District Court (Fla.) Orders Sweeping Discovery in TCPA Class Action, Skeptical of Defendant’s Claim that Manual File Review is Required

Plaintiff wants to know the following information about collection calls made by Defendants during a four year period: (1) the phone numbers called; (2) the dialing system used to make each call; (3) the date on which each call was made; (4) the number of times each phone number was called; (5) where Defendants got the phone numbers they called; (6) for each call, whether it produced a live answer, prerecorded message, or report of a wrong number; (7) whether the recipient of the call told Defendants not to call the phone number again; (8) the account notes concerning each call; and (9) financial information to show when payments for the accounts associated with each phone number were made (Doc. 98 at 5-9). Defendants make approximately 137,000 telephone calls per month to account holders (Doc. 98 at 13). They represent that the account notes associated with all of the calls made during the last four years total in the tens of millions (Doc. 89 at 12; Doc. 98 at 27). Defendants also advise that the account notes do not include all of their databases and documents that might have to be searched to locate the information Plaintiff wants (Doc. 89 at 12). Defendants maintain the ledgers showing what is owed, how much is paid and when in a different system which also contains account notes (Doc. 98 at 18). Defendants can download from the dialing system the total number of calls made, and they can produce a list of the phone numbers called, the dates and times the calls were placed and if the call was answered, the duration of the call (Doc. 98 at 15-16, 18, 20). But, according to Defendants, to obtain all of the information requested they must pull up each individual account and manually review it (Id.). They are adamant that the account notes are only searchable manually (Id., at 28). During a FED. R. CIV. P. 30(b)(6) deposition, a Director of Collections for Macy’s Credit Operations, Inc., a wholly-owned subsidiary of FDS testified: “So the system is not searchable. I cannot – – as a collector, when I worked accounts, I am not able to – – I have to scroll through every note. I have to review every single note as far back as I wanted to go and needed to go. There’s no way to pull specific aspects of the note.” . . . It took an administrative assistant in the Macy’s Law Department 135 minutes to review and redact personal identifying information from the account notes of 17 people (Doc. 104, ¶¶ 1,3). A paralegal in the same department needed 120 minutes to review and redact personal identifying information from the account notes of 11 individuals (Doc. 104-2, ¶¶ 1, 3). After considering the magnitude of Plaintiff’s requests, Defendants estimate the cost to review and redact the information Plaintiff seeks will be between $1,533,169 and $1,864,665

[Plaintiff] has filed the Declaration of Jeffrey A. Hansen in support of her contention that the information she seeks is readily accessible (Doc. 122-2). Mr. Hansen is the principal of Hansen Legal Technologies, Inc., which, among other things, investigates and analyzes electronic data (Id., ¶ 4). He claims “extensive experience dealing with data warehousing, including data warehousing related to telemarketing and autodialers in general.” (Id., ¶ 5). Mr. Hansen says he is familiar “with the procedures involved in such practices, and I have personally engaged in data warehousing regarding the compilation of certain lists, including demographic and target audience lists for telemarketing, and have personally repaired defective lists to eliminate improperly formatted and corrupted data.” (Id.). Mr. Hansen also claims knowledge of the autodialer used by Defendants, the design of the databases within the dialer, and the information that should be contained within those databases (Id., ¶¶ 11-12). He states that the databases in the autodialer maintain pertinent “records in a very easy to use, and easy to export format.” (Id., ¶ 12). Mr. Hansen “estimate[s] it would take 10-15 minutes to export the data from the … dialer.” (Id., ¶ 13). He also estimates that it “would take less than an hour to export” the data Plaintiff wants from all of the collection notes (Id., ¶ 14).

Plaintiff’s evidence is sufficient to persuade the Court that Defendants’ business records may not be as difficult to search as they contend. Accordingly, the motion to compel is GRANTED as follows.  First, the parties should be guided by the following practice pointers: The successful use of any automated search method or technology will be enhanced by a well-thought-out process with substantial human input on the front end. Parties and their counsel should make a good faith attempt to cooperate when determining the use of particular search and information retrieval methods, tools, and protocols (including keywords, concepts, computer-or technology-assisted review and other types of search parameters and quality control measures. The Sedona Conference Journal Volume 15, Fall 2014, The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery pages 224-225.  With these pointers in mind, counsel and the parties’ experts shall hold a FED. R. CIV. P. 26(f) conference within 21 days from the rendition of this Order. At the conference they will discuss how Defendants’ business records will be made available for search and retrieval by Mr. Hansen. They will also discuss how information not included in items (1)-(9) above, or that is confidential, is removed and redacted from the production to be made to Plaintiff. The Court expects Plaintiff to identify the specific fields of information she needs and agree to the use of anonymizers to conceal account holders’ identities and other personal information. The Court also expects Plaintiff to agree to reasonable precautions to protect the integrity and confidentiality of Defendants’ systems and procedures. In like manner, the Court expects Defendants to agree on a reasonable methodology that gives Mr. Hansen the access he needs to attempt to search and retrieve relevant information. This may mean that Mr. Hansen is given direct access to Defendants’ systems, that he is provided with mirror images, or that some other reasonable methodology is employed. All of these activities will be conducted subject to an appropriate confidentiality agreement signed by all involved on the Plaintiff’s side. If the parties cannot resolve these matters between themselves within the next 35 days, then on motion filed the Court will hold an evidentiary hearing where it will hear from the experts and then dictate the process and procedure to the parties.  Defendants’ concerns about the subjective interpretation of the account note entries and the creation of “fail-safe” classes are issues to be dealt with later in the case. For now, discovery must get underway so that the case can move forward.