In Cabrera v. Government Employees Ins. Co., 2014 WL 2999206 (S.D.Fla. 2014), Magistrate Judge Seltzer tailored a discovery order in a TCPA class action to the revised class definition proposed during the discovery Motion to Compel proceedings. Judge Seltzer made numerous rulings granting and denying discovery, some of which are highlighted below.
Request Nos. 5,FN9 33, and 34 seek production of documents, communications and ESI pertaining to proposed Class Members giving prior express consent for Bell or for GEICO to make telephone calls to them. By definition, individuals that have consented to such calls are excluded from the proposed class. Indeed, making a telephone call with the prior express consent of the individual called is not prohibited by the TCPA. See 42 U.S.C. § 227(b) (1). Moreover, Defendant Bell has asserted “prior express consent” as an affirmative defense. See Answer and Affirmative Defenses ¶ 60 (DE 14). The Court, therefore, finds that the documents and information sought by the Requests are relevant to the claims and defenses herein and, therefore, should be produced. Accordingly, the Motion with respect to Request Nos. 5, 33, and 34 is GRANTED. Within fourteen (14) days of the date of this Order, Defendant Bell shall produce all documents in its possession, custody, and/or control that are responsive to these requests. If Defendant does not have documents responsive to any of these Requests, it shall amend its responses to so indicate. [Requests] seek production of documents, communications, and ESI relating to how Defendants GEICO and Bell searched for, located, or acquired the proposed Class Members’ telephone numbers. To be a member of one of the four subclasses described in the Complaint, an individual, inter alia, must have not provided Defendants, or any third party acting on their behalf, with the telephone number called by Defendants. Arguably, documents showing how Defendants obtained the telephone numbers of a proposed class member would be relevant or would lead to the discovery of admissible evidence as to whether a proposed class member had not provided Defendants with his telephone number. But, as noted above, Plaintiff now seeks to certify only one class, defined as follows: “All persons in the United States to whom (1) a telephone call was placed through LiveVox that featured an artificial or prerecorded voice [;] (2) to a phone number provided to LiveVox by Bell LLC; (3) whose contact information was provided to Bell LLC by GEICO; and (4) who never provided Bell LLC, GEICO, or any third party acting on their behalf, prior consent to place telephone calls to the phone number called.” Motion to Certify Class at 1 (DE 66). To be a member of the now proposed class, by definition, Defendant Bell must have obtained the proposed class member’s telephone number from GEICO. Membership is no longer dependent on how GEICO obtained such telephone number. The undersigned, therefore, concludes that the information sought by these Requests is not relevant or likely to lead to admissible evidence with respect to the current proposed class. Accordingly, the Motion with respect to Request Nos. 9, 10, 32, 39, 40, 41, and 42 is DENIED. Request No. 16 seeks production of all policies, procedure, and manuals relating to Bell making subrogation telephone calls. The Court finds that this Request is overbroad now that Plaintiff has narrowed the proposed class. The Court, therefore, will require Defendant Bell to produce only policies, procedure, and manuals relating to Bell making subrogation telephone calls using an artificial or prerecorded voice. Accordingly, within fourteen (14) days of the date of this Order, Defendant Bell shall produce all documents in its possession, custody, or control responsive to Request No. 16 as limited by the Court. If Defendant does not have documents responsive to this Request, it shall amend its response to so indicate. Request Nos. 23, 29, and 37 seek production of documents, communications, and/or ESI relating to complaints about the telephone calls made by Bell. The Court finds that these documents are relevant or are likely to lead to the discovery of admissible evidence. Accordingly, the Motion with respect to Request Nos. 23, 29, and 37 is GRANTED. Within fourteen (14) days of the date of this Order, Defendant Bell shall produce all documents in its possession, custody, and/or control that are responsive to these requests. If Defendant does not have documents responsive to any of these Requests, it shall amend its responses to so indicate. Request Nos. 24, 31, and 38 seek production of documents and communications relating to the telephone dialing equipment used to make the calls to the proposed Class Members, including, inter alia, those relating to the make and model of the equipment, as well as such technical information as to how telephone numbers were inputted, processed, and stored in the equipment, and the ability of the equipment to dial multiple telephone numbers simultaneously and to store or produce telephone numbers using a random or sequential number generator. The Court fails to see the relevance of the information sought. Moreover, Defendant Bell has indicated in its response that it does not have documents responsive to these Requests. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd ., 171 F.R.D. 135, 152 (S.D.N.Y.1997) ( “Under ordinary circumstances, a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody or control, should resolve the issue of failure of production….”). Accordingly, the Motion with respect to Request Nos. 24, 31, and 38 is DENIED. . . . ¶ . . . Interrogatory No. 8 asks Defendant Bell to describe all telephone dialing equipment used to make telephone calls to the proposed Class Members, including the “telephone dialing equipment utilized to record, create, and play the pre-recorded robocalls and/or artificial voice based on robocalls, the software and hardware utilized, the coded commands utilized to make the robocalls, and any automated processes that make the robocalls without human intervention.” Similarly, Interrogatory No. 9 asks Bell for technical information about such telephone dialing equipment. Although Defendants (or LiveVox) may have used telephone dialing equipment to make robocalls to the Proposed Class Members, the Court does not find that technical information as to how that equipment operates is relevant or likely to lead to the discovery of admissible evidence. Accordingly, the Motion with respect to Interrogatory Nos. 8 and 9 is DENIED. Request Nos. 51 and 52 seek production of documents, communications, and ESI “sufficient to identify the total top-line revenue Bell received as the result of making phone calls on behalf of GEICO.” Although Plaintiff has not proffered the purpose for seeking such information, presumably it would purportedly pertain to the issue of damages. Under the TCPA, a private plaintiff may recover (in addition to injunctive relief) his “actual monetary loss” from each violation of the statute or “$500 in damages for each such violation, whichever is greater.” FN11 42 U.S.C. § 227(b)(3)(B). The Complaint alleges that Plaintiff and the proposed class members have suffered actual harm because they “must frequently pay for the calls they receive or incur a usage allocation deduction from their calling plans.” Complaint ¶ 3 (DE 1). The Complaint also alleges that Plaintiff and the proposed class members are entitled to statutory damages—“a minimum of $500 in damages for each violation of the TCPA.” If Plaintiff and the proposed class members elect actual damages, the amount to be awarded (should Defendants be found liable) would be based on the actual harm suffered. And if Plaintiff and the proposed class members elect statutory damages, the award would be based on the number of telephone calls made to them without their prior express consent. The Court, therefore, cannot find that the “total top-line revenue” Bell received is relevant or likely to lead to admissible evidence. According the Motion with respect to Request Nos. 51 and 52 is DENIED.