District Court (Cal.) Denies Forensic Examination of TCPA Plaintiff’s Electronic Device(s), But Allows Discovery Into Plaintiff’s Affiliation(s) as Professional Plaintiff

In Moser v. Health Insurance Innovations, Inc., No. 17CV1127-WQH(KSC), 2018 WL 6735710 (S.D. Cal. 2018), the District Court denied a TCPA defendant’s motion to allow an inspection of the plaintiff’s electronic device(s).  

“Forensic examination is generally regarded as a drastic step….” Motorola Solutions., Inc. v. Hytera Commc’ns Corp., 314 F. Supp. 3d 931, 939 (N.D. Ill. 2018). . . . Here, there are insufficient facts to support an order compelling plaintiff to turn over all or even some of his electronic devices so that HII can have them examined and inspected by a forensics expert. In support of the request, HII does represent that plaintiff testified in his deposition that his computer automatically deletes his browsing history. [Doc. No. 87, at p. 14.] Standing alone, however, this is not enough to justify a full scale forensic examination of all or even some of plaintiff’s electronic devices. . . .Therefore, by the time this Order is entered, plaintiff should have produced copies of his monthly phone bills. [See Doc. No. 99, at p. 9 (requiring any party withholding documents or information from production in response to another party’s discovery requests while awaiting the entry of a confidentiality Protective Order to produce any such documents or information within ten days).] To the extent plaintiff’s electronic devices do contain specific, relevant electronically stored information, HII can make a Rule 34 request for disclosure of that electronically stored information in “a reasonably usable form” without requiring plaintiff to provide HII with direct access to his devices. Fed.R.Civ.P. 34(b)(2)(E).  Presumably, if plaintiff visited certain websites and then clicked on consents and provided his telephone number, HII would have other means available to discover that information. As noted above, for example, plaintiff stated in the Joint Motion that a representative of defendant Donisi Jax testified in his deposition that if Donisi Jax was involved in any of the alleged calls to plaintiff, it would be easy for Donisi Jax to obtain “call information and purported consents” for any such calls. [Doc. No. 87, at p. 16.] In addition, as outlined more fully below, HII’s Interrogatory No. 8 asks plaintiff to identify any websites he visited and provided his personal information, such as his telephone number, and this Order compels plaintiff to respond to this interrogatory. [Doc. No. 87, at p. 22.]. Based on the foregoing, the Court finds that HII’s request for an order compelling plaintiff to make his electronic devices available to HII for an examination by a forensic expert must be DENIED.

The District Court allowed discovery into the TCPA Plaintiff’s affiliations and status as a “professional plaintiff”.

In support of its suspicions about plaintiff, HII submitted a Declaration signed by counsel, which states as follows: “According to the Better Business Bureau (BBB), Marketing Support Systems provides telemarketing services, lead generation, and marketing campaigns” and “is owned by [plaintiff].” [Doc. No. 87-1, at pp. 2-3.] Attached to the Declaration is a business profile for Marketing Support Systems from the Better Business Bureau’s website. [Doc. No. 87-1, at pp. 62-64.] The profile indicates that Marketing Support Systems “offers lead generation and marketing campaigns” and has been accredited by the Better Business Bureau since June 30, 1998. [Doc. No. 87-1, at p. 62.] The profile indicates that the owner of the business is “Ken Moser.” [Doc. No. 87-1, at p. 63.] The phone number shown on the profile for this business is the same as one of the cellular telephone numbers listed in the First Amended Complaint that allegedly received autodialed and pre-recorded calls in violation of the TCPA. [Doc. No. 3, at pp. 9-11.]  HII also alleges that the same cell phone number is advertised as a business phone number in the Yellow Pages. [Doc. No. 87, at p. 27.] In addition, HII suspects that plaintiff “uses a porting or call forwarding system to manufacture TCPA claims.” [Doc. No. 87, at p. 27.] However, the Declaration submitted by HII does not fully explain the basis for this belief or how plaintiff could have used “a porting or call forwarding system” or registration of his telephone numbers “to manipulate TCPA violations.” [Doc. No. 87, at p. 13, 27.]. Plaintiff does not dispute HII’s evidence of his involvement in the telemarketing industry. Nor does plaintiff directly address HII’s theory that his telephone numbers could have somehow been registered in order to “manipulate” TCPA violations. [Doc. No. 87, at p. 15-20.] Rather, plaintiff disputes the relevance of the requested documents and information on several other grounds. First, plaintiff contends that the TCPA does not distinguish between calls to businesses and personal telephone numbers so the only facts that matter are whether autodialed or prerecorded voice calls were transmitted without consent. [Doc. No. 87, at pp. 28, 38.] Second, plaintiff believes that dissemination of any of plaintiff’s telephone numbers in connection with a business could not constitute consent under the TCPA. [Doc. No. 87, at p. 29.] Third, plaintiff believes it is irrelevant whether he is a knowledgeable TCPA litigant or “professional plaintiff,” because courts have concluded there is no “amateur’s only” rule in TCPA litigation. [Doc. No. 87, at pp. 19, 33, 38.] Fourth, plaintiff argues that defenses such as inequitable or wrongful conduct do not justify the requested discovery, because HII has not cited any case law indicating these common law defenses apply in TCPA cases. [Doc. No. 87, at p. 16.] In any event, plaintiff states that he “has already produced his phone bills,” which indicate whether a particular phone number is used in connection with a business. [Doc. No. 87, at pp. 25-26.]  