-LRL Kaffko v. Quepasa Corporation, No. 2:2011cv01253 - Document 24 (D. Nev. 2011)
Court Description: ORDER Denying 17 Motion to Quash Subpoena Issued by Plaintiff to Non-Parties BinBit, Inc. and Neustar, Inc. Signed by Magistrate Judge Lawrence R. Leavitt on 9/22/2011. (Copies have been distributed pursuant to the NEF - SLR)
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-LRL Kaffko v. Quepasa Corporation Doc. 24 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 *** 5 MICHELLE KAFFKO, 6 7 8 9 10 Plaintiff, v. QUEPASA CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) 2:11-cv-01253-JCM -LRL ORDER 11 Before the court is defendant Quepasa Corporation’s Emergency Motion to Quash Subpoenas 12 Issued by Plaintiff to Non-Parties Binbit, Inc. and Neustar, Inc. (#17). Plaintiff Michelle Kaffko filed 13 an Opposition (#19), and defendant filed a Reply (#22). 14 Plaintiff Kaffko filed a class action complaint on August 3, 2011, asserting violations of the 15 Telephone Consumer Protection Act, 47 U.S.C. § 227, which prohibits unsolicited voice and text calls 16 to cell phones (#1). Plaintiff contends that “by effectuating unauthorized text message calls, [d]efendant 17 has caused consumers actual harm, not only because consumers were subjected to the aggravation that 18 necessarily accompanies wireless spam, but also because consumers frequently have to pay their cell 19 phone service providers for the receipt of such wireless spam.” Id. In her complaint, plaintiff Kaffko 20 seeks an injunction in addition to actual and/or statutory damages. Id. 21 Defendant Quepasa denies sending any text messages to plaintiff, and asserts that it has never 22 utilized a device, i.e. “short codes,” that would allow it to send spam to unauthorized cell phones. 23 (#17). In preliminary discussions regarding the case, the plaintiff indicated that a company called 24 BinBit, Inc. is currently assigned the short code that allegedly transmitted the text message (“79545"), 25 and that Neustar, Inc. is the company that maintains a registry of short code numbers and the assigned 26 users. (#19 Exhibit E). Allegedly, both plaintiff and defendant desired information from these Dockets.Justia.com 1 companies regarding whether or not defendant Quepasa sent the text message in question, was ever 2 assigned the short code used, or ever hired BinBit to transmit the text. Thus, after allegedly having an 3 agreement with defendant to do so, plaintiff sent subpoenas to both companies. Defendant contends 4 that the subpoenas were improper and should be quashed. 5 Background 6 After reviewing the complaint and investigating the allegations therein, on August 8, 2011, 7 defendant Quepasa sent a letter to the plaintiff asserting that she failed to state a claim under 47 U.S.C. 8 § 227. (#19 Exhibit A). In support of this contention, defendant stated that “Quepasa only sends text 9 messages to numbers registered by visitors to the Quepasa.com website,” and that it “has never had the 10 capacity to generate phone numbers randomly or sequentially.” Id. Subsequently, on August 16, 2011, 11 defendant faxed a letter to plaintiff, indicating that “in order to prepare a responsive pleading,” it would 12 need certain information relating to plaintiff’s cell phone. (#19 Exhibit B). 13 Plaintiff agreed to disclose her telephone number and service provider, but insisted that once 14 defendant “confirmed that [she] was sent the text message(s)” and/or whether she gave prior express 15 consent to receive the text message, that it forward any documentation confirming this. (#19 Exhibit 16 C). On August 26, 2011, defendant emailed plaintiff, stating that it needed an additional 25 days to 17 further investigate and prepare a responsive pleading, and requesting the actual electronic file from 18 plaintiff’s phone. (#19 Exhibit D). Plaintiff sent an email informing defendant that a company called 19 BinBit, Inc. currently owned the short code, and agreeing to the 25-day extension, “provided (1) 20 [defendant] agrees to produce any contract it had with BinBit during the relevant period; and (2) 21 [defendant] consents to [p]laintiff issuing two subpoenas in advance of the parties’ Rule 26(f) 22 conference.” (#19 Exhibit E). 23 Plaintiff explained to defendant that it desired to subpoena both BinBit, Inc. and Neustar, Inc. 24 a/k/a the Common Short Code Administration, the entity which licenses short codes in the United 25 States. Id. Thereafter, defendant drafted a “Motion for Enlargement of Time to Respond to Complaint 26 and To Allow Discovery from Two Non-Parties” and emailed it to the plaintiff. (#19 Exhibit G). 