FTC v. Am. Future Sys., Inc.
FTC v. Am. Future Sys., Inc.
2021 WL 8363249 (E.D. Pa. 2021)
December 31, 2021

Rohn, James J.,  Special Master

Voicemail
Custodian
Audio
Search Terms
Special Master
Metadata
Failure to Produce
Cloud Computing
Proportionality
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Summary
The Court granted Plaintiffs' Motion to Compel AFS to produce documents responsive to the FTC's Second Set of Requests for Production of Documents. AFS must produce documents related to reports provided to Edward Satell, recordings of calls, emails with customer service, the text document that includes customer responses to the “order confirmation” emails, emails with AFS' collections department, complaints to the BBB and Attorney General, AFS' response, and AFS' communication with each consumer. Additionally, AFS must conduct a keyword search with the specified parameters and custodians for ESI.
Additional Decisions
FEDERAL TRADE COMMISSION, et al., Plaintiffs,
v.
AMERICAN FUTURE SYSTEMS, INC., et al., Defendants
CIVIL ACTION No. 2:20-cv-02266
United States District Court, E.D. Pennsylvania
Filed December 31, 2021

Counsel

Christian M. Capece, Derek E. Diaz, Harris A. Senturia, Maris Snell, Amy C. Hocevar, Fil Maria Debanate, U.S. Federal Trade Commission, Cleveland, OH, for Plaintiff Federal Trade Commission.
John Abel, PA Office of Attorney General Bureau of Consumer Protection, Harrisburg, PA, Sarah Anne Ellis Frasch, PA Office of Attorney General, Philadelphia, PA, Amy C. Hocevar, Derek E. Diaz, Federal Trade Commission, Cleveland, OH, for Plaintiff Commonwealth of Pennsylvania.
Ilana H. Eisenstein, DLA Piper LLP, Philadelphia, PA, David H. Marion, Morgan S. Birch, White and Williams LLP, Philadelphia, PA, Casey A. Coyle, Mark S. Stewart, Eckert Seamans Cherrin & Mellott LLC, Harrisburg, PA, for Defendants American Future Systems, Inc., Progressive Business Publications of New Jersey, Inc., Edward M. Satell.
Stephen M. Hladik, Eric J. Phillips, Pamela L. Cunningham, Hladik Onorato & Federman, LLP, North Wales, PA, for Defendants International Credit Recovery, Inc., Richard Diorio, Jr., Cynthia Powell.
Rohn, James J., Special Master

REPORT AND RECOMMENDATION OF SPECIAL MASTER JAMES J. ROHN, ESQ.

*1 Before the Special Master is the FTC's Motion to Compel AFS to Produce Documents Responsive to the FTC's Second Set of Requests for Production of Documents. (Doc. # 75). AFS submitted a response in opposition and the FTC submitted a reply. (Doc. # 78; Doc. # 81.) The Commonwealth of Pennsylvania has joined the FTC's Motion. (Nov. 30, 2021, Pls.’ email to Special Master.) In an effort to resolve their disputes, the parties have participated in two conference calls with the Special Master and exchanged numerous letters. The status of the disputes in this motion, according to Plaintiffs, are summarized in Plaintiffs’ August 31 and September 29, 2021 letters. AFS’ summary of the status of the disputes in this Motion are found in its August 25, September 13, and September 28, 2021 letters.[1]
I. DISCOVERY REQUESTS THAT ARE IN DISPUTE
The FTC attached to its Motion a list of discovery requests referenced in its Memorandum of Law. (Doc. #75-1 at 27-29.) The Special Master understands, based on the FTC's proposed Order attached to its Motion, that the discovery requests attached at pages 27-29 of its Memorandum of Law are the discovery requests disputed in the Motion (which is a subset of the FTC's second set of Requests for Production of documents).
In the filings and letters, the parties have referred to the RFPs by categories,[2] which the Special Master sets out here. According to the parties, the categories of the disputed discovery requests are as follows:
1. Reports Provided to Edward Satell: FTC RFP 2; Commonwealth RFP 2.
2. Recordings of Calls:[3] FTC RFPs 27, 28, and 35; Commonwealth RFPs 28, 29, and 36.
3. Emails with Customer Service: FTC RFPs 38, 39, and 40; Commonwealth RFPs 39, 40, and 41.
4. The Text Document that Includes the Customer Responses to the “Order Confirmation” Emails: FTC RFPs 35, 38, 40, and 41; Commonwealth RFPs 36, 39, 41, and 42.
