*1 Before the Court for resolution is Plaintiff Carrie Beets's (“Plaintiff's”) Motion to Compel Production of Documents and Responses to Interrogatories (“Motion”) filed on February 22, 2019 in the joint stipulation format pursuant to Local Rule 37-2. (Dkt. No. 78.) On March 13, 2019, Plaintiff filed a Supplement to the Motion. (Dkt. No. 83.) The Court held oral Argument on Plaintiff's Motion on March 27, 2019 and took the matter under submission. (See Dkt. No. 86.)

Having considered the parties' joint statement, Plaintiff's supplemental statement, the arguments presented at the March 27, 2019 hearing, as well as the Court's file, for the reasons discussed below the Motion is GRANTED in part and DENIED in part.

RELEVANT BACKGROUND

Plaintiff commenced this action against Defendant Molina Healthcare, Inc. (“Defendant”) on July 28, 2016 for alleged violations of the Telephone Consumer Protection Act (“TCPA”). (Dkt. No. 1.)[1] Plaintiff brings this action on behalf of a putative class of individuals who allegedly received unsolicited telephone calls from Defendant using an “autodialer and/or an artificial or prerecorded voice” without giving prior consent to receive such calls. (Complaint ¶ 1.) Plaintiff alleges that on April 12 and April 13, 2016, Defendant called Plaintiff on her cellular telephone number “at least twice using an autodialer and/or an artificial or prerecorded voice. Plaintiff did not give Defendant prior express written consent to make these calls. Nor did she provide Defendant with her cellular telephone number.” (Id. at ¶ 13.) Plaintiff also alleges that prior to receiving these calls, she: (1) never had any contact with Defendant; (2) never consented in writing, or otherwise, to receive autodialed telephone calls from Defendant; and (3) told Defendant to stop calling, but the calls continued. (Id. at ¶ 15.)

Plaintiff's class action allegations propose the following three nationwide classes:

Complaint ¶ 18.

*2 Id. at ¶ 20.

Id. at ¶ 22.

On June 22, 2018, Defendant filed an Answer to the Complaint. (Dkt. No. 56.) The deadline for Plaintiff to file a motion for class certification is May 24, 2019. (Dkt. No. 76.)

LEGAL STANDARD

Motions to compel are governed by Rule 37 of the Federal Rules of Civil Procedure, which provides in relevant part that “a party may move for an order compelling disclosure or discovery.” FED. R. CIV. P. (a)(1). The Motion addresses objections Defendant raised in its responses to Plaintiff's Amended Requests for Production of documents and Amended Interrogatories. Rule 34 provides that a party may serve upon any other party a request for production of any designated documents or electronically stored information within the party's possession, custody, and control that is within the scope of Rule 26. FED. R. CIV. P. 34(a)(1)(A). Rule 33 provides that “[a]n interrogatory may relate to any matter that may be inquired into under Rule 26(b).” FED. R. CIV. P. 33(a)(2). When a party fails to respond to interrogatories or fails to provide adequate responses to interrogatories as required under Rule 33, the requesting party may move for an order compelling further responses to interrogatories. FED. R. CIV. P. 37(a)(3)(B)(iii). Similarly, when a party fails to produce documents as required under Rule 34, the party seeking discovery may move for an order compelling production. FED. R. CIV. P. 37(a)(3)(B)(iv).

Under Rule 26 of the Federal Rules of Civil Procedure, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. FED. R. CIV. P.26(b)(1). As amended in December 2015, Rule 26(b)(1) identifies six factors to be considered when determining if the proportionality requirement has been met, namely, the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id. While Rule 26defines relevance broadly for purposes of discovery, the relevance standard nevertheless, still has “ultimate and necessary boundaries.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).

*3 “Prior to class certification under Rule 23, discovery lies entirely within the discretion of the Court.” Artis v. Deere & Co., 276 F.R.D. 348, 351 (N.D. Cal. 2011) (citing Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009)); see also FED. R. CIV. P. 23. The Ninth Circuit has stated that the “advisable practice” is “to afford the litigants an opportunity to present evidence as to whether a class action [is] maintainable. And, the necessary antecedent to the presentation of evidence is, in most cases, enough discovery to obtain the material, especially when the information is within the sole possession of the defendant.” Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977). In exercising its discretion with respect to precertification discovery, the Court should consider “the need for discovery, the time required, and the probability of discovery providing necessary factual information.” Id.

