Duke v. American Express Company

• Court: District Court, D. Arizona
• Decided: July 11, 2025
• Docket: 4:23-cv-00125
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Debra Duke, No. CV-23-00125-TUC-RM (LCK)

10 Plaintiff, ORDER

11 v.

12 American Express Company,

13 Defendant. 14 15 Pending before the Court is Plaintiff's second Motion to Compel Discovery 16 Responses. (Doc. 65.)1 Plaintiff seeks to compel Defendant to answer one interrogatory 17 and one request for production, the same discovery she successfully moved to compel a 18 year ago. Defendant responded, and Plaintiff replied. (Docs. 70, 71.) 19 BACKGROUND 20 The Complaint alleges that Defendant violated the "Telephone Consumer 21 Protection Act by making pre-recorded calls to consumers' phone numbers without first 22 obtaining their prior express consent." (Doc. 1 at 1.) As to herself, Plaintiff alleges that 23 she received unwanted calls on her cell phone from Defendant beginning in August 2022 24 up to November 1, 2022. (Id. at ¶¶ 22-36.) She repeatedly notified Defendant to stop 25 calling her and that she was not a customer. (Id.) Plaintiff seeks to bring a claim on behalf 26 of a class that she identified, in a court hearing, as "all persons who received a 27 1 The Court cites primarily to the public version of the document, which contains 28 some redactions. Plaintiff submitted an unredacted version under seal that included a sealed exhibit not attached to the publicly docketed motion. (Doc. 69.) 1 prerecorded call to their cellular telephone number using an artificial voice or 2 prerecorded voice who are not account holders of defendant." (Doc. 44 at 4.) 3 Plaintiff's claim is brought under the following Telephone Consumer Protection 4 Act (TCPA) provision: 5 It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-- 6 (A) to make any call (other than a call made for emergency purposes or 7 made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— 8 . . . . 9 (iii) to any telephone number assigned to a paging service, cellular 10 telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the 11 call, unless such call is made solely to collect a debt owed to or guaranteed by the United States[.] 12 47 U.S.C. § 227(b)(1)(iii). 13 Plaintiff seeks to compel responses to one interrogatory and one request for 14 production. Interrogatory Number 7 asked: 15 For the telephone numbers Defendant referenced by interrogatory nos. 4-5,1 16 identify the number of calls, in connection with which it used an artificial or prerecorded voice, that Defendant made, or caused to be made, to the 17 telephone numbers. 18 1 Interrogatory no. 4 requests: 19 telephone numbers for which Defendant's records show that (i) a called party was not the person Defendant intended to 20 reach by placing a call to one of the telephone numbers, (ii) a person associated with one of the telephone numbers 21 indicated that Defendant contacted the wrong person or telephone number, or (iii) a vendor identified the telephone 22 number as a potential wrong or reassigned telephone number. 23 Interrogatory no. 5 requests: 24 telephone numbers to which Defendant made, or caused to be 25 made, calls, in connection with which Defendant used an artificial or prerecorded voice that the Defendant had 26 dispositioned the relevant phone number as an "Invalid Number." 27 28 1 (Doc. 65 at 6-7.) On September 19, 2023, Defendant objected to Interrogatory Number 7 2 as vague, overbroad, unduly burdensome and harassing, and seeking information that is 3 not relevant or proportional, and is confidential. (Id. at 7.) Defendant went on to provide 4 the following answer:

5 Without waiving, and subject to, these objections and the General Objections, American Express responds to this Interrogatory as follows: 6 American Express cannot readily determine the frequency with which an error made by a cardmember on an application results in the making of a 7 phone call to someone other than the cardmember, the frequency with which such calls might be made to a cellular telephone, or the frequency 8 with which such calls might be made with pre-recorded or artificial voice technology. Nor can American Express systematically determine who 9 might have received such calls as a result of cardmember error. 10 (Id.) Request For Production Number 7 asked:

