Court Orders Defendant to Create Search Program to Query Database For Discovery Response in Robocall Class Action
In Meredith et. al. v. United Collection Bureau, Inc., Case No. 16-01102 (N.D. Ohio, Apr. 13, 2017) Plaintiff filed a class action lawsuit alleging that Defendant violated the Telephone Consumer Protection Act (TCPA), which makes it unlawful to generate a telephone call using an automated dialing system or an artificial or pre-recorded message to a cell phone number. Defendant, a debt collector, is accused of using an automated service to call Plaintiff’s cell phone number, and leaving a pre-recorded message. Plaintiff alleged that the use of such a system results in “numerous wrong number calls to the cell phones of people other than the debtor” in violation of the TCPA.
During the litigation, the court had denied Plaintiff’s initial motion to compel, which had requested information as to to the class of people who could be identified in Defendant’s database as wrong number call recipients. The court denied the motion to compel based upon the finding that Defendant would have to conduct a manual review of the database information, and that this manual review would be unduly burdensome. Plaintiff then deposed Defendant’s Chief Technical Officer, who testified that a program could be written to query the database, which query would identify wrong number recipients of robocalls. Plaintiff then served discovery requests upon Defendant to write the program to search Defendant’s database and produce the information, or in the alternative, produce relevant sections of the Defendant’s database so that Plaintiff’s own expert could formulate the program and conduct the query. Defendant refused, and then Plaintiff filed another Motion to Compel, this time seeking production of the relevant sections of the Defendant’s database. Defendant filed opposition to the motion and concurrently requested a protective order.
At the hearing on the motion to compel, the court found that the information sought by Plaintiff was relevant to establishing the size and nature of a potential class. Defendant argued that FRCP 34 limited the production of ESI to “the manner in which it is ‘kept in the ordinary course of business’” and did not require it to create a program to extract further information from the database. Defendant also argued that writing the program would take days and would interfere with its business, but also conceeded that Plaintiff’s expert might be unable to write the program by himself.
The court disagreed with Defendant’s arguments, holding that the FRCP may require parties to create computer programs to search existing databases. The court also held that under it is also permissable under the FRCP order Defendant to take needed efforts to respond to discovery requests, even if such effort takes days. The court concluded that Plaintiff had met her burden of showing that the information sought was relevant and necessary. The court further denied Defendant’s request for a protective order, finding no good cause existed. Defendant was ordered to either write the program requested or turn over the relevant portions of the database to Plaintiff’s expert.