THE MOTION

A. The Disputed Discovery Requests

The Motion concerns Defendant's responses to: (1) Plaintiff's August 8, 2018 Amended First Set of Requests for Production and Documents (the “RFPs”); and (2) Amended First Set of Interrogatories (the “ROGs”). (Motion at 1.) Specifically at issue are Defendant's responses to RFP Nos. 3-4, 7, 9-16, and 20-21; and ROG Nos. 5-7, 9, 11, and 1. (Id. at 9-21.) The central dispute concerns whether Defendant must provide company-wide information in response to the RFPs and ROGs or only information pertaining to a single June 2016 call campaign. (Id.)

The discovery requests seek information and documents that Plaintiff believes are relevant and necessary to its motion for class certification.[2] Defendant wants to limit the information it will provide in response to the RFPs and ROGs to information concerning a June 2016 Health Management calling campaign. (Motion at 27.) Defendant contends that the two April 2016 calls alleged in the Complaint “definitively cannot support a TCPA claim” because both calls were “live calls manually dialed by Molina.” (Id.) As a result, Defendant maintains that the only potential basis for a nationwide class of call recipients that Plaintiff could represent is a single call placed to Plaintiff during a June 2016 Health Management group call campaign (the “June 2016 Campaign”). (Id.) Defendant located this call while searching for information to respond to Plaintiff's discovery requests and disclosed it to Plaintiff. (Id.) Defendant objects to providing discovery beyond this single calling campaign on grounds of relevance, proportionality, and burden.

For purposes of the Motion, the parties grouped the contested issues into four categories:

(Motion at 21 et seq., see Section IV generally.)

Defendant limited its interrogatory responses and document production to information concerning the “campaign at issue for the June 15, 2016 call to Plaintiff's alleged phone number.” (Motion at 2-3.) Plaintiff contends that Defendant's qualified responses are improper and based on Defendant's determinations about the nature of the class that may or may not be certified in this action. (Motion at 24-25.)

B. Plaintiff's Position

Plaintiff argues that given its proposed class definitions, Plaintiff is entitled to “call-related discovery from [Defendant] for all outbound dialed calls by [Defendant] for the period July 2012 through the present (regardless of topic or content).” (Motion at 9.) Plaintiff contends Defendant's objections are without merit. Further, Plaintiff objects to Defendant's limited responses because, Plaintiff maintains, “[i]f Defendant called an individual's cellphone using automatic telephone dialing equipment without any form of consent then it is a violation of the TCPA.” (Motion at 3.)

Plaintiff seeks an order compelling Defendant to produce documents and information related to all calling campaigns initiated through Defendant's telephonic dialing system, including documents reflecting outbound calling logs, the identify of call recipients, and do-not-call lists for all divisions of Molina Healthcare from 2012 to the present.

C. Defendant's Objections

Defendant “provides managed health care services under the Medicaid and Medicare programs” to approximately 3.9 million members in 14 States and Puerto Rico. (Motion at 3.) Defendant insists that Plaintiff's discovery requests seek information and documents not relevant to any claims or defenses in this action, and are “massively overbroad,” unduly burdensome and not proportional to the needs of the case. (Id. at 5.)

Defendant has identified more than 100 other calling campaigns conducted by its various health care groups since 2016. (Declaration of Frederick J. Klorczyk III (”Klorczyk Decl.”), Ex. 6, Letter from Defendant's Counsel dated January 11, 2019 (“we are aware of more than 100 call campaigns at Molina since 2016 to present.”) [Dkt. No. 78-2].) Defendant argues that responding without qualification to Plaintiff's discovery “would involve approximately 6 million telephone records dating back to 2016,” and “sweep in millions of calls made to millions of members from a variety of Molina departments for disparate healthcare-related purposes.” (Id.) Defendant argues that because “the only Molina department that called Plaintiff with a dialer was Health Management,” the broad company-wide discovery that Plaintiff seeks is inappropriate and not proportional. (Id.)

The Health Management Group is described as a unique team within Molina that “provides health information to Molina members.” (Declaration of Edgar Aburto (“Aburto Decl.”) ¶ 11 [Dkt. No. 78-4].) Defendant contends that the two calls Plaintiff allegedly received in April 2016 were both “valid attempts to reach a Molina member.” (Motion at 3.) Defendant maintains that Health Management Group calls to members are not made bu autodialing, but because of the nature of the subject matter, these calls are made by healthcare personnel. (Id. at ¶¶ 13-15.) Nonetheless, Defendant states that while conducting an “investigation to determine whether it had records of any other calls to Plaintiff's alleged number that could potentially state a TCPA claim, Molina identified and disclosed a single call to Plaintiff's alleged number in June 2016.” (Id. at 4.) That call was placed using a “dialer as part of a campaign by the Molina Health Management team to reach approximately 6,500 members and inform them of available health services.” (Id. at 4.)