11 For the telephone numbers referenced by interrogatory nos. 4-5, and request for production nos. 4-5, documents and electronically stored information 12 sufficient to identify the calls, in connection with which it used an artificial or rerecorded voice, and the total number of them, that Defendant made, or 13 caused to be made, to those telephone numbers. 14 (Id. at 7-8.) On September 19, 2023, Defendant objected to Request For Production 15 Number 7 as overbroad, unduly burdensome and harassing, and seeking information that 16 is not relevant or proportional to the case, and is confidential and private. (Id. at 8.) 17 Before the parties resolved their dispute over the above discovery requests, they 18 requested, and were granted, a discovery extension to allow them time to participate in a 19 private mediation. (Docs. 30, 31.) The mediation was unsuccessful. The parties then 20 engaged in a meet and confer regarding discovery. As a result of that process, Plaintiff 21 reframed the disputed discovery requests to conform generally to what she perceived to 22 be "the steps outlined by American Express[] prior to mediation," "to identify potential 23 class members":

24 records reflecting each attempt by Amex, or a vendor on Amex's behalf, to place a pre-recorded or artificial voice call to a phone number not identified 25 as a landline in Amex's records and for which Amex's records reflect at least one instance of a wrong party/never call notation on an account 26 associated with the phone number for all Amex accounts for the period of March 2019 through June 2024. 27 (Doc. 32 at 2.) Defendant refused to produce the information sought in the modified 28 request. Therefore, Plaintiff filed a motion to compel. (Doc. 32.) On September 10, 2024, 1 the judge granted the motion, ordering Defendant to produce: 2 records reflecting each attempt by Defendant or a vendor on Defendant's behalf to place a pre-recorded or artificial voice call to a phone number (not 3 identified as a landline in Defendant's records) for which Defendant's records reflect at least one instance of a wrong party/never call notation on 4 an account associated with the phone number, for all Amex accounts for the period of March 2019 through January 2024. As discussed with the Court, 5 these records will reflect the 3,133 numbers identified by Defendant in May 2024. 6 (Doc. 43.) Defendant produced the 3,133 numbers and the discovery process continued. 7 Plaintiff's motion for class certification was due on February 11, 2025, and discovery was 8 set to close on April 18, 2025. (Doc. 49.) 9 On February 5, Plaintiff filed a notice that the parties had reached a settlement (in 10 principle) to settle claims on a class-wide basis. (Doc. 50.) While negotiating the intended 11 settlement, Plaintiff deposed Brian Duckworth, Defendant's Director of Outbound 12 Contact Strategy. He was questioned about the process American Express used to 13 generate the 3,133 numbers it had produced. (Doc. 69, Ex. 1 at 5-7.) Almost three months 14 later, Plaintiff informed the Court that the parties had been unable to finalize a settlement 15 due, in great part, to the information learned from Duckworth. (Docs. 57, 59.) 16 During a status conference with the Court, Plaintiff explained that the parties had a 17 dispute regarding whether the discovery produced in response to the Court's granting of 18 the motion to compel conformed to Defendant's description of the information. When the 19 parties were, again, unable to resolve their dispute, Plaintiff filed a second motion to 20 compel as to the same discovery requests, Interrogatory Number 7 and Request for 21 Production Number 7. (Doc. 65.) 22 ANALYSIS 23 Plaintiff contends the requested discovery is relevant to the issues of numerosity 24 and commonality for purposes of class certification under Rule 23. Defendant argues that 25 it should not have to provide the requested discovery because producing it will not reveal 26 a certifiable class, implicates privacy concerns, and is disproportionate to the needs of the 27 case. 28 1 The federal rules set forth the scope of allowed discovery: 2 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the 3 case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, 4 the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery 5 outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 6 Fed. R. Civ. P. 26(b)(1). Evidence is relevant if it "has any tendency to make a fact more 7 or less probable than it would be without the evidence." Fed. R. Evid. 401(a). 