5. Voicemails and Emails from January 1, 2015-December 31, 2020 Sent From localtouch@pbp.com: FTC RFPs 38 and 42; Commonwealth RFPs 39 and 43, and FTC RFPs 35, 38, and 42; Commonwealth RFPs 36, 39, and 43, respectively.[4]
6. Emails with AFS’ Collections Department: FTC RFPS 35, 38, 39, and 40; Commonwealth RFPs 36, 39, 40, and 41.
8. Documents Responsive to Request 47: FTC RFP 47; Commonwealth RFP 48.
9. Manager Employee Files: FTC RFP 49; Commonwealth RFP 50.
10. AFS’ Communications with Debt Collectors: FTC RFPs 15, 18, and 19; Commonwealth RFPs 16, 19, and 20.
(Aug. 31, 2021, Pls.’ ltr summarizing disputes; Sept. 13, 2021, AFS’ ltr summarizing disputes.) The Special Master need not reiterate the parties’ positions on these disputes, as they are set out in specific detail in the August 31 and September 13, 2021 letters, respectively. Below the Special Master provides a brief synopsis of the parties’ positions. All of the arguments and positions have been considered, even if they are not specifically cited or referenced.
II. THE SPECIAL MASTER'S ANALYSIS
1. Reports Provided to Edward Satell: FTC RFP 2; Commonwealth RFP 2.
*2 Plaintiffs seek, in sum, all reports that were provided to Edward Satell that relate to complaints regarding subscriptions, quality assurance reports, information about orders, cancels, or payments by a specific representative, branch, or region, reviews of tapes of telemarketing calls, and any report mentioned in the AFS quality control introduced during Mr. Satell's deposition. (Aug. 31, 2021, Pls.’ ltr at 4.) AFS’ position is that it “will produce any such reports sent to Defendant Edward M. Satell and is still in the process of reviewing Plaintiffs ESI proposal and will supplement such list with any additional search terms directed at these reports.” (Aug. 25, 2021, AFS’ ltr at 1.) AFS states that it responded to Plaintiff's Joint ESI Proposal, which includes Mr. Satell as a custodian, and included search terms believed to be targeted at these documents. (Sept. 13, 2021, AFS’ ltr at 2.) As this discovery is within the scope of Federal Rule 26(b), and AFS has agreed to provide it, the Special Master will recommend that AFS produces reports provided to Mr. Satell, as specifically requested in FTC RFP 2 and Commonwealth RFP 2. This production should be limited, consistent with the Court's November 3, 2021 Order (Doc. # 128), to reports that were provided to Mr. Satell from July 1, 2015 to present. If no such reports exist, AFS must provide a verification that no such reports exist.
2. Recordings of Calls: FTC RFPs 27, 28, and 35; Commonwealth RFPs 28, 29, and 36.
Plaintiffs seek recordings of all outgoing calls for the first day of each month since AFS began maintaining audio records of outgoing calls. (Aug. 31, 2021, Pls.’ ltr at 5.) AFS objected to this request and cited to the burden associated with individual call extraction due to AFS’ call interface system. Plaintiffs, in turn, suggested that: a) AFS provide an e-discovery liaison to speak with the FTC's experts to determine a way to extract the calls, or b) AFS supply a list of orders with entity name for the last 3 days of each month and Plaintiffs would select a certain number of orders from that list, and AFS provide the recordings for those orders. (Id.) AFS rejected the proposal to make an e-discovery liaison available to speak with the FTC's experts. (Aug. 25, 2021, AFS’ ltr at 2.) AFS stated that it has created a “back-end code which aims to identify which recordings in a day resulted in an order” for purposes of sampling only. (Sept. 13, 2021, AFS’ ltr at 3.) Plaintiffs’ latter proposal is a workable and agreeable method to resolve this dispute. AFS stated that “AFS can provide this list [of all outbound calls from a select day which includes the company name] with some exceptions.” (Aug. 25, 2021, AFS’ ltr at 2.) AFS stated that this list can be provided in a screen shot format. (Id.) AFS stated that it is unable to “sort or que” the recordings by any means other than date. (Id.) Plaintiffs responded to this proposal, requesting that Plaintiffs be permitted to select recordings from a list of orders, rather than a list of outbound calls. (Aug. 31, 2021, Pls.’ ltr at 9.)
Plaintiffs also request that AFS provide metadata for all future discovery productions. (Id.) Plaintiffs “request that AFS reconcile its statement in the AFS Quality Control Overview that the Quality Department listens to the recording for 20% of orders every week and also listens to the recordings of about 15 to 20% of refusals ... if the process of listening to recordings is as burdensome as described.” (Id.)
A workable solution to this dispute is as follows. AFS should supply to Plaintiffs a list of orders with entity or company name for the last 3 days of each month from July 1, 2015 to present. As AFS stated that it is able to sort recordings by date, AFS should also supply to Plaintiffs all recordings of outgoing calls for the last 3 days of each month from July 1, 2015 to present. This solution permits Plaintiffs to obtain discovery in compliance with Rule 26(b), relieves AFS from the burden of listening to and sorting records, and requires AFS to comply with its Rule 26 discovery obligations. This solution avoids AFS using a back-end code that it created solely for purposes of responding to discovery.