*5 Defendant states “[n]umerous teams at Molina call Molina members for a wide variety of health care purposes, including welcoming them to Molina, assessing them, educating them about available health services (like the call at issue in this case), and informing them of their membership's expiration and need to renew.” (Id. at 3.) Defendant indicates that it has “produced its call records showing all of the approximately 6,500 members involved in the June 2016 campaign. Molina also searched for other Health Management campaigns involving autodialing or prerecorded messages in the class period (of which there were none, since that team ordinarily does not use the dialer).” (Id. at 4.)

Since 2016, Defendant has conducted “more than 100 call campaigns in addition to the Health Management Group campaign” that contacted the phone number identified in the Complaint. (Aburto Decl. ¶ 16.) According to Defendant, these other campaigns “vary in terms of their geography, language, and topic” and are run by “different components within Molina other than the Health Management Group.” (Id.) Defendant also indicates that “many of these campaigns are run by Molina's Call Center, which is a separate team from the Health Management Group.” (Id.)

Defendant argues that given the differences between various Molina groups and the varying purposes of their call campaigns, “Plaintiff's proposed classes would not be certifiable because they would be largely comprised of Molina members – of which Plaintiff is not.” (Id.) Plaintiff, on the other hand, insists that its discovery should not be limited by the Defendant's assumptions of what potential class(es) may or may not ultimately be certified in this case.

DISCUSSION

A. The Nature of Precertification Discovery

As a threshold issue, the Court notes that when analyzing precertification discovery there is not always a bright line between class certification related issues and merits issue. Generally, discovery prior to certification is often limited to issues necessary to determine “whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation.” See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359 (1978). But this limit not always easily defined. “Although discovery on the merits is usually deferred until it is certain that the case will proceed as a class action, the merits/certification distinction is not always clear,” because facts relevant to the class determination “frequently will overlap with facts relevant to the merits of the case.” Gusman v. Comcast Corp., 298 F.R.D. 592, 595 (S.D. Cal. 2014) (citing Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 2451-52 (2011) (noting Rule 23(a) analysis “will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped.”)).

Here, the district court expressly declined to bifurcate discovery. (See Klorczyk Decl., Ex. 9.) Therefore, the Court is mindful that some leeway should be afforded with respect to merits related issues as part of the precertification discovery determination.

B. Issue No. 1 – Defendant's Objections to Multi-campaign, Company-wide Discovery

a. The Disputed RFPs (RFP Nos. 3-4, 7, 9-16, 20, 21)

The RFPs at issue seek “ALL DOCUMENTS” concerning: “ALL TELEPHONE DIALING EUQIPMENT” that Defendant (or anyone acting on Defendant's behalf) “used to make PHONE CALLS during the CLASS PERIOD” (RFP No. 3); “ALL software, software applications, software packages, software systems, and software programs [Defendant] used to make PHONE CALLS during the CLASS PERIOD” (RFP No. 4); “ALL training materials, manuals or scripts issued during the CLASS PERIOD to anyone who makes PHONE CALLS on [Defendant's] behalf, including all versions and drafts” (RFP No. 7); “government complaints, inquiries, or investigations about PHONE CALLS during the CLASS PERIOD” (RFP No. 9); consumer complaints about PHONE CALLS during the CLASS PERIOD (RFP No. 10); to “IDENTIFY ALL CALL RECIPIENTS who received PHONE CALLS in which [Defendant] used TELEPHONE DIALING EQUIPMENT” during the CLASS PERIOD (RFP No. 11); to IDENTIFY the total number of PHONE CALLS made during the CLASS PERIOD to CALL RECIPIENTS in which Defendant used TELEPHONE DIALING EQUIPMENT (RFP No. 12); to IDENTIFY ALL CALL RECIPIENTS during the CLASS PERIOD (RFP No. 13); sufficient to IDENTIFY the total number of CALL RECIPIENTS during the CLASS PERIOD” (RFP No. 14); DOCUMENTS and ESI, including DATABASES, identifying or listing the names, addresses, telephone numbers and/or email addresses of anyone who made a REMOVAL REQUEST during the CLASS PERIOD” (RFP No. 15); “ALL COMMUNICATIONS concerning or referencing any internal do-not-call lists created or used by [Defendant] during the CLASS PERIOD” (RFP No. 16); ALL phone numbers used by Defendant “to make PHONE CALLS during the CLASS PERIOD” (RFP No. 20; and “a call log of all PHONE CALLS that [Defendant] made during the CLASS PERIOD” (RFP No. 21).

