Physicians Healthsource, Inc. v. Masimo Corporation, et al. Case No. SACV 14-00001 JVS (ADSx) United States District Court, C.D. California Filed November 21, 2019 Counsel Lisa Bredahl, Deputy Clerk, Attorneys Present for Plaintiffs: Not Present Not Present, Court Reporter, Attorneys Present for Defendants: Not Present Selna, James V., United States District Judge Proceedings: [IN CHAMBERS] Order Regarding Motion to Strike, Motion to Exclude Testimony, Motion to Certify Class, and Motion for Summary Judgment *1 Plaintiffs, Physicians Healthsource, Inc. (“PHI”) and Radha Geismann M.D. P.C. (“Geismann”) (collectively, “Plaintiffs”) and Defendants Masimo Corporation and Masimo Americas, Inc. (collectively, “Masimo”) have filed the following motions which have been fully briefed: 1. Motion to Strike (“MS”), ECF No. 256 MS Opp'n., ECF No. 279-1 MS Reply, ECF No. 268-2 2. Motion to Exclude Testimony (“MET”), ECF No. 290 MET Opp'n., ECF No. 325-3 MET Reply, ECF No. 391 3. Motion to Certify Class (“MCC”), ECF No. 241 MCC Opp'n., ECF No. 345-1 MCC Reply, ECF No. 363-1 4. Masimo's Motion for Summary Judgment, ECF No. 303 (“DMSJ”) DMSJ Opp'n., ECF No. 325-1 DMSJ Reply, ECF No. 392 Statement of Uncontroverted Facts, ECF No. 304 Plaintiff's Statement of Genuine Disputes of Material Fact (“PSGD”), ECF No. 325-2 5. Plaintiff's Motion for Summary Judgment, ECF No. 289-3 (“PMSJ”) PMSJ Opp'n., ECF No. 323-1 PMSJ Reply, ECF No. 351-1 Statement of Uncontroverted Facts, ECF No. 289-4 Masimo's Statement of Genuine Disputes of Material Fact (“DSGD”), ECF No. 323-2 Plaintiffs' Response to Masimo's Additional Material Facts, ECF No. 351-2. For the following reasons, the Court: 1. GRANTS the Motion to Strike the Biggerstaff Declaration; 2. GRANTS Masimos's Motion to Exclude Mr. Biggerstaff's opinion; 3. DENIES the Motion for Class Certification; and 4. GRANTS in part and DENIES in part Masimo's Motion for Summary Judgment. The Court defers ruling on Plaintiffs' Motion for Summary Judgment. I. BACKGROUND PHI and Geismann assert a claim for violation of the federal Telephone Consumer Protection Act of 1991 (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. § 227. See generally, SAC. The following facts are undisputed for purposes of summary judgment. The Court will address the parties' contentions that certain facts are disputed where they pertain to material facts the Court relies upon in reaching its decision. In early 2009, Lisa Belodoff (Masimo's Director of Marketing Communications) asked an entity by the name of SK&A for two quotes: one for sending faxes to SK&A's “opt in” doctors and the other for sending faxes to the “opt-in fax list” of the American Medical Association (“AMA”). Powell Decl., Ex. 1, 73:8-75:1; Ex. 25. SK&A provided the quote, and indicated in email and on the AMA quote that “AMA does not provide opt in fax numbers.” Powell Decl., Ex. 1, 75:2-79:11; Ex. 25. Masimo hired SK&A to send faxes in October 2011 and April 2012. Good Decl., Ex. L, M. At issue are two faxes. The first is an October 12, 2011 fax that states: “GO from OW! to WOW!,” “Noninvasive & Quick HEMOGLOBIN,” and “Introducing the Pronto with rainbow technology for painless spot-check testing Total Hemoglobin (SpHb®), SpO2, pulse rate, and perfusion index.” SAC, Ex. A. The second is an April 10, 2012 fax stating “GO from OW! to WOW!,” “A New Solution for Noninvasive Spot Checking Hemoglobin,” and “Pronto-7 – with rainbow 4D™ technology – for noninvasive and quick spot checking of Total Hemoglobin (SpHb®), SpO2, pulse rate, and perfusion index.” SAC, Ex. B. The parties dispute whether these faxes were “sent” by Masimo and received by Plaintiffs, and whether the faxes were unsolicited advertisements. *2 As part of its routine business practice, SK&A made “standard telephone verification” calls to numbers in its Office Based Physicians databases to verify the name, company, address, city, state, zip code, a person's title, fax number, and phone number. Ortlip Dep. 61:21-62:3. SK&A's performed “standard telephone verification” calls every six months. Id. 17:16-17. SK&A's verification process guarantees that no record is ever added to SK&A's databases until it is telephone-verified at the source by an SK&A Research Associate. Powell Decl., Ex. 27. PHI operated a chiropractic clinic from approximately 1999 through 2018. Ruch Decl. ¶ 2; Katzenellenbogen Decl. in Support of Opp'n. to PMSJ (“Katz. Decl. PMSJ”), Ex. 8, 267. PHI has asserted claims for violation of the TCPA for more than ten years. Powell Decl., Ex. 14, 10-11. Beginning in approximately 2003, PHI asked its front desk employee, Kathleen Curtis, to collect all promotional faxes PHI received on its fax machine, unless one of PHI's doctors asked for it.[1] Curtis Dep., 93:17-94:11. PHI has never attempted to opt out of receiving faxes from Masimo. Powell Decl., Ex. 37. Ms. Curtis also testified that she was told not to opt out of receiving faxes. Curtis Dep. 135. When asked who told her that she responded: “I think I recall that” Dr. Ruch instructed her not to attempt to opt-out of receiving faxes because “[t]hey went to Mr. Lowry,” and “[h]e decided on that, not us.” Id. at 135-137. While this case was pending, PHI sold certain assets and stopped operating a medical practice named “Physicians Healthsource.” Powell Decl., Ex. 8, 36-38, 267, 316-317. As part of such asset sale, PHI signed an agreement providing that PHI would “retain all right, title, and interest to the fax machine, and the fax line.” Id. at Ex. 17. PHI “verified” its fax number in a “telephone verification” call from SK&A some time in 2004 or later. Id. at Ex. 11, 42:1-43:12. SK&A produced a call verification log listing the date and duration of calls SK&A made to PHI since March 2012. Id., Ex. 28. SK&A's call logs only go as far back as 2012. Id. PHI has a written policy explaining how employees should respond when asked for PHI's fax number over the phone. Id. at Ex. 29. The policy states: “IF YOU RECEIVE A CALL ASKING FOR OUR FAX NUMBER, ASK WHO IS CALLING AND WHY DO THEY NEED IT.” Id. The policy also states: “IF YOU GIVE [the fax number] OUT, YOU HAVE AUTHORIZED THEM TO UTILIZE OUR NUMBER AND WE SUBSEQUENTLY GET MORE JUNK FAX.” Id. PHI's witnesses typically followed the policy by asking callers who they were and why they needed PHI's fax number. Id. at Ex. 6, 120-121, Ex. 12 90-91. PHI's employees believed giving out PHI's fax number over the phone constituted consent to receive faxes. Id. at Ex. 6, 120; Ex. 8, 136; Ex. 12, 90; Ex. 13, 108. PHI's employees did not recognize the name SK&A or having conversations with SK&A representatives. Id. at Ex. 6, 124-125; Ex. 12, 94-95. PHI did not implement a litigation hold in this case. Id. at Ex. 6, 41; Ex. 8 184-185; Ex. 12, 58; Ex. 13, 54-55. Geismann operated a medical practice in St. Louis, Missouri, through February 2019. Greg Geismann Dep. 35; Dr. Radha Geismann Depo. 11. Geismann has never attempted to opt out of receiving promotional faxes from Masimo or anyone else. Powell Decl., Ex. 10, 160, 164. SK&A produced a call verification log listing the date and duration of the numerous calls SK&A made to Geismann since February 2013. Id. at Ex. 30. Geismann had a policy concerning how employees should respond when asked for Geismann's fax number over the phone. Id. at Ex. 7, 60-66, 73-76; Ex. 10, 104-105. Dr. Geissman and her office manager, Donna Middleton understood that providing Geissman's fax number over the phone provides consent or permission for the caller to send faxes. Id. at Ex. 9, 251; Ex. 7, 66. Geismann's employees did not recognize the name SK&A or recall having conversations with SK&A representatives. Id. at Ex. 7, 71-72; Ex. 10, 129-132. Geismann does not have the October 2011 fax in her possession. Id. at Ex. 8, 288-289. II. LEGAL STANDARD A. Motion to Strike *3 Under Rule 12(f), a party may move to strike any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). A motion to strike is appropriate when a defense is insufficient as a matter of law. