*1 Plaintiff and Defendants have filed competing motions to compel discovery and related responses (“Motions”) [ECF 8, 10, and 15].[1] In addition, there are other discovery issues that arose after the parties met for a mediation session with the undersigned that also are addressed in this report and recommendation. The Court, on April 5, 2024, appointed the undersigned to serve as special discovery master to assist in the resolution of the Motions and other open discovery issues [ECF 17], which appointment became effective on April 9, 2024 [ECF 19].

The undersigned met via Zoom with Plaintiff and counsel for Defendants on June 7, 2024, to allow counsel to argue the merits of their respective positions. While some of the outstanding issues have been narrowed or resolved by agreement of the parties, the remaining items were left for this report and recommendation to the Court.

The facts of the underlying case are succinctly summarized as follows. Plaintiff filed this lawsuit against Defendants asserting a variety of claims under the Telephone Consumer Protection Act, the Michigan Telephone Companies as Common Carriers Act, and the Michigan Home Solicitation Sales Act. Defendants deny liability and claim, among other things, that Plaintiff consented to the two (2) calls at issue. Plaintiff's Complaint, which initially was filed in the State of Michigan 18th District Court and removed by Defendants to this Court, seeks $16,000 in damages.

A. Standard of Review

The scope of discovery available to parties in a civil action is outlined in Federal Rule of Civil Procedure 26. As a general matter, 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). Discovery is not permitted when it “is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive [or] the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(i-ii). Discovery is further prohibited when its burden or expense outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C)(iii). When any of these circumstances arise, the court must limit discovery “[o]n motion or on its own.” Fed. R. Civ. P. 26(b)(2)(C).

B. The Court's March 1, 2024 Order

The Court's March 1, 2024 Order Extending Deadlines and Referring Parties to Mediation [ECF 13] helps frame the Motions and remaining open items. First, the Court ordered the parties into mediation with the undersigned, which mediation was held in person on April 25, 2024. During the mediation, the parties discussed the need to conduct additional discovery in order to aid in further settlement discussions and requested additional time to conduct that discovery. To that end, the parties stipulated to the extension of certain case management dates [ECF 22], which the Court ordered on April 30, 2024 [ECF 23]. In addition, the undersigned is mindful, as the parties should be, of the Court's directive that it would not entertain any further extension requests [ECF 23] and that it has ordered the parties to reconvene with the undersigned for an additional facilitative mediation session no later than July 31, 2024 [ECF 24, 26].

C. Defendants' Motion to Compel Discovery [ECF 15]

*2 Defendants contend Plaintiff failed to adequately respond to their interrogatories, request for production of documents, and requests to admit. Plaintiff responds that the requested information beyond the phone number (ending in 2951) and time period at issue (August, 2023) is not relevant to the claims and defenses in this case and have been requested by Defendants solely to harass and annoy Plaintiff. After Defendants filed their motion, the parties held several meet and confer conferences and had further communication regarding the open issues. The undersigned requested each side provide a written summary of each remaining open item related to ECF 15. Defendants supplied their position statement by email on May 31, 2024 and Plaintiff provided his position statement on June 3, 2024 (Exhibit 1). Each open issue will be dealt with in turn.

Defendants' Position: Defendants' Request for Production of Documents Nos. 1, 10-11, 16-17, and 30 sought invoices and/or statements from telephone service providers for the telephone number ending in 2951 for the time period of July 1, 2023 to September 1, 2023 and information on Plaintiff's allegations regarding the specific calls and Plaintiff's ownership of the telephone number.

Plaintiff's Position: Plaintiff initially objected to these requests but subsequently produced portions of the statements issued by the telephone service provider(s) and/or redacted information in his supplemental production identified as DOBSIS0001A and DOBSIS0002A.

Special Master's Recommendation: The undersigned recommends to this Court that Plaintiff be required to produce the actual phone bill(s)/invoices issued by the telephone service provider for the phone number ending in 2951 for the month of August, 2023 only, without redaction. The production must clearly identify the name of the carrier, the name of the account holder(s), and whether the phone number ending in 2951 is a personal or commercial account/phone number. Further, the undersigned recommends the parties stipulate to a protective order that is standard in cases such as this such that this document, and perhaps others that are the subject of this report and recommendation, may be designated as “confidential.”

Alternatively, if the parties choose not to stipulate to such a protective order, the undersigned recommends the Court, if this recommendation is adopted, order the documents to be produced by Plaintiff be subject to Fed. R. Civ. P. 26(c)(1)(D) and (G) and be used only for the purposes of prosecuting or defended the claims in this case and for no other purpose.

Defendants' Position: Defendants' Interrogatory Nos. 5 and 6 requested Plaintiff to provide a list of all telephone numbers he or his household have access to or that he or his household have registered with the Do Not Call Registry.

