*1 Plaintiff Asal Sally Manouchehri filed this purported class action for alleged violations of the Telephone Consumers Protection Act (TCPA) by defendant Styles for Less. Manouchehri alleges that Styles for less obtained its customers' cellular telephone numbers through its website and in its stores, and then sent marketing messages to its customers via text without obtaining their prior express written consent. Styles for Less filed a motion to stay this case on April 24, 2015, arguing that the case should be stayed pending the decisions by the Federal Communications Commission (FCC) on several petitions before it regarding interpretation of the terms “prior express consent” and “automatic telephone dialing system” under the TCPA.

In May 2015, this court issued a scheduling order that governed, among other things, the deadlines for class discovery and the filing of a motion for class certification. This court—twice—granted requests to continue both of those dates. Under the current schedule, class discovery was to be completed by August 14, 2015, and Manouchehri must file a motion for class certification by August 31, 2015. The district court has not yet ruled on the motion to stay based on the pending FCC petitions.

On August 14, 2015, the parties filed this joint motion for determination of discovery dispute. Manouchehri asks that the court order Styles for Less and third party MobileStorm, Inc. to produce certain outstanding discovery, or alternatively, asks that the deadline to file the motion for class certification be continued so that the parties can attend a September 4, 2015 mediation. Styles for Less argues that Manouchehri is not entitled to the discovery, and also opposes the motion based on procedural grounds. It argues that (1) its recent Rule 68 offer for full judgment and relief to the individual plaintiff moots the discovery issue because given the offer, there will no longer be a case or controversy left to adjudicate; and (2) in any event this case should be stayed because this precise Rule 68 procedural issue will be decided by the U.S. Supreme Court in its next term.

The court has reviewed the motion and finds that it was timely filed, per this chambers' rules regarding the filing of motions for determination of discovery disputes. For the following reason, GRANTS Plaintiff's motion to compel further discovery and also continues the class certification motion filing deadline.

Discussion.

The purpose of discovery is to “remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. O'Connell v. Chapman University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) (quotation and citation omitted). In a class action, the extent of discovery available before class certification lies within the court's discretion. Vinole v. Countrywide Home Loans, 571 F.3d 935, 942 (9th Cir. 2009). Plaintiffs have the burden of making a prima facie showing that the Rule 23 class action requirements are met, or to demonstrate “that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).

1. Effect of Rule 68 Offer on Discovery Dispute.

*2 Styles for Less argues that Manouchehri should not get the disputed discovery because it made a Rule 68 offer to Manouchehri for all the relief she could possibly obtain in this case, so that there is no longer an actual case or controversy over which this court may exercise jurisdiction. It asserts that if Manouchehri accepts the Rule 68 offer, the case ends. If she rejects it or allows it to expire (it expires on August 24, 2015), it argues that Manouchehri will no longer have standing to pursue class certification because a full settlement offer effectively moots any real case or controversy. Alternatively, if she declines the offer, Styles for Less argues that her decline of it could be deemed an affirmative defense of estoppel or waiver, and that it would then move for summary judgment on those affirmative defenses.

Finally, Styles for Less argues that if the court does not find that the Rule 68 offer for full judgment would effectively end the case, it asks the court to stay the class claims pending a decision from the U.S. Supreme Court. Currently, there is a disagreement among the circuits regarding whether an unaccepted offer of full relief before a class certification decision moots a class action. The Supreme Court has recently granted certiorari to reconcile the conflict. See Campbell-Ewald Co. v. Gomez, 135 S.Ct. 2311 (May 18, 2015). In Gomez, the Supreme Court will address a Ninth Circuit decision that found that a plaintiff's claims are not mooted by a defendant's Rule 68 offer of judgment. See Gomez v. Campbell-Ewald, 768 F.3d 871 (9th Cir. 2014).

Styles for Less relies on this procedural Rule 68 argument to oppose the substantive demands of the discovery requests below. The court notes that it is bound by Ninth Circuit precedent and that Styles for Less does not cite any relevant authority to support its argument that a full Rule 68 offer moots the individual and class claims in this case. Also, there is no motion on file that asks for a stay based on the Rule 68 issue.

Therefore, this court DENIES the request by Styles for Less that it not be obligated to produce any responsive discovery and that MobileStorm be relieved of its legal obligation to respond to the deposition subpoena and accompanying request for documents, solely based on the Rule 68 offer of full judgment to the individual plaintiff.

2. Consumer Complainant Names and Contact Information.

From Styles for Less, Manouchehri seeks the names and contact information of Styles for Less consumers who complained about receiving text messages. Styles for Less produced consumer complaints regarding the text messages but redacted their names and contact information.

The court finds that discovery of the consumer names and contact information is reasonably calculated to identify other potential class members, which would be relevant to Rule 23 requirements. See McArdle v. AT&T Mobility LLC, 2010 U.S. Dist. LEXIS 47099, at *4-15 (N.D. Cal. Apr. 16, 2010) (finding that plaintiff was entitled to the contact information of complaining consumers). It further finds that the disclosure of the consumers' names and contact information does not constitute a serious invasion of privacy, and notes that it is commonplace in class actions. Id.; Khalilpour v. CELLCO P'ship, 2010 WL 1267749, at *2; 2010 U.S. Dist. LEXIS 43885, at *6-*7 (N.D. Cal. 2010) (requiring disclosure of names, addresses and phone numbers because they do not involve revelation of personal secrets, intimate activities, or similar private information). Finally, to the extent Styles for Less has any outstanding confidentiality concerns, there is a protective order in place to alleviate those concerns.

3. Automatic Telephone Dialing System (ATDS).

Styles for Less hired MobileStorm to send approximately 10,000,000 text messages to its customers. From both Styles for Less and MobileStorm, Manouchehri seeks to compel production of documents concerning the dialing equipment used to transmit the marketing text messages sent to consumers. In response to three document requests on the subject, Styles for Less produced one contract and one draft contract, and not a single letter or email between Styles for Less and MobileStorm. In response to a subpoena for documents and deposition served on it on May 27, 2015, MobileStorm has provided no responses. Counsel for Styles for Less also represents MobileStorm, and represented several times that documents were being reviewed and would be produced soon. But MobileStorm has failed to respond at all, either by producing documents or serving objections, and has failed to cooperate in scheduling a deposition before the discovery cutoff.

*3 To establish commonality for a TCPA claim, a plaintiff must show that the defendant called members (1) using an automated dialer or artificial or prerecorded voice; (2) in non-emergency situations and without prior express consent; and (3) on their cellular telephones. 47 U.S.C. § 227(b)(1)(A). Styles for Less and MobileStorm have submitted numerous filings and declarations arguing that they do not use an automated telephone dialing system, asserting, among other things, that the messages are not sent without human intervention. See, e.g., Mem. Ps & As, Dkt. No. 21-1, p.15.

The question of whether an autodialer was used to send unsolicited text messages is a common threshold issue to be decided in this case. Several of the demands propounded to Styles for Less and to MobileStorm assume that an autodialer was used. Styles for Less states that it does not use an autodialer to send text messages and asserts, as an affirmative defense, that it “did not employ an automatic telephone dialing system to place the alleged calls.” Dkt. No. 21-1, pp.11-12. Because this is a threshold issue to decide and an asserted affirmative defense, the court finds that it is relevant to the claims and defenses in this case and thus discoverable.

Order.

Based on the foregoing, the court ORDERS:

IT IS SO ORDERED.