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). The grounds for a motion to strike must appear on the face of the pleading under attack, or from matters of which the Court may take judicial notice. SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995). The essential function of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). “As a general proposition, motions to strike are regarded with disfavor because [they] are often used as delaying tactics, and because of the limited importance of pleadings in federal practice.” Sands, 902 F. Supp. at 1165-66 (alteration in original) (internal quotation marks omitted). Therefore, courts frequently require the moving party to demonstrate prejudice “before granting the requested relief, and ‘ultimately whether to grant a motion to strike falls on the sound discretion of the district court.’ ” Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1162 (C.D. Cal. 2010) (quoting Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F.Supp.2d 1028, 1033 (C.D. Cal. 2002)). Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure requires that parties make expert disclosures “at the times and in the sequence that the court orders.” Rule 26(a)(2)(B) requires that written expert reports set forth a “complete statement of all opinions the witness will express and the basis and reasons for them.” Relatedly, Rule 26(a)(2)(D)(ii) permits the admission of rebuttal expert testimony that is “intended solely to contradict or rebut evidence on the same subject matter identified” by an initial expert witness. Thus, “[t]he function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 749, 759 (8th Cir. 2006) (internal quotation marks and citation omitted). “Accordingly, a supplemental expert report that states additional opinions or seeks to strengthen or deepen opinions expressed in the original expert report is beyond the scope of proper supplementation and subject to exclusion under Rule 37(c).” Plumley v. Mockett, 836 F. Supp. 2d 1053, 1062 (C.D. Cal. 2010) (internal quotation marks and citation omitted). Under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party is precluded from using expert reports where they are not disclosed in a timely manner. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). However, Rule 37(c)(1) permits use where the failure was either “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1). “Substantial justifi[cation]” implicates the reason for the delay, while “harmless[ness]” requires inquiry into resulting prejudice. See, e.g., Yeti by Molly, 259 F.3d at 1106 (discussing whether the proffered reasons for defendants' delay substantially justified the delay); Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008) (requiring proponent of evidence to demonstrate harmlessness by demonstrating the lack of prejudice to the opposing party). B. Motion to Exclude Testimony *4 Expert testimony is admissible if the party offering such evidence shows that the testimony is both reliable and relevant. Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590-91 (1993). Federal Rule of Evidence 702 permits expert testimony if “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. A expert can be qualified “by knowledge, skill, experience, training, or education.” Id. A trial court has a “gatekeeping” obligation to admit expert testimony only when it is both reliable and relevant. Daubert, 509 U.S. at 589; Kumho Tire Co., 526 U.S. at 147-149. “In Daubert, the Supreme Court gave a non-exhaustive list of factors for determining whether scientific testimony is sufficiently reliable to be admitted into evidence, including: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential error rate; and (4) whether the theory or technique is generally accepted in the relevant scientific community.” Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002). The Supreme Court later held that “a trial court may consider one or more” of the Daubert factors in determining the reliability of nonscientific expert testimony. Kumho Tire Co., 526 U.S. at 141 (emphasis in original). Further, the court has “broad latitude” to decide how to determine the reliability of the testimony and whether the testimony is in fact reliable. Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir. 2002); see Kumho Tire Co., 526 U.S. at 141. The “test of reliability is flexible, and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Id. (internal citations omitted). C. Motion to Certify Class A motion for class certification involves a two-part analysis. First, the plaintiffs must demonstrate that the proposed class satisfies Rule 23(a)'s requirements: (1) the members of the proposed class must be so numerous that joinder of all claims would be impracticable; (2) there must be questions of law and fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of absent class members; and (4) the representative parties must fairly and adequately protect the class interest. Fed. R. Civ. P. 23(a). The plaintiffs may not rest on mere allegations, but must provide facts to satisfy these requirements. Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977) (citing Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir. 1969)). Second, the plaintiffs must meet the requirements for at least one of Rule 23(b)'s subsections. Under Rule 23(b)(1), plaintiffs may certify a class if there is either (1) a risk of prejudice from separate actions establishing incompatible standards of conduct or (2) judgments in individual lawsuits would adversely affect the rights of other members of the class. Under Rule 23(b)(2), a plaintiff may maintain a class where the defendant has acted in a manner applicable to the entire class, making injunctive or declaratory relief appropriate. Finally, under Rule 23(b)(3), a plaintiff may certify a class only if “questions of law or fact common to class members predominate over any questions affecting only individual members,” and if “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added). *5 The plaintiffs must show that the class satisfies Rule 23. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001), amended by 273 F.3d 1266 (2001). A district court must rigorously analyze whether the plaintiffs have met Rule 23's prerequisites. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rule 23 confers “broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.” Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002), abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005). The district court need only form a “reasonable judgment” on each certification requirement “[b]ecause the early resolution of the class certification question requires some degree of speculation.” Gable v. Land Rover N. Am., Inc., No. SACV 07-0376 AG (RNBx), 2011 WL 3563097, at *3 (C.D. Cal. July 25, 2011) (internal quotation marks omitted); see also Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975). This may require the court to “ ‘probe behind the pleadings before coming to rest on the certification question,’ ” and the court “ ‘must consider the merits’ if they overlap with Rule 23(a)'s requirements.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (emphasis in original) (quoting Dukes, 564 U.S. at 350; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011)). D. Summary Judgment Summary judgment is appropriate where the record, read in the light most favorable to the nonmovant, indicates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary adjudication, or partial summary judgment “upon all or any part of [a] claim,” is appropriate where there is no genuine dispute as to any material fact regarding that portion of the claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim ....”) (internal quotation marks omitted). Material facts are those necessary to the proof or defense of a claim, and are determined by referring to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.