*6 Defendant objects to each of these RFPs on numerous grounds, but most particularly as “overly broad and not proportional to the needs of the case because none of the calls alleged in Plaintiff's complaint were made with an automated telephone dialing system or using an artificial or prerecorded voice.” (See, e.g., Motion at 10 (Response to RFP Nos. 3, 4, 7).) Defendant responded that it will only produce responsive documents, including the User Guide, for the telephone system used by the Health Management/Health Education groups; and training materials, manuals, or scripts used by employees in the HEDIS[3] and/or Health Management/Health Education groups “who made phone calls on behalf of Molina during the relevant period.” (Id. at 10-11.) Similarly, with respect to Plaintiff's requests for documents concerning government and consumer complaints about telephone calls, Defendant objects to the requests to the extent they seek information concerning groups beyond the HEDIS and/or Health Management/Health Education groups. (Id. at 11-13 (Response to RFP Nos. 9-10).)

Defendant raised similar objections to Plaintiff's RFPs seeking documents sufficient to identify all call recipients, the total number of phone calls made, total number of call recipients, removal requests, do-not-call-lists, all phone numbers Defendant used to make phone calls and a call log for all calls Defendant made between July 2012 and the present. (Id. at 13-18 (Response to RFP Nos. 11-16, 20, 21.)

b. The Disputed ROGs (ROG Nos. 5-7, 9, 11-12)

The disputed ROGs ask Defendant to identify: “by manufacturer and model number, ALL TELEPHONE DIALING EQUIPMENT” Defendant used to make calls during the CLASS PERIOD and the dates of use (ROG No. 5); “ALL software, software applications, software packages, software systems, database and/or programs” Defendant used to make CALLS during the CLASS PERIOD and the dates of use (ROG No. 6); “ALL telecommunications carrier/provider networks” that Defendant used to make CALLS during the CLASS PERIOD (ROG No. 7); “ALL third party companies that made CALLS” on Defendant's behalf during the CLASS PERIOD (ROG No. 9); all file formats that Defendant “used for outbound dial list(s), call logs or any other database containing information about when and to whom CALLS were made during the CLASS PERIOD” (ROG No. 11); and the total number of REMOVAL REQUESTS that Defendant receiving during the CLASS PERIOD (ROG No. 12).

As with its responses to the RFPs, Defendant objected to providing information responsive to the ROGs beyond information concerning “the campaign at issue for the June 15, 2016 call to Plaintiff's alleged number.” (See, e.g., Motion at 15 (Response to ROG No. 5).) Defendant provided information regarding its calling software, telecommunications carriers, file formats for outbound dial lists and call logs during the time of the calls alleged in Plaintiff's Complaint and with respect to “the campaign at issue for the June 15, 2016 call to Plaintiff's alleged phone number, but not for the period dating back to 2012. (Motion at 19-21 (Response to ROG Nos. 6, 7, 9, and 11).) Regarding the total number of removal requests, Defendant responded that “it continues to investigate” but its investigation is limited to “the campaign at issue for the June 15, 2016 call to Plaintiff's alleged phone number.” (Id.at 21 (Response to ROG No. 12).)

c. Relevance

*7 Plaintiff argues that the discovery sought regarding all calling campaigns across Defendant's various healthcare groups, including groups that did not call Plaintiff, is relevant because Plaintiff “intends to move for at least a subset of the class identified in paragraph 20 of the Complaint, namely all people who were not the intended recipient of Defendant's calls, i.e., wrong numbers.” (Motion at 2.) Defendant emphasizes that it has “already provided Plaintiff with “documents related to every call campaign using a dialer run by the Health Management Group from 2012 to the present.” (Id. at 26 (emphasis in original).)

Defendant insists that discovery beyond the single 2016 campaign should not be required because Plaintiff cannot certify a class based on the calls she received in June 2016. Defendant contends that the company-wide information Plaintiff seeks is irrelevant because a class relating to the June 2016 campaign is “the only putative class that Plaintiff can conceivably represent.” (See Klorczyk Decl., Ex. 4 at 2, 3.) Defendant's argument misses the point and effectively asks this Court to decide the merits of class certification, which it cannot do. See Doherty v. Comenity Capital Bank & Comenity Bank, Case No.: 16cv1321-H-BGS, 2017 WL 1885677, at *3 (S.D. Cal. May 9, 2017 (citation omitted) (motion to compel production of call logs granted and rejecting the defendant's objections as efforts to “litigate Rule 23 class certification prematurely.”)

During oral argument, Defendant urged that no case law supports granting discovery of company-wide calling campaigns. Plaintiff, relying on several authorities from other districts, urges that “[c]ourts routinely certify classes that span multiple campaigns.” (Motion at 25.) Plaintiff points to West Loop Chiropractic & Sports Injury Ctr., Ltd v. N. Am. Bancard, LLC, Case No. 16-cv-5856, 2017 WL 404896 (N.D. IL Jan. 30, 2017), in which the court permitted discovery relating to faxes sent out by the defendant that the plaintiff in the putative class did not receive.

