Hi everyone! Well, I’m sure you’ve heard the good news from the Czar by now, and we’re all very excited here at TCPAland. Boy what a celebration I had when I found out. I put the kids the bed, had a glass of champs with my wife, then promptly fell asleep on the couch while catching up on episodes of Better Call Saul. #dadlife
Now that I’m fully recovered from that wild indulgence, it’s time to get back to our regularly scheduled programming! And I hate to break it to you, but I have a rather ugly decision to report to you out of the Middle District of Florida involving class discovery.
It’s one of those class discovery rulings that just sends shivers up your spine. Where – over what were seemingly specific declarations establishing the substantial burdens of trying to extract and produce massive amounts of customer account data – a magistrate judge decided to go with the declarations of experts who claimed to know better, and said the task at hand would actually be easy, peezy, lemon squeezy… Or something to that effect.
In Clark v. FDS Bank & Dep’t Stores Nat’l Bank, No. 6:17-cv-692, 2018 U.S. Dist. LEXIS 190518 (M.D. Fla. Nov. 7, 2018) the Plaintiff moved to compel Defendant to produce its records detailing effectively everything about each phone number it called within the past four years, including whether the recipient told the Defendant not to call the phone number again, and the account notes concerning each and every single call. The requests at issue were of astonishing breadth, and effectively sought to turn the Defendant inside out so that Plaintiff could figure out his theory of certification.
In response to the motion Defendant argued that the requests were overly burdensome and, in support of its objections, offered numerous declarations from its legal staff detailing the burden associated with extracting the account-level data (including agent notes) demanded by the Plaintiff. Plaintiff countered with the declaration of Jeff Hansen in which Hansen proclaimed “extensive experience dealing with data warehousing,” and knowledge of the specific dialing system (though not the specific account-level systems of record is seems) used by the Defendant. He stated in the declaration that, contrary to the specific declarations submitted by Defendant, it would take him “less than an hour” to export all the data Plaintiff wants from Defendant’s collection notes. Mmm hmm…
What was really odd, however, is that Hansen attached the declaration of expert Robert Biggerstaff from another unrelated TCPA class action that Hansen claimed supported his position. Notably missing from either of these declarations – at least the portions relied upon by the Court – was any specific discussion regarding the specific systems of record used by Defendant, or anything beyond some conclusory statements about how “easy” it would be to extract the data Plaintiff had sought in discovery.
But what was truly shocking is that, in a one liner – and without really providing any explanation – the Court stated that it was persuaded by Plaintiff’s evidence that “Defendants’ business records may not be as difficult to search as they contend,” and granted the motion. So with a flick of its pen (or keyboard) the Court is now requiring the Defendant to turn over tens of millions of account notes associated with the tens of millions of calls made by the Defendant within the past four years.
Now, this isn’t exactly the end of the story. The Court granted the motion, but directed the parties to meet and confer over how this data transfer would occur, and stated that if the parties couldn’t resolve the matters between themselves – which it seems doubtful they will – that the Court will hold an evidentiary hearing where it would hear from the experts and dictate the process and procedure to the parties.
But things shouldn’t be this way. Notably, the Czar was able to beat back very similar discovery requests in a TCPA class action that were propounded by the same class counsel. Tillman v. Ally Fin. Inc., No. 2:16-cv-313-FtM-99CM, 2017 U.S. Dist. LEXIS 1887, at *17 (M.D. Fla. Jan. 6, 2017). And earlier this year Quicken was successful in defeating a motion to compel production of every shred of documentation in any form about every do-not-call request that Quicken received. See Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT, 2018 U.S. Dist. LEXIS 31346 (M.D. Fla. Feb. 27, 2018).
If anything, these divergent outcomes show just how high the stakes are in these class discovery disputes. Class counsel will be looking to turn Defendants inside out so they can forage for whatever they can use to stitch together a theory of certification. As the Czar has reported, this problem is compounded as courts frequently let over-broad failsafe classes slip past the pleading stage. And it’s no coincidence that this is the very type of class definition the Defendant is dealing with in the Clark case.