District Court Judge in Northern District of Ohio Compels Defendant to Write Computer Program to Extract Relevant Information

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Plaintiff filed putative class action alleging violations of the TCPA.  Specifically, Meredith Plaintiff asserts that Defendant’s practice of using autodialed, prerecorded-voice collection calls using contact information obtained from its clients or third-party skip-trace services foreseeably results in Defendant making numerous wrong number calls to the cell phones of people other than the debtor.

Previously, the Court ruled on Plaintiff’s motion to compel, which raised numerous deficiencies with Defendant’s responses to Plaintiff’s discovery requests. In relevant part, the Court denied Plaintiff’s request to compel Defendant to produce class information for ‘wrong number’ call recipients as identified in Defendant’s database. Plaintiff’s request sought extremely detailed information about these calls, and Defendant stated that it would have to conduct a manual review of more than 278,000 accounts in order to respond to the request. The Court found that requiring Defendant to perform a manual review would be unduly burdensome and denied the motion to compel on this basis.

Thereafter, Plaintiff deposed Defendant’s Chief Technology Officer, who testified that a program could, in fact, be written to run a query of its database to identify “wrong number” recipients of its autodialed, prerecorded-voice calls.  Following the deposition, Plaintiff asked Defendant to write the program that would produce the class data of wrong number calls and associated account notes for the class period.  Defendant declined to do so.  But the Court ordered the defendant to comply.

The defendant argues that “by asking it to write a program that does not already exist, Plaintiff is asking for ESI that is not kept in the usual course of business. It also states that writing and testing such a program ‘would take a few days’ and could harm its ability to conduct its business during regular business hours. Should Plaintiff’s expert be allowed to write the program, it questions his ability to do so because its database has been customized and it is not clear that Hansen is familiar with the version of CUBS that Defendant uses.

“The Court is not persuaded by Defendant’s objection that the information Plaintiff seeks requires it to produce ESI in a manner in which it is not normally kept. Courts have long recognized that defendants may be required under the Federal Rules to create computer programs to search an existing database for relevant information….  Plaintiff has met her burden of showing that the discovery she seeks is relevant and necessary to her claim. While Defendant has shown that there will be some burden to it in responding to Plaintiff’s request, the burden does not outweigh the likely benefit of production. As such, Defendant has not shown that there is good cause for issuing a protective order. Defendant must, therefore, 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, Jeffrey Hansen, can write the program and conduct the query himself.”

 

Meredith v. United Collection Bureau, Inc., No.16-1102, 2017 WL 1355696 (N.D.Ohio April 13, 2017).

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