Breda v. Cellco Partnership et alRESPONSE to Motion re Emergency MOTION to Set Aside Discovery Order or Stay Proceeding Pending a Ruling on Defendant's Dispositive MotionsD. Mass.September 15, 20171 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ROBIN BREDA, on behalf of herself and all others similarly situated, Plaintiff, v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Defendant. Civil Action No. 1:16-cv-11512-DJC PLAINTIFF’S RESPONSE TO VERIZON’S “EMERGENCY MOTION” Plaintiff, Robin Breda (“Plaintiff”), respectfully submits the following response in opposition to Verizon’s “emergency motion” and asserts that it should be denied for the following five equally compelling reasons: 1) the Motion is procedurally improper as it fails to comply with Fed. R. Civ. P. 72 or Rule 2 of the Local Rules for U. S. Magistrate Judges and instead seeks de novo review; 2) it raises new facts and arguments relating to purported burden on the Defendant that a) are not accurate and b) were waived by virtue of not having been raised either in briefing or at the hearing for the motion to compel; 3) the Magistrate Judge’s Order is not clearly erroneous as evidenced by the dozens of courts that have entered similar orders in TCPA class actions; 4) Verizon waited to the last possible day to file its motion – hence there is no “emergency”; and 5) there is no undue burden. Verizon’s Motion should be DENIED. I. Introduction Verizon proposed a phased discovery plan, seeking to withhold class call data so it could Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 1 of 11 2 file summary judgment. (Dkt. 17). Rejecting Verizon’s proposal, the Court’s scheduling order (Dkt. 26) did not phase discovery. Yet, in response to Plaintiff’s requests seeking class discovery, Verizon objected that class discovery was premature, obtained discovery from plaintiff, third parties and deposed Plaintiff. Meanwhile, Verizon withheld all class discovery, arguing, circuitously, that since there is no class that is certified, or can be certified, it need not produce any class discovery. Thus, on March 8, 2017, Plaintiff filed a Motion to Compel Defendant Verizon Wireless to Produce Discovery after multiple meet and confer attempts. (Dkt. No. 34). The Motion was necessary because Verizon has withheld, and refused to produce, the entirety of discovery necessary for Plaintiff to move for class certification.1 Plaintiff’s motion to compel simply sought the class information and documents that Plaintiff requested and numerous courts have ordered produced in similar TCPA cases. See Dkt. No. 35 at pp. 2-3 listing numerous orders on motions to compel class data in TCPA litigation. In response to the motion to compel, Verizon objected to class discovery because no class had been certified and because it contended it could not determine which numbers it called were to cellular telephones. It never argued undue burden and never supported any such argument with affidavits or facts. (Dkt. No. 44). 1 Pre-certification discovery is warranted because Plaintiff cannot meet its Rule 23 burden on the pleadings alone. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir.2009); accord Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 & n. 14 (11th Cir.2008); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1086 (6th Cir.1996). The Supreme Court’s ruling in Wal–Mart confirms that pre-certification discovery should ordinarily be available where a plaintiff has alleged a potentially viable class claim because Wal–Mart emphasizes that the district court's class certification determination must rest on a “rigorous analysis” to ensure “[a]ctual, not presumed, conformance” with Rule 23. Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551-52, 180 L.Ed.2d 374 (2011), 131 S.Ct. at 2551; see also id. at 2551–52 (“Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.”). Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 2 of 11 3 After Plaintiff responded to the motion for summary judgment laying out the testimony of Plaintiff’s wireless carrier that left no doubt that Verizon’s motion for summary judgment was not well taken, Verizon pivoted and filed a motion to compel arbitration all the while refusing to produce class discovery despite this Court’s rejection of its request to bi-furcate discovery and several orders granting extensions of class discovery that re-set the date for Plaintiff to file class certification.2 At the hearing on the motion to compel, Defendant again never meaningfully argued undue burden and asserted that it would likely seek review of the order compelling production of the class data. Yet, rather than file an objection pursuant to Rule 72 as required, it waited until the very last minute to file an “emergency motion” in anything but an emergency. As set out below, the Magistrate Judge was familiar with the motions and status of the case, and like the dozens of other courts in similar TCPA class actions that also ordered a defendant to produce the