GRIM: Court Compels TCPA Defendant to Produce Class Data from LiveVox as Greenwald Wins Again

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There are few attorneys in TCPAWorld as scary as Mike Greenwald.

THE 2024 POWER RANKINGS ARE HERE!: TCPAWorld’s (Third Annual) Definitive List of the Top 10 Most Dangerous Plaintiff’s Firms Out There (And there is a NEW NUMBER ONE!)

He is currently ranked second on the TCPAWorld power rankings–behind only the Godfather himself–but rulings like this one may make him number one again next year.

In Lyle v. EGS Financial Care, 2024 WL 3649605 (N.D. Ga. Aug. 2, 2024) Greenwald’s firm convinced a court to compel a Defendant to produce all records of outbound calls to wrong number sets–a massively burdensome exercise that may end up being fatal to any chance the defendant had of defeating certification in the case.

Backing up, it is illegal to call wrong numbers using regulated technology–including autodialers and pre-recorded calls.

LiveVox may or may not be an autodialer but it is certainly capable of sending prerecorded calls. So if you are using LiveVox you should probably pay attention.

EGS Financial was apparently tracking wrong number dispositions in LiveVox and using the platform to send prerecorded voice messages. In litigation Greenwald requested EGS produce all records of such calls to numbers that ended up with a wrong number notation in the system.

EGS opposed arguing the production was too expensive but failed–apparently–to document that expense or any attendant burden of production. As such the Court had little trouble compelling the production:

while Defendant has alluded to the expense it would have to bear for retrieving from LiveVox the call records that Plaintiff requests, it has made no showing regarding that expense. As such, the Court has no basis to assess whether the discovery Plaintiff seeks is disproportionate to the needs of the case. And, in view of Defendant’s failure to address this issue, the Court considers this issue conceded.

Eesh.

The Court also found the defendant failed to argue the lack of necessity of the records despite the fact the defense had apparently provided a ample of data already.

Real lesson here for litigators.

When opposing a production you must ALWAYS challenge the need for class data pre-certification. There simply is no need for it and if you fail to make that argument–AND produce evidence of burden–you may end up having to produce records needlessly, just like EGS must now. Pretty basic stuff.

So while I am giving Greenwald credit here, it looks like EGS may not have made the right arguments to begin with.

Regardless, another big win for one of the most dangerous men in TCPAWorld.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

3 Comments

  1. The really interesting part of this case is the third-party litigation between EGS and its client. EGS marked plaintiff Lyle’s phone as a wrong number and communicated that info to the client, but the client kept sending the same number back to EGS in each day’s file. EGS dutifully continued robocalling the number dozens of times, despite knowing it was wrong.

    Now EGS and the client are suing and countersuing each other, each saying that the other was responsible. EGS is seeking indemnification for the entire class action (which includes calls it made on behalf of other companies), while the client is bringing EGS’s sordid history of TCPA violations to the court’s attention. (EGS was formerly called NCO Financial, known for such oldies-but-goodies as Watson v. NCO Group. NCO’s conduct in that case was so outrageous that the plaintiff was allowed to recover TCPA damages for *landline* debt collection calls.)

    A serial defendant trying to blame its own customer – this will be fun to watch! Thanks Czar for bringing this case to our attention.

    Reply

      1. I know I still owe you. I can do the podcast whenever you don’t have an influential guest lined up and want to talk to a guy who wrote a five-year-old book!

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