In West Loop, the defendant objected to providing discovery related to faxes other than those the plaintiff received. The magistrate judge overruled the defendant's relevance objection, concluding, “the information [Plaintiffs] seek is relevant to a decision concerning the scope and definition of any class that might be certified in this case.” Id. at *1. The court also noted that “[a] number of courts in TCPA cases have certified classes similar in definition and scope to the class Plaintiffs here plan to ask the court to certify, that is, a class that includes people who did not receive the exact same fax that the named plaintiff received but received faxes of a similar nature during a four year statute of limitations look-back period.” (Id. (citations omitted).) West Loop, while not binding on this Court, is persuasive for purposes of analyzing the appropriate scope of discovery here.

Under Rule 26 as amended, relevance is determined in reference to the claims and defenses at issue in the case. FED. R. CIV. P. 26(b)(1). Here, an essential element to establish liability for a TCPA violation is that the Defendant made calls using an autodialer and/or prerecorded or artificial voice without the recipient(s) giving prior written consent. (Complaint ¶¶ 1-3, 20 (emphasis added).) To the extent that Plaintiff proposes a potential “wrong number class” of individuals who received autodialed and/or prerecorded or artificial voice calls from Defendant without giving prior written consent, Plaintiff's requests for company-wide information are indeed relevant to determining whether the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23 can be satisfied. Thus, with respect to many of the discovery requests at issue here, this Court concurs with the reasoning in West Loop that “Plaintiffs' discovery requests here pass the threshold relevance test as the information... is relevant to their argument concerning the nature and scope of the class they say should be certified in this case.” West Loop, 2017 WL 404896, at *2. Even so, not all of Plaintiff's requests satisfy this relevance threshold.

*8 The disputed RFPs and ROGs in this matter are not limited to identifying information pertaining to autodialed and/or prerecorded/artificial voice calls or calling mechanisms. Plaintiff acknowledges that it “seeks call-related discovery from Molina for all outbound dialed calls by Molina for the period July 2012 through the present (regardless of topic or content).” (Motion at 9 (emphasis added).) Plaintiff also demands information about allcalling systems, software, call logs, dialing mechanisms, and call recipients, company-wide since 2012. (See e.g., RFP Nos. 4, 7, 12, 13; ROG Nos. 6, 9, 11.) Notably, the definition of “PHONE CALL” in the RFPs is “any calls made by YOU, your agents or anyone else acting on your behalf.” (Klorczyk Decl., Ex. 9 at p.4.) This definition would require Defendant to produce documents and information concerning every single telephone call for a period of more than 7 years, including business calls between employees, with vendors, as well as all of its more than 3.9 million members without any limitations. In addition, Plaintiff's request for all training materials provided to anyone who “makes calls PHONE CALLS on [Defendant's] behalf” would include every receptionist, administrative assistant, and arguably every other person employed by Defendant around the United States who received training to use the company's phone system. (See RFP No. 7.) Such records have no relevance to the claims or defenses at issue in this case. The limits of discovery, while broad, are not boundless. See Gusman, 298 F.R.D. at 595(“However broadly defined, relevance is not without ‘ultimate and necessary boundaries.’ ” (citing Hickman v. Taylor, 329 U.S. at 507)).

Accordingly, while the Court finds some discovery appropriate beyond the single June 2016 Campaign, to meet the relevance requirements of Rule 26, Plaintiff's requests must be limited to information related to any calling campaigns using any kind of dialer and/or prerecorded or artificial voice.

d. Proportionality

Relevance alone, however, is not determinative as to whether the company-wide discovery Plaintiff seeks here is appropriate. FED. R. CIV. P. 26(b)(1). Discovery must also be proportionate to the needs of the case. Rule 26, as amended December 1, 2015, identifies six factors the Court should consider in assessing the proportionality of discovery: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to the relevant information; (4) the parties' resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(1). The Advisory Committee Notes to the 2015 amendments explain that “[r]estoring the proportionality calculation to Rule 26(b)(1), does not place on the party seeking discovery the burden of addressing all proportionality considerations.” FED. R. CIV. P. 26 advisory committee notes (2015 amendments). Rather, “the parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id.

Defendant argues that compelling discovery beyond the June 2016 Campaign is disproportionate in light of substantial cost Defendant already incurred to identify responsive information related to the June 2016 Campaign and Defendant's contention on the merits that Plaintiff cannot represent any other nationwide class of call recipients. (Motion at 27-28.) Defendant refutes Plaintiff's assertion that Defendant made no effort to search for information beyond the single June 2016 Campaign. (Id.) Defendant states that it searched for other campaigns conducted by the Health Management group during the proposed class period, but found none. (Id. at 26.) According to Defendant, that limited process cost nearly $150,000.[4] (Id. at 27.) Defendant states that its “telephone records from 2016 forward include at least 6 million outbound calls” and the company “does not have pre-2016 dialing records.” (Id. at 28.)

