Cahill v. GC Services Limited Partnership, No. 3:2017cv01308 - Document 15 (S.D. Cal. 2018)

Court Description: ORDER granting in part and denying in part 13 Plaintiff's Motion to Compel Further Discovery Responses as presented in the instant Joint Motion for Determination of Discovery Dispute. As provided in the attached Order, to the extent that the Court has ordered additional answers and responses, those answers and responses must be served on Plaintiff no later than 14 days from the date of this Order. Regarding one RFP, the Court has ordered the parties to meet and confer. The conference m ust be held within 7 days of this Order. Service of the further answers and responses will serve to restart the 30-day dispute process under this Courts Civil Chambers Rules.. Signed by Magistrate Judge Mitchell D. Dembin on 2/15/18. (Dembin, Mitchell)

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Cahill v. GC Services Limited Partnership Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 TIFFANY CAHILL, individually and on behalf of all others similarly situated, 13 Plaintiff, 14 GC SERVICES LIMITED PARTNERSHIP, ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE v. 15 Case No.: 17-cv-1308-GPC-MDD 16 17 [ECF NO. 13] Defendant. 18 19 Before the Court is the Joint Motion of the parties for Determination of 20 a Discovery Dispute filed on January 31, 2018. (ECF No. 13). The dispute 21 presents Plaintiff’s motion to compel further responses to ten interrogatories 22 and 23 requests for production. In this case Plaintiff asserts, on behalf of 23 herself and a nationwide class of similarly situated individuals, that 24 Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 25 U.S.C. § 227, et seq., by making calls to cellular telephones using an 26 autodialer and/or a prerecorded or artificial voice, without the express 27 consent of the persons called, in furtherance of debt collection activities by its 1 17-cv-1308-GPC-MDD Dockets.Justia.com 1 2 3 clients or for its own accounts. (ECF No. 1). LEGAL STANDARD The Federal Rules of Civil Procedure authorize parties to obtain 4 discovery of “any nonprivileged matter that is relevant to any party’s claim or 5 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 6 26(b)(1). “Information within the scope of discovery need not be admissible in 7 evidence to be discoverable.” Id. District courts have broad discretion to 8 limit discovery where the discovery sought is “unreasonably cumulative or 9 duplicative, or can be obtained from some other source that is more 10 11 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). An interrogatory may relate to any matter that may be inquired of 12 under Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must 13 answer each interrogatory by stating the appropriate objection(s) with 14 specificity or, to the extent the interrogatory is not objected to, by 15 “answer[ing] separately and fully in writing under oath.” Rule 33(b). The 16 responding party has the option in certain circumstances to answer an 17 interrogatory by specifying responsive records and making those records 18 available to the interrogating party. Rule 33(d). 19 Similarly, a party may request the production of any document within 20 the scope of Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the 21 response must either state that inspection and related activities will be 22 permitted as requested or state an objection to the request, including the 23 reasons.” Rule 34(b)(2)(B). If the responding party chooses to produce 24 responsive information, rather than allow for inspection, the production must 25 be completed no later than the time specified in the request or another 26 reasonable time specified in the response. Id. An objection must state 27 whether any responsive materials are being withheld on the basis of that 2 17-cv-1308-GPC-MDD 1 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the 2 part and permit inspection or production of the rest. Id. DISCUSSION 3 A. Lack of Protective Order 4 Regarding interrogatories 4, 5, 7, 18 and 19, and requests for production 5 6 2, 6, 7, 14, 15, 24, 25, 26, 27, 28, 38, 39, 42, 43, 44, and 46, Defendant asserts 7 that further answers will be provided and documents produced following the 8 entry of a protective order. Plaintiff reports that on January 30, 2018, 9 counsel for Defendant provided a proposed Protective Order to counsel for 10 Plaintiff, to which Plaintiff agreed, with minor changes. (ECF No. 13 at 3).1 11 Defendant agrees that it provided a proposed Protective Order to Plaintiff’s 12 counsel for review and comment. (Id.). No motion for protective order, joint 13 or ex parte, was submitted to the Court. 