Blocking Discovery with Blocked Calls

A Plaintiff propounded a Rule 45 request on a phone company to disclose the name and phone number associated with a blocked call. The Court denied the motion to compel the information.  Lindsey v. PNC Mortg., 2012 U.S. Dist. LEXIS 74481, 3 (D. Haw. May 30, 2012).

The lawsuit involved the Plaintiff receiving a profane voicemail from a blocked phone number related to her mortgage. The Plaintiff claimed the voicemail caused her emotional distress, humiliation, and mental suffering. The Plaintiff sued on various Fair Debt Collection Practices Act theories, but did not name the person who left her the voicemail.  Lindsey, at *2.  

After the Court granted the original Defendants’ motion to dismiss, the Plaintiff sought to name the voicemail caller as a Defendant. Lindsey, at *2-3.  

The Plaintiff brought a third-party subpoena on T-Mobile to disclose the phone number of the blocked caller to identify the Doe Defendant. Lindsey, at *4.

Unfortunately, 47 C.F.R. § 64.1601 (hereinafter Regulation 1601) left the Plaintiff only hearing a dial tone. Lindsey, at *5.

Regulation 1601 requires common carriers to recognize:

1) A caller’s request that the [calling party number] not be passed on an interstate call;

2) “No common carrier . . . that delivers [a calling number] may override the privacy indicator associated with an interstate call.”

3) Carriers “must arrange their . . . services . . . in such a manner that when a caller requests that the [calling number] not be passed, a carrier may not reveal that caller’s number or name, nor may the carrier use the number or name to allow the called party to contact the calling party.”

Lindsey, at *5.

Based on Regulation 1601, the Court denied the Plaintiff’s motion to compel the phone number of the blocked caller. Lindsey, at *10.

Bow Tie Thoughts

47 C.F.R. § 64.1601 can provide a significant roadblock to identifying a blocked caller in a lawsuit by a third-party request. Given the third-party request privacy limitations, parties seeking such information might have to propound special interrogatories on named defendants (such as a debt collector) to identify such doe defendants. This can become problematic if 1) there are no named defendants or 2) the named defendants cannot identify who made calls on their behalf.

How Undue Burden Can Reach Out and Touch a Requesting Party

In General Steel Domestic Sales, LLC v. Chumley, the Requesting Party sought production of 463,000 recordings of sales phone calls.  And like one of the old long distance commercials of the 1980s, the Requesting Party was left crying at the end. General Steel Domestic Sales, LLC v. Chumley, 2011 U.S. Dist. LEXIS 63803, 1-7 (D. Colo. June 15, 2011).

The Defendants requested all sales call recordings from the beginning of 2009 to support their counterclaim for commercial disparagement.  General Steel Domestic Sales, LLC, at *3-4.

The Defendants only identified two persons who received the alleged commercially disparaging statements and did not state any damages from the alleged conduct. Id.

The call data amounted to 1,551,652 files totaling 300 gigabytes. General Steel Domestic Sales, LLC, at *4. The Plaintiff’s director of information technology estimated the data was more than 463,000 recorded calls.  Id.

Making life a litigation support challenge, all of the calls were intermixed, including sales, attorney-client and other phone voice messages. Id.

The Plaintiff did not have any software to enable it to search the 463,000 calls to find the sales calls that could be responsive to the discovery request, because the call system was a custom software purchase.  The only way to search the recordings was the “hard way”: listen to each one. Id.

Based on the evidence before it, the Court determined the following:

Listening to the 463,000 calls would take approximately 7,716 hours, assuming each message was one minute long.

One person listening to each message for 40 hours a week would take 193 weeks to review (or 4 years).

Assuming the person doing call review would be paid the Colorado minimum wage of $7.36 an hour, the review would cost $56,000.00.

General Steel Domestic Sales, LLC, at *6-7.

The Court found the Plaintiffs demonstrated undue burden and denied the Defendant’s request to produce the call recordings, based on the technology limitations in searching the calls, cost to review and the fact attorney-client communications were inter-mixed with the sales calls. General Steel Domestic Sales, LLC, at *7.

Bow Tie Thoughts: Review Voicemail in Discovery?  You Will. 

e-Discovery won’t drift away.

There is more to electronic discovery than email.  Voicemail, social media and text messages all might be relevant to a lawsuit.  However, some of this electronically stored information might not be reasonably accessible because of undue burden or cost.  As seen before, Courts want specifics in understanding why ESI is too costly to produce. In this case, the Plaintiff demonstrated the burden of production.

Technology to review electronically stored information will continue to improve to search the different forms of electronically stored information.  There are several companies that conduct voicemail review, such as Nexidia. While searching this voicemail might have been unduly burdensome in the present case today, it might not be in the future.