Frey v. Frontier Utilities Ne. LLC
Frey v. Frontier Utilities Ne. LLC
2020 WL 12697468 (E.D. Pa. 2020)
April 13, 2020

Marston, Karen Spencer,  United States District Judge

Redaction
Failure to Produce
ESI Protocol
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Summary
The Court granted Plaintiff Jon Frey's motion to compel Defendant Energy Acquisitions Group, LLC (EAG) to produce records of outbound telemarketing calls and communications between EAG and Frontier regarding telemarketing or customer acquisition by April 30, 2020. The Court suggested that an Electronic Stored Information (ESI) protocol could be used to limit the burden on EAG in complying with this Order.
JON FREY, Plaintiff,
v.
FRONTIER UTILITIES NORTHEAST LLC, et al., Defendants
CIVIL ACTION NO. 19-2372-KSM
United States District Court, E.D. Pennsylvania
Filed April 13, 2020

Counsel

Joseph Francis Murray, Brian K. Murphy, Pro Hac Vice, Jonathan P. Misny, Pro Hac Vice, Murray Murphy Moul & Basil LLP, Columbus, OH, Marc E. Davies, Philadelphia, PA, Anthony Paronich, Pro Hac Vice, Paronich Law, P.C., Hingham, MA, for Plaintiff.
Michael P. Daly, Deanna J. Hayes, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, Abigail M. Lyle, Hunton Andrews Kurth LLP, Dallas, TX, Jeffrey Migit, Hunton Andrews Kurth LLP, Houston, TX, Marsha J. Indych, Faegre Drinker Biddle & Reath LLP, New York, NY, Michele R. Blythe, NextEra Energy Resources, LLC, Juno Beach, FL, Thomas R. Waskom, Hunton & Williams, LLP, Richmond, VA, for Defendant Frontier Utilities Northeast LLC.
Marston, Karen Spencer, United States District Judge

ORDER

*1 AND NOW, this 13th day of April, 2020, upon consideration of Plaintiff Jon Frey's Motion to Compel Discovery from Defendant Energy Acquisitions Group, LLC (Doc. No. 52), Defendant Energy Acquisitions Group's (EAG) response brief (Doc. No. 57), and Frey's reply brief (Doc. No. 60), the Court finds as follows:
 
1. Frey moves to compel EAG to produce records of outbound telemarketing calls made by it or by its vendor, Team Odd Jobs, on behalf of Defendant Frontier Utilities Northeast LLC. (Doc. No. 52 at pp. 2–3.) EAG has produced a spreadsheet listing its outbound calls, but the spreadsheet redacts customer names and phone numbers. (Doc. No. 57-2.) Frey argues that that the unredacted outbound call list is “relevant to both class certification and [the] merits [of his claim] ... because from the outbound dial list, it can be determined how many calls were made to offending telephone numbers, which determines liability and damages.” (Doc. No. 52 at p. 4.) EAG responds that Frey is not entitled to identify personal information of putative class members at the pre-certification stage without a compelling reason. (Doc. No. 57 at p. 2.)
 
2. Frey also seeks records of communications between Frontier and EAG about telemarketing and consumer acquisition. (Doc. No. 52 at p. 4.) Frey argues that the communications are “highly relevant to the issue of vicarious liability because the communications will show the extent to which EAG is an agent of Frontier and the extent to which Frontier authorized the telemarketing calls at issue, controlled EAG's activities in the telemarketing campaign, and benefitted from the telemarketing campaign.” (Doc. No. 52 at p. 4.) EAG has produced communications related to Frey's call, as well as copies of the contracts between EAG and Frontier, and EAG and Team Odd Jobs. (See Doc. No. 57 at p. 3.) But it has not produced all communications on the grounds that it is a “small company and cannot be expected to search for, review, and produce every single communication it had with one of its customers.” (Doc. No. 57 at p. 3.)
 
3. EAG also broadly argues that Frey's requests should be denied and discovery “limited to the dispositive issue of whether an ATDS was used.” (Doc. No. 57 at p. 5.)
 
4. Under Federal Rule of Civil Procedure 26, a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). Information is relevant if “it has any tendency to make a fact more or less probable,” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. “In this district, courts have determined that relevancy is to be broadly construed for discovery purposes and is not limited to the precise issues set out in the pleadings or to the merits of the case.” In re Lincoln Natl. COI Litig., Nos. 16-cv-6605, 17-cv-2592, 2019 WL 5073573 at *2 (E.D. Pa. July 19, 2019) (slip opn.) (quotation marks omitted).
 