Plaintiff's Position: Plaintiff objected to these interrogatories because he claims they have no relationship or relevance to any of the claims in his Complaint.

Special Master's Recommendation: The undersigned recommends to this Court that Plaintiff not be required to provide the requested information because any phone numbers – other than the phone number ending in 2951 for the month of August, 2023 – is not relevant to either party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy. Fed. R. Civ. P. 26(b)(1).

D. Plaintiff's Motion to Compel Discovery [ECF 8] and Defendants' Response in Opposition [ECF 10]

*3 Plaintiff's Position: Plaintiff's First Request for Production Nos. 6 and 8-10 sought from Defendants detailed call records for all outbound calls Defendants delivered, or caused to be delivered, on August 10, 2023, including the date, time, and telephone number called as well as telephone bills for the month of August, 2023 for three (3) telephone numbers that appeared on the caller ID for phone number ending in 2951 on August 10, 2023.

Defendants' Position: Defendants objected to these requests because, among other reasons, they claim the requests are unduly burdensome and not proportional to the needs of the case because the requested information includes all outbound calls from every single agent, employee, manager, and representative of Defendants on August 10, 2023.

Special Master's Recommendation: The undersigned recommends to this Court that Defendants be required to produce under Request for Production No. 6 only records of all outbound calls made to the phone number ending in 2951 on August 10, 2023 by any of the Defendants and/or Defendants' agents, employees, or representatives.

The undersigned is of the opinion that the records requested by Plaintiff under Request for Production Nos. 8-10 are not relevant to either party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy and, therefore, Defendants should not be required to produce these items.

Plaintiff's Position: Plaintiff's Request for Production Nos. 11-15 sought records Plaintiff maintains Defendants must possess by regulation as well as invoices, billings, and call logs received by Defendants from the third-party telemarketer initiating and live transferring Call 1 (as defined in Plaintiff's Complaint) at issue in this case.

Defendants' Position: Defendants objected to these requests because, among other reasons, they claim they are unduly burdensome and not proportional to the needs of the case and/or have been imposed to harass Defendants.

Special Master's Recommendation: First, Defendants have supplemented their responses to Request for Production Nos. 12, 13, and 15 so the undersigned considers those items resolved.

With respect to Request for Production No. 11, the undersigned recommends to this Court that Defendants be required to produce, to the extent responsive documents exist in addition to the audio recordings provided in Defendants' supplemental production, documents maintained by Defendants pursuant to 47 CFR 64.1200(a)(7)(iii) only for any calls made to the phone number ending in 2951 on August 10, 2023. Alternatively, if responsive documents do not exist, Defendants should affirmatively state as much.

With respect to Request for Production No. 14, the undersigned recommends to this Court that Defendants be required to produce, to the extent responsive documents exist, documents evidencing calls made only to the phone number ending in 2951 on August 10, 2023. Alternatively, if responsive documents do not exist, Defendants should affirmatively state as much.

The undersigned is of the opinion that these records requested by Plaintiff, as narrowed by this recommendation, are relevant to a party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy. Fed. R. Civ. P. 26(b)(1).

*4 Plaintiff's Position: Plaintiff's First Set of Interrogatories Nos. 2-5 sought information Plaintiff maintains Defendants must possess by regulation as well as invoices, billings, and call logs received by Defendants from the third-party telemarketer initiating and live transferring Call 1 (as defined in Plaintiff's Complaint) at issue in this case.

Defendants' Position: Defendants objected to these interrogatories because, among other reasons, they claim they were vague or needed additional time to respond after the holiday season.

Special Master's Recommendation: First, Defendants either adequately responded to or have supplemented their responses to Plaintiff's First Set of Interrogatories Nos. 3, 4, and 5 so the undersigned considers those items resolved.

With respect to First Set of Interrogatories No. 2, the undersigned recommends to this Court that Defendants be required to fully respond to the extent the responsive information is not contained in the documents the undersigned has recommended be produced above. Fed. R. Civ. P. 33(d).

Plaintiff's Position: Plaintiff's Second Request for Production of Documents No. 1 sought correspondence between Defendants and the Better Business Bureau regarding consumer complaints filed about Defendants.

Defendants' Position: Defendants objected to this request because they claimed they were not relevant to the issues in this case. Defendants also note any complaints and corresponding response are equally available to Plaintiff on the Better Business Bureau website.

Special Master's Recommendation: The undersigned recommends to this Court that Defendants not be required to produce documents in response to Plaintiff's Second Request for Production of Documents No. 1 because it is not relevant to a party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy or are equally available to Plaintiff on the Better Business Bureau website. Fed. R. Civ. P. 26(b)(1).

Plaintiff's Position: Plaintiff's Second Set of Interrogatories Nos. 1 and 2 sought the identity of each person who made a complaint against Defendants to the Better Business Bureau as well as information related to each lawsuit filed against Defendants where a violation of the Telephone Consumer Protection Act was alleged.

