*1 THIS CAUSE is before the Court upon Defendant Americor Funding, LLC's (“Americor”) Motion to Compel Discovery (ECF No. 30). Plaintiff filed a Response (ECF No. 32), to which Defendant filed a Reply (ECF No. 33). The matter has been referred to the undersigned by the Honorable K. Michael Moore, United States District Judge, to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. (ECF No. 5). Having reviewed the Motion, Response, Reply, the docket as a whole, and being otherwise fully advised, Defendant's Motion to Compel Discovery is DENIED.

I. BACKGROUND

This cause is brought under the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”). Plaintiff, proceeding individually and on behalf of a putative class of others similarly situated, alleges that Defendant Americor through Defendant Live Calls Network, LLC (“Live Calls”) used an automatic telephone dialing system for the selection or dialing of telephone numbers to make non-emergency calls to the cell phones of Plaintiff and other members of the putative class without prior express written consent. (ECF No. 16 at ¶¶ 69, 76, 79). Plaintiff alleges that he received two telemarking calls promoting Americor's services on September 20 and 23, 2022. (Id. at ¶¶ 20, 23).

Relevant to this Motion, Americor requested inspection of Plaintiff's phone associated with the number identified in the Complaint. Plaintiff objected to this Request for Production as being not relevant, not narrow in scope, disproportionately impactful on Plaintiff's privacy rights, and unduly burdensome. During a meet and confer, Americor narrowed the scope of its Request to include “a forensic search limited to the internet browsers on the phone and internet activity related to credit card debt, debt solutions, debt services, Americor, personal loans, debt consolidation, and/or debt service(s) provider(s)” from September through November 2022. (ECF No. 30 at 2 n.1). Plaintiff objected to the modified Request. Defendant now moves to compel Plaintiff to produce his phone for inspection.

II. DISCUSSION

Americor argues that it is entitled to inspect Plaintiff's phone because it contains relevant information regarding Americor's affirmative defense that Plaintiff consented to receive calls from Americor. Americor argues that inspection of Plaintiff's phone is necessary to locate additional evidence regarding Plaintiff's internet activity. Americor avers that the inspection and production cannot be obtained from another source. Americor asserts that production of the phone is necessary to ensure that all responsive call or search histories and communications regarding the calls have been produced and not transferred or deleted.

Plaintiff argues that Americor's Request amounts to a fishing expedition, which Americor justifies as related to its affirmative defense that Plaintiff consented to be contacted by Americor. Though Americor has the burden to prove this affirmative defense, it has yet to adduce any evidence of Plaintiff's consent. Plaintiff asserts that Americor has failed to demonstrate that there are not less intrusive means of gaining access to the same information. Plaintiff argues that Americor has failed to demonstrate that an inspection of Plaintiff's phone is necessary when weighed against Plaintiff's privacy rights.

*2 Federal Rule of Civil Procedure 26(b)(1) sets forth the limits of discovery:

Federal Rule of Civil Procedure 34(a)(1) permits a party to request inspection of “electronically stored information” that is “stored in any medium from which information can be obtained” within the scope of Rule 26(b). Fed. R. Civ. P. 34(a)(1). However, the Advisory Committee Notes to Rule 34(a) state:

Fed. R. Civ. P. 34 advisory committee's note (2006 amendment). “Rule 34(a) does not give the requesting party the right to conduct the actual search.” In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003). “Like the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data.” Id.

It is not disputed that Plaintiff's consent to calls from Americor is an affirmative defense to Plaintiff's TCPA claim. See Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1304–05 (11th Cir. 2015) (noting an affirmative defense under the TCPA is prior express consent). It is also not disputed that Plaintiff's phone was used in connection with the asserted claims as Plaintiff alleges that Defendants impermissibly called Plaintiff at Plaintiff's number on September 20 and 23, 2022. Consequently, Plaintiff's phone may potentially contain evidence of express consent and, if so, information contained on it would be relevant.

However, whether Plaintiff's phone contains relevant information is not the only inquiry the Court must consider. Rather, the two-part inquiry asks both “whether a forensic examination would reveal information that is relevant to the claims and defenses in this matter and whether such an examination is proportional to the needs of the case.” Ramos v. Hopele of Fort Lauderdale, LLC, No. 17-62100-CIV, 2018 WL 1383188, at *2 (S.D. Fla. Mar. 19, 2018) (emphasis added).

“Courts in this District are mindful of the potential intrusiveness of forensic imaging of electronic devices.” Id. Plaintiff's phone appears to be a smartphone, which is “akin to a computer,”[1] and contains significant amount of personal information not relevant to this case. Plaintiff has an inherent privacy interest in the personal information contained in his phone. In inspecting the phone, the independent examiner would mirror the hard drives of Plaintiff's phone in their entirety. (ECF No. 33 at 7). While Americor would not have access to all of the information on Plaintiff's phone, this process still intrudes on Plaintiff's privacy in imaging the phone, conducting the search for responsive information by the examiner, and providing said responsive information to Americor.