With respect to Plaintiffs’ request that AFS provide metadata to Plaintiffs, the Court's standing Scheduling and Motion Policies and Procedures state that: “It is expected that the parties will reach an agreement on how to conduct electronic discovery. In the event the parties cannot reach such an agreement before the Rule 16 scheduling conference, the court will enter an order incorporating default standards.” (Nov. 2020, Judge Slomsky Scheduling and Motion Policies and Procedures at 5.) The parties’ agreement regarding electronic discovery governs the production of metadata. If no agreement has been reached, the parties should have raised that in front of Judge Slomsky. If the parties did not raise that in front of Judge Slomsky, consistent with his Scheduling and Motion Policies and Procedures, the Eastern District of Pennsylvania default standards regarding electronic discovery control here and govern the production of metadata.[5] Moreover, AFS states that it has told Plaintiffs “that there is no metadata available for these audio files maintained in the ordinary course of business. [And] AFS provided a detailed description as to where Plaintiffs can find the requested metadata (date of the call.)” (Sept. 13, 2021, AFS’ ltr at 4.) There is no dispute here for the Special Master to resolve.
*3 Next, Plaintiffs seek recordings of outgoing calls for specific consumer complaints made to the Better Business Bureau, the Attorney General, or the FTC since the AFS began maintaining audio recordings of outgoing calls in May 2019. On August 10, 2021, AFS requested that, in order to address the proportionality and burden to be taken on by AFS in locating these recordings: “for any 20 alleged complaining subscribers, AFS will use its best efforts to locate any such recordings to the extent it exists if Plaintiffs provide either AFS’ account number or (1) the business name; (2) the business address; and (3) the name of the individual who placed the order with AFS and/or the date the order was placed.” (See Aug. 31, 2021, Pls.’ ltr at 10.) Plaintiffs responded that Plaintiffs have provided AFS with “information for 60 complaints from which AFS should be able to identify the orders at issue” and proposed that AFS produce recordings for the 60 complaints and an additional 40 complaints to be designated later by Plaintiffs. (Id.) AFS has agreed to provide 40 recordings at this time, and rejects the proposal to provide recordings at a later, undetermined date. (Sept. 13, 2021, AFS’ ltr at 5.)
The parties appear to be nearing an agreement on this dispute. Consistent with the parties’ letters and Rule 26(b), Plaintiffs should (if they have not already) provide to AFS for 75 complaints either AFS’ account number or (1) the business name; (2) the business address; and (3) the name of the individual who placed the order with AFS and/or the date the order was placed. AFS has represented that this information will aid it in locating the recordings at issue. AFS should then provide Plaintiffs with the 75 requested recordings. If AFS is unable to locate any of the 75 requested recordings, Plaintiffs may request a different recording in place of what cannot be located. Plaintiffs should provide to AFS the information listed in Lines 129-131 to aid AFS in locating the recording. Plaintiffs should be limited to receiving 75 total recordings related to specific consumer complaints made to the Better Business Bureau and the Attorney General.[6] Plaintiffs should provide the information listed in Lines 129-131 to AFS within 7 days of the date of the Court's Order on this Report & Recommendation. Plaintiffs are not permitted to make any request on this dispute at a later undetermined date, or to supplement this request except as to obtain a recording in place of one that cannot be located.
Next, Plaintiffs seek recordings of calls for the entities listed in RFP 60. (Aug. 31, 2021, Pls.’ ltr at 12.) The Special Master has already resolved this dispute and so it is moot. (Doc. # 122.)
3. Emails with Customer Service: FTC RFPs 38, 39, and 40; Commonwealth RFPs 39, 40, and 41.
Plaintiffs seek emails to and from the AFS customer service addresses, customer_service@pbp.com and service@pbpinfo.com, for the month of February in the years 2016-2021. AFS states that there is not “a reasonable justification under the Federal Rules of Civil Procedure to produce all emails for the identified custodians for the time period set forth in Plaintiffs requests (February 2016, February 2017, February 2018, February 2019, February 2020, and February 2021) .... [T]his request is overbroad, unduly burdensome, and not likely to lead to the discovery of admissible evidence.” (Sept. 13, 2021, AFS’ ltr at 6.)