As plaintiff contends, some Federal Courts have rejected arguments that a “professional plaintiff” either lacks standing to sue or cannot adequately represent the interests of a class in consumer litigation. In Murray v. GMACMortgage Corporation, 434 F.3d 948 (7^th Cir. 2006), for example, the Seventh Circuit rejected an argument that a “professional plaintiff,” who had previously filed nine suits, was not a suitable representative to adequately represent the rights of the proposed class in a Fair Credit Reporting Act case, because she and her counsel would only be interested in the “quick buck” from a settlement. Id. at 954. In other words, being a so-called “professional plaintiff” does not, standing alone, disqualify an individual from serving as a class representative.  In a more recent case, Cunningham v. Rapid Response Monitoring Services, Inc., 251 F.Supp.3d 1187 (M.D. Tenn. 2017), the defendants argued that the “professional TCPA plaintiff” lacked constitutional standing to sue as there was no real injury. According to the defendants, the plaintiff was “cultivating” claims, because he faked interest in the calls to learn the identity of the callers; was “very good at eliciting information from the callers that he could later use in [his] lawsuit; and was motivated by “the prospect of reaping a reward rather than simply vindicating or receiving restitution for his constitutionally sufficient injury.” Id. at 1194-1195. The District Court disagreed, concluding that “[n]othing in the Constitution…requires a plaintiff to be a naif. Litigation is not college athletics: there is no ‘amateurs only’ rule.” Id. at 1195, quoting Murray v. GMAC, 434 F.3d at 954. A “professional plaintiff” does not forfeit his right to sue just because the alleged calls “were not truly unwanted.” Id. at 1196.] “The determinative issue” is not the “professional plaintiff’s” motivations for filing suit “but whether he was injured.” Id. at 1196. On the facts alleged, an ordinary consumer “would have established a concrete and particularized injury-in-fact based on the defendants’ intrusion upon his rights to privacy and seclusion.” Id. According to the District Court, the appropriate constitutional question on the issue of standing is “whether a protected right was invaded, not whether the plaintiff subjectively considered the injury worth the eventual reward.” Id. at 1196.  On the other hand, in cases involving more compelling facts and circumstances, some courts have reached different results. Particularly in light of the supporting Declaration and facts submitted by HII, some of these other cases support HII’s contention that the types of documents and information it seeks in response to the above-quoted discovery requests are relevant. As HII contends, the requested discovery may be key to resolving issues such as standing and/or typicality (i.e., whether the named plaintiff’s claims are typical of the class so that he “will fairly and adequately protect the interests of the class” as required under Federal Rule 23(a)(4)).  In CE Design Limited v. King Architectural Metals, 637 F.3d 721 (7^th Cir. 2011), for example, the Seventh Circuit vacated a class certification order in a TCPA case about “unsolicited” fax advertisements and remanded the case for further proceedings. Id. at 723, 728. The defendant was a manufacturer of metal building components who faxed about 500,000 advertisements as part of a marketing campaign. Id. at 724. The plaintiff, a small civil engineering firm that had also filed about 150 class actions under the TCPA as part of its business plan, received two fax advertisements from the defendant. Id. at 723. The defendant argued that the plaintiff’s claims were not typical of the class, because the plaintiff would be subject to a “consent” defense that would either be peculiar to the plaintiff or to only a small subset of the plaintiff class. There was evidence indicating the plaintiff advertised its fax number on its website and also authorized the publication of its fax number in a directory known as the Blue Book of Building and Construction. To be listed in the directory, the plaintiff signed a subscriber form agreeing to allow contact via fax by other subscribers of the directory. Id. at 725. Therefore, the Seventh Circuit concluded there was a substantial question as to whether the representative plaintiff had expressly consented to the fax communications in question. As a result, the Seventh Circuit ruled there was an error in treating the issue of “express consent” as “immaterial” to the determination of whether the representative plaintiff’s claims were typical under Federal Rule 23(a) and whether the representative plaintiff could adequately represent the interests of the class. Id. at 727.  