PRETRIAL ORDER NO. 2 RE: DAUBERT MOTIONS, SELECT MOTIONS IN LIMINE, AND PROPOSED JURY INSTRUCTIONS & QUESTIONNAIRE Re: Dkt. Nos. 252, 253, 254, 262, 285, 286, 293, 295

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff Ignacio Perez1 bring this class action against defendant Rash Curtis & Associates ("Rash Curtis") alleging that defendant called plaintiff and class members without consent.2

On September 6, 2017, the Court certified four classes including Perez as a class representative, both for injunctive relief pursuant to Rule 23(b)(2) and damages pursuant to Rule 23(b)(3).3 (Dkt. No. 81, ("Cert. Order").) On February 2, 2018, the Court ruled on the parties' cross-motions for summary judgment. (Dkt. No. 167 ("SJ Order").) In that order, the Court granted plaintiffs' motion for partial summary judgment regarding the dialer systems Rash Curtis used to make the phone calls at issue and held that those dialers constitute Automatic Telephone Dialing Systems ("ATDSs") within the meaning of the TCPA. (Id. at 2.) The Court also granted plaintiffs' motion for partial summary judgment on the issue of prior express consent regarding Perez and held that Rash Curtis never possessed prior express consent to call Perez himself. (Id. at 3, 11, 12.) On June 18, 2018, the Court denied Rash Curtis's motion to reconsider its summary judgment order. (Dkt. No. 199 ("Reconsideration Order").) On January 23, 2019, the Court denied plaintiffs' motion for terminating sanctions. (Dkt. No. 250, ("Sanctions Order").)

Now before the Court are defendant's Daubert motions to strike and exclude the opinions of plaintiff's expert witnesses Randall A. Snyder (Dkt. No. 254 ("Snyder Motion")), Anya Verkovskaya (Dkt. No. 252 ("Verkovskaya Motion")), and Colin B. Weir (Dkt. No. 253 ("Weir Motion")).4 In addition, in anticipation of trial, the parties have filed motions in limine (Dkt. No. 261, 262) and proposed jury instructions (Dkt. No. 285 ("Jury Instructions")).

Having carefully reviewed the pleadings, the papers submitted, and oral arguments on March 19, 2019 and March 29, 2019, and for the reasons set forth more fully below, the Court DENIES defendant's motions to strike or exclude and addresses the relevant motions in limine and proposed jury instructions and objections thereto as described below.

MOTIONS TO STRIKE AND EXCLUDE EXPERTS

I. BACKGROUND

The background giving rise to this action is well-known and the Court will not repeat it here.5 (See, e.g., SJ Order at 3-5.) Further, it has been a particularly litigious case.

Relevant to the instant Daubert motions, plaintiff offers in support of its case the opinions of three experts: Randall A. Snyder (Dkt. Nos. 254-2, 254-3 ("Snyder Rep.")), Anya Verkovskaya (Dkt. No. 252-2 ("Verkovskaya Rep.")), and Colin B. Weir (Dkt. No. 253-2 ("Weir Rep.")). Defendant now moves to strike from the record the testimony of and exclude from testifying at trial all three experts. (See, e.g., Snyder Motion at 1.)

All three motions focus primarily on plaintiff's experts' methodology for identifying which telephone numbers in Rash Curtis' account database Rash Curtis obtained via skip-tracing and any analysis or opinion based thereupon. (See, e.g. id. at 2-8.) Defendant's account database supports storage of up to ten "telephone number" fields for each account. (Dkt. No. 212 at 3.) Telephone fields numbers 1 through 4 are reserved for phone numbers that defendant purportedly receives from its creditor-clients, whereas phone numbers obtained via skip tracing are loaded into phone fields 5 through 10. (See Dkt. No. 212-1, Ex. 2 at 14:11-15:7, 15:14-16) ("[P]hone field 1 through 4 are what comes in from the client, whatever phone number comes in from the client.").)

