Hoagland v. Axos Bank, No. 3:2020cv00807 - Document 60 (S.D. Cal. 2021)

Court Description: Order Granting Unopposed Motion for Entry of Agreed AT&T Production Order (Dkt No. 57 ) and Entering Production Order. Signed by Magistrate Judge Daniel E. Butcher on 11/16/21. (jmo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KENNETH HOAGLAND, individually and on behalf of all others similarly situated, 13 14 15 Case No.: 20-cv-807-BAS-DEB ORDER GRANTING UNOPPOSED MOTION FOR ENTRY OF AGREED AT&T PRODUCTION ORDER [DKT. NO. 57] AND ENTERING PRODUCTION ORDER Plaintiff, v. AXOS BANK, 16 Defendant. 17 18 Before the Court is Plaintiff’s Unopposed Motion for Entry of Agreed AT&T 19 Production Order. Dkt. No. 57. Good cause appearing, the Court GRANTS the Motion and 20 enters the Stipulated Order to Compel Document Production as follows: 21 Plaintiff Hoagland and non-party AT&T Inc. (“AT&T”) stipulate as follows: 22 1. On July 26, 2021, Plaintiff served a subpoena on AT&T (the “Subpoena”). 23 Ancillary to the Subpoena, Plaintiff also provided AT&T with a list of 6,830 calls 24 (“Schedule A”), and asked AT&T to provide subscriber and user information for each 25 phone number on the date identified. 26 27 2. AT&T objected to the Subpoena on grounds that, among other things, it could not produce information about subscribers located in California and Delaware without a 28 1 20-cv-807-BAS-DEB 1 Court order, pursuant to state law, including Cal. Pub. 11 Util. Code § 2894 and 11 Del. C. 2 § 2423. 3 4 3. California law permits the production of subscriber information pursuant to a court order. Specifically, Cal. Pub. Util. Code § 2894 provides: 5 6 7 8 9 10 11 12 Notwithstanding subdivision (e) of Section 2891, the disclosure of any information by an interexchange telephone corporation, a local exchange telephone corporation, or a provider of commercial mobile radio service, as defined in Section 2168, in good faith compliance with the terms of a state or federal court warrant or order or administrative subpoena issued at the request of a law enforcement official or other federal, state, or local governmental agency for law enforcement purposes, is a complete defense against any civil action brought under this chapter or any other law, including, but not limited to, Chapter 1.5 (commencing with Section 630) of Part 1 of Title 15 of the Penal Code, for the wrongful disclosure of that information. 13 14 Cal. Pub. Util. Code § 2894(a). Federal courts have held that these provisions expressly 15 allow for production of subscriber information upon court order. See Kaur v. City of Lodi, 16 2016 WL 10679575, at *1 (E.D. Cal. Jan. 28, 2016) (“[I]t does not authorize [respondent] 17 to withhold documents in the face of a federal court order compelling their production.”); 18 McArdle v. AT&T Mobility LLC, 2010 WL 1532334, at *6 (N.D. Cal. Apr. 16, 2010) 19 (“[S]ection 2894 of the utilities code provides an exception to this rule for court orders.”). 20 21 22 23 24 25 26 27 28 4. Delaware law also expressly allows for disclosure of subscriber information pursuant to a court order. The Delaware Code provides: Except as provided in this subdivision, a provider of electronic communications service or remote computing service may not disclose a record or other information pertaining to a subscriber or customer of the service to any person other than investigative or law-enforcement officer. 11 Del. C. § 2423(c)(2). The same section of the Delaware law goes on to say: Nothing in this chapter may be construed as creating a cause of action against any provider of electronic communication service or remote computing 2 20-cv-807-BAS-DEB 1 2 3 service, such service’s officers, employees, or agents or other specified persons for providing information, facilities or assistance in accordance with the terms of a court order, warrant, subpoena or certification under this chapter. 