I. INTRODUCTION

*1 On August 5, 2020, defendant Moss Bros. Auto Group filed a motion for a protective order that would temporarily stay discovery and require an opt-out protocol for putative class members. Docket no. 72. The motion is supported and opposed in a Joint Stipulation (“MPO JS”). Defendant's arguments are further supported by the declaration of defense counsel Adil Khan (“Khan Decl.”) and exhibits thereto. On August 25, 2020, defendant filed a Supplemental Memorandum in support of the motion for a protective order (“MPO D. Supp. Mem.”). Docket no. 89.

On August 6, 2020, plaintiff Jamal Johnson filed a motion to compel defendant's production of documents related to class-wide information. Docket no. 74. The motion is supported and opposed in a Joint Stipulation (“MTC JS”). Plaintiff's arguments are further supported by the declaration of plaintiff's counsel Scott Edelsberg (“Edelsberg Decl.”). A copy of defendant's motion to compel arbitration and stay proceedings is attached to the MTC JS. On August 25, 2020, defendant filed a Supplemental Memorandum in opposition to the motion to compel (“MTC D. Supp. Mem.”). Docket no. 90.

The court found a hearing on the motions would not be of assistance, and so vacated the hearing scheduled for September 8, 2020. The court now denies defendant's motion for a protective order and grants plaintiff's motion to compel for the reasons discussed below.

II. BACKGROUND

Plaintiff purchased a car from Moss Bros. CJD, Inc., a dealership based in Moreno Valley, California, in 2016. MPO JS at 1. Plaintiff alleges he later received unsolicited, prerecorded voicemail marketing messages from defendant Moss Bros. Auto Group in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. MTC JS at 1. Plaintiff seeks to represent a class of individuals who received prerecorded marketing messages without their consent in this putative class action. Id.

At the time plaintiff purchased the car, the underlying contract included an arbitration agreement and class-action waiver. MPO JS at 1. The dealership involved, Moss Bros. CJD, Inc., has not been named as a defendant in this action. Defendant Moss Bros. Auto Group contends it is simply a management company whose only connection to the alleged TCPA violations is that its Director of Marketing served as a main contact for the marketing firms that later contacted plaintiff. Id. at 1-2. Defendant further argues plaintiff deliberately did not name the dealership as a defendant in this action in an attempt to circumvent the arbitration agreement and class-action waiver. Id. at 2.

On July 2, 2020, the dealership, Moss Bros. CJD, Inc., filed a motion to intervene and motion to compel arbitration and stay proceedings. Docket nos. 56-57. On the same day, defendant filed a motion to join Moss Bros. CJD, Inc. as a necessary party. Docket no. 58. On August 24, 2020, the court struck the motion to compel arbitration and stay proceedings as premature because Moss Bros. CJD, Inc. had not yet been permitted to join this case as a party. Docket no. 83. Defendants Moss Bros. Auto Group and Susan Anderson then filed motions to compel arbitration on September 10, 2020, along with a motion to stay all proceedings in this case pending a decision on the motions to compel arbitration. Docket nos. 97-99. At this time, the motion to intervene and motion for joinder remain pending, as do the recently filed motions to compel arbitration and stay the case.

*2 As for the discovery at issue here, on March 17, 2020, plaintiff served written discovery requests on defendant. See MTC JS at 2. Defendant served its responses on April 23, 2020. Id. The parties have met and conferred several times about the disputes raised in the instant motions. Plaintiff states it sent defendant a meet and confer letter on June 11, 2020, but does not specify which topics were outlined in this letter. Edelsberg Decl. ¶ 3. On June 23, 2020, defendant sent plaintiff a meet and confer letter about topics including whether defendant is a proper party to this suit, and whether the parties could agree on a protective order and opt-out protocol. Khan Decl. ¶ 3, Ex. A. On June 25, 2020, the parties met and conferred telephonically. Khan Decl. ¶ 4; Edelsberg Decl. ¶ 4. On July 20, 2020, the parties met and conferred telephonically for a second time. Khan Decl. ¶ 5; Edelsberg Decl. ¶ 5. The parties' discussions during their meet and confers was memorialized in two subsequent emails. Khan Decl. ¶¶ 4-5, Exs. B and C.

