery hearing prepared to identify a date
certain for production.
Requests for Production Nos. 8-11
Nos. 8 through 11 seek documents reflecting policies,
procedures, and complaints regarding phone calls and FDCPA
compliance. (Dkt. No. 40-1 at 16-17.) Plaintiffs seek an
order compelling Defendant to produce employee disciplinary
and audit reports concerning FDCPA compliance, the Rosenthal
Act, or the TCPA, as well as internal communications
concerning compliance with those laws. Defendant's only
response is that “employee discipline records are
privacy protected, and implicate the rights of third
parties[, ]” and they are not relevant. (Dkt. No. 40 at
4.) The documents are relevant, as it is broadly construed in
the context of discovery.
the privacy objection, under California's constitutional
right to privacy, the personnel records of employees are
confidential and thus protected from discovery “unless
the litigant can show a compelling need for the particular
documents and that the information cannot reasonably be
obtained through depositions or from nonconfidential
sources.” Foster v. ScentAir Techs., Inc., No.
13-cv-05772-TEH (MEJ), 2014 WL 4063160, at *2 (N.D. Cal. Aug.
15, 2014) (citing Harding Lawson Assocs. v. Super.
Ct., 10 Cal.App.4th 7, 10 (1992)). Thus, it is
insufficient for a party to state only that discovery of
personnel records is necessary to facilitate the prosecution
of the action. El Dorado Sav. & Loan Ass'n v.
Super. Ct. of Sacramento Cnty., 190 Cal.App.3d342,
345-46 (1987). The party must also show that there are no
less intrusive means to “satisfy [the party's]
legitimate need for relevant information.” Id.
at 346. Plaintiffs must come to the April 27, 2017 discovery
hearing prepared to identify a compelling need for the
documents and to demonstrate that the information cannot be
obtained through other nonconfidential sources.
Requests for Production Nos. 19-23
Plaintiffs challenge the boilerplate objections Defendant
raised in response to RFP Nos. 19 through 23, which ask
Defendant to identify every call recipients' first name,
last name, area code, cellular telephone number, date, and
result of each call for all call campaigns run through a
number of different autodialers. (Dkt. No. 40-1 at 28-29.)
Plaintiffs contend that this discovery is crucial to class
certification. For each of these requests, Defendant stated
the same objections based on undue burden, oppression, and
cost. Defendant argues that compiling these records “is
burdensome and quite expensive, especially where it is
uncertain whether this case will go forward” given its
motion to enforce settlement. (See Dkt. No. 40 at
5.) Now that it is clear that the case will go forward
(see Dkt. No. 41), that argument is a non-starter.
courts sometimes refuse to allow discovery of putative class
members' identities at the pre-certification stage, a
purported ‘class list' is still discoverable if it
bears relevance to issues of class certification.”
Webb v. Healthcare Revenue Recovery Grp. LLC, No.
C-13-00737 RS, 2014 WL 325132, at *3 (N.D. Cal. Jan. 29,
2014) (internal citations omitted). Courts in this District
and elsewhere have found that a list of numbers a particular
autodialer called is relevant to Rule 23's commonality
requirement. See, e.g., id. (citations
omitted); see also, e.g., Knutson v.
Schwan's Home Serv., Inc., 2013 WL 3746118, at *8
(S.D. Cal. 2013). In Webb, the court ordered the
defendant to produce the call list with the caveat that
plaintiffs' counsel was prohibited from contacting any
phone numbers on the list before class certification.
Defendant does not contest the documents' relevance.
Instead, it contends that there are “less burdensome
ways to conduct discovery such as by interrogatories”
or by testing a random sample of records. (Dkt. No. 40 at 5.)
Put simply, Defendant seeks to defer this discovery until
after the district court has decided class certification.
(Id.) There is no information in the joint statement
regarding the quantity of records Defendant must search or
the time and money such a search will likely entail. Thus,
there is no basis before the Court to decide that these RFPs
are unduly burdensome. Defendant shall come to the April 27,