District Court (Cal.) Denies Production of Call Recordings in Call-Recording Class Action; Says that Unlike Dialer Lists, the Call Recordings Contain Confidential Information

Plaintiffs assert that the requested audio recordings “are highly relevant to several requirements for a class certification motion,” including numerosity, ascertainability, commonality, predominance, and manageability. MTC at 16-20. Regarding numerosity, Plaintiffs explain that they need this discovery because “Transactel has not indicated in a formal discovery response the total number of outgoing calls to customers of TURSS to their cell phones with a California area code during the 1-year period prior to the filing of the Complaint.” Id. at 17-18. Defendant Transactel responds that this “need” no longer exists because Transactel’s consultant has analyzed the data and “determined that approximately 906 calls were made to cell phone numbers with California area codes during the relevant period.” . . . In light of Mr. Totino’s declaration, the Court agrees that the requested discovery – audio recordings of the calls – has minimal relevance to the numerosity requirement. Moreover, Plaintiffs have not explained the relevancy of the content of the calls, as opposed to a list of the calls or the total number of calls.

Plaintiffs’ argument with respect to ascertainability is that they “should be allowed to analyze the call recordings to determine how many there are, how many involve actual conversations (rather than static or no actual conversation), and for how many a call recording advisement was given (if any).” MTC at 18. In support, Plaintiffs state that courts have found lists of telephone numbers called to be relevant to substantiating class allegations. MTC at 18 (citing Stemple v. QC Holdings, Inc., 2013 WL 10870906 (S.D. Cal. July 15, 2013)). . . .Defendant emphasizes that the Stemple case, relied on by Plaintiffs, involved the production of an outbound dial list, not audio recordings, and that the court found that the outbound dial list was “not particularly sensitive.” Oppo. at 11 (citing Stemple, 2013 WL 10870906, at *4). Defendant argues that the call recordings at issue in this dispute appear to contain confidential information, as the calls were made in connection with requests for copies of their credit reports which contain confidential and private information. Oppo. at 9, 11; see also SAC, ¶ 49.  The Court agrees with Defendant that the audio recordings likely contain confidential and private information and that when a motion to compel is made seeking confidential information, resolution “requires a balancing of the need for the particular information against the claimed privacy right.” See, e.g., Shaw v. Experian Information Solutions, Inc., 306 F.R.D. 293, 301 (S.D. Cal. 2015). Here, Plaintiffs have established minimal relevance. Because Defendant has submitted evidence that there were 906 calls and has admitted that it did not have a policy of giving a call recording advisement on outgoing calls made for TURSS [See Oppo. at 10; see also Totino Supp. Decl., at ¶ 3], the only one of Plaintiffs’ arguments that remains is the need to determine whether the call involved static, no conversation, or an actual conversation. Plaintiffs do not explain how the determination of static/no conversation/actual conversation affects the class determination, other than perhaps to reduce the number of relevant calls or verify the number of calls involving actual conversation. Plaintiffs do not provide any evidence indicating that this is a significant issue and that the information cannot be obtained via less-intrusive discovery. Given the minimal relevance and the likelihood that the conversations contain sensitive and private information, the Court finds that Plaintiffs have not established that this issue justifies the requested discovery. Moreover, the Court notes that Plaintiffs did not provide any case law supporting its argument regarding the production of the contents of the calls, rather than just a list of the numbers called or the total number of calls. . . .The Court acknowledges that outbound dial lists generally are relevant to numerosity and commonality, and therefore discoverable, in TCPA cases. See Gaines v. Law Office of Patenaude & Felix, A.P.C., 2014 WL 3894348, at *2 (S.D. Cal. June 12, 2014); Knutson v. Schwan’s Home Serv., 2013 WL 3746118, at *7-8 (S.D. Cal. July 15, 2013); Stemple v. QC Holdings, 2013 WL 10870906, at *2. Here, however, Plaintiffs are seeking the production of audio recordings of calls of 906 putative class members, which is different and much broader and more intrusive than outbound dial lists.