14 Defendant’s refusal to answer fully and produce documents because a 15 protective order has not been entered in this case is just plain wrong. Rule 16 26(c)(1), Fed. R. Civ. P., permits a producing party to file a motion for a 17 protective order after first attempting, in good faith, to confer or attempt to 18 confer with the requesting party. Here, it appears that the parties did confer 19 but no motion for protective order was filed. As the producing party, 20 Defendant had but two options under the Rule: 1) Produce the requested 21 documents; or, 2) File an ex parte motion for a protective order. It was not 22 and is not an option for Defendant simply to withhold production. Defendant 23 has had ample opportunity to move for a protective order. Defendant’s 24 failure to do so, if it considers the information confidential, is inexplicable. 25 26 1 27 The Court will refer to pagination provided by CM/ECF, rather than original pagination, throughout. 3 17-cv-1308-GPC-MDD 1 Consequently, the Court OVERRULES Defendant’s objection to 2 disclosure on this basis. To the extent that Defendant relied solely on the 3 absence of a protective order to fully answer or produce documents, Plaintiff’s 4 motion to compel further answers and production to these interrogatories and 5 requests for production is GRANTED. Defendant must provide its responses 6 within 14 days of this Order. In the interim, a joint motion or ex parte 7 motion for a protective can be filed. 8 9 B. Proportionality Regarding interrogatories 5 and 6, and requests for production 9-13, 18, 10 and 24, Defendant objected, at least in part, on the basis of proportionality, 11 asserting that the interrogatory or request for production “does not meet the 12 proportionality standards of Fed. R. Civ. P. 26(b)(1), as responding to such a 13 broad request, as worded, would be impracticable and could only be done, if 14 at all, at great expense.” (See, e.g. ECF No. 13 at 12). Unfortunately for 15 Defendant, saying it does not make it so. No further explanation of the 16 burden these interrogatories and requests for production place on Defendant 17 is provided nor supported by any Declaration. Defendant’s objections to these 18 interrogatories and requests for production, to the extent based upon 19 proportionality concerns, is OVERRULED. To the extent that Defendant 20 relied solely on its proportionality objection to fully answer or produce 21 documents, Plaintiff’s motion to compel further answers and production to 22 these interrogatories and requests for production is GRANTED. Defendant 23 must provide its responses within 14 days of this Order. 24 25 C. Specific Interrogatories In these interrogatories, Defendant asserted objections in addition to or 26 different than proportionality or lack of a protective order. The Court will 27 address those additional and different objections below. 4 17-cv-1308-GPC-MDD 1 1. Interrogatory No. 5 (ECF No. 13 at 3) 2 This interrogatory requires Defendant to state the number of cellular 3 telephones called by Defendant for the purpose of debt collection for the past 4 four years. Defendant asserts that this interrogatory seeks information not 5 relevant to any claim or defense and is overbroad. (ECF No. 13 at 4-5). The 6 Court agrees with Defendant that the interrogatory is overbroad by not being 7 limited to calls made by means of an autodialer or using a prerecorded or 8 artificial voice. No further answer is required. 9 2. Interrogatory No. 6 (ECF No. 13 at 3-4) 10 This interrogatory fixes the overbreadth problem identified in 11 Interrogatory No. 5 above by calling upon Defendant state the number of 12 cellular telephone numbers called for debt collection purposes in the 4 years 13 preceding the filing of the Complaint using an autodialer. Defendant asserts 14 the same objections as asserted in connection with Interrogatory No. 5. 15 Defendant’s objections are OVERRULED and the motion to compel an 16 answer is GRANTED. Defendant must provide its response within 14 days 17 of this Order. 