Defendant presents evidence in the form of an attorney declaration that its production to date includes 1,725 documents totaling 4,886 pages. (Declaration of Kathleen Hartnett (“Hartnett Decl.”) ¶¶ 3-4 [Dkt. No. 78-3].) The collection, review, and production of these materials involved collection from 31 custodians, 71 hours of contract reviewer time, “nearly 100 hours” of outside counsel's time “focused on document review and production,” interviewing Defendant's employees as well as other discovery-related tasks, including drafting discovery responses and objections. (Id. at ¶¶ 4, 6-7.) According to defense counsel, additional discovery relating to company-wide call campaigns and call logs since 2012, could cost “10 to 100 times” the expense incurred to date, or between $1.5 million and $15 million. (Id. at ¶ 11.)

*9 During oral argument, Defendant also emphasized that requiring company-wide discovery would impose substantial burden on Defendant in terms of the cost of mounting its defense to establish why the vast majority of such company-wide calling records and calling campaigns beyond the June 2016 Campaign simply would not fall within any contemplated TCPA class definition. But the proportionality assessment considers the burden of responding to the discovery, not the burden of presenting affirmative defenses in the merits litigation. See, e.g., Nehad v. Browder, Case No. 15-CV-1386 WQH NLS, 2016 WL 3769807, at * 3 (S.D. Cal. July 15, 2016) (on motion for reconsideration, discussing cost shifting in terms of “the cost of production” in response to party's objection based on burden). Consequently, the Court is unpersuaded by the potential cost of refuting Plaintiff's claims, in other words, the potential cost of litigating its defenses on the merits, should be a basis for limiting discovery in this putative class action.

That said, even though Defendant's estimate for the cost of company-wide discovery is not supported by specific quantitative information and may be inflated, Plaintiff presents no evidence or argument to refute Defendant's assertions regarding the substantial burden that requiring broad company-wide discovery, including production of calling logs of all outbound calls since 2012 would impose. Nor does it appear from the record that Plaintiff has been willing to narrow its requests to mitigate any such burden. Furthermore, while Plaintiff relies on West Loopand Gusman as authorities supporting the relevance of company-wide class-related discovery in some TCPA cases, these cases are not conclusive as to the proportionality concerns that are of legitimate concern here.

Here, the first five proportionality factors weigh in favor of allowing discovery broader than the scope of the single June 2016 Campaign. In particular, the importance of the issues at stake in enforcing the TCPA's statutory protections for the public; the possible amount in controversy; Defendant's obvious and singular access to the relevant information concerning its calling campaigns, dialing records, and calling methods; and the importance of the discovery to resolving class certification issues all weigh strongly in favor of allowing the broad discovery sought in the disputed RFPs and ROGs. The sixth factor, however, the burden and expense of the proposed discovery weighed against the likely benefit raises concerns for the Court and requires a closer analysis.

Indeed, the proportionality analysis in West Loop cuts against allowing the multi-campaign discovery that Plaintiff seeks here. (See Motion at 30.) In West Loop, as noted, the Magistrate Judge found the plaintiff's discovery requests satisfied the “threshold relevance test” but ordered production only after finding the plaintiff had “blunted” the defendant's undue burden and proportionality arguments by limiting their request to information relating to faxes sent by no more than ten additional entities. West Loop, 2017 WL 404896, at *2. As a result, the court concluded:

Id. No such limitations have been proposed here.

Accordingly, the Court finds Plaintiff's demand for company-wide documents and information dating back to 2012 would impose undue burden and expense on Defendant and, on that basis, the discovery sought is not proportional to the needs of the case. While the Court will not limit discovery to the single June 2016 Campaign, the Court finds it appropriate to limit the discovery requests on relevance grounds to documents and information pertaining to any calling campaigns between 2012 and the present in which calls were made using any kind of dialer[5] and/or prerecorded or artificial voice.

