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Meredith v. United Collection Bureau, Inc.

United States District Court, N.D. Ohio, Eastern Division

May 31, 2018

Deborah Meredith, Plaintiff,
v.
United Collection Bureau, Inc. Defendant.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN, UNITED STATES DISTRICT COURT.

         INTRODUCTION

         This matter is before the Court upon Plaintiff Deborah Meredith's Motion to Compel Discovery (Doc. 62). This is an action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice...to any telephone number assigned to a ... cellular telephone service.” 42 U.S.C. § 227(b)(1)(A)(iii). For the reasons that follow, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         Plaintiff asserts that Defendant United Collection Bureau (“UCB”) violated the TCPA by initiating multiple telephone calls to her cell phone in an attempt to collect a debt. The debtor from whom UCB sought to collect was not Plaintiff. UCB contacted Plaintiff because the debtor's cell phone number had been reassigned to her. Plaintiff claims that UCB called her on three occasions and left a message on her cell phone each time. The messages explained that UCB is a debt collector, instructed her to call UCB back, and provided a reference number for her to use when she returned the call. Plaintiff called UCB after the third message and informed it that she is not the debtor whom it was trying to reach. Plaintiff filed this case as a putative class action. She seeks to represent the following class:

All persons in the United States who: (a) Defendant and/or someone on Defendant's behalf called at least twice on their cellular phone; (b) and played the same or similarly-created message to the voice mail left for plaintiff; (c) where the phone number was not obtained from the recipient of the call, as to the alleged debt being collected; (d) where at least one call was made in the period that begins four years before the date of filing this Complaint.

         The parties have had several disputes about Plaintiff's discovery requests pertaining to class data. Plaintiff sought class data in Interrogatory 1, which asked UCB to “[i]dentify all outgoing calls (including attempted calls) for the set described below, including plaintiff. Please include all data you have....” (Doc. 19-2, at 6) (emphasis added). After listing the broad range of information that she was seeking, Plaintiff then described the relevant “set, ” which was identical in relevant part to her proposed class definition. Document Request 2 then asked for “[a]ll documents or data that concern or relate to any phone call, person or phone number responsive to interrogatory 1.” In the course of discovery, Plaintiff agreed to limit the request to class information for “wrong number” call recipients as identified in UCB's database.

         UCB initially objected to these requests as unduly burdensome, stating that it would be impossible to electronically search its databases for the relevant information and that it would have to do so manually. The Court denied Plaintiff's initial motion to compel, finding that requiring UCB to perform a manual search would be unduly burdensome. Plaintiff then deposed UCB's Chief Technology Officer Mark Beirdneau, who testified that it would, in fact, be possible to write a program to run a query of its database to identify “wrong number” recipients of its autodialed, prerecorded-voice calls. As a result, the Court granted Plaintiff's second motion to compel, ordering UCB to “either write the program that would produce the class data of wrong number calls and associated account notes for the class period or produce the relevant portions of its database to Plaintiff so that her expert...can write the program and conduct the query himself.” (Doc. 46, at 7). If UCB performed the search itself, the Court ordered Plaintiff to bear the reasonable costs of doing so.

         UCB chose to write the program and perform the search. According to Plaintiff, UCB refused to provide test samples or coordinate with Plaintiff in the data extraction process. UCB asked Beirdneau to use Plaintiff's proposed class definition to run the query. Beirdneau created a multi-step process to run the query. Plaintiff states that UCB originally produced data showing 1, 307, 659 “wrong number” calls to 1, 076, 533 unique phone numbers. It then provided different data for 808, 604 “wrong number” calls to 632, 430 unique cell numbers. UCB then narrowed the results to include only accounts where at least two “FOTI” voicemails were left. (Beirdneau Decl. ¶ 7).

         UCB states that it ran its search through each of its relevant databases. It provided the following explanations for each of the databases that were searched as well as the correlating results:

• BOA database: This database houses calls made to Resurgent and PSECU accounts. No. hits for the query searching for at least two dialer calls in which a message was left and UCB was informed that it had dialed the wrong number.
• CHASE database: This database houses calls made on behalf of Chase. No. hits for the query searching for at least two dialer calls in which a message was left and UCB was informed that it had dialed the wrong number.
• GOV database: This database houses debt collection calls that UCB makes on behalf of state and local municipalities. The query reveals that UCB made a total of 166 calls to 20 accounts in which at least two calls were made using a dialer in which voicemail messages were left and someone told the UCB operator that UCB had dialed the wrong number.
• UCB database: This database houses all of the medical debt collection and utility debt collection call information. The query reveals that UCB made 164 calls to 27 accounts in which at least two calls were made using a dialer in which voicemail messages were left and someone told the UCB operator that UCB had dialed the wrong number. Ten of the calls relate to a phone number, [XXX-XXX-XXXX], for which UCB has already been sued in a separate lawsuit. ...

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