In Doherty v. Comenity Capital Bank & Comenity Bank, Case No.: 16cv1321-H-BGS, 2017 WL 1885677 (S.D. Cal. 2017), Magistrate Judge Skomal allowed pre-certification discovery – including out-bound dial lists, but denied discovery of skip-traced and trapped numbers where a file-by-file review would be required. The Court ordered production of out-bound dial lists, despite difficulties in production by Plaintiff and overbreadth of the production.
Although the Parties dispute whether outbound dial lists can be generated using a “report generation wizard” via the Avaya Proactive Contact 5.1 system (compare Lahr Declaration [“Decl.”] ¶¶ 9-10 with Hansen Decl. ¶¶ 7-10), Defendants admit that such a list can be produced in approximately five hours utilizing the system (Lahr Decl. ¶ 12). Such a list would not distinguish landlines from cell phones. (ECF No. 30 at 12:26-27.) However, Plaintiffs’ expert consultant is able to identify which calls were made to cellphones from the outbound dial list, a common issue as to the class, as well as the number of calls made to each cellphone. (Id. at 6:25-27; Hansen Decl. ¶¶ 11-12.) A list of phone numbers dialed by a dialer by Defendants therefore is relevant, especially in light of the fact that Plaintiffs claim cell phone numbers can be identified within the list. Thus, the production of an outbound dial list utilizing the Avaya Proactive Contact 5.1 system is both relevant and proportional to the needs of the case. However, Defendants maintain that they are unable to “systematically identify all phone numbers called” during the relevant time period, as calls “manually dialed” via the Avaya 9611G desk phone would “not be included in an output of the Avaya Proactive Contact system.” (ECF No. 30 at 12:26-27; Lahr Decl. ¶ 15.) Thus, the Parties contest whether an outbound dial list must be produced for “manually dialed” numbers, which Defendants claim is the method by which all skip traced numbers are first dialed and how Plaintiff Westmoreland’s 6053 cell phone was contacted. (ECF No. 30 at 9:20-23; ECF No. 30, Ex 1 at 10:4-20, 11:3-10; Duchesne Decl. ¶ 5.) Whether calls were made using an ATDS is typically a contested issue in a TCPA case. See Mora, 2017 WL 1187710, at *6. The Parties’ submissions underscore this fact, as Plaintiffs readily contest whether what Defendants refer to as a “manual” call, falls within the statutory ATDS definition.5 (Compare ECF No. 30 at 4:17-24, and Hansen Decl. ¶¶ 13-16, with Lahr Decl. ¶¶ 15, 17-18 and Duchesne Decl. ¶ 5, 7.) This is a merits issue; and as such, the Court is not inclined to limit the requested outbound dial lists based on Defendants’ use of the term “manual.”6 See Mora, 2017 WL 1187710, at *6 (defendants not allowed to only produce outbound dial lists for calls that they believe meet the definition of using an ATDS). However, Defendants claim there is no way to “systematically identify” manually dialed calls made using Avaya 9611G desk phones during the relevant time period (Lahr Decl. ¶ 15). Without making a premature determination as to Defendants’ “manual” dialing, the production of an outbound dial list for “manually dialed” calls utilizing Avaya 9611G desk phones (and not for calls made via the Avaya Proactive Contact system) would be disproportionate to the needs of the case given that discovery at this point is focused on class certification and not merits. See Gusman, 298 F.R.D. at 597 (holding facts on the record did not justify imposing a significant burden on defendant to produce an outbound dial list of marketing calls when the case involved collection calls). Given their relevance to Plaintiffs’ claims and the proportionality to the needs of the case, the Court finds that Plaintiffs’ request for Defendants’ outbound dial list should be GRANTED IN PART.
The Court allowed skip tracing and number trapping discovery, except to the extent that a manual file-by-file review would be required.
Turning to the skip tracing and number trapping requests, Plaintiffs maintain that phone numbers obtained utilizing these methods are “not subject to the prior express consent defense,” avoiding a potential predominance issue at class certification, and could potentially constitute their own subclasses. (ECF No. 30 at 18: 8-9.) Thus, information regarding such numbers and the methods by which such numbers are dialed is relevant to the claims and defenses at issue and go to the issues of Rule 23 commonality and predominance.. . .Defendants maintain that a list of numbers “found via manual skip trace does not exist” and that to compile such a list would require an account-by-account review taking an estimated 2,362,500 hours and costing an estimated $18.9 million. (Lahr Decl. ¶¶ 17-20 [emphasis added].) However, they also state that “[f]or Comenity to identify skip traced numbers called by any method [during the relevant time period it] would require approximately 40-80 hours” (Id. ¶ 16 [emphasis added] ). These statements taken together indicate that there is a group of skip traced phone numbers that were called utilizing methods other than “manual dialing,” which would presumably include calls made via the Avaya Proactive Contact 5.1 system and other such dialing systems. This appears inconsistent with Defendants’ statements that its “policy and procedure is not to autodial a skip-traced number.” (ECF No. 30 at 9:22-23; Id. at 20:12-14; Duchense Decl. ¶ 5.) Due to this apparent ambiguity, the Court GRANTS IN PART Plaintiffs’ request for documents and information related to the general policies and processes by which Defendants dial numbers obtained via skip tracing and number trapping for the duration of the relevant time period. To the extent that Defendants are able to identify skip traced numbers that were called “by any method” other than those that were “found via manual skip trace” they are to do so. Further, pursuant to the Court’s order regarding outbound dial lists in Section II.A, Plaintiffs will be in receipt of numbers obtained via skip tracing and number trapping if such numbers were dialed with the Avaya Proactive Contact 5.1 system. To the extent possible without conducting an account-by-account review as set forth in the Lahr Declaration (Lahr Decl. ¶¶ 17-22), Defendants shall identify any numbers on this outbound dial list which were obtained via skip tracing or number trapping. Again, an account-by-account review is not proportional to the needs of the case at this time. See Gaines, 2014 WL 3894348, at *6.