III. DISCUSSION

Both parties have filed discovery motions, which raise the following related issues: (1) whether discovery should be stayed pending a decision on motions to compel arbitration; (2) whether plaintiff is entitled to class-wide discovery at this juncture; and (3) whether class-wide discovery can proceed without an opt-out protocol for putative class members.

Fed. R. Civ. P. 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to 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. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

Federal Rule of Civil Procedure 26(c) allows a party to file a motion for a protective order “in the court where the action is pending,” and the court may “issue an order to protect a party or person from ... undue burden,” including an order “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c). Under this rule, courts may “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex. rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (citing Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)) (holding that “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test”).

A. The Court Will Not Order a Stay of Discovery

The parties first dispute whether a stay of discovery is warranted until the court resolves the arbitrability of plaintiff's claims. MPO JS at 5-12; see MTC JS at 1-6. Defendant argues “all discovery is improper” until the court rules on the pending motions to compel arbitration – which, according to defendant, will determine whether plaintiff has a right to conduct discovery. MTC JS at 17. In support of its stay request, defendant principally argues it should not have to incur the expenses of discovery when it has a right to arbitration. MPO JS at 7-9; see MTC JS at 9-10. In one of its supplemental memoranda, defendant also suggests it cannot engage in discovery without potentially waiving its right to have plaintiff's claims decided through arbitration. MTC D. Supp. Mem. at 1-2.

*3 A stay of discovery is a case management issue reserved for the District Judge, who controls the scheduling in this case. As such, any request to stay discovery must be filed with the District Judge in this matter rather than the Magistrate Judge. See, e.g., Pom Wonderful LLC v. Coca-Cola Co., 2009 WL 10655253, at *1 (C.D. Cal. Sept. 16, 2009) (“The fact that the 4AC is ‘untested’ does not, absent a stay of discovery by the District Judge, prevent discovery with respect to the allegations in the 4AC.”); Clark v. Time Warner Cable, 2007 WL 1334965, at *2, n.1 (C.D. Cal. May 3, 2007) (a motion to stay discovery presents a case management issue that should be resolved by the presiding judicial officer in the case). Here, defendants have in fact just filed a motion to stay all proceedings, which is pending before the District Judge.

The court recognizes that there is some uncertainty about whether defendant may risk waiving its arbitration rights by engaging in discovery. A party waives its right to arbitrate when: (1) it has “knowledge of an existing right to compel arbitration”; (2) it “acts inconsistent with that existing right”; and (3) there is “prejudice to the party opposing arbitration resulting from such inconsistent acts.” Hoffman Const. Co. of Oregon v. Active Erectors and Installers, Inc., 969 F.2d 796, 798 (9th Cir. 1992) (citation omitted). Under California law, courts consider a party's actions in

The court appreciates defendant's belated concern that engaging in discovery would risk waiving any right it may have to arbitration. But the question on these motions is not whether defendant is voluntarily “taking advantage of judicial discovery procedures not available in arbitration” so as to have waived its right to arbitration. See St. Agnes Med. Ctr. v. PacifiCare of Cal., 31 Cal. 4th 1187, 1196, 8 Cal. Rptr. 3d 517, 82 P.3d 727 (2003) (citations and internal quotation marks omitted). It is whether defendant should be compelled by the court to produce discovery responses. At this juncture, there has been no ruling on the arbitrability of plaintiff's claims, and in the absence of a stay, discovery must proceed. Indeed, the court's most recent Standing Order in this matter specifically states that “absent exceptional circumstances, discovery shall not be stayed while any motion is pending, including any motion to dismiss or motion for protective order.” See docket no. 47 at 2. The Standing Order directs the parties to “conduct any necessary discovery as soon as possible, as the court is not inclined to grant any extensions of the discovery or other case-related deadlines.” Id.

For these reasons, the court will not order a stay of discovery here. The court therefore turns to the merits of the disputes.