5. A requesting party may compel discovery if the responding party fails to produce all responsive documents. Fed. R. Civ. P. 37(a)(3)(B)(iv). The “party seeking discovery has the burden of showing the information sought is relevant to the subject matter of the action, while the party resisting discovery has the burden of clearly explaining its objections and providing the support thereto. Supermedia LLC v. Morley, Nos. 13-176, 12-2329, 2013 WL 12249489 at *2 (E.D. Pa. Sept. 5, 2013) (citations omitted). “The onus is on the party objecting to discovery to state the grounds for the objection with specificity,” and “[m]ere recitation of the familiar litany that an interrogatory or a document production request is overly broad, burdensome, oppressive and irrelevant will not suffice.” Harcum v. LeBlanc, 268 F.R.D. 207, 210 (E.D. Pa. 2010) (quotation marks omitted). “[O]nce the objection has been properly articulated, the burden rests with the party seeking discovery to show that a discovery request lies within the bounds of Rule 26.” Id. If he does, “the party opposing discovery must convince the court why discovery should not be had.” Id.
 
*2 6. Frey has shown that the outbound call list is relevant to class certification and to the merits of his claim. See, e.g., Gossett v. CMRE Fin. Servs., 142 F.Supp.3d 1083, 1087 (S.D. Cal. 2015) (“This court finds that the outbound call lists are relevant to the class claims and meritorious claims and defenses in this case and overrules [the defendant's] objections to the requests.”). The call records can be used to determine which calls were made to cell phone numbers, a fact that is relevant to the numerosity and typicality requirements of Rule 23(a). See Thrasher v. CMRE Fin. Servs., Inc., No. 14-cv-1540, 2015 WL 1138469 at *2 (S.D. Cal. March 13, 2015) (“The court finds that the outbound call list is reasonably calculated to identify the number and recipients of calls made during the class period, which is relevant to Rule 23 requirements.”). (See Doc. No. 36 at p. 12 (defining the putative class as all individuals to whom Frontier or its vendor made a non-emergency telephone call “to a cellular telephone number or to a number where the recipient is charged for the call”).) It is also relevant to the question of liability and damages under the TCPA. See 47 U.S.C. § 227(b)(1)(A)(3) (prohibiting calls “using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service ....”); id. § 227(b)(3)(B) (creating a private right of action to recover “for actual monetary loss” caused by a violation of the TCPA or “to receive $500 in damages for each such violation”).[1] EAG argues that Frey is not entitled to this personal identifying information pre-class certification, but, as discussed below, the Court did not bifurcate the discovery period in this matter. As such, Frey was required to seek discovery on both his individual claim and his class claim at the same time and could not wait until after the Court ruled on his motion for class certification to request this relevant information.
 
7. Frey has also shown that the communications between EAG and Frontier are relevant to Frey's claim for vicarious liability. EAG argues that it has produced communications related to Frey's call and the contracts between itself and Frontier and itself and Team Odd Jobs. But vicarious liability turns not only on the language used in a contract between the parties but also on “the actual practice between the parties.” See Klein v. Commerce Energy, Inc., 256 F.Supp.3d 563, 584–85 (W.D. Pa. 2017) (explaining that “[v]icarious liability under the TCPA may be established under a broad range of agency theories, including formal agency, apparent authority and ratification” and under each theory, the “relationship between the parties is paramount in determining whether there can be vicarious liability”); see also Ruby v. DISH Network, LLC, No. 18-0400, 2019 WL 1466746 at *1 n.1 (E.D. Pa. March 26, 2019) (slip opn.) (relying on Klein for the proposition that “vicarious liability due to the existence of an agency relationship depends on the facts and circumstances of each case”).
 
8. Last, the Court is not convinced by EAG's argument that Frey's motion should be denied and discovery limited to whether an automatic telephone dialing system was used. The Court previously decided not to bifurcate discovery. (See Doc. Nos. 26 & 36.) Because class discovery is on the same timeline as fact discovery, Frey was required to seek all information and documents that were relevant to his claims during that time or risk losing the right to do so.
 
For those reasons, it is ORDERED that Frey's motion to compel call records and communications between EAG and Frontier “regarding telemarketing or customer acquisition” is GRANTED.[2] Notwithstanding the Court's Order staying the case, by April 30, 2020, EAG shall produce an unredacted record of the outbound calls made by it and/or Team Odd Jobs on behalf of Frontier and communications between it and Frontier related to telemarketing and customer acquisition. The Court expects the parties to work together to limit the burden on EAG in complying with this Order.[3]
 
*3 IT IS SO ORDERED.

Footnotes
In addition, there appears to be minimal burden for EAG to produce the list of phone numbers to which outbound calls were made because EAG has already produced this information in redacted form. (See Doc. No. 57-2.)
To the extent that Frey also requests recordings of the calls placed by EAG or Team Odd Jobs on Frontier's behalf, that request is DENIED. Frey has not explained why he would need every recording of every call identified in the call logs.
For example, Frey states in his briefing that he “offered to engage the use of an ESI protocol and search terms during the meet and confer process.” (Doc. No. 52 at p. 6.) Nothing in this Order requires the use of an ESI protocol, but an ESI protocol is one of many options that could limit the burden on EAG.