call records, was well within her discretion to order Verizon to produce the class call records. All of Defendant’s properly raised arguments were already carefully considered and properly rejected. Along those lines, Plaintiff offered at the hearing to have her database expert consult with Verizon to determine the most efficient manner to obtain the data and the Magistrate Judge even took a break to allow defense counsel to contact Verizon to determine if it would be willing to participate in an ESI discussion, but Verizon was not interested. Because Verizon chose to make this matter and all or nothing proposition, the Magistrate 2 See Mulero–Abreu v. Puerto Rico Police Dept., 675 F.3d 88, 89 (1st Cir. 2012) (discussing “the folly of treating case-management orders as polite suggestions rather than firm directives”). Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 3 of 11 4 was well within her discretion to order Verizon to run the search in question and the order was not erroneous. II. Verizon Fails To Comply With Rule 72 Rule 72(a) of the Federal Rules of Civil Procedure provides that a magistrate judge’s order must be found to be clearly erroneous or contrary to law in order to be set aside. Fed. R. Civ. P. 72(a). Yet, Verizon does not even address Rule 72’s requirements or argue that magistrate judge’s order is clearly erroneous or contrary to law. Verizon also fails to provide “specific written objections” to any portion of Judge Kelley’s September 5, 2017, Order which are required under Rule 72(b)(2). Similarly, Verizon failed to “promptly arrange for transcribing the record” of that hearing and providing the same to this Court such that this Court can even make a Rule 72(a) determination. Coughlin v. Town of Arlington, No. CA 10-10203-MLW, 2011 WL 6370932, at *6 (D. Mass. Dec. 19, 2011) (“the court has not been provided with a transcript of the hearings before the Magistrate Judge. Thus, the court cannot confirm the accuracy of the Report in this respect.”) Nor has Verizon has formally sought a stay of the Magistrate Judge’s Order from the Magistrate herself, as specifically required by Rule 2(c) of Local Rules for U. S. Magistrate Judges. These defects alone require denial of the motion. Having lost the motion to compel, Verizon is attempting to just ignore Rule 72 and, instead, seek a do-over, inserting new ‘facts’ and making new arguments such as undue burden that it did not make to the Magistrate Judge. However, “the law is settled that a litigant must put its best foot forward before a magistrate judge, and cannot introduce new arguments for the first time on the district court’s review of the magistrate judge’s ruling or recommendation.” Robb Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 4 of 11 5 Evans & Assocs., LLC v. United States, 850 F.3d 24, 35 (1st Cir. 2017) (affirming holding that argument “neglected . . . . before the magistrate judge” was “waived”.); see also Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (“At most, the party aggrieved is entitled to a review of the bidding rather than to a fresh deal. The rule does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”) (emphasis supplied). “The opportunity to object to an R & R is not an opportunity to make new arguments or offer additional evidence not presented to the magistrate judge. A district judge reviews the same record as the magistrate judge.” Allied Home Mortg. Capital Corp. v. Mark, No. CIV.A. 12-10158-GAO, 2014 WL 4964728, at *1 (D. Mass. Sept. 30, 2014). The Supreme Court has long held that claims of undue burden must be supported by the record so any generic boiler plate reference to undue burden that Verizon may have made is insufficient. Here the record before the Magistrate did not contain any support for any purported undue burden. It is simply not adequate to reflexively say that this burden is ‘undue.’ That is a common refrain of parties to litigation who would prefer, understandably, not to comply with discovery requests that involve anything other than the slightest effort. But modern litigation often requires efforts that might have been regarded as difficult and thus avoidable years ago. A party claiming undue burden must do more than intone the phrase. [citations]. Undue burden or expense, actual or potential, must be shown by ‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’ Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16, 101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981); [citation]. What is required is affirmative proof in the form of affidavits or record evidence. Jenkins v. White Castle Mgmt. Co., No. 12 C 7273, 2014 U.S. Dist. LEXIS 106100 at *6-*7 (N.D. Ill. Aug. 4, 2014). Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 5 of 11 6 Accordingly, the motion should be denied because Verizon failed to follow Rule 72 and waived any purported burden arguments by having failed to raise them or substantiate them before the magistrate judge. III. There is No Clear Error in the Order at Issue A district court may only overturn non-dispositive orders of a magistrate judge if they are “clearly erroneous or contrary to law.” United States v. Raddatz, 447 U.S. 667, 673 (1980) (quoting 28 U.S.C. § 636(b)(1)(A)). “In conducting this review, the must refrain from second guessing the judge’s pre-trial discovery rulings.” Id.3 Because Plaintiff is allowed class discovery to support her motion for class certification, because numerous courts in similar TCPA class actions have ordered similar call records produced, and because Verizon has indicated an unwillingness to participate in class discovery long before it filed its motion for summary judgment or its motion for arbitration, the need for the search ordered by the court is clear. As a proposed class action, the scope of what is relevant includes information concerning 3 See also Adams v. Ameritech Servs., Inc., 231 F.3d 414, 432 (7th Cir. 2000) (Magistrate judges have a great deal of discretion in supervising discovery.); Cox v. Sherman Capital LLC, 2014 U.S. Dist. LEXIS 178647, *5-6, 9 (S.D. Ind. Dec. 31, 2014) (overruling objection magistrate’s order and finding “Magistrate Judge thoroughly addressed the [discovery] issue.”); Pain Ctr. of SE Ind., LLC v. Origin Healthcare Solutions LLC, 2015 U.S. Dist. LEXIS 30305, *4-5, 7 (S.D. Ind. Mar. 12, 2015) (overruling objection to magistrate judge’s entry asserting clear error and affirming magistrate’s ruling in which “magistrate exercise[ed] her broad discretion) (“In sum, Plaintiffs have failed to show that the Magistrate Judge committed clear error.”); Welch v. Eli Lilly & Co., 2013 U.S. Dist. LEXIS 115343, *30-31 (S.D. Ind. Aug. 15, 2013) (denying motion to compel additional discovery under Rule 56(d) which it found an attempt to circumvent Rule 72(a) time limit) (under Rule 72(a) standard, finding magistrate’s ruling “properly denied … belated motion to compel” and “is neither clearly erroneous nor contrary to law”); Cook Inc. v. C.R. Bard, Inc., 2003 U.S. Dist. LEXIS 20779, *1 (S.D. Ind. Sept. 18, 2003) (overruling objections to magistrate judge’s denial of motion for protective order). Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 6 of 11 7 the prerequisites to certification are found in Fed. R. Civ. P. 23. Doyon v. Rite Aid Corp., 279 F.R.D. 43, 48 (D. Me. 2011) (pre-certification discovery is needed in a class action given that the showing required for certification pursuant to Rule 23 of numerosity, commonality, typicality, and adequacy of representation is more demanding). Thus, class discovery is critical for Plaintiff’s forthcoming class certification motion, because Plaintiff may not simply rely on her pleadings at the class certification stage. N.O. v. Callahan, 110 F.R.D. 637, 645 (D. Mass. 1986) (plaintiffs are entitled to conduct discovery concerning the class which they seek to certify) citing Yaffe v. Powers, 454 F.2d 1362, 1367 (1st Cir. 1972). As noted above, the fact that dozens of federal courts have similarly compelled call records in TCPA class actions further supports the Magistrate Judge’s order and illustrates that it cannot be clearly erroneous or contrary to law. See Dkt. No. 35 at pp. 2-3 listing numerous orders on motions to compel class data in TCPA litigation. IV. There Is No Undue Burden Although waived, Verizon’s new undue burden argument is a contrived method to create additional obstacles. Verizon’s assertions that it would take 1,400 hours to run a simple query on the call records to export the results is not credible. When faced with a similar argument in Kinnamon v Ditech, which is also a TCPA class action, Plaintiff’s database expert submitted a declaration to the court in that case explaining that it is a straightforward process to export the data and he could do so in very little time. A copy of his declaration is attached hereto as Exhibit 1. Specifically Mr. Biggerstaff attested that: In a recent case I was provided databases with free-form text fields, and asked to identify DNC requests in those records. I was able to efficiently and objectively identify such calls by analysis of that free-form text and developing an objective computer algorithm to individually identify records containing such requests to a Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 7 of 11 8 very high degree of accuracy. In another recent case, also in the context of debt collection calls, I received and analyzed over 700 million call records—significantly more than Ditech has represented are at issue here. Exhibit 1 para 14 – 15. Some searches may take extended periods of time to execute, depending on the size of the body of data to be searched. But the usual reason a search would take an extended period of time is if the column being searched was not “indexed.” However, even if the column is not indexed so a search took a longer time to complete, it would be a simple matter to copy the data to an external hard drive, and ship it to me, and I could run the searches without