[2] The moving party has the initial burden of establishing the absence of a material fact for trial. Anderson, 477 U.S. at 256. “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may ... consider the fact undisputed.” Fed. R. Civ. P. 56(e)(2). Furthermore, “Rule 56[ (a) ][3] mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. Therefore, if the nonmovant does not make a sufficient showing to establish the elements of its claims, the Court must grant the motion. *6 Where the parties have made cross-motions for summary judgment, the Court must consider each motion on its own merits. Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court will consider each party's evidentiary showing, regardless of which motion the evidence was tendered under. See id. at 1137. III. DISCUSSION A. Motion to Strike the Declaration of Robert Biggerstaff Plaintiffs produced the expert report of Robert Biggerstaff on May 20, 2019 (the “First Report”).[4] Declaration of Benjamin A. Katzenellenbogen (“Katz. Decl.”), Ex. 6, ECF No. 258-1. Plaintiffs served Masimo with the Declaration of Robert Biggerstaff on July 8, 2019 (the “Biggerstaff Declaration”). Katz. Decl. Ex. 9. Pursuant to the Order Setting Case Management Dates, expert discovery cut-off was on July 8, 2019, rebuttal expert witness disclosure was June 10, 2019, and opening expert witness disclosure was May 6, 2019. ECF No. 65. Masimo's counsel deposed Mr. Biggerstaff on June 21, 2019. Katz Decl. ¶ 4. Masimo served the Expert Report of Bruce Deal to Plaintiffs on July 1, 2019. Id. at ¶ 10. Plaintiffs' counsel deposed Mr. Deal on July 8, 2019. Id. Masimo now moves to strike the Biggerstaff Declaration as untimely. MS, 1. Masimo argues that Plaintiffs provided no justification for submitting the declaration two months after the deadline for disclosing expert opinions. Id. at 4. Specifically, they argue that Biggerstaff could have included his new opinions in the First Report. Id. Masimo contends that Plaintiffs' counsel were aware of the fax logs the Biggerstaff Declaration addresses prior to serving the First Report because they provided those logs to Mr. Biggerstaff in a different case. Id. Plaintiffs offer that they were substantially justified in filing the Biggerstaff Declaration as a result of the following. On June 17, 2019 Masimo served Mr. Biggerstaff with a subpoena requesting documents referenced by Mr. Biggerstaff in the First Report including the “list files from SK&A in other cases” and “fax logs maintained by Odyssey.” Katz. Decl. Ex. 14. Mr. Biggerstaff objected to producing such documents “to the extent that any such documents would be covered by protective orders in other cases” and further objected “as producing materials from unrelated matters is neither relevant nor proportional to the needs of this case.” Good Decl., Ex G, 7-8. Masimo's counsel then emailed Plaintiffs' counsel notifying them that they were “not requesting that Plaintiffs produce in this case the documents that Odyssey produced in the Rexall case.” Good Decl., Ex. H. Plaintiffs' counsel then became “concerned that Masimo would use this withdrawal of its request ... as part of a Daubert attack” on Mr. Biggerstaff's testimony. MS Opp'n. 4. Accordingly, Plaintiffs' counsel communicated with counsel for defendants in the Lary v. Rexall matter (No. 2:13-cv-05769-SKF-ARL (E.D.N.Y.)) (“Rexall”) and indicated that the documents might be necessary in the future. Id. Plaintiffs then state that Mr. Biggerstaff was “extensively questioned” in his deposition about how “the histogram method described in his May 20, 2019 Expert Report could be applied to records outside this litigation.” Id. at 5. They note that Masimo “created several sets of records which it used to question Mr. Biggerstaff ... [leading Plaintiffs] to believe that Masimo had access to sufficient records with which to test the histogram method.” Id. Plaintiffs then contend that when they were served with Mr. Deal's expert report on July 1, 2019 they discovered that Mr. Deal had opined that Mr. Biggerstaff's analysis was flawed because he provided “no support for the accuracy or reliability of his histogram analysis.” Good Decl., Ex. M., MS Opp'n. 5. Plaintiffs allege that during Mr. Deal's deposition on July 8, 2019, he was questioned about whether Mr. Biggerstaff's analysis could be replicated to test accuracy and he responded: “I guess.” MS Opp'n. 5.[5] Plaintiffs note that as a result they served the Biggerstaff Declaration on July 8, 2019, after the deposition of Mr. Deal. Id. *7 Plaintiffs also argue that they served the Biggerstaff Declaration on the deadline because it had timely disclosed Mr. Biggerstaff as an expert witness, the expert discovery cut-off was on July 8, 2019, and “there was no prior deadline for rebuttal testimony.” MS Opp'n. 6. However, the Court did establish the following deadlines: (1) rebuttal expert witness disclosures due on June 10, 2019; (2) opening expert witness disclosures due on May 6, 2019; and (3) expert discovery cut-off on July 8, 2019. Order, ECF No. 65, 3. Thus, Plaintiffs were required to disclose Mr. Biggerstaff as a rebuttal witness if they intended to use him in such a way by June 10, 2019 and if not, his opinions should have been disclosed on May 6, 2019. On its face, the Biggerstaff Declaration was served over two months after the expiration of the deadline for the initial reports, almost a month after the express deadline for rebuttal disclosures, and on the evening of expert-discovery cut-off. Plaintiffs have provided no other proffer as to why they were “substantially justified” in not disclosing the Biggerstaff Declaration in a timely manner. Apparently making an argument that the Biggerstaff Declaration is rebuttal testimony, Plaintiffs next assert that the Biggerstaff Declaration does not alter or amend any opinions in his First Report, but instead “provided an example of how the histogram method, which was explained” in the First Report, could be applied to the transmission logs in Rexall. Nonetheless, as explained above, the Biggerstaff Declaration is untimely even if it is proper rebuttal testimony. Furthermore, the Court does not believe that it is rebuttal testimony because Plaintiffs describe it as providing an example of a method already explained in the First Report, which in effect amounts to strengthening or deepening an opinion. MS Opp'n. 7. “A supplemental expert report that states additional opinions or seeks to strengthen or deepen opinions expressed in the original expert report is beyond the scope of proper supplementation and subject to exclusion under Rule 37(c).” Plumley, 836 F. Supp. 2d at 1062 (internal quotation marks and citation omitted). Nonetheless Rule 37(c)(1) permits use where failure is harmless. Fed. R. Civ. P. 37(c)(1). A showing of harmlessness requires the proponent to demonstrate the lack of prejudice to the opposing party. Torres, 548 F.3d at 1213. Here, Masimo argues that it has been prejudiced because discovery is closed and allowing the expert report would require further document production, a second deposition of Mr. Biggerstaff, a second expert report, and a further continuance for Class Certification. Id. at 1, 5-6. Plaintiffs argue that Masimo is not prejudiced because on July 17, 2019 it offered Masimo (1) time to have their expert analyze the records that were the subject of the Biggerstaff Declaration; (2) to depose Biggerstaff again and; (3) to provide additional non-confidential transmission logs for Masimo's expert to review and test the histogram method. MS Opp'n. 8. Masimo replies that a party cannot proffer untimely expert opinions simply by offering to allow its adversary “to do more work and delay the case schedule, particularly where it would have required the Court to amend the scheduling order and reopen expert discovery.” MS Reply, 5. The Court agrees with Masimo. Were the Court to allow the Biggerstaff Declaration, at a minimum the Court would have to reopen expert discovery and further delay trial. Thus, Plaintiffs have been unable to meet their burden of demonstrating the lack of prejudice to Masimo. Accordingly, the Court GRANTS the Motion to Strike the Biggerstaff Declaration. B. Motion to Exclude Testimony of Robert Biggerstaff Masimo moves to exclude Biggerstaff's testimony as irrelevant and unreliable. MET, 1. 