Dialing the Wrong Number Has Its Consequences: Court Grants Motion to Compel Against Debt Collector
Meredith v. United Collection Bureau, Inc., 2017 U.S. Dist. LEXIS 56783 (N.D. Ohio Apr. 13, 2017) In this class action suit, the plaintiff argued that the defendant violated the Telephone Consumer Protection Act (TCPA), which prohibits using a telephone dialing system or artificial prerecorded voice to call a cell phone. Previously, the trial court denied the plaintiff’s motion to compel the defendant to produce class information on “wrong number” recipients, holding that it would be overly burdensome because the defendant would have to do a manual review of 278,000 accounts. However, during a deposition, the defendant’s Chief Technology Officer testified that a computer program could, in fact, be written to run a query of its database to identify "wrong number" recipients. The plaintiff asked the defendant to write the program and produce the wrong number calls. In response, the defendant refused to produce the data and filed a motion for a protective order. The defendant argued that under FRCP 34, creating a program specifically to allow the plaintiff access to ESI would not be in its usual course of business. The court was not persuaded by the defendant's argument, finding that it has been long recognized under the Federal Rules of Civil Procedure that defendants may have to create computer programs to search an existing database for relevant information. The court turned to FRCP 26(b)(1) to determine whether the burden or expense of the proposed discovery outweighed the benefit. The court found that the plaintiff met the burden of establishing that the class information of “wrong number” recipients was necessary and relevant to the claim. Conversely, the court held that the defendant did not demonstrate good cause for issuing a protective order. The court granted the plaintiff’s motion to compel, and denied the defendant’s motion for protective order. The court ordered the defendant to either write a program issuing the class data, or to produce relevant portions of the data for the plaintiff to give to the plaintiff’s recovery expert.