B. Plaintiff Is Entitled to Some Class-Wide Discovery

Plaintiff moves to compel defendant's production of documents regarding class-wide information. MTC JS at 1-3. Defendant contends no discovery of putative class members' information should be permitted until the court resolves the arbitration issue and adopts an opt-out protocol that protects these putative class members' privacy rights. Id. at 3-6. The court first addresses defendant's argument that plaintiff is not entitled to class-wide discovery at this juncture.

“A party seeking class certification must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and the requirements of at least one of the categories under Rule 23(b).” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 542 (9th Cir. 2013). Prior to class certification under Rule 23, discovery lies entirely within the discretion of the court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”) (footnote omitted). Courts generally recognize the need for pre-certification discovery relating to class issues. See id.; Del Campo v. Kennedy, 236 F.R.D. 454, 459 (N.D. Cal. 2006).

*4 In seeking pre-certification discovery, the plaintiff bears the burden to either make a prima facie showing that the Rule 23 class action requirements are satisfied, or to show “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985). “[T]he need for discovery, the time required, and the probability of discovery providing necessary factual information” are also relevant factors “bearing on the correctness of the trial court's exercise of discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (citation omitted). Thus, discovery is likely warranted where it will help resolve factual issues necessary for the determination of whether the action may be maintained as a class action, such as whether there are grounds for a class or subclass. Kamm v. Cal. City. Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975).

Generally, the Ninth Circuit has favored “allowing class contact discovery unless it is apparent that [p]laintiff cannot maintain the action on behalf of the class. Goundar v. Redfin Corp., 2014 WL 12524649, at *2 (C.D. Cal. July 21, 2014). Indeed, “the better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action is maintainable.” Vinole, 571 F.3d at 942 (quoting Doninger, 564 F.2d at 1313) (internal quotation marks omitted). “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, 564 F.2d at 1313 (citations omitted).

Plaintiff seeks to certify the following class: “[a]ll persons within the United States who, within the four years prior to the filing of this action, were sent a Prerecorded Message, from Defendants or anyone on Defendants' behalf, to said person's cellular telephone number, for the purpose of advertising and/or promoting any dealership held, operated, owned, and/or controlled by Defendant Moss Bros.” MTC JS at 1. Plaintiff contends his RFPs seek various categories of documents that will establish numerosity, commonality, and predominance under Rule 23, as well as whether defendant acted “willfully or knowingly” in its alleged TCPA violations. Id. at 15-31.

At this stage in the litigation, plaintiff must only show that the pre-certification discovery he seeks is likely to substantiate the class allegations. Mantolete, 767 F.2d at 1424. He has made such a showing here. The documents that plaintiff seeks include those showing the total number of Prerecorded Messages that were transmitted, previous complaints from customers about Prerecorded Messages, how customers' contact information was collected, and transmission logs of these alleged marketing calls. Class-wide discovery is thus warranted because it appears that the discovery sought will resolve factual issues about whether the instant TCPA action may be maintained as a class action.

Defendant raises several identical objections to each of plaintiff's RFPs. Defendant describes these objections as falling into two categories: (1) its objections that the requests are overly broad, premature, unduly burdensome, irrelevant, disproportional to the needs of the case, and invasive of the privacy rights of third parties are primarily based on its contention that plaintiff's claims are subject to arbitration and a class-action waiver; and (2) its objection to discovery of information about putative class members is based on its argument that a court-ordered opt-out protocol is necessary. MTC JS at 8-14.

In short, it appears many of defendant's objections to plaintiff's RFPs rely solely on its arguments that plaintiff's claims are subject to arbitration or a class-action waiver, and an opt-out protocol is necessary to address privacy concerns. To the extent that defendant raises different objections to individual RFPs, the court addresses these objections below. But while addressing these additional objections, the court recognizes that for each request at issue, defendant indicates its primary objections – those it really seems to stand on – are that discovery should be stayed and there should be an opt-out protocol. See MTC JS at 17, 18-19, 20-21, 22, 25-26, 29, 31-32. As to defendant's primary objections to each request – specifically, defendant's objections that the RFPs are overly broad, premature, unduly burdensome, irrelevant, disproportional to the needs of the case, and invasive of third-party privacy rights – the court overrules the objections. The arbitrability of plaintiff's claims and whether discovery or other proceedings should be stayed are questions for the District Judge to resolve. The need for an opt-out protocol is discussed below.