1. Relevance Testimony is relevant if it will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. “Relevancy simply requires that the evidence logically advance a material aspect of the party's case.” Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007) (internal quotation marks omitted). *8 Masimo argues that Biggerstaff's testimony is irrelevant because he does “not offer an opinion regarding (1) how many fax transmissions were attempted, (2) how many attempted transmissions were successful, or (3) which, if any successful transmissions involved a fax at issue.” Id. (emphasis omitted). Plaintiffs agree that Biggerstaff does not offer such opinions, but argue that Biggerstaff's opinion is relevant for the limited purpose of how many transmissions would have been successful “if the broadcaster had attempted to send faxes to all the numbers in the two data files.” MET Opp'n., 6. Masimo replies that Biggerstaff's “conditional opinions are irrelevant because their factual predicate is unsupported and they are based on considering transmissions of faxes that are not at issue.” MET Reply, 2. Specifically, Masimo argues that Plaintiffs have not presented any evidence that Odyssey, the company that allegedly physically transmitted the faxes at issue, attempted to send faxes to all numbers in the 2011 or 2012 SK&A data files. Id. In support, Plaintiffs argue that (1) Masimo hired SK&A to send faxes to all the numbers in the data files; (2) SK&A reported to Masimo following each broadcast that it sent the faxes to all numbers in the data files; and (3) Masimo paid SK&A for sending the October 2011 and April 2012 faxes to all numbers in the data files. MET Opp'n. 6-7. Masimo contends that the SK&A statements of work were a proposal and that the numbers do not correspond to the number of records SK&A extracted from its database. MET Reply, 3. The October 2011 source list contained 95,920 data records. Katz Decl. No. 2, Ex. 1, 7. The April 2012 source list contained 86,838 data records. Id. However, the October 6, 2011 Statement of Work notes that “SK&A will extract a total of 103,046 fax numbers.” Good Declaration (“Good Decl. No. 2”), Ex. I. The April 4, 2012 statement of work notes that “SK&A will extract a total of 86,804 fax numbers.” Id., Ex. J. Biggerstaff also testified that it is standard practice for fax broadcasters such as Odyssey to have suppression lists to which they do not send faxes and Odyssey “very, very likely” applied such lists to the SK&A data files. Biggerstaff Depo., Benjamin Katzenellenbogen Declaration (“Katz. Decl. No. 2”), Ex. 2 169:1-10. Thus, Masimo is correct that the numbers varied. However, the statements of work also note that any fax numbers that are included in the suppression list would be excluded and that the faxes would be sent within five days. Id., Ex. I, J. Thus, Masimo's argument is not dispositive here since the numbers vary only minimally, and a fact finder could conclude from this evidence that the decrease in numbers relates to the suppression list. Masimo then asserts that the SK&A “broadcast reports” do not purport to disclose how many faxes Odyssey attempted to send or successfully sent because they did not create the broadcast report, and do not know what the terms in the broadcast report mean. MET Reply, 3-4.[6] Plaintiffs cite to Exhibits J and L as broadcast reports evidencing that the October 2011 fax was delivered to 95,644 fax numbers and the April 2012 fax was delivered to 86,609 fax numbers, the Court notes that both of these exhibits merely have blank cover emails and a page that follows that states “document produced in native format.” Good Decl. Ex. J, L, ECF No. 325-5. At oral argument Plaintiffs counsel pointed out that the exhibits were submitted in a native format in the manual lodging of docket number 299. Although these exhibits are the broadcasts reports referred to here, the Court notes that these exhibits pertain to Plaintiffs' Motion for Summary Judgment and not the Motion to Exclude. Ex. N and M to Good Declaration, ECF No. 286. Although the Court notes that the broadcast reports from SK&A do evidence that the October 2011 fax was delivered to 95,644 fax numbers and the April 2012 fax was delivered to 86,609 fax numbers, the Court does not rely on such reports for purposes of this Motion. *9 Finally, Masimo contends that Plaintiffs offer no support for the assertion that Masimo paid to send the October 2011 and April 2012 faxes to all numbers in the data files. MET Reply, 4. The Court disagrees. As described above, the statements of work provide at least some basis for the assertion that Masimo paid to send the faxes to all numbers in the data files sent by SK&A with the exception of certain faxes on the suppression list. See Good Decl. No. 2, Ex. I, J The biggest hurdle for Plaintiffs is that the USA Digital phone records indicate that Odyssey only connected with 14,247 outgoing calls on April 10, 2012 across all customers and 17,069 total calls on October 12, 2011. Deal Report, Katz. Decl. No. 2, Ex. 11 ¶¶ 37-38. Mr. Biggerstaff calculates that only 5,912 of the 14,247 calls on April 10, 2012, were in the SK&A Data File. First Report, Katz. Decl. No. 2, Ex. 1 ¶ 20. Thus, it is hard to reconcile the limited number of outgoing calls with the significantly larger data lists in a way that would lead one to believe that Odyssey did attempt to send faxes, for which outgoing calls are necessary. Nonetheless, the Court finds that there is at least some basis that Mr. Biggerstaff's testimony is relevant for the limited purpose of determining how many transmissions would have been successful “if the broadcaster had attempted to send faxes to all the numbers in the two data files.” See MET Opp'n., 6. 2. Reliability Masimo next argues that Biggerstaff's opinions are unreliable because his methodology is inaccurate, has never been peer reviewed and was developed by him purely for use in TCPA litigation. MET, 1. Plaintiffs argue that Biggerstaff's opinions are being offered not as dispositive evidence of the number of successful transmissions, but to buttress other evidence of the number of successful transmissions. MET Opp'n. 8. Plaintiffs also argue that even though Biggerstaff's analysis does not show “failed attempts due to busy signals, a line that is no longer in service, or a person instead of a fax machine answering the phone,” these failed transmissions would be minuscule because SK&A used an up to date list of fax numbers. Id. at 9. By Biggerstaff's own admissions, his histogram methodology is not peer reviewed (Katz. Decl., No. 2, Ex. 2, 116:12-16) and is not generally accepted in the scientific community (Id. at 118:21-119:5). “Where peer review and publication are absent, the experts must explain precisely how they went about reaching their conclusions and point to some objective source—a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like—to show that they have followed the scientific evidence method, as it is practiced by (at least) a recognized minority of scientists in their field.” Clausen, 339 F.3d at 1056 (9th Cir. 2003) (internal citations and quotations omitted). Furthermore, Plaintiffs, who are the proponents of Biggerstaff's testimony, have the burden of proving its admissibility. Cooper, 510 F.3d at 942 (9th Cir. 2007). Biggerstaff