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Nece v. Quicken Loans, Inc.

United States District Court, M.D. Florida, Tampa Division

February 27, 2018

EILEEN NECE, Plaintiff,



         A February 14, 2018 order (Doc. 127) recites at length the facts of this action. In short, on December 7, 2012, Eileen Nece submitted four forms on Quicken's website and e-mailed Quicken to inquire about a mortgage. Nece included in the e-mail and in at least one website submission the number for her residential landline, which appears on the national do-not-call registry. By inquiring about a Quicken mortgage and by providing her telephone number, Nece consented to a call from Quicken. The TCPA regulations permit a call to a consenting person whose number appears on the national do-not-call registry. In the week after Nece's submissions, Quicken called Nece a dozen times. During the calls, Nece rebuffed Quicken's attempts to solicit Nece's business, but (with one exception) Nece said no phrase equivalent to “stop calling me” or “take me off your call list.”

         In September 2016, Nece sued (Doc. 1) Quicken for calling with an artificial or prerecorded voice, for calling a number on the national do-not-call registry (a violation of 47 C.F.R. § 64.1200(c)), and for calling Nece before “institut[ing]” several procedures required by a TCPA regulation. The February 14 order grants summary judgment for Quicken on the prerecorded-voice claim and the procedural claim but denies summary judgment on the Section 64.1200(c) claim because of “two predominant disputes of material fact.” (Doc. 127 at 13) First, a dispute about the clarity of Nece's comments requires a jury to decide when Nece revoked consent to a call. Second, the jury must decide whether Quicken stopped calling Nece within a reasonable time - a determination that “depends partly on when Nece directed Quicken to stop calling.” (Doc. 127 at 15) Additionally, the February 14 order observes that Nece's repeated submissions to Quicken “inform the reasonableness of Quicken's response.” (Doc. 127 at 15-16)

         Although the trial is scheduled for July 2018, Nece moves (Doc. 129) to extend discovery until August 12, 2018 and to extend until August 12, 2018 the time within which to move for class certification. Nece identifies two items that purportedly require the extensions: First, Nece's outstanding requests that Quicken produce every shred of documentation in any form about every do-not-call request that Quicken received between September 2012 and June 2013; and second, the anticipated depositions of other people whom Quicken called. Quicken objects (Doc. 77) to producing the documentation requested by Nece, and the resolution of both Nece's motion and Quicken's objection requires another lengthy recitation.

         Rather than request a reasonable sample, Nece demanded in November 2016 that Quicken produce:

All documents of any type or kind or records of communications received by Defendant or any third party from a proposed class member requesting that Defendant not contact that consumer or customer.

(Doc. 41-2 at 15) Also, Nece demanded:

All consumer and/or customer communications of any type or kind, or records of communications, received by Defendant revoking consent for Defendant or any third party to contact that consumer or customer.

(Doc. 41-2 at 15) Although the TCPA contains a four-year limitation, Nece expressly declined to limit the requests to the four years preceding the September 8, 2016 complaint. Quicken objected for several reasons, including the burden and the relevance of Nece's requests.

         On February 25, 2017, Nece moved (Doc. 41) to compel production. Quicken opposed Nece's motion for the same reasons Quicken opposed Nece's requests for production. Quicken explained that the requests require collecting and reviewing at least three million e-mails, a review that might cost millions of dollars.[1] (Doc. 51-2) Partially granting Nece's motion to compel, the magistrate judge wrote in a May 5, 2017 order:

As for Request Nos. 20 and 21, while I find them to be overly broad and disproportionate to Plaintiff's needs at this stage of the proceedings, the requests are not wholly irrelevant to Plaintiff's allegations. To the extent Defendant documents consumer requests made by similarly situated residential consumers that they not be contacted or that their prior consent be revoked, such documentation shall be provided for the period between September 2012 and June 2013.

(Doc. 66 at 12) The order includes no explanation who constitutes a “similarly situated” consumer. The magistrate judge ordered Quicken to produce the documentation no later than September 4, 2017, but an August 28, 2017 order (Doc. 89) stayed class discovery before Quicken produced the documentation. Both parties agreed to the stay.

         Moving (Doc. 67) on May 19, 2017 for clarification or reconsideration of the May 5 order, Quicken submitted proof that compliance with the May 5 order would require dozens of employees to spend months on document review and would cost Quicken at least hundreds of thousands of dollars. Quicken argued that compliance with the May 5 order required at least two time-consuming and costly steps. First, the identification of a “similarly situated” consumer requires manually searching Quicken's general e-mail inbox and other locations to determine who revoked consent to a call. As Quicken correctly observed, the infinite variety of language precludes an “automated” or “keyword” search to find correspondence about a person's revocation of consent to a call from Quicken.[2]

         Second, Quicken lacks the capability to determine readily whether a telephone number in an e-mail or Internet “lead” belongs to a residence, a cell phone, or a business. To determine if a number belongs to a residence, Quicken “would need to [] ...

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