Martin v. JTH Tax, Inc.

MOTION

N.D. Ill.December 27, 2013

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION NICHOLAS MARTIN on behalf of himself and others similarly situated, Plaintiff, v. JTH TAX, INC. d/b/a LIBERTY TAX SERVICE, Defendant. ) ) ) ) ) ) ) ) ) 1:13-cv-6923 Judge Pallmeyer Magistrate Judge Finnegan JURY DEMANDED PLAINTIFF’S MOTION TO COMPEL DISCLOSURE OF IDENTITY OF THIRD PARTY TELEMARKETER AND LOCATION OF CALL DATA Plaintiff respectfully requests that the Court compel defendant to fully participate in the meet and confer process as to Electronically Stored Information (“ESI”), and disclose the custody, location and format of call data, for calls to plaintiff and the class, and any other relevant ESI that might be in the hands of third parties. In support of this motion, plaintiff states: The Telephone Consumer Protection Act, 47 U.S.C. §227(b)(1)(A)(iii) prohibits using automated equipment to call cellular telephones. Plaintiff, who has a tax preparation business, received unsolicited telemarketing phone calls from JTH, Tax, Inc. d/b/a Liberty Tax Service (“Liberty”) in June, 2013. This is a class action; the class includes all others that Liberty similarly called. Data regarding who was called, when, using what technology, is critical this case. Plaintiff learned for the first time through Liberty’s Fed.R.Civ.P. 26(a)(1) initial disclosures that Liberty did not make the calls that are the subject of this case itself. Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 1 of 13 PageID #:40 2 Instead, it hired some third party to make the challenged telemarketing calls on its behalf. Exhibit A. The disclosures name two individuals who apparently have information regarding the telemarketing calls, including their personal information, but not the name the company for which they work. Plaintiff’s counsel Alexander Burke called defense counsel Adam Glazer on December 27, 2013, to request that Liberty supplement their Fed.R.Civ.P. 26(f) meet and confer, and defendant’s initial disclosures, to disclose the names of the companies that were involved in making the calls that are the subject of this lawsuit, and the location of call data. Mr. Glazer took the position that he had no duty to provide such information, under Rule 26 or otherwise, until his client responds to discovery. Mr. Burke explained, as he has multiple times in this litigation pursuant to Fed.R.Civ.P. 26 and 37.2, that parties have a duty under Rule 26(f) to and “discuss any issues about preserving discoverable information.” This duty includes discussion and disclosure of the location, custodian, format and other particulars regarding third party ESI that might be important to this case. Exhibit B. Defendant first claimed not to understand what an ESI “custodian” is, Exhibit B, and then after a detailed explanation, claimed that there is no duty to provide the information at all, unless there is a discovery request on point. During the December 27, 2013, conversation, defense counsel explained that he was “sure” the data was being preserved pursuant to a document hold letter that he Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 2 of 13 PageID #:41 3 sent to this yet-to-be-disclosed third party. But when Mr. Burke asked whether Mr. Glazer represents the third party, Mr. Glazer replied that he did not. Plaintiff’s counsel explained that he not satisfied that this third party has adequate incentive or duty to preserve the call data pursuant to a mere preservation letter, and that the would like to issue a subpoena to place a direct legal duty upon this third party to preserve and produce the data for safe-keeping. Although he apparently has the requested information in his possession (and went so far as to learn the personal information of individuals involved, rather than disclose the name of the company) Mr. Glazer refused to provide it. Even if Rule 26(f) did not require the parties to meet and confer, justice and equity requires early disclosure of the requested information in order to ensure protection of this critical information. Defendant has not identified any prejudice it might suffer in providing the information. Moreover, economy strikes in favor of disclosure. Substantially more resources will be necessary to retrieve the call data after it has been deleted or archived, than if it is preserved and produced in its “live” state. Fed.R.Civ.P. 1. WHEREFORE, plaintiff respectfully requests that the Court compel defendant to fully participate in the meet and confer process as to Electronically Stored Information (“ESI”), and disclose the custody, location and format of call data, for calls to plaintiff and the class. Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 3 of 13 PageID #:42 4 Respectfully submitted, /s/Alexander H. Burke BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 (312) 729-5288 (312) 729-5289 (fax) ABurke@BurkeLawLLC.com www.BurkeLawLLC.com Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 4 of 13 PageID #:43 Exhibit A Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 5 of 13 PageID #:44 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 6 of 13 PageID #:45 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 7 of 13 PageID #:46 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 8 of 13 PageID #:47 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 9 of 13 PageID #:48 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 10 of 13 PageID #:49 Exhibit B Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 11 of 13 PageID #:50 1 Alexander Burke From: Alexander Burke Sent: Monday, December 16, 2013 5:41 PM To: 'Adam J. Glazer' Subject: RE: JTH / Liberty Call Records Adam, Following up on this. We are very concerned about the routine destruction of data; particularly call data. Please respond. Alex BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 (312) 729‐5288 (312) 729‐5289 (fax) ABurke@BurkeLawLLC.com www.BurkeLawLLC.com From: Alexander Burke [mailto:aburke@burkelawllc.com] Sent: Tuesday, December 03, 2013 12:44 PM To: 'Adam J. Glazer' Subject: RE: JTH / Liberty Call Records In most cases, there are certain persons who are likely to have discoverable documents residing on personal drives/servers. In this case, I would expect those persons to be of the following general categories: the person responsible for operating/maintaining the dialer, the person responsible for managing the call center, the person responsible for designing and developing calling campaigns and others who were involved in telemarketing. Additionally, in most cases there is a “shared drive” (usually on a shared server) where documents are available to the more than one person, but that have documents/emails related to telemarketing or the dialer. Formatting is important because we want to know how the call records and other documents are maintained by defendant (or whatever third party may be involved). What this means is that we’d want to know whether defendant uses Outlook or Lotus (or something else) for email, where it stores those emails and what its retention and backup policies are, and what format the backups are kept. Similarly, we would like to know about the format and software used for the calls and customer management. The above isn’t meant to limit your client’s duties; only to give you an idea of what I’m looking for. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 12 of 13 PageID #:51 2 (312) 729‐5288 (312) 729‐5289 (fax) ABurke@BurkeLawLLC.com www.BurkeLawLLC.com From: Adam J. Glazer [mailto:adam.glazer@sfnr.com] Sent: Tuesday, December 03, 2013 11:48 AM To: Alexander Burke Subject: RE: JTH / Liberty Call Records Alex: Can you better explain what you mean by "including custodians, shared drives, formatting and similar"? Thank you. From: Alexander Burke [mailto:aburke@burkelawllc.com] Sent: Monday, December 02, 2013 9:14 AM To: Adam J. Glazer Subject: JTH / Liberty Call Records Adam, Following up on our conversation regarding ESI in the Martin v. JTH case. Have you had a chance to determine the location and format of call records, and whether the calls were in‐house or performed by a third party? Although discovery responses have been stayed, this issue remains to be tied up so that records are not destroyed in the normal course of business. Also, please disclose the scope of the litigation hold at JTH, including custodians, shared drives, formatting and similar. I suggest that JTH make these disclosures by this Wednesday, December 4, 2013. If you think another date is more appropriate, please suggest a reasonable one. Alex BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 (312) 729‐5288 (312) 729‐5289 (fax) ABurke@BurkeLawLLC.com www.BurkeLawLLC.com Case: 1:13-cv-06923 Document #: 15 Filed: 12/27/13 Page 13 of 13 PageID #:52