1. RFP No. 5

*5 RFP No. 5 seeks documents identifying the total number of Subject Prerecorded Messages and Prerecorded Messages sent. MTC JS at 15.

Plaintiff argues RFP No. 5 seeks documents such as call logs and dial lists that will help establish numerosity. Id. at 15-17. Defendant objects to RFP No. 5 on the additional grounds – that is, grounds in addition to those the court has already addressed and overruled above – that the request is vague and ambiguous and seeks confidential and proprietary information. Id.

As plaintiff argues, documents about the total number of Prerecorded Messages appear relevant to establishing numerosity under Rule 23. Given that defendant does not explain the basis for its objections, and it is not clear from the face of the request how it may be vague, ambiguous, or seek confidential or proprietary information, defendant's objections are overruled. See Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“The party resisting discovery must show specifically how ... each question is overly broad, burdensome or oppressive.”) (citation omitted).

Without having the actual requests so as to be able to see how terms are defined, the court is unsure, for example, what “Subject Prerecorded Messages” includes. The court therefore only notes it is possible RFP No. 5 could call for information predating the class period, or about calls made to landline numbers, which are outside the scope of the TCPA. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (the elements of a TCPA claim are that: (1) the defendant called a cellular telephone; (2) the call was made with an automatic telephone dialing system; and (3) the recipient of the call did not give prior express consent); but see Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017) (prior express consent is not an element of the plaintiff's prima facie case but is instead an affirmative defense). To the extent RFP No. 5 seeks information about messages sent to landline numbers, or messages sent prior to the time period used to define the putative class, such information is not relevant to plaintiff's claims.

As such, plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 5 is granted, so long as it is limited to calls or messages to cell phones during the putative class period. This limitation should apply to all discovery requests discussed herein to the extent appropriate and applicable to the request.

2. RFP No. 11

RFP No. 11 seeks all formal or informal complaints received by defendant regarding Prerecorded Messages. MTC JS at 17.

Plaintiff contends consumer complaints are relevant to whether defendants acted willfully and knowingly to violate the TCPA, with such a showing entitling plaintiff to treble statutory damages. Id. at 18. Defendant again objects to RFP No. 11 on the additional ground that the request is vague and ambiguous, but does not explain the basis for this objection. Id. at 18.

A record of complaints to defendant about Prerecorded Messages appears relevant to whether any alleged violation was willful or knowing, and defendant provides no argument to the contrary. Additionally, although the documents sought by RFP No. 11 would bear on damages – an issue beyond the scope of class certification – the court has not bifurcated discovery in this action. See docket no. 47 at 2; see also True Health Chiropractic Inc. v. McKesson Corp., 2015 WL 273188, at *1 (N.D. Cal. Jan. 20, 2015) (“The decision to bifurcate discovery in putative class actions prior to certification is committed to the discretion of the trial court.”).

*6 Accordingly, plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 11 is granted with the limitation to complaints about cell phone messages noted above.

3. RFP Nos. 19 and 20

RFP No. 19 seeks all documents supporting defendant's contention that it obtained express written consent to send the Subject Prerecorded Message. MTC JS at 19. RFP No. 20 seeks all documents supporting defendant's contention that it obtained express consent to send Prerecorded Messages.[1] Id. at 21.

Plaintiff argues defendant has asserted consent as an affirmative defense, and documents supporting this defense are relevant and discoverable. Id. at 20, 22. Defendant objects to both RFPs on the additional ground that they may seek documents protected by the attorney-client privilege and work product doctrine. Id. at 19-22. Defendant further objects on the grounds that the request may seek a legal conclusion and require defendant to produce information in violation of a legal or contractual obligation of nondisclosure or confidentiality to a third party. Id.

Given that defendant has asserted consent as an affirmative defense, documents indicating that defendant obtained consent, written or otherwise, to send any marketing messages appear to be relevant. Additionally, defendant does not explain how the documents sought might be privileged or what legal or contractual obligations might be put at risk. Id. at 20-21.