Rule 26(b)(1) states, in relevant part, that parties “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). The discovery sought is relevant to AFS’ defenses. Specifically, AFS maintains in its Answer that “AFS alleges, and will prove at trial, that for over thirty years, [it is] operating in essentially the same manner as it does today: ... After an order is taken by a sales representative, two confirmatory emails ... are sent to subscribers that same day, containing all material terms of the order in writing, and requesting that they let AFS know of any additional problems they may have concerning their order.” (Doc. # 91 at 2-3.) Additionally, “AFS reviews within ten (10) days all complaints received in response to the confirmatory emails ...” (Id. at 3.) In sum, AFS asserts as part of its defense that it communicates with consumers/subscribers via email. Emails involving AFS email accounts with a customer service domain such as customer_service@pbp.com and service@pbpinfo.com are relevant discovery. Also, they are relevant discovery even if these two email addresses, customer_service@pbp.com and service@pbpinfo.com, were not involved in sending confirmatory emails or emails relating to complaints. This is because AFS asserts that it communicated with consumers/subscribers via email, and there was no wrongdoing in these communications. Thus, these emails are relevant. The scope of the emails – for the month of February from 2016-2021 – is not unduly burdensome or disproportionate to the case. Accordingly, AFS should produce all emails for the month of February from 2016-2021 involving customer_service@pbp.com and service@pbpinfo.com.
4. The Text Document that Includes the Customer Responses to the “Order Confirmation” Emails: FTC RFPs 35, 38, 40, and 41; Commonwealth RFPs 36, 39, 41, and 42.
*4 Plaintiffs seek the “text document for the time period of January 1, 2015 through December 31, 2020 that includes the customer responses to the ‘order confirmation’ emails.” (Aug. 31, 2021, Pls's ltr at 15.) AFS states it is still working to locate the information and documents responsive to this request. (Sept. 13, 2021, AFS’ ltr at 7.)
The basis for this request and dispute is FTC RFPs 35, 38, 40, and 41 and Commonwealth RFPs 36, 39, 41, and 42. While none of these requests specifically request a “text document,” the filings show that the specific request for a text document as part of these requests arose out of AFS explaining to the FTC on January 22, 2018 that: “As it relates to new order subscriber responses to the verification emails, while there are 22 publication-specific email accounts to which subscribers respond, all publication-specific email accounts feed internally into one account and are stored, not in an Outlook email file, but as a text document in PBP's database.” (Doc. #75-2 at 185.) Accordingly, this request for a text document falls within FTC RFP 41, which states: “Produce all replies to the automated emails sent to Consumers who You contend agreed to a subscription.” (Doc. # 75-1 at 28.) This discovery is relevant under Rule 26(b). As AFS has previously stated to the FTC that responses to new order verification emails are contained in a text document, AFS should produce that document, limited to July 1, 2015 to present. If that document does not exist, AFS must provide the appropriate verification to Plaintiffs that it does not exist. However, whether or not this text document exists, AFS must fulfill its discovery obligations and should produce all replies to the automated emails sent to consumers/subscribers who AFS contends agreed to subscription, in whatever format they are available (email, text document, etc.).
5. Voicemails and Emails from January 1, 2015-December 31, 2020 Sent From localtouch@pbp.com: FTC RFPs 38 and 42; Commonwealth RFPs 39 and 43, and FTC RFPs 35, 38, and 42; Commonwealth RFPs 36, 39, and 43, respectively.
Plaintiffs seek recordings in incoming and voicemails calls to AFS for the first day of each month since AFS began maintaining recordings or voicemails. (Aug. 31, 2021, Pls's ltr at 17.) Plaintiffs also seek all emails from January 1, 2015 through December 31, 2020 sent from localtouch@pbp.com. (Id. at 20.)[7] AFS does not object to providing recordings of incoming calls to AFS. AFS explains that its voicemails are maintained using a system called Local Touch, and when a subscriber calls AFS, “they have an option to leave a voicemail if the call is placed outside of AFS’ normal business hours. A copy of that message ... is emailed to localtouch@pbp.com.” (Aug. 25, 2021, AFS’ ltr at 5.) AFS objects to providing all emails sent from localtouch@pbp.com from January 1, 2015 through December 31, 2020. It has proposed a sampling mechanism to provide documents or files emailed by localtouch@pbp.com, or to include locatltouch@pbp.com in its custodial list. (Aug. 25, 2021, AFS’ ltr at 3-4; Sept. 13, 2021, AFS’ ltr at 5.) AFS agrees that it will produce all emails from this custodial file for one day of each month of Plaintiffs’ choosing for the months of January 1, 2019 to present. (Sept. 13, 2021, AFS’ ltr at 6.)
*5 As AFS previously stated, it is possible to sort recordings by date. A commonsense solution to this dispute is that AFS should supply to Plaintiffs all recordings of incoming calls for the first day of each month from July 1, 2015 to present, regardless of whether they are maintained or stored through Local Touch or some other mechanism. In addition, AFS should supply to Plaintiffs all emails sent from localtouch@pbp.com for the first 15 days of each month (in other words, approximately one half of each month) from July 1, 2015 through December 31, 2020. AFS’ proposal to only provide discovery from January 1, 2019 should be rejected, as the Court and Special Master have already rejected AFS’ argument to temporally limit the scope of discovery. (Doc. # 128.) The solution here provides Plaintiffs with relevant discovery that they are entitled to and addresses the burden and proportionality of the requests.