18 3. Interrogatory No. 7 (ECF No. 13 at 5) 19 This interrogatory askes Defendant to describe instructions provided to 20 its employees or agents involved in making calls to “customers” regarding 21 how to document requests to cease contact by telephone. Defendant has 22 objected on the grounds that the interrogatory is vague because it has no 23 “customers.” Plaintiff clarified its request to mean debtors. Defendant also 24 asserted that it will fully respond following the entry of a protective order. 25 Defendant’ objection regarding the lack of a protective order has been 26 overruled. With the clarification provided by Plaintiff, Defendant’s objection 27 for vagueness is OVERRULED and the motion to compel an answer is 5 17-cv-1308-GPC-MDD 1 GRANTED. Defendant must provide its response within 14 days of this 2 Order. 3 4. Interrogatories Nos. 21-24 (ECF No. 13 at 6-7) 4 These interrogatories are related. Interrogatory No. 21 calls for 5 Defendant, if it has used an autodialer within the 4 years preceding the filing 6 of the Complaint, to identify type of autodialer used. Interrogatory No. 22 7 calls for Defendant to identify the location(s) of its autodialer(s). 8 Interrogatory No. 23 calls for identification of any predictive dialer used 9 during the 4 year period. Interrogatory No. 24 calls for Defendant to identify 10 any entity to which it outsourced any autodialer or predictive dialer. 11 Defendant first objected on the grounds that this information is not relevant 12 to any claim or defense in this case. That position is untenable; it is the 13 entire basis of this lawsuit. Defendant’s objection on that basis is 14 OVERRULED. 15 Defendant also responded for each interrogatory that it did not use an 16 “ADTS.” The Court understands that acronym to refer to an automated 17 telephone dialing system. Defendant’s responses may not be sufficient. In 18 Interrogatories Nos. 21 and 22, the request relates to an “autodialer.” 19 Defendant’s response is limited to an “ATDS.” An Automated Telephone 20 Dialing System, as Defendant refers to it, may or may not be narrower in 21 scope than an “autodialer.” Interrogatory No. 23 addresses a predictive 22 dialer which, again, may or may not be within the scope of what Defendant 23 refers to as an “ATDS.” Similarly, an appropriate response to the 24 outsourcing question, Interrogatory No. 24, also depends upon the definition 25 of an ATDS as used by Defendant. 26 27 Accordingly, Defendant is ORDERED to provide a further response to each of these interrogatories directly answering each question. Plaintiff’s 6 17-cv-1308-GPC-MDD 1 motion to compel further answers is GRANTED. Defendant must provide its 2 responses within 14 days of this Order. 3 4 D. Specific Requests for Production (“RFP”) In these RFPs, Defendant asserted objections in addition to or different 5 than proportionality or lack of a protective order. The Court will address 6 those additional and different objections below. 7 1. RFP No. 9 (ECF No. 13 at 11) 8 Defendant is asked to produce all reports for each outbound dial list for 9 the 4 year period. It is not limited to calls to cellular telephones using any 10 form of autodialer or with prerecording or artificial voice nor for debt 11 collection. It is overbroad. That said, Defendant’s response does not comply 12 with the requirements of Rule 34, Fed. R. Civ. P. An objection must state 13 whether any responsive materials are being withheld on the basis of that 14 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the 15 part and permit inspection or production of the rest. Id. Defendant does not 16 indicate whether documents are being withheld pursuant to its objections. 17 And, Defendant appears neither to produce documents nor state when it will. 18 Plaintiff is entitled to a response that complies with Rule 34. Defendant is 19 ORDERED to provide a compliant response within 14 days of this Order. 20 2. RFPs 10-13 (ECF No. 13 at 11-12) 21 As discussed in connection with RFP No. 9 above, Defendant’s 22 responses to these RFPs does not comply with Rule 34. Defendant is 23 ORDERED to provide compliant responses within 14 days of this Order. 24 These RFPs are related. RFP No. 10 calls for reports for each outbound 25 dialing list called during the 4 year period using an autodialer. RFP No. 11 26 calls for the same using a predictive dialer. RFP No. 12 calls for outbound 27 dialing lists for any autodialer debt collection campaign. RFP No. 13 calls for 7 17-cv-1308-GPC-MDD 1 2 the same using a predictive dialer. Defendant objects that these RFPs call for the production of information 3 not relevant to any claim or defense. The objection is frivolous and 4 OVERRULED. Defendant also responds that it has no such information 5 regarding Plaintiff. (ECF No. 13 at 13). The RFPs are not limited to Ms. 6 Cahill and the issue of her suitability as a class representative is not yet 7 before the Court. Defendant’s objections are OVERRULED. 