What?  No Sampling!?

Oof. Another defendant hit with an order compelling it to produce a HUGE amount of data. Such is the sad state of affairs as delineated in Bustillos v. W. Covina Corp. Fitness, Inc. (“Bustillos II”), 2021 U.S. Dist. LEXIS 234475 (C. D. Cal. Dec. 7, 2021). In this case, plaintiff alleged that the defendant contacted her using a prerecorded voice without her consent and in violation of the TCPA. During the discovery phase of the suit, the plaintiff brought a motion to compel.

The magistrate judge granted plaintiff’s motion in part and ordered the defendant to produce an incredible amount of data. Specifically, the defendant was ordered to produce: (1) its call logs with the telephone numbers for approximately 4,000 prerecorded calls that it placed in February 2021; (2) 200 randomly selected records that allegedly showing the call recipients’ consent to receive prerecorded calls; and (3) its TCPA compliance manuals and procedures. The magistrate judge found this production “not unduly burdensome, [but] proportional and necessary discovery prior to class certification.” See Bustillos v. West Covina Corporate Fitness, Inc. (“Bustillos I”), 2021 U.S. Dist. LEXIS 218341, at *4-6 (C.D. Cal. Nov. 9, 2021).

Wow. How did this happen? The defendant should have advocated for a feasible sampling size—one that would ensure that the plaintiff had sufficient data so as to create a sound analytical methodology, and one that would also ensure that it—that is, the defendant—was not overly burdened in its production requirements. A sampling of the defendant’s records would have been far more appropriate, and would have worked to limit such a vast scope of production.

Courts regularly employ a sampling-type system: Sampling serves to narrow production burdens, and also allows for effective analytical evaluation regarding whether a plaintiff’s class-wide claims can be supported. See, e.g., Leeb v. Charter Communs., Inc., 2019 U.S. Dist. LEXIS 160406, at *7 (E.D. Mo. Sept. 20, 2019). The defendant here should have made clear to the magistrate judge how plaintiff’s requests, as written, would impose a staggering and disproportionate burden of production. Plaintiff’s requests were not tied to a reasonable sample size—instead, they forced the defendant to respond to literally thousands of instances of allegedly “wrong number” calls.

Of course, I am not privy to the entirety of defendant’s arguments on the issue—so perhaps a plea for sampling was made. What I do know, however, is that the defendant made a grievous mistake in earlier handling of discovery. Evidently, rather than prepare reasoned discovery responses and fulsome objections, the court found that the defendant “primarily asserted boilerplate objections of overbreadth, burden, oppression, and harassment.” Bustillos I, 2021 U.S. Dist. LEXIS 218341, at *3. Anyone who knows the Czar knows that boilerplate objections are nothing short of a dereliction of duty. It’s likely that this configured into the magistrate judge’s calculations as well.

Ultimately, the defendant objected to the magistrate judge’s order and asked the district court to overrule the order or stay it pending resolution of plaintiff’s class certification motion. The district court denied the objection, reasoning that the defendant failed to show that the magistrate judge’s decision was clearly erroneous or contrary to law—clearly a very difficult burden to carry. As a result, the court ordered the defendant to produce ALL of that data in less than a week.  Again, oof.

1 Comment

  1. TCPA should be like a speeding ticket. Here is your $500 fine. Now on your way. Instead, TCPA destroys small businesses. For what? A phone call? Is that justice? Oh, but is legal.

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