In Taylor v. Universal Auto Grp. I, Inc., 2015 WL 2406071, at *4-5 (S.D. Ohio 2015), Judge Black affirmed a Magistrate’s order compelling disclosure, pre-certification, of TCPA class members’ names and addresses.
OneCommand’s primary argument is that the requested information is not relevant because the underlying action is in the pre-certification stage and that Plaintiff could only use this information to contact and solicit these individuals. OneCommand also argues that it has already produced much of the information requested, including a list of all 8,143 telephone numbers that received any of the calls. The Magistrate Judge relied on Kane v. National Action Finance Services, Inc., No. 11–11505, 2012 WL 1658643, at *7 (E.D.Mich. May 11, 2012), and Artis v. Deere & Co., 276 F.R.D. 348 (N.D.Cal.2011), for the conclusion that the requested information is relevant at the pre-certification phase of a class action. (Doc. 12 at 10–11). In Kane, the plaintiff in a pre-certification class action asserting violations of the TCPA filed a motion to compel production of the names, addresses, and telephone numbers of putative class members that also received allegedly unlawful calls from the defendant. Kane, 2012 WL 1658643, at *7. The court granted the motion to compel because the information was relevant to the plaintiff’s individual and class claims. Id.9 The Magistrate Judge acknowledged OneCommand’s argument that the information was not relevant and that it would be improper for Plaintiff to use that information to contact or solicit potential class members. However, the Magistrate Judge correctly noted that OneCommand offered no legal support for its position and failed to address the contrary authority in Kane and Artis. Now, for the first time in its Objections, OneCommand cites several cases that purport to show that Kane and Artis represent the minority position. However, those cases are readily distinguishable from the situation presented here. Five of the seven cases cited by OneCommand involve proposed collective actions under the Fair Labor Standards Act (“FLSA”). “Unlike class actions under Fed.R.Civ.P. 23, collective actions under FLSA require putative class members to opt into the class. These opt-in employees are party plaintiffs, unlike absent class members in a Rule 23 class action.” …Unlike in a FLSA collective action where counsel typically must solicit other prospective plaintiffs to affirmatively join the collective action and assert their own independent claims, Rule 23 does not require potential class members to take affirmative action and the class representative prosecutes claims on behalf of absent class members. Accordingly, the danger of solicitation present in FLSA collective actions is not as pronounced as in Rule 23 class actions. OneCommand presents only a generalized argument that communication with prospective class members would be improper. Without any specific facts suggesting the potential for abuse, the Court declines to presume that Plaintiff’s counsel will use the information for improper purposes. Id. at 101–02. The two other cases cited by OneCommand presented legitimate bases for limiting communications with prospective class members, but there are no comparable concerns here. In Bryant v. City of New York, No. 99 Civ. 11237, 2000 U.S. Dist. LEXIS 18548 (S.D.N.Y. Dec. 26, 2000), seven named plaintiffs brought § 1983 claims alleging false arrest and unreasonable force based on their arrests during an organized demonstration in New York City. Id. at 1. The plaintiffs sought the names and contact information of the 107 other persons also arrested during the organized demonstration. Id. at 2. The court denied the plaintiffs’ motion to compel because the privacy interests of the other arrestees was particularly sensitive given the claims at issue, the defendants demonstrated that locating this information would produce an administrative burden, the plaintiffs failed to show that they could not obtain the information from other sources, and a class of 107 would not meet the numerosity requirement for certification. Id. at 4–9. In In re Mun. Mortg. & Equity, LLC, No. MDL 08–MD–1961, 2012 U.S. Dist. LEXIS 161169 (D.Md. Nov. 7, 2012), the court previously held that the named plaintiff in a prospective class action lacked standing under the securities laws to assert a particular claim because he had not purchased the security at issue. Id. at 20. Subsequently, the named plaintiff and prospective class counsel filed a motion “to use discovery under the Federal Rules of Civil Procedure to obtain the names and addresses of SPO purchasers so that at least one of these purchasers who has the standing lacked by Dammeyer will become a plaintiff.” Id. The court summarily rejected the motion: “[E]ven if Dammeyer were still considered a party, there is no showing that the discovery would be relevant to any claim by Dammeyer. The Court has held Dammeyer lacks standing to assert claims under Section 12(a)(2) of the Securities Act and thus he cannot be a viable class representative for a putative class (or subclass) of SPO purchasers. Hence, he may not act for, or on behalf of, that putative class or subclass.” Id. at 22. Here, OneCommand does not identify any comparable facts suggesting a potential for abuse and relies only on a blanket argument that contacting putative class members is always improper. Even if the Court considers the new cases cited by OneCommand, Plaintiff’s citation to Peters v. Credit Protection Ass’n, LP, No. 2:13–cv–767, 2014 WL 6687146 (S.D.Ohio Nov. 26, 2014), further demonstrates that the Magistrate Judge reached the proper conclusion. The plaintiff in Peters, much like the Plaintiff here and in Kane, filed a motion to compel the production of the names and contact information of prospective class members in a pre-certification class action premised on violations of the TCPA. Id. at 6. The court cited Kane and held that “the names and contact information of putative class members are relevant and discoverable.” Id. at 7. OneCommand fails to distinguish the holdings in Peters and Kane, cases that involved substantially similar legal claims, procedural histories, and discovery requests. Accordingly, OneCommand has not demonstrated that the Magistrate Judge acted contrary to law.