United States District Court, E.D. California
LESLIE WEGER, Plaintiff.
PORTFOLIO RECOVERY ASSOCIATES, LLC
Rebecca Stevens (261360) Amy Lynn Bennecoff Ginsburg (275805)
Kimmel & Silverman, P.C. Attorneys for Plaintiff
[PROPOSED] ORDER AUTHORIZING
METRO PCS TO PRODUCE CELLULAR TELEPHONE RECORDS
Edmund F. Brennan United States Magistrate Judge.
Leslie Weger (“Plaintiff”) moves for an order
authorizing Metro PCS/T-Mobile to release and produce
cellular telephone records for the number 530-315-8477 from
May 1, 2016, through September 30, 2017, in response to
Plaintiff's subpoena served on December 27,
2017. After careful consideration of the
briefing, and given that the motion is unopposed, this Court
hereby GRANTS the Motion.
case was brought under the Fair Debt Collection Practices
Act, 15 U.S.C. §1692 et seq.
(“FDCPA”) and the Rosenthal Fair Debt Collection
Practices Act, Cal. Civ. Code §1788 et seq.
(“RFDCPA”) and, among other things, alleges
harassing debt collection telephone calls to Plaintiff's
cellular telephone number of 530-315-8477 from Defendant.
See Docket Entry No. 1. The FDCPA prohibits several
kinds of harassing debt collection activity, including
“[c]ausing a telephone to ring or engaging any person
in telephone conversation repeatedly or continuously with
intent to annoy, abuse, or harass any person at the called
number” respectively. See 15 U.S.C. §1692
and §1692d(5). In our case, Plaintiff's Complaint
includes allegations that Defendant made excessive calls to
her cellular phone to collect a debt and continued to call
repeatedly after being told to stop. See Docket
Entry No. 1 at ¶13-¶19. Defendant denies
subpoenaed the cellular telephone records for 530-315-8477 on
December 27, 2017. However, Metro PCS did not produce the
telephone records, but responded to the subpoena that it
cannot provide records for a California cell phone absent a
court order authorizing production. Because the 530-315-8477
number is a prepaid cellular telephone with a California area
code for which Metro PCS does not keep records of the
subscriber name and California law, requires a court order or
written consent from the subscriber for a cellular carrier to
release subpoenaed records. As such, the requested relief is
necessary to obtain the telephone records, an important
source of relevant evidence in this case.
to Federal Rule of Civil Procedure 26(b)(1), “[p]arties
may obtain discovery regarding any non-privileged matter that
is relevant to any party's claim or defense[.]”
Fed.R.Civ.P. 26(b)(1). As further set forth in Rule 26(b)(1),
“[f]or good cause, the court may order discovery of any
matter relevant to the subject matter involved in the
action.” Id. Rule 26 governs the scope of
discovery for both parties and non-parties, so a subpoena
under Federal Rule of Civil Procedure 45 may be issued to a
non-party to discover any information that would be properly
discoverable if it is was in the hands of party. See
Fed. R. 26(b)(1) and Fed R. Civ. P. 45, Advisory Comm. Notes
(“Paragraph (a)(2) makes clear that…the nonparty
witness is subject to the same scope of discovery under the
rule as a person would be as a party to whom a request is
addressed pursuant to Rule 34”).
order authorizing Metro PCS to produce the subpoenaed
telephone records for Plaintiff's cellular telephone
number of 530-315-8477 for the period between May 1, 2016,
and September 30, 2017, is therefore proper because these
records are relevant evidence in possession of a non-party
that would be properly discoverable if possessed by a party.
See Fed. R. 26(b)(1) and Fed R. Civ. P. 45, Advisory
Comm. Notes (“Paragraph (a)(2) makes clear
that…the nonparty witness is subject to the same scope
of discovery under the rule as a person would be as a party
to whom a request is addressed pursuant to Rule 34”).
information is relevant because it is bears upon facts that
could impact the outcome of the case. First, as the Plaintiff
alleges that Defendant violated the FDCPA and RFDCPA by
placing repeated calls to her cellular telephone, these
records are likely to capture the date, time, and possibly
duration of many of these calls. Second, the Plaintiff
alleges the Defendant violated the FDCPA and RFDCPA by
calling after she had conversations with them where she told
them to stop calling. While phone records will not show the
content of conversations, they may shed light on whether
calls were answered and the duration of any conversations.
Accordingly, since Plaintiff's cellular telephone records
may contain evidence regarding the dates and times of calls,
duration of calls, etc., they are a source of potentially
relevant evidence in this case.
Metro PCS has not challenged the Plaintiff's subpoena as
improper. Instead Metro PCS has indicated that it can comply,
but only if the Court issues an order allowing it do so. The
parties also ...