*1 Pending before this Court is Plaintiffs' Motion to Compel DirecTV to Respond to Discovery. [Doc. 210]. Defendant DirecTV, LLC (“defendant DirecTV”) filed a Memorandum in Opposition to Plaintiffs' Motion to Compel. [Doc. 213]. Plaintiff's filed a Reply Memorandum in Support of Their Motion to Compel DirecTV to Respond to Discovery. [Doc. 220]. Accordingly, this matter is ripe for adjudication. For the reasons contained herein, the Motion will be granted, in part.

Through the pending Motion, plaintiffs seek documents and information concerning telemarketing complaints lodged with defendant DirecTV. Plaintiffs' assert three (3) initial arguments in support of their Motion. First, plaintiffs argue that documents regarding how defendant DirecTV handled and responded to TCPA complaints are relevant because defendant DirecTV's “safe harbor” defense requires proof that it implemented procedures to ensure compliance with the TCPA. [Doc. 210 at 1–2]. Next, plaintiffs contend that the sought-after information about defendant DirecTV's handling of telemarketing complaints is necessary for plaintiffs to challenge DirecTV's claim that its retailers are independent contractors not subject to its control. [Id. at 2]. Third, plaintiffs argue that the requested information about defendant DirecTV's handling of complaints bears directly on whether defendant DirecTV's alleged violations were willful or knowing. [Id.].

Plaintiffs allege in count I that they received DirecTV calls on their cellular telephone lines that were placed using an automatic telephone dialing system (“ATDS”) as prohibited by 47 U.S.C. § 227(b)(1)(A). See [Doc. 209 at ¶¶ 98–99]. In count II, plaintiffs allege that defendant DirecTV's agents initiated at least two calls in a twelve-month period to phone numbers on the National Do Not Call Registry, in violation of 47 U.S.C. § 227(c) (the “do not call claim”). See [Doc. 209 at ¶¶ 99, 102]. Plaintiffs further allege that defendant DirecTV is vicariously liable on all counts for violations caused by its authorized dealers and agents, and that these violations were willful and knowing. [Id. at ¶¶ 1–4, 7, 73–83, 99 & 102].

In response, defendant DirecTV raises two defenses: (1)the affirmative “safe harbor” defense, which requires proof “that the violation is the result of error and that as part of its routine business practice ... [it] has established and implemented written procedures to comply with the national do-not-call rules[.]” see [Doc. 201 at 36] and 47 C.F.R. § 64.1200(c)(2)(1); and (2) it is not vicariously liable for calls made by its dealers because those dealers are merely independent contractors. See [Doc. 201 at 36].

The following discovery requests are in dispute.

State all facts currently known in support of any affirmative defenses you have raised.

DirecTV's Response:

DIRECTV objects to this Interrogatory on the grounds that the request to “state all facts” regarding any affirmative defenses in its answer imposes a disproportionate burden on DIRECTV, given the needs of the case. Furthermore, DIRECTV objects to this Interrogatory on the grounds that it invades the attorney work product privilege. Moreover, the Interrogatory is premature, as it requires DIRECTV to marshal all its proof in advance of trial. Subject to its objections, DIRECTV responds as follows:

Affirmative Defense No. 6-8: Vicarious Liability, Third-Party Involvement, Causation.

Plaintiffs' Amended Complaint indicates that the calls in question did not come from a number associated with DIRECTV, but rather came from third-party independent authorized dealers. DIRECTV does not own or control these dealers and had no knowledge of the dealers placing the calls at issue prior to filing the lawsuit. DIRECTV did not authorize or approve the authorized dealers to place any telemarketing call to the Plaintiffs. To the contrary, such calls were forbidden by the agreements between DIRECTV and the independent authorized dealers.

Affirmative Defense No. 9: Practices and Policies

DIRECTV took adequate steps to ensure compliance with the do-not-call requirements of the TCPA by promulgating policies and procedures that forbid nearly all outbound telemarketing by third-party independent authorized dealers. Those policies and procedures are described in the marketing guidelines that were incorporated into DIRECTV'S agreement with each third-party independent authorized dealer. DIRECTV will produce a copy of those marketing guidelines.

Please detail any actions you took against DirecTV Preferred Dealer or independent retailer (including, but not limited to, Steel Security and North Kentucky Satellites), or their current or former directors, officers, employees, or representatives, based in whole or in part on the deposition testimony of Adam Cox.

DirecTV's Response:

DIRECTV objects to this Interrogatory on the grounds that it is not limited to any relevant time period or to issues related to the subject matter of the complaint. Furthermore, the information sought is not relevant to any claim or defense in this matter because the claims at issue do not relate to telemarketing by those dealers listed here. Furthermore, DIRECTV objects to this Interrogatory to the extent it seeks information protected by the attorney client privilege, the attorney work product doctrine, or any other applicable privilege. DIRECTV is not responding to this Interrogatory on the basis of these objections.

Please produce all documents in your possession, custody, or control that you may use to support your claims or defenses....