2 1 Within the proposed motion, the parties sought the 25-day extension and informed the court that the 2 “parties have agreed that certain discovery [prior to a rule 26 conference] would facilitate the response 3 to this complaint by providing both the [p]laintiff and the [d]efendant with the opportunity to subpoena 4 information from two non-parties regarding the text message...” Id. 5 However, this motion was never filed because the defendant was concerned with filing a motion 6 that sought two forms of relief. (#19 Exhibit H). Therefore, defendant revised its motion to seek only 7 an enlargement of time, and notified plaintiff on August 30, 2011, that “[she] may, of course, with [its] 8 agreement, file a motion with the court to serve subpoenas now, notwithstanding the Rule 26, as [they] 9 discussed.” Id. Later that day, defendant advised plaintiff that it was filing the motion for enlargement 10 of time (#10). (#17-3 Exhibit C). Additionally, defendant stated that plaintiff should “send...a 11 proposal” if she desired to file a motion to allow discovery outside Rule 26, but that it was the “local 12 practice to not do motions when there is an agreement[,] but instead[,] to do a stipulation of the parties 13 which the court signs as an order at the bottom.” Id. Thereafter, plaintiff filed a non-opposition (#11) 14 to defendant’s motion, and the court granted the motion on September 2, 2011 (#12). 15 On September 9, 2011, plaintiff emailed notices of the subpoenas for Neustar and BinBit to 16 defendant Quepasa. (#19 Exhibit J). Defendant, allegedly unhappy with the issuance of the subpoenas, 17 tried to meet and confer with plaintiff regarding the issue. (#17). After several failed attempts, 18 defendant asserts that it was forced to file the present motion to quash the subpoenas (#17) on 19 September 15, 2011. (#18). 20 Motion To Quash 21 Defendant contends that the subpoenas should be quashed because there was no written 22 stipulation as required by Rule 26(d)(1) for their issuance prior to a discovery conference; plaintiff failed 23 to provide prior notice of the subpoenas as required by Rule 45(b)(1); and the subpoenas are unduly 24 burdensome under Rule 45(c), because they seek irrelevant information. (#17). 25 A. Stipulation To Issue Subpoenas 26 Pursuant to Federal Rule of Civil Procedure 26(d)(1), “[a] party may not seek discovery from 3 1 any source before the parties have conferred as required by Rule 26(f), except...when authorized by 2 these rules, by stipulation, or by court order.” (emphasis added). Plaintiff contends that the parties had 3 an agreement to issue the subpoenas, as evidenced by the emails between them (#19 Exhibits A-H). The 4 court agrees, and finds that a reasonable inference can be drawn from both the emails and the drafted 5 motion, that the parties had an agreement regarding the 25-day extension and the issuing of the two- 6 subpoenas prior to the discovery conference. (#19 Exhibit G)(“the parties have agreed that certain 7 discovery [prior to a rule 26 conference] would facilitate the response to this complaint by providing 8 both the [p]laintiff and the [d]efendant with the opportunity to subpoena information from two non- 9 parties regarding the text message...”). Although it is apparent from the emails (#17-3 Exhibit C) that 10 the parties were under the impression that they were required to file a motion in order to conduct 11 discovery outside the Rule 26 time limits, as discussed below, this could be accomplished by agreement 12 between the parties without the court’s approval. 13 Under Local Rule 7-1(b), “[n]o stipulations relating to proceedings before the court except those 14 set forth in Fed. R. Civ. P. 29 shall be effective until approved by the court. Any stipulation that would 15 interfere with any time set for completion of discovery, for hearing of a motion, or for trial, may be 16 made only with the approval of the court.” Here, the stipulation regarding the subpoenas would not 17 interfere with the completion of discovery, a hearing on a motion, or a trial. Therefore, the question 18 remaining is whether the stipulation is among those that do not require the court’s approval as provided 19 in Rule 29. Pursuant to Rule 29(b), “[u]nless the court orders otherwise, the parties may stipulate that: 20 other procedures governing or limiting discovery be modified -- but a stipulation extending the time for 21 any form of discovery must have court approval if it would interfere with the time set for completing 22 discovery, for hearing a motion, or for trial.” Fed. R. Civ. P. 29(b) (emphasis added). 23 As previously stated, the stipulation here would not interfere with discovery, a hearing, or trial. 24 The stipulation in question does, however, deal with modifying “procedures governing...discovery,” 25 because it pertains to the issuance of subpoenas prior to a discovery conference, which is a normally 26 conducted discovery procedure. Thus, pursuant to LR 7-1(b) and Fed. R. Civ. P. 29(b), the parties here 4 1 were able to, and did, stipulate without the court’s approval. Therefore, the plaintiff did not violate the 2 requirements of Rule 26(d)(1), because it had defendant’s authority to issue the subpoenas pursuant to 3 the agreement of the parties. Fed. R. Civ. P. 26(d)(1). 4 B. Notice Required By Rule 45(b)(1) 5 Pertinent to this motion, Rule 45(b)(1) provides that “[i]f the subpoena commands the 6 production of documents, electronically stored information, or tangible things or the inspection of 7 premises before trial, then before it is served, a notice must be served on each party.” (Emphasis 8 added). Here, the subpoenas request the production of documents and electronically stored information 9 from both non-parties. Thus, prior notice to the defendant is required. 