8 3. RFP No. 46 (ECF No. 13 at 15) 9 Defendant is asked to produce documents describing the call recording 10 and reporting procedures for outgoing debt collection calls for the relevant 11 period. Defendant’s response to this RFP does not comply with Rule 34. 12 Defendant is ORDERED to provide a compliant response within 14 days of 13 this Order. Defendant also objects on the grounds that the RFP calls for the 14 production of information not relevant to any claim or defense. (ECF No. 13 15 at 16). This objection is OVERRULED. 16 4. RFP No. 18 (ECF No. 13 at 16) 17 Defendant is called upon to produce all reports of autodialer or 18 predictive dialer calls made to cellular telephones, pagers, mobile telephones 19 or wireless devices during the relevant period. Defendant’s response to this 20 RFP does not comply with Rule 34. Defendant is ORDERED to provide a 21 compliant response within 14 days of this Order. Defendant also objects on 22 the grounds that the RFP calls for the production of information not relevant 23 to any claim or defense. (ECF No. 13 at 17). This objection is 24 OVERRULED. Defendant also responds that it did not use an autodialer 25 regarding Ms. Cahill’s account. The response is insufficient as the RFP 26 pertains to class claims. 27 8 17-cv-1308-GPC-MDD 1 5. RFP No. 25 (ECF No. 13 at 18) 2 Defendant is called upon to produce documents regarding training of its 3 employees involved in making calls to individuals for debt collection 4 purposes. Defendant’s response to this RFP does not comply with Rule 34. 5 Defendant is ORDERED to provide a compliant response within 14 days of 6 this Order. Defendant also objects on the grounds that the RFP calls for the 7 production of information not relevant to any claim or defense. (ECF No. 13 8 at 17). This objection is OVERRULED. 9 10 6. RFP No. 28 (ECF No. 13 at 19) Defendant is asked to produce all documents regarding its use of an 11 autodialer. Defendant’s response to this RFP does not comply with Rule 34. 12 Defendant is ORDERED to provide a compliant response within 14 days of 13 this Order. Defendant also objects on the grounds that the RFP is vague 14 regarding “documents regarding your use” of an autodialer. (ECF No. 13 at 15 19). This objection has some merit. The RFP may be calling for the 16 productions of manuals, policies, and training regarding Defendant’s use of 17 an autodialer, which is relevant. It also may be calling for production of 18 records reflecting every time Defendant employed an autodialer which may 19 be overbroad. The parties are ORDERED to meet and confer on this point in 20 advance of Defendant’s obligation to produce a response in compliance with 21 Rule 34. 22 7. RFPs 37, 39 (ECF No. 13 at 20) 23 In these related RFPs, Defendant is asked to produce documents 24 describing the means for determining whether an outgoing call is not 25 associated with an account. (RFP No. 37). Defendant also is asked to 26 produce documents regarding its criteria and methodology used for 27 establishing an account with an associated number to be called. (RFP No. 9 17-cv-1308-GPC-MDD 1 39). Defendant’s responses to these RFPs do not comply with Rule 34. 2 Defendant is ORDERED to provide compliant responses within 14 days of 3 this Order. Defendant also objects on the grounds that the RFP calls for the 4 production of information not relevant to any claim or defense. (ECF No. 13 5 at 20). This objection is OVERRULED. CONCLUSION 6 7 Plaintiff’s Motion to Compel is GRANTED IN PART AND DENIED 8 IN PART. To the extent that the Court has ordered additional answers and 9 responses, those answers and responses must be served on Plaintiff no later 10 than 14 days from the date of this Order. Regarding one RFP, the Court has 11 ordered the parties to meet and confer. The conference must be held within 7 12 days of this Order. Service of the further answers and responses will serve to 13 restart the 30-day dispute process under this Court’s Civil Chambers Rules. 14 15 IT IS SO ORDERED. Dated: February 15, 2018 ______________________________ MITCHELL D. DEMBIN U. S. MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 10 17-cv-1308-GPC-MDD

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