In Knutson v. Schwan’s Home Service, Inc., 2013 WL 1222116 (S.D.Cal. 2013), Judge Bartick ordered class-wide discovery on ‘prior express consent’ under the TCPA.
Plaintiffs have requested information relating to Defendant’s affirmative defense of “prior express consent.” Plaintiffs predict Defendant will assert this defense in opposition to class certification. Plaintiffs argue they will need the information to prepare a response and to demonstrate that the putative class is both ascertainable and manageable. Plaintiffs note that similar discovery has been permitted by other district courts in TCPA cases. See e.g. Donnelly v. NCO Financial Systems, Inc., 263 F.R.D. 500, 505 (N.D.Ill.2009) (ordering the defendant in a TCPA class action to produce “class-wide documents and information relating to its prior express consent defense” prior to the resolution of the plaintiffs’ class certification motion). Defendant counters that com-piling the information would be extremely burden-some and the information is not necessary at this stage in the litigation. ¶ The Court finds the information sought by Plaintiffs is relevant. “Prior express consent” is an affirmative defense that defendants in TCPA cases have the burden to prove. See e.g. 23 F.C.C.R. 559, 565 (Jan. 4, 2008); Grant v. Capital Mgmt Servs.,LP, 449 Fed.Appx. 598, 600 n. 1 (9th Cir.2001) (noting that “ ‘express consent’ is not an element of a TCPA plain-tiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.”); Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364, *3 (S.D. Cal. June 11, 2012). As this defense is likely to be raised as an issue in the certification proceedings, the Court finds Plaintiffs’ discovery requests are appropriate. Defendant con-tends that compelling this discovery is tantamount to the Court ruling the class is ascertainable. The Court disagrees. The issue before the Court is whether Plaintiffs’ discovery requests are relevant to factors bearing on certification, such as ascertainability; not whether the class is, in fact, ascertainable. ¶ Defendant argues it would be unduly burden-some, if not impossible, to produce the information requested by Plaintiffs. Defendant estimates that it would take 15 years to complete even a cursory review of the documentation evidencing each customer’s prior express consent. Defendant states that its 3.9 million customers consented to receiving prerecorded calls in numerous ways, including by email, through the company’s website, over the telephone, and verbally to their Route Sales Representatives at their front door. Defendant says that it did not start recording its customers’ manner of consenting to prerecorded calls in a computer database until November 2012. Plaintiffs ask that at a minimum, Defendant should be compelled to produce the records it kept electronically since November 2012. ¶ The Court appreciates that reviewing and producing the volume of information requested by Plaintiffs at this stage in the litigation is burdensome. The question, of course, is whether that burden is undue. The Court notes that Defendant proposed a middle-ground. Defendant suggested a sampling procedure, which was apparently rebuffed by Plaintiffs. With respect to records kept prior to November 2012, the Court finds that sampling strikes an appropriate compromise in this case. See Soto v. Castlerock Farming and Transport, Inc., 282 F.R.D. 492, *503–04 (E.D. Cal. April 30, 2012) (“To relieve the burden on a party, a court may order a ‘sampling’ of records.”); Feske v. MHC Thousand Trails Ltd. Partnership, 2012 WL 1123587, *2 (N.D. Cal. April 3, 2012) (“[I]n the specific context of class-action discovery, sampling advances the goal of proportionality set forth in Fed.R.Civ.P. 26(b)(3)(c) (iii).”). Sampling should afford Plaintiffs sufficient information for their class certification motion, and will not overburden Defendant. With respect to records kept after November 2012, the Court finds that Defendant should produce all of the electronic records of express consent it has kept within its computer database. While still time consuming, the effort associated with producing electronically stored information is not as great as that required to produce the information that is not in a computer database.