*3 Americor contends that its requested search is narrowed sufficiently to reduce the intrusive nature of an inspection of Plaintiff's phone. Americor in its Motion demands a forensic search of the internet browsers on Plaintiff's phone and internet activity related to credit card debt, debt solutions, debt services, Americor, personal loans, debt consolidation, and/or debt service(s) provider(s) from September through November 2022. This is a narrowed request from its original demand to inspect Plaintiff's phone without limitation. See (ECF No. 31-1 at 20) (“Produce the phone with the phone number you identified in your Complaint for inspection.”).

However, even in its narrowed form, Americor's search spans three months, even though the calls at issue took place on two days, September 20 and 23, 2022, and requests a variety of internet activity without explanation of how said internet activity relates to demonstrating Plaintiff's consent. Americor represents that Plaintiff's internet activity could demonstrate that Plaintiff accessed the internet and consented to be contacted by phone, but fails to further substantiate that proffer. For example, Americor requests Plaintiff's internet activity generally regarding “personal loans,” but fails to explain how any internet activity relating to personal loans would indicate Plaintiff consented to be contacted by Americor.

Americor contends that the “massive damages sought by Plaintiff” justify the “mild privacy intrusion” associated with the inspection. (ECF No. 30 at 2). However, Americor has not demonstrated how the privacy intrusion is necessary when Americor has yet to explain how the requested information is not within its own possession. “Presumably, if plaintiff visited certain websites and then clicked on consents and provided his telephone number, [Americor] would have other means available to discover that information.” Moser v. Health Ins. Innovations, Inc., No. 17CV1127-WQH(KSC), 2018 WL 6735710, at *6 (S.D. Cal. Dec. 21, 2018), objections overruled, No. 3:17-CV-1127-WQH-KSC, 2019 WL 13391059 (S.D. Cal. Apr. 12, 2019). As Plaintiff notes, Americor has not provided a website or means by which Plaintiff would have consented to being contacted by Americor. While Americor responds that there is no requirement to identify a specific website before conducting a review of the device, Americor misses the point. If Plaintiff consented, Americor would presumably have a record of such consent and how Plaintiff consented. The lack of specifics provided by Americor on what websites Plaintiff may have visited to consent supports Plaintiff's contention that Americor is attempting a fishing expedition of Plaintiff's phone to support its affirmative defense, which it has the burden to prove. As such, Americor has failed to demonstrate that the privacy intrusion is warranted here, especially considering that this information could rest within its own possession.

Americor has also failed to demonstrate that less intrusive means are not warranted here for obtaining such information on Plaintiff's phone. Americor asserts that the inspection of Plaintiff's phone is necessary because Plaintiff has not produced any search history information from Plaintiff's phone in discovery. However, as Plaintiff notes, Americor has not articulated any information that Americor has requested from Plaintiff that has not been provided by Plaintiff. Americor's first resort in discovery in this case has been to request inspection of Plaintiff's phone, but other methods are available to obtain the requested information such as tailored discovery requests regarding Plaintiff's relevant internet activity. “To the extent plaintiff's electronic devices do contain specific, relevant electronically stored information, [Americor] can make a Rule 34 request for disclosure of that electronically stored information in ‘a reasonably usable form’ without requiring plaintiff to provide [Americor] with direct access” to his phone. Moser, 2018 WL 6735710, at *6; Fed. R. Civ. P 34(b)(2)(E); Mantha v. QuoteWizard.com, LLC, No. CV 19-12235-LTS, 2020 WL 4369701, at *4 (D. Mass. July 30, 2020) (“The Court DENIES the second request as there is no basis to require the production of electronic devices; nothing in this ruling precludes Defendant from seeking discovery from these devices.”). For example, Americor could request information regarding a specific website Plaintiff visited and allegedly provided consent, and Plaintiff would then produce relevant activity related to that website. If Plaintiff subsequently failed to produce said activity, Americor could then move for a narrow search of Plaintiff's phone for said limited activity on a certain website. While this request would still intrude on Plaintiff's privacy, the intrusion would be sufficiently narrowed to be proportional to the needs of the case. Because there are other less intrusive means still available to Americor to obtain the requested information, production and inspection of Plaintiff's phone is not proportional to the needs of this case and thus not warranted at this time.

*4 Americor further asserts that production of the phone is necessary to ensure that all responsive call or search histories and communications regarding the calls have been produced and not transferred or deleted by Plaintiff. However, Americor has not demonstrated any basis for the concern that Plaintiff may have transferred or deleted any information. “Weighing the cost that surely would be associated with a forensic examination against its likely benefit, and in the absence of any evidence that Plaintiff has deleted files or is either incapable of or unwilling to make the search on [his] own,” Americor has not demonstrated that inspection of Plaintiff's phone is proportional to the needs of this case. See Lurie v. Twinsplace LLC, No. 16-62455-CIV, 2017 WL 11686012, at *3 (S.D. Fla. Aug. 22, 2017).

III. CONCLUSION

Accordingly, based on the foregoing, Defendant's Motion to Compel Discovery (ECF No. 30) is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of September, 2023.