8 "Resolution of a motion to compel discovery is a matter within the Court's 9 discretion. Miller v. York Risk Servs. Grp., No. CV-13-01419-PHX-JWS, 2014 WL 10 12656714, at *2 (D. Ariz. June 23, 2014) (citing Surfvivor Media. Inc. v. Survivor Prods., 11 406 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). 12 A party may move to compel discovery if a party failed to answer an interrogatory or 13 failed to produce documents. Fed. R. Civ. P. 37(a)(3)(B). An "evasive or incomplete 14 disclosure, answer, or response must be treated as a failure to disclose, answer, or 15 respond." Fed. R. Civ. P. 37(a)(4). The party that requests the Court to compel discovery 16 must demonstrate that the information is relevant. Miller, 2014 WL 12656714, at *2. 17 Certifiability of a Class 18 Defendant argues that Plaintiff is not entitled to the requested discovery because 19 the information will not demonstrate a certifiable class. This Court has substantial 20 discretion in controlling the class certification process and the availability of discovery, 21 recognizing that "often the pleadings alone will not resolve the question of class 22 certification and that some discovery will be warranted." Vinole v. Countrywide Home 23 Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). In fact, "the better and more advisable 24 practice for a District Court to follow is to afford the litigants an opportunity to present 25 evidence as to whether a class action was maintainable." Id. (quoting Doninger v. Pac. 26 Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (upholding a limitation on discovery 27 based on unique facts of case and the plaintiff's failure to make a prima facie showing of 28 Rule 23's requirements)). Defendant has not filed a motion to dismiss the class 1 allegations nor established that Plaintiff has not alleged "a prima facie showing that the 2 class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to 3 produce substantiation of the class allegations." Mantolete v. Bolger, 767 F.2d 1416, 4 1420, 1424 (9th Cir. 1985), as amended (Aug. 27, 1985) (finding the district court did not 5 abuse its discretion in denying expanded class discovery and noting that the court had 6 granted the defendant's motion to dismiss the class allegations); see also Whiteamire 7 Clinic, P.A., Inc. v. Quill Corp., No. 12-C-5490, 2013 WL 5348377, at *7 (N.D. Ill. Sept. 8 24, 2013) (rejecting the defendant's argument that discovery should be denied based on 9 the tenuousness of the class allegations because defendant had not filed a motion to 10 dismiss). 11 The Court will not permit Defendant "on one hand to contest class certification 12 and on the other hand deny [P]laintiff the discovery relevant to its position that a class 13 should be certified." Id. at *4. District courts regularly find outbound call logs, such as 14 those requested by Plaintiff, relevant to class certification requirements and order 15 defendants to produce call logs in TCPA putative class action cases. See, e.g., Gebka v. 16 Allstate Corp., No. 19-cv-06662, 2021 WL 825612, at *7-8 (N.D. Ill. Mar. 4, 2021) 17 (collecting cases); Cahill v. GC Servs. Ltd. P'ship, No. 3:17-cv-01308-GPC-MDD, 2018 18 WL 1791910, at *1, 4 (S.D. Cal. Apr. 16, 2018); Medina v. Enhanced Recovery Co., 19 LLC, No. 15-14342-CIV-MARTINEZ/MAYNARD, 2017 WL 5196093 (S.D. Fl. Nov. 9, 20 2017); Mbazomo v. ETourandTravel, Inc., No. 2:16-cv-02229-SB, 2017 WL 2346981, at 21 *5-6 (E.D. Cal. May 30, 2017); Webb v. Healthcare Revenue Recovery Group LLC, No. 22 C. 13-00737-RS, 2014 WL 325132, at *2-3 (N.D. Cal. Jan. 29, 2014). Further, this Court 23 has certified a class even though a "substantial proportion" of the phone numbers 24 designated as wrong numbers through discovery may not truly fit in the category of a 25 wrong number. Head v. Citibank, N.A., 340 F.R.D. 145, 153 (D. Ariz. 2022); see also 26 Fralish v. Digital Media Solutions, Inc., No. 3:21-CV-00045-JD-MGG, 2021 WL 27 5370104, at *9 (N.D. Ind. Nov. 17, 2021) (finding scope of request relevant although it 28 likely would include information regarding individuals who did not have a TCPA claim). 1 Defendant may not litigate class certification by way of a discovery motion. 