In re HomeAdvisor, Inc.
In re HomeAdvisor, Inc.
2022 WL 4366033 (F.T.C. 2022)
September 14, 2022
Inaccessible
Audio
Sanctions
Possession Custody Control
Exclusion of Evidence
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Summary
The FTC requested documents and ESI from HomeAdvisor, Inc. related to the Voice Log Process. HomeAdvisor, Inc. has identified and produced approximately 4,700 QA audio recordings and accompanying materials, as well as an amended privilege log and amended responses and objections to Complaint Counsel's first set of document requests. HomeAdvisor has also created a virtual VPI machine for the FTC within which it can view, listen to, and download files as needed. However, HomeAdvisor is currently in violation of the ALJ's August 16, 2022 order to produce documents responsive to RFP 14 within 14 days.
Additional Decisions
In the Matter of HOMEADVISOR, INC., a corporation, d/b/a ANGI LEADS, d/b/a HOMEADVISOR POWERED BY ANGI
Docket No. 9407
Federal Trade Commission
September 14, 2022

STATEMENT REGARDING MEET AND CONFERS

*1 Pursuant to Paragraph 4 of the Scheduling Order issued in this matter, Complaint Counsel submits this Statement regarding its conferences with Respondent's Counsel regarding the Requests for Production which form the basis of its contemporaneously filed motion:
On September 2, 2022, at 1:00pm Pacific Time, Complaint Counsel Sophia H. Calderón, Breena M. Roos, and Ben A. Halpern-Meekin met via Zoom with Neil T. Phillips, Respondent's Counsel, and William Cole Bryant Tracy, a Senior Manager of Enterprise Infrastructure with Respondent's parent company, to discuss the virtual machine (VM) and virtual private network (VPN) that HomeAdvisor set up to provide access to the recordings produced. Mr. Tracy explained the steps by which Complaint Counsel were supposed to be able to access the VM through the VPN. Complaint Counsel asked how to identify recordings produced that were responsive to the request for production, and Mr. Tracy explained that each recording would need to be accessed individually to do so.
On September 7, 2022, at 12:15pm Pacific Time, Complaint Counsel Sophia H. Calderón, Colin D. A. MacDonald, Breena M. Roos, and Ben A. Halpern-Meekin met via Zoom with Respondent's Counsel Neil T. Phillips. Technology support employees from both Respondent and Complaint Counsel participated in the call. During this call, Complaint Counsel explained that it was having ongoing difficulties accessing the repository, and Respondent made technical modifications and provided additional access information which allowed Complaint Counsel to access the repository itself for the first time.
On September 13, 2022, at 12:00pm Pacific Time, Complaint Counsel Sophia H. Calderón, Colin D. A. MacDonald, and Ben A. Halpern-Meekin met via Zoom call with Respondent's Counsel Neil T. Phillips and Kyra Simon. During this call, Complaint Counsel explained that the technical limitations of the repository system made accessing the responsive calls and separating them from nonresponsive calls functionally impossible. Complaint Counsel stated that it viewed this as insufficient to meet Respondent's obligations under the Court's August 16 order. Respondent disagreed. Complaint Counsel invited Respondent to reconsider its position regarding stipulating to the representativeness of previously produced sales call recordings. Respondent declined.
Respectfully submitted,
Sophia H. Calderón
Colin D. A. MacDonald
Breena M. Roos
M. Elizabeth Howe
Katharine F. Barach
Nadine S. Samter
Ben A. Halpern-Meekin
Federal Trade Commission
Northwest Region
915 Second Ave., Suite 2896
Seattle, WA 98174
Tel.: (206) 220-6350
Fax: (206) 220-6366
Email: scalderon@ftc.gov
cmacdonald@ftc.gov
*2 broos@ftc.gov
mhowe@ftc.gov
kbarach@ftc.gov
nsamter@ftc.gov
bhalpernmeekin@ftc.gov
Counsel Supporting the Complaint
Dated: September 14, 2022
 
[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL'S MOTION FOR DISCOVERY SANCTIONS
 
Pursuant to FTC Rule of Practice 3.38, 16 C.F.R. § 3.38, Complaint Counsel's Motion for Discovery Sanctions Against HomeAdvisor, Inc. is GRANTED and it is hereby:
ORDERED that the sample of 100 calls transcribed and attached to Complaint Counsel's Motion for Summary Decision as attachments to PX0022 (referred to herein as the “Representative Calls”) shall be treated as representative of all sales calls made by Respondent during the time period relevant to this litigation, AND
ORDERED that Respondent is prohibited from challenging the reliability or admissibility of the Representative Calls, AND
ORDERED that Respondent is prohibited from introducing as evidence: (a) any call recordings not produced to Complaint Counsel before September 6, 2022, the close of discovery in this matter; and (b) any secondary evidence that purport to show the contents of any call recordings not produced to Complaint Counsel before September 6, 2022, the close of discovery in this matter. Respondent is prohibited from introducing as evidence any call recording, or any secondary evidence that purports to show the contents of any call recording, that was only accessible to Complaint Counsel via the virtual machine referenced in Respondent's August 30,2022 email to Complaint Counsel.
ORDERED that the approximately 4,700 sales calls Respondent produced on August 7, 2022 (referred to herein as the “Representative Calls”) shall be treated as representative of all sales calls made by Respondent during the time period from May 1, 2019 through October 31, 2019, AND
ORDERED that Respondent is prohibited from challenging the reliability or admissibility of the Representative Calls, AND
ORDERED that Respondent is prohibited from introducing as evidence: (a) any call recordings not produced to Complaint Counsel before September 6, 2022, the close of discovery in this matter; and (b) any secondary evidence that purport to show the contents of any call recordings not produced to Complaint Counsel before September 6, 2022, the close of discovery in this matter. Respondent is prohibited from introducing as evidence any call recording, or any secondary evidence that purports to show the contents of any call recording, that was only accessible to Complaint Counsel via the virtual machine referenced in Respondent's August 30, 2022 email to Complaint Counsel.
SO ORDERED.
D. Michael Chappell
Chief Administrative Law Judge
 
