Diaz-Lebel v. TD Bank USA, N.A.

Background

Sara Diaz-Lebel, on behalf of herself and others similarly situated, filed this proposed class action against TD Bank USA, N.A., and Target Corporation under the Telephone Consumer Protection Act, or TCPA. The case was originally filed in the District of New Jersey and was later transferred to the District of Minnesota.

The court considered two motions to compel. A motion to compel asks a court to require another party to provide discovery. The first motion concerned wrong-number call data and related account records. The second concerned documents that Diaz-Lebel argued could show whether the defendants' alleged TCPA violations were knowing or willful.

The court had previously denied an earlier motion to compel without prejudice and directed the parties to meet and confer. It also directed Diaz-Lebel to prepare targeted requests consistent with Federal Rule of Civil Procedure 26, which requires discovery to be relevant and proportionate to the needs of the case. The court later set August 30, 2018, as the close of fact discovery.

Wrong-Number Call Data

Diaz-Lebel sought electronic information showing the telephone number called, the date, time, and duration of each call, the dialing system used, whether a prerecorded or artificial voice was used, and account notes for telephone numbers coded as wrong-party or otherwise identified as numbers belonging to someone without a Target REDcard contract with Target or TD Bank.

The parties referred to the wrong-number records as “Bucket One” and the corresponding account records as “Bucket Two.” The requested records included hundreds of thousands of Bucket One records. Target argued that the Bucket One records alone were not reliable for identifying wrong-number calls related to the proposed class and that they needed to be cross-referenced with Bucket Two account records. Records from before 2016 would require extensive manual searching and review. Records from 2016 onward were more searchable, although reviewing the reason for each wrong-party code would still require manual work.

Target also argued that the records could include irrelevant calls and highly sensitive financial and personal information belonging to account holders. It asserted that producing all of the records would be unduly burdensome, would not be proportional under Rule 26, and would create confidentiality concerns.

The court held that the request for all responsive records was too burdensome and not proportional to the needs of the case. The court also rejected Diaz-Lebel's proposed approach of requiring Target to process a significant amount of material immediately while preserving a possible demand for all records later. The court noted that the parties had not agreed on a narrower proposal or a method for sampling the data.

Even so, the court ordered Target to produce all Bucket One records and at least 1,000 corresponding 2016 account records from Bucket Two. Target was also required to collect and preserve, but not produce, all 2016 account records in case Diaz-Lebel later showed sufficient good cause for additional cross-referencing. Any later request would require a meet and confer and a motion to amend the scheduling order. The parties were directed to confirm protective-order procedures by September 4, 2018, and the defendants were required to produce the ordered files by September 14, 2018.

Documents About Knowing or Willful TCPA Violations

Diaz-Lebel's second motion sought two categories of documents: documents concerning consumer complaints about calls and documents concerning the defendants' compliance with state and federal laws or regulations involving calls, including the TCPA and its implementing regulations.

The court had previously denied a motion concerning these discovery requests and had directed Diaz-Lebel to prepare new, tailored requests and interrogatories after meeting and conferring with the defendants. Diaz-Lebel did not prepare new requests, even after the defendants' counsel raised the issue. At the hearing, counsel offered an apology but no justification for failing to comply with the prior order.

Because the original requests had been denied and had not been renewed through new, targeted requests, the court held that they were not properly before it. The court therefore denied Diaz-Lebel's motion to compel documents relating to knowing or willful TCPA violations.

Disposition

Judge Becky R. Thorson ordered that the motion to compel production of wrong-number call data, Document No. 227, was granted in part and denied in part. The motion to compel documents relating to willful or knowing TCPA violations, Document No. 242, was denied. The opinion also noted that the defendants' motion to join a third-party defendant would be addressed in a separate order.