DirecTV's Response:

DIRECTV objects to this Request on the grounds that it prematurely requires it to determine what proof it will use to support its claims or defenses at trial. Moreover, DIRECTV objects to producing information that is protected by the attorney client privilege, the attorney work product, or any other applicable privilege. Furthermore, DIRECTV cannot produce documents it may use to support defenses against absent class members until such class members are identified....Subject to its objections, DIRECTV responds as follows:

Produce all complaints of any nature received by you in any way relating to allegations that any Preferred Dealer or independent retailer of DirecTV was engaging in telemarketing in violation for state or federal telemarketing law, and all documents relating to your investigation and response to such complaints.

DirecTV's Response:

DIRECTV objects to this Request on the grounds that it is not limited to any relevant time period or to issues related to the subject matter of the complaint. DIRECTV further objects to this Request to the extent it seeks information about actions unrelated to the telemarketing claims at issue in the case. Such information is not relevant to any claim or defense in this matter. DIRECTV further objects that the request is unduly burdensome and fails to satisfy the proportionality requirements of the federal rules. Moreover, DIRECTV objects to this Request to the extent it seeks information protected by the attorney-client privilege, the attorney work product doctrine, or any other applicable privilege. Additionally, information about unrelated litigation or demands is not relevant to any claim or defense in this matter. Furthermore, information about any independent third-party dealer other than AC1 is not relevant to any claim or defense in this matter. This includes the other dealers listed in the Amended Complaint, for the reasons set forth in General Objections No. 7-8. DIRECTV is not searching for documents on the basis of these objections.

See [Doc. 210-1].

Plaintiffs aver that the time frame specified in these discovery requests is four years prior to the original filing of the complaint–December 11, 2013, to the present. [Doc. 210 at 5].

The parties lodge several arguments in support of their respective positions, and this Court will address each in turn.

I. The Motion's Timeliness

Local Rule 37.02 requires the filing of a motion to compel discovery within thirty (30) days after the responses were due, absent “excusable neglect” or “some other valid reason” for the late filing. See L.R. Civ. P. 37.02(b). Here, defendant DirecTV responded to the discovery requests at issue on March 24, 2021. See [Doc. 210-1]. Plaintiffs filed the pending Motion on June 4, 2021, 72 days after defendant DirecTV responded to discovery. See [Doc. 210]. According to defendant DirecTV, this violation of the rule on its face warrants denial of the pending Motion. [Doc. 213 at 6–7]. In their Reply, plaintiffs counter that their delay in filing in the pending Motion was due to a valid reason–namely, the “extensive but ultimately unsuccessful meet-and-confer effort” engaged by the parties to reach an agreement on the subject discovery dispute. [Doc. 220 at 2]. In support, plaintiffs attach numerous email chains demonstrating, after a reluctant review by this Court, that the parties at least attempted in good faith to resolve this dispute prior to the filing of the pending Motion. Such exchange, in this Court's view, constitutes a valid reason for delay in filing the Motion, and this Court declines to the deny the Motion solely on the grounds of timeliness.

II. Discoverability of Requested Information

*4 Plaintiffs argue that certain information and documentation regarding how defendant DirecTV implemented its TCPA compliance procedures is discoverable. [Doc. 210 at 6]. In support thereof, plaintiffs contend that by raising the safe harbor defense, defendant DirecTV put its monitoring and compliance functions at issue in this litigation. [Id. at 7]. This Court agrees. However, this Court also agrees with defendant DirecTV's assertion that its safe harbor defense does not entitle plaintiffs to engage in a fishing expedition to comb through every instance in which defendant DirecTV engaged with dealers not implicated in the subject lawsuit. The Court notes defendant DirecTV's concessions to plaintiffs concerning its agreement to produce non-privileged documents regarding its relationship with AC1, and its agreement concerning its search of Steve Shapiro's files concerning dealer North Kentucky Satellites. See [Doc. 213 at 9–10].

Similarly, this Court agrees that certain information concerning defendant DirecTV's handling of telemarketing complaints could be relevant and probative in determining issues surrounding defendant DirecTV's alleged vicarious liability and willful or knowing conduct in this matter. However, this Court is incapable of issuing a specific ruling as to the discoverability of this information without reviewing the entirety of this information, which is not presently before this Court.

Rather than attempt to craft a document-specific ruling concerning the subject discovery dispute at this time, this Court DIRECTS the parties to engage and negotiate a search that will generate relevant documents while not subjecting defendant DirecTV to an undue burden based on this Court's aforementioned guidance. This Court notes counsels' experience in litigating TCPA claims and the exchange of discovery associated therewith. As such, this Court strongly encourages the parties to resolve this discovery dispute through an additional meet-and-confer, and ORDERS the parties to inform this Court of the status as to resolution of the subject dispute with fourteen days of the entry of this Order. To this extent, Plaintiffs' Motion to Compel DirecTV to Respond to Discovery [Doc. 210] is GRANTED IN PART.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.