Plaintiff's experts rely on the data in defendant's account database, and inferences extracted therefrom, to determine which and how many phone numbers allegedly called by defendant were obtained using skip-tracing. (Snyder Rep. ¶¶ 83-101.) This information also forms the basis of plaintiff's process for identifying class members, tabulating class size, and estimating class damages.6 (See Verkovskaya Rep.; Weir Rep.) Defendant's Daubert motions contend that in forming their opinions and conducting their analysis, plaintiff's experts rely on a false assumption that Rash Curtis obtained each, and every phone number placed in fields 5 through 10 via skip-tracing, despite the fact that defendant's representatives have suggested that "not every number in [fields 5 through 10] was obtained through skip-tracing." (Snyder Motion at 2.) These opinions were developed over the course of the litigation and in light of the information disclosed by defendant.

II. LEGAL STANDARD REGARDING EXPERT OPINIONS

Federal Rule of Evidence 702 permits opinion testimony by an expert as long as the witness is qualified, and their opinion is relevant and reliable. An expert witness may be qualified by "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. The proponent of expert testimony has the burden of proving admissibility in accordance with Rule 702. Fed. R. Evid. 702, Advisory Committee Notes (2000 amendments). An expert should be permitted to testify if the proponent demonstrates that: (i) the expert is qualified; (ii) the evidence is relevant to the suit; and (iii) the evidence is reliable. See Thompson v. Whirlpool Corp., 2008 WL 2063549, at *3 (W.D. Wash. 2008) (citing Daubert, 509 U.S. at 589-90). The trial judge has discretion to determine reasonable measures of reliability. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153 (1999).

III. ANALYSIS

A. Opinion of Randall A. Snyder

Snyder's opinion addresses:

(1) the functions of automatic telephone dialing (Snyder Rep. ¶¶ 17-31);

(2) the reliability of dialing system software manuals and user guides (id. ¶¶ 32-37);

(3) the nature and function of the specific dialing systems allegedly used by defendants (id. ¶¶ 38-58);

(4) defendant's use of a prerecorded voice when calling landline and cellular numbers (id. ¶¶ 59-65);

(5) the nature and function of call detail records ("CDRs"), including the ascertainability of the origin of the phone numbers contained therein, namely whether the numbers were obtained via skip-tracing (id. ¶¶ 66-101);

(6) whether plaintiff Perez meets the general requirements of a representative class member, including that defendant obtained his phone number via skip-tracing (id. ¶¶ 102-106); and

(7) defendant's knowledge that its conduct violated the TCPA (id. ¶ 107).7 Defendant devotes the bulk of its motion to its argument the Court should strike and exclude Snyder's testimony regarding (5) the nature and function of CDRs and (6) Perez's satisfaction of the class representative requirements. Defendant contends that Snyder's "opinions regarding skip-tracing lack foundation and are subject to a speculative `analytical gap' that cannot be crossed with the facts which were given and upon which he relied." (Snyder Motion at 2.) Specifically, defendant argues that Snyder's opinion relies on a false assumption that Rash Curtis used skip-tracing to obtain each and every one of the numbers found in fields 5 through 10 of defendant's account database. (Id.) Defendant contends that although fields 5 through 10 "contain skip-traced numbers, not every number in those fields was obtained through skip-tracing." (Id.) Therefore, according to Rash Curtis, because Snyder did not request or obtain the documents necessary to determine accurately which phone numbers were procured through skip-tracking, his opinions regarding the ascertainability of the proposed class members and the suitability of plaintiff Perez as a class representative are speculative, unsupported, and lacking adequate foundation. (Id. at 6.)

Plaintiff disputes Rash Curtis' assertion that Snyder so improperly relied. (Dkt. No. 257 ("Snyder Opp.") at 18.) However, the Court need not resolve the accuracy of defendant's contention because any arguments that Snyder based his opinions on an improper assumption go to the weight, not the admissibility of his testimony. See California v. Kinder Morgan Energy Partners, LP, 613 Fed.Appx. 561, 564 (9th Cir. 2015) (finding that the validity of an assumption underlying an expert's opinion goes to the weight and not admissibility of that opinion); see also City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014) (stating that under Daubert, "[t]he judge is supposed to screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable") (internal quotations omitted).