6. Emails with AFS’ Collections Department: FTC RFPs 35, 38, 39, and 40; Commonwealth RFPs 36, 39, 40, and 41.
Plaintiffs seek emails between consumers and AFS’ collections department, including Jennifer Rann, for the month of February 2016-2021. (Aug. 31, 2021, Pls's ltr at 22.) AFS proposed that instead of providing all emails from its collection department and Jennifer Rann for the month of February 2016-2021, Rann is included as a custodian in the custodial list for purposes of electronic searches of discovery. (Aug. 25, 2021, AFS’ ltr at 4.) AFS also seeks to limit the scope of discovery to 2019-present. (Sept. 13, 2021, AFS’ ltr at 7.) According to Plaintiffs, AFS has represented that Rann is the only person who has worked in AFS’ collections department.
A workable solution to this dispute is as follows: Rann should be added to the custodial list for purposes of electronic discovery, which AFS has agreed to do. (Sept. 13, 2021, AFS’ response to Joint ESI Proposal.) AFS should verify that no one else other than Rann worked in the collections department. This permits Plaintiffs to obtain relevant discovery in accordance with Rule 26(b) in a method that AFS is already employing through electronic searching by including this additional custodian. If there are any other individuals identified by AFS as working in the collections department, AFS should add them as custodians as well. Again, discovery is not limited to 2019 to present. Discovery is from July 1, 2015 to present.
Plaintiffs seek the complaints made by consumers to the Better Business Bureau and State Attorney General, and AFS’ responses and communications with each consumer. (Aug. 31, 2021, Pls’ ltr at 24.) AFS maintains that for the period prior to 2019, it does not store/maintain copies of communications from the BBB in one place, and some drafts of responses to the BBB have been saved over. It also states that when the BBB sent letters via secure link, it did not maintain copies of those letters and it does not have ongoing access to that platform. (Sept. 13, 2021, AFS’ ltr at 8.) AFS asserts that an ESI collection search is the most effective means to locating the documents identified by these requests. (Id.)
Plaintiffs do not dispute AFS’ proposed method of searching and providing the responsive documents by an ESI collection search. Therefore, AFS should search for the responsive documents through its ESI search and collection. With respect to searching for and producing responsive documents, if AFS does not possess a document or documents responsive to this request, AFS should verify to Plaintiffs that no such documents exist. Regardless of whether AFS stores documents responsive to this request in one place or multiple places, AFS has an obligation to provide them. In sum, AFS should provide all responsive documents to this request in its possession.
8. Documents Responsive to Request 47: FTC RFP 47; Commonwealth RFP 48.
*6 Plaintiffs request documents that are responsive to FTC RFP 47, which includes “disciplinary files of telemarketers, the forwarding to the Quality Assurance Department of any Complaint or issue related to a subscription, and any communications that refer or relate to the analysis or resolution of the complaint or issue.” (Aug. 31, 2021, Pls’ ltr at 26.) According to Plaintiffs, this dispute is unresolved because, among other things, AFS has represented that it produced a “random sampling of AFS’ ‘Notice of Written Warning’ forms for the years 2015 to present,” and Plaintiffs want to know the number of Notices of Written Warning or Probation Slips from which AFS provided the written sampling. (Id.) AFS responds that it “has produced all documents in its possession, custody, or control responsive to Request No. 47 located through a reasonable search.” (Sept. 13, 2021, AFS’ ltr at 8.)
First, AFS’ counsel who are Officers of the Court, have represented that a reasonable search has been conducted and there are no further responsive documents to be produced. However, as AFS has represented that it produced Notices of Written Warnings pursuant to a random sampling, AFS should inform Plaintiffs how that random sampling was conducted. In the Special Master's view, this is the only outstanding issue with respect to this request. The Special Master expects the parties to work together to arrive at an agreement on the issue of the sampling of the Notices of Written Warnings, and notes that the scope of discovery is July 1, 2015 to present.
9. Manager Employee Files: FTC RFP 49; Commonwealth RFP 50.
Plaintiffs seek employee files, “including records of evaluations or discipline, of any current or former manager of a telemarking office who was an employee at any time since January 1, 2015, except for W-2s and timecards.” (Aug. 31, 2021, Pls’ ltr at 28.) AFS does not agree to producing all documents responsive to this request, particularly salary and/or compensation for any one employee. (Sept. 13, 2021, AFS’ ltr at 8.) AFS agrees to producing documents regarding manager compensation from 2019 to present. (Sept. 13, 2021, AFS’ ltr at 9.)
