California Federal Court Upholds Pre-Certification Discovery Of Defendant’s 'Outbound Dial List' In TCPA Class Action

A California federal district court recently ordered a debt collector to produce an "outbound dial list" that identified all telephone numbers it had called using an ATDS over a one-year period. See Webb v. Healthcare Revenue Recovery Grp. LLC, No. C. 13-00737 RS, 2014 WL 325132 (N.D. Cal. Jan. 29, 2014). The ruling highlights the potential conflict between the discovery objectives of putative class counsel on the one hand, and the privacy rights of putative class members on the other.

In Webb, the plaintiff alleged that the defendant, a debt collector, had used an ATDS to make unauthorized calls to her cell phone. She claimed damages for herself and on behalf of a putative nationwide class under the TCPA, and sought pre-certification discovery of "outbound dial lists of all telephone numbers called by [defendant] using autodial" over a four-year period.

Over the defendant's objections, a magistrate judge ordered production of the autodial records, although limited the scope to one year. The magistrate reasoned that the outbound dial lists were relevant to Rule 23's requirements for class certification, including whether a class is ascertainable, whether the plaintiff's claims were typical of the class, and whether there were common questions of fact. Id. at *2.

On review of the magistrate's ruling, the district court affirmed based on the summary conclusion that the outbound dial lists "would likely bear on the commonality inquiry." Ibid. The district court then held the magistrate's order was not "clearly erroneous" or "contrary to law." Id. at *2-3 (applying standard of review for non-dispositive rulings).

The district court rejected the defendant's assertion that the underlying motive for requesting the outbound dial list was to identify additional putative class members and solicit new clients. The court reasoned that "a purported 'class list' is still discoverable if it bears relevance to issues of class certification." Id. at*3, citing Knutson v. Schwan's Home Serv., Inc., 3:12-CV-0964-GPC-DHB, 2013 WL 3746118, at *4 (S.D. Cal. July 15, 2013) (finding "a list of phone numbers may very well bear direct relevance to a violation of the TCPA concerning the dialing of the very phone numbers listed"). But it simultaneously acknowledged that "courts sometimes refuse to allow discovery of putative class members' identities at the pre-certification stage." Webb, 2014 WL 325132 at *3, citing Dziennik v. Sealift, Inc., No. 05-CV-4659...