In Olney v. Job.com, 2014 WL 4629062 (E.D.Cal. 2014), the Plaintiff filed a TCPA class action based on calls he received after signing up for Defendant’s resume service. The Plaintiff and Defendant entered into a Discovery Stipulation allowing the parties to designate certain information as “Confidential”. The Defendant produced, and marked confidential, three recordings of telephone conversations with the Plaintiff. As a result of learning of those recordings, the filed another lawsuit Olney v. Job.com, 1:13–cv–2006–LJO–SKO ( “Olney II” ), alleging on behalf of himself and others similarly situated that Job.com and its related entities knowingly and willfully used recording equipment to record telephone conversations without Plaintiff’s knowledge or consent in violation of California Penal Code §§ 630, et seq. Defendant filed a Motion arguing that, regardless whether the CD actually contains confidential information, the core issue is Plaintiff’s breach of the parties’ Stipulation by failing to provide notice to either Defendant of his intent to use and disclose information that was marked “confidential” under the Stipulation. Job.com argues that if Plaintiff believed the recording were improperly designated under the Stipulation, he was required to address that issue with Job.com and the Court before filing Olney II and disclosing the information. Job.com contends that “reward[ing]” Plaintiff for violating the agreement by de-designating the CD would undermine the integrity of the judicial process and undercut the parties’ Stipulation. Magistrate Judge Obero disagreed, finding that the filing of Olney II did not violate the Stipulation because the fact of the recordings was not confidential.
Plaintiff contends none of the contents of the CD recordings is “confidential.” This argument has merit. While the CD contains three audio files, only one has audible content. The CD recording does not contain “sensitive personal or financial information, information constituting trade secrets, or such similar protected information needing confidential designation,” as defined by the parties’ Stipulation. It contains no scripted content and divulges no customer list, each of which are routinely deemed by courts to constitute a trade secret and/or proprietary information. See, e.g., MAI Syst. Corp. v. Peak Computer, Inc., 991 F.2d 511, 521 (9th Cir.1993) (customer database qualified as trade secret because it had potential economic value to allow a competitor to direct its sales efforts to potential customers). While recordings of this type may generally be presumed to contain confidential content, this particular CD does not contain any “Confidential Information” as defined by the parties’ Stipulation. The fact that a call occurred is also not confidential information—the entire crux of this litigation is that Plaintiff received calls from Job.com and/or Windy City to which he had not consented. Defendants also have been unable to articulate how the fact the call was recorded in and of itself is confidential. . . .The Court finds the call recordings at issue contain no confidential information and thus should not be designated “confidential” pursuant to the parties’ Stipulation. Even assuming the contents of the call recordings were confidential, Plaintiff’s allegations in Olney II did not constitute use of such information. Moreover, even assuming that the recordings were confidential and Plaintiff’s allegations in Olney II constituted use of confidential information, it is unlikely that the Stipulation’s broad limitation on use in other litigation could be enforced pursuant to public policy. Finally, notwithstanding any obligation by Plaintiff to supply advance notice to Defendants of his intent to disclose information marked “confidential, any breach of the Stipulation would be harmless in light of the Court’s finding that the information on the CD at issue was not entitled to a confidential designation under the parties’ Stipulation.