In re California Gasoline Spot Market Antitrust Litigation

Opinion

1 2 3 6 7 IN RE: GASOLINE SPOT MARKET Case No. 20-cv-03131-JSC

ORDER RE: JOINT DISCOVERY 9 LETTER BRIEF FOR PRODUCTION OF NON-PARTY PHONE RECORDS 10 Re: Dkt. No. 354 11

12 Now pending before the Court is a discovery dispute joint letter regarding Plaintiffs’ 13 subpoena of cell phone records. (Dkt. No. 354-4.) After reviewing the submission, the Court 14 concludes that oral argument is not required. See N.D. Cal. Civ. L.R. 7-1(b). 15 It is well settled that individuals generally do not have legitimate privacy interests in the 16 telephone numbers called to and from their cell phones. See, e.g., In re Broiler Chicken Antitrust 17 Litig., No. 1:16-CV-08637, 2017 WL 6569720, at *2 (N.D. Ill. Dec. 22, 2017). On the other hand, 18 given our ubiquitous use of cell phones, disclosing every call and text an individual makes is 19 likely to reveal some private, irrelevant information. Cf. Carpenter v. United States, 138 S. Ct. 20 2206, 2217 (2018) (observing that time-stamped cell phone location data “provides an intimate 21 window into a person's life, revealing not only his particular movements, but through them his 22 ‘familial, political, professional, religious, and sexual associations’”) (internal citations omitted). 23 Thus, as the Court noted at the last case management conference, most Americans would likely be 24 surprised to learn that their personal cell phone records—including text messages—could be 25 turned over to strangers merely because a lawyer issues a subpoena to a cell phone company. The 26 Court thus believes it has a responsibility to ensure that Plaintiffs obtain potentially relevant 27 1 are not always supported by the law. 2 In this alleged price fixing case that balance is struck by having Defendants redact the 3 telephone numbers and texts of any personal calls. The subjects of the subpoenaed records are in 4 the best position to know if a telephone number belongs to a family member, friend, or service 5 provider and is thus unrelated to business. To be clear, any calls related to Vitol and SK’s 6 business, whether Defendants believe relevant or not, are not personal, and thus, the numbers and 7 text messages may not be redacted absent some showing of privilege. This is especially so as 8 Plaintiffs allege, and Defendants do not dispute, that the cell phones for which records were 9 subpoenaed were furnished by Defendants and that Defendants subsidized the ongoing service. 10 (Dkt. No. 354-4 at 2.) 11 While personal numbers and the contents of personal texts may be redacted, there is no 12 justification for redacting the dates and times of such calls. To do so would allow Defendants’ 13 counsel, no doubt unintentionally, to hide from Plaintiffs communications that occurred at 14 particularly relevant times. The iterative process the Court envisioned only works if dates and 15 times are disclosed. 16 Defendants insist that Plaintiffs should have to identify the persons they believe are 17 relevant and Defendants will then disclose those phone numbers and related texts but everything 18 else will be redacted. But the cases upon which they rely are distinguishable. Dapkus v. ArthurJ. 19 Gallagher Serv. Co., 2021 WL 83479, at *8 (D. Conn. Jan. 11, 2021), involved the therapist- 20 patient privilege. Defendants do not identify any similar privilege at issue here for the personal 21 phone numbers, let alone calls and texts that are business related. And in Jones v. St. Francis 22 Hosp., Inc., 2014 WL 7140405, at *1 (M.D. Ga. Dec. 12, 2014), the employment discrimination 23 plaintiff sought the cell phone records of the decisionmaker on the oft-chance that she had made 24 calls or texts relevant to the plaintiff’s claims. Here, in contrast, we have a price-fixing antitrust 25 case and evidence that the cell phones were used to conduct business relevant to Plaintiffs’ claims. 26 Weiner v. McKeefery, 2013 WL 12368828, at *4 (E.D.N.Y. Sep. 5, 2013), was a malicious 27 prosecution action by a husband against his former wife and he had subpoenaed his wife’s home 1 Defendants’ analogy to email searches is unpersuasive. Search terms are used in part to 2 || reduce burden; if Defendants had to produce every email regardless of relevance then their 3 attorneys would have to review every email. But in the phone-record context, Defendants have to 4 || review all the phone records regardless. There is simply no precedent for what Defendants seek 5 here: allowing the redaction on relevance grounds of business information. 7 Defendants reiterated that they “proposed redaction of irrelevant personal material as a 8 || practical and efficient compromise that reasonably permits Plaintiffs to obtain any relevant, 9 discoverable information while respecting the privacy interests of the individuals whose cell 10 || records Plaintiffs subpoenaed.” (Dkt. No. 354-4at 7.) The Court agrees; Defendants can redact 11 personal material. 12 Defendants shall identify, in the first instance, presumptively personal phone numbers 13 (e.g., family members, friends, personal service providers) so that Defendants can redact 14 || information about calls involving those numbers (but not the call dates/times) and produce 3 15 everything else pursuant to the Protective Order (Dkt. No. 252). If Plaintiffs have reason to believe 16 || that a date/time for a redacted call or message coincides with a communication they believe to be 3 17 || work-related (e.g. a work-related email immediately before such a call or message saying “call 18 || me”), the parties shall meet and confer and if necessary submit the records in question for review 19 || by the Court. 21 Dated: October 18, 2021 22 23 Degli SobtO □□ JACQUELINE SCOTT CORLE 24 United States Magistrate Judge 25 26 27 28