United States District Court, S.D. California
TANEESHA CROOKS and ANTHONY BROWN, Individually and on behalf of all others similarly situated, Plaintiff,
RADY CHILDREN'S HOSPITIAL-SAN DIEGO, Defendant.
ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE REGARDING DEFENDANT'S RESPONSES TO PLAINTIFF
CROOKS' DISCOVERY REQUESTS, SET ONE [ECF NO. 29]
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE.
the Court is a Joint Motion of the parties, filed on March
22, 2018, to determine a discovery dispute involving two
Requests for Production (“RFP”) and four
Interrogatories served by Plaintiff Crooks upon Defendant.
(ECF No. 29). This case is a putative class action alleging
violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, et seq.
Federal Rules of Civil Procedure authorize parties to obtain
discovery of “any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case . . . .” Fed.R.Civ.P. 26(b)(1).
“Information within the scope of discovery need not be
admissible in evidence to be discoverable.”
Id. District courts have broad discretion to limit
discovery where the discovery sought is “unreasonably
cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C).
interrogatory may relate to any matter that may be inquired
of under Rule 26(b). Fed.R.Civ.P. 33(a)(2). The responding
party must answer each interrogatory by stating the
appropriate objection(s) with specificity or, to the extent
the interrogatory is not objected to, by “answer[ing]
separately and fully in writing under oath.” Rule
33(b). The responding party has the option in certain
circumstances to answer an interrogatory by specifying
responsive records and making those records available to the
interrogating party. Rule 33(d).
a party may request the production of any document within the
scope of Rule 26(b). Fed.R.Civ.P. 34(a). “For each item
or category, the response must either state that inspection
and related activities will be permitted as requested or
state an objection to the request, including the
reasons.” Rule 34(b)(2)(B). If the responding party
chooses to produce responsive information, rather than allow
for inspection, the production must be completed no later
than the time specified in the request or another reasonable
time specified in the response. Id. An objection
must state whether any responsive materials are being
withheld on the basis of that objection. Rule 34(b)(2)(C). An
objection to part of a request must specify the part and
permit inspection or production of the rest. Id. The
responding party is responsible for all items in “the
responding party's possession, custody, or
control.” Rule 34(a)(1). Actual possession, custody or
control is not required. Rather, “[a] party may be
ordered to produce a document in the possession of a
non-party entity if that party has a legal right to obtain
the document or has control over the entity who is in
possession of the document.” Soto v. City of
Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).
Request for Production No. 7
violates the TCPA to make calls to cellular telephones using
an autodialer and/or a prerecorded or artificial voice,
without the express consent of the persons called. 47 U.S.C.
§ 227(b)(1)(A)(iii). Plaintiff recognizes that the
statute requires the use of an autodialer and/or a
prerecorded or artificial voice. Her current class
description is as follows:
All persons within the United States who received any
telephone call from Defendant or its agent/s and/or
employee/s, not sent for emergency purposes, to said
person's cellular telephone made through the use of any
automatic telephone dialing system and/or with an artificial
or prerecorded message within the four years prior to the
filing of this Complaint.
(ECF No. 1, ¶ 36).
No. 7, Defendant is asked to produce all records of telephone
calls from a particular telephone number to a cellular number
for debt collection purposes over a four year period. (ECF
No. 29 at 2). Defendant objects for overbreadth,
relevance and proportionality. The RFP is not limited to
calls made by an autodialer nor with an artificial or
prerecorded voice. Accordingly, it is overbroad on its face.
Even if limited to calls made by an autodialer, the Court
would not enforce this RFP at this time. Prior to class
certification, the actual telephone numbers dialed, even with
an autodialer or using a prerecorded or artificial voice, are
not relevant. While the number of such calls made can support
the numerosity prong of a motion for class certification, the
identification of those numbers does not. Defendant's
objection is SUSTAINED.
RFP No. 8
is asked to produce documents used to determine whether
alleged debtors had provided “prior express
consent” over the relevant four year period. (ECF No.
29 at 6). Defendant objects for overbreadth, relevance and
lack of proportion. Plaintiff claims that this information is
relevant to the class certification issue of predominance. To
the extent that Plaintiff is seeking records of individual
debtors, the Court does not agree that such records are
needed on the issue of predominance. To the extent that
Plaintiff is not seeking individualized records, but is
seeking instead documents reflecting Defendant's
processes and policies ...