[PROPOSED] ORDER REQUIRING EXPEDITED RESPONSE
 
*3 On September 14, 2022, Complaint Counsel filed an Expedited Motion for Discovery Sanctions Against HomeAdvisor, Inc. with respect to compliance with this Court's August 16 Order Granting Complaint Counsel's Motion to Compel Documents Responsive to Request 14. Under the Scheduling Order in this case, as amended, fact discovery closed on September 6, 2022, Respondent is due to sit for a corporate deposition, and expert discovery deadlines are approaching as soon as September 20, 2022.
Pursuant to FTC Rule 3.22(d), the Administrative Law Judge may shorten the time within which a response is due. It is HEREBY ORDERED that Respondent HomeAdvisor, Inc. shall file any response to the Motion no later than 5:00 p.m. on September 16, 2022.
SO ORDERED.
D. Michael Chappell
Chief Administrative Law Judge
 
DECLARATION OF SOPHIA H. CALDERÓN
 
I, Sophia H. Calderón, declare as follows:
1. I am an attorney at the Federal Trade Commission (“FTC”) and Complaint Counsel in this proceeding. Unless otherwise stated, I have personal knowledge of the information contained herein.
2. Complaint Counsel's Second Set of Requests for Production of Documents (the “Requests”) were served by Complaint Counsel on Respondent's Counsel on June 8, 2022, and are attached as Exhibit A. As reflected in Exhibit A, Request 14 sought production of:
For the time period from May 1, 2019, through October 31, 2019, recordings of all telephone calls between Your sales agents and prospective Service Providers during which the prospective Service Provider completed Your Voice Log Process and responded affirmatively to all of the questions asked in Your Voice Log Process. This request seeks, to the extent available, recordings of the entirety of such telephone calls, and is not limited to the recordings of the Voice Log Process.
The Requests defined “Voice Log Process” as “the process that is described in paragraphs 4 and 5 of the Declaration of Michael Metzger, RX0095 to Respondent HomeAdvisor, Inc.'s Memorandum of Law in Opposition to Complaint Counsel's Motion for Summary Decision.” Completion of the voice log process is a proxy for identifying calls that resulted in a sale.
3. Complaint Counsel sent a letter to Respondent's Counsel on July 29, 2022, proposing particular circumstances in which it would accept Respondent's production of 5,000-6,000 sales call recordings as sufficient in response to Request 14. Complaint Counsel's July 29 letter is attached as Exhibit B.
4. On August 7, 2022, I received an email from Mr. Neil Phillips, counsel for Respondent, stating that the email contained a file transfer protocol (FTP) link by which Complaint Counsel could download a production that included approximately 4,700 “QA audio recordings.” Mr. Phillips' August 7 email is attached as Exhibit C.
5. Prior to August 30, 2022, Respondent's document productions in the above-captioned matter (including the August 7 production referenced above in Paragraph 4) were sent via emails to Complaint Counsel containing an FTP link by which Complaint Counsel could download the production.
*4 6. On August 30, 2022, I received an email from Mr. Phillips containing instructions on how to access a virtual machine that would purportedly provide Complaint Counsel with access to a database containing “the requested archived sales audio recordings from May 1, 2019 through October 31, 2019.” In his August 30 email, Mr. Phillips noted that the database contained icons for both responsive and non-responsive audio recordings and that only the icons for responsive audio recording would contain actual audio files accessible to Complaint Counsel. Mr. Phillips' August 30 email is attached as Exhibit D.
7. Despite following the instructions provided by Mr. Phillips, I was initially unable to access the database because accessing the database required me to download a software to my computer that security features on my computer put in place by the FTC would not allow me to download. I informed Mr. Phillips of this by email on September 1, 2022. My September 1 email is attached as Exhibit E.
8. On September 2, 2022, I attended a meeting, via Zoom, with Mr. Phillips and Mr. William Cole Bryant Tracy, who I understand is a Senior Manager of Enterprise Infrastructure with Respondent's parent company, Angi. Also present were Breena Roos and Ben Halpern-Meekin, who are Complaint Counsel.
9. During this meeting, Mr. Tracy shared his screen, demonstrated how to access the database containing the audio recordings, and explained how to search for, listen to, and download files in the database. Mr. Tracy explained the database contained between 30 and 50 million data files that correspond to audio files, that not all of the data files contained audio files accessible to Complaint Counsel, that Complaint Counsel could determine whether a data file contained an accessible audio file only by checking it individually, and that records could only be viewed and downloaded in groups of 100 or fewer.
10. Complaint Counsel was not able to access the database until September 7, 2022.
11. On September 13, 2022, I accessed the database and confirmed that not all of the data files contained accessible audio files, and that I could determine whether a data file contained an accessible audio file only by checking it individually. I listened to four audio files accessible in the database: the voice log process did not occur during any of them and one of them was not a sales call. I also determined that the only way to search the records in the database was by date, and that there were approximately 13.4 million data files between May 1, 2019, and October 31, 2019. Exporting a complete list of the records in the database did not appear to be possible.
I declare under penalty of perjury that to the best of my knowledge and belief the foregoing is true and accurate.
Sophia H. Calderón
Federal Trade Commission
Northwest Region
915 Second Ave., Suite 2896
Seattle, WA 98174
Tel.: (206) 220-6350
Fax: (206) 220-6366
Email: scalderon@ftc.gov
*5 Counsel Supporting the Complaint
Dated: September 14, 2022