Defendants' Position: Defendants objected to these interrogatories because they claimed they were not relevant to the issues in this case. Defendants also note any complaints and corresponding response are equally available to Plaintiff on the Better Business Bureau website or other public court records.

Special Master's Recommendation: The undersigned recommends to this Court that Defendants not be required to respond to Plaintiff's Second Interrogatories Nos. 1 and 2 because they are not relevant to a party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy are equally available to Plaintiff from public sources. Fed. R. Civ. P. 26(b)(1).

E. Additional Written Discovery Issued After First Mediation Session

*5 On April 27, 2024, Plaintiff served his Fourth Request for Production of Documents, his Third Set of Interrogatories, and his Fourth Set of Requests for Admission. Defendants responded to each on May 17, 2024. The undersigned was informed that issues existed as to all three and requested each side provide a summary of each open item. Plaintiff supplied his position statement by email on June 1, 2024 and Defendants provided their position statement by email on June 5, 2024. See Exhibit 2. Each of these items will be dealt with in turn.

Special Master's Recommendation: The undersigned recommends to this Court that Defendants not be required to respond to the above Request for Production of Documents because each of these particular requests is not relevant to a party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy. Fed. R. Civ. P. 26(b)(1).

Special Master's Recommendation: The undersigned recommends to this Court that Defendants be required to respond and/or supplement their production to the above Request for Production of Documents because each of these particular requests is relevant to a party's claim or defense or proportional to the needs of this case considering, among other items, the importance of issues at stake in this case and the amount in controversy. Fed. R. Civ. P. 26(b)(1).

Defendant objected to all twenty (20) interrogatories contained in Plaintiff's Third Set of Interrogatories on the basis that they exceeded the allowable limit of serving no more than twenty-five (25) interrogatories, including all discrete subparts, to any party under Fed. R. Civ. P. 33(a)(1).

Special Master's Recommendation: The undersigned recommends to this Court that Defendants not be required to respond to Plaintiff's Third Set of Interrogatories because they exceed the allowable limit under Fed. R. Civ. P. 33(a)(1) and because there is neither a stipulation among the parties nor an order of this Court enlarging that limit.

Request for Admissions 2, 3, 18, 19, 24, and 34-37:

Special Master's Recommendation: The undersigned recommends to this Court that Plaintiff's request to compel Defendants to supplement their response to the above Request for Admissions be denied because Defendants denied each of these particular requests in its initial response.

Request for Admissions 1, 4-12, 15, 20, 21, and 43:

*6 Special Master's Recommendation: The undersigned recommends to this Court that Defendants be required to supplement their responses to these specific requests for admission to verify they have “made reasonable inquiry” into the information requested in order to comply with the requirements of Fed. R. Civ. P. 36(a)(4), if indeed that is the case. If Defendants do have knowledge or information that will allow them to admit or deny these specific requests, then Defendants should be required to do so.

Request for Admissions 45-51:

Special Master's Recommendation: The undersigned recommends to this Court that Defendants be required to supplement their responses to the above Request for Admissions subject to Plaintiff providing Defendants with “Exhibit B,” which apparently was not included with the requests when initially served by Plaintiff.

F. Depositions

Plaintiff and Defendants equally complain about the other's purported unwillingness or inability to provide, and ultimately agree upon, deposition dates for Defendant Pham and a Fed. R. Civ. P. 30(b)(6) deposition of the corporate defendant. The undersigned is of the opinion that the parties should be able to schedule these depositions without the undersigned designating a specific date and time, which ultimately may not work for the parties or witnesses. Therefore, the undersigned recommends that the Court require all depositions be concluded no later than July 19, 2024, so that the parties are adequately prepared for the continued mediation with the undersigned, which by this Court's order must be completed no later than July 26, 2024 [ECF 26].

For the reasons detailed above, the undersigned makes the following recommendations to the Court:

1. The Court DENY IN PART and GRANT IN PART Plaintiff's Motion to Compel Discovery.

2. The Court DENY IN PART and GRANT IN PART Defendants' Motion to Compel Discovery.

3. The Court DENY IN PART and GRANT IN PART Plaintiff's request that Defendants supplement their responses to his Fourth Request for Production of Documents, his Third Set of Interrogatories, and his Fourth Set of Requests for Admission.

4. The Court DENY both Plaintiff's and Defendants' request for an award of attorneys' fees and costs, with each party to bear their own attorneys' fees and costs, related to the issues addressed in this report and recommendation.

Under Fed. R. Civ. P. 53(f)(2), the parties may file objections to a special master's report no later than twenty-one (21) days after a copy of the report is served, unless the Court sets a different time.

Respectfully submitted,

Because of the number of requests and related objections, the undersigned has grouped together those recommendations that apply to multiple request for admissions for brevity's sake. Each original request and related response are attached in Exhibit 2 for the Court's review in context.