To the extent that these RFPs seek privileged documents, defendant is not required to produce any privileged documents at this time and should instead produce a privilege log. See Fed. R. Civ. P. 26(b)(5)(A) (parties withholding otherwise discoverable information on the ground of privilege must expressly claim the privilege and “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ... will enable other parties to assess the claim.”). Although there is no requirement that the descriptions of the documents withheld be produced in a particular format, a privilege log is the most common format. See Friends of Hope Valley v. Frederick Co., 268 F.R.D. 643, 650-51 (E.D. Cal. 2010). But all responsive documents not included on a privilege log must be produced.

Plaintiff's motion to compel defendant to produce all documents responsive to RFP Nos. 19 and 20 is therefore granted, except to the extent any such documents are included on a privilege log, and with the limitation to consent to send messages to cell phones during the putative class period described above.

4. RFP No. 30

RFP No. 30 seeks all documents pertaining to the transmission of Prerecorded Messages. MTC JS at 23.

*7 Plaintiff argues RFP No. 30 seeks documents such as call logs and outbound dial lists that are relevant and discoverable. Id. at 23-25. In support of its argument, plaintiff cites numerous cases holding that outbound dial lists are necessary to determine which customers' numbers were dialed by an autodialer, and if the number of call recipients are so numerous as to make joinder impractical. Id.; see, e.g., Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *4 (S.D. Cal. May 9, 2017) (finding that “outbound dial lists are relevant to establish the issues of numerosity and commonality under Federal Rule of Civil Procedure 23(a) and are therefore discoverable.”).

Defendant objects to this request on the additional grounds that it may seek documents protected by the attorney-client privilege and work product doctrine, seeks production of confidential business records, seeks documents that are not in defendant's possession, custody, or control, and requires defendant to produce information in violation of a legal or contractual obligation of nondisclosure or confidentiality to a third party. MTC JS at 23. Defendant conditions its production of those non-privileged documents that are in its possession, custody, or control on the entry of a protective order. Id.

Plaintiff's RFP No. 30 seeks a broad category of documents. But as with the other RFPs at issue in the instant motion to compel, defendant does not explain the basis for its additional objections. Given that plaintiff is entitled to some class-wide discovery at this juncture, defendant must produce responsive documents even in the absence of a court-ordered protective order. But to the extent that RFP No. 30 seeks documents that are privileged, defendant is not required to produce privileged documents and should instead produce a privilege log. Additionally, although defendant's original response stated it would produce non-privileged documents after entry of a protective order, a protective order was subsequently entered on May 12, 2020.

Accordingly, plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 30 is granted, except to the extent any such documents are included on a privilege log.

5. RFP No. 33

RFP No. 33 seeks all documents pertaining to the telephone numbers to which Prerecorded Messages were transmitted, including, but not limited to, transmission reports or logs. Id. at 26.

Defendant objects to this request on the additional grounds that it may seek documents protected by the attorney-client privilege and work product doctrine, seeks production of confidential business records, seeks documents that are not in defendant's possession, custody, or control, and requires defendant to produce information in violation of a legal or contractual obligation of nondisclosure or confidentiality to a third party. Id. at 26-27. Defendant further objects to the request as duplicative of several of plaintiff's other RFPs. Id. Defendant does not explain the basis for its objections.

Even if RFP No. 33 is partially duplicative of other RFPs, plaintiff has sufficiently demonstrated how documents such as transmission reports or logs are relevant to its claims, and defendant provides no arguments to the contrary. Accordingly, defendant must produce documents in response to RFP No. 33, but is not required to produce privileged documents and should instead produce a privilege log. That said, it is not at all clear to the court how something like a transmission log could contain privileged information. As such, the court cautions defendant that there must be a good faith basis to withhold documents for privilege.

*8 The court thus grants plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 33, except to the extent any such documents are included on a privilege log, and with the limitation to cellular telephone numbers that received transmissions during the putative class period described above.

6. RFP No. 37

RFP No. 37 seeks all documents pertaining to the manner in which the lists of telephone numbers to which Prerecorded Messages were sent was compiled or acquired, and that identify the sources of the telephone numbers and the persons who compiled them. Id. at 30.

