In Thrasher v. CMRE Financial Services, Inc., 2015 WL 1138469 (S.D.Cal. 2015), Magistrate Stormes ordered a TCPA class-action defendant to produce outbound call lists, information on use of an ATDS, and ESI related to the putative classmembers’ consent. The Magistrate ordered production of the outbound call lists.
The court finds that the outbound call list is reasonably calculated to identify the number and recipients of calls made during the class period, which is relevant to Rule 23 requirements. See Fed. R. Civ. Proc. 26(b)(1) (information sought is discoverable if it is “relevant to any party’s claim or defense”); Gaines v. Law Office of Patenaude & Felix, APC, 2014 WL 3894348, at *2; 2014 U.S. Dist. LEXIS 110162, at *5 (S.D. Cal. June 12, 2014) (“the outbound dial list is relevant to the issues of numerosity and commonality”). As for overbreadth, CMRE makes an unavailing argument that because the call list it provides to Global Connect “is not the same as the information that results when Global Connect makes a call, which may include calls to bad numbers, no connection or other results,” it cannot produce a responsive document, or that it would have to create one. Jt. Mtn, p. 6. CMRE explains that the only call data it retains is in its “workcards,” or account notes. Lawrence Decl. ¶ 7. It says it “cannot simply query its system and output a chart of date, time of call, and number called for the class period.” Id. Workcards can only be “output manually,” and to output workcards for over a five year period just to locate call information “would be massive in size and it’s unknown if it could be done.” Lawrence Decl. ¶¶ 8, 9. This court finds that what CMRE admits it has in its business records-a list of calls to be made that is given to Global Connect each day-is responsive. CMRE’s President acknowledged in her declaration that CMRE provides Global Connect with “a call list of calls to be made that day by uploading the file to Global Connect.” Lawrence Decl. ¶ 4. While such a list may include information such as land line numbers ( see Def.’s Objection, Jt. Mtn., p. 18), CMRE can “scrub,” or, redact that information from the production. Alternatively, CMRE can produce the record as it is kept (in a searchable format), and Plaintiff’s expert will “scrub” the list by comparing “the outbound dial list to a list of known cell block identifiers and will be able to quickly determine how many of the numbers called are cell phone numbers.” Jt. Mtn., p. 17. CMRE need not create a list of which calls and numbers were successful by reviewing its account notes.
The Magistrate ordered production of “All documents and ESI relating to the technological capability and capacity of the telephone dialing equipment used to make the phone calls.”
CMRE objects that these requests (1) are overbroad and unduly burdensome; and (2) seek proprietary and irrelevant information. CMRE again points the finger at Global Connect, saying that Global Connect used the automatic dialer and thus may have further information. Plaintiff argues this information is highly relevant to whether CMRE used an automatic telephone dialing system, which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers. Jt. Mtn., p. 10. Plaintiff believes that as a customer of Global Connect, CMRE should have information about the dialing system used. In Global Connect’s response to the subpoena from Plaintiff, Global Connect provided to CMRE a manual to use in making calls using the Global Connect software platform. Jt. Mtn, Ex. 10, p. 8. This appears to be the exact type of information sought, as the manual for the dialing system should identify at least the brand, model number, operating system(s), back-up storage and software used for the dialing equipment. CMRE provides no compelling reason why it cannot produce this information. While Global Connect explains that the manual “is proprietary and confidential” and its disclosure would place Global Connect at a competitive disadvantage, the protective order in place should adequately address those concerns.
The Magistrate ordered production of “All documents, ESI and communications that represent prior express consent by Plaintiff and the call recipients to receive phone calls.”
CMRE objects that these requests are (1) irrelevant, overbroad and unduly burdensome; (2) seek information that is confidential and subject to privacy rights and HIPAA protection; and (3) that CMRE does not control the information sought. Plaintiff argues the information is relevant to counter the affirmative defense of express consent and that she needs to take a Rule 30(b)(6) deposition about the evidence. At the heart of this disagreement is determining which party has the burden to establish prior express consent. . . . ¶ But this statement in Meyer-that prior express consent is an element of the claim-was made in the context of a motion for preliminary injunction that was examining the plaintiff’s likelihood of success on the merits. Meyer, 707 F.3d at 1043. That statement did not discuss whose burden it was to show prior express consent. . . . Other courts in this circuit agree that Meyer does nothing to switch the burden of proving prior express consent from the defendant to the plaintiff. See, e.g., Heinrichs v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 29910, *6–7 (N.D.Cal. Mar. 7, 2014) (denying a Rule 12(b)(6) motion to dismiss based on failure to plead lack of consent and noting that Meyer did not decide that lack of consent must be affirmatively pled); see also Stemple, 2013 U.S. Dist. LEXIS 99582 (post Meyer, finding that defendant bears the burden of proof) and Gaines, 2014 WL 3894348; 2014 U.S. Dist. LEXIS 110162 (post Meyer, compelling defendant to produce evidence of prior consent). This court agrees that if CMRE intends to rely on its ninth affirmative defense of prior express consent at trial, then it has the burden to prove “it had consent to call the phone numbers at issue, either via prior express consent or implied consent.” See Answer, Dkt. No. 6, p. 11. The court thus overrules the objections based on relevance, overbreadth and undue burden. ¶ CMRE argues that whether Plaintiff gave prior express consent to Palomar Medical Center is a private matter subject to HIPAA protection, and that Plaintiff herself objected to a subpoena to Palomar Medical Center asking for records relating to Plaintiff. Plaintiff explains she objected to the subpoena because it largely sought all of Plaintiff’s medical records and was not narrowly tailored. Eventually, the scope of the subpoena was narrowed and documents were designated confidential under the protective order. The court finds that whether Plaintiff gave express consent to be contacted on her cell phone is not a matter that concerns the reasonable expectation of privacy she would otherwise have in her more personal medical history. See Artis v. Deere & Co., 276 F.R.D. 348, 353 (N.D.Cal.2011) (citation omitted) (“the privacy interests at stake in the names, addresses, and phone numbers must be distinguished from those more intimate privacy interests such as compelled disclosure of medical records and personal histories”). Therefore, the court overrules CMRE’s objection based on privacy.