The Court has previously concluded that discovery from July 1, 2015 to present is appropriate. (Doc. # 128.) Therefore, AFS’ limitation of 2019 to present is rejected. AFS has provided no meritorious reason for refusing to produce employee files that include records of evaluation or discipline. The discovery sought here is relevant and within the bounds of Rule 26(b). AFS should, to the extent it has not already, produce all employee files, including records of evaluation or discipline, of any current or former manager of a telemarketing office who was an employee at any time from January 1, 2016 to present. To ease the burden on AFS, the Special Master has restricted the time period to January 2016, rather than July 2015. The Special Master notes that AFS has repeatedly stated that it is a small business. As this request seeks only discovery from managers, not all employees, and AFS is a small business, responding to this discovery is not unduly burdensome.
10. AFS’ Communications with Debt Collectors: FTC RFPs 15, 18, and 19; Commonwealth RFPs 16, 19, and 20.
Plaintiffs request that, after “AFS consults with its employees to identify those who communicated with either of AFS’ outside debt collectors, all communications to or from the known email address of either of those debt collectors.” (Aug. 31, 2021, Pls’ ltr at 29.) AFS objects that this request does not have any limitation as to topic or scope. (Sept. 13, 2021, AFS’ ltr at 9.) The parties have discussed AFS providing a sampling of emails identified by a keyword search. AFS agrees with this method, while Plaintiffs reject it. (Aug. 31, 2021, Pls’ ltr at 29; Sept. 13, 2021, AFS’ ltr at 9.)
AFS’ practices and communications with its debt collectors are key to the claims in this. Specifically, Plaintiffs allege that AFS sends any unpaid accounts to one of two debt collection agencies. (Am. Compl. at ¶ 32.) Plaintiffs further allege that when Defendant debt collect ICR communicates with consumers/subscribers/organizations that they “owe the purported AFS Defendants’ debt, the ICR Defendants know, or have reason to know, that many of them had not agreed to any financial obligation for the AFS Defendants’ publications.” (Id. at ¶ 38.) The discovery sought by Plaintiffs is relevant to the claims against AFS. This request is not disproportionate to the claims, and AFS has not demonstrated how it is unduly burdensome such that it is outside of the bounds of Rule 26(b). Therefore, AFS should produce to Plaintiffs all communications to or from the known email address its debt collectors from January 1, 2016 to present. Again, to ease the burden on AFS, the Special Master has restricted the time period to January 1, 2016 to present, rather than July 2015.
*7 The parties have exchanged proposals for names of custodians and keywords with respect to electronic searching. AFS agrees to perform the collection and search of these custodians and keywords from January 1, 2019 to present. (Sept. 13, 2021, AFS response to Joint ESI Proposal.) The Court has previously rejected AFS’ argument to limit discovery to January 1, 2019 to present, and determined that the appropriate time frame is July 1, 2015 to present. (Doc. # 128.) Therefore AFS’ proposal to limit its electronic discovery search to January 1, 2019 to present fails here as well.
The parties have come to an agreement regarding the following custodians: Edward M. Satell, Melissa Schwenk (maiden name Bowman), Denise Haney, Lisa Kott, Nichole Shimmel, Jennifer Rann, Robin Bilthheiser-Buck, Meg Hass, Colin Drummond, Heather Wood (maiden name Moyle), Gary Calobrisi, Christopher McCunney, Mike Gorton, Curt Brown, Kat Murray, Lynn McCullough, Kamil Yakubox, Sharon McHugh, localtouch@pbp.com, altoona@pbp.com, williamsport@pbp.com, woodbury@pbp.com, wyomissing@pbp.com.
There are certain custodial accounts that AFS states do not exist or do not have accounts, and therefore they cannot be part of the custodian list: Tara Orischak, Tiffany Cooper, Tammy Shaw, bensalem@pbp.com, boardman@pbp.com, clearfield@pbp.com, meadville@pbp.com, pottsville@pbp.com, warren@pbp.com, york@pbp.com.
AFS objects to including certain custodial accounts as outside of the time frame scope of discovery. However, this argument is rejected as the scope of discovery is July 1, 2015 to present. The following accounts should be included for this reason: Cynthia Reasor, Susan Grabert, Tom Schubert, Phil Ahr, John Falcetta, Mike Statmore.
AFS objects to certain custodians as they do not have any responsive documents or relevant information due to their job title or job responsibilities. The Special Master agrees and these custodians should not be included: Bill Townsend, David Daley, Irene Plum.
With respect to the search terms, the parties agree to the following terms to be included: Complain*, Suppres* or supres*, Scam*, Better Business Bureau*, did not order, cease and desist, cancel immediately, never subscribed, never ordered, never authorized, quality cancel, office summary, are you selling something, icrbennett@aol.com, ICR400@aol.com, icrpowell@aol.com, cthomas@intlcreditrec.com, secretary script*, Received an invoice? Here's why, cancel correction report, office summary report.