10 In its motion, defendant argues that it was not properly notified prior to the non-parties being 11 served. Defendant concedes (#17), however, that on September 9, 2011, it received, via email and 12 regular mail, notices of subpoenas for both BinBit and Neustar (#19 Exhibit I). According to plaintiff’s 13 counsel’s declaration, service of the subpoena on Neustar was effectuated by LaSalle Process Servers 14 on September 16, 2011, and service on BinBit had not yet been effectuated as of the date of filing the 15 opposition. (#19 Exhibit 1). Therefore, plaintiff did comply with Rule 45(b)(1), by providing notice 16 to defendant prior to serving the subpoenas on the non-parties. 17 C. 18 A party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or 19 expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(c). The court may impose sanctions 20 on the issuing party who fails to comply with this rule. Id. Here, the defendant asserts that the 21 subpoenas are unduly burdensome because they seek information that is irrelevant to the present 22 complaint, and that sanctions are appropriate. (#17). This court disagrees. 23 Unduly Burdensome Under Rule 45(c) The subpoena issued to BinBit requests: 24 DOCUMENT REQUEST NO. 1 25 All Documents and ESI Related To All Text Messages sent by You or on Your behalf using the Shortcode "79545" containing the term "Quepasa" from January 1, 2008 to the present. All Documents produced in response 26 5 1 to this request shall identify the following: 2 a. the date of transmission of the Text Message(s) b. the Third-Party assigned the Shortcode; c. the Content of the Text Message(s); d. the Cellular Telephone number(s) to which the Text Message(s) were sent; e. the Delivery Status of the Text Message(s) sent. 3 4 5 DOCUMENT REQUEST NO. 2 6 All documents and ESI Related to or referencing the company Quepasa and/or any of its products or services. This Document Request includes but is not limited to: 7 8 10 a. All Documents and correspondence between You and Quepasa concerning the transmission of Text Messages; and b. All contracts, agreements, or understandings between You and Quepasa. 11 DOCUMENT REQUEST NO. 3 12 All documents and ESI identifying any Persons You contracted with to send Text Messages on Your behalf from Shortcode 79545, including but not limited to any cellular telephone company, aggregator, or other intermediary. 9 13 14 (#17-1 Exhibit A). 15 The subpoena issued to Neustar requests: 16 DOCUMENT REQUEST NO. 1 17 All Documents in Your possession and/or control that constitutes, manifests, contains, incorporates, reflects, pertains, indicates, discusses, mentions, and/or concerns the application for Shortcode 79545 from January 1, 2008, to present. 18 19 20 (#17-2 Exhibit B). 21 Defendant asserts that these requests are overly burdensome, because they seek information 22 about time periods and text messages that are not relevant to this lawsuit. (#17). It argues that the 23 subpoenas are “fishing expeditions for [p]laintiff’s counsel to identify potential class plaintiffs, not for 24 this case, but for other cases that [p]laintiff’s counsel might want to bring against other defendants.” 25 Id. 26 With regard to the first request of BinBit, the plaintiff has limited its request to those messages 6 1 using the short code “79545" and containing the term “Quepasa.” (#17-1 Exhibit A). Therefore, this 2 information directly relates to the complaint in this case, and is relevant. Further, the portion of that 3 request seeking the telephone numbers of those who received the text messages, relates to the identities 4 of the purported class members in this case, and are therefore relevant. In the second request, plaintiff 5 again limits its inquiry to documents referencing the defendant in this case, Quepasa. Id. Thus, this 6 information is relevant. In the third request, plaintiff is seeking documents relating to others that BinBit 7 contracted with to send text messages using the short code “79545.” Id. This information relating to 8 who utilized this short code is not only relevant in determining who the appropriate defendant in this 9 case would be, but is also essential to Quepasa’s defense that it never utilized such a code. In Neustar’s 10 subpoena, plaintiff once again requests documents relating to the short code “79545.” As with the 11 previous requests, this information is relevant in determining whether defendant Quepasa ever used the 12 short code. 13 Thus, the court finds that each of plaintiff’s requests is relevant to the issue before the court and 14 is not overly burdensome. In light of the court’s ruling, defendant’s request for sanctions is not 15 warranted. 16 Accordingly, and for good cause shown, 17 IT IS ORDERED that defendant Quepasa Corporation’s Emergency Motion To Quash 18 19 Subpoena Issued By Plaintiff To Non-Parties BinBit, Inc. And Neustar, Inc. (#17) is denied. DATED this 22nd day of September, 2011. 20 21 22 LAWRENCE R. LEAVITT UNITED STATES MAGISTRATE JUDGE 23 24 25 26 7
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