Plaintiff argues these documents are discoverable because they relate to defendant's consent defense and predominance under Rule 23. Id. at 30-31. More specifically, plaintiff argues it is possible that defendant acquired plaintiff's (and other class members') telephone number indirectly through a lead aggregator or some other source, and if defendant takes the position that this third-party obtained the necessary consent documents, plaintiff is entitled to take discovery on these topics. Id.

Defendant objects to this request on the additional grounds that it may seek documents protected by the attorney-client privilege and work product doctrine, and requires defendant to produce information in violation of a legal or contractual obligation of nondisclosure or confidentiality to a third party. Id. at 30. Defendant further objects to the request as duplicative of RFP No. 38. Id. But defendant provides nothing to rebut plaintiff's argument that defendant may have relied on a third-party to acquire customers' telephone numbers. Nor does it explain the basis for its objections or provide the text of RFP No. 38 such that the court may assess whether the requests are duplicative.

Based on plaintiff's arguments, documents about how the lists of telephone numbers to which marketing messages were compiled appear relevant to both defendant's consent defense and establishing predominance under Rule 23. Accordingly, defendant must produce documents in response to RFP No. 37, but is not required to produce privileged documents and should instead produce a privilege log.

As such, plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 37 is granted, except to the extent any such documents are included on a privilege log.

7. RFP Nos. 8, 11, 12, 14, 17, 18, 24, 25, 26, 27, 29, 30, 35, 40, 43, 45, 46, 47, 48, 50, and 52

The parties dispute whether defendant has improperly withheld documents in response to RFP Nos. 8, 11, 12, 14, 17, 18, 24, 25, 26, 27, 29, 30, 35, 40, 43, 45, 46, 47, 48, 50, and 52. Id. at 14. The parties do not provide the text of these RFPs and thus, the court is unable to determine what information the requests seek. But defendant indicates its only objections to these requests are the general objections the court overruled above. In short, defendant is not permitted to withhold discovery based on the pendency of any motions. Thus, plaintiff's motion to compel defendant to produce all documents responsive to these requests is granted as well.

C. An Opt-Out Procedure Is Not Necessary

Finally, the parties dispute whether an opt-out procedure is necessary to protect the privacy interests of putative class members. Defendant argues a notice under Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal. 4th 360, 372, 53 Cal. Rptr. 3d 513, 150 P.3d 198 (2007), or Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554, 57 Cal. Rptr. 3d 197, 203 (2007), is necessary to protect the privacy interests of putative class members. MPO JS at 12-14. Even if the court declines to order a Pioneer or Belaire-West notice, defendant argues the court should still require plaintiff's counsel to inform each putative class member that he or she has the right not to talk to counsel, and upon declining, counsel will terminate the conversation and not contact that individual again. Id. at 14 n.6.

*9 Plaintiff contends a notice under Pioneer or Belaire-West would only impose unnecessary hurdles and increase costs, and the contact information of potential class members is generally discoverable. Id. at 14-15. Additionally, plaintiff argues an opt-out protocol is unnecessary here because the stipulated protective order already entered in this action sufficiently addresses privacy concerns, the instant action is a consumer class action that does not require a Belaire notice, the District Judge in this matter typically does not approve or require Belaire notices, and plaintiff has agreed to not contact any members of the putative class prior to class certification. Id. at 16-17.

The first question before the court is whether the putative class members' right to privacy warrants limiting the release of their names and contact information. Federal courts ordinarily recognize that a constitutionally-based right of privacy can be raised in response to discovery requests. Soto, 162 F.R.D. at 616. The resolution of a privacy objection involves a balancing of the need for the information sought against the privacy right asserted. Id. (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984)).

In the context of discovery seeking basic contact information, courts have recognized that individuals have a reduced privacy interest in this information. See Artis v. Deere & Co., 276 F.R.D. 348, 353 (N.D. Cal. 2011) (“Further, the privacy interests at stake in the names, addresses, and phone numbers must be distinguished from those more intimate privacy interests such as compelled disclosure of medical records and personal histories.”); Mbazomo v. ETourandTravel, Inc., 2017 WL 2346981, at *6 (E.D. Cal. May 30, 2017) (describing discovery of putative class members' names and telephone numbers in a TCPA action as presenting “minimal privacy concerns”); Thrasher v. CMRE Fin. Servs., Inc., 2015 WL 1138469, at *3 (S.D. Cal. Mar. 13, 2015) (describing production of a call list containing contact information as not constituting “a serious invasion of privacy.”).

