District Court (Fla.) Says to TCPA Plaintiff: “No Site Inspection for You!”

In Walker v. Credit Protection Ass’n, LP, 2015 WL 5522000, at *3-4 (M.D.Fla.,2015), Judge Sneed refused a TCPA Plaintiff’s efforts to obtain a site inspection of the Defendant’s call center and telephone system.

Specifically, the Notice of Site Inspection requested “[t]hat Defendant permit Plaintiff to enter Defendant’s Call Center and to inspect and to photograph, examine Defendant’s telephone system and any telephone related software used by Defendant in anyway for the purpose of making phone calls to consumers, including the named Plaintiff in the 48 months preceding the institution of this action.”  Plaintiff noted that “[t]he term ‘Defendant’s Call Center’ is a generic term used to reference the physical place/location from which Defendant made the complained of calls to Plaintiff’s phone” and that “[t]he term ‘telephone system and software’ is a generic term used to reference the exact phones and/or the entirety of the telephonic equipment used by Defendant or Defendant’s agents to make calls or to assist in making calls to consumers, including Plaintiff .”

Judge Sneed denied the request.

Plaintiff contends that an on-site inspection of Defendant’s call center is necessary for her to meet her burden of establishing that Defendant used an ATDS to place calls to Plaintiff’s phone and to refute Defendant’s defense that it did not use an ATDS. Defendant, though, has stated to Plaintiff and the Court that “it is willing to stipulate for purposes of this case only, that it will not assert as a defense as to whether the phone system used to place calls to plaintiff constitutes an ATDS.” Therefore, given this stipulation, the relevance of Plaintiff’s request is marginal at best.  However, even if Defendant still intended to contest whether it used an ATDS, the Court is required, under Rule 26(b)(2)(C), to limit Plaintiff’s Rule 34 request. The requested inspection of Defendant’s call center would require both counsel to travel from Florida to Dallas, Texas. Defendant would need to arrange for an escort for Plaintiff, during the site inspection, and the inspection itself may result in the interruption of the work of many of Defendant’s employees. Additionally, Defendant’s telephone system and related software contain non-public information regarding third parties.  Notably, prior to serving the Notice of Site Inspection, Plaintiff had not attempted to obtain information regarding Defendant’s call center, telephone system, and telephone related software by other means, such as through the service of interrogatories or deposition of Defendant’s corporate representative. These other means would be more convenient, less burdensome, and less expensive than an on-site inspection of Defendant’s call center.  As such, the Court finds that the burden of the site inspection outweighs the value of the information that Plaintiff seeks, particularly in light of Defendant’s stipulation as to the use of an ATDS.