Defendant also argues that the Court should also strike and exclude Snyder's opinion regarding the dialing system itself, namely topics (1), (2), (3), and (4). (Snyder Motion at 6-8, 21-23.) Specifically, Rash Curtis avers that Snyder's testimony regarding automatic telephone dialing and dialing systems, including the Dialers used by defendant will not aide the trier of fact because the Court has already determined that Rash Curtis's Dialers constitute ATDSs within the meaning of the TCPA. (Id. at 22.) Defendant also argues that these opinions should be excluded on the grounds that Snyder based them on nothing more than his review of the Dialers' manuals and failed to inspect the actual equipment. (Id. at 7.)

As a preliminary matter, the Court notes that much of Snyder's testimony regarding automatic telephone dialing and dialers represents general background information not specific to this case or the Dialers at issue. (See Snyder Rep. ¶¶ 17-37.) Moreover, Snyder's testimony regarding the specific Dialers at issue here, including their capacity to use a prerecorded voice, does not, as defendant contends, assert an impermissible legal conclusion that those dialers constituted ATDSs within the meaning of the TCPA. (See Snyder Rep. ¶¶ 38-65.) He discusses only the Dialers' function and capacities. (See id.) As the function and capacities of these devices bear on the central factual issues before the trier of fact, Snyder's opinions on these topics are relevant. The Motion is Denied.

B. Opinion of Colin B. Weir

Weir's report identifies 534,698 autodialed calls made to telephone numbers belonging to class members. (See Weir Rep. ¶ 15.) In so tabulating, Weir used Rash Curtis' account database. Specifically, Weir aggregated a list of phone numbers appearing in phone fields 5 through 10 and subtracted from that list those numbers also appearing in fields 1 through 4. (Id. ¶ 9.) This calculation resulted in a list of 1,484,646 unique phone numbers. (Id.) Following additional calculations, Weir determined that Rash Curtis placed 534,698 calls to class members using one of the Dialers. (Id. ¶ 15.)

In attacking's Weir's method for calculating the number of calls made to class members' numbers, defendant again argues that Weir improperly assumed that Rash Curtis obtained every number found in phone fields 5 through 10 via skip-tracing. (Weir Motion at 4.) Instead, Rash Curtis avers, "the phone numbers stored in fields five through ten come from a variety of sources." (Id. at 5.) Defendant further suggests that Weir's methodology "is nothing more than simple multiplication and will not assist the trier of fact[.]" (Id.)

As discussed above, defendant's argument that Weir's methodology relied on a false assumption that Rash Curtis obtained all of the numbers maintained in phone fields 5 through 10 via skip-tracing goes to the weight, not the admissibility, of Weir's opinion. See also Messick v. Novartis Pharmaceuticals Corp., 747 F.3d 1193, 1199 (9th Cir. 2014) (noting that issues regarding the correctness of an expert's opinion, as opposed to its relevancy and reliability, "are a matter of weight, not admissibility"). Additionally, the Court disagrees with defendant's characterization of the complexity of the calculations underlying Weir's analysis. While a juror may be able to do simple math calculations, it would be unreasonable to expect jurors to analyze over a million telephone calls. Thus, in this context, the Court finds the opinions regarding the comparison, tabulation, and multiplication of the telephone calls at issue is within the scope of Rule 702. The Motion is Denied.