2 Additionally, Plaintiff should not be prohibited from discovery because it is not currently 3 clear how she will establish standing and harm as to all class members. Cf. Tyson Foods, 4 Inc. v. Bouaphakeo, 577 U.S. 442, 461 (2016) (finding a post-trial challenge to a jury 5 award, based on the possibility that uninjured class members would obtain a recovery, 6 was premature because no allocation had been finalized for the award). The Court finds 7 that Plaintiff has demonstrated the requested discovery to be relevant. 8 Privacy 9 Defendant argues that Plaintiff is seeking private account holder information from 10 customers that are not part of the class. Defendant characteries Plaintiff's request as 11 seeking "comprehensive data about and analysis of the records of AENB customers," and 12 "account notes of AENB customers over the span of more than five years." The Court 13 finds that this mischaracterizes Plaintiff's request. Although Defendant may need to 14 analyze information from customer accounts to respond to the discovery requests, 15 Plaintiff is not seeking the disclosure of any financial information. She did not request 16 account information, or the reason Defendant placed any of the calls. The intention is for 17 Plaintiff to obtain phone numbers that belong to non-account holders and the number of 18 times Defendant placed a prerecorded voice call to each number. Because no private 19 information of Defendant's customers has been requested, although some numbers of 20 actual account holders may be included in the disclosure, the Court finds there is no 21 meaningful privacy concern. See Mbazomo, 2017 WL 2346981, at *3 ("In determining 22 TCPA actions, California federal courts routinely hold that name and telephone number 23 disclosures do not present a serious privacy invasion."). Additionally, the Court has 24 entered a Protective Order, and Defendant can produce discovery with a confidential 25 designation if there are legitimate privacy concerns. 26 Undue Burden and Proportionality 27 Defendant argues that the discovery requests would impose undue burden and cost 28 out of proportion to the needs of the case. Defendant, by way of a 2024 declaration from 1 Charles Ben Sailer, avers that the requested data was used in two different applications, is 2 stored in three databases, and requires a search of 100 terabytes of data. (Doc. 70-1, Ex. 3 A ¶¶ 6-7.) Sailer states that the search would take 16 weeks, require 5 employees, and 4 cost Defendant $100,000. (Id. ¶¶ 8, 10.) Based on this information, Defendant argues the 5 discovery would place an undue burden and cost on Defendant. 6 Defendant cites two TCPA cases to support its assertion that the requests amount 7 to an undue burden. In both, the Court ultimately allowed the type of discovery requested 8 by Plaintiff. In Terteryan v. Nissan Motor Acceptance Corp., No. CV 16-2029-GW 9 (KSx), 2017 WL 10991656, at *1-2 (C.D. Cal. Oct. 19, 2017), the plaintiff asked the 10 defendant to create a compilation of 17 categories of information regarding calls to non- 11 customers. The court sustained the defendant's objection to answer this request because a 12 party is not obligated to create documents for discovery responses and the defendant 13 estimated it would cost $188,700,000 to respond. Id. at *6. However, the Court found that 14 the plaintiffs had "demonstrated a legitimate need for information that is uniquely in the 15 possession, custody and control" of defendant; therefore, the Court ordered production of 16 call logs and three other related categories for a nine-month period. Id. at *6-7. In Gossett 17 v. CMRE Financial Servs., 142 F. Supp.3d 1083, 1089 (S.D. Cal. Oct. 30, 2015), the 18 court denied requests for numbers obtained by skip tracing and number trapping because 19 the defendant averred these numbers were only dialed by humans and not automated 20 dialers. However, the court directed the production of outbound call lists and related 21 documents, rejecting defendant's arguments that the requests were irrelevant, overly 22 broad and unduly burdensome, invaded privacy rights, and premature. Id. at 1086-87 23 (citing Thrasher v. CMRE, No. 14-CV-1540 BEN (NLS), 2015 WL 1138469 (S.D. Cal. 24 Mar. 13, 2015)). 25 It is not evident to the Court that obtaining the requested discovery will require 26 Defendant to follow the elaborate process set forth in 2024 by Sailer.2 Sailer's declaration

