District Court (Cal.) Follows Thrasher Discovery Order in TCPA Class Action; Denies “Skip Tracing” Discovery Because Third Party Numbers Would Never Be Downloaded From Account Notes Into the Dialer and Dialed without Human Intervention

In Gossett v. CMRE Financial Services, 2015 WL 6736883, at *1 (S.D.Cal.,2015), Magistrate Judge Stormes followed her previous decision on a motion to compel in Thrasher v. CMRE Financial Services, since the same defendant was involved, and the same counsel were involved as in Thrasher.  

The parties presented this court with a discovery dispute regarding CMRE’s responses to Gossett’s first set of interrogatories and requests for production. This court already determined many of the same legal issues in an order addressing a discovery motion filed in Thrasher v. CMRE Financial Services, Inc., Case No. 14cv1540 BEN (NLS). See Dkt. No. 28. The same attorneys who represented plaintiff Thrasher represent plaintiff Gossett in this case. CMRE is using the same defense attorneys here that it used in Thrasher.  Because this court already determined in Thrasher many of the same legal issues presented here for exactly the same claims, the court relies heavily on its March 13, 2015 Order Determining Joint Motion for Resolution of Discovery Dispute No. 1 issued in Thrasher (Thrasher Order). For the following reasons, the court determines the discovery dispute, and GRANTS in part and DENIES in part Gossett’s request for further supplemental responses.

Interestingly, however, Juddge Stormes denied “skip tracing” discovery on the basis that third party numbers were never downloaded from the account notes into the dialer.  In other words, those calls could not be placed without human intervention.

CMRE objects to these requests because they (1) are overbroad and unduly burdensome; (2) are premature; and (3) invade privacy rights and seek confidential and proprietary information, including information that may be protected against disclosure under HIPAA. Notwithstanding these objections, CMRE said it searched diligently for responsive documents but did not have any non-privileged, responsive documents within its possession, custody or control. Gossett argues the information is relevant to counter the affirmative defense of express consent and that numbers obtained through skip tracing or number trapping cannot constitute consent.  CMRE explains that its internal processes provide that numbers that are obtained through skip-tracing are not uploaded to Global Connect. Lawrence Decl. ¶¶ 23–27. Instead, those numbers are input to a “UW field” in the account notes, and will only be dialed by a human that picks up the phone and physically dials the number. Lawrence Decl. ¶ 27. As for numbers that are “trapped” via Caller ID, CMRE says “there is no mechanism to submit to the Global Connect system these Caller ID numbers.” Lawrence Decl. ¶ 29. Further, these phone numbers are only maintained in CMRE’s work cards and can only be obtained through a manual review of each account. Lawrence Decl. ¶¶ 28–32.  Based on CMRE’s sworn statements that numbers obtained via skip tracing and number trapping are never given to Global Connect for automated calls, and that those numbers are only physically dialed by humans as opposed to an automatic telephone dialing system, this court sustains CMRE’s objections and denies Gossett’s motion to compel further responses to RFP nos. 33 and 34.