Here, the information sought by plaintiff is basic contact information for individuals who may have experienced TCPA violations. As discussed above, courts have found putative class members have a reduced or minimal privacy interest in this basic information. Additionally, there is no indication that the discovery plaintiff seeks could potentially include sensitive information that would trigger a heightened privacy interest. Accordingly, plaintiff's need for the discovery outweighs these privacy interests.

The next question is whether the existing protective order in this action can adequately protect the putative class members' privacy interests, or whether an opt-out procedure is necessary. As the parties note, caselaw is mixed on whether an opt-out procedure is necessary in the context of a putative class action. Compare Thrasher, 2015 WL 1138469, at *3 (“The disclosure of phone numbers and names does not constitute a serious invasion of privacy and is commonplace in class actions.”) with Bright v. Dennis Garberg & Assocs., Inc., 2011 WL 13150146, at *6 (C.D. Cal. Nov. 15, 2011) (“However, to the extent addresses, telephone numbers or other private information is sought, the Court finds that the proper balance between access to the requested information and third party privacy rights is accomplished through the opt out notice and procedure.”).

Defendant cites a number of cases in which courts have required an opt-out notice procedure, but nearly all of these cases are labor and employment actions in which more sensitive information was sought in discovery. See MPO JS at 13-14. Only one of the cases cited by defendant is a TCPA action in which the court ordered a Pioneer opt-out protocol. See Adams v. AllianceOne, Inc., 2009 WL 10671334, at *2 (S.D. Cal. Sept. 24, 2009). In contrast, there is significant caselaw holding that a protective order is sufficient to address privacy concerns in a TCPA class action. See, e.g, Thrasher, 2015 WL 1138469 at *6; Haghayeghi v. Guess?, Inc., 168 F. Supp. 3d 1277, 1281 (S.D. Cal. 2016); Stemple v. QC Holdings, Inc., 2013 WL 10870906, at *4 (S.D. Cal. June 17, 2013).

*10 Here too, the court finds the existing protective order is adequate to address any privacy concerns. See Currie-White v. Blockbuster, Inc., 2010 WL 1526314, at *4 (N.D. Cal. Apr. 15, 2010) (finding in an employment action that a protective order would be sufficient to address the privacy concerns of putative class member employees); see also Artis, 276 F.R.D. at 353 (finding potential privacy interests of putative class members are adequately balanced where parties can craft protective order limiting use, and protecting from disclosure, contact information).

The only remaining issue is whether plaintiff's counsel should be ordered to inform each contacted putative class member that he or she has the right not to talk to counsel, terminate the conversation, and not be contacted again. Plaintiff here states that he “has agreed to stipulate that [he] will not contact any members of the putative class prior to class certification.” MPO JS at 16. Defendant argues such an agreement is a “red herring” because no such offer was communicated to defendant and no e-mail, letter, or filing references such an agreement. MPO D. Supp. Mem. at 3.

Nothing in the record before the court indicates that counsel in this action is attempting to misuse the information sought. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101-02, 101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981) (“[A]n order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.”). If evidence emerges later on of misleading, intimidating, or coercive communications, the parties may seek additional guidance from the court. But at this juncture, there is no indication that an order limiting communication is necessary.

IV. CONCLUSION

For the foregoing reasons, the court denies defendant's motion for a protective order (docket no. 72) and grants plaintiff's motion to compel (docket no. 74), as set forth above.

Plaintiff argues the court should also order the production of documents in response to its RFP No. 36 because it seeks “materially the same information” as RFP No. 20. MTC JS at 21, n.6. But the court does not have the benefit of having the exact text of this discovery request before it. Without this information, the court cannot rely on plaintiff's word that defendant is simply refusing to produce documents in response to a request seeking relevant information. Accordingly, the court will not order defendant to produce documents in response to RFP No. 36 at this time.