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Tillman v. Ally Financial Inc.

United States District Court, M.D. Florida, Fort Myers Division

January 6, 2017

DONELL L. TILLMAN, individually and on behalf of all others similarly situated Plaintiff,
v.
ALLY FINANCIAL INC., Defendant.

          ORDER

          CAROL MIRANDO United States Magistrate Judge.

         This matter comes before the Court upon review of Plaintiff's Motion to Compel Defendant's Production of Discovery (Doc. 47) filed on October 4, 2016 and Plaintiff's Second Motion for Extension of Time for Plaintiff to File Motion for Class Certification (Doc. 71) filed on January 4, 2017. Plaintiff's motion for extension seeks to extend the deadline of January 12, 2017 to file a motion for class certification to March 31, 2017 in light of his pending motion to compel. Doc. 71. Defendant filed under seal its response in opposition to Plaintiff's motion to compel on December 19, 2016[1] and agrees to a nine-day extension of the deadline for Plaintiff to file a motion for class certification. Docs. 70, 71 at 4.

         I. Background

         On April 28, 2016, Plaintiff filed this lawsuit against Defendant on the ground that Defendant has violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Doc. 1 at 1. Defendant allegedly is one of the largest automotive financiers in the world. Id. ¶ 4. Plaintiff seeks to bring claims on behalf of a class that consists of people who received non-consented calls from Defendant within four years of the filing of the Complaint. Id. ¶¶ 38-39.

         Plaintiff claims that in or around December 2015, Defendant called him numerous times to reach an individual named Phillip Everett. Id. ¶ 9. Plaintiff notified Defendant that he is not Phillip Everett, and requested Defendant to cease further calls to him. Id. ¶ 10. Plaintiff asserts that he is not the person whom Defendant attempted to reach, and has not provided his consent to receive calls from Defendant for any purpose. Id. ¶¶ 17-18. Defendant, however, continued to call Plaintiff from January to March 2016. Id. ¶ 11. Several of Defendant's calls were artificial and pre-recorded voice messages. Id. ¶ 14.

         On October 18, 2016, the Court entered a Case Management and Scheduling Order (“CMSO”) setting the deadline for disclosure of expert reports for Plaintiff to August 18, 2017 and for Defendant to September 18, 2017, the discovery deadline to October 20, 2017, and a trial term of May 7, 2018. Doc. 54. On October 18, 2016, the Court granted in part and denied in part Defendant's motion to stay and stayed discovery until December 2, 2016 in order to allow sufficient time for the resolution of Defendant's motion to dismiss (Doc. 29). Doc. 55. The Court also extended Plaintiff's deadline to file a motion for class certification to January 12, 2017. Id. at 7. On November 30, 2016, Senior United States District Judge John E. Steele denied Defendant's motion to dismiss (Doc. 29). Doc. 58.

         II. Motion to Compel

         Plaintiff asserts that he seeks to certify a class of similarly situated persons, which includes people who do not owe any debt to Defendant or instructed Defendant to cease calling and yet, continued to receive calls from Defendant. Doc. 47 at 2. Plaintiff alleges that he served written discovery requests to Defendant, seeking to identify the members of this putative class and to obtain the records of Defendant's automated calls to putative class members and documents relating to Plaintiff's telephone number. Id. Plaintiff, however, argues that Defendant refused to identify any telephone number or person whose number had a notation “wrong number” or “do not call, ” and to produce any call data regarding Defendant's calls to these numbers and documents in connection with Plaintiff's telephone number. Id. Plaintiff seeks to compel Defendant to provide complete responses to his four discovery requests: Interrogatories Nos. 4 and 6 and Requests for Production of Document Nos. 1 and 2. Id. at 5-7, 10-17.

         a. Plaintiff's Interrogatories Nos. 4 and 6 and Production of Document No. 2

         In general, Plaintiff's Interrogatories Nos. 4 and 6 and Production of Document No. 2 seek to identify the members of the putative class and Defendant's call data regarding the putative class members. Doc. 47 at 5-16. The first contested discovery request is Plaintiff's Interrogatory No. 4, which asks Defendant to identify certain telephone numbers and persons who received calls from Defendant although they do not owe any debt to Defendant. Specifically, the interrogatory requests Defendant to:

Identify each person in the United States (1) whose cellular telephone number (2) a non-emergency telephone call was made to by or on behalf of [Defendant] (3) using the same system(s) that called (561) 201 - (4) between April 25, 2012 and present (5) who was not the person alleged to owe the debt in question.
a. Also, please state the date of each call, the telephone number called, the total number of all such calls, and the total number of unique cellular telephone numbers called.
If you contend that a full response to this interrogatory is impossible, please explain why with specificity, and provide the most complete response possible.
Also, if you do not know and cannot determine which calls were made to cellular telephone numbers, answer this interrogatory as if the word “cellular” was omitted from it, and Plaintiff will determine which calls were made to cellular telephones.

Id. at 5-6.

         Defendant objected on various grounds, including that the requested job of reviewing and searching through its customer data will take millions of hours. Id. at 6. Furthermore, Defendant argued that it only has the names of the customers it attempted to reach, but not the names of the telephone numbers' true owners it called. Id. Defendant also claimed that although some owners might not have consented to receiving calls from Defendant, regular users of cell phones might have consented. Id. As a result, according to Defendant, comparing the identity of its account holder to the owner of the phone is impossible, and producing a list requested by Plaintiff will include people who might have consented to receiving calls from Defendant. Id. Defendant also objected that it cannot provide its account holders' information to a third party because of privacy interests. Id.

         Plaintiff argues that Defendant's objection of the request being overly burdensome is an overstatement because Defendant needs to access its single system, identified as “SHAW, ” to identify the numbers that it called. Id. at 7. Plaintiff also asserts that he suggested narrowing his request to phone numbers with a “wrong number” notation in Defendant's records so that Defendant only has to search for this notation in its records. Id. at 8. Alternatively, if Defendant deems responding to this discovery request is too burdensome, Plaintiff volunteers to conduct the necessary queries as long as Defendant provides copies of its database to Plaintiff. Id. With ...


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