In Gusman v. Comcast Corp. 2014 WL 1340192 (S.D.Cal. 2014), Magistrate Judge Bartik issued orders on discovery rulings in a TCPA class action. The facts were as follows.
Plaintiff commenced this putative class action on May 2, 2013 by filing a complaint alleging that Comcast violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. (ECF No. 1.) Specifically, Plaintiff alleges that “[b]eginning in February 2013, Defendant began contacting Plaintiff, sometimes as many as ten times in a single day, with an automatic telephone dialing system (‘ATDS’) as defined by 47 U.S.C. § 227(a)(1) using an ‘artificial or prerecorded voice’ as prohibited by 47 U.S.C. [§ ] 227(b)(1)(A) in order to discuss Defendant’s prescription services with Plaintiff.” ( Id. at 4:22–26.) Plaintiff further alleges he informed a representative on each occasion “that Plaintiff was not a current subscriber to Defendant’s servicers nor had Plaintiff ever been a subscriber.” ( Id. at 5:4–6.) Plaintiff did not provide his cellular telephone number, which he obtained on or about February 1, 2013, to Comcast at any time. ( Id. at 5:7–11.) Plaintiff further alleges Comcast’s use of an ATDS to contact Plaintiff was not done for emergency purposes, the calls constitute solicitations under the TCPA, and “Plaintiff did not provide prior express consent to receive calls or messages on Plaintiff’s cellular telephones.” ( Id. at 5:21–26.)
The District Court denied Plaintiff’s motion to compel out-bound call lists.
Plaintiff seeks a court order compelling Comcast to produce (1) its outbound dial list of calls made to consumers using an ATDS (ECF No. 29 at 5:23–8:2), and (2) documentary evidence of prior express consent. ( Id. at 8:4–10:25.) Comcast contends Plaintiff’s request for the outbound dial list is overbroad in light of Comcast’s 22 million subscribers and because the request fails to distinguish between different categories of calls, i.e., collection calls versus marketing calls. ( Id. at 16:10–17:6.) Comcast also contends the request is not limited to calls made from any particular type of dialing equipment or calls placed from the particular geographic division as the calls placed to Plaintiff. ( Id. at 17:7–14.) . . . Rather, Plaintiff received collection calls made to a phone number that had previously been assigned to a Comcast subscriber, but was later assigned to Plaintiff, a non-subscriber. Thus, according to Comcast, this case involves a “recycled” phone number. (ECF No. 29 at 15:2–5; ECF No. 29–2 at 2:13–3:2.) Although this distinction goes to the merits of Plaintiff’s allegations and will be decided at the proper time in this case, it is important for discovery purposes because the scope of Plaintiff’s proposed class is not entirely clear. On one hand, the Court is bound by the class definition provided in the Complaint. See Ortiz v. McNeil–PPC, Inc., 2009 U.S. Dist. LEXIS 39584, at *2 (S.D.Cal. May 8, 2009). On the other hand, the “recycled” phone number facts presented by Comcast, which are not disputed by Plaintiff, do not justify imposing a significant burden on Comcast to produce an outbound dial list of marketing calls when it appears this case involves collection calls. Accordingly, although the outbound dial list is relevant to the issue of numerosity, under the circumstances of this case it is appropriate to DENY Plaintiff’s request for the list because “the discovery sought … can be obtained from some other source that is more convenient, less burdensome, or less expensive” and Plaintiff “has had ample opportunity to obtain the information by discovery in this action.”
The District Court denied Plaintiff’s Motion to Compel prior express consent documents because, as a wrong party call recipient, Plaintiff lacked standing to challenge Comcast consent documents.
Plaintiff seeks to compel Comcast to produce all documentary evidence of prior express consent, which Plaintiff characterizes as an affirmative defense rather than an element of his TCPA claim. (ECF No. 29 at 8:15–9:16.) Alternatively, Plaintiff seeks, at a minimum, “the blank customer contracts and other blank forms used by Defendant to purportedly obtain prior express consent.” ( Id. at 9:17–18.) Plaintiff claims “[t]hese blank contracts/forms will assist Plaintiff in demonstrating whether the language on the forms are sufficient to obtain prior express consent for Defendant to make automated and or prerecorded calls to the putative class members.” ( Id. at 9:20–24.) Absent this documentation, Plaintiff claims he will be prejudiced if Comcast later uses unproduced consent documents in opposing Plaintiff’s anticipated motion for class certification. ( Id. at 10:2–19.) In opposition to Plaintiff’s request, Comcast argues that because Plaintiff “has never been a Comcast subscriber [he] lacks standing to challenge the efficacy” of Comcast’s subscriber agreements. ( Id. at 13:23–24.) Comcast also contends that it is Plaintiff that must prove lack of consent as an element of his TCPA claim. ( Id. at 20:5–14.) . . . Upon consideration of this issue, the Court concludes that Comcast has satisfied its discovery obligation. Plaintiff agrees with Comcast that he was not a Comcast subscriber at the time he received the phone calls at issue. (ECF No. 1 at 5:4–6.) Moreover, Comcast has produced its Agreement for Residential Services and its Customer Privacy Notice. At this stage of the case it is premature to order Comcast to provide any more specific express consent documents, particularly in light of the fact that Plaintiff, at this juncture, has failed to clearly define the putative class definition.
The District Court ordered Plaintiff’s counsel to produce his retainer and fee agreements.
Comcast seeks an order compelling Plaintiff to produce his retainer and fee agreements with counsel in this case and in any other TCPA class actions initiated by Plaintiff. “The Ninth Circuit has repeatedly held retainer agreements are not protected by the attorney-client privilege or work product doctrine.” Hoot Winc, LLC v. RSM McGladrey Fin. Process Outsourcing, LLC, 2009 U.S. Dist. LEXIS 103045, at *5 (S.D.Cal. Nov. 4, 2009) (citing Ralls v. United States, 52 F.3d 223, 225 (1995); United States v. Blackman, 72 F.3d 1418, 1424 (9th Cir.1995); In re Michaelson, 511 F.2d 882 (9th Cir.1975)); see also Carrizosa v. Stassinos, 2006 U.S. Dist. LEXIS 66358, at *3 (N .D. Cal. Aug. 31, 2006) (stating that under Ninth Circuit law, fee agreements generally fall outside the scope of the attorney-client privilege). “Communications between attorney and client that concern the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege.” Paul v. Winco Holdings, Inc., 249 F.R.D. 643, 654 (D.Idaho Feb. 27, 2008) (quoting Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992)). However, “correspondence, bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege.” Id. Here, the Court concludes Plaintiff’s retainer and fee agreement with counsel in this case is relevant to the Rule 23(a)(4) analysis of whether Plaintiff is an adequate representative of the class. See Rolex Emps. Ret. Trust v. Mentor Graphics Corp., 136 F.R.D. 658, 666 (D.Or.1991);