provided no evidence that his call length histogram methodology is used by anyone else to determine whether faxes were successful. When asked if he was aware of anyone who has ever applied his methodology for using histogram analysis of call duration to distinguish between successful and unsuccessful faxes outside of the context of TCPA litigation, Biggerstaff replied: “Like I said, I've never run across a need for it outside of TCPA litigation, and since I'm not aware of any need for it in a different context, I would think that no one outside of that context has ever considered it.” Id. at 112. Thus, it would appear that Biggerstaff's methods were developed by Biggerstaff only in support of TCPA litigation and lacks any independent evidence of reliability. See Daubert, 43 F.3d at 1317 (“[I]n determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office.”); Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1056 (9th Cir. 2003) (opinions prepared for litigation are unreliable, particularly absent any proof of peer review or publication). *10 Additionally, Biggerstaff has not offered any other objective, verifiable evidence that the testimony is based on scientifically valid principles. “Something doesn't become ‘scientific knowledge’ just because it's uttered by a scientist; nor can an expert's self-serving assertion that his conclusions were ‘derived by the scientific method’ be deemed conclusive.” Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315–16 (9th Cir. 1995). The indices of peer review or publication here are entirely absent. Although, the “test of reliability is flexible, and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case,” expert opinions “require a valid ... connection to the pertinent inquiry as a precondition to admissibility. And where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question ..., the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [the relevant] discipline.” Kumho Tire Co., 526 U.S. at 141, 149 (internal citations and quotations omitted). Here, even if Plaintiffs were able to prove that Odyssey attempted to send faxes to all of the numbers in SK&A's data files, Biggerstaff could not reliably testify as to how many successful faxes were likely to have been sent given that he did not calculate a success rate that could be used to estimate the total number of successful faxes. Biggerstaff's expert conclusions were the following: 60. The records I examined identified to a high degree of mathematical certainty a total of 5,826 fully received error-free fax transmissions. 61. Applying the 98.55% success rate to the entire April 2012 source list indicates a total of 85,574 fax transmission were successful if faxes were sent to the entire list. 62. Applying the 98.55% success rate to the entire October 2011 source list indicates a total of 94,524 fax transmission were successful if faxes were sent to the entire list. Katz. Decl. No. 2, Ex. 1, 19. However, Biggerstaff testified that normalized success rates and raw success rates are different. Katz. Decl., No. 2, Ex. 2, 131-133. “A raw success rate is what a lot of people look at, but it really is not useful because raw success and failure includes busy signals, which is usually the major reason for – one of the major reasons for a fax's failure. And if you have an aged or an older list ... A lot of those numbers would have changed hands in the intervening time.” Id. Biggerstaff also explained that “one of the problems with using call detail records is typically your carrier is only going to charge you or have a line item for a call that was answered. So in the histogram for this case, you don't have this big spike over here to the left of Point A, which is all the busy signals or unroutable calls ... And so those are missing, in large part from the records in this case because your teleco is not going to bill you for calls beyond - - shorter than a certain duration.” Id. at 132-133. “And that's why I was talking about normalized versus raw. We can't do raw rates here because [ ] we're missing records of a bunch of failures because a teleco doesn't bill you for those calls, and CDRs are only based on what you get billed for or what would create a billing record.” Id. at 134. Following Biggerstaff's own testimony then, the call detail records he looked at which revealed what he concluded were “5,826 fully received error-free fax transmissions” could not possibly be reliably used to determine how many successful faxes were likely to have been sent since call detail records do not reveal how many unsuccessful faxes were sent or the total number of faxes attempted. As Biggerstaff himself noted: “My mechanism is not intended to give -- estimate your raw error rate or failure rate or raw success rate.... My method identifies a region where you have a high likelihood of all the faxes in that region are successful.... That does not say anything about the area outside of that. And you could have, outside of that, more successful or fewer – or more failures.” Id. at 232. Thus, the Court finds that Plaintiffs' have failed to meet their burden that of proving that Biggerstaff's testimony is reliable both as to Biggerstaff's methods and as to whether the testimony has a reliable basis in the knowledge and experience of the discipline. *11 Accordingly, the Court GRANTS Masimos's Motion to Exclude Mr. Biggerstaff's opinion for purposes of class certification and precludes Biggerstaff from offering testimony on summary judgment or at trial. C. Motion for Class Certification Plaintiffs wish to certify the following class: All persons or entities who were successfully sent one or more faxes on or after four years prior to the filing of this action that mention the availability or quality of Defendants' property, goods, or services, including but not limited to faxes stating: (1) “Go from OW! To WOW!, Noninvasive & Quick HEMOGLOBIN,” sent on or about October 12, 2011; and (2) “Go from OW! To WOW!, A New Solution for Noninvasive Spot Checking Hemoglobin,” sent on or about April 10, 2012. SAC ¶ 18. Rule 23(a)(4) requires that the class representative “fairly and adequately protect the interest of the class.” Fed. R. Civ. P. 23(a)(4). Representation is fair and adequate when the class representative and counsel (1) have no conflicts of interest with absent class members; and (2) will prosecute the action vigorously on behalf of the class. Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). PHI and Geismann argue that they and their counsel have demonstrated that they are able to prosecute the action vigorously because they have vigorously pursued discovery of Masimo and third parties since the stay was lifted in April 2018. MCC at 16. As evidence, Plaintiffs note that they have taken seven depositions, successfully moved to amend the complaint, and defeated Masimo's preemptive motion to deny class certification. Id. at 16-17. PHI and Geismann also argue that they have no conflicting interests with other class members because their circumstances are identical to the class members they seek to represent. MCC at 17. Finally, Plaintiffs also contend that proposed class counsel is qualified and competent. MCC at 17. Plaintiffs also argue that the Court should “judge the adequacy of Plaintiffs' counsel based on the work they have done in this case.” MCC 20. However, “[A] named plaintiff who has serious credibility problems or who is likely to devote too much attention to rebutting an individual defense may not be an adequate class representative.” Nghiem v. Dick's Sporting Goods, Inc., 318 F.R.D. 375, 383 (C.D. Cal. 2016) (citing CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011). A class representative's credibility and honesty is a relevant consideration when performing the adequacy inquiry because an untrustworthy plaintiff could reduce the likelihood of prevailing on the class claims. Harris v. Vector Marketing Corp., 753 F.Supp.2d 996, 1015 (N.D. Cal. 2010). This Court has previously acknowledged “the seriousness of the misconduct chronicled by the court in Allscripts.” Order, ECF No. 84-1, 4. There, PHI was found to be “recklessly indifferent to the truth” as it pertains to their discovery responses. Physicians Healthsource, Inc. v. Allscripts Health Sols., Inc., 254 F. Supp. 3d 1007, 1022, 1033 (N.D. Ill. 2017), reconsideration denied, No. 12 C 3233, 2017 WL 4682734 (N.D. Ill. Oct. 18, 2017) (“[I]f counsel answered the interrogatories without consulting with plaintiff, that's certainly poor lawyering (if not unethical behavior), and certainly ‘jeopardizes the court's ability to reach a just and proper outcome in the case.’ If counsel made good faith mistakes in their initial answers for Dr. Ruch, the plaintiff had an undeniable obligation either to correct the errors or to at least call them to counsel's attention before responses were filed. That is but a matter of common sense. It did neither. If the lawyers had knowledge of the truth from the beginning, they cannot be class counsel. And if they didn't know and didn't bother to talk to Dr. Ruch before the answers were filed, they simply cannot be counted on to be an adequate class counsel.”) Id. at 1033. The serious credibility concerns regarding PHI and its counsel in Allscripts weighs against finding adequacy here. *12 Masimo also argues that Geismann has a history of misusing the legal system and argue that courts have repeatedly sanctioned PHI, Geismann, and their counsel. MCC Opp'n. 22. Furthermore, Masimo points to Plaintiffs' discovery misconduct and spoliation as evidence that Plaintiffs and their counsel are inadequate to represent the class they seek to represent. Id. “Only conflicts that are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting the Rule 23(a)(4) adequacy requirement. A conflict is fundamental when it goes to the specific issues in controversy.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th Cir. 2015). “There is inadequacy only where the representative's credibility is questioned on issues directly relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal conviction for fraud.” Harris, 753 F. Supp. 2d at 1015. Here, PHI's representative Dr. Ruch, conceded during his deposition that he provided several untrue discovery responses. Ex. 21, 232-237. Additionally, Kathleen Curtis, one of PHI's witnesses admitted that counsel had instructed her as to how to interpret a document. Ex. 14, 202-203. This evidence is reminiscent of the misconduct described in Allscripts. See 254 F. Supp. 3d at 1022, 1033. Of more significance is the undisputed evidence that PHI's principals delete emails daily, that PHI deleted all but two email accounts while this case was pending, and that PHI did not implement a litigation hold on this case. PSGD 44-46. Geissman is also an atypical Plaintiff. In a November 18, 2008 letter from Dr. Geismann to attorneys Karl W. Dickhaus and Anthony Pepe, Dr. Geismann writes: “Since 2003, I have forwarded more than 2,000 faxes to you under an attorney-client agreement relating to violations of the TCPA. I have not received any type of communication from you for nearly two (2) years. The purpose of this correspondence is to respectfully request that you please provide a full accounting of all payments recovered, settlements, and / or fees received with respect to the faxes I have sent you.” Ex. 41. At Gregory Geismann's deposition on March 15, 2017 when asked how he knew that attorney Dickhouse had reached a settlement concerning one of the faxes received by Geismann he responded as follows: A. He would typically send us a letter and a check in the mail. Q. Okay. And was there any other way for you to know he reached a settlement besides him doing that? A. No. Ex. 42, 122:20-123:2. At the same deposition, Gregory Geismann could not recall how many TCPA cases Geismann had filed. Id. at 58, 127. Gregory Geismann further testified that attorney Dickhaus filed TCPA cases on Geismann's behalf without Geismann's approval. Id. at 128; see also Ex. 43 at 44 (describing Geismann's relationship with attorney Dickhaus as a “blind deal”). Dr. Geismann has also signed a declaration containing false statements and when confronted during a deposition replied that she had no information about the truth of her own declaration. Ex. 22. 118-123 (“Q. So again you don't have any information about the truth of this declaration then? It's something I need to ask Greg? A. Correct.”). Such history demonstrates a lack of responsibility and attention as to Geismann's duties as class representative in past cases. It also seriously calls into question Geismann's credibility. Were Geismann appointed class representative, it is likely that the parties will devote a significant amount of time debating Geismann's credibility thereby jeopardizing the remaining class members. *13 Additionally, attorneys of the law firm of Geragos & Geragos represented PHI as of the initial filing in this action (January 2, 2014). See Complaint, ECF No. 1. Accordingly, while Geragos & Geragos may not be associated with the prior bad conduct in Allscripts, they are still associated with the discovery misconduct that has occurred in this case as described above. Additionally, Geragos & Geragos does not appear to have made any efforts to correct or prevent such misconduct. These facts weigh in favor of denying class certification. Spoliation of evidence and discovery misconduct certainly go to the heart of the litigation at issue. Additionally, there are confirmed examples of dishonesty which call into question the credibility of Plaintiffs and their counsel. Accordingly, the Court finds that Plaintiffs and their counsel are inadequate representatives of the class they seek to certify. Since, Plaintiffs have been unable to satisfy adequacy of counsel, the Court will not address the remaining Rule 23(a) prerequisites at this time. Accordingly, the Court DENIES the Motion for Class Certification. D. Masimo's Motion for Summary Judgment 1. Whether the Fax Was Unsolicited The TCPA prohibits using a “telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain conditions apply. 47 U.S.C. § 227(b)(1)(C). An “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” 47 C.F.R. § 227(a)(5). “Prior express invitation or permission” to send fax advertisements is an affirmative defense for which a defendant bears the burden of proof. True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018), cert. denied, 139 S. Ct. 2743 (2019).[7] Additionally, “[u]nsolicited advertisements may be sent if (1) the sender and recipient have ‘an established business relationship,’ (2) the recipient voluntarily provided his or her contact information to the sender either directly or indirectly through ‘a directory, advertisement, or site on the Internet,’ and (3) the ‘unsolicited advertisement contains’ an opt-out notice meeting certain statutory requirements.” Id. at 926. Masimo alleges that the faxes at issue here were not unsolicited because PHI and Geismann voluntarily provided and/or verified its fax number to SK&A during verification calls. Masimo contends that it can undisputedly prove this through its logs and the business practices of SK&A and Plaintiffs. Additionally, Masimo argues that the Court should grant an adverse inference as to the evidence it alleges Plaintiffs destroyed. A. Prior Express Invitation or Permission *14 The plain language of the TCPA does not require that the recipient's express invitation or permission be given directly to the entity whose goods or services are advertised or promoted. See 47 C.F.R. § 227(a)(5). As such, the fact that it was SK&A and not Masimo who conducted the verification calls is not dispositive. Masimo cites Van Patten for the proposition that “when people provide their telephone numbers, ‘the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.’ ... [A] consumer consents to contact for transaction-related communications when the consumer provides his or her phone number to the caller.” 847 F.3d at 1045 (quoting 7 FCC Rcd. 8752, 8769 n.57) (emphasis omitted). “[D]istrict courts have consistently found that ‘persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.’ ” Booth v. Appstack, Inc., 2015 WL 1466247, at *10 (W.D. Wash. Mar. 30, 2015). Masimo argues that this reasoning applies to parties who when called give out their fax numbers and thereby consent to receiving faxes from the caller. DMSJ, 10. Here, PHI does not dispute that they verified their fax number during a telephone verification call from SK&A at some point in time. PSGD, ¶ 28. Geismann does not dispute that SK&A's call verification log listed the date and duration of numerous calls SK&A made to Geismann since February 2013. Id. at ¶ 59. Masimo contends that phone verification calls starting in 2004 to PHI and 2010 to Geismann provided consent to SK&A to send faxes. DMSJ, 11. The parties do not dispute that Plaintiffs' principals and employees testified that verifying a fax number constitutes permission to send a fax. Powell Decl. Ex. 6, 120; Ex. 8, 136; Ex. 12, 90; Ex. 13, 108. Ex. 9, 251; Ex. 7, 66. However, none of PHI's employees recall the conversations with SK&A. Id. Ex. 6, 124-125; Ex. 12, 94-95. Neither do Geismann's. Id., Ex. 7, 71-72; Ex. 10, 129-132. Masimo has produced logs showing SK&A's calls to PHI (2012-2014) and Geismann from (2013-2017).[8] Ex. 28; Ex. 30. However, Masimo does not rely solely on the existence of SK&A's verification calls. Instead, Masimo argues that the business practices of SK&A and Geismann prove that when SK&A called Plaintiffs they sought and received their express invitation or permission to receive a fax from SK&A's customers. The parties do not dispute that PHI had a written policy that required employees to ask who was calling and why they needed the fax number. Powell Decl., Ex. 29. The parties do not dispute that Donna Middleton, Geismann's office manager, was “instructed to provide fax numbers only in the event that the caller, A, identified him or herself properly; and B, the caller was seeking some information related to patient care.” Geismann Dep., 18. Middleton testified that she would ask “who was calling” and “what it was related to.” Middleton Dep., 61. If the call was related to patient care, she would ask the caller if they had the fax number on file, and if they did would ask them to tell her what it was and then would say “that's the correct fax number and you can fax something.” Id. at 62. *15 The parties also do not dispute that SK&A had a business practice of calling approximately every six months to verify physicians' information. PSGD, ¶¶ 8, 9; Powell Decl., Ex. 11, 43. Masimo contends that when asked questions such as those in PHI's written policy, SK&A's business practice was for its representatives to respond truthfully explaining that they wanted the fax for such reasons as sending promotional faxes on behalf of third parties. Id., Ex. 11, 28-30. Plaintiffs dispute what was said on these calls noting that what was testified to was that researchers would “respond truthfully” and that sending “promotional faxes regarding health care goods and services on behalf of SK&A's customers” was only “one of the purposes for which SK&A used health care provider's fax numbers.” PSGD ¶ 12; Id. Plaintiffs also assert that SK&A did not have a “script” that researchers were trained to use in “verification calls” and that SK&A did not record verification calls prior to April 12, 2012, except some calls in which SK&A “only record[ed] the research associate's side of the calls.” PSGD ¶ 12; Good Decl., Ex. P, 53-54. Considering all of the evidence in the light most favorable to Plaintiffs, the Court finds that there is a genuine dispute as to whether Masimo had Plaintiffs' express invitation or permission to receive the faxes at issue. Although Masimo has established that SK&A had a policy to “respond truthfully” when asked why it wanted the fax number it inquired about, a dispute remains as to whether Plaintiffs actually asked in its verification calls what SK&A wanted the number for. The TCPA puts the burden on the sender to prove its affirmative defense of “prior express invitation or permission.” True Health, 896 F.3d at 926. Using established business practices or contact forms is one of the ways that senders can document they received such permission. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act, 21 F.C.C. Rcd. at 3812, 3829–30. However, by putting the onus on the recipient or receiver of the call to ask why the fax number was needed, SK&A's policies did not guarantee that consent was given by each recipient or receiver. Taking this in conjunction with the evidence that there were no “scripts” used by SK&A's representatives, no call recordings, and Plaintiffs do not recall the conversations with SK&A, the Court finds that there is a genuine dispute and a reasonable jury here could find that Plaintiffs did not consent to the faxes. B. Spoliation Masimo also contends that PHI cannot contest it provided consent due to spoliation and asks that the Court grant an adverse inference that the evidence would have shown that PHI provided permission to send its promotional faxes. DMSJ, 12. Masimo contends and Plaintiffs dispute that PHI deleted emails that may have evidenced consent after it filed its lawsuit. Id., 13. However, the parties do not dispute that PHI did not place a litigation hold, or that they deleted all but two email accounts while this case was pending. Id. at Powell Decl., Ex. 6, 41; Ex. 8 184-185; Ex. 12, 58; Ex. 13, 54-55; PSGD, 44. In support of its argument, Masimo points to testimony that PHI's principals delete emails daily, that PHI destroyed or lost Dr. Martinez' files (the alleged fax addressee) years after PHI filed this action, and that PHI deleted all but two email accounts while this case was pending. DMSJ, 13. Masimo also notes that PHI, who the parties agree has been asserting claims under the TCPA for more than ten years, does not routinely place litigation holds in their TCPA matters. Id.; PSGD 14, 45-46. Masimo also notes that PHI principals testified that they emailed companies to request information about products and routinely delete emails from industry groups with membership forms. Id. 14; Ex. 8, 79-80; Ex. 13, 30-33, 58-60; PSGD 48. A party is entitled to an adverse inference due to spoliation of evidence when “(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind; and (3) the evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Atencio v. TuneCore, Inc., 2018 WL 6265073, at *4 (C.D. Cal. Nov. 13, 2018) (appeal filed) (citing Apple Inc. V. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989–90 (N.D. Cal. 2012) (citing standard from Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). *16 Here, PHI had control of the evidence at hand and had an obligation to preserve it at the time it was destroyed since it had already filed this action. With regards to whether PHI did so with a culpable state of mind, the Court finds it striking that PHI did not institute a litigation hold and has admitted that it has never implemented a litigation hold in any case despite having been admonished for discovery misconduct in other actions. See Physicians Healthsource, Inc. v. Alma Lasers, Inc., 2014 WL 6561781, *4 (N.D. Ill. Nov. 20, 2014); Physicians Healthsource, Inc. V. Allscripts Health Solutions, Inc., 254 F. Supp. 3d 1007, 1027 (N.D. Ill. 2017). Furthermore, a failure to institute a litigation hold on its own is indicative of grossly negligent behavior. See Montoya v. Orange County Sheriff's Department, 2013 WL 12347292, at *7-9 (C.D. Cal. Oct. 15, 2013). PHI has also brought forth TCPA cases for at least a decade and should have known the importance of maintaining records for a litigation that it brought. Thus, at best PHI's destruction of evidence and failure to place a litigation hold was gross negligence. Finally, the Court turns to whether the evidence was relevant to Masimo's consent defense. Masimo argues that the evidence is relevant because PHI “emailed companies to request information about products,” may contain emails from industry groups containing “membership forms” that may have provided consent to receive promotional materials, and that at least one employee used her email to provide consent to another defendant in another TCPA case. DMSJ, 14. Thus, Masimo argues that the deleted emails could show that PHI provided consent to Masimo directly or through an intermediary such as a distributor or a trade group. Id. The Court agrees with Masimo that the deleted emails could have evidenced consent either directly to Masimo or to a third party. This is especially so where PHI principals have testified that they emailed companies to request information about products and routinely delete emails from industry groups with membership forms. Id. 14; Ex. 8, 79-80; Ex. 13, 30-33, 58-60; PSGD 48. Furthermore, given that PHI has never implemented a litigation hold despite filing TCPA cases for a decade, there certainly could have been deleted emails relevant to the 2011 and 2012 faxes. Even more recent emails could contain replies to older emails or refer to prior consent (such as when a party revokes prior consent or an email asking if a party would like to continue receiving faxes). Therefore, the Court finds that a reasonable trier of fact could find that the evidence would support Masimo's defense. Accordingly, the Court GRANTS an adverse inference against PHI and DENIES Masimo's motion for summary judgment as to its “prior express invitation or permission” defense. 2. Whether Plaintiffs are Outside of the Zone of Interest of the TCPA Masimo argues that Plaintiffs are outside of the zone of interests of the TCPA because they have a desire of obtaining promotional faxes in order to file TCPA cases. DMSJ, 16. Masimo notes that it is undisputed that PHI instructed its employee to intercept promotional faxes and send them to an attorney, and instructed employees not to opt out of receiving faxes. Curtis Dep., 93-94, 102-03, 135-36. Geismann's husband similarly collected promotional faxes and sent them to an attorney and did not opt out of promotional faxes. Powell Decl., Ex. 19, 31-34; Ex. 10, 160-164. Masimo also notes that PHI has retained its access to the fax machine even though it is no longer a functioning chiropractic office. Id. at Ex. 17. However, this is irrelevant since what is at issue is Plaintiffs' circumstance at the time the faxes were received. Here, unlike Stoops v. Wells Fargo Bank, N.A., where a plaintiff bought multiple mobile phones in the hopes of receiving calls from creditors to file TCPA lawsuits, Plaintiffs each had a fax machine for purposes of their medical practices, not for the purpose of collecting unsolicited advertisements for TCPA lawsuits. 197 F. Supp. 782, 788, 795-806 (W.D. Pa. 2016). The receipt and collection of advertisements was done in response to the receipt of ads by the fax machine, but the fax machine served a legitimate business purpose. Thus, the Court disagrees that Plaintiffs are outside of the zone of interest of the TCPA. *17 Accordingly, the Court DENIES Masimo's Motion for Summary Judgment as to whether Plaintiffs were outside of the zone of interest. 3. Whether Geismann Has Standing Masimo argues that Geismann lacks standing because Geismann cannot present evidence to establish injury. DMSJ, 19. Geismann's response to Masimo's interrogatory asking Geismann to describe the harm suffered was: “Geismann seeks to recover its statutory liquidated damages individually and on behalf of the class for each TCPA violation.” Powell Decl., Ex. 34, 8. Masimo contends that Geismann cannot claim to have suffered any injury after not identifying such injury in its interrogatory responses. Masimo also contends that a statutory violation alone is insufficient to establish standing. However, “a violation of the TCPA is a concrete, de facto injury.” Van Patten, 847 F.3d at 1043 (9th Cir. 2017). Thus Geismann is only required to show he was sent an unsolicited fax to demonstrate a concrete injury. See Id.; Eric B. Fromer Chiropractic, Inc. v. Si-Bone, Inc., 2019 WL 3577050, *4 (N.D. Cal. Aug. 5, 2019) (finding on a motion to dismiss that “Plaintiff's allegation that the Fax was unsolicited in violation of the TCPA is sufficient to allege a particularized injury in fact.”). Here, the parties do not dispute that Geismann received the April 2012 Fax. However, the parties do genuinely dispute whether the fax was unsolicited. A genuine dispute as to whether the fax is unsolicited also creates a genuine dispute as to whether Geismann has standing. Accordingly, the Court DENIES Masimo's Motion for Summary Judgment as to Geismann's standing. 4. Whether Geismann Was Successfully Sent the October 2011 Fax Masimo argues that Geismann cannot meet its burden of proving that it was successfully sent the October 2011 fax. DMSJ, 21-22. Plaintiffs do not dispute that Geismann did not receive the October 2011 Fax. DMSJ Opp'n., 6. Having considered the evidence in the record, the Court GRANTS Masimo's Motion as to whether Geismann received the October 2011 Fax. IV. CONCLUSION For the foregoing reasons, the Court: 1. GRANTS the Motion to Strike the Biggerstaff Declaration; 2. GRANTS Masimos's Motion to Exclude Mr. Biggerstaff's Opinion; 3. DENIES the Motion for Class Certification; and 4. GRANTS in part and DENIES in part Masimo's Motion for Summary Judgment. The Court defers ruling on Plaintiffs' Motion for Summary Judgment. IT IS SO ORDERED. ___ : 0 Initials of Preparer lmb Footnotes [1] The parties dispute whether the materials collected were “promotional faxes”“ or “advertisements.” Plaintiffs' Statement of Genuine Disputes ¶¶ 16-17. However, they do not dispute that Ms. Curtis collected the faxes and sent them to a TCPA attorney. Id. [2] “In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written evidence filed in opposition to the motion.” L.R. 56-3. [3] Rule 56 was amended in 2010. Subdivision (a), as amended, “carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word — genuine ‘issue’ becomes genuine ‘dispute.’ ” Fed. R. Civ. P. 56, Notes of Advisory Committee on 2010 amendments. [4] The First Report although due on May 6, 2019 and not produced until May 20, 2019, is nonetheless deemed timely filed as a result of an understanding between the parties. See MS, 4; MS Opp'n., 3. [5] The Court notes that Exhibit N to the Good Declaration cited by Plaintiffs does not contain Mr. Deal's alleged response of “I guess.” [6] Masimo's second motion in limine argues that the broadcast reports should be excluded. ECF No. 318-13. [7] Plaintiffs allege that Masimo must prove it had prior express invitation or permission under a “clear and convincing” standard. The FCC Order cited by Plaintiffs notes that senders who “claim their facsimile advertisements are delivered based on the recipient's prior express permission must be prepared to provide clear and convincing evidence of the existence of such permission.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3807 (2006). However, this sentence relates to those senders who “resume sending facsimile advertisements to a consumer that has opted-out of such communications” claiming that the consumer “subsequently provides his express invitation or permission to the sender.” Id. Here, the parties do not dispute that Plaintiffs never opted out of faxes from Masimo. Powell Decl., Ex. 37; Ex. 10, 160, 164. Thus, the clear and convincing standard does not apply here. [8] Masimo notes that SK&A's records do not go back further than those dates.