any impact to Ditech. I maintain a forensic processing server with an advanced RAID subsystem with up to 80TB (terabyte) capacity that can handle literally billions of records quite easily. I regularly search databases consisting of hundreds of millions of records on this system. Id. at para 20. The aggregate size of the data is really only a minor issue. The amount of work to write a script to export the data is largely the same whether it is exporting 10,000 records or 100 million records. The latter will just take longer to run once it starts. The same is true for my analysis—I do essentially the same amount of work whether I am analyzing 10,000 records or 100 million records. This type of analysis is simple to do and I have done it before in many cases, with larger databases. Id. at para 31. It would be relatively simple for anyone with the appropriate knowledge of, and access to, the Ditech system to perform the steps necessary to create the NOTES data. As a database administrator and programmer, I frequently performed similar ad-hoc requests for data from business systems like the one used by Ditech. Based on my experience and the information available in the materials I reviewed, there are no technical reasons identified that would prevent the production of the NOTES data from the Ditech system in the manner I have described. Even if that production resulted in a billion records, each containing 2,000 characters of text, that data would easily fit on an off-the shelf external hard drive that costs less than $100, and typically copied in a day or less. Id. at para 41. Whether the size is a thousand records or a billion records is irrelevant. It is the same process and the essentially same amount of work for me. Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 8 of 11 9 Id. at para 38, n. 9. In addition, in Lanetri v CPA, another TCPA class action, the district court overruled defendant’s Rule 72 objection to the magistrate’s order to search the Livevox call records for calls made after a bankruptcy code had been entered and found the Magistrate was not clearly erroneous and held “[t]he Magistrate Judge correctly found that the Defendants did not provide sufficient evidence regarding burden to support a finding of undue burdensomeness; they offered no estimate of how long the Disputed Search would take or what kind of resources would be necessary to complete it. A copy of the order overruling the objection is attached hereto as Exhibit 2. Finally, its worth noting that Livevox’s customers such as CPA and Verizon have access to the call records either in real time or via a portal. As such, Verizon’s implication that it is burdensome to search these records because Livevox is a third party is disingenuous.4 In addition, it took CPA “an hour” to figure out the parameters of the data that needs to be cross referenced. (See Exhibit 3 excerpt of ECF#93, p.9). Thus, Verizon’s undue burden argument fails even if it was not waived and the Magistrate’s Order is not clearly erroneous nor contrary to law. V. Conclusion Verizon’s emergency motion to set aside should be denied because 1) it is procedurally improper as it fails to comply with Fed. R. Civ. P. 72 or Rule 2 of the Local Rules for U. S. Magistrate Judges, but instead seeks de novo review; 2) it raise new facts and arguments relating 4 Verizon also violated Rule 26(a)(1) by failing to identify that LiveVox had relevant call records. Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 9 of 11 10 to its burden that a) are not accurate and b) it waved by not raising burden either in briefing or at the hearing for the motion to compel let alone supplying any facts to support the contention; 3) the court’s order is not clearly erroneous as evidenced by the dozens of courts that have entered similar orders in TCPA class actions; 4) the order is not an emergency but instead Verizon waited to the last possible day to file its motion when it asserted at the hearing it would seek review if the order, and 5) there is no undue burden. Dated: September 15, 2017 Respectfully Submitted, /s/ Keith J. Keogh Keith J. Keogh (Pro Hac Vice) Ill. Bar No. 6257811IL Keogh Law, Ltd. 55 W. Monroe St., Suite 3390 Chicago, Illinois 60603 312.726.1092 (office) 312.726.1093 (fax) keith@keoghlaw.com 1. 2. Sergei Lemberg Esq. Lemberg Law LLC 43 Danbury Road Wilton, CT 06897 203.653.2250 x5500 (office) 203.653.3424 (fax) slemberg@lemberglaw.com 3. Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 10 of 11 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 15, 2017, I electronically field the foregoing document with the Clerk of the Court using CM/ECF, which perfected service on all parties of record. Respectfully Submitted, /s/ Keith J. Keogh Keith J. Keogh (Pro Hac Vice) Ill. Bar No. 6257811IL Keogh Law, Ltd. 55 W. Monroe St., Suite 3390 Chicago, Illinois 60603 312.726.1092 (office) 312.726.1093 (fax) keith@keoghlaw.com Case 1:16-cv-11512-DJC Document 104 Filed 09/15/17 Page 11 of 11
