Disproportionate Production Of Evidence

Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT (M.D. Fla. Feb. 27, 2018).

In this proposed class action about unwanted phone solicitations, the plaintiff moved to compel a production that would require the defendant to review at least 3 million emails. The court denied the motion, citing proportionality, as each alleged violation of the Telephone Consumer Protection Act (TCPA) was worth just $500.

This case began when Eileen Nece, the plaintiff, emailed Quicken Loans to ask about a mortgage. With that contact, Nece, whose number is on the national do-not-call registry, consented under the TCPA to an initial call. At some point thereafter, Nece claims that she withdrew her consent. In that week, Quicken called Nece a dozen times. Nece sued for various causes of action, only one of which — calling a number on the do-not-call registry — remains.

Nece’s trial is set for July 2018. Yet, in her motion, she asked the court to extend both discovery and her class-certification motion until mid-August. Nece explained that she needed more time to obtain additional information. As the court summarized it, that information included “every shred of documentation in any form about every do-not-call request that Quicken received between September 2012 and June 2013.”

Nece had previously demanded that Quicken produce all communications from any proposed class member “revoking consent for Defendant … to contact that consumer.” That initial demand was not time-limited, despite the TCPA’s four-year statute of limitations. The magistrate judge granted Nece’s motion to compel that discovery in part. Noting that the original request was “overly broad and disproportionate,” the magistrate limited the request to “similarly situated residential consumers” over a 10-month period.

Quicken moved for clarification or reconsideration of the magistrate’s order. It argued that production would cost “at least hundreds of thousands of dollars,” partially because of “the infinite variety of language” that consumers could use to revoke consent. Quicken noted that it had “already produced 12,000-plus pages of records relating to 450,000 phone numbers and individuals.” Full compliance could take another 15,000 hours of employee time. Despite that burden, the magistrate denied Quicken’s motion to reconsider.

Quicken objected to the magistrate’s orders, resulting in this opinion from the district court.

Nece continued to argue that her request was proportional to the needs of the case, which she asserts is worth “multiple billions of dollars.”

The court wasted no time, after spelling out the history of Nece’s motion, in limiting class discovery. It noted, “For too long, Nece has avoided confronting the reality that individualized issues often predominate in putative TCPA class actions” regarding consent. Nece’s individual recovery is limited to, at most, 12 calls punishable at $500 apiece. Because of that limited individual value, Nece’s class-discovery requests impose a disproportionate burden on Quicken.

The district court, holding that the magistrate clearly erred, vacated the earlier orders.

As to class-certification discovery, the court noted that Nece had already submitted 10 interrogatories and made 61 requests for production and 25 requests for admission. Quicken had duly responded with more than 10,000 records. The court noted that “the frequent quarreling about class discovery and class certification has wasted the parties’ and the district court’s time and resources” for 18 months. Therefore, the court granted only until mid-April for class discovery and a motion for class certification.

Takeaways on Requesting a Large Data Set

The court observed early in its opinion that Nece could have avoided the dispute entirely by requesting “a reasonable sample” of Quicken’s call data. Even if you believe you will eventually need a full data set, it is often wise to start by asking for a representative sample. This approach is far more likely to convince the court of your good faith — while potentially providing you with the evidence you need to support a motion for the entirety of the data.

Questions about developing your ediscovery strategy? We’re here to help you master ediscovery and demonstrate your reasonableness to any court.

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