District Court (Cal.) Prohibits Further Discovery from Dialer Manufacturer on Whether its Product is an ATDS Due to Other District Court Opinions Saying that It Is Not

In In re Portfolio Recovery Assocs., LLC, No. 11md02295 JAH – BGS, 2021 U.S. Dist. LEXIS 216747, at *32-34 (S.D. Cal. Nov. 9, 2021), Judge Houston denied TCPA plaintiffs’ request for further discovery from the dialer manufacturer on whether its product was an ATDS.

On May 27, 2021, this Court granted Plaintiffs’ motion seeking to reopen discovery for the limited purpose of conducting discovery from a representative of Avaya and showing that the Avaya Predictive Dialer used by Defendant meets the requirements of an automatic telephone dialing system (“ATDS”) as explained in Facebook, Inc. v. Duguid, 141 S.Ct. 1163, 209 L. Ed. 2d 272 (2021). The Court granted the motion and directed Plaintiffs to complete the limited discovery on or before July 26, 2021.1 Following the Court’s order, Plaintiffs sent written discovery to Defendant and Avaya Technologies. In response, Defendant filed a motion to quash which was set for hearing before the Honorable Bernard G. Skomal, United States Magistrate Judge. Shortly, thereafter, Plaintiffs filed a motion to conduct discovery before this Court in which they sought an order permitting discovery from Defendant and maintains the Avaya software is connected to Defendant’s PRANet database. Finding the issues overlapped with those pending before Judge Skomal, this Court denied the motion without prejudice to filing the motion after Judge Skomal’s ruling on the motion to quash. On July 23, 2021, Judge Skomal denied the motion to quash. On July 26, 2021, Plaintiffs filed a renewed motion to conduct discovery, seeking an order permitting discovery from Defendant and 120 days to complete all discovery. Defendant filed an opposition to the motion on August 11, 2021, and Plaintiffs filed a reply on August 17, 2021. Defendant filed a notice of supplemental authority in support of its opposition and Plaintiffs filed a response. Defendant filed additional notices of supplemental authority thereafter.

Judge Houston denied Plaintiff’s request for further discovery.

The cases cited by Defendant clearly discuss how the numbers dialed were generated as part of the larger discussion surrounding the plaintiffs’ argument that a defendant’s system qualifies as an ATDS if it uses a random or sequential number generator to store numbers from a preproduced list to be called at a later time or to determine what order to call numbers from a preproduced list. Here, Plaintiffs make the same argument in seeking leave to conduct discovery. They suggest the use of a random or sequential number generator to store numbers that were not produced using a random or sequential number generator is sufficient to support a claim under the TCPA. Plaintiffs cite no cases supporting their theory and this Court’s own research found none.  The Court finds the decisions in the district court cases discussed above persuasive. As noted by those courts, the context of the footnote on which Plaintiffs rely involves the Supreme Court’s discussion of how technology may both produce and store randomly generated numbers in response to the plaintiffs’ superfluity argument.3Facebook, 141 S.Ct. at 1172. The discussion includes an example of 1988 technology provided by an amici curiae brief filed by the Professional Association for Customer Engagement that stored numbers to be dialed later. Id. The reference to the brief demonstrates the “preproduced list” mentioned in the footnote is generated through the use of a random or sequential number generator. Borden, 2021 U.S. Dist. LEXIS 153086, 2021 WL 3602479, *5; Barry, 2021 U.S. Dist. LEXIS 129573, 2021 WL 2936636 *6; Hufnus, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, *1; Timms, 2021 U.S. Dist. LEXIS 108083, 2021 WL 2354931, *7.  The context of the opinion in Facebook also fails to support Plaintiffs’ theory. In determining that the definition of an ATDS requires “a device [ ] have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator,” the Supreme Court found the prohibitions of the act “target[ed] a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.” Facebook, 141 S.Ct. at 1171. The definition of an autodialer does not concern systems that randomly or sequentially store and dial numbers from a list that is generated in a non-random and non-sequential way.  Plaintiffs do not allege their numbers were generated from a list that was produced in a random or sequential way as they allege Plaintiffs are consumers from which Defendant attempted to collect debts through repeated phone calls and Defendant obtained Plaintiffs’ numbers through the use of skip-tracing services. Amended Complaint ¶¶ 25, 37. The request to conduct discovery to support a rejected theory is futile. Accordingly, Plaintiffs fail to demonstrate good cause to support their application.