United States District Court, M.D. Florida, Fort Myers Division
DONELL L. TILLMAN, individually and on behalf of all others similarly situated Plaintiff,
ALLY FINANCIAL INC., Defendant.
MIRANDO United States Magistrate Judge.
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 and agrees to a nine-day extension of the
deadline for Plaintiff to file a motion for class
certification. Docs. 70, 71 at 4.
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.
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.
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.
Motion to Compel
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.
Plaintiff's Interrogatories Nos. 4 and 6 and Production
of Document No. 2
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.
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.
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 ...