United States District Court, S.D. California
MICHAEL DOHERTY & LESLIE WESTMORELAND, on behalf of themselves and all others similarly situated, Plaintiff,
COMENITY CAPITAL BANK & COMENITY BANK, Defendant.
ORDER RESOLVING DISCOVERY DISPUTES ADRESSED IN THE
PARTIES' JOINT STATEMENT
Bernard G. Skomal United States Magistrate Judge
April 17, 2017, Plaintiffs Michael Doherty and Leslie
Westmoreland (“Plaintiffs”) and Defendants
Comenity Capital Bank and Comenity Bank
(“Defendants”) submitted a Joint Statement About
Discovery Dispute Re: Responses of Defendant Comenity Capital
Bank to Plaintiffs' First Set of Interrogatories and
First Set of Requests for Production (“Joint
Statement”). (ECF No. 30.) As first identified during a
telephonic Discovery Conference held on April 5, 2017 with
Chambers and thereafter in their Joint Statement, the Parties
dispute the following categories of requested information
regarding call recipients: (1) outbound dial lists; (2)
documents related to defendants' affirmative defense of
“prior express consent;” (3) telephone dialing
equipment used, including skip trace reports and numbers
obtained via number trapping; and (4) employee and dialer
manuals used. (ECF No. 27.) After considering the
arguments of the Parties set forth in the Joint Motion, and
its supporting exhibits and declarations, and the applicable
law, and for the reasons set forth herein, the Court GRANTS
IN PART Plaintiffs' requests to compel Defendants to
produce further responses to Plaintiffs' First Set of
Interrogatories and First Set of Requests for Production as
outlined below. All discovery requests not GRANTED IN PART
below are hereby DENIED.
a class action alleging violations of the Telephone Consumer
Protection Act, 47 U.S.C. § 227, et seq.
(“TCPA”). Defendants are large national banks
that “service millions of credit card accounts for
consumers throughout the United States.” (ECF Nos.
10-11 ¶ 15.) Plaintiffs proceed on their First Amended
Complaint (ECF No. 10) and seek to certify the following
class from July 31, 2014 to present (“relevant time
All individuals in the United States to whom: (1) Defendants
placed a call; (2) using an automatic telephone dialing
system [“ATDS”] or using an artificial or
prerecorded voice; (3) to his or her cellular telephone
number; and (4) for whom Defendants did not have express
consent to place such call at the time it was placed.
(ECF No. 10 ¶ 33; ECF No. 30 at 1:4-6.) Plaintiffs
allege that without prior express consent, Defendants called
them on their “cellular phones via an ‘automatic
telephone dialing system, ' (‘ATDS') as defined
by 47 U.S.C. § 227 (a)(1) and by using ‘an
artificial or prerecorded voice' as prohibited by 47
U.S.C. § 227 (b)(1)(A). This ATDS has the capacity to
store or produce telephone numbers to be called, using a
random or sequential number generator.” (ECF No. 10
¶¶ 27, 32.) Specifically, Plaintiff Doherty alleges
that on November 29, 2015 and on December 4, 2015, Defendant
Comenity Capital Bank called his cellular telephone ending in
7814 with a prerecorded or artificial voice and left
automated voicemails regarding his father's account.
(Id. ¶¶ 24-25.) Plaintiff Westmoreland
claims “Comenity Bank called his cellular telephone
ending [in] 6053 incessantly throughout
2016.” (Id. ¶ 26.) Neither of the
Plaintiffs are themselves account holders of credit cards
that Defendants service; rather they are relatives of such
cardholders. (Id. ¶¶ 21-23; ECF No. 30 at
the class discovery period (see ECF No. 23 ¶
2), Plaintiffs served Requests for Production and
Interrogatories on Defendants. Defendants limited their
responses to information and documents pertaining to the
named Plaintiffs: they objected to requests regarding all
call recipients as premature, irrelevant, overbroad, unduly
burdensome, and not proportional to the needs of the
given the fact that Plaintiffs are unlikely to succeed on the
merits of their action or on a motion for class
certification. (See ECF No. 30, Ex 1.) The following
four discovery categories remain in dispute: (1) outbound
dial lists; (2) documents related to defendants'
affirmative defense of “prior express consent;”
(3) telephone dialing equipment used, including skip trace
reports and numbers obtained via number trapping; and (4)
employee and dialer manuals used. (ECF No. 27.)
noted in the Court's Order requesting the Joint Statement
(id.), despite their awareness of a disagreement
over these categories of documents for months (ECF Nos. 19,
21, 22), the Parties did not raise this dispute with the
Court until March 31, 2017. Class discovery closed on April
7, 2017 and the June 9, 2017 deadline for filing a motion for
class certification is readily approaching. (ECF No. 23.)