C. Issue No. 2 – Plaintiff's RFPs and ROGs Relating to Call Logs and Removal Requests (RFP Nos. 11-16, 21; ROG No. 12)

*10 This issue addresses Plaintiff's requests for documents and information relating to Defendant's company-wide call logs (RFP Nos.11-14 and 21; Interrogatory No. 12) and removal requests (RFP Nos. 15-16). Plaintiff maintains that the information is both relevant and proportional to the needs of the case. (Motion at 32.) Citing West Loop, Plaintiff contends that the disputed discovery is “appropriate” because it meets the threshold relevance test.” (Id.) Plaintiff relies upon Webb v. Healthcare Revenue Recovery Group LLC, No. C. 13-00737 RS, 2014 WL 325132 (N.D. Cal. Jan. 29, 2014) and Mbazomo v. ETourandTravel, Inc., No. 2:16-cv-02229-SB, 2017 WL 2346981 (E.D. Cal. May 30, 2017), among other authorities, as establishing the relevance of outbound call lists and dialing lists to the numerosity and commonality prongs of the class certification inquiry. (Motion at 33.) Defendant, noting this issue is a subset of Issue No. 1, objects to providing call logs beyond the logs it has produced for the June 2016 Campaign on both relevance and proportionality grounds. (Motion at 34-35.)

For the reasons discussed above, Plaintiff's requests for discovery related to Defendant's company-wide outbound Calls Logs and Removal Requests do not meet the proportionality requirements of Rule 26. Plaintiff's reliance on Webb as requiring Defendant to make broad production of its call logs and removal requests from 2012 to the present is misplaced. Webb involved a putative TCPA class action against an agency that collected debts for a billing company for a nationwide network of medical care service providers. Webb, 2014 WL 325132, at *1. The plaintiff sought precertification discovery, including documents concerning outbound dial lists for “all telephone numbers called by [the defendant] using autodial within the preceding four years.” Id. The Magistrate Judge found that “while the requested discovery is relevant to class certification, [the plaintiff] failed to establish[ ] the proportionality of her requests.” Id. (citation omitted.) Thus, the court ordered the defendant to produce its autodial calling records for just one year, not for the entire class period. (Id.)

In Mora v. Zeta Interactive Corp., Case No. 1:16-cv-00198-DAD-SAB, 2017 WL 1187710 (E.D. Cal. Feb. 10, 2017), also a putative TCPA class action, Magistrate Judge Stanley Boone rejected the plaintiff's request that the defendant make wholesale production of all of its call logs for the class period. Id. at *1. As here, the plaintiff in Mora, arguing that the call logs were highly relevant to class considerations of numerosity and commonality, sought to compel production of call logs for multiple call campaigns from multiple subsidiaries, not just the subsidiary that called him. Id. at 3. The court concluded the proportionality analysis required “determine[ing] the scope of Defendants' call logs that should be produced.” Id. at 4. After considering the information before him, Judge Boone characterized the plaintiff's request for all of the defendant's call logs as “a fishing expedition,” concluded that the record did “not justify imposing a significant burden” on the defendant to produce an outbound dial list of all of its calls, and limited the production to only the call logs made by the subsidiary that called the plaintiff. Id.

Here, Plaintiff proposes a “wrong number” class that would include individuals beyond those who received unsolicited, nonconsensual calls in the June 2016 Campaign. But Plaintiff fails to demonstrate that the potential benefit of producing the requested discovery outweighs the burden and expense it would impose on Defendant. Plaintiff contends that producing call logs should not be burdensome because in meet and confer communications, Defendant indicated some data concerning calls can be exported in formats including Excel. (Motion at 33.) Defendant responds that it “could not satisfy Plaintiff's discovery requests by simply producing an Excel call log file.” (Id. at 37.) In order to produce all of the requested call records since 2012, Defendant represents that it would need to go beyond a mere search or download of its telephony department records because “telephony records do not distinguish between ‘autodialed’ and non-autodialed calls and do not identify calls by campaign.” (Id. (citing Klorczyk Decl., Ex. 8).) Furthermore, even though Defendant has not fully substantiated its $1.5 to $15 million estimated cost for the expanded discovery, it is undisputed that Defendant conducted at least 100 call campaigns just since 2016 and in order to respond to Plaintiff's request for logs of all outbound calls since 2012, Defendant would have to search and review records of some 6 million outbound calls, regardless of whether those calls were made to members or not.

*11 Accordingly, the Court concludes that the only call logs Defendants must produce at this time are outbound call logs for any call campaigns made using any kind of dialer and/or prerecorded or artificial voice for the one year period from June 30, 2015 to June 30, 2016.

D. Issue No. 3 – RFPs and ROGs Relating to Defendant's Dialing System

In Issue No. 3 concerns Plaintiff's efforts to obtain discovery sufficient to confirm whether “the telephone dialing system used to call Plaintiff is the same system that was used to contact all putative class members.” (Motion at 39.) This dispute specifically relates to Defendant's responses to RFP Nos. 3-4 and ROG Nos. 5-7. (Id.) Plaintiff argues that the information is relevant to the class certification determination and Defendant provides no evidence that responding to RFP Nos. 3-4 and ROG Nos. 5-7 without the qualification discussed above, i.e., limiting its response(s) to the June 2016 Campaign, would be disproportional to the needs of the case. (Id. at 40.)