27 2 Although not clearly articulated, it may be that the search process described by Sailer is so time intensive because its purpose would be trying to locate records directly 28 mirroring the circumstances under which American Express called Plaintiff. That is, only phone numbers that were called because a customer mistakenly provided the wrong 1 does not seem to reflect the process described by Duckworth. Duckworth testified that 2 Defendant's dialing systems could be searched for calls resulting in a wrong number 3 notation in the "call result field." (Doc. 69-1 at 12.) Defendant would then determine 4 which of those numbers received one or more prerecorded calls during the class period. 5 And, finally, Defendant could screen any numbers designated as landlines. American 6 Express already has conducted a more complicated version of this search for mediation 7 purposes+++++ and need only repeat a modified version of those steps again. Defendant 8 has failed to demonstrate that the requested discovery is an undue burden or that it is not 9 proportional to the case to require Defendant to produce the only information available 10 for Plaintiff to support its motion for class certification. 11 Conclusion 12 The Court finds that Plaintiff has demonstrated the requested information is 13 relevant. And Defendant has not demonstrated that producing it has significant privacy 14 implications or is unduly burdensome. The Court will grant the motion to compel and 15 direct Defendant to respond to Plaintiff's discovery requests and produce the information 16 the Court understood was to be produced in response to the Court's September 10, 2024, 17 Order. 18 Duckworth's deposition revealed that the 3,133 numbers disclosed by Defendant 19 had been gathered through a process that almost certainly reduced the data set requested 20 by Plaintiff and ordered by the Court in September 2024. (Doc. 69-1.) First, Duckworth 21 testified that the initial step in the process was for Defendant to identify phone numbers 22 for which a complaint, identified by a keyword search alluding to harassment, had been 23 lodged with Defendant. (Id. at 8-9, 10.) This limitation was not warranted by the 24 discovery request. And Defendant never disclosed to Plaintiff or the Court that this initial 25 step was used to come up with the 3,133 numbers used for mediation. 26 27