C. Opinion of Anya Verkovskaya

Verkovskaya's class member data tabulation report opines on the number of wireless telephone numbers belonging to individuals other than the debtors associated with the number in defendant's database and called by defendant within the class period.8 (See Verkovskaya Rep.) She so calculates using the defendant's debtor database information. (See id.) Defendant again argues that Verkovskaya's tabulation "lacks foundation and is subject to a speculative `analytical gap' that cannot be crossed with the facts which were given and upon which she relied." (Verkovskaya Motion at 1.) As with Snyder and Weir's opinions, Rash Curtis avers that Verkovskaya's analysis relies on a false assumption that "every number found in phone fields 5 through 10 . . . was skip[-]traced[.]" (Id.) Defendant also contends that Verkovskaya's methodology uses an algorithm that is "not testable" and "is also based on other `blackbox' information and unobservable, proprietary processes of LexisNexis and others." (Verkovskaya Motion at 6.)

As discussed above, defendant's argument that Verkovskaya's methodology relied on a false assumption that Rash Curtis obtained all of the numbers maintained in phone fields 5 through 10 via skip-tracing goes to the weight, not the admissibility, of her opinion. The same is true of defendant's argument that the third-party sources Verkovskaya used provided inaccurate data. See Krakauer v. Dish Network L.L.C., No. 1:14-cv-333, 2015 WL 5227693, at *8-9 (M.D.N.C. Sept. 8, 2015) (declining to exclude opinion of Verkovskaya based on argument that she did not test the reliability of data from Lexis or Nexxa). The Motion is Denied.

PLAINTIFF'S MOTIONS IN LIMINE

As a preliminary matter, the Court confirms in light of defendant's withdrawals, plaintiff withdrew Motions in limine Nos. 4 and 7. (See Dkt. No. 303 at 15:2-3, 23:6-16.) In addition, as reflected in the Amended Exhibit List, defendant has withdrawn exhibits 501, 502, 514, and 515, accordingly that portion of Motion in Limine No. 5 is moot. (See Dkt. No. 304.)

Plaintiff's Motion in Limine No. 3 to preclude defendant from introducing needlessly cumulative trial testimony and wasting the jury's time is DENIED WITHOUT PREJUDICE to reasserting at trial. The fact that multiple witnesses may testify as to similar material is not in and of itself cumulative. Further the Court has imposed time limits to ensure that the parties are being efficient with the presentation of evidence. See U.S. v. Elksnis, 528 F.2d 236, 239 (9th Cir. 1975) ("The district court has considerable discretion even with admittedly relevant evidence in rejecting that which is cumulative.").

Plaintiff's Motion in Limine No. 5 as it relates to exhibits 580 and 581 is DENIED WITHOUT PREJUDICE to reasserting at trial given the defendant's proffer that such documents would only be used for impeachment or rebuttal purposes. Obviously, defendant would have to have the proper foundation even in that context.

Plaintiff's Motion in Limine No. 6 to preclude defendant from introducing evidence regarding a purported "good faith defense" to make autodialed calls to plaintiff and class members is GRANTED IN PART and DENIED IN PART.

With respect to plaintiff Perez, defendant may not assert that it acted in good faith in calling Perez and therefore is not liable under the TCPA to him for the calls. However, Rash Curtis may argue that because it had a good faith belief that it possessed prior express consent to call the phone number belonging to plaintiff Perez, defendant is not liable for treble damages under the statute. The Court has previously ruled that Rash Curtis did not have prior express consent to call plaintiff Perez. (SJ Order at 11-12; see also Reconsideration Order.) Therefore, defendant may not assert a good faith defense as to whether Rash Curtis violated the TCPA by calling plaintiff Perez. However, whether Rash Curtis had a good faith belief that it possessed prior express consent to call the phone number belonging to plaintiff Perez bears on plaintiff's claim for treble damages, which requires that a defendant engaged in knowing and/or willful violations of the TCPA. See Compl. ¶ 60; see also 47 U.S.C. § 227(b)(3)(C).