Defendant first argues that Plaintiff failed to properly present this issue in a pre-motion conference consistent with the Court's procedures. (Id. at 40.) Next, on the merits, Defendant notes that this issue is subsumed within the discussion of Issue No. 1 regarding whether discovery in this putative class action should be limited to the single June 2016 Campaign. (Id.) Defendant states that it has produced documents responsive to RFP Nos. 3 and 4 and provided written responses to ROG Nos. 5-7 regarding Molina's telephone dialing equipment or the software used to make calls during the class period, as well as the User Guide for the telephone system that the Molina team used that contacted Plaintiff's number. (Id. at 41.) Defendant has also identified its telecommunications providers during the time of the calls alleged in the Complaint. (Id.) Defendant insists that Plaintiff's request for additional information is “overbroad and not proportional to the needs of the case.” (Id.)

Defendant also objects that Plaintiff's definition of telephone dialing equipment includes “any telecommunications, telemarketing dialing or computer equipment used to make calls,” which Defendant insists “includes manually dialed calls not susceptible to a TCPA claim.” (Id. (citing Hartnett Decl., Ex.D).) Defendant seeks to distinguish the single case that Plaintiff cites in support of its effort to compel additional discovery on this issue, Shuckett v. Dialamerica Mktg., Inc., Case No.: 17cv2073-LAB(KSC), 2018 WL 4350123 (S.D. Cal. Sept. 10, 2018), on the basis that in Shuckett, unlike here, the defendant failed to provide any substantive responses or make even a partial production of information about its telephone dialing equipment. (Id.) Notably, as Defendant emphasizes, in Shuckett the district court found both the defendant's non-responses deficient and found the document requests facially overboard as to time and scope. See Shuckett, 2018 WL 4350123, at *8.

Defendants are correct that this issue was not separately addressed in a pre-motion conference with the Court. However, it is closely related to Contested Issue No. 1. Therefore, the Court addresses the dispute related to Defendant's dialing system as a subissue of Contested Issue No. 1. For the reasons discussed in connection with Contested Issue No. 1, the Court finds that some information regarding call campaigns beyond the June 2016 Campaign is relevant and proportional to the needs of the case. Defendant must only provide additional responses to RFP Nos. 3-4 and ROG Nos. 5-7 regarding telephone dialing equipment and software for any calling campaigns between 2012 to the present for which calls were made to non-members using any kind of dialer and/or prerecorded or artificial voice.

E. Issue No. 4 – Defendant's General Objections

*12 In Issue No. 4, Plaintiff raises an omnibus challenge to what Plaintiff characterizes as Defendant's “boilerplate general and specific objections that are frequently verbatim from one objection to the next.” (Motion at 42.) Plaintiff also argues that specific objections as to burden and overbreadth, relevance, and privacy “fail as a matter of law.” (Id. at 43.) Defendant responds that Plaintiff failed to present this issue in a pre-motion conference as required by the Court's procedures and even if the Court addresses the specific objections on the merits, the objections are proper. (Id. at 45-48.)

The Court agrees with Defendant that Plaintiff failed to raise this issue in any pre-motion conference as the Court's procedures require. Thus, the Motion is denied with respect to Issue No. 4 on that basis. But even if the Court considered the merits of the specific objections the Motion would be denied as to Issue No. 4. Given that the disputed RFPs and ROGs seek “ALL DOCUMENTS” and “ALL COMMUNICATIONS” relating to numerous topics, Defendant's objections as to overbreadth, relevance and burden are not de facto improper. Furthermore, because Defendant is a national healthcare provider and RFP No. 11 purports to seek information sufficient to “IDENTIFY ALL CALL RECIPIENTS” who received phone calls from Defendant during the class period, Defendant's objections on privacy grounds, including HIPAA, are also not improper.

CONCLUSION

Accordingly, for the reasons outlined above, the Court GRANTS in part and DENIES in part Plaintiff's Motion to Compel as follows:

Subject to the limitations outlined above, Defendant shall provide supplemental written responses and document production in response to Plaintiff's Amended RFPs and provide supplemental responses to Plaintiff's Amended ROGs, within 21 days of the date of this Order. To the extent Defendant does not have information or documents sought in its possession, custody or control Defendant shall provide a supplemental response so stating. The Court has entered a robust Protective Order which should provide adequate protection for any information that implicates rights of privacy and/or confidentiality. (See Dkt. No. 65.)

IT IS SO ORDERED.