AFS objects to certain terms as they are already in the possession of Plaintiffs or Plaintiffs can obtain responsive documents from a different source. That may be the case, however it does not relieve AFS from its discovery obligations. For this reason, the following terms should be included: Attorney General*, AG, AG., AG?, AG!, Federal Trade Commission*, FTC*. If any of these terms return privileged documents, AFS should log them on a privilege log.
There are a small number of search terms which continue to be the subject of disagreement. The Special Master requests more detailed information and arguments from the parties with respect to their positions on these terms and explanations as to why their opponent's position should be rejected. The parties should submit their arguments to the Special Master ten days after the Court's Order on this Report & Recommendation.
III. THE SPECIAL MASTER'S RECOMMENDATION
For the reasons explained above, the Special Master recommends that:
1. The Court grant in part and deny in part Plaintiffs’ Motion to Compel AFS to Produce Documents Responsive to the FTC's Second Set of Requests for Production of Documents. (Doc. # 75).
*8 2. The Court deny all of Plaintiffs’ requests to seek discovery that predates July 1, 2015.
3. The Court grant Plaintiffs’ Motion with the following limitations:
a. With respect to Reports Provided to Edward Satell: FTC RFP 2 and Commonwealth RFP 2 — Within 21 days of the entry of the Court's Order, AFS produce reports provided to Mr. Satell from July 1, 2015 to present, as specifically requested in FTC RFP 2 and Commonwealth RFP 2.
b. With respect to Recordings of Calls: FTC RFPs 27, 28, and 35 and Commonwealth RFPs 28, 29, and 36 —
i. With respect to the recordings of all outgoing calls for the first day of each month since AFS began maintaining audio records of outgoing calls:
1. Within 14 days of the entry of the Court's Order, AFS produce to Plaintiffs a list of orders with entity or company name for the last 3 days of each month from July 1, 2015 to present.
2. Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all recordings of outgoing calls for the last 3 days of each month from July 1, 2015 to present.
ii. With respect to the recordings of outgoing calls for specific consumer complaints made to the Better Business Bureau, the Attorney General, or the FTC:
1. Within 7 days of the entry of the Court's Order, Plaintiffs provide to AFS for 75 complaints either AFS’ account number, or (1) the business name; (2) the business address; and (3) the name of the individual who placed the order with AFS and/or the date the order was placed.
2. Within 21 days of receiving the information described in paragraph 3(b)(ii)(1), AFS produce to Plaintiffs the 75 requested recordings.
3. Plaintiffs are limited to 75 recordings in total. Plaintiffs are permitted to request a different recording if AFS is unable to locate a requested recording.
c. With respect to Emails with Customer Service: FTC RFPs 38, 39, and 40 and Commonwealth RFPs 39, 40, and 41 — Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all emails for the month of February from 2016-2021 involving customer_service@pbp.com and service@pbpinfo.com.
d. With respect to The Text Document that Includes the Customer Responses to the “Order Confirmation” Emails: FTC RFPs 35, 38, 40, and 41 and Commonwealth RFPs 36, 39, 41, and 42 — Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all documents responsive to this topic from July 1, 2015 to present, including the “text document” referred to by AFS in its January 22, 2018 letter to the FTC.
e. With respect to Voicemails and Emails from January 1, 2015-December 31, 2020 Sent From localtouch@pbp.com: FTC RFPs 38 and 42 and Commonwealth RFPs 39 and 43, and FTC RFPs 35, 38, and 42; Commonwealth RFPs 36, 39, and 43, respectively —
i. Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all recordings of incoming calls for the first day of each month from July 1, 2015 to present.
ii. Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all emails sent from localtouch@pbp.com for the first 15 days of each month (in other words, approximately one half of each month) from July 1, 2015 through December 31, 2020.
*9 f. With respect to Emails with AFS’ Collections Department: FTC RFPs 35, 38, 39, and 40 and Commonwealth RFPs 36, 39, 40, and 41 —
i. AFS will add Jennifer Rann to the custodial list for purposes of electronic discovery.
ii. Within 7 days of the entry of the Court's Order, AFS confirm and verify to Plaintiffs that no one else other than Rann worked in the collections department. If there are any other individuals identified by AFS as working in the collections department from July 2015-present, AFS add them as custodians as well.
g. With respect to Complaints to the BBB and Attorney General, AFS’ Response, and AFS’ Communication with Each Consumer: FTC RFP 35 and Commonwealth RFP 36 — Within 21 days of the entry of the Court's Order, AFS produce all the responsive documents to this request after conducting an ESI search and collection.
h. With respect to Documents Responsive to Request 47: FTC RFP 47 and Commonwealth RFP 48 — Within 14 days of the entry of the Court's Order, AFS inform Plaintiffs how that random sampling of the Notices of Written Warnings was conducted.