With respect to the class, defendant may present evidence that it had prior express consent to call class members. As, the TCPA specifically exempts a caller from liability if the caller has received "prior express consent" from the recipient to be called. 47 U.S.C. § 227(b)(1)(A). The Ninth Circuit has not addressed whether other general good faith defenses may be raised in a TCPA claim. See Springer v. Fair Isaac Corp., No. 14-cv-02238-TLN-AC, 2015 WL 7188234, *3 (E.D. Cal. Nov. 16, 2015). Accordingly, courts within the Ninth Circuit have allowed for TCPA defendants to raise prior express consent defenses, which is a form of good faith defense. Scatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009); Reardon v. Uber Technologies, Inc., No. 14-CV-05678-JST, 2015 WL 4451209, at *6 (N.D. Cal. July 19, 2015); Chyba v. First Financial Asset Management, Inc., No. 12-cv-1721-RTB (WVG), 2014 WL 1744136, at *10 (S.D. Cal. Apr. 30, 2014). Moreover, for the same reasons regarding treble damages stated above, even if defendant does not have evidence of prior express consent to call class members, Rash Curtis may present evidence that it had a good faith belief that it possessed prior express consent to a phone number belonging to a class member and is therefore not liable for treble damages under the TCPA.

Plaintiff's Motion in Limine No. 8 to preclude defendant and its counsel from making any statements or arguments to the jury regarding defendant's ability to pay any judgment in this case or the impact a significant verdict could have on defendant's business is GRANTED. The parties now agree that the Court will determine damages after findings by the jury. (See Dkt. No. 309 60:25-61:1-7.) Accordingly, any such statements are irrelevant and lack probative value.

The Court will address plaintiff's Motions in limine Nos. 1, 2, and 9 and defendant's corresponding Motion in limine No. 1 in a separate order.

JURY INSTRUCTIONS

As a preliminary matter, the Court notes that parties have agreed on joint proposed jury instructions numbers 1-28, 31, and 32. (See Jury Instructions at 1-2.) Moreover, prior to distribution of the final jury instructions to the jury, the Court will provide parties a draft of the instructions as well as an opportunity for comment and discussion. In advance of that distribution, the Court addresses parties' disputed proposed jury instructions.

Regarding Proposed Instruction No. 29, the Court has already determined that:

(3) plaintiff Perez is a proper class representative (see Cert. Order at 11-12). Accordingly, the Court will not instruct the jury that each of these assertions constitute an affirmative defense that defendant may prove at trial. However, as noted above, Rash Curtis may assert, as a defense to liability for treble damages only, that defendant acted in a good faith belief that it had prior express consent to call Perez's phone and, therefore, did not knowingly or willfully violate the TCPA with respect to Perez. The Court will instruct the jury accordingly.

Regarding Proposed Instruction No. 30, the Court will adopt an instruction similar to that proposed by plaintiff. Prior express consent, or lack thereof, is not an element of a TCPA claim but an affirmative defense against such a claim. 47 U.S.C. § 227(b)(1)(A).

The Court DENIES plaintiff's objection to defendant's Proposed Instruction No 33 and will allow the jury to ask questions of the witnesses, and the parties, during trial and will instruct the jury accordingly.

The Court GRANTS plaintiff's objection to defendant's Proposed Instruction No. 34 and will not instruct the jury on the definition of an ATDS. The Court has already determined, as a matter of law, that the Dialers at issue in this case are ATDSs as defined by the TCPA. (See SJ Order at 6-8; see also Reconsideration Order.)

The Court GRANTS IN PART and DENIES IN PART plaintiff's objection to defendant's Proposed Instruction No. 35. As noted above with respect to plaintiff's Motion in limine No. 6, because the Court has already decided that defendant did not possess prior express consent to call plaintiff Perez, defendant may not assert that it acted in good faith in calling plaintiff and therefore is not liable under the TCPA for the calls to Perez. (See SJ Order at 11-12; see also Reconsideration Order.) By contrast, Rash Curtis may argue that because it had a good faith belief that it possessed prior express consent to call the phone number belonging to plaintiff Perez, defendant is not liable for treble damages under the statute. Thus, while such evidence is not relevant as to whether Rash Curtis violated the TCPA by calling plaintiff Perez, it is probative on plaintiff's claim for treble damages, which requires that a defendant engaged in knowing and/or willful violations of the TCPA. See Compl. ¶ 60; see also 47 U.S.C. § 227(b)(3)(C). By extension, the evidence that defendant had prior express consent to call class members is relevant. See Scatterfield, 569 F.3d at 955; Reardon, 2015 WL 4451209, at *6; Chyba, 2014 WL 1744136, at *10. The Court will instruct the jury accordingly.

