Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doherty v. Comenity Capital Bank

United States District Court, S.D. California

May 9, 2017

MICHAEL DOHERTY & LESLIE WESTMORELAND, on behalf of themselves and all others similarly situated, Plaintiff,
v.
COMENITY CAPITAL BANK & COMENITY BANK, Defendant.

          ORDER RESOLVING DISCOVERY DISPUTES ADRESSED IN THE PARTIES' JOINT STATEMENT

          Hon. Bernard G. Skomal United States Magistrate Judge

         On 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.[1] (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.

         I. BACKGROUND

         This is 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 period”):

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.”[2] (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 8-9.)

         During 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 case[3] 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.)

         As 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.)

         II. DISCUSSION

         Rule 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 benefit.

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).

         The 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.” Fed.R.Evid. 401.

         Although 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. 1975)).

         Precertification 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.

         Many of 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[4] 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.

         A. Category One: Outbound Dial Lists

         Plaintiffs 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.