In another case, Stoops v. Wells Fargo Bank, 197 F.Supp.3d 782 (W.D. Pa. 2016), the District Court concluded the TCPA plaintiff lacked standing and granted summary judgment in favor of the defendant. Id. at 796-806. Citing the plaintiff’s lengthy deposition testimony, the District Court found the plaintiff was unable to establish Article III and/or prudential standing. Id. The plaintiff lived in Pennsylvania but purchased and maintained more than thirty pre-paid cell phones with Florida telephone numbers. She specifically requested telephone numbers for areas in Florida she knew were economically depressed and would have a high percentage of people who would default on loans or credit cards. Id. at 787-789, 799. Two of the cell phone numbers previously belonged to customers of defendant who had defaulted on their loans and had consented to receiving auto-dialed calls or calls with a prerecorded voice. Id. at 788. The defendant made calls to these numbers in attempts to reach its customers. Id. at 789. The plaintiff admitted she filed TCPA actions as a business; purchased the cell phones in order to manufacture TCPA claims and for no other purpose; and deliberately purchased the phones to cause them to ring so she could file TCPA lawsuits. Id. at 799, 800-801. The plaintiff also testified she waited for the phones to ring and sometimes answered the calls and told the callers to stop but she hoped the calls would continue so she could treble her claims for damages. Id. at 799-800. As a result of this evidence, the District Court concluded that the plaintiff did not have Article III standing, because the calls did not adversely affect her privacy rights and she did not suffer a true nuisance as she was not required to “tend to unwanted calls.” Id. at 800-802. Alternatively, the District Court concluded that even if the plaintiff did in fact suffer an injury-in-fact and could establish Article III standing, the outcome of the case would be the same, because the plaintiff lacked prudential standing. According to the District Court, the plaintiff’s interests, “which include purchasing cell phones with the hope of receiving calls from creditors for the sole purpose of collecting statutory damages, are not ‘among the sorts of interests [the TCPA was] specifically designed to protect.’ ” Id. at 803-806, quoting Chem. Serv., Inc. v. Envtl. Monitoring Sys. Lab., 12 F.3d 1256, 1262 (3d Cir. 1993).  In Nghiem v. Dick’s Sporting Goods, Inc., 318 F.R.D. 376 (C.D. Cal. 2016), the District Court also concluded that a plaintiff’s attorney who filed a TCPA lawsuit as the class representative was not a typical member of the class and could not adequately represent the interests of the class. Id. at 381-383. The attorney plaintiff, who had filed a number of TCPA lawsuits on behalf of clients, signed up to receive mobile text alerts offered through the defendant’s marketing program, which were allegedly sent out using an automatic telephone dialing system. Id. at 378. A few months after subscribing for the text alerts, the attorney plaintiff unsubscribed so he would no longer receive the text alerts. Id. Apparently because of a glitch in the defendant’s programming, the attorney plaintiff continued to receive the mobile alerts after opting out. Id. at 378-379. However, the circumstances suggested the attorney acted on inside information, as he signed up for the text alerts shortly after his law firm began sending demand letters to the defendant’s subsidiary on behalf of several clients about a similar issue. The attorney plaintiff then opted out of the text messages shortly after his law firm sent the final demand letter. There was also evidence indicating the attorney had no interest in the products being marketed in the text alerts and signed up only to find a TCPA violation that could support a lawsuit. Id. at 381-382. As a result, the defendant argued that the attorney plaintiff could not have suffered an invasion of privacy, because he “hoped” he would continue to receive the text alerts after he opted out. Id. at 382. The District Court declined to certify a class, concluding that the attorney plaintiff’s claims were not typical of the proposed class as required under Federal Rule 23(a). In reaching this conclusion, the District Court relied on Ninth Circuit precedent indicating that the typicality requirement in Federal Rule 23(a) is not satisfied if there is a “danger” that a defense “unique” to the representative plaintiff could become the focus of the litigation and result in a disadvantage to absent class members. Id. at 382, citing Hanonv. Dataproducts Corp., 976 F.2d 497, 508 (9^th Cir. 1992). The District Court concluded there was such a “danger” in this case, because it was apparent the defendant would “argue at every opportunity that [the attorney plaintiff] fabricated this lawsuit.” Nghiem, 318 F.R.D. at 382. VP Based on the foregoing, this Court cannot conclude that the types of documents and information HII seeks in response to Interrogatory No. 9 and Document Request Nos. 30, 48, 49, 50, and 51 are irrelevant to matters raised by the parties’ pleadings. HII is entitled to discover documents and information about the use and dissemination of the telephone numbers identified by plaintiff in the First Amended Complaint. On the other hand, as outlined more fully below, Interrogatory No. 9 and Document Request Nos. 12, 30, 48, 49, 50, and 51 are all overly broad as written. Therefore, the Court finds that HII’s request for an order compelling plaintiff to produce documents and provide further responses to these request must be GRANTED in part and DENIED in part as outlined more fully below.