The Court GRANTS plaintiff's objection to defendant's Proposed Instruction No. 36 and will not instruct the jury regarding the purported "safe harbor" defense. As the Court has previously noted, the D.C. Circuit's decision in ACA International v. Federal Communications Commission is not binding upon this Court. See Reconsideration Order at 6 (citing 885 F.3d 687 (D.C. Cir. 2018)); see also Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1049-50 (9th Cir. 2018) (finding that "[b]ecause the D.C. Circuit exercised its authority to set aside the FCC's interpretations of the definition of an ATDS in the 2014 order, 28 U.S.C. § 2342, and any prior FCC rules that were reinstated by that order, we conclude that the FCC's prior orders on that issue are no longer binding on us" and applying statutory interpretation to determine the definition of an ATDS). Moreover, the D.C. Circuit in ACA International set aside "not only [the Federal Communications Commission's ("FCC")] allowance of a one-call safe harbor, but also its treatment of reassigned numbers more generally." 885 F.3d 687, 708 (D.C. Cir. 2018). Therefore, the ACA court "set aside the Commission's treatment of reassigned numbers as a whole, id. at 709, and no portion of the FCC's "reasonable reliance approach," as described by defendant, remains following ACA International. Although defendant is correct that the decision in ACA International did not seem to contemplate leaving in place a "strict liability regime," nor did the court suggest that it was leaving in its place a "reasonable reliance" standard. See id. at 706-710. Defendant extends too far.

Further, in the wake of ACA International, the FCC has adopted new rules to create a safe harbor from TCPA liability for inadvertent calls to reassigned and recycled numbers that apply only to those callers who use the FCC's new database of reassigned numbers to determine if a number has been reassigned. See Second Report and Order, In re Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, FCC 18-177 (Dec. 12, 2018), available at https://docs.fcc.gov/public/attachments/FCC-18-177A1.pdf. In so adopting, the FCC expressed a desire to create a narrow safe harbor from TCPA liability and explicitly declined to adopt a more expansive version. Id. at 13. Additionally, the FCC characterized the court's decision in ACA International as favorably describing the then-proposed safe harbor for callers that check the database as "consistent with the Commission's past practice of taking a reasonable reliance approach when interpreting the TCPA," id. at 14 (emphasis supplied), further undermining that "reasonable reliance" represents a "standard" for dealing with reassigned numbers following ACA International.

The Court DEEMS WITHDRAWN defendant's Proposed Instruction No. 37, which addresses statutory damages, because, as noted above, the parties now agree that the Court will determine damages after findings by the jury. (See Dkt. No. 309 60:25-61:1-7.) Therefore, the Court need not instruct the jury on how to calculate damages.

The Court GRANTS plaintiff's objection to defendant's Proposed Instruction No. 38. Whether plaintiff Perez "is an adequate class representative" and "is a member of each of the certified classes" (Jury Instructions at 64) are legal issues for the Court. (See Cert. Order at 11-12.)

CONCLUSION

For the foregoing reasons, the Court DENIES defendant's motions to strike or exclude the opinions of plaintiff's expert witnesses and addresses the relevant motions in limine and disputed proposed jury instructions as referenced above.

Additionally, attached hereto as Exhibit A is a draft of the juror questionnaire. Any comments thereupon shall be submitted to the Court by no later than Monday, April 15, 2019.

This Order terminates Docket Numbers 252, 253, 254, 293, and 295.

IT IS SO ORDERED.