4 5 11 Del. C. § 2423(e). Thus, the Delaware law at issue does not preclude production 6 upon entry of a Court order. 7 5. AT&T further objected that it could not produce information about 8 subscribers in Pennsylvania without a Court order and notice to the subscribers under 18 9 Pa. C.S.A. § 5742. See also Lee v. Glob. Tel*Link Corp., 2017 WL 11272587, at *5-7 (C.D. 10 11 Cal. Dec. 6, 2017). 6. Through counsel, Plaintiff and AT&T reached the following agreement: 12 (a) that Plaintiff will seek an order from the Court requiring AT&T to produce the 13 information concerning subscribers located in California, Delaware, and all other states 14 except Pennsylvania in the format agreed to by their respective counsel, and (b) that AT&T 15 will not produce information regarding its Pennsylvania subscribers at this time. 16 17 7. after a Court order permitting such is entered. 18 8. 19 ORDER 20 21 22 23 24 25 26 27 AT&T will produce data responsive to the Subpoena within fourteen days As such, Plaintiff and AT&T respectfully ask that the Court order as follows: Upon review of the foregoing stipulation, the Court finds that the stipulated relief sought is due to be granted. Accordingly, it is ORDERED: 1. No later than fourteen calendar days after entry of this Order, AT&T shall produce to Plaintiff’s counsel: A data compilation in *.csv format agreed to by counsel for AT&T and Plaintiff, reflecting the first name, middle name, last name, email address, and billing address for subscribers and users of AT&T phone services whose phone number appears on Schedule A to the Subpoena (other than subscribers and users located in Pennsylvania), and the dates of service for the account. 28 3 20-cv-807-BAS-DEB 1 2. The Subpoenaed Information shall be maintained as “confidential 2 information” in accordance with the Protective Order entered in this action, Dkt. 36 (the 3 “Protective Order”). The information may be used only for purposes of the above- 4 captioned litigation and must be destroyed in accordance with the Protective Order. Upon 5 written request from AT&T, Plaintiff shall confirm to AT&T and its counsel, in writing, 6 when the destruction of all Subpoenaed Information is/was completed. 7 8 IT IS SO ORDERED. Dated: November 16, 2021 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 20-cv-807-BAS-DEB 1 2 Dated: November 9, 2021 Stipulated and respectfully submitted, AT&T INC. 3 4 5 6 7 8 9 By: s/ Emily Westridge Black Emily Westridge Black HAYNES AND BOONE, LLP 600 Congress Ave., Suite 1300 Austin, TX 78701 Telephone: (512) 867-8422 emily.westridgeblack@haynesboone.com Counsel for AT&T 10 KENNETH HOAGLAND, Individually and on Behalf of All Others Similarly Situated By: s/ Alexander H. Burke Alexander H. Burke (pro hac vice) BURKE LAW OFFICES, LLC 909 Davis St., Suite 500 Evanston, IL 60201 Telephone: (312) 729-5288 aburke@burkelawllc.com Jeffrey S. Goldenberg (pro hac vice) GOLDENBERG SCHNEIDER, L.P.A. 4445 Lake Forest Dr., Suite 490 Cincinnati, OH 45242 Telephone: (513) 345-8291 jgoldenberg@gs-legal.com 11 12 13 14 15 James C. Shah (SBN 260435) Chiharu G. Sekino (SBN 306589) MILLER SHAH LLP 1230 Columbia St., Suite 1140 San Diego, CA 92101 Telephone: (619) 235-2416 jcshah@millershah.com cgsekino@millershah.com 16 17 18 19 20 21 Joseph M. Lyon (pro hac vice) THE LYON FIRM 2754 Erie Ave. Cincinnati, OH 45208 Telephone: (513) 381-2333 jlyon@thelyonfirm.com 22 23 24 25 Counsel for Plaintiff 26 27 28 5 20-cv-807-BAS-DEB 1 SIGNATURE CERTIFICATION 2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies and 3 Procedures Manual, I hereby certify that the content of this document is acceptable to 4 Emily Westridge Black, counsel for AT&T Inc., and that I have obtained Ms. Black’s 5 authorization to affix her electronic signature to this document. 6 s/ Alexander H. Burke 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 20-cv-807-BAS-DEB

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