26, as recently amended, provides that a party
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
Fed. R. Civ. P. 26(b)(1). Information need not be admissible
in evidence to be discoverable. Id. The December
2015 amendment to Rule 26 restored the proportionality
factors in defining the scope of discovery. See
Advisory Committee Notes to Rule 26(b)(1) 2015 Amendment.
Under the amended Rule 26, relevancy alone is no longer
sufficient to obtain discovery: the discovery requested must
also be proportional to the needs of the case. Mora v.
Zeta Interactive Corp., No. 116cv00198-DAD-SAB, 2017 WL
1187710, at *3 (E.D. Cal. Feb. 10, 2017).
relevance standard is commonly recognized as one that is
necessarily broad in scope in order “to encompass any
matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329
U.S. 495, 501 (1947)). Discovery is designed to help define
and clarify the issues. Id. Evidence is relevant if:
(a) “it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.”
relevancy is broadly defined for the purposes of discovery,
it does have “ultimate and necessary boundaries.”
Hickman, 329 U.S. at 507. Accordingly, district
courts have broad discretion to determine relevancy for
discovery purposes. See Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002); Vinole v. Countrywide Home
Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)
(“District courts have broad discretion to control the
class certification process, and ‘[w]hether or not
discovery will be permitted . . . lies within the sound
discretion of the trial court.'”) (citing Kamm
v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir.
discovery lies entirely within the court's discretion.
See Fed. R. Civ. P. 23; see, e.g.,
Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D.
Cal. 2011) (citing Vinole, 571 F.3d at 942). The
Ninth Circuit states that the “advisable
practice” for district courts on precertification
discovery, “is to afford the litigants an opportunity
to present evidence as to whether a class action was
maintainable. And, the necessary antecedent to the
presentation of evidence is, in most cases, enough discovery
to obtain the material, especially when the information is
within the sole possession of the defendant.”
Doninger v. Pac. Northwest Bell, Inc., 564 F.2d
1304, 1313 (9th Cir. 1977); see also Artis, 276
F.R.D. at 351. The court should consider “the need for
discovery, the time required, and the probability of
discovery providing necessary factual information” in
exercising its discretion to allow or prohibit discovery.
Doninger, 564 F.2d at 1313.
the arguments advanced by Defendants go to the ultimate
merits of Plaintiffs' motion for class certification or
other potentially dispositive motions. It is Judge Huff who
must decide whether the requirements of Rule 23 have been
satisfactorily established. For purposes of discovery, a
plaintiff must only make a prima facie showing that the class
action requirements are satisfied or show “that
discovery is likely to produce substantiation of the class
allegations.” Manolete v. Bolger, 767 F.2d
1416, 1424 (9th Cir. 1985). Thus, courts permit
precertification discovery on issues like typicality,
commonality, and numerosity if it would substantiate the
class allegations. Kilbourne v. Coca-Cola Co., No.
14CV984 MMA (BGS), 2015 WL 10943611, at *5 (S.D. Cal. Jan.
13, 2015). In the context of this discovery dispute, the
Court will assess whether Plaintiffs have demonstrated that
the information sought is relevant to their preparation for
their motion for class certification. See Manolete,
767 F.2d at 1424.
Category One: Outbound Dial Lists
first address discovery requests concerning Defendants'
outbound dial lists, (Interrogatories Nos. 7, 8, and 9;
Requests for Production Nos. 10, 41, 43, and 44). They assert
that defendants in other TCPA cases regularly produce such
outbound dial lists. See, e.g., Webb v.
Healthcare Revenue Recovery Grp. LLC, No. C. 13-00737
RS, 2014 WL 325132, at *2-3 (N.D. Cal. Jan. 29, 2014);
Knutson v. Schwan's Home Serv., Inc., No.
12CV964-GPC DHB, 2013 WL 11070939, at *2 (S.D. Cal. July 23,
2013); Gusman v. Comcast Corp., 298 F.R.D. 592 (S.D.
Cal. 2014); accord Ossola v. American Express
Company, 2015 WL 5158712, at *7 (N.D. Ill. E.D. 2015)
(“Call data is relevant, and thus produced as standard
practice, only in cases where the defendant is the alleged
dialer.”). Defendants object, ...