28 phone number for an account that later became delinquent. (Doc. 70-1, Ex. A ¶¶ 4-5.) That search would not be reflective of the discovery requested. 1 Second, Defendant ultimately disclosed only phone numbers that received a 2 prerecorded call after a wrong party notation was documented for that number. (Id. at 12- 3 13.) That limitation is not warranted under the governing law. The TCPA is violated 4 when a prerecorded call is placed to a cell phone number without express consent, it does 5 not require that the caller know it is reaching a number it does not have consent to call. 6 See N. L. by Lemos v. Credit One Bank, N.A., 960 F.3d 1164, 1167 (9th Cir. 2020) 7 ("Credit One's intent to call a customer who had consented to its calls does not exempt 8 Credit One from liability under the TCPA when it calls someone else who did not 9 consent."); 47 U.S.C. § 227(b) (listing an exception to the TCPA's prohibition on 10 prerecorded voice calls to cell phones if the caller has the "prior express consent of the 11 called party"). In a May 2, 2024, letter to Plaintiff's counsel, that was submitted 12 informally to the Court, Defendant noted that the 3,133 numbers reflected only 13 prerecorded calls made after American Express documented a number as wrong. 14 However, Defendant did not mention this time parameter in its briefing or at the hearing 15 on the initial motion to compel. (Docs. 37, 44.) Defendant's proposal for data sampling 16 suffers from the same unwarranted limitation—that a number would fall outside the 17 intended data set if it did not receive a prerecorded voice call within 30 days after it was 18 coded as a wrong number. (Doc. 70-2 ¶ 3.) 19 Defendant knew that its process used to gather the 3,133 numbers did not match 20 Plaintiff's summary of what she understood to be the process. This is demonstrated by a 21 comparison of the May 2, 2024, letter from Defendant's counsel and Plaintiff's summary 22 of the process in her original motion to compel (Doc. 32 at 2). Also, in Sailer's 2024 23 declaration, he reiterated Plaintiff's modified request (intended to mirror Defendant's 24 search for purposes of mediation), as seeking records reflecting each attempt to call a 25 number with at least one wrong party/never call notation. (Doc. 70-1, Ex. A ¶ 3 26 (emphasis added).) As opposed to numbers for which a complaint had been lodged and a 27 call made after Defendant determined it was a wrong number. 28 1 Critically, in complying with the Court's September 10, 2024, Order, Defendant 2 produced the 3,133 numbers as directed. (Doc. 43.) However, that production did not 3 match the additional language of the Court's order, which required the production of: 4 records reflecting each attempt by Amex, or a vendor on Amex's behalf, to place a pre-recorded or artificial voice call to a phone number not identified 5 as a landline in Amex's records and for which Amex's records reflect at least one instance of a wrong party/never call notation on an account 6 associated with the phone number for all Amex accounts for the period of March 2019 through June 2024. 7 (Id.) Thus, Defendant's production did not mirror what the Court believed it represented 8 (Docs. 43, 44) or what Plaintiff requested (Doc. 32 at 2; Doc. 43), and it excluded 9 possible members of the intended class that could be covered under the TCPA. 10 Now that the Court has resolved the parties' discovery dispute, below it sets a 11 schedule for the remainder of the pretrial period of the case. As the Court previously 12 indicated to the parties, the remaining deadlines are somewhat tight, and they are firm. 13 Plaintiff has indicated that she must complete Defendant's 30(b)(6) deposition before 14 filing her motion for class certification. Defendant is directed to facilitate the corporate 15 deposition to take place in time for Plaintiff to meet her deadline for seeking class 16 certification. 17 Accordingly, 18 IT IS ORDERED that Plaintiff's Motion to Compel (Doc. 65) is GRANTED. On 19 or before August 15, 2025, Defendant American Express shall provide the following 20 discovery to Plaintiff: 21 records reflecting each attempt by Defendant or a vendor on Defendant's 22 behalf to place a pre-recorded or artificial voice call to a phone number (not identified as a landline in Defendant's records) for which Defendant's 23 records reflect at least one instance of a wrong party/never call notation on an account associated with the phone number, for all Amex accounts during 24 the class period. 25 Based on the briefing, the Court believes this summary encompasses the information 26 Plaintiff seeks in Interrogatory Number 7 and Request for Production Number 7. 27 IT IS FURTHER ORDERED that the following deadlines will govern the 28 remainder of the pretrial litigation period: 1 1. Plaintiff shall file her motion for class certification and disclose class 2 experts on or before October 17, 2025. 3 2. Defendant shall respond to the motion for class certification and disclose 4 rebuttal class experts on or before November 21, 2025. 5 3. Plaintiff may file a reply regarding the motion for class certification on or 6 before December 5, 2025. 7 4. The parties’ deadline for initial expert disclosures, separate and apart from 8 experts related to class certification, is November 14, 2025. 9 5. The deadline for general rebuttal expert disclosures, if any, is December 5, 10 2025. 1] 6. All discovery shall be completed on or before December 19, 2025. 12 7. Dispositive motions are due forty-five (45) days after the Court issues a 13 final ruling on the motion for class certification. 14 Dated this 11th day of July, 2025. 15 16 . . I Liaauell 0. ip onorable Lynnette C. Kimmins 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28

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