i. With respect to the Manager Employee Files: FTC RFP 49 and Commonwealth RFP 50 — Within 21 days of the entry of the Court's Order, AFS produce all employee files, including records of evaluation or discipline, of any current or former manager of a telemarketing office who was an employee at any time from January 1, 2016 to present.
j. With respect to AFS’ Communications with Debt Collectors: FTC RFPs 15, 18, and 19 and Commonwealth RFPs 16, 19, and 20 — Within 21 days of the entry of the Court's Order, AFS produce to Plaintiffs all communications to or from the known email address its debt collectors from January 1, 2016 to present.
k. With respect to the Keyword Search —
i. The scope of discovery is July 1, 2015 to present.
ii. The following individuals/accounts are custodians: Edward M. Satell, Melissa Schwenk (maiden name Bowman), Denise Haney, Lisa Kott, Nichole Shimmel, Jennifer Rann, Robin Bilthheiser-Buck, Meg Hass, Colin Drummond, Heather Wood (maiden name Moyle), Gary Calobrisi, Christopher McCunney, Mike Gorton, Curt Brown, Kat Murray, Lynn McCullough, Kamil Yakubox, Sharon McHugh, localtouch@pbp.com, altoona@pbp.com, williamsport@pbp.com, woodbury@pbp.com, wyomissing@pbp.com, Cynthia Reasor, Susan Grabert, Tom Schubert, Phil Ahr, John Falcetta, Mike Statmore.
iii. The following terms are search terms: Complain*, Suppres* or supres*, Scam*, Better Business Bureau*, did not order, cease and desist, cancel immediately, never subscribed, never ordered, never authorized, quality cancel, office summary, are you selling something, icrbennett@aol.com, ICR400@aol.com, icrpowell@aol.com, cthomas@intlcreditrec.com, secretary script*, Received an invoice? Here's why, cancel correction report, office summary report, Attorney General*, AG, AG., AG?, AG!, Federal Trade Commission*, FTC*.
*10 iv. With respect to any remaining search term or custodian that is still the subject of dispute, within 10 days of the entry of the Court's Order, the parties shall provide the Special Master with their arguments and positions on these terms and custodians, and explanations as to why their opponent's position should be rejected.

Footnotes

The parties have exchanged numerous letters regarding these disputes. The Special Master has read and considered all of them, even if they are not specifically cited in this Report & Recommendation.
The FTC first set out these categories in its proposed Order attached to its Memorandum of Law, without identifying the corresponding RFP number to the category. (Doc. # 75-6.) Plaintiffs have, however, changed the categories throughout their letter exchanges with AFS. (See Aug. 31, 2021, Pls.’ ltr summarizing disputes.) Because the letter exchanges provide updates as to the status of the disputes, and provide RFP numbers, the Special Master uses as a guide the categories set forth in Plaintiffs’ August 31, 2021 letter. The Special Master has combined some of the categories.
Plaintiffs separated this category into three separate categories: “Sampling of Recordings of Calls to Consumers”; “Recordings of Outgoing Calls for Complaints to the Better Business Bureau, the Attorney General, or the FTC”; and “Recordings of Calls for the Entities Listed in Document Request 60.” However, the RFPs identified for each category are identical (and it is unclear why Plaintiffs have separated already existing document requests into different categories) and so the Special Master has combined them into one category. The Special Master notes that in multiple instances, the RFPs overlap or span between multiple different categories that were designated by Plaintiffs. It is unclear why Plaintiffs have divided the categories in this manner, separating RFPs over multiple categories.
These categories contain significant overlap and so the Special Master has combined them.
The Special Master notes that the parties disagree as to the keyword search parameters, and have been exchanging proposals regarding a Joint ESI Proposal. See Line 318. Though the parties describe it as a Joint ESI Proposal, it appears to the Special Master that it is a proposal regarding search terms and keywords to be used in searching electronic discovery. (See Sept. 13, 2021, AFS response to Joint ESI Proposal.) This is different from an agreement regarding conducting electronic discovery.
In the event that the recordings provided here overlap with the recordings produced in accordance with Lines 129-131, they are considered separate. In other words, if a recording provided in accordance with Lines 129-131 is a complaint to the BBB, AG, or FTC, this does not count toward or negate any of the 75 recordings Plaintiffs are entitled to with respect to complaints to the BBB, AG, or FTC.
Plaintiffs inquire why AFS apparently does not have recordings or voicemails from 2015-2018 despite the 2017 preservation letter that the FTC sent to AFS. AFS responds that it has identified messages dating back to 2019 and it has never asserted that it does not have messages from 2015-2018. (Sept. 13, 2021, AFS’ ltr at 6.) This inquiry has not been procedurally raised in the context of this Motion and thus it is not in front of the Special Master at this time.