In Knutson v. Schwan’s Home Service, Inc., 2013 WL 3746118 (S.D.Cal. 2013), Judge Curiel vacated and remanded for further consideration a Magistrate’ Judge’s order requiring a TCPA class-action plaintiff to produce an outbound dial list.   Schwan’s operates a grocery delivery service. In addition to delivering groceries to their primary customers, Schwan’s also made deliveries on behalf of NutriSystem, Inc. to NutriSystem customers. When deliveries of groceries are unable to be made to particular addresses at scheduled times, Schwan’s so notifies affected customers, including NutriSystem customers, by phone via an automated dialing system. Plaintiffs filed a class action under the TCPA, and the Magistrate Judge ordered Defendant to produce an outbound dial list and report of calls Schwan’s made on behalf of itself and on behalf of NutriSystem. The Magistrate Judge stated that “the outbound dial lists and reports will illuminate issues such as the number and ascertainability of potential class members, typicality of their claims, and whether common questions of law or fact exist.” The Magistrate Judge granted Plaintiffs’ request compelling Schwan’s to produce a comprehensive outbound call list and report of an estimated 3.9 million entries, in a searchable format.  The Magistrate Judge also ordered Defendant to produce a NutriSystem only call list for the same reasons. (Id. at 8.) Judge Curiel vacated the Magistrate Judge’s Order in part, and ordered the Magistrate Judge to re-consider the Discovery Order.  Judge Curiel found that “a list of phone numbers may very well bear direct relevance to a violation of the TCPA concerning the dialing of the very phone numbers listed.”  But, Judge Curiel found that the list might not be proper at the pre-class-certification stage on issues of commonality, ascertainability, and typicality.   On “ascertainability”, Judge Curiel found that “The Court finds the proposed class definition to be definite enough for a member of the class to identify him or herself. It is unclear from Plaintiff’s arguments just how discovery of the call list would in anyway improve the objectivity of its class definition, or change the criteria therein.”.  On “typicality”, Judge Curiel agreed that whether others were called had no bearing on whether Plaintiff’s claims were typical:

Evidence showing that many individuals were called on their cell phones by an autodialer contributes nothing further to typicality than what is already alleged in the claim. In addition, the call list is not relevant to determining whether unique defenses exist among members of the putative class because a list of dates and an identification of which numbers dialed were cell phones does not provide information of sufficient detail to identify unique factual situations or anticipated defenses. ¶  The call list is likely relevant to whether individuals were actually dialed in violation of the TCPA, but that is a question of merit that does not overlap with typicality. Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292, 294 (N.D.Cal.2013) (“Adjudication on the merits of plaintiffs’ claims is inappropriate, and any inquiry into the merits must be strictly limited to evaluating plaintiffs’ allegations to determine whether they satisfy Rule 23.”) Therefore, the magistrate judge erred in concluding the call list was relevant to establishing typicality.

On the issue of commonality, Judge Curiel held that “Being able to show that putative class members have claims based on inclusion of their cellular telephone number on lists of prerecorded calls maintained by [Schwan’s] is certainly relevant to class certification issues.”.  But, he explained,

Despite the potential relevance of a call list, however, the comprehensive list of 3.9 million numbers over a four-year period is not relevant pre-certification. The district court has the authority to limit discovery where it is found to be “unreasonably cumulative or … can be obtained from some other source that is more convenient.” Fed.R.Civ.P. 26(b)(2)(C)(i). Since the Judge Bartick’s discovery order was issued, Plaintiffs have reduced the putative class from the full 3.9 million customers dialed to only the NutriSystem system customers that were called. (Dkt 65–1 at 5.) Additionally, Schwan’s has claimed that they have constructed a NutriSystem-only dial list that satisfies all of the plaintiff’s criteria for having sought the original 3.9 million-entry list in the first place.

Judge Curiel declined to follow the recent Stemple decision requiring production of an outbound dial list:

Plaintiffs submitted a Notice of Recent Authority (“Notice”) in support of their op-position to Defendant’s Motion to Set Aside Judge Bartick’s order. (Dkt 71.) Exhibit A of the Notice is a copy of Stemple v. Q.C. Holdings, Inc., No. 12–CV–1997–CAB (WVG) (S.D. Cal. June 17, 2013). Stemple held that an outbound dial list is relevant to certification because “the requested documents will provide Plaintiffs a means to ascertain which of the numbers dialed within the statutory term are cellular telephone numbers dialed by an autodialer.” (Dkt 71–1 at 5.) The Stemple order is unpersuasive for three reasons. First, Stemple relies on Judge Bartick’s discovery order at issue in the present case. (Id.) To be swayed by this decision would amount to the circular logic that Judge Bartick’s order is proper because Judge Bartick’s order is proper. Second, Stemple relies on the flawed reasoning that ascertaining which numbers were called in violation of the TCPA is relevant for certification. (Id.) Ascertainability is a question of the objectivity of a proposed class definition, not of actually ascertaining issues of merit prior to certification of a class. Third, Stemple orders the call list to be narrowed from the full list of 20 million calls to only calls made “to persons within California.” (Dkt 71–1 at 6.) The court explains that it is “bound by the class definition provided by the complaint,” and thus restricts the list to that definition. (Id.) In the present case, the same analysis would weigh in favor of partially setting aside Judge Bartick’s order to produce a call list of 3.9 million individuals in light of the fact that the definition of the putative class has changed.